Central Administrative Tribunal - Allahabad
Shakti Nath Tiwari vs Union Of India on 24 August, 2012
Reserved CENTRAL ADMINISTRATIVE TRIBUNAL, ALLAHABAD BENCH, ALLAHABAD (This the 24th Day of August, 2012 Honble Mr. Sanjeev Kaushik-JM Honble Mr. Shashi Prakash- AM Original Application No. 793 of 2007 (U/S 19, Administrative Tribunal Act, 1985) 1. Shakti Nath Tiwari, aged about 45 years, S/o Shri U.N. Tiwari, R/o Village & Post Pipraich, District- Gorakhpur. 2. Nandu Prasad, aged about 43 years, S/o Shri Kishore Prasad, R/o Village- Harkhapur, Post Pipraich, District Gorakhpur. 3. Ram Bachan, aged about 43 years, S/o Shri Sampat, R/o Village- Sarsopar, Post Basa Gaon, District- Deoria. 4. Vinay Kumar, S/o Pokhai Singh, R/o Village- Ghoghra, Post Botherwar, District- Deoria, Kushinagar. 5. Ram Bharosh, S/o Shri Ram Bali, R/o Village- Bharatpur, Post- Pursia, District- Basti. 6. Prahlad, S/o Radhai, R/o Village- Pipra, Post Lehi, District- Deoria. 7. Madho, S/o Gara Prasad, R/o Village- Gangri, Post- Badarwar, District- Deoria. 8. Kishun, S/o Ram Dayal, R/o Village- Badsar, District- Deoria. 9. Ram Singar, S/o Bharose, R/o Village- Ubhave, Post- Deogram, District- Deoria. 10. Jeut, S/o Samaharoo, R/o Village- Dhongadi, District- Gorakhpur. 11. Paras Nath, S/o Slukraj, R/o Village- Belpur, Post- Jagat Bee, District- Gorakhpur. 12. Ramsurat, S/o Satya Narayan, R/o Village- Sekhue Bagaha, Post- Jagam, Gauri Bazar, District- Deoria. 13. Raj Mangal, S/o Ram Saran, R/o Village- Imdideeha, Post- Bherpatri, District- Gorakhpur. 14. Ram Dayal, S/o Chirajit Ram, R/o Village & Post Sorsar, District- Sewan M.G. 15. Gopal Dhani, S/o Balku, R/o Village- Sarsopar, Post Bhoswal, District- Gorakhpur. 16. Moti, S/o Bedasi, R/o Village- Devkwa, Post- Devgave, District- Deoria. 17. Loknath Yadav, S/o Ram Roop Yadav, R/o Tiladi, Post- Avihasan, District- Ghazipur. 18. Kamleshwar Mishra, S/o Shri Surendra Mishra, R/o Village- Gopalpur, Post- Deerali, District- Sewan. 19. Ramesh Dhar Dubey, S/o Vidya Dhar Dubey, R/o Village- Vichhiya, District- Gorakhpur. 20. Lal Bahadur Yadav, S/o Ram Adhar Yadav, R/o Village- Sarsopal, Post- Bhuswal, District- Gorakhpur. 21. Ramji Yadav, S/o Chiguradi Yadav, R/o Village- Bansigaon, District- Gorakhpur. 22. Shri Ramanand, S/o Shri Ramraj, R/o Village Dev Kuva, Post- Gauri Bazar, District- Deoria, Varanasi Division. 23. Ram Naresh, S/o Neur, R/o Village- Ubhave, Post- Devgaon, District- Deoria, Varanasi Division. 24. Radheyshyam, S/o Shri Ramheet, R/o Village- Lakhnaura, Post- Sugar Mill, District- Basti, Division Lucknow. 25. Lal Chand, S/o Chithor, R/o Village- Sarsopar, Post- Bhasigav, District- Gorakhpur. 26. Baleswar, S/o Triveni, R/o Village- Shripat Harat, Gauri Bazar, District- Deoria. 27. Ramraj, S/o Ram Dhari, R/o Village- Rampur Jagon, Post- Katila, District- Ghazipur. 28. Girdhari, S/o Bhadu, R/o Village- Ubhav, Post- Devgaon, Gauri Bazar, District- Ghazipur. 29. Mahatam, S/o Shri Bansi, R/o Village- Bankatia, Post- Gauri Bazar, District- Deoria. 30. Ramjeet Singh Kushwaha, S/o Bhagawan Ji Kushwaha, R/o Village & Post- Jangipur, District- Ghazipur. 31. Lorik, S/o Ram Sundar, R/o Village & Post- Jagam Tola, District- Deoria. 32. Maksudan, S/o Jai Prakash Mishra, R/o Village- Belia, Post- Chatgarh, District- Gorakhpur. 33. Kedar Yadav, S/o Jadunandan Yadav, R/o Village- Khajuira Karal, Post- Vakunthpur Salempur, District- Deoria. 34. Ram Pyare, S/o Bansraj, R/o Village Panan Kunda, District- Deoria. 35. Shri Nath, S/o Ram Murat, R/o Village- Musrahawa, R/o Village- Sekhui, Post- Gauri Bazar, District- Deoria. 36. Ayodya, S/o Ghurahu, R/o Village- Sarsopar, Post- Basgaon, District- Gorakhpur. 37. S.P. Singh, S/o Surya Narayan Singh, R/o Village & Post- Rituwafor, District- Gorakhpur. 38. Subhash Chandra, S/o Teerath, R/o Village- Sahjanawa, District- Gorakhpur. 39. Ramhit, S/o Roop Narayan Yadav, R/o Village- Bergarhwa, Post- Moharipur, District- Gorakhpur. 40. Ram Agya Prasad, S/o Jagdev, R/o Village- Rituwakhor, District- Gorakhpur. 41. Hari Banarasi, S/o Hariganga, R/o Village- Dhangari, Post- Chaumukha, District- Gorakhpur. 42. Mithai Lal, S/o Vindhyanchal , R/o Village & Post Neguiya, District- Maharajganj. 43. Ram Murat, S/o Sahati, R/o Village- Hapur Madari, Post- Belasi, District- Sant Kabir Nagar. 44. Bihari, S/o Kanhai, R/o Village Pakhuwapar, Post- Khalilabad, District- Sant Kabir Nagar. 45. Shyam Dev Sharma, S/o Ferai, R/o Village- Supri Khurd, Post- Udhavpur, District- Deoria. 46. Ram Bihari, S/o Teeju Das, R/o Village & Post- Godahi, District- Sant Kabir Nagar. 47. Godhan, S/o Ram Rati, R/o Village- Khairatiya, Gauri Bazar, District- Deoria. 48. Heera, S/o Jangsar, R/o Village- Bangla, Post- New Bazar, District- Gorakhpur. 49. Lal Bahadur, S/o Sukhdev, R/o Village- Sarsopal, Post- Bhusawal, District- Gorakhpur. 50. Ramayaj, S/o Ram Nath, R/o Village- Ulkhan Sekhai, Usrahwan, Post- Jogam, District- Deoria. 51. Kanhai, S/o Bhagauti, R/o Village & Post- Neveyo, District- Maharjganj. 52. Lal Chandra, S/o Bhullar, R/o Village- Piparaname, Post- Pandepur, District- Gorakhpur. 53. Ram Pyare, S/o Balak, R/o Village & Post- Manhari, District- Deoria. 54. Hari Narayan Mishra, S/o Late Shri Ghanshyam Mishra, Village- Suvikhar, Post- Bairona, District- Deoria (U.P). 55. Sukaj Gupta, S/o Shri Ramprasad, R/o Village- Pemli, Post- Somli, District- Kushinagar (U.P.). 56. Rajesh, S/o Buddhu Chauhan, R/o Village- Semra No. 1, Post- Charganwan, District- Gorakhpur (U.P). 57. Kanhaiya Yadav, S/o Shri Ramdhari Yadav, R/o Village- Saikhui, Post- Jogam, District- Deoria (U.P). 58. Balai, S/o Changur, R/o Village- Khirkiyan, Post- Khairatiya, District- Deoria (U.P). 59. Hardev, S/o Ram Kamal Singh, R/o Village- Bhagwanpur Bujurg, Post- Viaji Kap, District- Deoria (Kushinagar). 60. Ram Ashish, S/o Dev Narayan, R/o Village & Post- Pipra, Madangopal, District- Deoria (U.P). 61. Dashrath Singh Yadav, S/o Sumer Singh Yadav, R/o Village- Gadhi Naseerpur, Post- Roohipur, District- Ghazipur (U.P). 62. Sarju, S/o Gaya Singh Yadav, R/o Village- Naseerpur Dadi, Post- Roohipur, District- Ghazipur (U.P). 63. Ramkishun, S/o Shri Bhgelu, R/o Village- Bishunpura, Post- Pandeypur, District- Ghazipur (U.P). 64. Dayashankar Yadav, S/o Shri Ramroop Yadav, R/o Village- Tiladi, Post- Abhihasan, District- Ghazipur (U.P). 65. Kanhai, S/o Balli, R/o Village- Naseerpur Dadi, Post- Roohipur, District- Ghazipur (U.P.). 66. Rajendra, S/o Sitaram, R/o Village- Panankunda, Post- Gauri Bazar, District- Deoria (U.P). 67. Yogendra Yadav, S/o Gharbharan Yadav, R/o Village Maihar, Post- Sikhri, District- Ghazipur (U.P.). 68. Kedar, S/o Yadunandan, R/o Village- Barari, Post- Baitalpur, District- Deoria (U.P). 69. Ravindra Yadav, S/o Gharbharan Yadav, R/o Village Maihar, Post- Sikhri, District- Ghazipur (U.P.). 70. Suresh Sharma, S/o Shri Indradev Sharma, R/o village Tilari, post- Abhihasan, District- Ghazipur (U.P). 71. Rajendra S/o Shri Ramdhani, R/o Village- Salikpur, Post- Sauri, District- Ghazipur (U.P). 72. Ramnokar Singh S/o Shri Parshuram Singh, R/o Village & Post Chapiyan, District- Gorakhpur (U.P). 73. Sibban, S/o Shri Raj Kumar, R/o Village- Bhagwanpur Bujurg, Post- Vijai Kap, District- Deoria (Kushinagar). 74. Narsingh, S/o Shri Jagropan, R/o Village- Bhagwanpur Bujurg, Post Vijai Kap, District- Deoria (kushinagar). Applicants V E R S U S 1. Union of India, through General Manager, N.E. Railway, Gorakhpur. 2. Divisional Railway Manager, N.E. Railway, Gorakhpur. 3. Divisional Railway Manager, N.E. Railway, Lucknow. 4. Permanent Way Inspector (PWI) (Construction), N.E. Railway, Gorakhpur. 5. Permanent Way Inspector (PWI) (Construction), N.E. Railway, Varanasi. ..Respondents WITH Original Application No. 111 of 2008 (U/S 19, Administrative Tribunal Act, 1985) 1. Khoob Lal, S/o Chhedi, R/o Village Bhagta, Post- Khorwar, District - Gorakhpur. 2. Anand Prakash, S/o Late Binda Prasad, R/o Mohalla Bichhiya Camp, Jangal Tulsi Ram, Post PAC Camp, Bichhiya, District- Gorakhpur. 3. Brihaspati, S/o Badhu, R/o Village Sonkatiya, Post- Badahara, Baraipar, District- Maharajganj. 4. Raja Ram, S/o Nageshwar, R/o Village- Jangal Tulsiram, Koirana Tola, Bichhiya, Post- Bichhiya Camp, PAC, District- Gorakhpur. 5. Lauhar Yadav, S/o Basudev Yadav, R/o Village Belwan Raipur, Post- Gulhariya Bazar, District- Gorakhpur. 6. Shyam Bihari, S/o Sita Ram, R/o Village- Saranda, Post- Naiyapar, Via Pipraich, District- Gorakhpur. 7. Virendra Pratap, S/o Ram Gati, R/o Village- Tandwa Kalan, Post- Randauli, District- Gorakhpur. 8. Laxman Gupta, S/o Kashi Gupta, R/o Village- Jagdishpur, Post- Pindra, via Sukrauli, District- Kushinagar. 9. Hari Nath, S/o Dev Saran, R/o Village- Jagdishpur, Post- Pindra, via Sukrauli, District- Kushinagar. 10. Rama Kant, S/o Ram Rati, R/o Village- Jagdishpur, Post- Pindra via Sukrauli, District- Kushinagar. 11. Rama Nand, S/o Ram Rati, R/o Village- Jagdishpur, Post- Pindra via Sukrauli, District- Kushinagar. 12. Dwarika Prasad, S/o Ram Bishun, R/o Village- Jagdishpur, Post- Pindra via Sukrauli, District- Kushinagar. 13. Ram Kishun Yadav, S/o Hari Yadav, R/o Village- Rachavapar, Post- Kushmi Bazar, District- Gorakhpur. 14. Mahesh Prasad, S/o Ram Das, R/o Village- Girdharganj, Post- Kuraghat, District- Gorakhpur. 15. Om Prakash, S/o Bishwanath, R/o Village- Girdharganj, Post- Kuraghat, District- Gorakhpur. 16. Bihar Lal Gupta, S/o Swami Nath, R/o Village- Girdharganj, Post- Kuraghat, District- Gorakhpur. 17. Rama, S/o D. Yadav, R/o Village- Banrahi, Post- Payasi, District- Deoria. 18. Bindeshwri Prasad, S/o Dharmraj Gupta, R/o Village- Chhote Kajipur, Post- Miya Bazar, District- Gorakhpur. 19. Basant, S/o Khedan, R/o Village & Post- Hemdhapur, Via Pipraich, District- Gorakhpur. 20. Nizamuddin, S/o Gulab, R/o Village- Siktaur, Post- Khorawar, District- Gorakhpur. 21. Shesh Narain, S/o Sukhi Ram, R/o Village- Khajwan, Post- Pipraich, District- Gorakhpur. 22. Jagat Narain, S/o Sita Ram, R/o Village- Raji Jagdishpur, Post Bishwanathpur, District- Gorakhpur. 23. Ram Agya, S/o Sarju, R/o Village- Shivpur, Post- Kusmi Bazar, District- Gorakhpur. 24. Ram Prakash Verma, S/o Uma Shankar Verma, R/o Village- Shivpur, Post- Kusmi Bazar, District- Gorakhpur. 25. Rama Shanker, S/o Binda, R/o Village- Bichhiya, Jangal, Tulasi Ram, Post- Bichhiya Camp, District- Gorakhpur. 26. Raghurai Yadav, S/o Shyam Yadav, R/o Mohalla & Post- Daudpur, District- Gorakhpur. 27. Madan Lal, S/o Vishram , Mohalla- Navipur, Post- Parsuram Pur, via Pipraich, District- Gorakhpur. Applicants V E R S U S 1. Union of India, through General Manager, N.E. Railway, Gorakhpur. 2. Divisional Railway Manager, N.E. Railway, Varanasi. 3. Divisional Railway Manager, N.E. Railway, Lucknow. ..Respondents Advocates for the applicants:- Shri Shyaml Narain Shri Ashish Srivastava. Advocate for the Respondents:- Shri K.P. Singh Shri Anil Kumar Shri P.N. Rai. O R D E R
DELIVERED BY:-
HONBLE MR. SANJEEV KAUSHIK, (MEMBER-J) Since both the O.As are on identical question of law and the relief/s sought by the applicants are similar, merely having different dates in entry in service and place of working would not in any way disturb the ultimate finding to be given by this Tribunal on legal question involved herein. Therefore, both the O.As have been heard together and decided by a common order. For ready reference the facts of the O.A No. 793/2007 are taken.
2. By means of present O.A. filed under Section 19 of Administrative Tribunals Act 1985, the applicants seek quashing of order dated 03.04.2007 passed by the Chief Personnel Officer, Gorakhpur and the order dated 16.04.2010 with further direction from this Tribunal to direct the respondents to appoint the applicants in Group D post and their services may be regularized from the date their juniors have been regularized in accordance with the Live Casual Labour Register.
3. The brief facts of the case, which are necessary for adjudication, are that the applicants worked with the respondents as casual labourer during the period from 1974 to 1975 and some of them have worked upto 1988. In terms of the Railway Boards decision taken pursuant to the decision of Honble Supreme Court, the names of all the applicants, who are ex-casual labourer, were included in the Live Casual Labourer Register in the year 1994. Though, after 1988 all the applicants are out of service yet their names remain in the Live Casual Labour Register and they are waiting for their turn for absorption in terms of Railway Boards decision and the scheme approved in the judgment of the Honble Supreme Court in the case of Indra Pal Yadav. In the year 1993, the respondents regularized some of the ex-casual labourers, who were re-engaged between 28.05.1993 to 21.10.1994. Not only this, even fresh casual labourers were also engaged. However, by order dated 23.04.2007 (Annexure A-7) the representations of the applicants were rejected. Against the impugned order, the applicants preferred instant original application. During the pendency of the O.A, respondents conducted a screening test in the year 2008. The applicants appeared in the aforesaid screening test and were declared unfit. By way of the amendment the applicants have also impugned the order dated 16.04.2010.
4. Pursuant to the notice respondents appeared and contested the claim of the applicants by filing a detailed Counter Reply. In the Counter Reply the respondents have raised preliminary objection that the instant original application is highly time barred. It is the specific stand of the respondents that the applicants worked with the respondents from 1974-75 and some of them worked till 1988. As alleged by the applicants, if the services of persons junior to them have been regularized in the year 1993 and they become aggrieved by this action of the respondents, then the cause of action arose in their favour in the year 1993 and again on 24.10.1994, whereas, the applicants preferred the present Original Application only in the year 2007 i.e. after more than 13 years of the cause of action. Given these facts, the O.A deserves to be dismissed on the ground of delay and laches. It is also submitted that any exercise for absorption is to be carried out in terms of Railway Boards Letter No. E (NG) II/99/CL/19 dated 28.02.2001, which prescribes age limit. Since the applicants did not fall within the prescribed age limit, therefore, their candidature was rejected on the ground of they being over age. Averment to this effect has been made in para 2.xii of Counter Reply, which reads as under: -
xii. .... in para 2 of the aforesaid letter dated 28.02.2001, Rly. Board have issued instructions in regard to age relaxation applicable to ex-casual Labour on Live/Supplementary Live Casual Labour Register which may be read as under: -
Further in terms of Ministry of Railways letter No. E(NG) II/91/CI/71 dated 25.07.91, age relaxation to the extent of service put in as Casual Labour/Substitute subject to upper age limit of 40 years in case of General candidates and 45 years in the case of SC/ST candidates not being exceeded, may also be granted in the case of Casual Labour and Substitutes for recruitment against Group C and Group D posts. The OBC candidates will also get age relaxation up to the upper age limit of 43 years, as has been granted to the serving OBC employees vide Rly. Boards Letter No. E (NG)II/95/pmI/1 dated 1.6.1999. Vide letter No. E(NG) 11/99/CL/19 dated 20.09.2001 (N. Rly. PS No. 12329/2001), Rly. Board further considered the matter of age relaxation to Ex-Casual Labours born on Live/Supplementary Live Casual Labour Registers and issued the following instruction: -
Sub: ABSORPTION IN THE RAILWAYS OF EX-CASUAL LABOUR BORNE ON THE LIVE/SUPPLEMENTARY LIVE CASUAL LABOUR REGISTER.
1. In terms of Para 6 of this Ministrys letter dated 28.02.2001, relaxation of upper age for absorption of Ex-Casual Labour borne on the Live/Supplementary Live Casual Labour Registers has been allowed up to 45 years in the case of SC/ST candidates, provided that they have been put in minimum three years service in continuous spell in broken spells as per instructions contained in this Ministrys Letter No. E(NG)II/91/CL/71 dated 25.7.91, read with their letter No. E (NG) 1/95/PM-5/1 dated 11.1.1999.
2. The question of removal of minimum three years service conditions (continuous or broken) for the purpose of grant of age relaxation to Ex-casual Lebour as mentioned above has been taken up in the PNM-NFIR vide agenda Item No. 41/2001. AIRF have also taken up the question of enhancing the upper age limit. The matter has carefully been considered by this Ministry. It has been decided that in partial modification of the instructions quoted above, the Ex-Casual Labour who had put in minimum 120 days casual service, where continuous or in broken spells and were initially engaged as Casual Labour within the prescribed age limit of 28 years for general candidates and 33 years for SC/ST candidates , would be given age relaxation up to upper age limit 40 years in the case of General candidates, 43 years in the case of OBC and 45 years in the case of SC/ST candidates. ........
3. It has also been decided that the Ex-Casual Labours, who become eligible as a result of above modification will be considered for absorption with prospective effects.
5. We have heard learned counsel for respective parties and perused the pleadings on record.
6. Shri Shyamal Narain, learned counsel for the applicants built his case to relying primarily on the judgment in the case of Indra Pal Yadav (Supra) submitted that once the scheme framed by the respondents had been approved by the Honble Supreme Court, then the respondents cannot alter the scheme without the approval of Honble Supreme Court. The respondents cannot be allowed to read what has not been stated therein. In terms of the Scheme, all the applicants, whose names are in Live Casual Labourer Register, are to be absorbed first and if, thereafter any vacancy are left vacant, then the candidates from open market can be appointed. He argued that the action of the respondents in rejecting the cases of the applicants on the ground of over age is against the spirit of the judgment in the case of Indra Pal Yadav (Supra), because no where it is held that the claim of the applicants can be rejected on the ground of overage over age. He submitted that as per Scheme, all the applicants irrespective of age limit are to be absorbed. The Scheme does not talk about age limit and only mandates that Casual Labourers be absorbed from Live Casual Labourer Register. He further argued that for the fault of the respondents, the applicants cannot be penalized as they are waiting for absorption since the judgment of Apex Court in the case of Indra Pal Yadav (Supra).
7. Shri K.P. Singh, who represented the respondents, raised his contention including preliminary objection of delay and laches. He argued that the present O.A deserves to be dismissed only on the ground of delay and laches as by way of the present original application, the applicants have challenged the action of the respondents whereby regularizing the juniors, as alleged by the applicants, in the year 1993. Therefore, the cause of action arose in their favour in the year 1993 and again on 24.10.1994 whereas, the applicants preferred the present original application in the year 2007 i.e. after more than 13 years. Hence as per Section 21 of the Administrative Tribunals Act 1985, the O.A be dismissed being time barred. He placed reliance upon judgment of Full Bench of this Tribunal in the case of Mahabir and Ors. Vs. Union of India & Ors reported in A.T. Full Bench Judgments 1997-2001 page 99.
8. On merits, he argued that the Scheme, which was approved by the Honble Supreme Court in the case of Indra Pal Yadav (Supra) has to be read with the provisions contained in I.R.E.M. Therefore, the case of applicants being over age on the date of consideration cannot be taken into account as the scheme approved by the Honble Apex Court contained provisions relating mainly to the eligibility criteria and phasing of its implementation. Hence, under the circumstances it would not be unreasonable to infer that the points on which the approved scheme remained silent had necessarily to be governed by the extant provisions of Rule 179 of IREM. The counsel submitted that nowhere in the approved scheme, it has been remotely suggested that the respondent railways have to overlook the prescribed provisions relating to absorption of the casual labour. Concluding his argument, he stated that no Public Interest Litigation is maintainable before this Tribunal.
9. We have considered the rival submissions and gone through the record with the able assistance of learned counsel for the parties.
10. In the first instance we intend to deal with the preliminary objection raised by the respondents relating to highly time barred nature of O.A. The Scheme of the Railways as approved by the Apex Court in Indra Pal Yadavs case was acted upon by the respondents and the names of all the applicants in the Live Casual Labour Register were duly entered. From the records, it is seen that the applicants at no point of time approached the Court of law for redressal of their grievance seeking direction to the respondents to absorb them till they filed the present OA before this Tribunal in the year 2007. This O.A. has been filed after a lapse of approximately 13 years from the date their juniors were allegedly absorbed/regularized in 1993. As per Section 21 of Administrative Tribunals Act 1985 an Original Application has to be filed within one year from the date of cause of action or six months from the date of filling representation. It is therefore apparent that after Indra Pal Yadavs case (supra) the applicants displayed a total negligence, either deliberate or gross in asserting their rights in the matter and, hence contributed in defeating their rights. The inordinate delay in approaching this Tribunal for redressal of their grievances has been left unexplained. It is expected that the aggrieved parties would pursue their rights and remedies and claim their enforcement before the appropriate forum well in time and not sleep over it. Any delay particularly of an extended period, in effect negates the right of the concerned person and it may not be unreasonable to presume that in such cases he has abandoned his claim. Delay itself deprives a person of his remedy available in law. A person, who looses his remedy by lapse of time loses his right as well. On this issue, our view finds support from a judgment of Honble Supreme Court in the case of Capt. Harish Uppal v. Union of India & Ors. (JT 1994(3) S.C. 126). In this case the Honble Supreme Court has clearly held that if the parties choose to sleep over their rights and remedies for an inordinately long time, the court may well choose to decline to interfere . Therefore, in view of this position and the provisions of Section 21(3) of CAT Act, we are of the considered view that the O.A. plainly suffers from the infirmity of delay and laches and therefore deserves to the dismissed on the ground of being highly time barred.
11. On the issue of delay and laches, the Full Bench of the Tribunal has also considered the question in respect of limitation in such a situation in the case of Mahabir and Ors (supra). To a specific reference made in this connection, the Full Bench held the view which is consistent with the above position. The relevant reference and the answer of the Tribunal in the aforesaid order is reproduced below:
3.
(a) whether the claim of a casual labourer who has worked prior to 1.1.1981 or thereafter with the respondents i.e. Railway Administration has a continuous cause of action to approach the Tribunal at any time, well after the period of limitation prescribed under Section 21 of the Administrative Tribunals Act, 1985, to get a direction to have his name placed on the Live Casual Labourer Register, in other words, whether the provisions of the relevant Railway Board circulars for placing his name in the LCL Register gives him a continuous cause of action
18. In the light of the foregoing discussions we answer the aforesaid issue (a) as under:-
Provisions of the relevant Railway Boards circular dated 25.4.1986 followed by the circular dated 28.8.1987 issued by General Manager, Northern Railway for placing the names of casual labour on the live casual labour register do not give rise to a continuous cause of action and hence the provisions of limitation contained in Section 21 of the Administrative Tribunals Act, 1985 would apply.
12. Not only this, Section 21 of the Administrative Tribunal Act 1985 came up for consideration before the Apex Court in following cases:-
a. S.S. Rathore v. State of M.P. reported in 1990 SCC (L&S) 50 b. Administrator of Union Territory of Daman and Diu and others Vs. R.D. Valand 1995 Supp(4) Supreme Court Cases 593 c. Union of India & Ors. v. M.K. Sarkar reported in (2010)2 Supreme Court Cases 59 d. Union of India & Ors. v. A. Durairaj reported in JT 2011 (3) SC 254
13. In S.S. Rathores Case Honble Supreme Court held that successive representations cannot extend the period of limitation. The observations of Para 20 and 21 of the said judgments is reproduced herein under : -
20. We are of the view that the cause of action shall 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 when cause of action shall be taken to have first arisen. We, however, make it clear that this principle may not be applicable when the remedy availed of has not been provided by law. Repeated unsuccessful representations not provided by law are not governed by this principle.
21. It is appropriate to notice the provision regarding limitation under Section 21 of the Administrative Tribunals Ac. Sub Section (1) has prescribed a period of one year for making of the application and power of condonation of delay of a total period of six months has been vested under sub-section (3). The civil courtss jurisdiction has been taken away by the Act and, therefore, as far as government servants are concerned, Article 58 may not be invocable in view of the special limitation. Yet, suits outside the purview of the Administrative Tribunals Act shall continue to be governed by Article 58.
In the case of Administrator of Union Territory of Daman and Diu and others (Supra) the Honble Supreme Court has held as under : -
.......... The Tribunal fell into patent error in brushing aside the question of limitation by observing that the respondent has been making representation from time to time and as such the limitation would not come in his way.
14. Recently also the Honble Apex Court has reiterated its earlier view on this matter in the case of Union of India & Ors. v. A. Durairaj reported in JT 2011 (3) SC 254 and held as under:-
Re: Question(i)
12. Section 21 of the Administrative Tribunals Act, 1985 prescribes the limitation for approaching the Tribunal in this case the medical examination of the Respondent and the non-promotion as ad hoc ASTE were in the year 1976. The Respondent accepted the diagnosis that he was colour blind and did not make any grievance in regard to his non-promotion. On the other hand, he attempted to get treatment or correction contact tenses from USA (to aid the colour blind to distinguish colours correctly). On account of the non challenge, the issue relating to his non-selection in 1976 attained finality and the same issue could not have been reopened in the year 1999-2000, on the ground that medical tests conducted in 1998 and 2000 showed him to be not colour blind.
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 for 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 a great disadvantage of 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 (JT 2009 (15) SC 70: 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. Xxxxx 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 cannot be considered as furnishing a fresh cause of action for reviewing 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 extended 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 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 legal position and effect. 14.1 We are therefore of the view that the High Court ought to have affirmed the order of the Tribunal dismissing the application of the Respondent for retrospective promotion from 1976, on the ground of delay and laches.
(emphasis added)
15. Finally, we would like to refer to the order of Honble Apex Court dated 7.7.2010 passed in Special Leave Appeal (Civil) No.31085 of 2009 (Tahir Ali v. Union of India & Ors.) which has dealt with a case having almost similar nature of issue and which has been dismissed by the Apex Court on the ground of inordinate delay in seeking relief by the applicants. The order passed in above stated S.L.P. reads as under:-
It is true that after his removal from service as a casual employee the petitioner was not taken back in service in pursuance of the Railway Board Scheme No.R.B.E. No.42-2001, dated 28.2.2001 even though a person junior to him, namely, Iqbal Ahmed was absorbed in regular service. But, there is another aspect of the matter that dis-entitles the petitioner from any relief from this Court. Undeniably, the cause of action arose in the year 2001, but the petitioner approached the Central Administrative Tribunal as late as in the year 2008.
There is no explanation for this inordinate delay of seven years. The Tribunal and the High Court have denied relief to the petitioner, primarily, on the ground of the aforesaid inordinate delay.
We do not see any justification to interfere in this matter. The special leave petition is, accordingly, dismissed.
16. We feel that in this case, it would be appropriate to clarify the ambit and scope of the writ of mandamus. This can best be done by relying on the well known classic on the subject, namely, The Law of Extraordinary Legal remedies (Thomas Law Book Company, St. Louis, Mo.) written by Forrest G. Ferris. In Chapter XVI of the Book relating to pleading practice and procedure, the Learned Author has observed as follows:-
Some cases hold that the right to mandamus, if not brought within a reasonable time, is barred on the theory of analogy to statutes of limitations in civil cases, or because it would be prejudicial to respondent; other authorities on the ground that it shows acquiescence and an abandonment of the right to complain; others that laches is a fact or circumstances the court may consider in exercising its discretion respecting the issuance of writ. All seem to agree, regardless of the theory, that if the proceeding is not brought within a reasonable time after the alleged default or neglect of duty, and such delay is not satisfactorily explained, the court may, in the exercise of its discretion, refuse its issuance. This is particularly so when to grant the writ, after such delay, would work a prejudice to the party to be affected thereby.
Mandamus is generally regarded as not embraced within statutes of limitations applicable to ordinary actions, but as subject to the equitable doctrine of laches. It seems well settled that the reason mandamus will not be issued unless asked for within a reasonable time after the wrong happened of which relator complains, is not because of any statute of limitations, but because courts have discretion in issuing the writ, and in the exercise of that discretion will refuse mandamus if the claim has been allowed to become stale without any excuse shown for the delay, and because the relator has apparently acquiesced in the wrong complained of. In cases involving public interest or public policy, as where mandamus was brought by a public officer for reinstatement, it is of first importance that the aggrieved party act promptly, to the end that if he prevails the government may be disturbed as little as possible, and, as in this case, so that two salaries will not be paid for a single service. In accordance with the accepted rule that mandamus is not demandable as a mater of right, the court may, and does, generally rely on its own discretion in determining whether the writ should issue. Having regard to the above stated position, it is clear that the issue of delay and laches has to be given primary importance and due weightage before issuance of writ of mandamus by any court.
17. It is further been seen from the pleadings that the Respondents undertook repeated exercises for absorption of the ex-casual labour as per their seniority. The first such exercise was undertaken in the year 1992 and subsequently 1996 as well as 2004. In fact with a view to offer opportunity to the ex casual labour on the Live Register for their absorption, as per the averments of the respondents, they formulated a scheme in September, 1996. Under this scheme 1357 casual labour, who were on the roll, were absorbed against group D post in the construction organization. Having regard to this position, it is easy to see that the applicants singularly failed to avail the opportunities offered to them by the respondents and, therefore were evidently negligent in claiming their rights within a reasonable time.
18. In view of the facts of the case and ratio of the above judgments, we are satisfied that the applicant have failed to provide plausible reason on the question of delay. Accordingly, the O.A. is dismissed on the ground of delay and laches. No costs.
(Shashi Prakash) (Sanjeev Kaushik)
Member-A Member-J
Anand/Sushil
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