Central Administrative Tribunal - Delhi
Rabindra Nath vs South Delhi Municipal Corporation on 13 February, 2015
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH OA 431/2015 New Delhi this the 13th day of February, 2015 Honble Mr. A.K.Bhardwaj, Member (J) Honble Mr. V.N.Gaur, Member (A) 1. Rabindra Nath, S/o Shri Sachidanand Thakur, Aged about 46 years, Assistant Teacher M.C.P.School, Naraina Village-1, Karol Bagh Zone, North Municipal Corpn. 2. Kamalpreet Kaur Walia Aged about 45 years w/o Sardar Ranbir SIngh Assistant Teacher, M.C.P. School, E-Block, Naraina, Karol BaghZone, North Delhi Municipal Corpn. Applicants (By Advocate Shri Ranjit Sharma ) VERSUS 1. South Delhi Municipal Corporation, Through the Commissioner, At SP Mukherjee Civic Centre, J.L.N.Marg, New Delhi-2 2. North Delhi Municipal Corporation, Through the Commissioner, At SP Mukherjee Civic Centre, J.L.N.Marg, New Delhi-2 3. Delhi Subordinate Service Selection Board, (DSSSB) through its Secretary, At FC-18, Industrial Area, Karkardooma. .. Respondents ORDER Honble Mr. A.K.Bhardwaj, Member (J):
The applicant applied for the post of Assistant Teacher in MCD in the year 2000 and on being successful in the selection process was appointed to the post of Assistant Teacher in terms of Appointment Order No. ADE/TRC/Edu/02/864/UR dated 25.07.2002. According to him, since certain other candidates have been given appointment between July to November, 2001, the applicant who also participated in the common selection process, needs to be given the benefit of seniority and notional pay fixation at par with those who were appointed between July to November, 2001. The prayer made in the OA reads thus:-
i) to quash the office order dated 15.10.2014 (Annexure A 1 supra) and directed the respondents to fix their pay at par with the candidates, who were selected in terms of advertisement no.02/2000 with arrears and also grant them notional seniority. Though the representation made by the applicant for giving him seniority and notional pay fixation during the year 2001 could be rejected vide office order No.D/DDE/KBZ/2014/3512 dated 15.10.2014, in view of the law declared by the Honble Supreme Court in UOI & Ors V. A. Durairaj (dead) by LRs (JT 2011 (3) SC 254), the period of limitation will have to be reckoned from the date of the cause of action i.e. the year 2002, when the applicant was appointed to the post. The relevant excerpt of the judgment read thus:--
13. It is well settled that anyone who feels aggrieved by non-promotion or non-selection should approach the Court/Tribunal as early as possible. If a person having a justifiable grievance allows the matter to become stale and approaches the Court/Tribunal belatedly, grant of any relief on the basis of such belated application would lead to serious administrative complications to the employer and difficulties to the other employees as it will upset the settled position regarding seniority and promotions which has been granted to others over the years. Further, where a claim is raised beyond a decade or two from the date of cause of action, the employer will be at a great disadvantage to effectively contest or counter the claim, as the officers who dealt with the matter and/or the relevant records relating to the matter may no longer be available. Therefore, even if no period of limitation is prescribed, any belated challenge would be liable to be dismissed on the ground of delay and laches.
14. This is a typical case where an employee gives a representation in a matter which is stale and old, after two decades and gets a direction of the Tribunal to consider and dispose of the same; and thereafter again approaches the Tribunal alleging that there is delay in disposal of the representation ( or if there is an order rejecting the representation, then file an application to challenge the rejection, treating the date of rejection of the representation as the date of cause of action). This Court had occasion to examine such situations in Union of India v.M.K.Sarkar 2010 (2) SCC 58 and held as follows:
The order of the Tribunal allowing the first application of Respondent without examining the merits, and directing Appellants to consider his representation has given rise to unnecessary litigation and avoidable complications. X 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 for 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 courts direction. Neither a courts 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.
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. It is with reference to a dead or stale 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.
Though the learned counsel for the applicant submitted that the applicant has filed an application for condonation of delay in filing the OA, we do not find any such application on record. Even otherwise also, there can be hardly any ground to condone the delay of more than a decade. To adjudicate the plea of antedating the date of appointment and to give the benefit of additional increments and seniority when the applicant joined the service in the year 2002, we need to verify his position in the merit list vis-a-vis others. The reliance placed by him on the judgment of Honble Supreme Court in M.R.Gupta Vs. Union of India and Ors (1995 (5) SCC 628) is of no consequence. Such judgment would apply only in such cases where the pay fixation of employee is incorrectly done and he suffer loss in salary. In the present case, it is not so that the grievance of the applicant is regarding pay fixation. His grievance is regarding the date of his appointment. In the OA, the prayer of the applicant is that his date of appointment should be antedated and then he should be given the benefit of increments. As has been viewed in the case of B.S.Bajwa and Another Vs. State of Punjab and others (1998 (2) SCC 523), the issue of seniority cannot be reopened after a long delay. The relevant excerpt of the judgment read thus:-
6. Obviously on this conclusion alone the writ petition should have been dismissed by setting aside the judgment of the single Judge allowing the LPA without any caveat. However, the Division Bench, after reaching the above conclusion, proceeded to grant the benefit of a much earlier date, namely, 6-4-1964 as the date of appointment on the basis of a concession of the Additional Advocate General made therein without considering the effect of the same or of taking into account the inconsistency with its earlier finding. We have no doubt that the concession on this point, being one of law, it cannot bind the State and, therefore, it was open to the State to withdraw as it has been done by filing a review petition in the High Court itself. That apart that concession made on behalf of the State cannot bind D. P. Bajaj and Jagir Singh or anyone-else who would be adversely affected thereby. Those persons, therefore, have an independent right to assail that view taken by the Division Bench. It is with regard to this part of the judgment of which we say that even though the LPA is said to have been allowed but it has the effect and in reality of being dismissed because it grants certain benefits to B. S. Bajwa and B. D. Kapoor who were the respondents therein.
7. Having heard both sides we are satisfied that the writ petition was wrongly entertained and allowed by the single Judge and, therefore, the Judgments of the single Judge and the Division Bench have both to be set aside. The undisputed facts appearing from the record are alone sufficient to dismiss the writ petition on the ground of laches because the grievance made by B. S. Bajwa and B. D. Kapoor only in 1984 which was long after they had entered the department in 1971-72. During this entire period of more than a decade they were all along treated as junior to the other aforesaid persons and the rights inter se had crystallised which ought not to have been re-opened after the lapse of such a long period. At every stage the others were promoted before B. S. Bajwa and B. D. Kapoor and this position was known to B. S. Bajwa and B. D. Kapoor right from the beginning as found by the Division Bench itself. It is well settled that in service matters the question of seniority should not be re-opened in such situations after the lapse of a reasonable period because that results in disturbing the settled position which is not justifiable. There was inordinate delay in the present case for making such a grievance.this alone was sufficient to decline interference under Article 226 and to reject the writ petition.
8. In view of the above conclusion it is not necessary for us to express any opinion on the merits of the point raised by B. S. Bajwa and B. D. Kapoor. We make it clear that the view thereon taken by the High Court is not to be treated as concluded or having affirmation of any kind. The appeals of B. S. Bajwa and B. D. Gupta are dismissed and the appeal filed by D. P. Bajaj and Jagir Singh is allowed. With the result that the judgment of the single Judge of the High Court is set aside and the writ petition filed by B. S. Bajwa and B. D. Kapoor stand dismissed.
2. In view of the aforementioned, we decline to entertain the OA as not maintainable and the same is dismissed in limine.
(V.N.Gaur) (A.K.Bhardwaj) Member (A) Member (J) sk