# Arun Kumar v. State of U.P. & Ors

- **Citation:** (2021) 8 ILRA 115
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-07-23
- **Case number:** Service Bench No. 15499 of 2021
- **Bench:** Rajan Roy, Ravi Nath Tilhari
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/arun-kumar-v-state-of-u-p-ors-47156
- **Pages:** 5

## Headnote

A. Practice & Procedure - The law does not
permit the extension of period of limitation by
mere filing of the representation. (para 5)

Writ Petition Rejected. (E-8)

List of Cases cited:-

## Text

8 All. Arun Kumar Vs. State of U.P. & Ors.
115
the respondents applied their mind to the
observations of this court in the earlier
judgment.

29. For the sake of convenience, the
relevant
observation
of
the
Hon'ble
Supreme Court in the case of Subrata Roy
Sahara (supra) are being reproduced
below:-

"191. The Indian judicial system is
grossly afflicted with frivolous litigation. Ways
and means need to be evolved to deter litigants
from their compulsive obsession towards
senseless and ill-considered claims. One needs
to keep in mind that in the process of
litigation, there is an innocent sufferer on the
other side of every irresponsible and
senseless claim. He suffers long-drawn
anxious
periods
of
nervousness
and
restlessness, whilst the litigation is pending
without any fault on his part. He pays for the
litigation from out of his savings (or out of
his borrowings) worrying that the other side
may trick him into defeat for no fault of his.
He spends invaluable time briefing counsel
and preparing them for his claim. Time
which he should have spent at work, or with
his family, is lost, for no fault of his. Should a
litigant not be compensated for what he has
lost for no fault? The suggestion to the
legislature is that a litigant who has succeeded
must be compensated by the one who has lost.
The suggestion to the legislature is to
formulate a mechanism that anyone who
initiates and continues a litigation senselessly
pays for the same. It is suggested that the
legislature should consider the introduction of
a "Code of Compulsory Costs"."

30.

Accordingly,
taking
into
consideration the law laid down by the
Hon'ble Supreme Court in the case of
Subrata
Roy
Sahara
(supra),
while
allowing the writ petition, this Court imposes
cost of Rs. 50,000/- on the State to be paid to
the petitioner. It would be open for the State
to recover the said cost from the officer
concerned who has passed the impugned
order dated 26.04.2019 and whose action has
resulted in such avoidable litigation causing
repeated harassment to the petitioner.

31. Let this order be complied within
four weeks from the date of receipt of a
certified copy of this order.
----------
(2021)08ILR A115
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 23.07.2021

BEFORE

THE HON'BLE RAJAN ROY, J.
HON'BLE RAVI NATH TILHARI, J.

Service Bench No. 15499 of 2021

Arun Kumar ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Shivam Sharma

Counsel for the Respondents:
C.S.C., Shikhar Anand

A. Practice & Procedure - The law does not
permit the extension of period of limitation by
mere filing of the representation. (para 5)

Writ Petition Rejected. (E-8)

List of Cases cited:-

1. State of Tripura & ors. Vs Arabinda
Chakraborty & ors. (2014) 2 SCC (L&S) 300

2. Jacob Vs Director of Geology & Mining &anr.
(2008) 10 SCC 115

(Delivered by Hon'ble Rajan Roy, J.
116 INDIAN LAW REPORTS ALLAHABAD SERIES
&
Hon'ble Ravi Nath Tilhari, J.)

1. Heard Sri Shivam Sharma, learned
counsel for the petitioner and learned
Standing Counsel for the State.

2. The claim petition bearing No. 486
of 2019 has been rejected on the ground of
limitation. The petitioner was initially
appointed under the opposite parties vide
order dated 29.07.1982 as Dispatcher in the
pay-scale of Rs. 200-5-250-EB-6-260-EB8-320 on temporary basis. His services
were terminated without any notice. The
petitioner has continued as Dispatcher
w.e.f. the date of his joining in the year
1982 itself.

3. During the course of argument, Sri
Shivam Sharma, learned counsel for the
petitioner fairly informed the Court that in
the year 1991, the petitioner had preferred a
writ petition before this Court bearing No.
6965 of 1991, which was dismissed for
want of prosecution on 06.12.2012. This
fact was not mentioned before the Tribunal
nor has it been mentioned in the writ
petition. Nevertheless, it has been brought
to our notice by the counsel himself during
arguments. Thereafter, the petitioner moved
a representation on 07.09.2015, claiming
entitlement to the post of Junior Clerk in
the clerical cadre and seniority thereon with
consequential benefits of promotion etc.
This claim was apparently moved after 33
years of his appointment as Dispatcher. The
petitioner was given the benefits of
Dispatcher.
The
petitioner
without
disclosing the factum of having filed a writ
petition before the High Court bearing no.
6965 of 1991, as noticed hereinabove filed
a claim petition before the U.P. Public
Service Tribunal at Lucknow bearing no.
2053 of 2015, which was disposed of with
a direction to the concerned opposite party
to decide petitioner's representation dated
07.09.2015.

4. We have perused the said judgment
dated 25.07.2017, though it is not under
challenge before us, we are constrained to
observe that the Tribunal did not delve into
the question of limitation, which every
court is bound to see irrespective of the fact
as to whether objection has been raised or
not by any opposite party. The claim
petition was filed in the year 2015 seeking
a declaration to treat him as substantively
appointed clerk w.e.f. 29.07.1982. The
cause of action, if at all, arose in the year
1982, but, the Tribunal did not go into this
question, instead, it simply passed an order
for disposal of petitioner's representation
dated 07.09.2015. Now in pursuance
thereof on 18.07.2018, an order was passed
by the Chief Conservator of forest/Director,
Rajya Anusandhan Sansthan, U.P., Kanpur
rejecting the claim of the petitioner. This
order was challenged by the petitioner by
means of writ petition before this Court
bearing no. 1538 (SS) of 2019, as is
mentioned in the judgment of the Tribunal,
which was dismissed on 21.01.2019 on the
ground of lack of territorial jurisdiction.
The
petitioner
thereafter
filed
the
abovementioned claim petition bearing no.
486 of 2019 before the Tribunal at
Lucknow. The claim petition has been
declined by the Tribunal on the ground of
limitation. Relevant extract of the judgment
are quoted hereinbelow:-

"14. It is clear that the petitioner
was appointed as Dispatcher in the Forest
department in 1982. It was in compliance
of the Government order dated 08.06.1982,
whereby a list of visually handicapped
persons was circulated amongst various
department for appointment in available
8 All. Arun Kumar Vs. State of U.P. & Ors.
117
vacancies forthwith. The letter specifies the
posts against which identified persons were
directed to be appointed. However, it did
not specifically mention whether they were
to be appointed against cadre or ex-cadre
posts. The petitioner was appointed in
place of Sri Dorji, who too was included in
the list circulated by the Government vide
its G.O dated 8.6.1982.

15. As the Government order did
not clearly state whether the appointment was
to be made on cadre or ex-cadre posts, the
choice was left to the departments to appoint
the
nominated
persons
in
available
departmental vacancies. The fact that the
petitioner was appointed against a vacant post
of a Junior Clerk does not automatically
bestow upon him the rights of a junior clerk.
He was specifically appointed as a Dispatcher
which was an ex-cadre position. The petitioner
did not raise any objection to this appointment
and joined service. It is also clear from record
that in 1986, when other employees were
regularised, the petitioner did not raise any
objection. His first representation in this
regard is dated 07.09.2015, which is about 33
years after his initial appointment and 29
years after regularisation of the other clerks
with whom he is claiming parity. During the
intervening period, he raised no objection
which gives support to the claim of the
respondents that the matter is heavily time
barred. Even in 2014, when he first
approached the Hon'ble High Court in Writ
Petition no. 2464(S/S) of 2014, his prayer was
not to seek regularisation from the date of his
substantive appointment but only for grant of
ACP. The Court had granted him that benefit
and he was subsequently, vide order dated
30.10.2014, provided ACPs, he had requested.

16. The grant of ACP assumes
that the petitioner was treated as regular
employee, as the benefit of ACP is
available only to regular employees, who
have completed varied years of satisfactory
service. Thus, the substantive claim of
regularisation of the petitioner has already
been recognised and granted. It is also
significant that ACP is a substitute
mechanism
for
promotions.
The
respondents have unambiguously stated
that the petitioner has been provided all the
service benefits that he was entitled to as
an ex-cadre employee. The petitioner has
not stated anywhere that he has been
deprived of pensionary benefit too.

17. The Claim Petition, filed by
the petitioner at the Tribunal, bearing no
2053 of 2015, does not extend the
limitation provided in Section-5 of the
Tribunal Act, 1976. It is settled law that
delayed
or
repeated
pensionary
representations do not extend the period
of limitation. In the instant case, the cause
of action clearly arose on 29-07-1982,
when petitioner was initially appointed as
dispatcher on an ex-cadre post or at best
on 31.03.1986, when 9 junior clerks with
whom he claimed parity, were regularised
and he was left out. The delay in
representing or seeking judicial redressal
cannot help the petitioner in obtaining the
benefit of extending the bar of limitation.
This principle has been categorically and
unequivocally upheld by the Hon'ble
Supreme Court in State of Tripura and
others vs Arabinda Chakraborty and
others (2014) 2 SCC (L&S) 300, The
Hon'ble Supreme Court held that:

"In our opinion, the suit is
hopelessly barred by law of limitation.
Simply by making a representation, when
there is no statutory provision or there is
no statutory appeal provided, the period of
limitation would not get extended. The law
does not permit extension of period of
limitation by mere filing of representation.

"In
Jacob
vs.
Director
of
Geology and Mining and another (2008)
10 SCC 115 the Hon'ble Supreme Court
118 INDIAN LAW REPORTS ALLAHABAD SERIES
has
held
that
a
mere
disposal
representation by any authority under
orders of a Court or Tribunal to consider
and decide that representation does not
extend
the
period
of
limitation
automatically. The Court observed as
follows:

"When a direction is issued by a
court/tribunal to consider or deal with the
representation, usually the directee (person
direceted) examines the matter on merits,
being under the impression that failure to
do may amount to disobedience. Whien an
order is passed considering and rejecting the
claim or representation, in compliance with
direction of the court or Tribunal, such an
order does not revive the stale claim, nor
amount to some kind of ''acknowledgement
of a jural relationship' to give rise to a fresh
cause of action.

18. In light of the above, we find
that the claim of the petitioner is clearly
barred by limitation and hence not
maintainable.

5. On bare perusal of the judgment of
the Tribunal, we find that it is based on the
decisions of Hon'ble Supreme Court on the
point of limitation. The Tribunal has
referred to the decisions of Hon'ble
Supreme Court in the case of State of
Tripura
and
others
vs.
Arabinda
Chakraborty and Others [(2014) 2 SCC
(L & S) 300], wherein it has been held that
simply by making a representation when
there is no statutory provision or there is no
statutory appeal provided, the period of
limitation would not get extended. The law
does not permit the extension of period of
limitation
by
mere
filing
of
the
representation. In another decision rendered
by Hon'ble Supreme Court in the case
Jacob vs. Director of Geology and
Mining and Another [(2008) 10 SCC 115]
which has also been relied by the Tribunal,
it has been held that when a direction is
issued by a Court/Tribunal to consider or
deal with the representation, usually the
Directee (person directed) examines the
matter
on
merits,
being
under
the
impression that failure to do would amount
to disobedience. When an order is passed
considering and rejecting the claim or
representation,
in
compliance
with
direction of the court or Tribunal, such an
order does not revive the stale claim, nor
amount to some kind of 'acknowledgement
of a jural relationship' to give rise to fresh
cause of action.

6. The case at hand is fairly covered
by the aforesaid pronouncements and we
are of the opinion that the Tribunal had
rightly rejected the claim on the ground of
it being barred by limitation and there is no
reason for this Court to interfere with its
judgment.

7. It is made clear that though the
claim of the petitioner to the post of Junior
Clerk is barred, however, as far as the issue
of sanction of post of Dispatcher etc is
concerned, which is said to be pending
before the State Government, as has been
observed in the order dated 18.07.2018, the
same still survives before the State
Government, which the Government is
obliged to decide at the earliest, but, the
present proceedings do not relate to the
post of Dispatcher, therefore, we do not
find any error in the judgment of the
Tribunal and accordingly dismiss this writ
petition, especially as, the writ petition
filed by the petitioner in this regard in the
year 1991 before this Court was dismissed
for want of prosecution and the petitioner
did not take any steps thereafter to get it
restored. The petitioner may pursue the
matter before the State Government so far
as the post of Dispatcher is concerned.
8 All. Satish Kumar Sonker Vs. State of U.P. & Ors.
119

9. Copy of this judgment be sent to
Chairman, U.P. Public Service Tribunal for
circulating the same amongst all its
Members, so that the learned Members
while deciding the claim petition, in the
event of disposing of the claim petition
with a direction to decide the representation
of the petitioner, should not overlook the
point of limitation, which they are
otherwise obliged to consider, otherwise,
this leads to unnecessary complications and
revival of stale claims, which is not
appropriate.
----------
(2021)08ILR A119
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 29.07.2021

BEFORE

THE HON'BLE RAJESH SINGH CHAUHAN , J.

Service Single No. 15979 of 2021

Satish Kumar Sonker ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Ajeet Srivastav

Counsel for the Respondents:
C.S.C., Ramesh Chandra Pandey

A. Service Law - Suspension Order -
Keeping any employee under suspension
without
contemplating
any
departmental
enquiry or pending departmental enquiry is
not a suspension order but the same is
punishment order, which is absolutely illegal
and unwarranted. Moreover, its been more
than one year nine months since the
petitioner is under suspension. Therefore,
such an order prolonged suspension order
without
contemplating
or
pending
departmental enquiry is not only illegal,
arbitrary but the same is harassment of the
employee. (Para 6)
Writ Petition Allowed. (E-8)

(Delivered by Hon'ble Rajesh Singh
Chauhan, J.)

1. Heard Sri Ajeet Srivastava, learned
counsel for the petitioner, learned Standing
Counsel for the opposite party Nos.1 to 4
and Sri Ramesh Chandra Pandey, learned
counsel for the opposite party Nos.5 and 6.

2. The order under challenge is the
suspension order dated 11.10.2019 passed
by the Executive Officer, Nagar Palika
Parishad, District-Raebareli placing the
petitioner under suspension.

3. Learned counsel for the petitioner
has assailed the aforesaid suspension order
mainly on two grounds. Firstly, this
suspension order has been issued neither in
contemplation of the departmental enquiry
nor pending departmental enquiry and the
law is trite on the point that an employee
may be placed under suspension if there is
pending
departmental
enquiry
or
in
contemplation of departmental enquiry and
there may not be other eventuality for
placing under suspension. The next ground
to assail the impugned suspension order is
that more than one year and nine months
period have already passed since the date of
passing the suspension order but neither
any charge-sheet has been served upon the
petitioner nor any enquiry has been
contemplated.

4. Learned counsel for the petitioner
has lastly submitted that along with the
petitioner one Rahul Tiwari serving on the
post of B.L.O. was suspended but he was
reinstated by the subsequent order dated
27.11.2019 (Annexure No.2), but no such
order has been passed in the case of the
petitioner. As per learned counsel for the