THE STATE OF UTTAR PRADESH & ORS. versus RAJMATI SINGH on 7 December 2022

JUDGMENT

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1. Delay condoned.

2. Leave granted.

3. The State of Uttar Pradesh and its authorities in the EducationDepartment are aggrieved by the judgment dated 24.01.2017 passed byCa Division Bench of the High Court of Judicature at Allahabad, LucknowBench whereby the respondent was declared to have continued in service,thus, entitling her to all consequential benefits including salary. The Stateof Uttar Pradesh has been permitted to hold an enquiry to find out theofficers in the Basic Education Department responsible for the situationDwhich led to order of reinstatement with all consequential benefits, andto effect recovery of the entire amount from the officers foundresponsible.

4. The facts may be briefly recounted.

5. The respondent was appointed as an untrained AssistantETeacher on 28.01.1971 in Kanya Karmottar Junior High School, Gaura,Rai-Bareli. She was relieved from the aforesaid post on 04.08.1973 toundergo the Basic Training Course (for short ‘BTC’). Completion ofthis course was a necessity as per Department Instructions, in order tocontinue on the post on which the respondent was appointed on tenurebasis. The respondent did not furnish a BTC Training Certificate butFappears to have produced a B.Ed Certificate instead, on the basis ofwhich she was not permitted to resume her duties in the year 1974. Noformal order terminating the services of respondent was passed butconsidering the fact that she was an untrained teacher and was admittedlyrelieved from her duties, her contractual employment came to an end.G

6. The respondent appears to have made representations, whichwere seemingly ignored by the authorities. For the next several decades,respondent continued to make her representations, but did not approacha judicial/quasi-judicial forum for relief. She eventually filed a complaintbefore the State Information Commission, Uttar Pradesh, after theHenactment of the Right to Information Act, 2005, somewhere in the year 2009, and based on her complaint, the Commission passed anorder dated 05.03.2009 directing the District Basic Education Officer,Rai-Bareily to communicate the decision to the respondent on herrepresentations.

7. The aforesaid order of the State Information Commissioncompelled the District Basic Education Officer to issue a communicationdated 04.06.2009 (P-2) which contains a brief history as to how therespondent failed to produce the required BTC Certificate and was notpermitted to resume her duties. This order, in no way, amounts to freshconsideration of the representations made by the respondent or rejectionthereof on merits. It simply communicated the history regarding the eventsof 1973-1974 when the respondent had worked for a short duration.

8. Claiming that the communication dated 04.06.2009 amountedto denial of reinstatement to her, the respondent approached the StatePublic Services Tribunal (in short, ‘the Tribunal’) on 03.06.2010 but herClaim Petition was dismissed on 11.06.2010 as being barred by limitation.The respondent filed a Review Petition but it was dismissed on13.08.2010. Thereafter, the respondent approached the High Court whichvide order dated 02.07.2012 directed the Tribunal to consider the matterafresh on merits. The Tribunal then passed an order dated 13.12.2013directing the appellant-authorities to consider and dispose of therepresentations filed by the respondent. In compliance with thesedirections, the District Basic Education Officer considered and rejectedthe representation(s) moved by the respondent, on 05.04.2014. Insubstance, this was actually the first communication sent to the respondentwhich explicitly rejected her claim for reinstatement/rejoining, as theprior communication had not provided any determination on merits.

9. The respondent again approached the High Court challengingthe communication dated 05.04.2014 as well as the order of the Tribunaldated 13.12.2013. The High Court vide the impugned judgment, as statedearlier, has modified the Tribunal’s order dated 13.12.2013 and declaredthe respondent to have continued in service with all consequential benefitsincluding the salary.

10. The question that falls for our consideration is whether theclaim of the respondent was inordinately delayed, obsolete, stale, andbarred by the principle of delay and laches and as a civil claim, whetherit was barred by law of limitation?

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A11. To trace out the answer to the question formulated above,some facts need to be repeated. The respondent was apparently relievedon 04-08-1973 to undergo the required BTC courses. She was allegedlynot permitted to resume duties in the year 1974 after she had completedB.Ed. degree. She made several representations, one after the other,but did not deem it appropriate to approach any judicial or quasi-judicialBforum. It was only after the enactment of Right to Information Act,2005, whereunder the State Information Commission came to beconstituted, that the respondent moved before the said Commission toissue a directive to discover the fate of her representations. TheCommission passed an Order on 05.03.2009 asking the appellant -Cauthorities to communicate the decision on the representations of therespondent and it was in this backdrop that the communication dated04.06.2009 was issued by the District Basic Education Officer, whichaccording to the respondent revived her pending claim.

12. In our considered view, the respondent like any vigilant citizen,Despecially given that she does not belong to economically or sociallybackward segments of the society, was expected to assert her rightsbefore an appropriate forum within a reasonable time. Repeatedrepresentations neither give rise nor revive the cause of action, if it hadalready arisen in the past. Respondent’s difficulties do not end there,given that her services were brought to an end when she was denied toEresume her duties in the year 1974. She was, thus, required to seek adeclaration of her continuity or have a writ of mandamus issued for herreinstatement. She did not do either. The Information Commission is nota forum to adjudicate service disputes. It was not a forum which eithercould declare the rights of the respondent or grant any service benefits.FThe respondent’s move before the State Information Commission wasthus an exercise in futility. It leaves no room for doubt that the respondentslept over her rights and allowed the grass to grow under her feet for along duration of over 33 years.

13. We are of the considered opinion that the respondent waivedGher rights to raise objections in this regard and is deemed to haveabandoned her employment.

14. The next question which falls for consideration is whether adeemed order of termination of services or abandonment of employmentcould be challenged by the respondent before the Tribunal in the yearH2010? There can be no quarrel that such a challenge was hopelessly time-barred under Section 5 of U.P. Public Services (Tribunal) Act, 1976.

15. The view taken by the Tribunal on 11.06.2010 was legallycorrect and tenable. The High Court nevertheless vide Order dated02.07.2012 passed in the respondent’s Writ Petition set aside theTribunal’s order. A perusal of the High Court’s order reveals that neitherthe principles of delay and latches nor the law of limitation wereconsidered, with reference to the facts of the case in hand. The HighCourt blissfully ignored the proposition of law and proceeded on thepremise that there was no fault on the part of the respondent to file theclaim petition before the Tribunal as “the impugned order was passed on04.06.2009 xx xx xx”. The High Court completely overlooked the factthat it was not an order passed on the representations made by therespondent but was a communication sent to her under compulsion dueto the directions issued by the State Information Commission. The saidcommunication in no way revived the cause of action in favour of therespondent.

16. In all fairness and faced with the situation, learned Seniorcounsel appearing for the respondent relies upon a decision of this Courtin “Basic Shiksha Parishad And Another vs. Sugna Devi (Smt.) AndOthers”(2004) 9 SCC 68.

17. In Sugna Devi’s case, the only issue that arose for considerationwas whether or not she was appointed as an Assistant Teacher and ifso, whether her services were terminated illegally. This Court upheldthe finding of fact returned by the High Court which, upon considerationof the record regarding the payment of salary, transfer orders, joiningreports and letter of authority asking her to present her testimonials etc.,proceeded to hold that Sugna Devi was actually working as a Teacher.It was further held that her services could not be terminated withoutpassing a formal order. Consequently, this Court upheld the directionsissued by the High Court to grant “compensation equivalent to the salaryfor the last three preceding years before the date of her superannuation”.

18. In “Union of India and Ors. vs. Tarsem Singh”(2008) 8 SCC652, this Court summarized the settled principles in the following manner:- “7. To summarise, normally, a belated service related claim willbe rejected on the ground of delay and laches (where remedy issought is sought by filing a writ petition) or limitation (where remedyis sought by an application to the Administrative Tribunal). One of AB

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Athe exceptions to the said rule is cases relating to a continuingwrong. Where a service related claim is based on a continuingwrong, relief can be granted even if there is a long delay in seekingremedy, with reference to the date on which the continuing wrongcommenced, if such continuing wrong creates a continuing sourceof injury. But there is an exception to the exception. If the grievanceBis in respect of any order or administrative decision which relatedto or affected several others also, and if the reopening of theissue would affect the settled rights of third parties, then the claimwill not be entertained. For example, if the issue relates to paymentor refixation of pay or pension, relief may be granted in spite ofCdelay as it does not affect the rights of third parties. But if theclaim involved issues relating to seniority or promotion, etc..,affecting others, delay would render the claim stale and doctrineof laches/limitation will be applied. Insofar as the consequentialrelief of recovery of arrears for a past period is concerned, theprinciples relating to recurring/successive wrongs will apply. As aDconsequence, the High Courts will restrict the consequential reliefrelating to arrears normally to a period of three years prior to thedate of filing of the writ petition.”

19. Close to the facts of this case, in “C. Jacob versus Director ofGeology and Mining And Other”(2008) 10 SCC 115, this Court, havingEfound that the employee suddenly brought up a challenge to the order oftermination of his services after 20 years and claimed all consequentialbenefits, held that the relief sought for was inadmissible. The legal positionin this regard was laid out in the following terms:

“10. Every representation of the Government for relief, may notFbe applied on merits. Representations relating to matters whichhave become stale or barred by limitation, can be rejected on thatground alone, without examining the merits of the claim. In regardto representations unrelated to the Department, the reply may beonly to inform that the matter did not concern the Department orGto inform the appropriate Department. Representations withincomplete particulars may be replied by seeking relevantparticulars. The replies to such representations, cannot furnish afresh cause of action or revive a stale or dead claim.

11. When a decision is issued by a court/tribunal to consider orHdeal with the representation, usually the directee (person directed)

examines the matter on merits, being under the impression thatfailure to do so may amount to disobedience. When an order ispassed considering and rejecting the claim or representation, incompliance with direction of the court or tribunal, such an orderdoes not revive the stale claim, nor amount to some kind of“acknowledgement of a jural relationship” to give rise to a freshcause of action.

12. When a government abandons service to take alternativeemployment or to attend to personal affairs, and does not botherto send any letter seeking leave or letter of resignation or letter ofvoluntary retirement, and the records do not show that he is treatedas being in service, he cannot after two decades, represent thathe should be taken back to duty. Nor can such employee be treatedas having continued in service, thereby deeming the entire periodas qualifying service for the purpose of pension. That will be atravesty of justice.

13. Where an employee unauthorisedly absents himself andsuddenly appears after 20 years and demands that he should betaken back and approaches the court, the department naturallywill not or may not have any record relating to the employee atthat distance of time. In such cases, when the employer fails toproduce the records of the enquiry and the order of dismissal/removal, court cannot draw an adverse inference against theemployer for not producing records, nor direct reinstatement withback wages for 20 years, ignoring the cessation of service or thelucrative alternative employment of the employee. Misplacedsympathy in such matters will encourage discipline, lead to unjustenrichment of the employee at fault and result in drain of publicexchequer. Many a time there is also no application of mind as tothe extent of financial burden, as a result of a routine order forback wages.”

20. Taking into consideration the cumulative effect of the facts inthis case, coupled with the legal principles cited above, we are satisfiedthat the claim of the respondent is stale, highly belated, time barred, andthe same ought not to have been entertained by the Tribunal or the HighCourt after a span of over three decades.

21. We reiterate that undue sympathy and a perceived liberalapproach by a judicial forum can lead to significant adverse AB

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Aconsequences. It not only gives rise to illegitimate expectations in themind of fence sitting employees, but also leads to undue burdens onthe public exchequer. Not only this, the indulgence shown by a Courtsolely on equitable considerations, dehors the law, breeds indisciplinein public services and incorrigible employees start looking for a dividendon the period of their absence or for dereliction of duty. While there isBno evidence to suggest that the respondent deliberately absented herselffrom duty, the facts speak for themselves in that she failed to take anyrecourse provided under law for more than three decades. We maysay at the cost of repetition that the respondent had hardly served asan untrained teacher on temporary basis for a period of 2½ years andCin terms of the impugned judgment of the High Court, she has beenheld entitled to get arrears of pay of more than 40 years, besides allthe retiral benefits. We are, therefore, of the view that the High Courtought not to have drawn adverse inferences against the appellants orput the entire onus on them to prove that the respondent wasunjustifiably denied the resumption of duties. The approach of the HighDCourt in this regard is completely erroneous and contrary to the settledprinciples of law. The impugned Judgment thus cannot sustain and isliable to be set aside.

22. Having held so, let us look into the conduct of the appellantsas well. It is true that the State Information Commission had no authorityEto intrude into a service dispute and pass an inappropriate order likedated 05.03.2009. The Tribunal, however, corrected that error and turneddown the respondent’s claims being barred by limitation. That order wasnullified by the High Court vide impugned Judgment dated 02.07.2012.The appellants sat silent and accepted that verdict without any murmur.FThe said Judgment has, in a way, attained finality, though it is legallyunsustainable. Having accepted that Judgment, the appellants ought tohave been prepared to face the next consequence which fell on themwhen the Tribunal directed them to decide the respondent’srepresentations afresh. This led to the revival of a ghost claim after over 30 years. The appellants were expected to immediately understand theGimplications and consequences of events as they unfolded but theyremained silent on the judgment dated 02.07.2012. Under thesecircumstances, the appellants are also partially responsible for engenderinghope in respondent at a juncture when she was nearing the age ofsuperannuation.H

23. Taking into consideration the cumulative effects of all the factsAand circumstances, while we set aside the impugned Judgment dated24.01.2017 of the High Court and reject the claim of the respondent forreinstatement, retiral benefits or arrears of pay etc., we direct theappellants to pay a lump-sum compensation of a sum of Rs.5,00,000/-(Five Lakh) within a period of two months from the date of receipt of aBcopy of this Order to the respondent.

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24. The appeal stands allowed in the above terms.

Bibhuti Bhushan Bose

(Assisted by : Neha Sharma, LCRA)

Appeal allowed.

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