Ishwar Dass vs M/O Defence on 15 March, 2019

[Cites 10, Cited by 0]

Central Administrative Tribunal - Chandigarh

Ishwar Dass vs M/O Defence on 15 March, 2019

1. The applicant has approached this Tribunal under section 19 of the Administrative Tribunal Act, 1985, seeking quashing of the order dated 5.6.2003, as allegedly conveyed vide letter dated 22.4.2017 (Annexure A-10), vide which his claim for appointment on compassionate ground has been rejected, and to command the respondents to offer him appointment in accordance with the policy in place etc.

2. The facts of the case, which led to filing of the instant Original Application (O.A), are that the father of applicant died in harness on 20.7.1996, leaving behind a family, consisting of five family members, which was totally dependent upon deceased employee. An application for appointment of applicant on compassionate grounds was submitted on 9.6.1997 with all the supporting documents about financial status of the family. However, vide letter dated 1.6.2002, the claim of the applicant was rejected on account of receipt of financial benefits and lack of vacancy under 5% quota and that more deserving candidates were available. Copy of this order is not available with the applicant. The applicant kept on contacting the respondents but to no avail and then filed application dated 22.7.2016 under R.T.I Act, 2005, about status of his case in response to which he has been supplied with speaking order dated 5.6.2003, vide letter dated 22.4.2017, rejecting the claim of the applicant, hence the O.A.

3. The O.A. has been resisted by the respondents by filing a written statement. They have taken a preliminary objection of limitation and on merit, it is submitted that case of applicant was rejected vide letter dated 1.6.2002 (Annexure A-4) for the first time. It was rejected after second consideration on 26.8.2002 (Annexure A-5) and 3rd time vide 3 (OA No.063/00596/2018 letter dated 5.6.2003 (Annexure A-6). In short, they submit that applicant could not be offered appointment due to his low merit, non - availability of sufficient vacancies within 5% quota and financial criteria of family being better than other applicants.

4. We have heard the learned counsel for the parties at length and examined the material on file.

5. The learned counsel for the applicant raised the sole point that the respondents have rejected the claim of the applicant by taking into consideration the retiral dues which is not permissible and as such claim of applicant merits acceptance. For this reliance is placed upon decision of Hon'ble Apex Court in the case of CANARA BANK AND ANOTHER VS. MAHESH KUMAR, (2015) 7 SCC 412. In this case it was held that claim for compassionate appointment cannot be denied on the ground of receipt of retiral dues. Similar, view has been taken by Hon'ble H.P. High Court in CWP No. 7714 of 2014 (ANKUR KUMAR VS. STATE OF H.P. ETC.) decided on 24.10.2014. This is resisted by learned counsel for the respondents on the ground that the retiral dues was not the sole, but one of the criteria out of number of parameters to reject the claim of the applicant.

6. We have considered the submissions minutely.

7. It is not in dispute that the claim of the applicant was considered and rejected by the authorities in 2002 and 2003, three times and the last order passed in 2003, obtained through RTI Act, in 2017, is sought to be challenged by filing an O.A. in 2018. Apparently, the pleadings suggest that the applicant was well aware about rejection of his case in 2002 itself but he chose to sit idle over the issue for all these about 16 years and has woken up from deep slumber only in 2018, that too without filing any M. A. for condonation of delay in filing the O.A. The 4 (OA No.063/00596/2018 RTI Reply given in 2017, cannot extend period of limitation for challenging an order passed in 2003, which is definitely barred by limitation, delay and laches.

8. An identical question came to be decided by a three Judges Bench of Hon'ble Apex Court in the case of BHOOP SINGH V. UNION OF INDIA ETC., (1992) 3 SCC 136, wherein it was ruled as under:-

"Inordinate and unexplained delay or laches is by itself a ground to refuse relief to the petitioner, irrespective of the merit of his claim. If a person entitled to a relief chooses to remain silent for long, he thereby gives rise to a reasonable belief in the mind of others that he is not interested in claiming that relief. Others are then justified in acting on that belief. This is more so in service matters where vacancies are required to be filled promptly. A person cannot be permitted to challenge the termination of his service after a period of twenty-two years, without any cogent explanation for the inordinate delay, merely because others similarly dismissed had been reinstated as a result of their earlier petitions being allowed. Accepting the petitioner's contention would upset the entire service jurisprudence."

9. Likewise, in the case of UNION OF INDIA & OTHERS VS. M.K.SARKAR 2009 AIR (SCW) 761, it was ruled that limitation has to be counted from the date of original cause of action and belated claims should not be entertained. It was held 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 5 (OA No.063/00596/2018 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 cannot 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."

10. Again in the case of D.C.S. NEGI VS. U.O.I. & OTHERs, SLP (Civil) No. 7956 of 2011 CC No. 3709/2011 decided on 11.3.2011, it has been held as under:

"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 6 (OA No.063/00596/2018 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)."

11. Thus, this Original Application is held to be barred by limitation, delay and laches and deserves to be dismissed accordingly.

12. In any case, to satisfy our judicial conscience, we have considered the ground raised by applicant and denied by respondents about rejecting of claim of applicant only on the ground of receipt of retiral dues. The death had taken place in 1996 and the family was able to pull on for all these years and claim of applicant was rejected thrice, lastly in 2003, on the ground that due to more deserving cases and few vacancies available his case was rejected for appointment on compassionate ground. So, the receipt of amount of retiral dues was not the only ground to reject the claim of the applicant but basic ground was that vacancies were less and more deserving candidates were offered appointment on compassionate grounds. Thus, one cannot find fault with the impugned order, at all, from any angle.

13. In the wake of above discussion, this O.A. turns out to be devoid of any merit and is rejected. The parties are, however, left to bear their own costs.

(P. GOPINATH)                                          (SANJEEV KAUSHIK)
  MEMBER (A)                                                MEMBER (J)


PLACE: CHANDIGARH.
DATED: 15.03.2019

HC*

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Central Administrative Tribunal - Chandigarh