Appeal by Medical Officers seeking actual rather than notional benefits under the Assured Career Progression Scheme after completing 14 years of service. The court upheld the Writ Court's grant of only notional benefits, holding the claim stale due to unexplained delay and laches.
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( 2024:HHC:14455 )
IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA
LPA No. 237/2024 Decided on: 13.12.2024
Dr. Sunil Sharma and others …..Appellants Versus State of Himachal Pradesh and another ….Respondents Coram:
The Hon’ble Mr. Justice Tarlok Singh Chauhan, Acting Chief Justice . The Hon’ble Mr. Justice Satyen Vaidya, Judge.
Whether approved for reporting?1 No.
| For the Appellants: | Mr. Tara |
Sin |
gh | Chauhan | , Senior |
|---|---|---|---|---|---|
| Advocate Advocate. |
with | Mr. | Surya |
Chauhan, | |
| For the Respondents: | Mr. Rakesh General. |
Dha | ulta, | Additiona | l Advocate |
Justice Tarlok Singh Chauhan, Acting Chief Justice (oral)
Even though the writ petition filed by the appellants was partly allowed by the learned Writ Court, however since only notional benefits as against the actual benefits had been granted vide the impugned order, therefore, the instant appeal.
2 The grievance of the appellants before the learned Writ Court was that they had not been granted the benefit of Assured Career Progression Scheme (ACPS) upon completion of 14 years of service and this plea was accepted by the learned Writ Court and it was directed that the benefit of ACPS upon completion of 14 years of
1 Whether reporters of the local papers may be allowed to see the judgment? Yes.
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service be conferred upon them from the date they completed such service. However, It is further held that taking into consideration that the writ petition was filed in the year 2020, such benefits will be notional as from the date the appellants completed 14 years of service upto the date on which they were actually conferred with the benefits. 3 The record reveals that the appellants have joined the respondent-department as Medical Officers and their dates of joining are as under:-
| Name | Date of Joining |
|---|---|
| Appellant No.1 | 27.05.2000 |
| Appellant No.2 | 22.02.1990 |
| Appellant No.3 | 22.02.1992 |
| Appellant No.4 | 21.09.2002 |
| Appellant No.5 | 26.09.2002 |
4 According to the appellants, the respondent-State had notified a scheme on 23rd June, 2000 in terms whereof, the incumbents who completed requisite service of 4, 9 and 14 years on a particular post were to be granted financial upgradation, which stood granted in favour of the appellants and for this purpose, they became eligible long before they approached the learned Writ Court and obliviously, in such circumstances, the learned Writ Court was right in conferring the benefits on notional basis, as aforesaid.
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5 However, Mr. Tara Singh Chauhan, learned Senior Advocate duly assisted by Mr. Surya Chauhan, Advocate would vehemently argue that representation made by the appellants on 20.3.2020 was decided by the respondent-Department on 05.08.2020 and immediately thereafter, they approached the learned Writ Court by filing writ petition on 30.9.2020 and, therefore, in such circumstances, the claim of the appellants ought not to have been rejected only on the ground of delay.
6 We have heard the learned counsel for the parties and have also gone through the material available on record.
7 It is more than stated that every representation to the Government may not be replied on merits and this can be rejected on the ground of delay without examining the merits of the claim. Replies to representation relating to matters, which have become stale or barred by limitation cannot furnish a fresh cause of action to revive a stale or dead claim.
8 This issue has been considered in detail by Hon’ble Supreme Court in State of Uttaranchal and another versus Shiv Charan Singh Bhandari, (2013)12 SCC 179 , wherein it was held in paras No.18 to 23 & 25 as under:-
18. In Union of India and others v. M.K. Sarkar, this Court, after referring to C. Jacob has ruled that:
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“15.When a belated representation in regard to a “stale” or “dead” issue/dispute is considered and decided, in compliance with a direction by the court/tribunal to do so, the date of such decision cannot be considered as furnishing a fresh cause of action for reviving the “dead” issue or time-barred dispute. The issue of limitation or delay and laches should be considered with reference to the original cause of action and not with reference to the date on which an order is passed in compliance with a court’s direction. Neither a court’s direction to consider a representation issued without examining the merits, nor a decision given in compliance with such direction, will extend the limitation, or erase the delay and laches.”
19. From the aforesaid authorities it is clear as crystal that even if the court or tribunal directs for consideration of representations relating to a stale claim or dead grievance it does not give rise to a fresh cause of action. The dead cause of action cannot rise like a phoenix. Similarly, a mere submission of representation to the competent authority does not arrest time.
20. In Karnataka Power Corpn. Ltd v. K. Thangappan, the Court took note of the factual position and laid down that when nearly for two decades the respondent-workmen therein had remained silent mere making of representations could not justify a belated approach.
21. In State of Orissa v. Pyarimohan Samantaray it has been opined that making of repeated representations is not a satisfactory explanation of delay. The said principle was reiterated in State of Orissa v. Arun Kumar Patnaik.
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22. In BSNL v. Ghanshyam Dass and others, a three-Judge Bench of this Court reiterated the principle stated in Jagdish Lal v. State of Haryana and proceeded to observe that as the respondents therein preferred to sleep over their rights and approached the tribunal in 1997, they would not get the benefit of the order dated 7.7.1992.
23. In State of T.N. v. Seshachalam, this Court, testing the equality clause on the bedrock of delay and laches pertaining to grant of service benefit, has ruled thus: -
“16.....filing of representations alone would not save the period of limitation. Delay or laches is a relevant factor for a court of law to determine the question as to whether the claim made by an applicant deserves consideration. Delay and/or laches on the part of a government servant may deprive him of the benefit which had been given to others. Article 14 of the Constitution of India would not, in a situation of that nature, be attracted as it is well known that law leans in favour of those who are alert and vigilant.”
25. In NDMC v. Pan Singh, the Court has opined that though there is no period of limitation provided for filing a writ petition under Article 226 of the Constitution of India, yet ordinarily a writ petition should be filed within a reasonable time. In the said case the respondents had filed the writ petition after seventeen years and the court, as stated earlier, took note of the delay and laches as relevant factors and set aside the order passed by the High Court which had exercised the discretionary jurisdiction.
9 Bearing in mind the aforesaid exposition of law, it would
be noticed that the appellants have chosen to sleep like Rip Van Winkle and got up from their slumber at their own leisure, for some
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( 2024:HHC:14455 ) reason which is fathomable to them only, but such fathoming of reasons by oneself is not countenanced in law. Anyone who sleeps over his right is bound to suffer.
10 In view of the aforesaid discussions, we find no reason to interfere with the findings rendered by the learned Writ Court. Accordingly, the instant appeal is dismissed, so also the pending application(s), if any, leaving the parties to bear their own costs.
(Tarlok Singh Chauhan) Acting Chief Justice
(Satyen Vaidya) 13.12.2024 Judge (yogesh/pankaj)
1 issue framed by the court
Whether the appeal should be allowed to convert notional ACPS benefits into actual benefits despite the delay in filing the writ petition.
Colour shows how this judgement treated each authority
State of Uttaranchal and another versus Shiv Charan Singh BhandariRelied on¶8
(2013)12 SCC 179 · Who else cites this
Dr. Sunil Sharma
State of Himachal Pradesh
Tarlok Singh Chauhan
Satyen Vaidya
As recorded by the court registry
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