Central Administrative Tribunal - Jodhpur
Budh Ram (Mes No. 314552) S/O Shri Thakar ... vs Union Of India on 25 January, 2017
CENTRAL ADMINISTRATIVE TRIBUNAL
JODHPUR BENCH
OA No.290/00133/2014 Pronounced on : 25.1.2017
(Reserved on: 20.1.2017)
CORAM: HONBLE MR. SANJEEV KAUSHIK, MEMBER (J)
HONBLE MS. PRAVEEN MAHAJAN, MEMBER (A)
Budh Ram (MES No. 314552) S/o Shri Thakar Ram aged about 50 years, resident of 28 PBN Post Bhgwansar, The. Suratgarh, Distt. Sriganganagar, at present employed on the post of CMD-I under GE (Army) Suratgarh.
APPLICANT
BY ADVOCATE : Mr. J.K. Mishra
VERSUS
1. Union of India
through the Secretary to Government of India,
Ministry of Defence,
Raksha Bhawan,
New Delhi.
2. The Engineer-in-Chiefs Army Head Quarter, Kashmir House, D.H.Q. New Delhi.
3. The Chief Engineer, South Western Command, (erstwhile W.C), Jaipur.
4. The Chief Engineer, Bhatinda Zone, Bhatinda Contl.
5. The Garrison Engineer (Army), Suratgarh (Raj).
RESPONDENTS
BY ADVOCATE: Mr. Rameshwar Dave.
ORDER
HONBLE MR. SANJEEV KAUSHIK, MEMBER (J):-
The present O.A has been filed under Section 19 of the Administrative Tribunals Act, 1985 for issuance of direction to the respondents to prepone the promotion of the applicant as CMD-II from 10.10.2007 to 1.1.1996 and allow all the consequential benefits.
2. The facts, which led to filing of the present O.A, are that the applicant was appointed as CMD Ordinary Grade on 29.6.1987. He appeared in trade test for promotion to the CMD-II in the year 2005 and was declared pass and was promoted as such w.e.f. 10.10.2007 in pay scale of Rs.4000-6000. He was further granted pay scale of Rs.4500-7000 as CMD-I w.e.f. 30.4.2008. Earlier, there were 3 categories in MTD trade namely MTD-II, MTD-I and MTD-Special which was restructured into four categories namely CMD-Ordinary, CMD-II, CMD-I and CMD-Special w.e.f. 1.1.1996. Another policy was issued on 17.7.1998 under which promotional avenues were promoted to Motor Car Drivers. Those who had rendered 15 years of regular service in ordinary and grade II, were to be considered as T Driver Grade I w.e.f. 1.1.1996 to the extent of availability of vacancies and subject to being found fit by the DPC on the basis of seniority-cum-fitness and passing trade test. Civilian MT Drivers (OG) who had rendered not less than 9 years could b e considered for appointment o Grade II by following the same eligibility and other criteria. Further modification took place. The claim of the applicant is that his juniors was promoted as CMD II in pay scale of Rs.4000-6000 w.e.f. 1.1.1996 like Partap Sigh and Subhash Chander and Surinder Pal Singh and Ramesh Chander, whose date of appointment is later than the applicant and similar benefit could not be denied to him. O.A.No. 105/04, 106/04 and 107/04 came to be filed in this Tribunal as applicants were not called for appearing in trade test conducted in 1990-91 and no test was conducted in Bhatinda Zone at that time. This fact was admitted by authorities and O.As were allowed but benefit was not given to the applicant. The applicant submitted a representation dated 22.6.2010 and 10.11.2010 but to no avail. Hence the O.A.
3. The O.A. is resisted by the respondents by filing a detailed reply. It is submitted that no record of trade test conducted in 1990-91 has been found in respondent department and as such no comment can be made. No representation sought to have been given on 3.8.2005 was found in official record. Benefit of ACP cannot be granted without passing trade test as per ACP Scheme. The applicant passed test in 2005 and was given benefit on 10.10.2007.
4. The applicant has filed an M.A.No. 290/00171/2014 seeking condonation of delay in filing the Original Application. He has only mentioned sequence of events as given in the O.A. as to how his juniors were promoted w.e.f. 1.1.1996 and h came to know of filing of O.A. filed in 2004 decided on 12.9.2008 in 2010 and then filed representations and as such delay may be condoned more so when it is a recurring cause of action.
5. We have heard learned counsel for the parties at length and perused the material on the file.
6. The applicant admits himself that he was entitled to benefit of financial upgrdation / promotion in 1.1.1996 when his juniors were so promoted but no action was taken by him till 2010. He came to know of decisions rendered by this Tribunal in 2008 on filing of certain Original Applications by his colleagues and as such submitted representations in 2010 for grant of benefit of promotion from 1.1.1996 instead of 2007. In M.A. for condonation of delay, only sequence of events as given in O.A. have been given and no cogent reasons have been given which may warrant condonation of delay in filing the Original Application. That being the position, the M.A. for condonation of delay in filing the O.A. is dismissed.
7. In so far as claim based on benefit of a decision is concerned, in the case of State of Uttar Pradesh and Ors. Vs. Arvind Kumar Srivastava and Ors. Civil Appeal No. 9849/2014 decided on October 17, 2014, the Honble Supreme Court, has while relying upon the judgment of the Constitution Bench of the Supreme Court in the case of K.C.Sharma and Ors. Vs. Union of India, (1997) 6 SCC 721, wherein, while considering the issue of grant of benefit of an earlier judgment, has dealt with a case where the government had passed notification dated December 5, 1988, which effected the pension of retired employees retrospectively. The petitioners had not challenged the said notification within the limitation period. However, in some other case, filed by similarly situated persons, a Full Bench of the Central Administrative Tribunal (CAT) declared the notification invalid vide its judgment dated December 6, 1993. After this notification was declared invalid, the petitioners also claimed the benefits of that judgment from Railways. On Railways refusal to extend the benefits, they filed the application before Tribunal. The application was dismissed by the Tribunal as time barred. The petitioners had approached the Supreme Court. The Supreme Court, condoning the delay, has in para 6 held as under:
6. Having regard to the facts and circumstances of the case, we are of the view that this was a fit case in which the Tribunal should have condoned the delay in the filing of the application and the appellants should have been given relief in the same terms as was granted by the Full Bench of the Tribunal. The appeal is, therefore, allowed, the impugned judgment of the Tribunal is set aside, the delay in filing of OA No. 774 of 1994 is condoned and the said application is allowed. The appellants would be entitled to the same relief in the matter of pension as has been granted by the Full Bench of the Tribunal in its judgment dated 16-12-1993 in OAs No. 395-403 of 1993 and connected matters. No order as to costs.
8. The Honble Apex Court in Arvind Kumar Srivastava and Ors. (supra), has held that it is clear that the earlier judgment of the Tribunal striking down the notification dated December 5, 1998 was treated as judgment in rem. As per the Honble Supreme Court, [in Arvind Kumar Srivastava and Ors. (supra)] when the notification itself was struck down and it was a matter of pension, benefit thereof was to be given to the others also. The Court was of the view that the delay should have been condoned giving relief to the petitioners also in the same terms as was granted by the Full Bench of the Tribunal. The Honble Supreme Court after analysing the law, has culled out the following legal principles:
(1) Normal rule is that when a particular set of employees is given relief by the Court, all other identically situated persons need to be treated alike by extending that benefit. Not doing so would amount to discrimination and would be violative of Article 14 of the Constitution of India. This principle needs to be applied in service matters more emphatically as the service jurisprudence evolved by this Court from time to time postulates that all similarly situated persons should be treated similarly. Therefore, the normal rule would be that merely because other similarly situated persons did not approach the Court earlier, they are not to be treated differently.
(2) However, this principle is subject to well recognized exceptions in the form of laches and delays as well as acquiescence. Those persons who did not challenge the wrongful action in their cases and acquiesced into the same and woke up after long delay only because of the reason that their counterparts who had approached the Court earlier in time succeeded in their efforts, then such employees cannot claim that the benefit of the judgment rendered in the case of similarly situated persons be extended to them. They would be treated as fence-sitters and laches and delays, and/or the acquiescence, would be a valid ground to dismiss their claim.
(3) However, this exception may not apply in those cases where the judgment pronounced by the Court was judgment in rem with intention to give benefit to all similarly situated persons, whether they approached the Court or not. With such a pronouncement the obligation is cast upon the authorities to itself extend the benefit thereof to all similarly situated person. Such a situation can occur when the subject matter of the decision touches upon the policy matters, like scheme of regularization and the like (see K.C. Sharma & Ors. v. Union of India (supra). On the other hand, if the judgment of the Court was in personam holding that benefit of the said judgment shall accrue to the parties before the Court and such an intention is stated expressly in the judgment or it can be impliedly found out from the tenor and language of the judgment, those who want to get the benefit of the said judgment extended to them shall have to satisfy that their petition does not suffer from either laches and delays or acquiescence.
9. In this case, the colleagues of the applicant filed Original Applications in 2004 due to which they were denied benefit of up-gradation / promotion due to non conduct of trade test at relevant point of time. Their O.A. was allowed in 2008 and they were allowed benefits. Even after coming to know of those decisions, this O.A. was filed in 2014, after a period of 6 years. Under the Scheme of things unless one qualifies the examination, he or she cannot be granted any benefit. The applicant qualified test in 2005 itself and could have raised the issue at that time itself. But he chose to be silent and did not raise the dispute. In this view of matter, he cannot be allowed now to turn around at this belated stage and claim that he is entitled to benefit of decision given in 2008. Moreover, the decisions relied upon by the applicant are not in rem but in personem and as such the applicant cannot be granted any benefit of the same.
10. In view of the aforesaid discussion, this O.A. is dismissed being devoid of any merit leaving the parties to bear their own costs.
(PRAVEEN MAHAJAN) (SANJEEV KAUSHIK)
MEMBER (A) MEMBER (J)
Dated: 25.1.2017
Place: Jodhpur
HC*
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OA No. 290/00133/2014
(Budh Ram Vs. UOI & Ors.)