Central Administrative Tribunal - Allahabad
Ram Bahadur Kashyap vs Navodya Vidyalaya Sanghathan on 15 May, 2019
RESERVED
CENTRAL ADMINISTRATIVE TRIBUNAL
ALLAHABAD BENCH ALLAHABAD
Misc. Condonation of Delay Application No. 330/00236/2019
IN
Original Application No. 330/00093/2019
Dated: This the 15th day of May 2019.
HON'BLE MR. RAKESH SAGAR JAIN, MEMBER (J)
Ram Bahadur Kashyap son of Late Shri Dori Lal resident of Sahtoot
Bhawan, House No. 20, Khairullahshah, District Pilibhit, presently residing
at Quarter No. 8, Jawahar Nvodaya Vidyalaya Shivpuri, Navodiya
Bisalpur, District Pilibhit.
. . . Applicant
By Adv: Shri Anil Kumar Srivastava
VERSUS
1. The Union of India through Joint Commissioner (Karmik)
Navodaya Vidyalaya Samiti, New Delhi (Under Ministry of Human
Resources Development, Department of Secondary & Higher
Education, New Delhi).
2. The State of U.P. through District Magistrate, Pilibhit.
3. The Deputy Commissioner Navodaya Vidyalaya Samiti, Regional
Office, Lucknow (U.P).
4. The Principal, Jawahar Navodaya Vidyalaya Shivpuri Navadiya
Bisalpur, District Pilibhit (U.P).
...... . .Respondents
By Adv: Shri N.P. Singh
2
ORDER
1. The present O.A. has been filed by applicant Ram Bahadur Kashyap under Section 19 of Administrative Tribunal Act seeking the following reliefs:
"i) An order be passed to set aside the impugned order dated 07.01.2010 passed by the respondent no.3, a copy whereof is contained in Annexure -1 to the Original Application;
ii) An order be passed directing the respondents to appoint/regularized the services of the applicant on the post of PGT (Computer Science) in the institution;
iii) Any other and further order may be passed as this Hon'ble Court may deem fit and proper, in the facts and circumstances of the case.
iv) The cost of the present original application may also be awarded in favour of the applicant as against the respondents;"
2. Case of applicant Ram Bahadur Kashyap is that he was working as part time teacher since 2003 as Graduate Teacher (Computer Science) in Jawahar Navodaya Vidyalaya, Pilibhit before entering into a contract on 01.10.2006. It is the case of applicant that he had been selected for teaching 11th class but in the Schedule of session 2007-08, he is shown to teach except 12th class and if protests, the Principal threatens to terminate his services.
3. The O.A. has been drafted in a very haphazard and casual manner and facts and dates have been jumbled. Unravelling the facts, it comes out that respondent No. 3 passed the impugned order dated 07.01.2010 (Annexure 1) against which the applicant has filed the present O.A.
4. Applicant was appointed on contractual basis by respondents for teaching job in respondent-school. The contract reads as under:
3"CONTRACT AGREEMENT This agreement is made on this ............. Day of .............. between ................ (hereinafter referred to as contract teachers) of the first part.
Principal, Jawahar Navodaya Vidalaya Bisalpur Distt. Pilibhit State U.P. (hereinafter referred to as Principal) of the second part.
Whereas the Principal has engaged with effect from the 11.10.06 day of ............. the contract teacher to serve the Vidyalaya against a vacant pot of PGT Computer Teacher and the said contract teacher has agreed to work as above at the remuneration and upon the terms and conditions hereinafter appearing:
NOW WHERE OF BOTH THE PARTIES AGREE AS UNDER This contract will be for a period of 30.4.2007 the date of engagement of the contract teacher as aforesaid. It may be renewed for an equal period with the mutual consent of the parties on the same or fresh terms and conditions. The contract will automatically stand terminated unless extended before the date of expiry, and in no case will it be extended beyond one year from the date of initial contract.
This contract can be terminated by the either party by giving one month's notice or one month's remuneration in lieu of the notice. For such termination of contract on reasons would need be communicated. Once the notice has been given the contract will automatically stand terminated at the expiry of the notice period.
The contract teacher will have to perform duties in the Navodaya Vidyalaya at par with regular teaching staff and as per the directions given by the Principal.4
The contract teacher will receive a consolidated remuneration of Basic + DA Rs. 6500 + 4819 Rs. Total 11310/- only) per month during the currency of the contract or any extension thereof.
The contract teacher will employ himself efficiently and diligently and will devote his whole time to the duties of the service and will not engage directly or indirectly in any trade business or occupation on his own account.
The contract teacher is not entitled for any leave during the currency of the contract. He/she will be governed by the normal Vidyalaya Holidays during the contract period.
At the termination of the contract, the contract teacher is not entitled for any terminal benefits from the Principal or the Navodaya Vidyalaya Samiti.
Not with standing anything in the contract the Principal may terminate the service of the contract teacher before the expiry of said period or the extended period, if any in case :-
His work is found unsatisfactory.
If his conduct is found to be unbecoming of a Govt.
Servant and unsuitable for a co-educational residential institution.
9. The contract teacher is entitled for rent free accommodation within the Vidyalaya campus if and as available is entitled for free meals along with the students.
In witness where of the parties here upto put their hand on this agreement on the day, month and year herein above mentioned in the presence of the witnesses".
5. As per the impugned order dated 07.01.2010, the services of applicant were terminated by order dated 29.08.2008 against which order, applicant filed an appeal. During the pendency of 5 the appeal, applicant filed O.A No. 1077/2009 in CAT, Allahabad. The O.A. was disposed by order dated 11.11.2009 by observing the O.A. is not maintainable in view of pendency of appeal.
6. The relevant portion of the impugned order dated 07.01.2010 reads as under:
"AND WHEREAS the appeal dated 21.04.2009 preferred by the applicant is perused and observed that the following grievances have been raised by the applicant.
1. Since the date of his appointment he has performed his duties to the utmost satisfaction of his superiors but just only to accommodate the persons of their own choice, the order of termination dated 29.02.2008 has been passed.
2. Although neither the candidates have joined nor the applicant has been permitted to work after 31.03.2008 and till date the post of Computer Teacher is lying vacant in the institution but owing to the reasons best known to the authorities, neither the applicant has been permitted to work nor the regular selection has been made. Raising the aforesaid grievances the applicant has submitted that till the regular selection is made the applicant may be allowed to work on the post.
AND WHEREAS on careful perusal of the appeal dated 21.4.2009 and other records pertaining to the appointment of the applicant on the contract basis and the termination of his services by order dated 29.02.2008, the following facts emerged.
1. The applicant was appointed on contract basis on the terms and conditions as laid down in the contract agreement wherein it is clearly laid down that notwithstanding anything contained in the contract, the 6 Principal may terminate the services of the contract teacher before the expiry of said period or the extended period, if any, in case his work is found unsatisfactory or his conduct is found to be unbecoming of a government servant. The contract agreement further provides that the contract can be terminated by the either party by giving one months notice or one month remuneration in lieu of notice period and for such termination of contract, no reasons need be commenced. Once the notice has been given the contract will standing terminated on expiry of the notice period.
2. The contract appointment of the applicant was terminated by order dated 29.02.2008 giving one month honorarium/remuneration in lieu of the one months notice period as per terms and condition of the contract agreement. The above appointment of the applicant was terminated in view of the fact that a report dated 26.12.2007 was received to the undersigned about his functioning and it was observed that the applicant is not discharging his duties and responsibilities as required for the post of Computer Science Teacher and his performance is quite unsatisfactory. During the currency of the contract the applicant was issued Memo dated 18.01.2008 and verbally reprimanded for improvement in his teaching but when no improvement was observed by the Principal, the orders for termination of contract was issued. The Principal, JNV, District Pilibhit reported the matter to the undersigned and he was advised to issue order for termination of the contract vide this office letter dated 04.02.2008.
3. During the academic session 2009-10 no students have offered Computer Science as a subject at + 2 level and hence there is no requirement of a PGT (Computer Science) for appointment on regular basis falling which 7 on short term contract basis. It is a settled principle of law that no substantive right of appointment accrues on the basis of working on contract basis and once the employment is terminated by the parties in accordance with the terms and conditions of contract agreement, one can not take any advantage of past services for re- appointment on contract basis in the same institution.
NOW THEREFORE, the undersigned is of the view that the claim of the applicant for appointment as PGT (Computer Science) in the aforesaid JV can not be entertained in view of the fact that the services of the applicant was neither found satisfactory in his previous term of contract appointment nor there is requirement of a teacher for teaching computer science subject at + 2 level in the above said institution. With the above observation the appeal is rejected without any relief".
7. In the present O.A., applicant seeks the relief of setting aside the impugned order dated 07.01.2010 and to direct the respondents to regularise his services on the post of P.G.T. (Computer Sciences) in respondent-school.
8. An application has also been filed for condoning the delay in filing the O.A. beyond the period of limitation wherein it has been averred that delay occurred on account of the fact that earlier, the applicant had approached the Hon'ble High Court. The delay not being intentional or deliberate be condoned. In their reply, respondents have averred that the order dated 07.01.2010 is being challenged after about 9 years and merely approaching the Hon'ble High Court cannot be a ground to condone the delay which is intentional and deliberate and does not deserve to be condoned.
9. I have heard and considered the arguments of the learned counsels for the parties and gone through the material on record.
810. The impugned order is dated 07.01.2010 whereby the appeal against the order dated 29.08.2008 terminating the services of applicant was rejected. Perusal of the record would show that applicant filed Writ Petition No. 43099 of 2007 which was disposed of vide order dated 15.03.2018. The writ petition filed in the year 2007 could not have been against order dated 07.01.2010 or even order dated 29.08.2008.
11.It is the case of applicant that the delay filing the O.A. is neither deliberate nor intentional and therefore the delay be condoned and O.A. be decided in his favour. Learned counsel for applicant reiterated the pleas taken by him in the application for condoning the delay in filing the restoration application.
12.On the other hand, learned counsel for the respondents submitted that the application is patently barred by period of limitation and the delay is solely attributable to the conduct of the applicant, who has been negligent in filing the O.A., as such, the reasons put-forth by applicant seeking condonation of delay cannot be justified and, therefore, the delay be not condoned. It has also been argued by learned counsel for respondents that the O.A. has been filed after delay of nearly 9 years and is to be dismissed as being highly time barred by virtue of Section 21 of Central Administrative Tribunal Act, 1985 (hereinafter referred to as the 'Act').
13.Section 21 of the 'Act' specifies limitation period. Section 21 reads as under:
"(1) A Tribunal shall not admit an application,--
(a) 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;9
(b) 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.
(2) Notwithstanding anything contained in sub-section (1), where--
(a) 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
(b) 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 subsection (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 they had sufficient cause for not making the application within such period".
14.A reading of the said section would indicate that sub-section (1) of Section 21 provides for limitation for redressal of the grievances in clauses (a) and (b) and specifies the period of one year. Sub-section (2) amplifies the limitation of one year in respect of grievances covered under clauses (a) and (b) and an outer limit of six months in respect of grievances covered by sub- section (2) is provided. Sub-section (3) postulates that 10 notwithstanding anything contained in sub-section (1) or sub- section (2), if the applicant satisfies the Tribunal that he had sufficient cause for not making the application within such period enumerated in sub-sections (1) and (2) from the date of application, the Tribunal has been given power to condone the delay, on satisfying itself that the applicant has satisfactorily explained the delay in filing the application for redressal of their grievances. When subsection (2) has given power for making applications within one year of the grievances covered under clauses (a) and (b) of subsection (1) and within the outer limit of six months in respect of the grievances covered under sub- section (2), there is no need for the applicant to give any explanation to the delay having occurred during that period. He is entitled, as a matter of right, to invoke the jurisdiction of the court for redressal of his grievances. If the application come to be filed beyond that period, then the need to give satisfactory explanation for the delay caused till date of filing of the application must be given and then the question of satisfaction of the Tribunal in that behalf would arise. Sub-section (3) starts with a non obstante clause which rubs out the effect of sub- section (2) of Section 21 and the need thereby arises to give satisfactory explanation for the delay which occasioned after the expiry of the period prescribed in sub-sections (1) and (2) thereof.
15.On the question of delay and bar of limitation, reference may be made to the decisions of the Hon'ble Apex Court in the following cases:-
A. Esha Bhattachargee Vs. Managing Committee of Raghunathpur Nafar Academy and Others, (2013) 12 SCC 649, after discussing the entire case law on the point of condonation of delay, the Hon'ble Apex Court has culled out certain principles as under:-11
"21. From the aforesaid authorities the principles that can broadly be culled out are:
21.1. There should be a liberal, pragmatic, justice-oriented, non- pedantic approach while dealing with an application for condonation of delay, for the courts are not supposed to legalise injustice but are obliged to remove injustice. 21.2. The terms "sufficient cause" should be understood in their proper spirit, philosophy and purpose regard being had to the fact that these terms are basically elastic and are to be applied in proper perspective to the obtaining fact- situation.
21.3. Substantial justice being paramount and pivotal the technical considerations should not be given undue and uncalled for emphasis.
21.4. No presumption can be attached to deliberate causation of delay but, gross negligence on the part of the counsel or litigant is to be taken note of. 21.5. Lack of bona fides imputable to a party seeking condonation of delay is a significant and relevant fact. 21.6. It is to be kept in mind that adherence to strict proof should not affect public justice and cause public mischief because the courts are required to be vigilant so that in the ultimate eventuate there is no real failure of justice. 21.7. The concept of liberal approach has to encapsule the conception of reasonableness and it cannot be allowed a totally unfettered free play.
21.8. There is a distinction between inordinate delay and a delay of short duration or few days, for to the former doctrine of prejudice is attracted whereas to the latter it may not be attracted. That apart, the first one warrants strict approach whereas the second calls for a liberal delineation.
21.9. The conduct, behaviour and attitude of a party relating to its inaction or negligence are relevant factors to be taken into consideration. It is so as the fundamental principle is that the courts are required to weigh the scale 12 of balance of justice in respect of both parties and the said principle cannot be given a total go by in the name of liberal approach.
21.10. If the explanation offered is concocted or the grounds urged in the application are fanciful, the courts should be vigilant not to expose the other side unnecessarily to face such a litigation. 21.11. It is to be borne in mind that no one gets away with fraud, misrepresentation or interpolation by taking recourse to the technicalities of law of limitation. 21.12. The entire gamut of facts are to be carefully scrutinized and the approach should be based on the paradigm of judicial discretion which is founded on objective reasoning and not on individual perception.
21.13. The State or a public body or an entity representing a collective cause should be given some acceptable latitude.
22. To the aforesaid principles we may add some more guidelines taking note of the present day scenario. They are: -
22.1.An application for condonation of delay should be drafted with careful concern and not in a half hazard manner harbouring the notion that the courts are required to condone delay on the bedrock of the principle that adjudication of a lis on merits is seminal to justice dispensation system.
22.2. An application for condonation of delay should not be dealt with in a routine manner on the base of individual philosophy which is basically subjective. 22.3. Though no precise formula can be laid down regard being had to the concept of judicial discretion, yet a conscious effort for achieving consistency and collegiality of the adjudicatory system should be made as that is the ultimate institutional motto.13
22.4. The increasing tendency to perceive delay as a non- serious matter and, hence, lackadaisical propensity can be exhibited in a non-challant manner requires to be curbed, of course, within legal parameters".
B. In Chennai Metropolitan Water Supply and Sewarage Board and Others Vs. T.T. Murali Babu (2014) 4 SCC 108, it was held by the Hon'ble Apex Court as under:-
"13. First, we shall deal with the facet of delay. In Maharashtra State Road Transport Corporation v. Balwant Regular Motor Service, Amravati and others[AIR 1969 SC 329] the Court referred to the principle that has been stated by Sir Barnes Peacock in Lindsay Petroleum Co. v. Prosper Armstrong Hurd, Abram Farewall, and John Kemp[(1874) 5 PC 221], which is as follows: -
"Now the doctrine of laches in Courts of Equity is not an arbitrary or a technical doctrine. Where it would be practically unjust to give a remedy, either because the party has, by his conduct, done that which might fairly be regarded as equivalent to a waiver of it, or where by his conduct and neglect he has, though perhaps not waiving that remedy, yet put the other party in a situation in which it would not be reasonable to place him if the remedy were afterwards to be asserted in either of these cases, lapse of time and delay are most material. But in every case, if an argument against relief, which otherwise would be just, is founded upon mere delay, that delay of course not amounting to a bar by any statute of limitations, the validity of that defence must be tried upon principles substantially equitable. Two circumstances, always important in such cases, are, the length of the delay and the nature of the acts done during the interval, which might affect either party and cause a balance of justice or injustice in taking the one course or the other, so far as relates to the remedy."14
16.Delay and laches must be explained to the satisfaction of the Court for seeking condonation as held in the case of S.S. Rathore Vs State Of Madhya Pradesh 1990(4) SCC 582, Bhup Singh Vs Union of India & Ors. (1992 A.I.R. S.C. Page 1414), C. Jacob Vs. Director of Geology and Mining & Anr, 2009 (10) SCC 115 and Union of India & Ors. Versus M.K.Sarkar (2010(2) S.C.C. 58).
17.As observed by the Hon'ble Apex Court in Union of India Vs. Harnam Singh, 1993(2) S.C.C. 162, that the Law of Limitation may operate harshly but it has to be applied with all its rigour and the Courts or Tribunals cannot come to aid of those who sleep over their rights and allow the period of limitation to expire.
18.The claim of applicant challenging the order dated 07.01.2010 is a stale and dead claim and cannot be entertained at this long lapse of time. Even the reasons advanced by applicant for filing the O.A. beyond the period of limitation is not borne out by the facts as coming out in his pleading and are palpably false.
19.It is a settled principle of law that the doctrine of delay and laches should not be lightly brushed aside. A writ court is required to weigh the explanation offered and the acceptability of the same. The court should bear in mind that it is exercising an extraordinary and equitable jurisdiction. As a constitutional court it has a duty to protect the rights of the citizens but simultaneously it is to keep itself alive to the primary principle that when an aggrieved person, without adequate reason, approaches the court at his own leisure or pleasure, the Court would be under legal obligation to scrutinize whether the lis at a belated stage should be entertained or not. Be it noted, delay comes in the way of equity. In certain circumstances delay and laches may not be fatal but in most circumstances inordinate delay would only invite disaster for the litigant who knocks at the doors of the Court. Delay reflects inactivity and inaction on the part of a litigant - a litigant who has forgotten the basic norms, namely, "procrastination is the greatest thief of time" and 15 second, law does not permit one to sleep and rise like a phoenix. Delay does bring in hazard and causes injury to the lis.
20.In the light of the aforesaid settled principle of law and facts of the case as noted above, I am of the view that the applicant has failed to make out a sufficient cause for not making the original application within the period of limitation as envisaged by Section 21 of the Act, as such, the application seeking condonation of delay in filing the O.A. is dismissed. Accordingly the OA, being barred by period of limitation, is dismissed. There shall be no order as to costs.
(RAKESH SAGAR JAIN) MEMBER-J Manish/-