He accepted the promotion in 2001, worked in it and retired. Sixteen years later he asked for an earlier date, and the Kerala High Court says that is too late
Justices Anil K. Narendran and Muralee Krishna S. hold that a direction merely to consider a representation cannot revive a stale claim, and that promotion claims affecting others attract laches.
A retired lecturer who asked the University of Kerala to backdate his placement as Lecturer (Selection Grade) by three years had succeeded before a single judge. A Division Bench of Justices Anil K. Narendran and Muralee Krishna S. has set that judgment aside and dismissed the writ petition, holding the claim stale. He had retired in May 2001 and made the claim in September 2017 — more than sixteen years later — and the Bench held that an earlier direction to the University merely to consider his representation could not breathe life into a claim that had long since gone cold.
A career, and three dates that mattered
The respondent entered service as a Lecturer in the Department of Economics at an aided college affiliated to the University in October 1982, his appointment having been approved by the University with effect from that date. He was promoted as Senior Grade Lecturer in October 1990.
The claim turns on a Government Order of March 1990, under which a lecturer who acquires an M.Phil degree while in service is entitled to a relaxation of one year, and a Ph.D degree to a relaxation of three years, for the purpose of promotion to the post of Lecturer (Selection Grade). He obtained his M.Phil in Economics in an examination held in January 1993, with the certificate issued in October 1994, and his Ph.D from the same University with the certificate awarded in June 1998.
In January 1999 the Corporate Manager of his college issued proceedings granting him placement as Lecturer (Selection Grade) with effect from October 1995. The University did not accept those proceedings. It sent the proposal back with the remark that he was eligible for the promotion only with effect from October 1997, on account of the M.Phil, giving the one year's relaxation provided by the Government Order. The Corporate Manager then issued revised proceedings in June 2000, and in January 2001 the University approved his promotion as Lecturer (Selection Grade) with effect from 25 October 1997.
He retired on 31 May 2001, as a Principal.
In September 2017 he submitted a representation to the University claiming the promotion with effect from October 1994 — that is, claiming the three-year relaxation for the Ph.D rather than the one year allowed for the M.Phil. He then moved the High Court, which in December 2017 directed the University to consider and pass orders on that representation within two months. In compliance, the Registrar rejected it by an order of 26 March 2018, the University having first called for remarks, which came in a communication of February 2018 from a Joint Director rejecting the claim.
It was that rejection which he challenged, and which the single judge set aside by a judgment of March 2021. The University's writ appeal followed.
The merits he wanted decided
It is worth setting out the substantive dispute, because it explains why he pressed the point so long after retiring — and why the Bench declined to reach it.
The relevant clause of the 1990 Government Order provides for promotion to the category of Reader in the Selection Grade for lecturers completing a total of sixteen years of service, with relaxations of one year for an M.Phil and three years for a Ph.D. The University's position was that the three-year relaxation can run only from the date the Ph.D was actually acquired, which in his case was in 1998.
His answer, set out in a reply statement filed in the writ petition, was that this misreads the clause. On his construction, what the clause contemplates is promotion to Reader in the Selection Grade for those who complete sixteen years of service; he completed sixteen years on 25 October 1998, which is not in dispute; and the relaxation of three years therefore has to be considered with reference to the date on which eligibility arose, not the date of the degree. The requirement the University was reading in — that the teacher must hold the Ph.D before completing sixteen years in order to claim the relaxation — was, he said, a misreading of the provision.
That is a genuine question of construction, and the single judge had resolved it in his favour. The Division Bench did not answer it. Its reasoning operates one step earlier, on whether a claim of that kind could be entertained at all when it was first raised in 2017.
The principle the Bench applied
The Division Bench proceeded on a distinction that is well settled but easy to lose sight of in service litigation: not all delayed claims are treated alike, and what matters is whom the relief would affect.
The passage the Bench set out states it in terms. Where a belated claim relates to or affects several others, and reopening the issue would affect the settled rights of third parties, the claim will not be entertained. If the issue relates to payment or refixation of pay or pension, relief may be granted in spite of delay, because it does not affect the rights of third parties. But if the claim involves issues relating to seniority or promotion, affecting others, delay renders the claim stale and the doctrine of laches or limitation will be applied. So far as the consequential relief of recovery of arrears for a past period is concerned, the principles relating to recurring or successive wrongs apply, with the result that High Courts normally restrict arrears to a period of three years prior to the date of filing the writ petition.
This claim was for promotion from an earlier date, not for refixation of pay or pension — so it fell on the side of the line where laches operates.
Why it was not a continuing cause of action
The respondent's route around delay was to characterise the grievance as a continuing one. The Bench addressed that directly.
It is trite, the judgment records, that to treat a claim as one having a continuous cause of action, it has to be established that the cause of action was subsisting throughout the period until the representation was filed. On the facts that could not be shown. He made his claim for promotion to the post of Lecturer (Selection Grade) only in September 2017, having retired in May 2001.
The Bench then dealt with the significance of the 2017 judgment, and this is the part of the reasoning with the widest application. That judgment had not considered his claim on merits at all. It directed the authority concerned to consider his representation, without expressing anything on the merits of what he was claiming. After that consideration, the University rejected the claim. Merely because the claim was considered, the Bench held, life cannot be given to a stale claim made more than sixteen years after retirement.
In other words, a litigant cannot convert a long-dead grievance into a live one by obtaining a direction to have a representation looked at. The direction gives the representation a decision; it does not restart the clock.
Two further features weighed against him. The University's decision on the representation — taken by the Registrar — was not itself challenged in the writ petition. And his promotion to the post had been finalised with effect from 25 October 1997 by the earlier orders; without any objection he worked in the promoted post and retired from it.
The last point does real work in the reasoning. The sequence in 1999 and 2000 was not a case of an entitlement being quietly withheld: the college's proposal placing him from October 1995 was returned by the University with its reasons, the Corporate Manager issued revised proceedings to match, and the University then approved the revised date. He had the University's view in writing, in terms, and acted on it for the remaining months of his service without protest. A grievance that could have been taken to court in 2001 was taken there in 2017.
The Bench concluded that the single judge had failed to consider these aspects in their proper perspective, and that the judgment under appeal was liable to be set aside.
Order
The writ appeal was allowed. The judgment of the single judge dated 31 March 2021 was set aside, and the writ petition stands dismissed. No order as to the construction of the 1990 Government Order was made, so the question whether the three-year relaxation runs from the date of the Ph.D or from the date sixteen years of service are completed remains open for a case brought in time.
The effect is that the University's approval of the promotion with effect from 25 October 1997, and its rejection of the representation seeking the earlier date of October 1994, both stand.
Two things follow for cases of this shape. A direction to consider a representation is not an adjudication, and should not be treated as having revived anything: where such a direction is obtained and the authority then rejects the claim, the rejection can be challenged, but the challenge still has to answer the delay that preceded it. And the category into which a belated service claim falls decides its fate — a claim to have pay or pension refixed is treated differently from a claim to an earlier date of promotion, because the first disturbs nobody else and the second may disturb everyone who was placed above or below.