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Tuesday, April 22, 2014

Limitation Act - suit for declaration - 3 years from the date of cause of action -mere correspondence does not extend the limitation - His second time appointment was as fresh candidate and on temporary basis - not challenged - seniority list prepared after rejecting his application - no suit filed - only correspondences which were rejected from time to time - trial court, appellant court and high court decreed the suit - Apex court held that In our opinion, the suit was 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 a representation. - by allowing the civil appeal , apex court set aside the lower courts orders = STATE OF TRIPURA & ORS. …APPELLANTS VERSUS ARABINDA CHAKRABORTY & ORS. ....RESPONDENTS = 2014(April.Part ) judis.nic.in/supremecourt/filename=41439

Limitation Act - suit for declaration - 3 years from the date of cause of action -mere correspondence does not extend the limitation -  His second time appointment was as fresh candidate and on temporary basis - not challenged - seniority list prepared after rejecting his application - no suit filed - only correspondences which were rejected from time to time - trial court, appellant court and high court decreed the suit - Apex court held that  In our opinion, the suit was 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 a representation.  - by allowing the civil appeal , apex court set aside the lower courts orders = 
 Though the respondent knew it well that by virtue of  an  order  dated
22.11.1967, he was given a fresh appointment on purely temporary basis as  a
librarian and he had lost his earlier seniority, he  made  a  representation
for his seniority in service  from  the  day  on  which  he  was   initially
appointed  as  a  librarian  in  1964.   The  representation  made  by   the
respondent was rejected on 31.08.1973.  It is also pertinent to note that  a
draft  seniority  list  of  Librarians  was  published  on  11.11.1972   and
thereafter, the said draft list was finalized and the final  seniority  list
was published on 24.09.1975.  In the said  seniority  list  it  was  clearly
shown that service of  the  respondent  had  commenced  from  22.11.1967  in
pursuance of his fresh appointment.


      Inspite of the aforestated fact,  the  respondent  continued  to  make
representations and all his representations were rejected.   Ultimately  the
respondent filed Title Suit No. 175 of 1979 on 19.09.1979 in  the  Court  of
Munsif, Sadar, West Tripura, praying for the aforestated  reliefs.   
In  the
said suit, the respondent had referred to all the  representations  made  by
him and had also stated that reply to his last representation was  given  on
15.1.1979  and  therefore,  the  suit  was  filed  within  the   period   of
limitation.=

In the written statement, the employer-appellant had taken a  specific
stand with regard to limitation to the effect that the respondent had  filed
the suit after more than 13 years because  he  had  joined  his  service  in
September, 1967 and he wanted, by virtue of the prayer in the suit, that  he
should be deemed to have been appointed with effect from 12.08.1964 =
The trial court had expressed
   its view to the effect that the period of limitation would start from the
   date on which last representation made by  the  respondent  was  decided.
   Therefore, the suit was treated to have been filed within the  period  of
   limitation and the said view was confirmed by both the appellate  courts.

 It is a settled legal position that  the   period  of  limitation  would
   commence from the date on which the cause of  action  takes  place.   Had
   there been any statute giving right of appeal to the  respondent  and  if
   the  respondent  had  filed  such  a  statutory  appeal,  the  period  of
   limitation would have commenced from the date when the  statutory  appeal
   was decided.  In the instant case, there was no provision with regard  to
   any statutory appeal.  The respondent kept on making representations  one
   after another and all the representations had been rejected.   Submission
   of the respondent to the effect  that  the  period  of  limitation  would
   commence from the date on which  his  last  representation  was  rejected
   cannot be accepted.  If accepted, it would be nothing but travesty of the
   law of limitation.  One can go on making representations for 25 years and
   in that event one cannot say that the period of limitation would commence
   when the last representation was decided.  On this legal issue,  we  feel
   that the courts below committed an  error  by  considering  the  date  of
   rejection of the last representation as the date on which  the  cause  of
   action had arisen.  This could not have been done.
14. We, therefore,  quash  and  set  aside  the  order  of  the  High  Court
   confirming the orders passed by the trial court  as  well  as  the  first
   appellate court.  As a result thereof, the suit  stands  dismissed.   The
   appeal is allowed with no orders as to costs.
2014(April.Part ) judis.nic.in/supremecourt/filename=41439
ANIL R. DAVE, VIKRAMAJIT SEN

                                                 REPORTABLE


                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL NO. 1322 OF 2007




STATE OF TRIPURA & ORS.                       …APPELLANTS



                                VERSUS


ARABINDA CHAKRABORTY & ORS.      ....RESPONDENTS

                                      1






                              2 J U D G M E N T




1 ANIL R. DAVE, J.



1. Being aggrieved by the judgment delivered in RSA No. 20 of  1998  by  the
   High Court of Gauhati at Agartala on  17th  March,  2006,  the  State  of
   Tripura and others-employers of respondent no.1  have filed this appeal.
2. The facts giving rise to the present appeal, in a nutshell are as under:
      Respondent No. 1 had been appointed as a librarian by the  Directorate
of Education, Government of Tripura by an order dated 04.09.1964 and he  had
joined his duties at Birchandra Public Library, Agartala on 12.09.1964.


      While in service, he was sent to Banaras Hindu University, Varanasi to
undergo further education and to get qualification of  Bachelor  of  Library
Science during the academic year 1965-66.  After completion of his  studies,
he had resumed  his  duties  on  27.07.1966.   Thereafter,  the  respondent-
employee had remained absent without any intimation or sanctioned leave  for
about one year i.e. from 01.08.1966 to 20.09.  1967.    During  his  absence
from service, by letter dated 13.08.1966, the  respondent  had  been  called
upon to report at the place of his duty within  seven  days,  failing  which
his service was  to  be  terminated.   Inspite  of  the  said  notice  dated
13.08.1966, the respondent did not report at  the  place  of  his  work  and
therefore, a Memorandum dated 14.11.1966 had been issued to  the  respondent
calling upon him to resume  his  duties,  but  as  the  respondent  had  not
resumed his  duties,  his  services  had  been  terminated.  It  was  learnt
subsequently that during the period  when  he  had  remained  unauthorisedly
absent, he had undergone further studies and had attained degree of  Masters
in Library Science and  after attaining the said qualification, he had  once
again approached the concerned authorities for his re-appointment.   Looking
at the fact that the respondent had become better qualified,  he  was  given
a fresh appointment by an order dated 22.11.1967 on purely  temporary  basis
as a librarian and  again  he  was  posted  at  Birchandra  Public  Library,
Agartala, Tripura.


      Though the respondent knew it well that by virtue of  an  order  dated
22.11.1967, he was given a fresh appointment on purely temporary basis as  a
librarian and he had lost his earlier seniority, he  made  a  representation
for his seniority in service  from  the  day  on  which  he  was   initially
appointed  as  a  librarian  in  1964.   The  representation  made  by   the
respondent was rejected on 31.08.1973.  It is also pertinent to note that  a
draft  seniority  list  of  Librarians  was  published  on  11.11.1972   and
thereafter, the said draft list was finalized and the final  seniority  list
was published on 24.09.1975.  In the said  seniority  list  it  was  clearly
shown that service of  the  respondent  had  commenced  from  22.11.1967  in
pursuance of his fresh appointment.


      Inspite of the aforestated fact,  the  respondent  continued  to  make
representations and all his representations were rejected.   Ultimately  the
respondent filed Title Suit No. 175 of 1979 on 19.09.1979 in  the  Court  of
Munsif, Sadar, West Tripura, praying for the aforestated  reliefs.   In  the
said suit, the respondent had referred to all the  representations  made  by
him and had also stated that reply to his last representation was  given  on
15.1.1979  and  therefore,  the  suit  was  filed  within  the   period   of
limitation.
      In the written statement, the employer-appellant had taken a  specific
stand with regard to limitation to the effect that the respondent had  filed
the suit after more than 13 years because  he  had  joined  his  service  in
September, 1967 and he wanted, by virtue of the prayer in the suit, that  he
should be deemed to have been appointed with effect from 12.08.1964


      The suit was decreed in favour of the respondent  and  therefore,  the
appellant employer filed Title Appeal No. 28 of 1985  against  the  judgment
dated 18.04.1985 delivered by the trial court.  The  judgment  delivered  by
the trial court was upheld by the  appellate  court  and  therefore,  second
appeal was filed before the High Court which was also  dismissed  by  virtue
of the impugned judgment.
3. The learned counsel appearing for the appellant- employer  had  submitted
   that the courts below had committed a mistake by believing that the  suit
   was filed within the period of limitation.  The trial court had expressed
   its view to the effect that the period of limitation would start from the
   date on which last representation made by  the  respondent  was  decided.
   Therefore, the suit was treated to have been filed within the  period  of
   limitation and the said view was confirmed by both the appellate  courts.


4. The learned counsel for the  appellant  had  further  submitted  that  on
   facts also, the courts below committed a mistake because  the  respondent
   had been given a fresh appointment by an order dated 22.11.1967.  Initial
   appointment made in 1964 had already been terminated  as  the  respondent
   had remained absent without sanctioned leave.  He had  further  submitted
   that upon perusal of the appointment order dated 22.11.1967, it is  clear
   that the respondent had been given a fresh appointment as a librarian  on
   temporary basis because his earlier appointment had already  come  to  an
   end.
5. It had been further submitted that the respondent  wanted  continuity  of
   service with effect from 12.08.1964 though his service had  already  been
   terminated  as  he  had   remained   absent   unauthorisedly.    In   the
   circumstances, the respondent had no right to have continuity of service.
    He had further submitted that the respondent ought to  have  filed  suit
   within 3 years from the date of order giving him fresh appointment if  he
   was aggrieved by the said order.
6. Alternatively, it had been submitted that the  draft  seniority  list  of
   Librarians had been published on 11.11.1972 which had been  finalized  on
   24.09.1975 and the said fact was known to the respondent.  The respondent
   was made aware of the fact that he was appointed with effect from  22.11.
   1967 and in  that  event  the  period  of  limitation  would  start  from
   11.11.1972 when the draft seniority list was published  or  at  the  most
   with effect from 24.09.1975 when the draft  seniority  list  was  finally
   published.  Instead of approaching the  court,  the  respondent  kept  on
   making  several   representations   which   had   been   rejected.    His
   representation had been rejected on 19.07.1976. Even after  rejection  of
   his representation on 19.07.1976 he had made  another  representation  on
   16.02.1978 to the Director of Education,  Tripura  which  had  also  been
   rejected on 03.06.1978.  Thereafter, he made  another  representation  to
   the Director of Education, which had also been rejected on 15.01.1979.
7. Looking at the above  facts,   it  had  been  submitted  by  the  learned
   counsel appearing for the appellants that the title suit  ought  to  have
   been dismissed on the ground of limitation, however, not  only  the  suit
   had been decreed but the courts below had  also  confirmed  the  judgment
   delivered by the trial court.  He had further submitted that  the  appeal
   deserved to be allowed with costs.
8. On the other hand, the learned  counsel  appearing  for  the  respondent-
   employee had tried to support the judgments delivered by the  High  Court
   and the trial court.  He had submitted  that  the  period  of  limitation
   would start with effect from the date on  which  his  representation  was
   finally rejected by his employer and  as  the  suit  had  been  filed  on
   19.09.1979, the suit was filed within the period of limitation.
9.    As the respondent had attained degree of Masters  in  Library  Science
and he was taken back in service, his services were rightly  ordered  to  be
continued by the trial court and the High Court had  rightly  confirmed  the
judgment  and  decree  passed  by  the  first  appellate  court.   He   had,
therefore, submitted that the appeal filed in  this  Court  deserved  to  be
dismissed.
9. We had heard the learned counsel appearing for the parties and  had  also
   carefully gone through the relevant material  pertaining  to  appointment
   orders and the representations made by the respondent.
10. In our opinion, the suit was 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 a representation.  A person may go on making
   representations for years and in such an event the period  of  limitation
   would not commence from the date on  which  the  last  representation  is
   decided. In the instant case, it is a fact that the respondent was  given
   a fresh appointment order on 22.11.1967, which is on  record.   The  said
   appointment  order  gave  a  fresh  appointment  to  the  respondent  and
   therefore, there  could  not  have  been  any  question  with  regard  to
   continuity of service with  effect  from  the  first  employment  of  the
   respondent.  It is pertinent to note that service of the  respondent  had
   been terminated because of his unauthorised absence.  It was  unfortunate
   that the suit had been filed after 13 years and therefore,  the  relevant
   record pertaining to the order of termination of the respondent had  been
   destroyed or could not be traced but in such an event, no harm should  be
   caused to the appellant-employer because the appellant-employer  was  not
   supposed to keep the record pertaining to the order  terminating  service
   of the respondent forever.  Had the respondent filed the suit within  the
   period of limitation i.e. within three years from the date  when  he  was
   given a fresh appointment on 22.11.1967, possibly  the  Government  could
   have placed on record an order whereby service of the respondent had been
   terminated.   The  respondent,  after  having  additional   qualification
   approached the concerned authority in the month of November, 1967 with  a
   request for fresh appointment and therefore, by virtue of an order  dated
   22.11. 1967 he was given a fresh appointment as a  librarian.    In  fact
   there was no question of losing his seniority  because  he  was  given  a
   fresh appointment by virtue of the order dated 22.11. 1967.
11. The respondent did not make any representation or grievance when he  was
   given a fresh appointment.  He knew it well that  his  service  had  been
   terminated and he was obliged by the appellant authorities by giving  him
   a fresh appointment.  Had he been aggrieved by a fresh appointment  after
   termination of his service, he should have taken  legal  action  at  that
   time but he accepted the fresh appointment and raised the grievance about
   his seniority and other things after more than a decade.
12. Even after the draft seniority list was published on  11.11.1972,  which
   had been finalized in September, 1975, he  did  not  file  any  suit  but
   continued to make representations which had been rejected throughout.
13. It is a settled legal position that  the   period  of  limitation  would
   commence from the date on which the cause of  action  takes  place.   Had
   there been any statute giving right of appeal to the  respondent  and  if
   the  respondent  had  filed  such  a  statutory  appeal,  the  period  of
   limitation would have commenced from the date when the  statutory  appeal
   was decided.  In the instant case, there was no provision with regard  to
   any statutory appeal.  The respondent kept on making representations  one
   after another and all the representations had been rejected.   Submission
   of the respondent to the effect  that  the  period  of  limitation  would
   commence from the date on which  his  last  representation  was  rejected
   cannot be accepted.  If accepted, it would be nothing but travesty of the
   law of limitation.  One can go on making representations for 25 years and
   in that event one cannot say that the period of limitation would commence
   when the last representation was decided.  On this legal issue,  we  feel
   that the courts below committed an  error  by  considering  the  date  of
   rejection of the last representation as the date on which  the  cause  of
   action had arisen.  This could not have been done.
14. We, therefore,  quash  and  set  aside  the  order  of  the  High  Court
   confirming the orders passed by the trial court  as  well  as  the  first
   appellate court.  As a result thereof, the suit  stands  dismissed.   The
   appeal is allowed with no orders as to costs.

                                       ………………………….J.
                                       (ANIL R. DAVE)




                                       ………………………….J.
                                       (VIKRAMAJIT SEN)
New Delhi;
April  21, 2014.


                           -----------------------
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