Central Administrative Tribunal - Delhi
Ram Chander Yadav vs Govt. Of Nctd on 10 November, 2021
1
OA No.2568 of 2017
Central Administrative Tribunal
Principal Bench: New Delhi
OA No.2568/2017
Reserved on: 12.10.2021
Pronounced on: 10.11.2021
(Through Video Conferencing)
Hon'ble Mr. A.K. Bishnoi, Member (A)
Hon'ble Mr. R.N. Singh, Member (J)
Ram Chander Yadav (not working at present)
S/o Ram Gulam Yadav,
Aged about 40 years,
R/o C-3/7B, Keshav Puram,
New Delhi - 110 045.
...Applicant
(By Advocate: Ms. Sriparna Chatterjee)
VERSUS
1. Govt. of NCT of Delhi
Through Secretary,
Department of Health and Family Welfare,
Delhi Secretariat, I.P. Estate,
New Delhi.
2. Director,
Delhi Health Services,
Directorate of Health Services,
Govt. of NCT of Delhi,
F-17, Karkardooma, Delhi.
...Respondents
(By Advocate: Mr. Amit Anand)
ORDER
By Hon'ble Mr. R.N. Singh, Member (J):
In the present OA, filed under Section 19 of the Administrative Tribunals Act, 1985, the applicant is aggrieved by the alleged action of the respondents 2 OA No.2568 of 2017 whereby he was abruptly removed from the temporary services under them in the year 1999 without payment of salary and eversince then he has not been taken back in service.
2. The applicant has prayed for the following relief(s):
"(a) Directing the Respondent to re appoint the Applicant as an NO or any other post with the Respondents and regularize his services; and/or
(b) Call for the records of the case and impose exemplary cost on the Respondents for harassing the Applicant for 17 long years;
and/or
(c) Pass any other order or orders that may deem fit in the circumstances of the case."
3. Pursuant to notice from this Tribunal, the respondents have filed counter reply. The applicant has filed rejoinder thereto. With the leave of this Tribunal, the applicant has filed amended OA on 11.07.2019. The respondents have chosen not to file any counter reply to the said amended OA and they have placed their reliance on the counter reply already filed by them on 14.05.2018.
4. From the pleadings available on record, the precise facts are that the applicant was appointed purely on temporary basis to the post of Class- 3 OA No.2568 of 2017 IV/Group-D for a period of 44 days initially w.e.f. 28.02.1998, vide Office Order No.634 dated 24.12.1998 [Annexure R-1 (Colly.)]. Besides other conditions, offer of appointment provides the following conditions at serial no.(1) & (5), which are reproduced hereunder:-
"(1) The post is purely on temporary basis for a period of 44 days. The appointment can be terminated at any time without giving any notice.
(5) The appointee will not be entitled for any claim or right for regular appointment to the post."
Vide order dated 01.02.1999, the appointment of the applicant was further extended for 44 days i.e. w.e.f. 11.02.1999 to 27.03.1999 (Annexure R-2). Thereafter, vide order dated 31.3.1999 (R-3), the applicant was relieved of his duty. A certificate of satisfactory performance of the applicant during the said employment was issued by the respondents vide letter dated 10.05.1999 (Annexure A-2) and since then, as per the records, the applicant has not approached any authority or forum of competent jurisdiction for his continuance and/or for his re- engagement under the respondents. Though the applicant had asserted in para 4.2 of the OA that all 4 OA No.2568 of 2017 other 102 employees, who had been appointed along with him in the post of Nursing Orderly (hereinafter referred to as NO), were given further extentions and eventually regularized but the applicant was left abruptly. Aggrieved by the same, the applicant kept on approaching the authorities praying for not taking such harsh and discriminatory action against him. In the year 2013, the applicant is stated to have resorted to the proceedings under Right to Information Act, 2005 (hereinafter referred to as RTI Act), seeking disclosure of the reasons for non- payment of arrears of salary, disengagement and for not re-appointing him while other similarly placed employees, who were appointed along with him, were re-appointed. The CIC passed two orders dated 05.04.2016 and 29.04.2016 wherein it was held that pursuant to order of CIC a sanction order of payment of Rs.11,908/- was issued towards past wages to the applicant and the Commission recommended to the Secretary Health to consider his request for re- appointment. It is not in dispsute that pursuant to such order from the Commission, the applicant received payment of Rs.11,908/- from the respondents. However, pursuant to such order read 5 OA No.2568 of 2017 with order dated 29.04.2016 of the CIC, following recommendations were made vide Internal Note dated 21.11.2016 (Annexure A-5):-
"As per CIC's order dated 29.04.2016, the applicant was to be considered for re-appoinemnt to the post of NO. Since the NOs' appoitment is done at the level of DHS, please initiate necessary action to comply with CIC's order, under intimation to the undersinged"
Thereafter the applicant is stated to have made various representations including the one dated 13.12.2016 (Annexure A-6) followed by another representation dated 01.06.2017 (Annexure A-7) to the authorities. However, when the respondents had not taken any decision, the applicant approached this Tribunal by way of the present OA.
5. We have heard Ms. Sriparna Chatterjee, learned counsel for the applicant and Sh. Amit Anand, learned counsel for the respondents and have carefully perused the pleadings on record.
6. Learned counsel for the applicant has vehemently argued that removal of the applicant from service was bad and against the law as all others, who had initially joined along with the applicant, were allowed to continue and had been 6 OA No.2568 of 2017 eventually regularized, however, to ignore the applicant to continue and regularize his services is discriminatory and arbitrary. The wrongful action on the part of the respondents was rightly understood and appreciated by the CIC. The applicant, a poor person, has been harassed for 17 years and despite the recommendations of the respondents for re- appoinment of the applicant in view of the directions of the CIC, no order has been passed by the respondents for re-engagement/re-appoinment of the applicant under them. The applicant though worked to the best of satisfaction of his seniors as evident from the certificate dated 10.05.1999, referred to hereinabove, and one of the NOs, namely, Sh. Bimal Verma, who was working with him, had since been made a regular employee in Rao Tula Ram Hospital, Najafgarh, his claim for re-engagement has been ignored.
7. Per contra, learned counsel for the respondents has vehemently opposed the present OA. He has argued that the applicant was initially appointed for 44 days which was extended subsequently, vide order dated 01.02.1999 for further 44 days and he 7 OA No.2568 of 2017 was relieved, vide order dated 27.03.1999. He has submitted that an amount of Rs.11,908/- towards arrears of salary had been paid to the applicant. Learned counsel for the respondents further submitted that though the CIC is having no jurisdiction to decide service grievance(s) of the applicant, however, in view of the observation/suggestion contained in their order dated 29.04.2016, the representation of the applicant was duly considered but not acceded to by the competent auithority. Moreover, the competent authority held that the CIC is only concerned with supply/denial of information under RTI Act and has no jurisdiction on recruitment/regularization/ absorption of contractual employees. Learned counel for the respondents has further submitted that it had already been provided in the Office Memoraudm dated 24.12.1998 that the post is purely on temporary basis for a period of 44 days. The appointment can be terminated at any time without giving any notice and the appointee will not be entitled for any claim or right for regular appointment to the post. Having accepted such conditions by the applicant, he had no grievance 8 OA No.2568 of 2017 after being relieved in March, 1999. However, the applicant only started preferring complaints under the RTI Act from the year 2013.
8. Learned counsel for the respondents has vehemently argued that admittedly the applicant was relieved vide order dated 31.03.1999, but he has preferred the present OA on 28.07.2017, that too, without any application seeking condonation of delay in filing the same, therefore, the present OA is hopelessly barred by limitation in view of the provisions of Section 21 of A.T. Act, 1985 and the law laid down by the Hon'ble Apex Court in catena of decisions including in Basawaraj & Anr. vs. The Spl. Land Acquisition Officer, reported in (2013) 14 SCC 811. He has particularly invited our attention to paragraphs 15 & 16 of the judgment of the Hon'ble Apex Court in Basawaraj's case (supra), quoted in the counter reply filed on behalf of the respondents. He has further argued that in the facts and circumstances, no right or cause has accrued to the applicant in view of the order/judgment dated 18.08.2009 of the Hon'ble High Court of Punjab & Haryana at Chandigarh in 9 OA No.2568 of 2017 the case of Nirmal Singh & Others vs. State of Haryana & Ors.
9. Per contra, Ms. Chaterjee, learned counsel for the applicant, submits that the respondents have abruptly disengaged the applicant from 27.03.1999 and thereafter the applicant has constantly been approaching them for re-engagement and payment of arrears of his salary since 1999 upto 2013, and when his grievances were not redresssed, he had resorted to remedies under the RTI Act, which culminated into a direction by the CIC for release of applicant's arrears of salary and for re-appointment under the respondents. The respondents, vide letter dated 08.06.2016 released payment of Rs.11,908/- towards arrears of salary to the applicant and his name had also been recommended for consideration for re-appointment. Subsequent to that, the applicant had made representations dated 13.12.2016 and 01.06.2017 and when the respondents had taken no decision thereon, the applicant had approched this Tribunal. Thus, the OA is within limitation. To strengthen her submissions, she has placed reliance upon the 10 OA No.2568 of 2017 order/judgment of a single Bench of the Hon'ble High Court of Delhi in K.K. Dheer vs. Union of India & Ors. [135 (2006) DLT 300], Union of India vs. M.K. Sarkar, reported in 2010 (2) SCC 59, and on the judgment of the Hon'ble Supreme Court in Sualal Yadav vs. The State of Rajasthan & Ors, reported in AIR 1977 (SC) 2050.
10. It is not in dispute that the applicant has not filed any application seeking condonation of delay. A Constitution Bench of the Hon'ble Supreme Court in S.S. Rathore vs. State of Madhya Pradesh, reported in AIR 1990 (SC) 10, has held that the cause of action shall be taken to arise on the date of the order of the higher authority disposing of appeal or representation. Where such order is not made within six months after making such representation/ appeal, the cause of action would count from the date of expiry of six months from the date of filing of representation/appeal. Repeated unsuccessful representations not provided by law do not extend the period of limitation. It is further held therein that repeated representations and memorials to the President etc. do not extend limitation. The Hon'ble 11 OA No.2568 of 2017 Apex Court in State of Punjab vs. Gurudev Singh, reported in 1991 (4) SCC 1, has held that the party aggrieved by invalidity of the order has to approach the court for relief on declaration that the order against him is inoperative and not binding upon him, within the prescribed period of limitation since after expiry of the statutory period, the court cannot give the declaration sought for. Further, in Ratan Chandra Sammanta & Ors. vs. Union of India & Ors., reported in AIR 1993 (SC) 2276, the Hon'ble Apex Court, while dealing with the causal labourers, who were employed between 1964 to 1969 and retrenched between 1975 to 1979, has held that delay deprives the persons of the remedy available in law. The Hon'ble Supreme Court has further held that a person who has lost his remedy by lapse of time loses his right as well. It has also been held that a writ is issued in favour of a person who has some right and not for sake of roving enquiry leaving the scope for manoeuvring. Further, in DCS Negi vs. Union of India & Ors, reported in 2011 SCC-online 21, the Hon'ble Apex Court has held that the Tribunal cannot admit application unless the same is within the specific period or the order is passed in 12 OA No.2568 of 2017 terms of sub-section (3) of Section 21 of the A.T. Act for entertaining the application after prescribed period. It has been clearly ruled by the Hon'ble Apex Court that Section 21(1) is couched in negative form. It is the duty of the Tribunal to first consider the issue of limitation, and only thereafter admit the same if found to have been made within the period of limitation or sufficient cause is shown for not doing so within the prescribed period or an order is passed under Section 21(3) of the Act. In paragraphs 15 & 16 of Basawaraj's case (supra), the Hon'ble Apex Court has held as under:-
"15. The law on the issue can be summarised to the effect that where a case has been presented in the court beyond limitation, the applicant has to explain the court as to what was the "sufficient cause" which means an adequate and enough reason which prevented him to approach the court within limitation. In case a party is found to be negligent, or for want of bonafide on his part in the facts and circumstances of the case, or found to have not acted diligently or remained inactive, there cannot be a justified ground to condone the delay. No court could be justified in condoning such an inordinate delay by imposing any condition whatsoever. The application is to be decided only within the parameters laid down by this court in regard to the condonation of delay. In case there was no sufficient cause to prevent a litigant to approach the court on time condoning the delay without any justification, putting any condition whatsoever, amounts to passing an order in violation of the statutory provisions and it tantamounts to showing utter disregard to the legislature.
16. In view of above, no interference is required with impugned judgment and order of the High 13 OA No.2568 of 2017 Court. The appeals lack merit and are, accordingly, dismissed."
In paragraphs 15 & 16 of M.K. Sarkar's case (supra), the Hon'ble Apex Court has held as under:-
"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 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 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."
11. We note that after March 1999 and before 2013, there is nothing on record to show that the applicant has availed any statutory remedy against the action of the respondents challenged in the present OA. The applicant's resorting to the provisions under RTI Act 14 OA No.2568 of 2017 during 2013 and 2016 can be construed as the remedy available to him to obtain certain information but in no manner the same can be construed as statutory remedy against the action of the respondents in not continuing and/or regulrizing the applicant's services under the respondents.
12. In view of the judgement of the Hon'ble Supreme Court in M.K. Sarkar's (supra), we are of the view that even if the CIC has recommended the claim of the applicant for re-appointment and/or some recommendation has been made in the office of the respondents for re-appointment, the same cannot be construed as giving rise to a fresh cause of action to the applicant. Accordingly, the representations of the applicant subsequent to recommendation of the CIC and/or internal recommendation by the respondent-authorities shall also not give rise to a fresh cause of action to the applicant. Actual cause of action, if any, has arisen in favour of the applicant after his disengagement in March, 1999 and/or from the date when certain other persons stated to have been continued and/or regularized. However, before us, there is no specific averment in this regard. 15 OA No.2568 of 2017
13. So far as reliance of the learned counsel for the applicant on the judgment in K.K. Dheer's case (supra) is concerned, the same has been passed keeping in view the peculiar facts and circumstances entirely different than those in the case in hand. Moreover, before the Hon'ble High Court, the issue was for grant of prorata pension wherein the Hon'ble High Court noted that the pension is not a bounty payable on the sweet will and pleasure of the Government. The right to receive pension is a valuable right vesting in government servant. In paragraph 11 of the said judgment, the Hon'ble High Court has given a finding that after rejection of first representation of the petitioner dated 30.06.1997 another represenation was preferred by him on 08.06.1999, which was also rejected, and such representation was not rejected on the ground that since the previous representation has already been rejected, the second representation would not be maintainable. The facts and findings in K.K. Dheer's case (supra) are entirely different from the case in hand. So far as reliance of the learned counsel for the applicant on the order/judgment in the case of Sualal Yadav (supra) is concerned, the same has 16 OA No.2568 of 2017 already been considered by the Hon'ble High Court in K.K. Dheer's case (supra). Moreover, in the case of Sualal Yadav (supra), the Hon'ble Apex Court, having found that since the Governor had not dismissed the review application on the ground of delay and having entertained the same, held the same to be a case not fit for review. The Hon'ble Supreme Court had taken a view that the Governor has dismissed the review application on merit and, therefore, it was not open to the Hon'ble High Court to resurrect the ground of delay in review application at the remote stage. Thus, the facts and issues in Sualal Yadav's case (supra) are also different than those in the case in hand. It is also not out of context that keeping in view the conditions provided in the offer of appointment, no enforceable right is vested in favour of the applicant to seek regularization and/or continuance of his service under the respondents.
14. In view of the aforesaid facts and circumstances, we are of the considered view that the instant OA is not maintainable being barred by limitation, suffering from the vice of delay & latches and also lacking merit. The instant OA, therefore, 17 OA No.2568 of 2017 deserves to be dismissed and the same is accordingly dismissed. However, in the facts and circusmtances, there shall be no order as to costs.
(R.N.Singh) (A.K. Bishnoi) Member (J) Member (A) /n.ahuja/