Central Administrative Tribunal - Delhi
Shri Pradeep Kumar vs The Union Of India on 2 August, 2011
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH, NEW DELHI O.A. No.2713/2011 New Delhi, this the 2nd day of August, 2011. HONBLE MRS. MEERA CHHIBBER, MEMBER (J) HONBLE MR. SHAILENDRA PANDEY, MEMBER (A) Shri Pradeep Kumar, S/o Shri Bhagwan Dass, Aged 41 years, Assistant Engineer (Electrical) V, Engineering Services Division, All India Institute of Medical Sciences,] Ansari Nagar, New Delhi. Residing at Type II Quarters No.75, Masjid Moth, AIIMS Campus, New Delhi. Pin-110049. ..Applicant By Advocate: Shri Sudhir Kumar C.S. Versus 1. The Union of India, Represented by the Secretary, Health & Family Welfare, Government of India, Nirman Bhawan, New Delhi, PIN-110001. 2. The Director, All India Institute of Medical Sciences, Ansari Nagar, New Delhi, PIN-110049. 3. The Superintending. Engineer, Engineering Services Division, All India Institute of Medical Sciences, Ansari Nagar, New Delhi, PIN-110049. 4. The Chairman, Departmental Promotion Committee, All India Institute of Medical Sciences, Ansari Nagar, New Delhi, PIN-110049. 5. The Liaison Officer, All India Institute of Medical Sciences, Ansari Nagar, New Delhi, PIN-110049. 6. Mr. Praveen Purushottam Patharabe, The Junior Engineer (Electrical) (Under Suspension), Engineering Services Division, All India Institute of Medical Sciences, Ansari Nagar, New Delhi, PIN-110049. ..Respondents ORDER
Mrs. Meera Chhibber, Member (J) Applicant has sought the following relief:-
(a) To declare that the applicant shall be deemed to have been promoted along with others to the post of the AE, who were promoted following the recommendations of the 2nd DPC meeting held on 29.10.2004, as is evidenced by the Annexure A-4 proceedings sheet of the 2nd DPC, with all its consequential benefits and his pay and seniority re-fixed accordingly.
To direct the respondents to pay the applicant, within a period of one month, the arrears of salary with the interest @ 8% per annum in the promoted grade of the AE, for the period from 14.11.2003 to 15.01.2006 thereby duly re-assigning his pay and seniority, during which period the applicant was denied his legitimate promotion to the grade of the AE.
To direct the 2nd respondent, Director to dispose off the Annexure A-1, representation of the applicant within a period of two months from the date of receipt of the order of this Honble Tribunal.
To direct the respondents to look into the aspect of the composition of the future Departmental Promotion Committees, with a view to ensure that the members of such committees are aware of the laws and procedures, which apply for making selections and to further direct to consider the feasibility of having at least one member on the DPC drawn from the branch/departments being knowledgeable in service jurisprudence.
2. It is submitted by the applicant that he belongs to SC Community and was appointed as Junior Engineer (Mechanical) in All India Institute of Medical Sciences (hereinafter referred to as AIIMS) in 1995 and confirmed as such on 15.11.1997. DPC was held on 29.4.2002 for promotion to the post of Assistant Engineer which is to be filled 100% by way of promotion from amongst Jr. Engineer with 8 years of regular service. Out of 2 vacancies, 1 was for SC while other was for General. Though applicant was eligible, ignoring his case the DPC recommended the name of respondent No.6, who is ST candidate. Being aggrieved, applicant gave representation to the Director, AIIMS on 30.3.2002 followed by representation to the President on 3.8.2002. On intervention of Liaison Officer, AIIMS, the vacancies were not filled and they were carried forward.
3. On 15.12.2003 one more vacancy became available thus 2nd DPC was convened on 29.10.2004. Though applicant had completed 8 years of regular service, he was still not considered on the ground that there was some dispute with regard to the post reserved for SC. He was thus denied promotion in 2004 also illegally. Finally applicant was promoted as AE vide order dated 16.1.2006 (page 32).
4. He was aggrieved because he ought to have been promoted earlier so he again represented against denial of timely promotion in 2010 but no reply was given to him. In these circumstances, he had no other option but to file the present OA.
5. We have heard counsel for the applicant. The grievance of applicant is that he was denied promotion illegally in 2002 and 2004. If that was so, he ought to have filed the case one year thereafter because the period of limitation as per Section 19 of the Administrative Tribunals Act, 1985, is one year from the date of cause of action. Admittedly, no such action was taken by the applicant. He just gave a representation which was not replied to. In such an event, at best he could have approached the court within 18 months. No action was taken by the applicant within 18 months.
6. Thereafter applicant was promoted in 2006. Even at that stage he did not approach the court. The present OA has been filed on 25.7.2011 on the ground that last representation dated 10.3.2010 has not been replied to. No fresh cause of action had arisen in favour of applicant in 2011.
7. The law is well settled that mere representation do not extend the period of limitation. In S.S. Rathore Vs. State of Madhya Pradesh reported in AIR 1990 SC 10 it has been held by Honble Supreme Court as follows:-
In the case of service dispute the cause of action must be taken to arise not from the date of the original adverse order but on the date when the order of the higher authority where a statutory remedy is provided entertaining the appeal or representation is made and where no such order is made, though the remedy has been availed of, a six months period from the date of preferring of the appeal or making of the representation shall be taken to be the date of preferring of the appeal or making of the representation shall be taken to be the date when cause of action shall be taken to have first arisen. This principle has no application when the remedy availed of has not been provided by law. Repeated unsuccessful representations not provided by law are not governed by this principle.
8. Even otherwise applicant has not even filed any application for condonation of delay. In Ramesh Chand Sharma etc. vs. Udham Singh Kamal & Ors. reported in 2000 (2) AISLJ S.C. 89, Honble Supreme Court held as under:
7. On perusal of the materials on record and after hearing Counsel for the parties, we are of the opinion that the explanation sought to be given before us cannot be entertained as no foundation thereof was laid before the Tribunal. It was open to the first respondent to make proper application under Section 21 (3) of the Act for condonation of delay and having not done so, he cannot be permitted to take up such contention at this late stage. In our opinion, the O.A. filed before the Tribunal after the expiry of three years could not have been admitted and disposed of on merits in view of the statutory provision contained in Section 21(1) of the Administrative Tribunals Act, 1985. In view of above, we cannot even condone the delay, therefore, OA is liable to be dismissed on this ground alone.
8. It will also be relevant to refer to the judgment of Honble Supreme Court in the case of D.S. Negi Vs. U.O.I. & Others ( SLP (Civil) No.7956/2011 CC No.3709/2011) decided on 11.3.2011 wherein it was reiterated as follows:-
Before parting with the case, we consider it necessary to note that for quite some time, the Administrative Tribunals established under the Act have been entertaining and deciding the applications filed under Section 19 of the Act in complete disregard of the mandate of Section 21, which reads as under:-
21. Limitation -
(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;
(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 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.
A reading of the plain language of the above reproduced section makes it clear that the Tribunal cannot admit an application unless the same is made within the time specified in clauses (a) and (b) of Section 21 (1) or Section 21 (2) or an order is passed in terms of sub-section (3) for entertaining the application after the prescribed period. Since Section 21 (1) is couched in negative form, it is the duty of the Tribunal to first consider whether the application is within limitation. An application can be admitted only if the same is found to have been made within the prescribed period or sufficient cause is shown for not doing so within the prescribed period and an order is passed under Section 21 (3).
In the present case, the Tribunal entertained and decided the application without even adverting to the issue of limitation. Learned counsel for the petitioner tried to explain this omission by pointing out that in the reply filed on behalf of the respondents, no such objection was raised but we have not felt impressed. In our view, the Tribunal cannot abdicates its duty to act in accordance with the statute under which it is established and the fact that an objection of limitation is not raised by the respondent/non-applicant is not at all relevant .
9. In view of above, since this OA is barred by limitation and applicant has not even sought condonation of delay, the OA is dismissed at the admission stage itself. No costs.
(SHAILENDRA PANDEY) (MRS. MEERA CHHIBBER)
MEMBER (A) MEMBER (J)
Rakesh