# Devendra Kumar Mishra v. State of U.P. & Ors

- **Citation:** (2021) 9 ILRA 1000
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-09-07
- **Case number:** Service Bench No. 1426 of 2021
- **Bench:** Rajan Roy, Ravi Nath Tilhari
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/devendra-kumar-mishra-v-state-of-u-p-ors-47338
- **Pages:** 12

## Headnote

A. Service Law - UP Public Services
(Tribunals) Act, 1976 - Section 5 - UP
Police Officers of the Subordinate Ranks
(Punishment and Appeal) Rules, 1991 -
Rule 4(1) (b) (iv), 14 (2), 23 and 25 -
Punishment
-
Claim
petition
before
Tribunal - Limitation of one year - Filing
of representation under Rule 25 on
10.01.2019,
it's
effect
in
counting
limitation - Held, remedy by way of
representation
to
approach
the
Government under Rule 25 of the Rules,
1991 cannot be said to be a remedy
available
under
the
service
rules
-
Revision under Rule 23 dismissed on
14.03.2013 is final order - Period of
limitation of one year to file claim petition
would be counted from the date of order
on revision and on expiry of one year the
claim petition became barred. (Par 23 and
24)
Writ petition dismissed. (E-1)
Cases relied on :-

## Text

1000 INDIAN LAW REPORTS ALLAHABAD SERIES
employees who were paid pension form
EPF Pension scheme. As already observed
above, it was not open to the Corporation to
have deviated from what has been provided
by the State Government in its order dated
10.10.2012 and, thus, the reliance placed
by learned counsel for the appellant on the
case of Krishena Kumar (supra) does not
come to the rescue of the appellant.

43. In view of the discussions made
and the reasons given herein above, in our
considered opinion, special appeals are
highly misconceived, which are hereby
dismissed.

44. However, we provide that benefit
of the judgment and order passed by
learned Single Judge, shall, thus now be
made available within a period of two
months from the date a certified copy of
this order is presented before the authority
concerned.

45. In the facts of the case, cost is
made easy.
----------
(2021)09ILR A1000
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 07.09.2021

BEFORE

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

Service Bench No. 1426 of 2021

Devendra Kumar Mishra ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Suresh Chandra Tiwari

Counsel for the Respondents:
C.S.C.

A. Service Law - UP Public Services
(Tribunals) Act, 1976 - Section 5 - UP
Police Officers of the Subordinate Ranks
(Punishment and Appeal) Rules, 1991 -
Rule 4(1) (b) (iv), 14 (2), 23 and 25 -
Punishment
-
Claim
petition
before
Tribunal - Limitation of one year - Filing
of representation under Rule 25 on
10.01.2019,
it's
effect
in
counting
limitation - Held, remedy by way of
representation
to
approach
the
Government under Rule 25 of the Rules,
1991 cannot be said to be a remedy
available
under
the
service
rules
-
Revision under Rule 23 dismissed on
14.03.2013 is final order - Period of
limitation of one year to file claim petition
would be counted from the date of order
on revision and on expiry of one year the
claim petition became barred. (Par 23 and
24)
Writ petition dismissed. (E-1)
Cases relied on :-
1. S. S.Rathore Vs St. of M.P. (1989) 4 SCC 582
2. C. Jacob Vs Director of Geology & Mining &
anr. 2008 (10) SCC 115
3. U.O.I. Vs Har Dayal; 2010 (1) SCC 394
4. St.of U.P. & anr. Vs Vivekanand Singh & anr.;
2015 (4) AWC 4130 (LB) (DB),
5. Prem Swaroop Singhal Vs St. of U.P. & ors.
2017(4) AWC 3915 (LB) (DB)

(Delivered by Hon'ble Ravi Nath Tilhari, J.)

1. Heard Sri Suresh Chandra Tiwari,
learned counsel for the petitioner and Sri
Manjeev Shukla, learned Additional Chief
Standing Counsel appearing for opposite
parties.

2. The writ petition has been filed
challenging inter alia the judgment and
order dated 06.02.2020 passed by the State
9 All Devendra Kumar Mishra Vs. State of U.P. & Ors.
1001
Public Service Tribunal, Lucknow in
reference No. 896 of 2019: Devendra
Kumar Mishra Vs. State of U.P. and others,
by which the reference/claim petition filed
by the petitioner was rejected being barred
by limitation. The prayers made in the
petition are as under:

"i. Issue a writ order or direction
in the nature of certiorari quashing the
impugned order dated 6.2.2020 passed by
State Public Service Tribunal Lucknow as
well as punishment order dated 5.5.2012
passed by Additional Superintendent of
Police Traffic Lucknow and order dated
29.09.2012 passed by appellate authority
and order dated 14.03.2013 passed by
revisional authority contained in Annexure
no.1,5,7 and 8 to the writ petition in the
interest of justice.

ii. Issue a writ order or direction
in the nature of mandamus commanding
and directing opposite parties to consider
the case of the petitioner for promotion on
the post of Head Constable in the interes of
justice.

iii. Issue a writ order or direction
which deemed fit and proper may kindly be
passed in favour of the petitioners.

iv. Allow the writ petition with
costs. "

3. The petitioner was appointed on the
post
of
Constable
Civil
Police
on
01.01.1987 and during his posting at
Lucknow Police Line, a preliminary
enquiry was held and in view of the
preliminary
inquiry
report
dated
03.11.2021, the petitioner was served with
a Show Cause Notice dated 23.12.2011
under Rule 14 (2) of the U.P. Police
Officers
of
the
Subordinate
Ranks
(Punishment and Appeal) Rules, 1991
(herein after referred to as "Rules, 1991")
for imposing the penalty of ''censure' under
Rule 4 (1) (b) (iv) of the Rules, 1991. The
petitioner filed reply dated 09.01.2012.

4. Another Show Cause Notice dated
24.01.2012 was issued on the same charges
for imposing fine equivalent to one month
salary under Rule 4 (1) (b) (ii) of the Rules,
1991 against which the petitioner filed
reply dated 08.02.2012. The Additional
Superintendent of Police, Traffic, Lucknow
vide order dated 05.05.2012 imposed the
penalty of fine equivalent to one month
salary.
The
petitioner
preferred
departmental appeal, which was dismissed
on 29.09.2012 and his revision against this
order was also rejected on 14.03.2013 by
the Inspector General of Police, Lucknow
Zone, Lucknow. Thereafter, the petitioner
had filed a representation dated 10.01.2019
under Rule 25 of the Rules, 1991 and
during its pendency, the petitioner filed
Reference No. 896 of 2019 which has been
rejected by the U.P. State Public Service
Tribunal, as barred by limitation.

5. Learned counsel for the petitioner
has submitted that as the petitioner had
preferred representation on 10.01.2019 as
provided by rule 25 of the Rules, 1991, the
claim petition filed on 27.05.2019 was
within the period of limitation of one year
as provided under Section 5 (1) (b) (i) of
the U.P. Public Services (Tribunals) Act,
1976 (in short "Act, 1976) and as such the
Tribunal erred in rejecting the reference as
barred by limitation.

6. Sri Manjeev Shukla, learned
Additional Chief Standing Counsel has
submitted that the claim petition was filed
on 27.05.2019 whereas the petitioner's
revision was dismissed on 14.03.2013 and
1002 INDIAN LAW REPORTS ALLAHABAD SERIES
as such the claim petition was preferred
after more than six years. The claim
petition was highly time barred and has
been rightly rejected by the Tribunal. He
further submitted that mere filing of
representation under Rule 25 of the Rules,
1991 would not extend the period of
limitation nor would it revive a stale claim.
The representation, itself, was filed in the
year 2019 and was also not maintainable
nor permissible under Rule 25 of the Rules,
1991, as the petitioner had already availed
the remedy of appeal which was rejected
way back in the year 2012. He submitted
that the Tribunal did not commit any
illegality in rejecting the claim petition as
barred by limitation.

7.

We
have
considered
the
submissions advanced by the learned
counsels for the parties and perused the
material on record.

8. It would be appropriate to refer the
provisions of Sections 4 and 5 of the U.P.
Public Services (Tribunals) Act, 1976, at
this very stage.

9. Section 4 of the U.P. Public
Services (Tribunals) Act, 1976 reads as
under:

"4.
Reference
of
claim
to
Tribunal.-(1) Subject to the other provision
of this Act, a person who is or has been a
public servant and is aggrieved by an order
pertaining to a service matter within the
jurisdiction of the Tribunal, may make a
reference of claim to the Tribunal for the
redressal of his grievance.

Explanation.-For the purpose of
this sub-section "order" means an order or
omission
or
in-action
of
the
State
Government or a local authority or any
other Corporation or company referred to
in clause (b) of Section 2 or of an officer,
committee or other body or agency of the
State Government or such local authority
or Corporation or company:

Provided that no reference shall,
subject to the terms of any contract, be
made in respect of a claim arising out of
the transfer of a public servant.

Provided further that in the case
of the death of a public servant, his legal
representative, and where there are two or
more such representatives, all of them
jointly, may make a reference to the
Tribunal for payment of salary, allowances,
gratuity, provident fund, pension and other
pecuniary benefits relating to services due
to such public servant.

(2) Every reference under subsection (1) shall be in such form and be
accompanied by such documents or other
evidence and by such fee in respect of the
filling of such reference and by such other
fees for the services or execution of
processes, as may be prescribed.

(3) On receipt of a reference
under sub-section (1), the Tribunal shall, if
satisfied after such inquiry as it may deem
necessary that the reference is fit for
adjudication or trial by it, admit such
reference and where the Tribunal is not so
satisfied, it shall summarily reject the
reference after recording its reasons.

(4) Where a reference has been
admitted by the Tribunal under sub-section
(3), every proceeding under the relevant
service rules or regulation or any contract
as to redressal of grievances in relation to
the
subject-matter
of
such
reference
pending immediately before such admission
9 All Devendra Kumar Mishra Vs. State of U.P. & Ors.
1003
shall abate, and save as otherwise directed
by
the
Tribunal,
no
appeal
or
representation in relation to such matter
shall thereafter be entertained under such
rules, regulations or contract.

(5) The Tribunal shall not
ordinarily admit a reference unless it is
satisfied that the public servant has
availed of all the remedies available to
him under the relevant service rules,
regulations or contract as to redressal of
grievances.

(6) For the purposes of sub-section
(5) a public servant shall be deemed to have
availed of all the remedies available to him if
a final order has been made by the State
Government, an authority or officer thereof
or other person competent to pass such order
under such rules or regulations or contract
rejecting
any
appeal
preferred
or
representation made by such public servant
in connection with the grievance:

Provided that where no final order
is made by the State Government, authority
officer or other person competent to pass
such order with regard to the appeal
preferred or representation made by such
public servant within six months from the
date on which such appeal was preferred or
representation was made, the public servant
may, by a written notice by registered post,
require such competent authority to pass the
order and if the order is not passed within
one month of the service of such notice, the
public servant shall be deemed to have
availed of all the remedies available to him.

(7) For the purposes of sub-section
(5) and(6) any remedy available to the public
servant by way of submission of a memorial
to the Governor or to any other functionary
shall not be deemed to be one of the
remedies, which are available unless the
public servant had elected to submit such
memorial.

10. Section 5 of the U.P. Public
Services (Tribunals) Act, 1976 reads as
under:

5. Powers and procedure of the
Tribunal.-(1)(a) The Tribunal shall not be
bound by the procedure laid down in the
Code of Civil Procedure, 1908 (Act 5 of
1908), or the rules of evidence contained in
the Indian Evidence Act, 1872(Act 1 of 1872),
but shall be guided by the principles of
natural justice, and subject to the provisions
of this section and of any rules made under
Section 7, the Tribunal shall have power to
regulate its own procedure (including the
fixing of places and times of its sittings and
deciding whether to sit in public or in
private):

Provided that where, in respect of
the subject- matter of a reference, a
competent court has already passed a
decree or order or issued a writ or
direction, and such decree, order, writ or
direction has become final, the principle of
res judicata shall apply;

(b)
The
provisions
of
the
Limitation Act, 1963 (Act 36 of 1963)
shall mutatis mutandis apply to reference
under section 4 as if a reference were a
suit filed in civil court so, however, that:-

(i) notwithstanding the period of
limitation prescribed in the Schedule to
the said Act, the period of limitation for
such reference shall be one year;

(ii) in computing the period of
limitation the period beginning with the
date on which the public servant makes a
1004 INDIAN LAW REPORTS ALLAHABAD SERIES
representation or prefers an appeal,
revision or any other petition (not being a
memorial to the Governor), in accordance
with the rules or orders regulating his
conditions of service, and ending with the
date on which such public servant has
knowledge of the final order passed on
such representation, appeal, revision or
petition, as the case may be, shall be
excluded:

Provided that any reference for
which the period of limitation prescribed
by the Limitation Act, 1963 is more than
one year, a reference under Section 4 may
be made within the period prescribed by
that Act, or within one year next after the
commencement of the Uttar Pradesh Public
Services (Tribunals) (Amendment) Act,
1985, whichever period expires earlier :

Provided further that nothing in
this clause as substituted by the Uttar
Pradesh
Public
Service
(Tribunal)
(Amendment) Act, 1985, shall affect any
reference made before and pending at the
commencement of the said Act.

(2) The Tribunal shall decide
every
reference
expeditiously
and
ordinarily, every case shall be decided by it
on the basis of perusal of documents and
representations, and of oral or written
arguments, if any.

(3) The Tribunal may admit in
evidence in lieu of any original document,
a copy thereof attested by a gazetted officer
or by a notary.

(4)
The
Tribunal
shall
not
ordinarily call for or allow to be adduced
oral evidence, and may, if necessary,
require any party to file an affidavit.

(5) The Tribunal shall, for the
purpose of holding any inquiry under this
Act, have, subject to the provisions of subsection (1), the same powers as are vested
in a Civil Court under the Code of Civil
Procedure, 1908(Act V of 1908), while
trying a suit, in respect of the following
matters:-

(a) summoning and enforcing the
attendance of any person and examining
him on oath;

(b) requiring the discovery and
production of documents;

(c)
receiving
evidence
on
affidavits;

(d) subject to the provisions of
Sections 123 and 124 of the Indian
Evidence Act, 1872(Act I of 1872),
requisitioning any public record or copy
thereof from any office;

(e) issuing commission for the
examination of witnesses or documenstes;

(f) recording a lawful agreement,
compromise or satisfaction and making an
order in accordance therewith;

(g) reviewing its decision;

(h) dismissing a reference for
default or deciding it ex parte;

(i) setting aside an order of
dismissal for default or an order passed by
it ex parte;

(j) passing interlocutory orders
pending final decision of any reference on
such terms, if any, as it thinks fit to impose;
9 All Devendra Kumar Mishra Vs. State of U.P. & Ors.
1005

(k) any other matter which may
be prescribed.

(5-A) No interim order (whether
by way of injunction or stay or in any other
manner) shall be passed by the tribunal on
or in any proceedings relating to any
reference unless--

(a) copies of such reference and
application for interim order, along with
all documents in support of the plea for
such interim order are furnished to the
party against whom such petition is filed,
and

(b) at least fourteen days' time is
given to such party to file a reply and
opportunity is given to it to be heard in the
matter:

Provided that the Tribunal may
dispense with the requirements (a) and (b)
and may, for reasons to be recorded, make
an interim order, as an exceptional
measure, if it is satisfied that it is necessary
so to do for preventing any loss to the
petitioner which cannot be adequately
compensated in money, but any such
interim order shall, if it is not vacated
earlier, cease to have effect on the expiry of
the period of 14 days from the date on
which
it
is
made
unless
the
said
requirements have been complied with
before the expiry of the said period and the
Tribunal has continued the operation of
that order.

(5-B) Notwithstanding anything
in the foregoing sub-sections, the Tribunal
shall have no power to make an interim
order (whether by way of injunction or stay
or in any other manner) in respect of an
order made or purporting to be made by an
employer for the suspention, dismissal,
removal, reduction in rank, termination,
compulsory retirement or reversion of a
public servant, and every interim order
(whether by way of injunction or stay or in
any other manner), in respect of such
matter, which was made by a Tribunal
before the date of commencement of this
sub-section and which if in force on that
day, shall stand vacated.

(5-C) Notwithstanding anything
in the forgoing sub-sections, the Tribunal
shall have no power to make an interim
order (whether by way of injunction or stay
or in any other manner) in respect of an
adverse entry made by an employer against
a public servant, and every interim order
(whether by way of injunction or stay or in
any other manner) in respect of an adverse
entry, which was made by a Tribunal
before the commencement of the Uttar
Pradesh
Public
Services
(Tribunal)
(Amendment) Act, 2000 and which is in
force on the date of such commencement
shall stand vacated.

(6) A declaration made by the
Tribunal shall be binding on the claimant
and his employer as well as on any other
public servant who has, in respect of any
claim affecting his interest adversely, been
given
an
opportunity
of
making
a
representation against it, and shall have
the same effect as a declaration made by a
court of law.

(7) The order of the Tribunal
finally disposing of a reference shall be
executed in the same manner in which any
final order of the State Government or
other authority or officer or other person
competent to pass such order under the
relevant service rules as to redressal of
grievances in any appeal preferred or
representation made by the claimant in
1006 INDIAN LAW REPORTS ALLAHABAD SERIES
connection with any matter relating to his
employment to which the reference relates
would have been executed.

(8)(a) The employer may appoint
a public servant or a legal practitioner, to
be known as the Presenting Officer, to
present its case before the Tribunal.

(b) The public servant may take
the assistance of any other public servant
to present his case before the Tribunal on
his behalf, but may not engage a legal
practitioner for the purpose unless either
(i) the Presenting Officer appointed by the
employer is a legal practitioner, or (ii) the
Tribunal,
having
regard
to
the
circumstances of the case, so permits.

(9) Any proceeding before the
Tribunal shall be deemed to be a judicial
proceeding within the meaning of Sections
193, 219 and 228 of the Indian Penal
Code(Act XLV of 1860).

(10) A reference or a reply to a
reference or an application may be singed
either by the appointing authority or by the
Presiding Officer or, where the appointing
authority is the Governor, by an officer not
below the rank of Deputy Secretary
authorized by the State Government in this
behalf, and in the case of a local authority,
corporation or company by the Chief
Executive Officer or Secretary thereof, as
the case may be.

11. A perusal of Section 4 of the Act,
1976 shows that the Tribunal shall not
ordinarily admit a reference unless it is
satisfied that the public servant has availed
of all the remedies available to him under
the relevant service rules, regulations or
contract as to redressal of grievances,
meaning thereby, that if the public servant
is aggrieved by an order pertaining to a
service matter he may make reference to
the Tribunal for the redressal of his
grievances, but for making such reference,
the public servant has to first avail of all the
remedies available under the service rules,
regulation or contract as to redressal of
grievances, otherwise, the Tribunal shall
not ordinarily admit such a reference.

12. Section 4 of the Act, 1976, which
speaks of the public servant to avail of all
the remedies available before filing the
claim petition, refers to those remedies
which are provided by the relevant service
rules, regulations or the contract for
redressal of grievances. If a remedy is not
provided by the service rules, regulations or
the contract governing the public servant
then such other remedy is not contemplated
by Section 4. Further, such statutory
remedies are to be availed of within the
period of limitation prescribed therefor.

13. Section 5 (1) (b) of the Act, 1976
makes applicable the provisions of the
Limitation Act, 1963 (Act 36 of 1963)
mutatis mutandis, to reference under
Section 4 of the Act, 1976 as if the
reference was a suit filed in civil court, but
the period of limitation for such reference
shall be one year, notwithstanding the
period of limitation prescribed in the
schedule of the Limitation Act.

14. In S. S.Rathore Vs. State of
Madhya Pradesh (1989) 4 SCC 582 the
Hon'ble Supreme Court, in the context of
Section 20 of the Administrative Tribunals
Act,1985, wherein also, the public servant
was required to avail of all the remedies
available to him under the relevant service
rules as to redressal of grievances before
approaching the Central Administrative
Tribunal, held that the cause of action shall
9 All Devendra Kumar Mishra Vs. State of U.P. & Ors.
1007
be taken to arise not from the date of the
original adverse order but on the date when
the order of the higher authority, where a
statutory remedy is provided entertaining
the appeal or representation, is made and
where no such order is made, though the
remedy has been availed of, a six months'
period from the date of preferring of the
appeal or making of the representation shall
be taken to be the date when cause of
action shall be taken to have first arisen,
but, made it clear that this principle may
not be applicable when the remedy availed
of has not been provided by law and the
repeated unsuccessful representations not
provided by law are not governed by this
principle.

It
is
appropriate
to
refer
paragraphs 15 to 20 of the S.S.Rathore
(supra) as under:

"15. In several States the Conduct
Rules for government servants require the
administrative remedies to be exhausted
before the disciplinary orders can be
challenged in court. Section 20(1) of the
Administrative
Tribunals
Act,
1985
provides:

"20. (1) A Tribunal shall not
ordinarily admit an application unless it is
satisfied that the applicant had availed of
all the remedies available to him under the
relevant service rules as to redressal of
grievances."

16. The Rules relating to
disciplinary proceedings do provide for an
appeal against the orders of punishment
imposed on public servants. Some Rules
provide even a second appeal or a revision.
The
purport
of
Section
20
of
the
Administrative Tribunals Act is to give
effect to the Disciplinary Rules and the
exhaustion of the remedies available
thereunder is a condition precedent to
maintaining
of
claims
under
the
Administrative
Tribunals
Act.
Administrative Tribunals have been set up
for government servants of the Centre and
several States have already set up such
Tribunals under the Act for the employees
of the respective States. The law is soon
going to get crystallized on the line laid
down
under
Section
20
of
the
Administrative Tribunals Act.

17. In this background if the
original order of punishment is taken as the
date when cause of action first accrues for
purposes of Article 58 of the Limitation
Act, great hardship is bound to result. On
one side, the claim would not be
maintainable if laid before exhaustion of
the remedies; on the other, if the
departmental remedy though availed is not
finalised within the period of limitation, the
cause of action would no more be
justiciable having become barred by
limitation. Redressal of grievances in the
hands of the departmental authorities take
an unduly long time. That is so on account
of the fact that no attention is ordinarily
bestowed over these matters and they are
not considered to be governmental business
of substance. This approach has to be
deprecated and authorities on whom power
is vested to dispose of appeals and
revisions under the Service Rules must
dispose of such matters as expeditiously as
possible. Ordinarily, a period of three to
six months should be the outer limit. That
would discipline the system and keep the
public servant away from a protracted
period of litigation.

18. We are satisfied that to meet
the situation as has arisen here, it would be
appropriate to hold that the cause of action
1008 INDIAN LAW REPORTS ALLAHABAD SERIES
first arises when the remedies available to
the public servant under the relevant
Service Rules as to redressal are disposed
of.

19. The question for consideration
is whether it should be disposal of one appeal
or the entire hierarchy of reliefs as may have
been
provided.
Statutory
guidance
is
available from the provisions of sub-sections
(2) and (3) of Section 20 of the Administrative
Tribunals Act. There, it has been laid down:

"20.(2) For the purposes of subsection (1), a person shall be deemed to
have availed of all the remedies available
to him under the relevant service rules as
to redressal of grievances,-

(a) if a final order has been made
by the government or other authority or
officer or other person competent to pass
such order under such rules, rejecting any
appeal preferred or representation made by
such person in connection with the
grievance; or

(b) where no final order has been
made by the government or other authority
or officer or other person competent to
pass such order with regard to the appeal
preferred or representation made by such
person, if a period of six months from the
date on which such appeal was preferred
or representation was made has expired.

3) For the purposes of subsections (1) and (2), any remedy available
to an applicant by way of submission of a
memorial to the President or the Governor
of a State or to any other functionary shall
not be deemed to be one of the remedies
which are available unless the applicant
had elected to submit such memorial."

20. We are of the view that the
cause of action shall be taken to arise not
from the date of the original adverse order
but on the date when the order of the
higher authority where a statutory remedy
is provided entertaining the appeal or
representation is made and where no such
order is made, though the remedy has been
availed of, a six months' period from the
date of preferring of the appeal or making
of the representation shall be taken to be
the date when cause of action shall be
taken to have first arisen. We, however,
make it clear that this principle may not be
applicable when the remedy availed of has
not been provided by law. Repeated
unsuccessful representations not provided
by law are not governed by this principle."

15. In C. Jacob Vs. Director of
Geology and Mining and another 2008
(10) SCC 115, the Hon'ble Supreme Court
held that the representation with respect to
the matters which have become stale or
barred by limitation even if considered and
rejected would not give a fresh cause of
action or revive a stale claim. Paragraph
Nos. 10 and 11 of C. Jacob (supra) are
being quoted as under:

"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 be replied
by seeking relevant particulars. The replies
to such representations, cannot furnish a
9 All Devendra Kumar Mishra Vs. State of U.P. & Ors.
1009
fresh cause of action or revive a stale or
dead claim.

11. 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
so
may
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 "acknowledgment
of a jural relationship" to give rise to a
fresh cause of action."

16. In Union of India Versus Har
Dayal 2010 (1) SCC 394 also the Hon'ble
Supreme Court has held that merely giving
representation will neither extend the
limitation nor wipe out the delay and
laches.

17. In State of U.P. and another Vs.
Vivekanand Singh and another 2015 (4)
AWC 4130 (LB) (DB), this Court held that
on a conjoint reading of Sections 4 and 5
(1) (b) of the Act, it is evident that if a
remedy has been availed under the
statutory service rules and final orders are
passed therein, the limitation will be
counted from the date of passing of final
order, subject of course to the remedy
having been availed within the period of
limitation prescribed, if any for the said
purpose prior to filing of the claim petition.
It is appropriate to refer paragraph 19 of
Vivekanand Singh (supra) as under:

" 19. Thus, on a conjoint reading
of Sections 4 and 5 (1) (b) of the Act it is
making evident that if a remedy has been
availed under the statutory service the
rules and final orders are passed therein,
the limitation will be counted from the date
of passing of final order, and not from the
date of passing of the original order. If the
remedy has been availed, but no final order
has been passed and a period of six months
has expired from the date of availing such
remedy, a one month's written notice may
be given and on expiry of the said period it
is to be deemed that the remedy as
provided under the Rules had been availed
by the public servant and a claim petition
would be maintainable and the same would
be treated within the limitation prescribed
under Section 5 (1) (b) (i) subject of course
to the remedy having been availed within
the period of limitation prescribed, if any,
for thė said purpose, prior to filing of the
claim petition."

18. In Prem Swaroop Singhal Vs.
State of U.P. and others reported in
2017(4) AWC 3915 (LB) (DB) this Court
has held that the period consumed in
decision
of
an
appeal,
revision,
representation will be excluded only when
such remedy is provided under Rules or
Orders regulating conditions of service and
availed
by
public
servant
and
not
otherwise. When there is no such provision
under Rules or Orders regulating conditions
of service, Section 5 (1) (b) (ii) will have
no application and hence limitation will be
only one year from that date when cause of
action arose.

19. From the aforesaid, it is well
settled that in order to raise the plea that the
claim petition is within the period of
limitation and not barred by it, it must be
shown that the remedy been followed or
availed of was a statutory remedy i.e.
provided by the relevant service rules,
regulations or the contract relating to public
servant and such remedy was availed of
1010 INDIAN LAW REPORTS ALLAHABAD SERIES
within the period of limitation prescribed, if
any.

20. Keeping in view the settled
principles as aforesaid, we now proceed to
consider the merit of the submission of the
petitioner's counsel that as representation
was filed under rule 25 of the Rules, 1991
on 10.01.2019 the claim petition filed on
27.05.2019 was not barred by limitation.

21. The question which requires
consideration is as to whether the remedy
of representation under rule 25 of the
Rules, 1991 was a statutory remedy
available to the petitioner before filing of
the claim petition. If the answer is in the
negative and the claim petition had become
time barred on the date of its filing or even
before filing of the representation under
rule 25, such representation would not
revive the time barred claim of the
petitioner.

22. Now, it would be appropriate to
reproduce Rule 25 of the Rules, 1991
which reads as follows:

"25. Powers of Government. -
Notwithstanding anything contained in
these Rules, the Government may, on its
own motion or otherwise call for and
examine the records of any case decided by
an authority, subordinate to it in the
exercise of any power conferred on such
authority by these rules and against which
no appeal has been preferred under these
rules and

(a) confirm , modify or revise the
order passed by such authority , or

(b) direct that a further inquiry be
held in the case ; or ( c ) reduce or enhance
the penalty imposed by the order ; or

( d ) make such other order in the
case as it may deem fit :

Provided
that
where
it
is
proposed to enhance the penalty imposed
by any such order the Police Officer
concerned shall be given an opportunity of
showing cause against the proposed
enhancement ."

23. A perusal of Rule 25 of the Rules,
1991 shows that notwithstanding anything
contained
in
the
Rules,
1991
the
Government may on its own motion or
otherwise call for and examine the records
of
any
case
decided
by
authority
subordinate to it in the exercise of any
power conferred on such authority by the
Rules, 1991 and against which no appeal
has been preferred under these Rules. We
emphasize the expression "against which
no appeal has been preferred under the
Rules, 1991". So the power of the
Government under Rule 25, can be invoked
by the public servant if the appeal has not
been preferred under the Rules, 1991
against the order of punishment pertaining
to his service matter. Rule 20 of the Rules,
1991 provides for appeal against the order
of punishment mentioned in sub-clauses (i)
to (iii) of Clause (a) and sub-clauses (i) to
(iv) of Clause (b) of Rule 4, to the
authorities mentioned in Rule 20. The order
of punishment in the petitioner's case was
passed under Rule 4 (1) (b) (ii) which is
appealable under Rule 20 and undisputedly
the petitioner preferred such appeal, which
was dismissed on 29.09.2012. Even the
revision preferred under Rule 23 against
the
said
order
was
dismissed
on
14.03.2013. In view thereof the remedy by
way of representation to approach the
Government under Rule 25 of the Rules,
1991, was not available to the petitioner.
Such a remedy cannot be said to be a
9 All Badri Narain Sharma & Ors. Vs. State of U.P. & Ors.
1011
remedy available under the service rules, so
far as the petitioner is concerned, to have
been availed of before filing the claim
petition.

24. The petitioner's revision was
dismissed on 14.03.2013, which is the final
order under the Rules, 1991. The period of
limitation of one year to file the claim
petition would therefore be counted from
this date and on expiry of one year the
claim petition became barred, in view of
the settled proposition of law that period of
limitation once starts running would not
stop in the absence of any statutory
provision, and would run it's full course.
Filing of representation under Rule 25 on
10.01.2019, which representation was even
not maintainable, would not revive the
petitioner's claim, which had already
become time barred in view of the law laid
down in the cases of S.S. Rathore (supra)
and C. Jacob (supra) that by filing
representation any fresh cause of action can
not arise nor it revives stale or dead claim.

25. In view of the aforesaid, we are of
the considered view that the remedy under
Rule 25 of the Rules, 1991 not being
available to the petitioner, the claim
petition, admittedly filed after six years of
the order of rejection of the petitioner's
revision, was barred by limitation under
Section 5 (1) (b) of the Act, 1976.

26. The claim petition has rightly
been rejected by the Tribunal. The order of
the Tribunal is perfectly justified and calls
for no interference.

27. The writ petition is dismissed.
----------
(2021)09ILR A1011
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.09.2021
BEFORE

THE HON'BLE MUNISHWAR NATH
BHANDARI, A.C.J.
THE HON'BLE AJAY TYAGI, J.

Special Appeal No. 1467of 2012 & other cases

Badri Narain Sharma & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Siddharth Khare, Sri Ashok Khare

Counsel for the Respondents:
C.S.C., Sri Yatindra

A. Service Law - Right of Children to Free
and Compulsory Education Act, 2009 -
National Council for Teacher Education Act,
1993 - Section 12-A - Post of Assistant
Teacher
-
Compassionate
appointment
cancelled - Qualification of having TET
certificate, non-fulfillment thereof - Its
effect - Applicability of Act of 2009 - Held,
Section 12-A of the Act of 1993 cannot to
operate in conflict to the provisions of the
Act of 2009 and notification issued therein.
The field is now occupied by the Act of 2009
to provide educational qualification for
appointment of teachers - Compassionate
appointment cannot be given dehors the
statutory provisions only in reference to the
GO dated 04.09.2000. (Para 21, 24 and 25)
B. Interpretation of Statute - Statutory
provision and administrative order - Conflict
- Overriding effect - Held, Act of 1993 has
no overriding effect over the Act of 2009 -
Section 12-A of the Act of 1993 cannot
govern the provisions of the Act of 2009 in
absence of non-obstante clause rather
protection is in reference to their Regulation
to provide qualification - Held further,
Administrative order cannot stand in conflict
with statutory provisions.(Para 15 and 25)
Appeal dismissed. (E-1)
Cases relied on :-