Full Judgment Text
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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. The facts may be briefly recounted.
Digitally signed by
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
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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
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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
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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
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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
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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
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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
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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
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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.”
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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
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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
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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.