Madras High Court
S.Amutha vs The Union Of India Rep. By
Author: V.Parthiban
Bench: K.K.Sasidharan, V.Parthiban
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on: 02.02.2017
Delivered on: 01.03.2017
Coram
The Honourable Mr.Justice K.K.SASIDHARAN
and
The Honourable Mr.Justice V.PARTHIBAN
W.P.Nos.33831, 33636 to 33639 and
33642 to 33644 of 2014
W.P.No.33831 of 2014:
S.Amutha .. Petitioner
versus
1 The Union of India rep. by
The Secretary to the Govt. of India
Ministry of Corporate Affairs
5th Floor A wing
Shastri Bhavan
New Delhi 110 001
2 The Under Secretary
to the Govt. of India Ministry of
Corporate Affairs
5th Floor A wing
Shastri Bhavan
New Delhi 110 001
3 The Regional Director (Southern Region)
Ministry of Corporate Affairs
5th Floor Shastri Bhavan
26 Haddows Road
Chennai-6
4 The Secretary to Govt. of India
Department of Personnel & Training
Lok Nayak Bhavan
New Delhi
5 Madhusudhana Rao
6 T.Dhakshayani
7 D.Selvarathinam
8 K.Rajasekar
9 G.Ananthalakshmi
10 N.Gopalakrishnan
11 Preetha Gopal
12 A.H.Nethravathi
13 M.Vasanthakumar
14 P.D.Unnikrishnan
15 T.N.Girishkumar .. Respondents
Prayer: This Writ Petition is filed under Article 227 of the Constitution of India, for the issuance of Writ of Certiorari, to call for the common order of the Central Administrative Tribunal Chennai dated 5.9.2014 made in O.A.No.1606 of 2011 & M.A.No.884 of 2011 quash the same and thereby grant the relief to the petitioner as prayed for in the original application by setting aside the order of absorption.
For Petitioners : Mr. S.R.Rajagopal
For Respondents: Mr.T.L.Thirumalaisamy, CGSC
Mr.N.G.R.Prasad for
M/s.Row & Reddy
Mr.K.Swaminathan
for R10,11and 14
COMMON ORDER
V.PARTHIBAN, J.
These Writ Petitions have been filed against the common order passed by the Central Administrative Tribunal, Madras Bench (in short, the Tribunal) in O.A. Nos.1603 to 1611 of 2011 and M.A.Nos.881 to 889 of 2011, dated 5.9.2014 dismissing the applications filed by the petitioners herein, both on the ground of delay and also on merits.
2. The petitioners/applicants herein have approached the Tribunal, seeking the following relief:
"a) To call for the records from the 2nd respondent in connection with the appointments of the private respondents appointing them to the post of Junior Technical Assistant and quash the same;
b) Declare that the Selection Committee panel prepared by the 2nd respondent for absorption of Company Paid Staff is illegal and null and void ab initio insofar as the post of Junior Technical Assistant are concerned, since they are in total violation of the Absorption Scheme of 1999 as directed by the Hon'ble Supreme Court, inasmuch as the post if technical in nature and some of the private respondents do not possess the requisite educational qualification and no relaxation has been given in this regard in terms of the Hon'ble Supreme Court's orders dated 27.8.1999.
c) Direct the 2nd respondent to stop further absorption of Company paid staff to the posts of Junior Technical Assistant which is now a Group B technical post.
d) Direct the 3rd respondent to consider appointment of the applicant(s) to the post of Junior Technical Assistant.
e) Direct the 1st to 3rd respondents to clarify how eleven company paid staff were absorbed against fifty per cent Direct Recruitment, which was required in terms of the orders dated 27.08.1999 of the Hon'ble Supreme Court.
f) Direct the official respondents to adhered to the principles laid down in the scheme as envisioned by the Hon'ble Apex Court in 1978 and 1999 to its word and spirit for all future recruitments, with regard to Group B technical posts."
3. Since the issues and the relevant claims in all the Original Applications and Miscellaneous Applications are one and the same, the learned Tribunal disposed of both the Original Applications and Miscellaneous Applications by a common order, dated 05.09.2014, which is impugned in these Writ Petitions.
4. The petitioners/applicants herein were employees of the Ministry of Corporate Affairs. The grievance of the petitioners/applicants was that the private respondents who were arrayed as parties in the Original Applications, who were Company paid staff, have been absorbed in the Ministry of Corporate Affairs in gross violation of the norms prescribed under the Absorption Scheme of 1999. The Absorption Scheme of 1999 was formulated in pursuance of certain directions issued by the Hon'ble Supreme Court in the matter of "Government of India and others versus Court Liquidator's Employees Assn. and others" reported in (1999) 8 SCC 560. According to the petitioners/applicants, the appointment of private respondents by way of absorption as Junior Technical Assistants was in violation of the Absorption Scheme of 1999 and the same was done contrary to the specific directions of the Hon'ble Supreme Court. The private respondents are also not qualified for appointment to the technical post and there were other technical posts and their appointment to the posts prescribed for direct recruitment against which, they were supposed to be appointed by way of absorption as per the Scheme. The petitioners/applicants have pointed out various other violations in respect of appointment of the private respondents. Admittedly, the appointments have taken place from the year 2000 to 2005. Further the applications, challenging the appointments came to be filed only in the year 2011, after the period of limitation prescribed under Section 21 of Administrative Tribunals Act, 1985. According to the petitioners/applicants, they came to know the absorption of private respondents only through the information obtained under Right to Information Act, 2005 on 7.10.2010 and thereafter, within a period of one year, the applications were filed and hence, there was no delay. However, by way of caution, Miscellaneous Applications were filed seeking condonation of delay without specifying the number of days of delay in filing the Original Applications. It is the case of the petitioners/applicants that only after being informed under the Right to Information Act, they came to know about the absorption of the private respondents in 2010 and thereafter, the petitioners/applicants approached the Tribunal within one year from the date of their knowledge. The said contention was sought to be resisted by both the official and private respondents stating that the private respondents were absorbed from 2000 onwards and have been working along side the petitioners/applicants in the same Department, and therefore, the petitioners/applicants had full knowledge of the absorption of the private respondents in the year 2000 itself and hence, the explanation put forth in the Miscellaneous applications for condonation of delay was far from convincing and did not carry conviction. The petitioners/applicants also submitted before the Tribunal that the appointments of private respondents being illegal and irregular and such illegality cannot be perpetuated or legalized by efflux of time. As corollary, it was contended on behalf of the petitioners/applicants that by illegal appointments of the private respondents, the petitioners/applicants' right namely the fundamental right to consider for appointment, had been negated and no plea of limitation can be held against them for violation of fundamental rights. On the issue of delay, two decisions were cited, viz., "M/s.Dehri Rohtas Light Railway Company Ltd. versus District Board, Bhojpur and others" (1992) 2 SCC 598 and "Dr.Kashinath G.Jalmi and another versus The Speaker and others" (1993) 2 SCC 703, which were mentioned in para 13 of the impugned order of the learned Tribunal.
5. After taking note of the submissions of the rival parties, on the question of delay, the learned Tribunal dismissed the Miscellaneous Applications with a detailed reasoning as found in para 15 of the order, which is extracted herein under:
"15. We have carefully considered the rival contentions and perused the material on record. These O.As have been filed challenging the absorption of the private respondents in the post of Junior Technical Assistant from the year 2000 onwards. Private respondents have been absorbed in the post of JTAs as per the Absorption Scheme of 1999 formulated by the respondents in compliance with the judgment of the Hon'ble Supreme Court in the case of Government of India and others versus Court Liquidators' Employees Assn. and others" (1995 (5) SLR 487). It is seen that the applicants have filed M.A.No.881 of 2011 to 889 of 2011 for condoning the delay in filing the O.A. without specifying the period of delay. The reasons stated by the applicants in the M.As are that they came to know of the absorption granted to the private respondents only through a reply to a query under RTI on 07.10.2010 and that they have filed these O.As within one year from the date of knowledge of the reply to the RTI query. We find that the private respondents were absorbed in the post of Junior Technical Assistant and have also been working along with the applicants and as such the claim of the applicants that they came to know of the absorption of the private respondents only in a reply to a RTI query is unreasonable and also not acceptable. We find that the judgments cited by the learned counsel for the applicants on the question of delay and laches are not applicable to the facts of the present case. Accordingly, we are of the view that M.A.Nos.891 of 2011 to 899 of 2011 deserve no further consideration and are liable to be dismissed."
6. Having dismissed the Miscellaneous Applications, seeking condonation of delay in filing the Original Applications, the learned Tribunal further embarked upon to decide the Original Applications on merits and found all the Original Applications were devoid of substance and dismissed them on merits too.
7. As against the orders passed in both the Original Applications and Miscellaneous Applications, the present Writ Petitions have been filed.
8. At the outset, before dwelling into the merits of the claims of the petitioners/applicants vis-`-vis the private respondents, the question of inordinate delay in filing the Original Applications needs to be settled. Therefore, the learned counsel appearing for the petitioners/applicants was called upon to convince this Court on the question of delay before any arguments to be advanced on the merits of the petitioners/applicants' claim. In the circumstances, the learned counsel for the petitioners/applicants submitted a compilation of decisions and sought to contend that there was actually no delay and ventured to argue that in the matter of violation of fundamental rights, there cannot be any delay at all and that any legal action if it is sought to be perpetuated, can be questioned at any point of time regardless prescription of any time limit.
9. From the submissions made by the learned counsel for the petitioners/applicants, firstly, it ought to be seen that having filed the Miscellaneous Applications, seeking condonation of delay before the Tribunal and after dismissal of the Miscellaneous Applications by the Tribunal, whether it is open to the learned counsel for the petitioners/applicants to still contend that there was no delay. Secondly, the petitioners/applicants having chosen to file condone delay applications, have not specified the number of days of delay for the Tribunal to appreciate the extent of delay and the explanation submitted for the delay. However, be that as it may, we may refer to the following citations submitted by the learned counsel by way of compilation.
i) M/s.Dehri Rohtas Light Railway Company Ltd. versus District Board, Bhojpur and others" (1992) 2 SCC 598;
ii) "Dr.Kashinath G.Jalmi and another versus The Speaker and others" (1993) 2 SCC 703;
iii) "Union of India & others versus Tarsem Singh" (2008) 8 SCC 648;
iv) "State of Jammu & Kashmir versus R.K.Zalpuri & Others" - Civil Appeal Nos.8390-8391 of 2015;
v) "State of M.P. and others versus Lalit Kumar Verma" (2007) 1 SCC 575;
vi) "Jigar Vikramsey versus Bombay Stock Exchange Limited" - Arbitration Petition No.66 of 2009;
vii) "State of Bihar versus Upendra Narayan Singh & Others" (2009) 5 SCC 65;
viii) "State of Jammu and Kashmir & Others versus District Bar Association, Bandipora" - Civil Appeal No.36084 of 2016;
ix) "S.Sumnyan and others versus Limi Niri and others" (2010) 6 SCC 791;
x) "S.P.Pethel Raj & Others versus V.E.Vairappan & Others" (2012) 7 MLJ 513;
xi) "Tukaram Kana Joshi & Others versus Maharashtra Industrial Development Corpn. & others" (2013) 1 SCC 353.
10. On going through the above citations, we find that none of the citations relied upon by the learned counsel for the petitioners/applicants, deals with a specific provision prescribed time limit in any statute and notwithstanding the same, the limitation period would not operate. In some of the decisions cited by the learned counsel, viz., Sl.Nos.(v) to (xi) above, have not laid down any proposition of law in respect of the contention put forth by the learned counsel for the petitioners/applicants as regards the issue of limitation and condonation of delay. The decision cited by the learned counsel for the petitioners/applicants reported in "M/s.Dehri Rohtas Light Railway Company Ltd. versus District Board, Bhojpur and others" (1992) 2 SCC 598, relates to the proceedings under Article 226 of the Constitution and even otherwise, the facts of that case are completely different from the factual matrix of the present one. It is need less to mention that as far as Administrative of Tribunals Act, 1985 is concerned, Section 21 which is extracted below clearly stipulates the period of one year limitation and the Tribunal is vested with the power to condone the delay if there are proper and sufficient reasons or cause is shown for such delay.
"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.
11. In fact, in one of the decisions cited by the learned counsel for the petitioners/applicants, viz., reported in "Union of India & others versus Tarsem Singh" (2008) 8 SCC 648, the Honble Supreme Court in para 7 clearly held that the issue relates to payment or refixation of pay or pension, relief will be granted in spite of delay as it does not affect the rights of the third parties, but if the claim involved issues relating to seniority or promotion, etc., affecting others, delay would render the claim stale and doctrine of laches/limitation will be applied.
12. In the instant case, admittedly, the appointments had taken place originally from the year 2000 and the applications came to be filed only in year 2011 much after the limitation period prescribed under Section 21 of the Administrative Tribunals Act, 1985 which is extracted supra.
13. Shri S.R.Ragagopal, learned counsel appearing for the petitioners/applicants contended that in the matter of violation of fundamental rights, acquiescence or delay cannot be held against the petitioners/applicants. Such argument is not only preposterous, but patently an erroneous advancement of legal proposition in the face of clear law of limitation prescribed in the Administrative Tribunals Act, 1985 itself. Some of the decisions cited by the learned counsel as compiled in the compilation were relating to legal or illegal appointments which had nothing to do with the condonation of delay. As stated earlier, none of the decisions cited, has laid down a proposition of law or declaration of law or statement of law, which would persuade us to accept the contention put forth by the learned counsel for the petitioners/applicants. The decisions were rendered in the facts and circumstances of those cases.
14. On the other hand, the learned Tribunal has categorically given a finding that the petitioners/applicants all along working along with private respondents, they cannot claim ignorance about the absorption of the private respondents which originally had taken place from the year 2000 onwards. If the contention of the petitioners/applicants is accepted, namely, the date of knowledge, it would only result in rendering the law of limitation prescribed under Section 21 of the Administrative Tribunals Act, 1985 as otiose or nugatory. Such adventurous interpretation would only render specific stipulation of limitation as redundant and useless. The plea of date of knowledge at best can be used for seeking condonation of delay, but the same cannot be pleaded as a starting point of limitation on the face of specific prescription of limitation under Section 21 of the Administrative Tribunals Act, 1985. It is trite to reiterate that in the matter of service jurisprudence, one cannot unsettle the settled position and after long distance of time. In the instant case, the cause of action originally arose in 2000 and during 2000-2011, several persons have been appointed and over the years, the rights have accrued to those appointees and such accrued rights cannot set at naught by the laid-back and leisure approach adopted by the petitioners/applicants in seeking remedy against the private respondents.
15. In the circumstances, the contention put forth by the learned counsel appearing for the petitioners/applicants that there would be no operation of limitation for violation of fundamental rights, is highly misconceived and cannot be countenanced in law under any legal standards.
16. In the light of the above narrative, we do not see any infirmity in the order passed by the learned Tribunal in dismissing the Miscellaneous applications seeking condonation of delay. Therefore, we confirm the order passed by the Tribunal on the issue of delay. However, we do not express any opinion as to the merits of the claim of the petitioners/applicants vis-`-vis Department and private respondents since the Writ Petitions are dismissed on the ground of inordinate delay in approaching the Tribunal and no proper explanation or sufficient cause was demonstrated or shown for condonation of such delay.
For the foregoing reasons, the Writ Petitions fail and they are dismissed. No costs.
suk (K.K.S.,J.) (V.P.N.,J.)
01-03-2017
Index: Yes/No
Internet: Yes/No
To
1 The Union of India rep. by
The Secretary to the Govt. of India
Ministry of Corporate Affairs
5th Floor A wing
Shastri Bhavan
New Delhi 110 001
2 The Under Secretary
to the Govt. of India Ministry of
Corporate Affairs
5th Floor A wing
Shastri Bhavan
New Delhi 110 001
3 The Regional Director (Southern Region)
Ministry of Corporate Affairs
5th Floor Shastri Bhavan
26 Haddows Road
Chennai-6
4 The Secretary to Govt. of India
Department of Personnel & Training
Lok Nayak Bhavan
New Delhi
K.K.SASIDHARAN, J.
AND
V.PARTHIBAN, J.
order in
W.P.Nos.33831 of 2014 etc.
01-03-2017
http://www.judis.nic.in