The State Of Uttar Pradesh vs Rajmati Singh

REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL No.9329 OF 2022 (Arising out of SLP(C)No.28128 of 2017)

THE STATE OF UTTAR PRADESH & ORS. … APPELLANTS

Versus

RAJMATI SINGH … RESPONDENT

J U D G M E N T

1. Delay condoned.

2. Leave granted.

3. The State of Uttar Pradesh and its authorities in the

Education Department are aggrieved by the judgment dated 24.01.2017

passed by a Division Bench of the High Court of Judicature at

Allahabad, Lucknow Bench whereby the respondent was declared to

have continued in service, thus, entitling her to all consequential

benefits including salary. The State of Uttar Pradesh has been

permitted to hold an enquiry to find out the officers in the Basic

Education Department responsible for the situation which led to

order of reinstatement with all consequential benefits, and to

effect recovery of the entire amount from the officers found

responsible.

Signature Not Verified

4. Digitally signed by The facts may be briefly recounted. VISHAL ANAND Date: 2023.01.02 17:16:06 IST Reason:

5. The respondent was appointed as an untrained Assistant Teacher

on 28.01.1971 in Kanya Karmottar Junior High School, Gaura, Rai­ 2

Bareli. She was relieved from the aforesaid post on 04.08.1973 to

undergo the Basic Training Course (for short `BTC’). Completion of

this course was a necessity as per Department Instructions, in

order to continue on the post on which the respondent was appointed

on tenure basis. The respondent did not furnish a BTC Training

Certificate but appears to have produced a B.Ed Certificate

instead, on the basis of which she was not permitted to resume her

duties in the year 1974. No formal order terminating the services

of respondent was passed but considering the fact that she was an

untrained teacher and was admittedly relieved from her duties, her

contractual employment came to an end.

6. The respondent appears to have made representations, which

were seemingly ignored by the authorities. For the next several

decades, respondent continued to make her representations, but did

not approach a judicial/quasi­judicial forum for relief. She

eventually filed a complaint before the State Information

Commission, Uttar Pradesh, after the enactment of the Right to

Information Act, 2005, somewhere in the year 2009, and based on her

complaint, the Commission passed an order dated 05.03.2009

directing the District Basic Education Officer, Rai­Bareily to

communicate the decision to the respondent on her representations.

7. The aforesaid order of the State Information Commission

compelled the District Basic Education Officer to issue a

communication dated 04.06.2009 (P­2) which contains a brief history

as to how the respondent failed to produce the required BTC 3

Certificate and was not permitted to resume her duties. This

order, in no way, amounts to fresh consideration of the

representations made by the respondent or rejection thereof on

merits. It simply communicated the history regarding the events of

1973­1974 when the respondent had worked for a short duration.

8. Claiming that the communication dated 04.06.2009 amounted to

denial of reinstatement to her, the respondent approached the State

Public Services Tribunal (in short, `the Tribunal’) on 03.06.2010

but her Claim Petition was dismissed on 11.06.2010 as being barred

by limitation. The respondent filed a Review Petition but it was

dismissed on 13.08.2010. Thereafter, the respondent approached the

High Court which vide order dated 02.07.2012 directed the Tribunal

to consider the matter afresh on merits. The Tribunal then passed

an order dated 13.12.2013 directing the appellant­authorities to

consider and dispose of the representations filed by the

respondent. In compliance with these directions, the District Basic

Education Officer considered and rejected the representation(s)

moved by the respondent, on 05.04.2014. In substance, this was

actually the first communication sent to the respondent which

explicitly rejected her claim for reinstatement/rejoining, as the

prior communication had not provided any determination on merits.

9. The respondent again approached the High Court challenging the

communication dated 05.04.2014 as well as the order of the Tribunal

dated 13.12.2013. The High Court vide the impugned judgment, as

stated earlier, has modified the Tribunal’s order dated 13.12.2013 4

and declared the respondent to have continued in service with all

consequential benefits including the salary.

10. The question that falls for our consideration is whether the

claim of the respondent was inordinately delayed, obsolete, stale,

and barred by the principle of delay and laches and as a civil

claim, whether it was barred by law of limitation?

11. To trace out the answer to the question formulated above, some

facts need to be repeated. The respondent was apparently relieved

on 04­08­1973 to undergo the required BTC courses. She was

allegedly not permitted to resume duties in the year 1974 after she

had completed B.Ed. degree. She made several representations, one

after the other, but did not deem it appropriate to approach any

judicial or quasi­judicial forum. It was only after the enactment

of Right to Information Act, 2005, whereunder the State Information

Commission came to be constituted, that the respondent moved before

the said Commission to issue a directive to discover the fate of

her representations. The Commission passed an Order on 05.03.2009

asking the appellant ­ authorities to communicate the decision on

the representations of the respondent and it was in this backdrop

that the communication dated 04.06.2009 was issued by the District

Basic Education Officer, which according to the respondent revived

her pending claim.

12. In our considered view, the respondent like any vigilant

citizen, especially given that she does not belong to economically

or socially backward segments of the society, was expected to 5

assert her rights before an appropriate forum within a reasonable

time. Repeated representations neither give rise nor revive the

cause of action, if it had already arisen in the past. Respondent’s

difficulties do not end there, given that her services were brought

to an end when she was denied to resume her duties in the year

1974. She was, thus, required to seek a declaration of her

continuity or have a writ of mandamus issued for her reinstatement.

She did not do either. The Information Commission is not a forum to

adjudicate service disputes. It was not a forum which either could

declare the rights of the respondent or grant any service benefits.

The respondent’s move before the State Information Commission was

thus an exercise in futility. It leaves no room for doubt that the

respondent slept over her rights and allowed the grass to grow

under her feet for a long duration of over 33 years.

13. We are of the considered opinion that the respondent waived

her rights to raise objections in this regard and is deemed to have

abandoned her employment.

14. The next question which falls for consideration is whether a

deemed order of termination of services or abandonment of

employment could be challenged by the respondent before the

Tribunal in the year 2010? There can be no quarrel that such a

challenge was hopelessly time­barred under Section 5 of U.P. Public

Services (Tribunal) Act, 1976.

15. The view taken by the Tribunal on 11.06.2010 was legally

correct and tenable. The High Court nevertheless vide Order dated 6

02.07.2012 passed in the respondent’s Writ Petition set aside the

Tribunal’s order. A perusal of the High Court’s order reveals that

neither the principles of delay and latches nor the law of

limitation were considered, with reference to the facts of the case

in hand. The High Court blissfully ignored the proposition of law

and proceeded on the premise that there was no fault on the part of

the respondent to file the claim petition before the Tribunal as

“the impugned order was passed on 04.06.2009 xx xx xx”. The High

Court completely overlooked the fact that it was not an order

passed on the representations made by the respondent but was a

communication sent to her under compulsion due to the directions

issued by the State Information Commission. The said communication

in no way revived the cause of action in favour of the respondent.

16. In all fairness and faced with the situation, learned Senior

counsel appearing for the respondent relies upon a decision of this

Court in “Basic Shiksha Parishad And Another vs. Sugna Devi (Smt.)

And Others” (2004) 9 SCC 68.

17. In Sugna Devi’s case, the only issue that arose for

consideration was whether or not she was appointed as an Assistant

Teacher and if so, whether her services were terminated illegally.

This Court upheld the finding of fact returned by the High Court

which, upon consideration of the record regarding the payment of

salary, transfer orders, joining reports 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 7

that her services could not be terminated without passing a formal

order. Consequently, this Court upheld the directions issued by the

High Court to grant “compensation equivalent to the salary for the

last three preceding years before the date of her superannuation”.

18. In “Union of India and Ors. vs. Tarsem Singh” (2008) 8 SCC

652, this Court summarized the settled principles in the following

manner:­

“7. To summarise, normally, a belated service related claim will be rejected on the ground of delay and laches (where remedy is sought is sought by filing a writ petition) or limitation (where remedy is sought by an application to the Administrative Tribunal). One of the exceptions to the said rule is cases relating to a continuing wrong. Where a service related claim is based on a continuing wrong, relief can be granted even if there is a long delay in seeking remedy, with reference to the date on which the continuing wrong commenced, if such continuing wrong creates a continuing source of injury. But there is an exception to the exception. If the grievance is in respect of any order or administrative decision which related to or affected several others also, and if the reopening of the issue would affect the settled rights of third parties, then the claim will not be entertained. For example, if the issue relates to payment or refixation of pay or pension, relief may be granted in spite of delay as it does not affect the rights of third parties. But if the claim involved issues relating to seniority or promotion, etc.., affecting others, delay would render the claim stale and doctrine of laches/limitation will be applied. Insofar as the consequential relief of recovery of 8

arrears for a past period is concerned, the principles relating to recurring/successive wrongs will apply. As a consequence, the High Courts will restrict the consequential relief relating to arrears normally to a period of three years prior to the date of filing of the writ petition.”

19. Close to the facts of this case, in “C. Jacob versus Director

of Geology and Mining And Other” (2008) 10 SCC 115, this Court,

having found that the employee suddenly brought up a challenge to

the order of termination of his services after 20 years and claimed

all consequential benefits, held that the relief sought for was

inadmissible. The legal position in this regard was laid out in the

following terms:

“10. Every representation of the Government for relief, may not be applied 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 fresh cause of action or revive a stale or dead claim.

11. When a decision 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 9

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.

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

13. Where an employee unauthorisedly absents himself and suddenly appears after 20 years and demands that he should be taken back and approaches the court, the department naturally will not or may not have any record relating to the employee at that distance of time. In such cases, when the employer fails to produce the records of the enquiry and the order of dismissal/removal, court cannot draw an adverse inference against the employer for not producing records, nor direct reinstatement with back wages for 20 years, ignoring the cessation of service or the lucrative alternative employment of the employee. Misplaced sympathy in such matters will encourage discipline, lead to unjust enrichment of the employee at fault and result in drain of public exchequer. Many a time there is also no application of mind as to the extent of financial burden, as a result of a routine order for back wages.” 10

20. Taking into consideration the cumulative effect of the facts

in this case, coupled with the legal principles cited above, we are

satisfied that the claim of the respondent is stale, highly

belated, time barred, and the same ought not to have been

entertained by the Tribunal or the High Court after a span of over

three decades.

21. We reiterate that undue sympathy and a perceived liberal

approach by a judicial forum can lead to significant adverse

consequences. It not only gives rise to illegitimate expectations

in the mind of fence sitting employees, but also leads to undue

burdens on the public exchequer. Not only this, the indulgence

shown by a Court solely on equitable considerations, dehors the

law, breeds indiscipline in public services and incorrigible

employees start looking for a dividend on the period of their

absence or for dereliction of duty. While there is no evidence to

suggest that the respondent deliberately absented herself from

duty, the facts speak for themselves in that she failed to take any

recourse provided under law for more than three decades. We may say

at the cost of repetition that the respondent had hardly served as

an untrained teacher on temporary basis for a period of 2½ years

and in terms of the impugned judgment of the High Court, she has

been held entitled to get arrears of pay of more than 40 years,

besides all the retiral benefits. We are, therefore, of the view

that the High Court ought not to have drawn adverse inferences

against the appellants or put the entire onus on them to prove that 11

the respondent was unjustifiably denied the resumption of duties.

The approach of the High Court in this regard is completely

erroneous and contrary to the settled principles of law. The

impugned Judgment thus cannot sustain and is liable to be set

aside.

22. Having held so, let us look into the conduct of the appellants

as well. It is true that the State Information Commission had no

authority to intrude into a service dispute and pass an

inappropriate order like dated 05.03.2009. The Tribunal, however,

corrected that error and turned down the respondent’s claims being

barred by limitation. That order was nullified by the High Court

vide impugned Judgment dated 02.07.2012. The appellants sat silent

and accepted that verdict without any murmur. The said Judgment

has, in a way, attained finality, though it is legally

unsustainable. Having accepted that Judgment, the appellants ought

to have been prepared to face the next consequence which fell on

them when the Tribunal directed them to decide the respondent’s

representations afresh. This led to the revival of a ghost claim

after over 30 years. The appellants were expected to immediately

understand the implications and consequences of events as they

unfolded but they remained silent on the judgment dated 02.07.2012.

Under these circumstances, the appellants are also partially

responsible for engendering hope in respondent at a juncture when

she was nearing the age of superannuation.

23. Taking into consideration the cumulative effects of all the 12

facts and circumstances, while we set aside the impugned Judgment

dated 24.01.2017 of the High Court and reject the claim of the

respondent for reinstatement, retiral benefits or arrears of pay

etc., we direct the appellants to pay a lump­sum compensation of a

sum of Rs.5,00,000/­ (Five Lakh) within a period of two months from

the date of receipt of a copy of this Order to the respondent.

24. The appeal stands allowed in the above terms.

.......………………..J. (SURYA KANT)

…………………………………….J. (J.K. MAHESHWARI)

NEW DELHI;

DECEMBER 07, 2022.