Central Administrative Tribunal - Cuttack
Manoranjan Mandal vs Ordnance Factory on 11 August, 2022
1 M.A.No. 260/00131 of 2020
O.A.No. 260/00503 of 2019
CENTRAL ADMINISTRATIVE TRIBUNAL
CUTTACK BENCH, CUTTACK
M.A.No. 260/00131 of 2020
O.A.No. 260/00503 of 2019
Reserved on 26.07.2022 Pronounced on 11.08.2022
CORAM:
THE HON'BLE MR. DEVENDRA CHAUDHRY, MEMBER (A)
THE HON'BLE MR. SWARUP KUMAR MISHRA, MEMBER (J)
1. Manoranjan Mandal, aged about 65 years, Son of
Gorachand Mandal, At-Jenakhalapada, P.O.
Bhawanipatna, Ward No.12, Dist. Kalahandi, at
present working as Fitter General M/C, Group-
B, At-Ordnance Factory, Badmal, Dist. Bolangir.
2. Balakrishna Moharana, aged about 57 years, Son
of Late Niranjan Moharana, At/P.O. Rentikata,
Via Palasa, Dist. Srikakulam (Andhra Pradesh)
at present working as Fitter General M/C,
Group B, A7 Ordnance Factory, Badmal, Dist.
Bolangir.
........Applicants
Vs
1. Union of India, represented through it's
Secretary to Government of India, Ministry of
Defence, (Production Unit) North Block,
Central Secretariat, New Delhi-110011.
2. The General Manager, Ordnance Factory,
Badmal, At/PO- Badmal, Dist Bolangir-767070.
........Respondents
2 M.A.No. 260/00131 of 2020
O.A.No. 260/00503 of 2019
For the Applicant : Mr. P.K.Khuntia, Counsel
For the Respondents : Mr. S.Behera, Counsel
ORDER
Swarup Kumar Mishra, Member (J):
Sri Manoranjan Mandal, stated to be presently working as Fitter General M/C, Group-B, even after attaining 65 years of age in the year 2019, and another Sri Balakrushna Moharana, stated to be aged about 57 years and working as Fitter General M/C, Group-B, have filed this O.A. jointly, on 22.07.2019, praying inter alia as under:
"(i) The Original Application be allowed directing the respondents to give the applicants notional seniority and promotion to Skilled Grade (S.K.) w.e.f. 27.07.1993 and High Skilled (H.S.) w.e.f. 27.07.1996 and further promotion to C.M. accordingly as has been provided to similarly placed employees vide Annexure-2 by due consideration of the representation under Annexure-3;
(ii) To grant any other relief............"
2. On 06.08.2019 notice was issued to the respondents to file counter on the question of admission. Thereafter, on 16.02.2020, an application seeking condonation of delay (MA No. 131/2020) was filed supported with Verification instead of Affidavit as required under law inter alia stating therein that after coming to know about the Factory 3 M.A.No. 260/00131 of 2020 O.A.No. 260/00503 of 2019 Order dated 31.03.2017, they submitted representation on 30.08.2018 before the respondent No.2 claiming grant of notional seniority and promotion to Skilled Grade (S.K.) w.e.f. 27.07.1993 and High Skilled (H.S.) w.e.f. 27.07.1996 and further promotion to C.M. as given to other similarly situated employees vide Factory Order Part-III No. 250 dated 31.03.2017. It has been stated that as the respondent No.2 did not take any action on their representation as aforesaid, they have filed this O.A. and, thus, the delay was not intentional and deliberate but due to the aforesaid reasons.
3. Respondents have filed counter in which by placing reliance on the decision of the Hon'ble Apex Court in the case of Vijay Kumar Kaul Vs. UOI , (2012) 7 SCC 610, while objecting the maintainability of the O.A. on the ground of delay and latches, they have also contested the case of the applicant on merit. Since this matter is listed today for consideration of MA 131/2020, it is not thought just and proper to deal with the merits of the case.
4. Ld. Counsel for the applicant submitted that the applicants came to know about the Factory Order dated 31.03.2017 under Annexure-A/2 at a later stage and, thereafter, has submitted a representation on 4 M.A.No. 260/00131 of 2020 O.A.No. 260/00503 of 2019 30.08.2018 ventilating their grievances before the respondent No.2 praying for removal of injustice caused to them in the matter of grant of notional seniority and promotion to Skilled Grade (S.K.) w.e.f. 27.07.1993 and High Skilled (H.S.) w.e.f. 27.07.1996 and further promotion to C.M. as given to other similarly situated employees vide Factory Order Part-III No. 250 dated 31.03.2017. Therefore, there is no delay and even if it is held that there is delay, the same may be condoned and the matter may be decided on merit. This was strongly opposed by the Ld. Counsel for the respondents by stating that even if it is accepted that the applicants after coming to know the promotion order dated 31.03.2017 submitted representation on 30.08.2018 but no whisper has been made as to why they did not raise any voice/grievance for fixation of their seniority and promotion to Skilled Grade (S.K.) w.e.f. 27.07.1993 and High Skilled (H.S.) w.e.f. 27.07.1996 earlier. Promotion to the post of C.M. was based on the seniority of feeder cadres, i.e. Skilled Grade (S.K.) w.e.f. 27.07.1993 and High Skilled (H.S.) w.e.f. 27.07.1996 and, thus, the stand taken for condonation of delay is not acceptable in law. Further, it has been submitted that the persons those who will be affected by virtue of change of seniority are 5 M.A.No. 260/00131 of 2020 O.A.No. 260/00503 of 2019 necessary and proper party but they having not been made as a party, this O.A. is also not maintainable on the ground of non-joinder of party. Last but not the least, it has been contended that interfering in the matter would tantamount to unsettling of a settled matter after a long lapse of time, which is not permissible in law. On these grounds, the respondents have prayed for dismissal of this M.A. so also the O.A.
5. Admittedly, seniority in the grades of Skilled and High Skilled is basis and the promotion to C.M. is the genesis. The applicant for the first time submitted representation on 30.08.2018 praying for notional seniority w.e.f. 27.07.1993 and 27.07.1996. The statute clearly provides period of limitation, which the Tribunal cannot overlook is the trite position of law. It appears that the relief which the applicants are not entitled to directly seek to get in an indirect manner. 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 6 M.A.No. 260/00131 of 2020 O.A.No. 260/00503 of 2019 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 vide Union of India & Others Vs A. Durairaj (dead) by LRs in Civil Appeal No. 1783 OF 2005 disposed of on 1 December, 2010.
6. This Tribunal cannot close its eyes to another aspect of the matter that seniority once settled cannot be unsettled after a long lapse of time in the wake of principle of a chaotic situation to arrive and also under public policy, as ruled by the Apex Court in Sarat Chandra Mishra Vs. State of Orissa, 2006 (1) SCALE 9. In S. Subramanian Vs. The Joint Registrar of Co-operative Societies, Sivagangai reported in 2007(1) CTC 296, the Division Bench of the Hon'ble Court held inter alia that it is well settled that in the matter of seniority and promotion, the settled position cannot be unsettled and the claim for seniority cannot be entertained after a lapse of considerable time. In catena of decisions, the 7 M.A.No. 260/00131 of 2020 O.A.No. 260/00503 of 2019 Honourable Supreme Court and the Hon'ble High Court repeating the ratio that the seniority once settled shall not be unsettled.
7. Joinder of persons in a lis where the seniority rights of such persons would be affected was considered by the Hon'ble Supreme Court in the case of State of Uttaranchal and another v. Madan Mohan Joshi and others, reported in (2008) 6 SCC 797. The Hon'ble Supreme Court underscoring the indispensable requirement of impleading such persons as parties in the writ petition held thus:
"16. The High Court, in its impugned judgment, proceeded on the basis as to what would constitute a substantive appointment. The decisions of this Court, whereupon strong reliance has been placed by the High Court in arriving at its conclusion may not be of much significance but what is significant is that in the writ petition even Savita (Mohan) Dhondyal and others who lose their seniority in the event writ petition was to be allowed, were not impleaded as parties. They, in our opinion, should have been impleaded as parties in the writ application. Savita (Mohan) Dhondyal and others, if the writ petition is allowed, would suffer civil consequences. Inter se seniority may not be a fundamental right, but is a civil right. (See State of U.P. v. Dinkar Sinha [(2007) 10 SCC 548 : (2008) 1 SCC (L&S) 38 : (2007) 7 Scale 8] .) The respective rights of seniority of the parties, thus, required determination in their presence."8 M.A.No. 260/00131 of 2020
O.A.No. 260/00503 of 2019 Similarly, in Indu Shekhar Singh and others v. State of U.P. and others, reported at (2006) 8 SCC 129, the Hon'ble Supreme Court, emphasizing the necessity of impleading persons who would be affected by the determination of seniority, ruled as follows:
"56.There is another aspect of the matter. The appellants herein were not joined as parties in the writ petition filed by the respondents. In their absence, the High Court could not have determined the question of inter se seniority."
8. Effect of non-impleadment of necessary parties was also considered by the Hon'ble Supreme Court in Vijay Kumar Kaul and others v. Union of India and others, reported at (2012) 7 SCC 610, wherein the well-settled position of declining relief to the petitioners when the affected parties were not impleaded was reiterated:
"36. Another aspect needs to be highlighted. Neither before the Tribunal nor before the High Court, Parveen Kumar and others were arrayed as parties. There is no dispute over the factum that they are senior to the appellants and have been conferred the benefit of promotion to the higher posts. In their absence, if any direction is issued for fixation of seniority, that is likely to jeopardise their interest. When they have not been impleaded as parties such a relief is difficult to grant."
9. Importing the principles of joinder of parties under Order 1, Rule 9 of the Code of Civil Procedure in the writ jurisdiction, the Hon'ble 9 M.A.No. 260/00131 of 2020 O.A.No. 260/00503 of 2019 Supreme Court in the case of Ranjan Kumar and others v. State of Bihar and others, reported at (2014) 16 SCC 187, again highlighted the necessity of impleading the persons who would be affected as a result of the writ petition. The Hon'ble Supreme Court refused to grant relief to the petitioners on account of failure to implead necessary parties after considering good authority in point, stating:
"13. In view of the aforesaid enunciation of law, we are disposed to think that in such a case when all the appointees were not impleaded, the writ petition was defective and hence, no relief could have been granted to the writ petitioners."
10. Further, trite is the position of law that what cannot be done directly, cannot also be done indirectly and suffice to place reliance on the relevant portion of the decision of the Hon'ble Apex Court in the case of State of Tamil Nadu and Others v. K. Shyam Sunder and Others, Civil Appeal Nos. 6015-6027/2011 disposed of on 9 th August, 2011, an expert from it reads as under:
"VI. What cannot be done directly-- cannot be done indirectly
43. "21. It is a settled proposition of law that what cannot be done directly, is not permissible to be done obliquely, meaning thereby, whatever is prohibited by law to be done, cannot legally be effected by an indirect and circuitous contrivance on the principle of 10 M.A.No. 260/00131 of 2020 O.A.No. 260/00503 of 2019 quando aliquid prohibetur, prohibetur et omne per quod devenitur ad illud. An authority cannot be permitted to evade a law by 'shift or contrivance'." (See Jagir Singh v. Ranbir Singh9, M.C. Mehta v. Kamal Nath10 and Sant Lal Gupta v. Modern Coop.
11. In view of the facts and law submitted above, this Tribunal is not inclined to interfere in the MA which is accordingly dismissed. Consequently the OA fails. No costs.
(SWARUP KUMAR MISHRA) (DEVENDRA CHAUDHRY) Member (Judicial) Member (Admn.) RK/PS