Central Administrative Tribunal - Allahabad
Suresh Kumar Son Of Shri Rikhi Ram vs Union Of India on 31 May, 2016
Reserved
CENTRAL ADMINISTRATIVE TRIBUNAL
ALLAHABAD BENCH
CIRCUIT SITTING AT NAINITAL.
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Original Application No. 972 of 2013
Allahabad this the 31st day of May, 2016
Honble Ms. Jasmine Ahmed, Member- J
Honble Mr. O.P.S. Malik, Member- A
Suresh Kumar Son of Shri Rikhi Ram, R/o House No. 663/4, New M.E.S. Colony, Roorki Cantt near Lal Kurti Road, District Haridwar, Uttarakhand, (M.E.S. No. 448548, Electrician H.S.).
Applicant
By Advocate: Mr. N.P. Singh
Vs.
1. Union of India, through Defence Secretary, Ministry of Defnece, Government of India, South Block, New Delhi.
2. Engineer-in-Chief, Army Headquarter, Rajaji Marg, Kashmir House, New Delhi.
3. Commander Works Engineers (Hills), Military Engineering Service, Mall Road, Dehradun Cantt.
4. The Chief Engineer, Bareilly Zone, Bareilly.
5. Commander Works Engineer, Dehradun Cantt., Dehradun.
6. Office of Garrison Engineer (MES) Roorkee Cantt., Haridwar.
7. Chief Engineer, Hills Command, (MES), Dehradun Cantt.
8. Suraj Pal, M.C.M. (505118-Sl. No. 2).
9. Lalit Prasad, H.S. (470065-Sl. No. 7)
10. Tej Singh, H.S. (448072 Sl. No. 9).
Posted at Office of G.E. (MES) Roorkee Cantt., Haridwar.
Respondents
By Advocate: Mr. Anil Kant Tripathi
O R D E R
Delivered by Honble Ms. Jasmine Ahmed, Member-J This O.A. has been filed by the applicant for the following relief(s): -
To issue a order or direction in the nature of certiorari quashing the impugned order dated 31.12.2012 (Annexure No. A-13 of the O.A.) passed by the Commander Work Engineers Hills, Military Engineering Service Dehradun/ respondent no. 3.
(B) To issue an order or direction in the nature of mandamus directing the respondent no. 2 to suspend the order dated 31.12.2012 passed by the respondent no. 3.
(C) To issue an order or direction in the nature of mandamus commanding the respondents to grant the promotion of the applicant in pursuance of the policy dated 06.06.1986 since the date his immediate juniors has been promoted with all consequential benefits.
(D) To issue an order or direction which this Honble Tribunal may deem fit and proper for the facts and circumstances.
(E) To award cost to the applicant.
2. The applicant herein is praying for a direction to the respondents to grant him promotion in pursuance of the policy dated 06.06.1986.
3. The facts of the case, in brief, are that the applicant was appointed as SBA in MES on 30.12.1981 and joined Roorkee under the control of Garrison Engineer, Roorkee, Haridwar. Counsel for the applicant states that the Army Headquarter issued a policy vide letter No. 90270/88/TGS/EIC (III) dated 06.06.1986 on the basis of which a review D.P.C. was conducted between July 1988 and March 1999 but, the name of applicant did not include in the said review D.P.C. As per the policy of 06.06.1986, the respondents started implementation of three grade structured promotion for the Electrician vide letter dated 31.03.1999. It is the contention of Counsel for the applicant that the respondents have promoted his juniors to the post of Electrician H.S.-II but ignored his case. He also stated that the respondent No. 8 has been shown to be promoted as Electrician H.S. II w.e.f. 15.10.1984 and the respondents Nos. 9 and 10 have been shown to be promoted as Electrician H.S.-II w.e.f. 15.10.1984 and 24.06.1987 respectively. All the aforesaid three persons are junior to the applicant. Counsel for the applicant also contended that this entire fact came to his knowledge only in the year 2007 and with the other similarly situated aggrieved persons, the applicant preferred a representation dated 06.01.2007 which was forwarded on 03.02.2007 to the competent authority by respondent No. 3. After receiving the representation, the respondents passed order No. 1136/552 (2)/EIC dated 08.04.2009 and order No. 1136/560/EIC dated 23.06.2009. Both the aforesaid orders were in regard to conduct of review D.P.C. to consider the suitability of left over L/man, W/man, SBA and Electrician and for promotion to the grade of Electrician H.S.-II as per fitment scheme under three grade structure as per policy dated 06.06.1986. Counsel for the applicant contended that the respondents themselves have agreed about non consideration of the applicant and in para-5 of letter annexed as annexure A-7 at page-68 of the O.A. pertaining to conduct of review D.P.C. held on 08.04.2009 and 23.06.2009 under fitment of Industrial personnel as per three grade structure. In para-4, the respondents themselves have stated that due to oversight, some service senior L/man, Wireman and SBAs (Now Elect) were left out and their juniors whose names are given below have been promoted vide this office promotion orders mentioned in para-3 above. In para-5 also they have reiterated the same thing. They have further stated that the Board has recommended the individuals mentioned in Appendix A, B, and C for promotion to the grade of Elect HS-II w.e.f. the dates from which their immediate junior was promoted as mentioned in Col. 9 and 10 of the Appendixes. Counsel for the applicant states that the name of applicant figured at serial No. 15 in Appendix-A hence the applicant should have been promoted and given financial benefits as per the dates shown in column Nos. 9 and 10 in Appendix-A. Thereafter, the applicant preferred representations and when the representation was not replied by the respondents, he filed O.A. No. 959 of 2012 in which a direction on 19.07.2012 was given by this Tribunal to decide the representation/pending appeal dated 28.05.2012 of the applicant within two months from the date of receipt of a certified copy of that order. With the above direction, the O.A. was disposed of. In pursuance of the direction, given by this Tribunal in the aforesaid O.A., the respondents have passed the impugned order dated 31.12.2012 which has been challenged/ assailed by way of the present O.A.
4. Counsel for the applicant states that while the respondents have agreed that there has been some omission due to oversight then as the juniors of the applicant has been promoted as H.S.-II, the applicant should have been promoted from the date his juniors have been promoted. By not doing so, the respondents have violated principles of natural justice and also it is best known to them why the name of applicant was not considered while the names of respondents Nos. 8, 9 and 10 herein were considered for promotion to the post of Electrician H.S.-II as per policy dated 06.06.1986. Counsel for the applicant also drew our attention to page No. 74 which is a minute of meeting of JCM IV level held on 23.10.2010 in CWE Hills, Dehradun, in which the status of review DPC was shown as the case is under consideration. He also drew our attention to page No. 76, which is also minutes of JCM IV level meeting held on 29.12.2010 in CWE (Hills), Dehradun wherein also the status of review DPC was shown as under consideration. But at annexure A-9 page 76 which is minute of JCM held on 29.12.2010 in CWE (Hills), Dehradun, the status of review DPC was shown as the reply has already been given to the affected persons and the issue is closed forever. Counsel for the applicant states that without any rhyme or reason it is not known how the respondents have closed the issue without coming to conclusion and without giving benefit of promotion to the applicant hence, the applicant has been deprived of promotion and accordingly as his juniors have been promoted, there is no reason why he shall not be promoted. He also stated that the respondent No. 8- Shri Suraj Pal has been promoted w.e.f. 15.10.1984, the respondent No. 9- Lalit Prasad has been promoted w.e.f. 15.10.1984 and the respondent No. 10-Shri Tej Singh has been promoted w.e.f. 24.06.1987. It is his contention that Shri Suraj Pal was taken on strength at G.E. Roorkee under the jurisdiction area of C.W.E. Hills, Dehradun on permanent posting from North Command on compassionate ground as such his seniority for the purpose of promotion has to be reckoned w.e.f. the date from which he has been taken on the strength of G.E., Roorkee as his transfer was on his own request and expenses. Counsel for the applicant also stated that the respondents have not considered the case of applicant but given favour to the juniors which is against the principle of service jurisprudence and also violated principle of natural justice. He stated that as his juniors are enjoying the benefit of promotion since 1984, the applicant shall also be given promotion to Electrician H.S.-II, the date from which his juniors have been promoted.
5. Counsel for the respondents vehemently opposed the contention of Counsel for the applicant and stated that the applicant has not come before this Tribunal with clean hands and his case suffered from suppression of material facts before this Court. Counsel for the respondents stated that this is highly belated case as the applicant is claiming promotion w.e.f. his juniors have been promoted which pertains to the year 1984 on the basis of three structure policy dated 06.06.1986. Counsel for the respondents also stated that the case of applicant is also barred by resjudicata as the applicant has been repeatedly approaching this Tribunal with the same issue by filing multiple OAs before this Tribunal. He also stated that prior to this O.A. also, the applicant has filed two other OAs, first one is O.A. No. 1521 of 2011 along with seven other applicants Ram Pal Singh and others v. Union of India and others in which main prayer of applicants was related to grant of promotion in pursuance of policy dated 06.06.1986. The OA was dismissed by this Tribunal on 20.03.2012 while deciding the O.A., the Tribunal was of the view The O.A. is dismissed as being barred by limitation. Nothing has been mentioned in the O.A. that when the cause of action arose to the applicants. Thereafter, again an O.A. was filed by the applicant as O.A. No. 959 of 2012 in which the Tribunal passed an Order while disposing of the O.A. directing the respondents to decide the pending appeal/ representation of the applicant dated 28.05.2012 within a period of two months from the date of receipt of a certified copy of that Order. It is the contention of Counsel for the respondents that the issue of O.A. No. 959 of 2012 was also related to promotion in pursuance of policy dated 06.06.1986. He also contended that while filing the present O.A., the applicant has nowhere disclosed about the filing of O.A. No. 1521 of 2011 and O.A. No. 959 of 2012. He stated that the appeal dated 28.05.2012, which was directed to be decided by the respondents, related to the promotion from H.S. SK to H.S.-II which was the subject matter of both the aforesaid OAs, filed earlier. Counsel for the respondents stated that by concealing the fact of previous two OAs, the applicant somehow obtained the order of deciding the representation dated 28.05.2012 and just to avoid any further litigation or contempt, the respondents have passed the order dated 31.12.2012, complying the Order of this Tribunal. He further stated that the order dated 31.12.2012 is elaborate and justified order by which the situation has been clarified enough. He also stated that the name of applicant was not recommended by the Board of Officers for promotion vide CWE, Hills, Dehradun vide order dated 27.07.1998 and due to non-eligibility the applicant could not be promoted. He also stated that when the seniority list was circulated, the applicant never objected at any point of time about the seniority position, and after such a belated period challenging the D.P.C. or the promotion, which took place in the year 1984, is not justified nor it can be changed at this point of time which will topsy-turvy the entire situation.
6. Heard the learned counsel for the parties, perused the pleadings as well as Judgments relied upon by Counsel for the parties.
7. The Honble Supreme Court in the case of Union of India and Others v. A. Durairaj (Dead) by LRs and Union of India and others v. M.K. Sarkar 2010 (2) SCC 58 has categorically held, as under: -
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, 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 at a great disadvantage to 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 [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 appellant to consider his representation has given rise to unnecessary litigation and avoidable complications. X X X X X X 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 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 extend 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. If 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 the legal position and effect. In view of the aforesaid case law, the prayer and relief of the applicant to grant him promotion w.e.f. the date his juniors have been promoted i.e. with effect from 1984 is a stale and dead case. After a long period of 29 years if the respondents are being directed to fix the seniority of applicant and promote him from the date their juniors were promoted, will undisputedly and invariably make a chaotic situation which at this belated stage is not warranted as per the decision held by the Honble Supreme Court in the cases of A. Durairaj and M.K. Sarkar (supra).
8. On the issue of suppression of facts by the applicant, the Honble Apex Court in the case of Ramjas Foundation and another v. Union of India and others 2010 (14) SCC page 38 has held as under: -
14. The principle that a person who does not come to the Court with clean hands is not entitled to be heard on the merits of his grievance and, in any case, such person is not entitled to any relief is applicable not only to the petitions filed under Articles 32, 226 and 136 of the Constitution but also to the cases instituted in others courts and judicial forums. The object underlying the principle is that every Court is not only entitled but is duty bound to protect itself from unscrupulous litigants who do not have any respect for truth and who try to pollute the stream of justice by resorting to falsehood or by making misstatement or by suppressing facts which have bearing on adjudication of the issue(s) arising in the case. . . . . . . . . . .
9. In view of the above settled principle of law, the applicant while aggrieved with the promotion of his juniors in the year 1984 should have approached this Tribunal at the earliest and should not have waited for a long time to make his case stale and dead. Undisputedly, the prayer of applicant relates back to the year 1984 and pertaining to the policy dated 06.06.1986.
10. Accordingly, in our considered opinion, as per law laid down by the Honble Apex Court, it will not be justified to give any direction to the respondents to change the entire scenario on a belated representation or claim of the applicant. Accordingly, the O.A. lacks merits and is dismissed. No order as to cost.
Member A Member J
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