Central Administrative Tribunal - Delhi
Sh. Vishnu Kumar Gupta vs Union Of India on 18 July, 2012
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH: NEW DELHI
OA No.2278/2012
NEW DELHI THIS THE 18th DAY OF JULY, 2012
HONBLE MR. G. GEORGE PARACKEN, MEMBER (J)
HONBLE MR. SUDHIR KUMAR, MEMBER (A)
Sh. Vishnu Kumar Gupta
C/o Rati Ram
M/s. Dwarka Prasad Om Prakash,
New Mandi, Shastri Bazar,
Hindaun City, Karauli,
(Rajasthan) 322230.
Applicant
(By advocate: Sh. Bijender Mehla)
VERSUS
1. Union of India
Through Secretary (Revenue)
Ministry of Finance, North Block,
New Delhi.
2. Department of Personnel and Training,
Ministry of Personnel,
Public Grievance and Pensions,
Govt. of India, North Block,
New Delhi.
3. Central Board of Excise and Customs (CBEC),
Department of Revenue,
Ministry of Finance,
Govt. of India, 9th Floor,
Hudco Vishala Building,
Bhikaji Cama Place,
New Delhi.
Respondents
ORDER(ORAL)
G.George Paracken, Member(J) This OA has been filed under Section 19 of Administrative Tribunals Act, 1985. The applicant has challenged the alleged arbitrary and discriminatory action of the respondents in not allocating him the zone of his choice on the basis of his merit in the select list and in terms of OM No. 36012/72/2009-Estt. Dated 04.06.2010.
2. The brief facts of the case are that the applicant was declared successful in the Combined Graduate Level Examination, 2006 conducted by the Staff Selection Commission. He belonged to the general category and his rank in the merit list was 105. Thereafter, he had submitted his option for allotment of zones. He gave Mumbai Zone as his first preference. According to him, if the respondents have followed the relevant rules in his case and considered him on the principle of Merit-Cum-Preference, he would have got the zone of his first preference. However, the respondents allotted him the Chennai Zone and issued the appointment letter in April, 2009 and he joined there in the same month. According to the applicant, he came to know after joining the service that the respondents have ignored his merit position while allocating the zones inasmuch as that they failed to consider that as per the rules, the principle of merit cum preference was required to be followed for the purpose of allocation of zones.
3. He has also submitted that aggrieved by the aforesaid wrong allocation of zone, one of the similarly placed persons, namely, Shri Surender Singh approached this Tribunal vide OA No. 3494/2009 and this Tribunal disposed of the same vide order dated 03.12.2009 with the direction to the respondents to consider his representation and decide his request according to the rules.
The applicant has, therefore, sought a direction to the respondents to allocate the zone of his choice to him as per his merit and following the principle of merit-cum-preference and to declare their act of allocating zones against the rules as illegal and unjustified. He has also sought a direction to the respondents to allocate him the Mumbai Customs Zone on the basis of his merit.
4. We have heard the learned counsel for the applicant. It is seen that while the applicant has made a declaration in this OA that the same is within the period of limitation as prescribed in the Administrative Tribunals Act, 1985, the applicant has challenged his allocation of zone made in April, 2009. The respondents had allocated him Chennai Zone and the applicant had without any demur accepted the same and since then he has been working there. It is only on 11.01.2012 that he made a representation to the respondents that he was entitled for the allocation of the Mumbai Zone as per his merit position and to consider his request to allocate the said zone to him as soon as possible. Thereafter, the applicant has filed this Original Application. However, it is seen that as per the provisions contained in the Administrative Tribunals Act, 1985, applicant has filed the present OA very belatedly. According to Section 21 of the Administrative Tribunals Act, 1985, no application filed beyond prescribed period of limitation can be accepted unless the applicant satisfies this Tribunal that he had sufficient cause for not making the application within such period. The said Section reads as under :-
21.Limitation.- (1) A Tribunal shall not admit an application, -
in a case where a final order such as is mentioned in clause (a) of sub-section (2) of section 20 has been made in connection with the grievance unless the application is made, within one year from the date on which such final order has been made;
in a case where an appeal or representation such as is mentioned in clause (b) of sub-section (2) of section 20 has been made and a period of six months had expired thereafter without such final order having been made, within one year from the date of expiry of the said period of six months.
Notwithstanding anything contained in sub-section (1), where -
the grievance in respect of which an application is made had arisen by reason of any order made at any time during the period of three years immediately preceding the date on which the jurisdiction, powers and authority of the Tribunal becomes exercisable under this Act in respect of the matter to which such order relates; and no proceedings for the redressal of such grievance had been commenced before the said date before any High Court, the application shall be entertained by the Tribunal if it is made within the period referred to in clause (a), or, as the case may be, clause (b), of sub-section (1) or within a period of six months from the said date, whichever period expires later.
(3) Notwithstanding anything contained in sub-section (1) or sub-section (2), an application may be admitted after the period of one year specified in clause (a) or clause (b) of sub-section (1) or, as the case may be, the period of six months specified in sub-section (2), if the applicant satisfies the Tribunal that he had sufficient cause for not making the application within such period.
5. In the instant case, the applicant had not filed any Misc. Application for condonation of delay.
6. Further, the Apex Court in the case of C. Jacob Versus Director of Geology and Mining [(2008) 10 SCC 115] has observed as follows :-
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 realize 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.
7. Again Honble Apex Court in the case of Union of India & Ors. Versus M.K. Sarkar held as under :-
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 can not 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.
16. A Court or Tribunal, before directing `consideration' of a claim or representation should examine whether the claim or representation is with reference to a `live' issue or whether it is with reference to a `dead' or `stale' issue. If it is with reference to a `dead' or `state' issue or dispute, the court/Tribunal should put an end to the matter and should not direct consideration or reconsideration. If the court or Tribunal deciding to direct 'consideration' without itself examining of the merits, it should make it clear that such consideration will be without prejudice to any contention relating to limitation or delay and laches. Even if the court does not expressly say so, that would be the legal position and effect.
8. It is also worthwhile to mention here that when admittedly the allocation of zones have been made in April, 2009 and the candidates who have been selected on the basis of the Combined Graduate Level Examination, 2006 have been placed on their respective posts in different zones from that month. Even if there is merit in the contentions of the applicant, it would be highly prejudicial to many of his colleagues working in different zones to disturb them after a lapse of more than three years. It would also create administrative chaos if such a settled position regarding allocation of the zones is again disturbed and unsettled. We, therefore, dismiss this OA as a time barred case. There shall be no order as to costs.
( Sudhir Kumar ) ( G. George Paracken ) Member(A) Member (J) vb