JUDGMENT
Anjani Kumar, J.
1. This writ petition was heard and dismissed by me on 13th March, 2003 for the reasons to be recorded later on. Now here are the reasons for dismissing the aforesaid writ petition.
2. Heard learned counsel for the petitioner and the learned standing counsel for the respondents. In view of the order proposed to be passed, it is not necessary to invite counter-affidavit.
3. The petitioner, by means of this writ petition under Article 226 of the Constitution of India, has prayed for the following reliefs :
(i) to issue a writ, order or direction in the nature of mandamus commanding and directing respondent No. 3 to decide the representation of the petitioner dated 12.8.1999 (Annexure-12 to the writ petition) forthwith.
(ii) to issue any other suitable writ, order or direction which this Hon’ble Court may deem fit and proper in the circumstances of the case.
(iii) to award cost of the petition to the petitioner.
4. The petitioner in paragraph 1 of the writ petition has stated that this is the first writ petition on behalf of the petitioner for mandamus commanding and directing respondent No. 3 to decide the representation of the petitioner dated 12th August, 1999 forthwith.
5. According to the statement of fact made in the writ petition, the petitioner, who is employee of Medical Health and Family Welfare Department, was posted at Mental Hospital, Agra. He was transferred vide order dated 24th April, 1984 passed by the respondent No. 1 from Mental Hospital, Agra to District Hospital, Pratapgarh on the post of Store Keeper. It is further averred in the writ petition that the petitioner was relieved from his post from Mental Hospital, Agra but during the period of joining, he fell ill and was confined to bed on 16th May, 1984 and an intimation to this effect was sent to the respondent No. 1 by the petitioner vide his letter dated 16th May, 1984. It is after the petitioner has recovered from illness, reported for duty to Chief Medical Officer, Pratapgarh on 28th June, 1984 but the respondent No. 2 did not allow the petitioner to join his duties and informed the petitioner that the transfer of Sri Panna Lal, Store-Keeper has since been stayed by the respondent No. 1 till further orders vide order dated 14th June, 1984, the petitioner should now see to the respondent No. 1 for his alternative posting elsewhere. The petitioner thereafter narrated that he has entered into long drawn correspondence before he filed the Writ Petition No. 15602 of 1984 before this Court for a writ of mandamus commanding the respondent No. 1 to issue joining letter to the petitioner and release his pay from May, 1984 onwards. A Division Bench of this Court was pleased to pass the following order on 19.11.1984 :
“List the petition for admission immediately after the expiry of one month. In the meantime respondent is directed to pay salary to the petitioner including arrears due from May, 1984 within a month or show cause.”
6. It is further stated in the writ petition that the respondent No. 1 neither paid the salary to the petitioner nor showed any cause inspite of sufficient time granted to him by this Court.
7. A counter-affidavit has been filed in the aforesaid Writ Petition No. 15602 of 1984 with the statement that since the petitioner has been relieved from his post at Mental Hospital, Agra and thereafter he did not join his post at Pratapgarh, he was not entitled for any indulgence by this Court, The fact remains that the petitioner having been relieved from Mental Hospital, Agra, did not join at Pratapgarh. The petitioner further stated in this writ petition that so far as transfer order dated 24th April, 1984 is concerned, the same was stayed by the respondent No. 1 on 14th June, 1984 so far as it relates to the transfer of Sri Panna Lal Srivastava, who was transferred vide petitioner and the petitioner was diverted to S. R. N. Hospital, Allahabad vide order dated 24th July, 1984 after the interruption of 40 days whereas by that time, the transfer order of Sri Panna Lal Srivastava has already been stayed by respondent No. 1 vide order dated 14th June, 1984, as stated above. In these circumstances, according to the petitioner, the order for alternative posting of petitioner should have been passed or the earlier order be recalled but since it had not been done so, the petitioner could not join after the recovery from illness. So far as the order directing the petitioner to join at S.R.N. Hospital, Allah’abad vide order dated 24th July, 1984 and 5th November, 1984 is concerned, the petitioner had no knowledge and the statement made by the respondents in the counter-affidavit of the Writ Petition No. 15602 of 1984 filed by the petitioner that the petitioner was not willing to join at S.R.N. Hospital, Allahabad nor he did join at
Pratapgarh is not correct. In these circumstances, the petitioner had no option but to file the present writ petition as stated above.
8. In paragraph 16 of the writ petition, the petitioner has stated that the writ petition itself was filed for a direction to the respondent No. 1 for issuing joining letter to the petitioner and the case of the respondent No. 1 before this Court was that he had issued such a letter which was the duty of the respondent No. 2 to serve such a letter so that the petitioner could have joined his duties at the place directed by the respondent No. 1.
9. Continuing with the narration of fact, the Writ Petition No. 15602 of 1984 was dismissed by this Court and the petitioner has stated this fact in paragraph 16 of present writ petition in the following sentence :
“Hon’ble High Court dismissed the aforesaid Writ Petition No. 15602 of 1984 on 25.3.1985 instead of directing respondents to serve the copy of the joining order.”
10. Aggrieved by the order of this Court dated 25th March, 1985 dismissing the Writ Petition No. 15602 of 1984, the petitioner preferred special leave to appeal petition before the Supreme Court of India. The said special leave petition was dismissed by the Supreme Court vide its order dated 28th November, 1985 which has been annexed by the petitioner as Annexure-1 to the writ petition, which runs as under :
“Special leave petition is dismissed with the direction that the petitioner be served with the order of posting within two weeks from today. He may be permitted to join his duty.”
11. The petitioner has stated in paragraph 20 of the writ petition that after the service of the order of the Supreme Court of India, the respondent No. 1 served the copy of the aforesaid joining order dated 5th November, 1984 on the petitioner and consequently the petitioner submitted his joining report at District Hospital, Pratapgarh on 16th December, 1985.
A copy of the order dated 11th December, 1985 is annexed as Annexure-2 to the writ petition. Thereafter, the grievance of the petitioner seems to be that since the respondent No. 1 was deliberately not permitting the petitioner to join his duties and he has been permitted to join the duties only on the direction, as stated above, by the Supreme Court, the petitioner is entitled for the payment of salary for the period of so called absence due to petitioner’s non-joining at Pratapgarh, the petitioner preferred another writ petition i.e., Civil Misc. Writ Petition No. 13940 of 1986 before this Court in which this Court was pleased to pass the following order on 29th August, 1986 :
“We have heard Sri Jagdish Lal, learned counsel for the petitioner and also learned counsel appearing for the respondent.
Let interim mandamus issue directing the Director Medical Health and Family Planning Swasth Bhawan, U. P., Lucknow the respondent to direct payment to the petitioner the arrears towards the salary and other emoluments the period from May, 1984 to 15th December, 1985 within three weeks from the date of presentation before him the certified copy of this order or show cause.
List the petition after three weeks.”
12. The aforesaid Writ Petition No. 13940 of 1986 was finally decided by this Court vide its order dated 11th February, 1987 which runs as under :
“Since the allegations contained in the writ petition are disputed, we direct the petitioner to file representation in regard to his grievances to the Director of Medical Health and Family Planning Lucknow within three weeks. If the petitioner filed the representation the same shall be decided within six weeks from the date of receipt of the representation. With aforesaid direction, the writ is dismissed.”
13. It is this order passed by this Court, which, according to the petitioner, has given rise to the filing of the present writ petition as the petitioner though filed his representation but the same has not been decided as per direction of this Court within six weeks from the date of receipt of the representation. The petitioner has stated that he has filed a representation pursuant to the direction issued by this Court dated 11th February, 1987 on 20th April, 1987 but he has not stated as to when the representation was received by the respondent No. 1, who were directed by this Court to decide the representation of petitioner and the allegation of the petitioner is that inspite of direction dated 11th February, 1987 in Writ Petition No. 13940 of 1986, the representation dated 20th April, 1987 has not been decided by the respondent No. 1. However, in the next paragraph, the petitioner has stated that the respondent No. 1 has directed after lapse of about 22 months to release personal service record of the petitioner and last payment certificate be sent and this direction was issued to the respondent No. 2 with further direction to pay arrears of salary to the petitioner, if any. Inspite of the order dated 13th January, 1989, no steps have been taken by the respondent No. 2 nor the salary of the petitioner has been paid, which, according to the petitioner, remained unpaid till date, which has resulted into filing the representation after representation for which a writ of mandamus is sought by the petitioner by means of the present writ petition that the representation dated 12th August, 1999 be decided forthwith.
14. Learned counsel for the petitioner has argued that non-complying with the order of this Court dated 11th February, 1987 and the direction issued by the respondent No. 1 to respondent No. 2 makes the petitioner entitled for a writ of mandamus as prayed by the petitioner to get his representation dated 12th August, 1999 decided.
15. I am afraid, this argument cannot be accepted. Even if, it is assumed that this Court has issued a direction by the order dated 11th February, 1987 which has not been complied with by the respondent, the petitioner could have approached this Court on the contempt jurisdiction instead waiting the same for such a long time as has been done by the petitioner, which has again resulted into filing of the writ petition.
16. From the facts and circumstances, it is clear that the dispute is with regard to non-payment of salary and other consequential benefits for a period of 40 days. A perusal of the correspondence annexed by the petitioner in the writ petition clearly demonstrates that the petitioner since has not reported for joining pursuant to the transfer from Mental Hospital, Agra at Pratapgarh, the salary and other consequential benefits could not be paid as till the petitioner reported for duty after he has approached the Apex Court by means of special leave petition referred to above, the order whereof is Annexure-2 to the writ petition.
17. Learned counsel for the petitioner has failed to demonstrate any statutory provision under which respondents are under statutory duty to decide the petitioner’s representation because the petitioner’s right to receive payment itself was under jeopardy for which, according to the narration of the facts, long drawn correspondence entered into. Now, the petitioner by means of this writ petition under Article 226 of the Constitution of India, has sought for a writ of mandamus for the payment of salary and other consequential benefits which ought to have been paid to him, according to the petitioner, in the year 1984 after lapse of about 22 months. This Court, therefore, declines to exercise its extra-ordinary jurisdiction under Article 226 of the Constitution of India as prayed for by the petitioner on the ground that a claim which would have become barred by time cannot be permitted to be revived under the guise of seeking a direction for deciding the representation. Admittedly, the petitioner has made a prayer for a direction to the respondents to decide his representation dated 12th August, 1999 which claims the payment which was due in the year 1984.
18. In this view of the matter, this writ petition seeking a writ of mandamus for deciding the representation of the petitioner in equity jurisdiction under Article 226 of the Constitution of India, in my opinion, is not a fit case in which this Court should interfere.
19. This writ petition is, therefore, devoid of any merits and it is, accordingly dismissed.