HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT JAMMU Reserved on 17.02.2025 Pronounced on 02.05.2025 WP(C) No. 2961/2019 Bans Raj …..Appellant(s)/Petitioner(s) Through: Mr. Sunil Sethi, Sr. Adv with Mr. Paras Gupta, Adv. vs Union of India and others .…. Respondent(s) Through: Mr. Eishan Dadhichi, CGSC Coram: HON’BLE MR. JUSTICE RAJNESH OSWAL, JUDGE JUDGMENT 1. The petitioner was enrolled as Constable in Border Security Force (BSF) on 07.07.1969. On 08.10.1974, the medical examination of the petitioner was conducted and it was found that the petitioner was suffering from „Myopic Astigmatism‟ in both the eyes and the petitioner was immediately declared unfit for further retention in service in BSF. Consequent thereupon, he was discharged on medical ground on 21.11.1974. He was paid the admissible gratuity of Rs. 1580.50/-, Rs. 2,000 out of BSF Benevolent Fund and Rs. 50/- per month with effect from 01.12.1974 for ten years. Thereafter, the petitioner filed a writ petition in the year 1982 before this Court for grant of disability pension. The said writ petition was dismissed by the learned writ Court vide order dated 06.03.1992 in absence of the petitioner but on merits. The petitioner thereafter, preferred intra court appeal against order dated 06.03.1992 2 WP(C) No. 2961/2019 along with an application for condonation of delay but the petitioner could not succeed as the Hon‟ble Division Bench dismissed the said appeal vide order dated 20.02.2013 on the account of delay and laches on the part of the petitioner. 2. Thereafter, the petitioner moved a representation before the Hon‟ble Prime Minister of India as well as the Hon‟ble Home Minister of India against the denial of disability pension. The said representation was forwarded vide communication dated 27.03.2019 by the office of Prime Minister of India to the Secretary, Ministry of Home Affairs and ultimately the said representation landed before the Commandant- respondent No. 2 herein, who vide communication dated 08.05.2019, disposed of the representation on the ground that he does not have any competency to grant pension on humanitarian grounds. 3. The petitioner has now filed this petition for assailing the order/communication dated 08.05.2019 issued by the respondent No. 2 and for directing the respondents to grant him the permanent total disability pension/pensionary benefits. It is urged by the petitioner that the petitioner had developed the disability during service and was aggravated to the extent of total blindness of the petitioner. The petitioner has further pleaded that in the similar circumstances, the pension has been granted in relaxation of rules and on sympathetic considerations. 4. The respondents have objected the claim of the petitioner on the ground that the earlier writ petition preferred by the petitioner was dismissed on merits by this Court on 06.03.1992 and after humongous delay of almost 3 WP(C) No. 2961/2019 20 years, the order of the writ Court dated 06.03.1992 was assailed before the Division Bench but without success, as the intra court appeal was dismissed by the Division Bench vide order dated 20.02.2013. The respondents have admitted that the representation was made by the petitioner for grant of disability pension on humanitarian grounds. However, the respondent No. 2 vide order dated 08.05.2019 rejected the representation, as the petitioner was not found entitled to disability pension under the provisions of CCS (EOP) Rules. Lastly, it is contended that the petitioner has again approached this Court for same relief, when the similar relief was declined to the petitioner in the earlier round of litigation. 5. Mr. Sunil Sethi, learned Senior Counsel appearing for the petitioner has submitted that the writ petition was decided by the learned writ Court on 06.03.1992 in absentia, without affording any opportunity of hearing to the petitioner and otherwise also, once the representation of the petitioner was rejected vide order dated 08.05.2019, fresh cause of action has accrued to the petitioner. 6. Per contra, Mr. Eishan Dadhichi, learned counsel for the respondent has submitted that once the claim of the petitioner was rejected on merits, he cannot re-open the controversy already settled by the learned writ Court as well as the Division Bench, by making fresh representation, as such, this petition is required to be dismissed. 7. Heard and perused the record. 4 WP(C) No. 2961/2019 8. The respondents have objected the claim of the petitioner that once the petitioner has failed in earlier round of litigation in respect of his claim for grant of disability pension, the petitioner cannot claim the same relief by filing the representation, that too after 6 years of the order passed by the Hon‟ble Division Bench upholding the order passed by the learned writ Court and rejecting the claim of the petitioner. 9. The order passed by the learned writ Court dismissing the writ petition filed by the petitioner vide order dated 06.03.1992 is extracted as under: “In this petition, the petitioner has claimed disability pension, because, he was retired from the service of the Border Security Force, owing to defect in his vision. Vide order dated 14.01.1980, the respondents have certified that the petitioner was retired from service of Border Security Force on account of „Myopic Astgmatism‟. It has further been stated this was not directly or indirectly attributed to the service conditions and therefore, the petitioner was not entitled to any retirement benefits, including the disability pension. On a perusal of the documents on record and the counter affidavit of the respondents, I find that the order refusing the grant of disability pension to the petitioner does not suffer from any infirmity or illegality. The petition is accordingly having no merit and is dismissed.” 10. The above-mentioned order was passed by the learned writ court without affording opportunity of hearing to the petitioner but on merits. The petitioner after almost 20 years preferred intra court appeal against the order 06.03.1992 but could not succeed and the appeal was dismissed vide order dated 20.02.2013. After six years, the petitioner submitted a representation to the office of Hon‟ble the Prime Minister, that was forwarded to respondent No. 2 through the Secretary of Ministry of Home Affairs, New Delhi. The representation of the petitioner was examined and was accordingly replied by the respondent No. 2, vide communication 5 WP(C) No. 2961/2019 dated 08.05.2019, impugned herein. In the said communication, the respondent No. 2 reiterated the same cause, which was upheld by the learned writ court vide order dated 06.03.1992, besides stating that granting pension was beyond his competence. This court cannot examine the validity of the order dated 06.03.1992 passed by the Coordinate Bench in earlier writ petition as it would amount to revising the order. 11. The representation was filed by the petitioner for consideration of his case for grant of disability pension on humanitarian grounds, which was rejected as mentioned above. The petitioner has not been able to demonstrate before this Court that even after rejection of the case of the petitioner for grant of disability of pension by the respondents, which was upheld by the learned writ Court and the appeal preferred against the said order was dismissed being time barred, the petitioner can reopen the controversy again on humanitarian grounds. Merely filing of the representation and rejection of the same would not give rise to any fresh cause to petitioner to file the writ petition, particularly when no ground other than the humanitarian one, has been urged by the petitioner. 12. This Court is of the considered view that once the claim of the petitioner for grant of disability pension has been rejected by the official respondents and upheld by the learned writ court, the petitioner cannot seek reopening of the same by filing a writ petition simply on the ground that he had filed a representation before the Hon‟ble the Prime Minister of India, which was forwarded to respondent No. 2. In this context, it would be appropriate to take note of the judgment of the Hon‟ble Supreme Court 6 WP(C) No. 2961/2019 of India in “C. Jacob v. Director of Geology and Mining, (2008) 10 SCC 115”, wherein the Hon‟ble Supreme Court of India has held as under: "The modus of “representation” 8. Let us take the hypothetical case of an employee who is terminated from service in 1980. He does not challenge the termination. But nearly two decades later, say in the year 2000, he decides to challenge the termination. He is aware that any such challenge would be rejected at the threshold on the ground of delay (if the application is made before tribunal) or on the ground of delay and laches (if a writ petition is filed before a High Court). Therefore, instead of challenging the termination, he gives a representation requesting that he may be taken back to service. Normally, there will be considerable delay in replying to such representations relating to old matters. Taking advantage of this position, the ex-employee files an application/writ petition before the tribunal/High Court seeking a direction to the employer to consider and dispose of his representation. The tribunals/High Courts routinely allow or dispose of such applications/petitions (many a time even without notice to the other side), without examining the matter on merits, with a direction to consider and dispose of the representation. 9. The courts/tribunals proceed on the assumption, that every citizen deserves a reply to his representation. Secondly, they assume that a mere direction to consider and dispose of the representation does not involve any “decision” on rights and obligations of parties. Little do they realise the consequences of such a direction to “consider”. If the representation is considered and accepted, the ex-employee gets a relief, which he would not have got on account of the long delay, all by reason of the direction to “consider”. If the representation is considered and rejected, the ex-employee files an application/writ petition, not with reference to the original cause of action of 1982, but by treating the rejection of the representation given in 2000, as the cause of action. A prayer is made for quashing the rejection of representation and for grant of the relief claimed in the representation. The tribunals/High Courts routinely entertain such applications/petitions ignoring the huge delay preceding the representation, and proceed to examine the claim on merits and grant relief. In this manner, the bar of limitation or the laches gets obliterated or ignored. 10. Every representation to the Government for relief, may not be replied 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 7 WP(C) No. 2961/2019 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 direction 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 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. XX XXXXXXXXXX 14. We are constrained to refer to the several facets of the issue only to emphasise the need for circumspection and care in issuing directions for “consideration”. If the representation on the face of it is stale, or does not contain particulars to show that it is regarding a live claim, courts should desist from directing “consideration” of such claims.” (emphasis added) 13. Otherwise also, the petitioner has not been able to produce any material in the form of any rule or case law, providing that the petitioner can be granted disability pension on humanitarian grounds. 14. In view of the above, the present writ petition is dismissed being bereft of any merit. (RAJNESH OSWAL) JUDGE Jammu: 02 .05.2025 Rakesh PS Whether the order is speaking: Yes Whether the order is reportable: Yes KARAM CHAND 2025.05.03 09:45 I attest to the accuracy and integrity of this document