HIGH COURT OF UTTARAKHAND AT NAINITAL v. Mr. Narain Dutt, Standing Counsel for the State

para 18 of the writ petition, as follows:- Sl. No. Salary, increment, etc.

4. Salary Rs.1,25,700/- (Rupees One Lakh Twenty-five Thousand Seven Hundred) per month. (Rupees Second Annual Increment @ Rs.6,000/- Six Thousand). Third Annual Rs.12,000/- earlier increment). Increment @ (in addition House Rent Allowance @ Six (Rupees Rs.6,000/- Thousand) per month. Total Claim Period (from/to) 01.05.2014 to 15.07.2014. (2.5 months)

26.05.2013 to 25.05.2014. (12 months) 26.05.2014 to 15.07.2014. (1 20 days). 01.08.2011 to 31.07.2012, (12 months). Arrear Three Fourteen Two Rs.3,14,250/- (Rupees Lakh Thousand Hundred Fifty). Rs.72,000/- (Rupees Seventy- Two Thousand) Rs.20,000/- (Rupees Twenty Thousand). Rs.72,000/- (Rupee Seventy- Two Thousand). Rs.4,78,250/- Four (Rupee Seventy Lakh Eight Thousand Two Hundred Fifty).

4. On 17.06.2025, when the petition was presented, this Court observed as follows:- “How could such claim be entertained after 11 years, in view of the law, as laid down by the Hon’ble Supreme Court in the case of Union of India and Others Vs. Tarsem Singh, (2008)8 SCC 678, wherein, in Para 7, the Hon’ble Supreme Court has stated that consequential relief relating to arrears normally should be restricted to a period of 3 years, prior to the date of filing of the writ petition? ” 3

5. Learned counsel for the petitioner submits that the claim of the petitioner is not delayed. He also raised the following submissions:- i. In the instant case, the petitioner has continuous cause of action; it has never been interpreted or stopped by any administrative order or decision of any of the respondents. ii. The right to sue accrues only when the claim of the petitioner is denied by the respondents; a cause of action arises when a legal right is infringed or threatened. iii. In the instant case, the respondents had not denied the claim of the petitioner. iv. By a communication dated 22.09.2022, respondent no.3, the Director, Medical Education has informed it to the petitioner that his claim is under process at the level of the respondent no.4, the Principal/Dean of the Medical College. v. The petitioner had, for the first time, given a representation in the year 2015. vi. The cause of action is continued since the year

2014. vii. The principle of law, as laid down in the case of Union of India and others Vs. Tarsem Singh, (2008)8 SCC 648, is not at all applicable in the present case. In that case, there was a delay of 16 years. viii. The observation in para 5 of the judgment in the case of Tarsem Singh (supra) would apply in the instant case and the claim is not barred by any law. 4

6. On the other hand, learned State Counsel submits that the claim is much delayed, therefore, it cannot be entertained.

7. It is also argued on behalf of the State that on

22.09.2022, the respondent no.3, the Director, Medical Education had not admitted that the claim is pending instead, it is argued that in response to an RTI query, the petitioner was informed that his query is under process.

8. There is no time limit prescribed for entertaining a writ petition. While exercising its jurisdiction under Article 226 of the Constitution of India, a Court has also to consider, as to whether the petitioner is guilty of unexplained delay and laches. In the case of City and Industrial Development Corporation Vs. Dosu Aardeshir Bhiwandiwala and others, (2009)1 SCC, 168, the Hon’ble Supreme Court considered this aspect and in para 26 of the judgment observed as follows:- “26. It is well settled and needs no restatement at our hands that under Article 226 of the Constitution, the jurisdiction of a High Court to issue appropriate writs particularly a writ of mandamus is highly discretionary. The relief cannot be claimed as of right. One of the grounds for refusing relief is that the person approaching the High Court is guilty of unexplained delay and the laches. Inordinate delay in moving the court for a writ is an adequate ground for refusing a writ. The principle is that the courts exercising public law jurisdiction do not encourage agitation of stale claims and exhuming matters where the rights of third parties may have accrued in the interregnum.”

9. In the case of Tarsem Singh (supra), the law on this point has been summed up by the Hon’ble Supreme Court. In last three lines of para 7 of the judgment in the case of Tarsem Singh (supra) 5 restricts the arrears up to three years prior to the date of filing of the writ petition.

10. In para 5 of the judgment in the case of Tarsem Singh (supra), the Hon’ble Supreme Court has referred to the judgment in the case of M.R. Gupta vs. Union of India, (1995)5 SCC, 628. In the case of M.R. Gupta (supra), the appellant in that case had joined the service of State of Punjab in the year 1967 and, thereafter, he joined the Railways in 1978; he claimed that his initial fixation of salary was wrong, as he was entitled to fixation of his pay after adding one increment to the pay which he would have drawn on 01-08-1978. The appellant in that case filed an application on 4-9- 1989 before the Tribunal praying inter alia for proper fixation of his initial pay with effect from 1-8-1978 and certain consequential benefits. The application was contested by the respondents on the ground that it was time barred. The Tribunal upheld the objections holding that the raising of the matter after lapse of 11 years was hopelessly barred by time. In the case of M.R. Gupta (supra), the Hon’ble Supreme Court observed that the Tribunal missed the real point and overlooked the crux of the matter. It was held that wrong fixation of salary give rise to a recurring cause of action each time when a person is paid a salary which was not computed in accordance with the Rules. The Hon’ble Supreme Court, in para 5, observed that, “So long as the appellant is in service, a fresh cause of action arises every month when he is paid his monthly salary on the basis of a wrong computation made contrary to rules. It is no doubt true that if the appellant's claim is found correct on merits, he would be entitled to be 6 paid according to the properly fixed pay scale in the future and the question of limitation would arise for recovery of the arrears for the past period. In other words, the appellant's claim, if any, for recovery of arrears calculated on the basis of difference in the pay which has become time barred would not be recoverable, but he would be entitled to proper fixation of his pay in accordance with rules and to cessation of a continuing wrong if on merits his claim is justified. Similarly, any other consequential relief claimed by him, such as, promotion etc. would also be subject to the defence of laches etc. to disentitle him to those reliefs. The pay fixation can be made only on the basis of the situation existing on 1-8-1978 without taking into account any other consequential relief which may be barred by his laches and the bar of limitation.” This observation made in the case of M.R. Gupta (supra) has been quoted in para 5 of the case of Tarsem Singh (supra). While making these observations, the Hon’ble Supreme Court in the case of M.R. Gupta (supra) remanded the matter to the Tribunal with the following observations:- “8. For the aforesaid reasons, this appeal has to be allowed. We make it clear that the merits of the appellant's claim have to be examined and the only point concluded by this decision is the one decided above. The question of limitation with regard to the consequential and other reliefs including the arrears, if any, has to be considered and decided in accordance with law in due course by the Tribunal. The matter is remitted to the Tribunal for consideration of the application and its decision afresh on merits in accordance with law. No costs.”

11. A bare reading of the observation that has been made by the Hon’ble Supreme Court in the case of M.R. Gupta (supra) 7 makes it abundantly clear that in so far as the recurring cause of action is concerned that was with regard to the salary of a person while still in service. Hon’ble Supreme Court observed that every month when correct salary is not paid, a fresh cause of action arises. But, the question of limitation with regard to arrears, etc. has not been decided, as such in that case. In the case of Tarsem Singh (supra) while referring to the law, as laid down in the case of M.R. Gupta (supra), the Hon’ble Supreme Court fixed the three years’ timeline for recovery of arrears.

12. In the case of Tarsem Singh (supra), the question was with regard to disability pension. In that case, the respondent therein was invalidated from army service on 13.11.1983. He approached the High Court in the year 1999 seeking disability pension. The High Court had allowed disability pension, but arrears were restricted to 38 months prior to filing of the writ petition with certain other directions. In the letters patent appeal, the Division Bench of High Court directed that the respondents therein was entitled to disability pension from the date it was due and it should not be restricted to a period of three years and two months prior to filing of the writ petition. But, finally, the Hon’ble Supreme Court observed that the High Court was not justified in directing the payment of arrears relating to 16 years and that too with interest. It ought to have restricted the relief relating to arrears to only three years before the date of writ petition or from the date of demand to the date of writ petition, whichever is lesser.

13. Pension and salary both works in different time period of an employee’s life. Entitlement of salary is till superannuation. Post 8 superannuation if the position is pensionable, pension is granted. As held in the case of M.R. Gupta (supra) computation of wrong salary gives recurring cause of action at each time when the salary is paid, which means that a fresh cause of action arises with every instance of payment of incorrect salary until superannuation. In other words, the issue relating to salary comes to an end on retirement. Thereafter, it may not be a recurring cause of action, whereas pension is a recurring cause of action to a retired person, each month a new cause survives when pension is not paid. In the case of Prahlad Raut Vs. All India Institute of Medical Sciences, (2021)14 SCC 472, this aspect was considered by Hon’ble Supreme Court and in para 28, the Hon’ble Supreme Court observed as follows:- “28. The proposition of law laid down by this Court in Tarsem Singh [Union of India v. Tarsem Singh, (2008) 8 SCC 648 : (2008) 2 SCC (L&S) 765] is unexceptionable. It is well settled that where there is a continuing wrong in relation to a service related claim, relief may be granted notwithstanding delay, provided the granting of the relief does not unsettle matters settled and affect third parties. The judgment was, however, rendered in the context of discretionary relief in proceedings under Article 226 of the Constitution of India, for which there is no limitation prescribed. Where the cause of action is not a continuing one the High Courts refuse monetary claim on the ground of delay, specially arrears.……………………. …………………………………………………………………………………… …………………………………………………………………………………..”

14. It is argued on behalf of the petitioner that right to sue accrues when the claim is denied by the respondents and it has further been argued the claim of the petitioner has never been denied by the respondent. Does it mean that the petitioner has yet not accrued any right to sue? The answer is in negative. 9

15. The petitioner was appointed for two years on contractual basis, which expired on 25.05.2013. This period was never extended, though the petitioner was paid salary for some time. The petitioner claims arrears upto 15.07.2014 including arrears of salary, annual increments and House Rent Allowance. The cause of action had accrued to the petitioner, the moment his resignation was received and he was relieved on 15.07.2014. The right to sue had then accrued to the petitioner.

16. It is argued on behalf of the petitioner that he had given a representation on 21.04.2015. It is true that on 21.04.2015, the petitioner had given a communication to the respondent no.4, the Principal of Medical college, who had forwarded it on 14.05.2015. The petitioner has not filed any communication revealing that from the year 2015 to the year 2022, he even made any communication to the respondent authority. It appears that the petitioner sought certain information under the Right to Information Act, 2005 on

03.09.2022, which was replied to him. In query 2 to it, the petitioner sought information, as to what action has been taken on his representation and the reply given was that it is under process at the level of the respondent no.4/the Principal/Dean of the Medical College. This RTI reply is Annexure No.12 to the writ petition.

17. In the instant case, the right to sue or cause of action has accrued to the petitioner on 15.07.2014, when his dues were not paid or soon thereafter. He made first representation on 21.04.2015 and thereafter, in the year 2022, he sought information under Right to Information Act, 2005. It was complete silence for these 07 years. 10 No record has been filed by the petitioner to reveal that, in fact, he did make any representation in between. The delay is not explained.

18. Every representation does not revive the cause of action or right to sue. They are for administrative convenience, not an alternate to legal remedy. In the case of State of Uttaranchal and another Vs. Shiv Charan Singh Bhandari and others, (2013)12 SCC 179, this aspect was considered by the Hon’ble Supreme Court in detail and in para 16 to 23, the Hon’ble Supreme Court observed as follows:- “16. We have no trace of doubt that the respondents could have challenged the ad hoc promotion conferred on the junior employee at the relevant time. They chose not to do so for six years and the junior employee held the promotional post for six years till regular promotion took place. The submission of the learned counsel for the respondents is that they had given representations at the relevant time but the same fell in deaf ears. It is interesting to note that when the regular selection took place, they accepted the position solely because the seniority was maintained and, thereafter, they knocked at the doors of the Tribunal only in 2003. It is clear as noonday that the cause of action had arisen for assailing the order when the junior employee was promoted on ad hoc basis on 15-11-1983.

17. In C. Jacob v. Director of Geology and Mining [C. Jacob v. Director of Geology and Mining, (2008) 10 SCC 115 : (2008) 2 SCC (L&S) 961, a two-Judge Bench was dealing with the concept of representations and the directions issued by the court or tribunal to consider the representations and the challenge to the said rejection thereafter. In that context, the Court has expressed thus: (SCC p. 123, para 10) “10. Every representation to the Government for relief, may not be replied on merits. Representations relating to matters which have become stale or barred by limitation, can be rejected on that ground alone, without examining the merits of the claim. In regard to representations unrelated to the Department, the reply may be only to inform that the matter did not concern the Department or to inform the appropriate Department. Representations with incomplete particulars may 11 be replied by seeking relevant particulars. The replies to such representations, cannot furnish a fresh cause of action or revive a stale or dead claim.”

18. In Union of India v. M.K. Sarkar, (2010) 2 SCC 59 : (2010) 1 SCC (L&S) 1126, this Court after referring to C. Jacob [C. Jacob v. Director of Geology and Mining, (2008) 10 SCC 115 : (2008) 2 SCC (L&S) 961, has ruled that: (SCC p. 66, para 15) “15. When a belated representation in regard to a ‘stale’ or ‘dead’ issue/dispute is considered and decided, in compliance with a direction by the court/tribunal to do so, the date of such decision cannot be considered as furnishing a fresh cause of action for reviving the ‘dead’ issue or time-barred dispute. The issue of limitation or delay and laches should be considered with reference to the original cause of action and not with reference to the date on which an order is passed in compliance with a court's direction. Neither a court's direction to consider a representation issued without examining the merits, nor a decision given in compliance with such direction, will extend the limitation, or erase the delay and laches.”

19. From the aforesaid authorities it is clear as crystal that if the court or tribunal directs for consideration of representations relating to a stale claim or dead grievance it does not give rise to a fresh cause of action. The dead cause of action cannot rise like a phoenix. Similarly, a mere submission of representation to the competent authority does not arrest time.

20. In Karnataka Power Corpn. Ltd. v. K. Thangappan, (2006) 4 SCC 322 : 2006 SCC (L&S) 791 the Court took note of the factual position and laid down that when nearly for two decades the respondent workmen therein had remained silent mere making of representations could not justify a belated approach.

21. In State of Orissa v. Pyarimohan Samantaray, (1977) 3 SCC 396 : 1977 SCC (L&S) 424, it has been opined that making of repeated representations is not a satisfactory explanation of delay. The said principle was reiterated in State of Orissa v. Arun Kumar Patnaik, (1976) 3 SCC 579 : 1976 SCC (L&S) 468 .

22. In BSNL v. Ghanshyam Dass (2), (2011) 4 SCC 374 : (2011) 2 SCC (Civ) 268 : (2011) 1 SCC (L&S) 685, a three-Judge Bench of this Court reiterated the principle stated in Jagdish Lal v. State of Haryana, (1997) 6 SCC 538 : 1997 SCC (L&S) 1550 and proceeded to observe that as the respondents therein preferred to sleep over their rights and approached the Tribunal in 1997, they would not get the benefit of the order dated 7-7-1992, 12 Santosh Kapoor v. Union of India, OA No. 1455 of 1991, order dated 7-7-1992 (CAT).

23. In State of T.N. v. Seshachalam, (2007) 10 SCC 137 : (2008) 1 SCC (L&S) 475, this Court, testing the equality clause on the bedrock of delay and laches pertaining to grant of service benefit, has ruled thus: (SCC p. 145, para 16) “16. … filing of representations alone would not save the period of limitation. Delay or laches is a relevant factor for a court of law to determine the question as to whether the claim made by an applicant deserves consideration. Delay and/or laches on the part of a government servant may deprive him of the benefit which had been given to others. Article 14 of the Constitution of India would not, in a situation of that nature, be attracted as it is well known that law leans in favour of those who are alert and vigilant.””

19. As stated, the right to sue or cause of action has accrued to the petitioner in the year 2014. He made first representation on

21.04.2015 and, thereafter, sometime in the year 2022, he appears to have made certain representation. It does not revive the cause of action. The cause of action is not recurring. It is one time action of the respondents when the outstanding dues of the petitioner was not given to him on his resignation in the year 2014. The writ petition has been filed in the year 2025, 11 years after the cause of action had accrued. The delay in filing the writ petition is not explained. The arrears in view of the judgment in the case of Tarsem Singh (supra) cannot be paid beyond three years prior to filing of the writ petition. Therefore, on the grounds of delay and laches, the writ petition may not be entertained. It deserves to be dismissed at the stage of admission itself.

20. The petition is dismissed in limine. (Ravindra Maithani, J.)

14.07.2025 Sanjay SANJAY KANOJIA DN: c=IN, o=HIGH COURT OF UTTARAKHAND, ou=HIGH COURT OF UTTARAKHAND, 2.5.4.20=e50e50b49596520698eff87e0a08bbd50468 6df4d1afc60f54a287831dec46fe, postalCode=263001, st=UTTARAKHAND, serialNumber=26EEB7122ED0DD23233A255DD8EC4 50A84B515A087CAEFD1B3179A7DEAE40699, cn=SANJAY KANOJIA