Central Administrative Tribunal - Delhi
Sansar Chand vs Union Of India Through on 14 January, 2015
Central Administrative Tribunal Principal Bench: New Delhi OA No.2091/2010 & OA No.3976/2011 Reserved on: 08.10.2014 Pronounced on:14.01.2015 Honble Mr. Justice Syed Rafat Alam, Chairman Honble Dr. B.K. Sinha, Member (A) OA No.2091/2010 Sansar Chand, SFA (Homeo) Quarter No.540, Sector 5, R.K. Puram, New Delhi 10 066. Applicant (By Advocate: Sh. Sudharshan Rajan) Versus 1. Union of India through Union Home Secretary, Ministry of Home Affairs, North Block, New Delhi. 2. The Directorate General, Sashastra Seema Bal through Director General, SSB, Force Headquarters, East Block-V, R.K.Puram, New Delhi 110 066. Respondents (By Advocate: Shri Rajesh Katyal) OA No.3976/2011 1. Mangal Singh Rawat s/o late Shri Balbir Singh Rawat presently posted at Circle Office Area Organizer, SSB Sitamarhi, Bihar. 2. Jeevan Lal s/o Shri Sadhu Ram Jaryal, presently posted at O/o Circle Organizer, SSB, Raxaul, Bihar. Applicants. (By Advocate: Sh. Sudharshan Rajan) Versus 1. Union of India through Union Home Secretary, Ministry of Home Affairs, North Block, New Delhi. 2. The Directorate General, Sashastra Seema Bal through Director General, SSB, Force Headquarters, East Block-V, R.K.Puram, New Delhi 110 066. Respondents (By Advocate: Shri Rajesh Katyal) O R D E R By Dr. B.K. Sinha, Member (A):
The instant two OAs i.e. OA No.2901/2010 and OA No. 3976/2011 involving identical issue were earlier decided by this Tribunal vide two separate orders dated 29.03.2011 and 18.04.2012 respectively. Against both the aforesaid decisions, the respondents went in appeal before the Honble High Court of Delhi vide WP(C) Nos.8510/2011 and 5826/2012 which were decided by a common order dated 27.08.2013 whereby the Honble High Court remanded these cases to the Tribunal for adjudication on the following two counts:-
(1) The Honble High Court found credence in the arguments of the petitioners in the afore writ petitions that the clarification dated 20.05.2003 given by the Ministry of Home Affairs had been glossed over by the Tribunal while deciding these OAs. The Honble High Court was pleased to order:-
In that view of the matter, we have no option but to remand the matter to the Tribunal for re-adjudication by taking into account the clarification dated May 20, 2003 given by the Ministry of Home Affairs. (2) The Tribunal had not considered the plea of limitation raised by SSB/Ministry while deciding the OA No.3976/2011 (Mangal Singh Rawat & Anr. Versus Union of India & Others) because the Tribunal had also not considered the plea of limitation in its order passed in OA No. 2091/2010 (Sansar Chand versus Union of India & Others), who was similarly situated as respondent in Mangal Singh Rawats case (Supra). The Honble High Court did not find it justifiable. This requires that the plea of limitation be also considered along with issue no.1.
2. The facts of both the cases have been enumerated in detail in the order of the Honble High Court of Delhi dated 27.08.2013. Since repetition of the facts would only add to the bulk of this order, we proceed straightaway with the examination of the issues under contention.
3. We have carefully considered the pleadings of the rival parties as contained in the afore two OAs along with such documents as have been filed by them, the remand order of the Honble High Court dated 27.08.2013, and have also heard the arguments put-forth by the respective counsels for the parties.
4. As stated earlier, the only two issues are to be considered in these cases, as directed by the Honble High Court of Delhi in brief, which are as under: -
1. Whether the afore two Original Applications are barred by limitation?
2. What would be the impact of clarification dated 20.05.2003 issued by MHA?
5. Insofar as the first of the issues is concerned, the following Table delineates its sequence of events and would serve to explain the issue:-
Sansar Chand (applicant in OA No.2091/ 2010) Mangal Singh Rawat (applicant in OA No.3976/ 2011) Date of joining the force 24.07.1978 02.11.1984 Date of appointment as SFA(H) 02.04.1994 01.04.1994 Due date of promotion Date of imposition of 10% cut 20.05.1999 20.05.1999 Date of abolition of Homeopathy cadre and repatriation of the applicants to their own cadres/units as Constables 05.07.2001 05.07.2001 Date of order of the Chandigarh Bench continuing the applicant on the post of SFA(H) 05.12.2001 05.12.2001 Date of order of cancellation of transfer of 79 SFA(H) to their parent cadres 17.01.2003 17.01.2003 Date of grant of exemption to CPMF and IB from the purview of 10% cut 07.05.2003 07.05.2003 Date of clarification by MHA regarding the cut 20.10.2003 20.10.2003 Date of filing of OA seeking convening of DPC to consider their appointment
06.07.2010 02.11.2011
6. We first take a look to the legal position regarding application of limitation and exoneration from the same. Section 21 of the Administrative Tribunals Act, 1985 provides for entertaining an Application under Section 19, 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.
7. The Honble Supreme Court in the case of Union of India Vs. A.Duriaraj [AIR 2011 SCC 1084] has taken a very stringent view to the extent of holding that each day of delay has to be accounted for. Anybody, who feels aggrieved on account of non-promotion, should approach the Court/Tribunal as early as possible. If a person having 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 employers and difficulties to the employees as well.
8. The Honble Supreme Court in the matter of Union of India & Ors. Vs. M.K. Sarkar, [2010 (2) SCC 59] has held that filing of repeated representations does not cure the case from the laches or limitation even when a belated representation in regard to stale or dead issue is to be considered and decided in compliance with the direction of the Court/Tribunal to do so. The date of such decision cannot be considered as furnishing show cause for action for reviving the dead issue or the time barred dispute.
9. There is also a contrarian view that ordinarily a litigant does not stand to benefit of lodging an appeal late. Refusing to condone delay can result in meritorious matters being thrown out at the very threshold and the cause of justice is defeated. The term every days delay must be explained, does not mean that a pedantic approach is to be made. The doctrine must be applied in a rational, commonsense and pragmatic manner. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred, for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay. [Office of the Chief Post Master General Vs. Living Media India Ltd. & Anr., (2012)3 SCC 563].
10. In sum and substance, the pronouncements of the different superior courts boil down to only one factor that exemption from rule of limitation and condonation of delay in filing application is a discretion which has been left to the courts as it would appear from the above that there are rulings which prescribe that each day of delay has to be accounted and satisfactorily explained and that no condonation is to be granted to persons who have deliberately slept over their own welfare, while on the other hand there are also rulings to indicate that justice is not to be overlooked merely on the ground of delay. So long as a satisfactory explanation appears to be emerging the courts have the discretion to condone the delay and to consider the issues on their merits. It is not that discretion is to be applied in an arbitrary manner. Even when condonation of delay is granted, it should be on the basis of tangible facts leading to emergence of satisfaction that the delay was not deliberate; it was beyond control of the applicants to have approached the Tribunal within time; and the applicants did not have any role in causing the delay.
11. In the light of above facts, the first question which is to be decided is as to when the applicants became eligible for promotion. Admittedly, according to Schedule-II of the SSB (H) Rules, 1992 the qualifying service in the grade of SFA (H) for promotion to the post of AFO (H) is three years. In other words, the applicant Sansar Chand became eligible for promotion to the post of AFO(H) on 02.04.1997 and Mangal Singh Rawat and Sh. Jeevan Lal on 01.04.1997 and 30.01.2000 respectively. It was on 20.05.1999 that the Cabinet Secretariat issued an order following the directives of the Government of India for 10% cut in the sanctioned strength and abolished 590 posts in SSB in the following manner:-
In terms of Government directive for 10% cut in the sanctioned strength of posts of SSB (Excluding battalion side) and SFF, President is pleased to abolish 590 posts in SSB as indicated in Annexure-I and 870 posts in SFF as shown in Annexure-II.
2. So far abolition of posts in SSB is concerned, total number of 103 posts as shown under Col.6 of the Annexure-I are abolished with immediate effect. The posts shown under Col.5 of the Annexure-I (Total 487 posts) which are at present filled up will be abolished automatically on that falling vacant due to promotion, transfer, retirement, death etc. of the incumbent holding the posts.
3. As regards abolition of posts in SFF, 35 posts have already been abolished vide order No.A490011/36/94-DCI, dated 11.06.97, therefore actual 833 posts as indicated under Col. 6 against Sl. No.1 to 5 in the Annexure-II shall be abolished with immediate effect.
4. This issues with the concurrence of Ministry of Finance (Expenditure) vide UO No.7(7)/E. Coord/92, dated 28.4.99. As stated earlier and indicated in the Table that by order dated 05.07.2001, the SFAs were repatriated to their cadres/units. Some of these SFAs including the applicants approached the Chandigarh Bench of this Tribunal by filing OA No.640/CH/2001 against their order of repatriation which was quashed vide order dated 05.12.2001 and complied with by the respondents vide order dated 17.01.2007 cancelling the earlier order dated 05.07.2001 transferring 79 posts of SFAs to their parent cadres. Subsequently, by order dated 07.05.2003, the Central Para Military Force including the SSB had been granted exemption from 10% cut in the sanctioned strength.
12. We have seen that the qualifying service of the applicants as SFA (H) was only three years and two of the applicants had attained the same otherwise for promotion to the post of AFO (H) before the cut being imposed. In other words, the applicants in these OAs sought direction for convening DPC for promotion to the next higher post that being AFO (H). The said option was open to two of the applicants i.e. Sansar Chand and Mangal Singh Rawat prior to 10% cut being imposed sometime in the end of 1997 or beginning of 1998. The imposition of 10% cut vide letter dated 20.05.1999 completely altered the scenario. However, after the order dated 07.05.2003 granting exemption from 10% cut, this option of coming to the Tribunal by the applicants was still open to them. It was ultimately in 2010 that Sansar Chand approached this Tribunal vide OA No.2091/2010 which was decided vide order dated 29.03.2011. Likewise, applicant Mangal Singh Rawat along with Jeevan Lal filed OA No.3976/2011 on 02.11.2011 which was decided on 18.04.2012. However, the applicant Jeevan Lal fulfilled the qualifying service for promotion w.e.f. 30.01.2000 and was thereafter definitely eligible for promotion after 07.05.2003 when the 10% cut was restored. The moot question here is to decide as to why they had not approached the Tribunal earlier than they did.
13. The learned counsel for the respondents have submitted that the applicants have neither filed an application for condonation of delay nor have furnished any explanation for delay of 13 long years. The learned counsel for the respondents further contended that in para 4 of the OA No.3976/2011 the applicants Mangal Singh Rawat and Jeevan Lal have submitted that they were appointed w.e.f. 01.04.1994 and 30.01.1997 and were due for promotion from April, 2007 and February, 2000 and are aggrieved because of their non-consideration for promotion as AFO(H) and DFO(H). The learned counsel for the respondents, therefore, submitted that admittedly the delay in case of Mangal Singh Rawat is of 13 years and 11 years in the case of Jeevan Lal. However, in para no.3 of the OA, the applicants have stated that the present application has been filed within time and there is no delay involved. But the admitted fact is that no application for condonation of delay is on record. The applicant Sansar Chand (OA No.2091/2010) has also impugned the order dated 29.10.2009 whereby his representation dated 06.10.2009 for giving promotion to the next higher grade of AFO(H) w.e.f. 02.04.1997 is rejected. Thus, from the facts it is apparent that all the applicants are claiming promotion from due dates which accrued in the case of applicant Sansar Chand on 02.04.1997, and in cases of applicants Mangal Singh Rawat and Jeevan Lal on 01.04.1997 and 30.01.2000, respectively, and, therefore, their claim for promotion is highly belated and no plausible explanation is coming forth inspiring condonation of the same. The legal position has been clarified in a number of cases by the Honble superior courts including that of the Honble Supreme Court in the case of Union of India versus M.K. Sarkar [2010 (2) SCC 59]. In this case, a large number of earlier cases dealing with the subject of limitation and condonation thereof have been discussed. The Honble Court came heavily upon the Tribunal which allowed the application without having examined the merits and admissibility of the case and directed the appellants to consider his representation. In this regard, para nos. 14, 15 and 16 of the judgment are worth extracting, which read as under:-
14. 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. The ill-effects of such directions have been considered by this Court in C. Jacob vs. Director of Geology and Mining & Anr. - 2009 (10) SCC 115:
"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."
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.
14. Further, the respondents have also relied upon the case of Ramesh Kumar versus Union of India & Others [2003(6) SLR 55]. Here the petitioner was a Safaiwala in the Indian Air Force Unit at Ambala appointed on 29.02.1984. In the year 1989, he proceeded on leave and sought extension of the same on medical grounds. He was warned to desist from continuing with the acts of indiscipline vide letter dated 03.01.1990 and that he would be discharged from service in case of repetition of such acts in future. Ultimately, he was discharged following due process on 03.01.1996. The petitioner submitted a representation-cum-appeal on 06.07.1996 followed by several reminders without response. After four years from the date of discharge, he filed an Application under Section 19 of the Administrative Tribunals Act for quashing the order of discharge. He also applied U/S 21 (2) of the Act for condonation of delay. The Tribunal declined his prayer for condonation of delay and dismissed the OA as time barred. The Honble High Court examined in detail the provisions for limitation and held that the very purpose of enacting special legislation under Article 323-A of the Constitution of India is to deal with service disputes and complaints of employees and aggrieved persons expeditiously. The Parliament also provided for a period of limitation with a view to ensure that such complaints and disputes are adjudicated and resolved within one year with an extended period of limitation of one year and six months for those cases in which the aggrieved may have made appeal/representation and the same might not have been decided by the concerned authority. The Honble High Court was of the considered opinion that if the legislation had returned the period of limitation prescribed for filing civil suits, the tribunal constituted under the Act would have been reduced to the level of an ordinary forum for adjudication of service disputes and the purpose sought to be achieved by enacting the special legislation would have been frustrated. The Honble High Court relied upon a decision of 7-Judge Bench of the Honble Supreme Court of India in the matter of S.S. Rathore versus State of Madhya Pradesh [AIR 1990 SC 10] wherein their Lordship has held as under:-
22. It is proper that the position in such cases should be uniform. Therefore, in every such case until the appeal or representation provided by a law is disposed of, accrual of cause of action for cause of action shall first arise only when the higher authority makes its order on appeal or representation and where such order is not made on the expiry of six months from the date when the appeal was filed or representation was made. Submission of just a memorial or representation to the Head of the establishment shall not be taken into consideration in the matter of fixing limitation. The Honble High Court after having considered number of decisions of the Honble Supreme Court including Dhala Ram versus Union of India [1997) 11 SCC 2001]; Ramesh Chand Sharma versus Udham Singh Kamal [1999 (5) SLR 654 (SC)]; Government of Andhra Pradesh verus Mohd. Ghosh Mohinuddin [2001 (4) RSJ 477]; Y. Ramamohan and Others versus Government of India & Others [2991 (10) SCC 537]; and Director of Settlement and Others versus D. Ram Prakash [2002 (1) SLR 366 (SC)] summarized the position in para 20 of its judgment, which reads as under:-
20. The above analysis of the provisions of the Act and survey of judicial precedents leads to the following conclusion;
(i) The tribunal established under the Act cannot entertain an application filed after expiry of the period of limitation prescribed under Section 2(1) unless the application satisfies it that he had sufficient cause for not filing the application within the prescribed period of limitation.
(ii) The rejection of successive representations cannot justify entertaining of an application filed after expiry of the period of limitation unless the relevant service rules as to the redressal of the grievances provide for such representations.
15. In the matter of Administrator of Union Territory of Daman and Diu and Others versus R.D. Valand [1995 (supp (4) SCC 593], the Honble Supreme Court has held that Tribunal was not justified in entertaining the stale claim of the respondent.
16. In view of the categorical direction given by the Honble Supreme Court in the case Union of India and Others Versus M.K. Sarkar (supra) and considering the fact that the delay in the instant two OAs has been inordinate, we find these OAs hopelessly time barred. We do not even find any justification whatsoever qua the delay so as to proceed with the second of the issues involved. Therefore, we dismiss both the instant OAs being barred by limitation.
(Dr. B.K. Sinha) (Syed Rafat Alam) Member (A) Chairman /naresh/