Central Administrative Tribunal - Cuttack
Shreenibasa Mishra vs Posts on 25 September, 2024
1 OA 260/00535 of 2019
CENTRAL ADMINISTRATIVE TRIBUNAL
CUTTACK BENCH
OA 260/00535 of 2019
Reserved on: 23.09.2024 Pronounced on : 25.09.2024
CORAM:
THE HON'BLE SHRI SUDHI RANJAN MISHRA, MEMBER (J)
THE HON'BLE SHRI PRAMOD KUMAR DAS, MEMBER (A)
1. Shreenibasa Mishra, aged about 59 years, S/o. Late
Banshidhar Mishra, SPM, Parjang, Dhenkanal H.O.
759120, residing At: Gabagoda, Po: G.N.Prasad, Via:
Mathakaragoba, Dist. Dhenkanal-759024, (Gr-c)
2. Alaya Kumar Pal, aged about 56 years, S/o. Late
Jayakrishna Pal, working as Dy. Post Master, Angul
H.O. residing At: Biswalsahi, Po: Khalari, Via:
Hulursingha, Dist: Angul-759132 (Gr-c).
3. Srikanta Chandra Sundar Ray, aged about 58 years,
S/o. Late Antaryami Sundar Ray, working as Postal
Assistant, Dhenkanal H.O.759001, residing At:
Gandakula, Po: Sekhpur, Via: Pattamundai, Dist:
Kendrapara-754215 (Gr-c).
4. Premarendu Pal, aged about 58 years, S/o. Late
Muchha Pal, working as Postal Assistant, Nalco Nagar
S.O. Angul H.O.-759145, residing At: Ambithy, Po:
Mahidharpur, Via: Hindol, Dist: Dhenkanal-759015
(Gr-c).
......Applicants
VERSUS
1. Union of India represented through its Director
General of Post, Ministry of Telecommunication, Dept.
2 OA 260/00535 of 2019
of Posts, Dak Bhawan, Sansad Marg, New Delhi-
110001.
2. Chief Postmaster General, Orissa Circle, Bhubaneswar,
Dist- Khurda, Odisha-751001.
3. The Superintendent of Post Office, Dhenkanal
Division, Dhenkanal-759001.
......Respondents
For the applicant : Mr. D.K.Mohanty, Counsel
For the respondents : Mr. C.Mohanty, Counsel
O R D E R
PRAMOD KUMAR DAS, MEMBER (A):
The prayer of the applicants in this OA, filed on 19.08.2019, virtually is to regularize their services from the year 1982 when they were kept under Reserved Trained Pool (RTP) candidate for appointment under the respondents as has been granted to other similarly situated persons on the strength of the order of the CAT, Jabalpur Bench in TA No. 82/86 dated 16.12.1986 upheld by the Hon'ble Apex Court in SLP No. 11313/1987 dated 11.05.1988; order of the Bombay Bench in OA No. 719/1996, order of the Hyderabad Bench of the Tribunal dated 15.04.2015 in OA 779 and 780 of 2013 and the order dated 28.03.1999 of the Madras Bench in OA No. 1734/2018 by quashing 3 OA 260/00535 of 2019 the order dated 19.03.2019 rejecting their representation for extension of the said benefits.
2. Respondents filed their counter contesting the case of the applicant both on delay/laches, limitation so also on merit.
3. As far as merit of the matter is concerned, based on the averments made in the counter, Ld. Counsel for the respondents has submitted that Dept. of Posts introduced RTP Scheme in 1980 for the candidates recruited as Postal Assistant to work in post offices on hourly remuneration basis when required to meet the short time and current needs and they were being given priority for absorption against the subsequent vacancies to be occurred. In 1983, they were given option to serve in Army Postal Service (APS) and the persons, so opted, were appointed as PA on ad hoc basis and deputed to APS and they were eligible to get the benefit of regular appointment in civil posts from the date their immediate junior was appointed on regular basis in civil post. The said RTP Scheme was abolished w.e.f. 04.03.1986. The applicants, namely S/Sh Shreenibasa Mishra, Alaya Kumar Pal, Srikanta Chandra Sundar Ray, Premarendu Pal, were selected and joined in practical training in RTP on 01.12.1982, 01.12.1982, 01.12.1982 and 08.12.1982 4 OA 260/00535 of 2019 being fully aware of the terms and conditions of RTP Scheme and were appointed as PA on 12.12.1986, 12.12.1986, 11.12.1986 and 11.12.1986 respectively.
4. It is submitted that some of the similarly situated employees approached before this Bench seeking regularization of their services rendered under RTP Scheme were already dismissed based on the decision of the Hon'ble Apex Court dated 01.08.1997 in CA No. 80/123 of 1996 dated 01.07.1997 (UOI & Ors Vs. K.N.Sivados & Ors). Based on the aforesaid decision, the Postal Directorate issued letter No. 44- 1/2011-SBP.II dated 12.04.2012 specifically providing therein that the service rendered under RTP Scheme by the personnel prior to their regular appointment as PA/SA cannot be counted for promotion, seniority or grant of MACP. Therefore, the applicants having accepted the terms and conditions were kept under RTP, the services rendered by them prior to their regularization cannot be counted for any purpose under law.
5. Insofar as limitation is concerned, it has been submitted that the applicants were kept under RTP during the year 1982 to 1985. For the first time, they raised their voice for counting the period under RTP after 5 OA 260/00535 of 2019 33 years, i.e. in 2018, thus, they became fence sitter and are not entitled to the benefit now claimed in this OA after such long lapse of time only because similar benefit was granted to others by virtue of the orders of the Courts. In this regard, the respondents have relied on the decision of the Hon'ble High Court of Orissa dated 24.07.2018 in W.P(C) No. 7015 and others of 2017 wherein the order of this Tribunal dated 18.08.2016 in OA Nos. 318 of 2017 and others passed ignoring the point of limitation was annulled.
6. According to Ld. Counsel for the applicants, the respondents rejected the claim of the applicant in order dated 19.03.2019 not on the ground of delay and laches but on the reason that the decision relied on by the applicants in their representation was held to be a case for those applicants and cannot be extended to others. Therefore, the objection of maintainability of this OA on the ground of delay/laches and limitation being afterthought cannot stand on the way of granting the benefits what has been granted to others. In this regard, the order dated 08.07.2019 passed by the Sr. Suptd. of Post Offices, Cuttack counting the period spent under Induction Training as qualifying service has been relied on. It is contended that since the applicants stood in similar footing like that 6 OA 260/00535 of 2019 of the applicants approached before different Benches of the Tribunal motioned above, simply because the applicants did not approach timely cannot be a ground to deny them the benefits which they are otherwise entitled to as per law and to justify their claim they have placed reliance on the decision of the Hon'ble Apex Court in the case of K.C.Sharma Vs. State of UOI & Ors, (1997) 6 SCC 721. It has been submitted by the Ld. Counsel for the applicant that the decision of the Hon'ble High Court of Orissa relied on by the respondents has no application in thy ease in hand because in the said decision the relief that was sought for by the applicant was for grant of LSG/HSG-I/HSG-II, which is not the case in hand. Similarly, insofar as earlier order of this Tribunal in OA No. 534/2019 is concerned, it is submitted that the said decision was reached by the Tribunal without taking into consideration the decision of the Hon'ble Apex court in the case of K.C.Sharma (supra), the same has no application to the present case. Accordingly, Ld. Counsel for the applicants has reiterated his prayer made in the OA.
7. We have considered the facts, arguments and the pleadings of the respective parties and perused the documents placed on record.
8. Since, respondents raised the crucial issue, i.e. point of limitation, 7 OA 260/00535 of 2019 as per the decision of the Hon'ble Apex Court in the case of in D.C.S. Negi Vs. Union of India & others (Civil Appeal No.7956 of 2011) decided on 7.3.2011, coupled with the specific provision of Section 21 of the AT Act, 1985, this Tribunal would like to consider the point of limitation before going to the merit of the matter.
9. Virtually, the prayer of the applicant is to direct the respondents to count their services rendered when they were empanelled and kept under RTP for appointment to PA/SA ranging from 1982 to 1985 for all purposes, i.e. seniority, grant of ACP/MACP etc.. They kept silent on the issue over a period of more than 30 years and, admitted, woke up from slumber in the year 2018 when similarly situated employees got the relief for their timely approach to Tribunal/Court.
10. It is needless to state that the law of limitation is based on equitable principle that equity helps the diligent and not the indolent. It induces the claimants to be prompt in claiming the relief. In other case where the remedy only, not the right, is extinguished by limitation the Court will refuse to entertain stale claims on the ground of public policy vide Tilokchand Motichand & Ors vs H.B. Munshi & Anr., 1970 AIR
898. 8 OA 260/00535 of 2019
11. The Hon'ble Apex Court in the case of Chennai Metropolitan Water Supply and Sewarage Board and Others v. T.T. Murali Babu, 2014 (4) SCC 108, have held that the delay may have impact on others' ripened rights and may unnecessarily drag others into litigation, and expressed opinion as under:
"16. Thus, the doctrine of delay and laches should not be lightly brushed aside. A writ court is required to weigh the explanation offered and the acceptability of the same. The court should bear in mind that it is exercising an extraordinary and equitable jurisdiction. As a constitutional court it has a duty to protect the rights of the citizens but simultaneously it is to keep itself alive to the primary principle that when an aggrieved person, without adequate reason, approaches the court at his own leisure or pleasure, the Court would be under legal obligation to scrutinize whether the lis at a belated stage should be entertained or not. Be it noted, delay comes in the way of equity. In certain circumstances delay and laches may not be fatal but in most circumstances inordinate delay would only invite disaster for the litigant who knocks at the doors of the Court. Delay reflects inactivity and inaction on the part of a litigant-a litigant who has forgotten the basic norms, namely, "procrastination is the greatest thief of time" and second, law does not permit one to sleep and rise like a phoenix. Delay doesbring in hazard and causes injury to the lis.
In the case at hand, though there has been four years' delay in approaching the court, yet the writ court chose not to address the same. It is the duty of the court to scrutinize whether such enormous delay is to be ignored without any justification. That apart, in the present case, such belated approach gains more significance as the respondent-employee being absolutely careless to his duty and nurturing a lackadaisical attitude to the responsibility had remained unauthorisedly absent on the pretext of some kind of ill health. We repeat at the cost of repetition that remaining innocuously oblivious to such delay does not foster the cause of justice. On 9 OA 260/00535 of 2019 the contrary, it brings in injustice, for it is likely to affect others. Such delay may have impact on others' ripened rights and may unnecessarily drag others into litigation which in acceptable realm of probability, may have been treated to have attained finality. A court is not expected to give indulgence to such indolent persons - who compete with 'Kumbhakarna' or for that matter 'Rip Van Winkle'. In our considered opinion, such delay does not deserve any indulgence and on the said ground alone the writ court should have thrown the petition overboard at the very threshold." (emphasis added).
12. Close to this case, in the case of State of Uttaranchal and Another v. Shiv Charan Singh Bhandari and Others, 2013 (12) SCC 179, the Hon'ble Apex Court declined to exercise extraordinary jurisdiction for inordinate delay and held as under :
"In State of T.N. v. Seshachalam, this Court, testing the equality clause on the bedrock of delay and laches pertaining to grant of service benefit, has ruled thus: ...filing of representations alone would not save the period of limitation. Delay or laches is a relevant factor for a court of law to determine the question as to whether the claim made by an applicant deserves consideration. Delay and/or laches on the part of a government servant may deprive him of the benefit which had been given to others. Article 14 of the Constitution of India would not, in a situation of that nature, be attracted as it is well known that law leans in favour of those who are alert and vigilant."
13. In the case of Uttaranchal Forest Development Corpn. and another v. Jabar Singh and others, (2007) 2 SCC 112, the Hon'ble Apex Court was pleased to observe as under:
10 OA 260/00535 of 2019 "43. The termination order was made in the year 1995 and the writ petitions were admittedly filed in the year 2005 after a delay of 10 years. The High Court, in our opinion, was not justified in entertaining the writ petition on the ground that the petition has been filed after a delay of 10 years and that the writ petitions should have been dismissed by the High Court on the ground of laches."
14. In the case of Bhoop Singh v. Union of India, (1992) 3 SCC 136, it was held by the Hon'ble Apex Court as under:
"8. There is another aspect of the matter. Inordinate and unexplained delay or laches is by itself a ground to refuse relief to the petitioner, irrespective of the merit of his claim. If a person entitled to a relief chooses to remain silent for long, he thereby gives rise to a reasonable belief in the mind of others that he is not interested in claiming that relief. Others are then justified in acting on that belief. This is more so in service matters where vacancies are required to be filled promptly. A person cannot be permitted to challenge the termination of his service after a period of twenty-two years, without any cogent explanation for the inordinate delay, merely because others similarly dismissed had been reinstated as a result of their earlier petitions being allowed."
15. In the case of P.K. Ramachandran Vs. State of Kerala & Anr., AIR 1998 SC 2276, the Hon'ble Apex Court while considering a case of condonation of delay of 565 days, wherein no explanation much less a reasonable or satisfactory explanation for condonation of delay had been given, held that "Law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the statute so prescribes 11 OA 260/00535 of 2019 and the Courts have no power to extend the period of limitation on equitable grounds."
16. In the case of State of Uttar Pradesh & Ors Versus Rajmati Singh, in Civil Appeal No. 9329 of 2022 (Arising out of SLP(C) No. 28128 of 2017) disposed of on 07.12.2022, the Hon'ble Apex Court held as under:
"10. The question that falls for our consideration is whether the claim of the respondent was inordinately delayed, obsolete, stale, and barred by the principle of delay and laches and as a civil claim, whether it was barred by law of limitation?
11. To trace out the answer to the question formulated above, some facts need to be repeated. The respondent was apparently relieved on 04081973 to undergo the required BTC courses. She was allegedly not permitted to resume duties in the year 1974 after she had completed B.Ed. degree. She made several representations, one after the other, but did not deem it appropriate to approach any judicial or quasi judicial forum. It was only after the enactment of Right to Information Act, 2005, whereunder the State Information Commission came to be constituted, that the respondent moved before the said Commission to issue a directive to discover the fate of her representations. The Commission passed an Order on 05.03.2009 asking the appellant authorities to communicate the decision on the representations of the respondent and it was in this backdrop that the communication dated 04.06.2009 was issued by the District Basic Education Officer, which according to the respondent revived her pending claim.
12. In our considered view, the respondent like any vigilant citizen, especially given that she does not belong to economically or socially backward segments of the society, was expected to assert her rights before an appropriate forum within a 12 OA 260/00535 of 2019 reasonable time. Repeated representations neither give rise nor revive the cause of action, if it had already arisen in the past. Respondent's difficulties do not end there, given that her services were brought to an end when she was denied to resume her duties in the year 1974. She was, thus, required to seek a declaration of her continuity or have a writ of mandamus issued for her reinstatement. She did not do either. The Information Commission is not a forum to adjudicate service disputes. It was not a forum which either could declare the rights of the respondent or grant any service benefits. The respondent's move before the State Information Commission was thus an exercise in futility. It leaves no room for doubt that the respondent slept over her rights and allowed the grass to grow under her feet for a long duration of over 33 years.
13. We are of the considered opinion that the respondent waived her rights to raise objections in this regard and is deemed to have abandoned her employment.
14. The next question which falls for consideration is whether a deemed order of termination of services or abandonment of employment could be challenged by the respondent before the Tribunal in the year 2010? There can be no quarrel that such a challenge was hopelessly time barred under Section 5 of U.P. Public Services (Tribunal) Act, 1976.
15. The view taken by the Tribunal on 11.06.2010 was legally correct and tenable. The High Court nevertheless vide Order dated 02.07.2012 passed in the respondent's Writ Petition set aside the Tribunal's order. A perusal of the High Court's order reveals that neither the principles of delay and latches nor the law of limitation were considered, with reference to the facts of the case in hand. The High Court blissfully ignored the proposition of law and proceeded on the premise that there was no fault on the part of the respondent to file the claim petition before the Tribunal as "the impugned order was passed on 04.06.2009 xx xx xx". The High Court completely overlooked the fact that it was not an order passed on the representations made by the respondent but was a communication sent to her under compulsion due to the directions issued by the State Information Commission. The said communication in no way revived the cause of action in favour of the respondent."
13 OA 260/00535 of 2019
17. Trite is the position of law that the court cannot grant an exemption from limitation on equitable consideration or on the ground of hardship. The court has time and again repeated that when mandatory provision is not complied with and delay is not properly, satisfactorily and convincingly explained, it ought not to condone the delay on sympathetic grounds alone.
18. From the above, it will be crystal clear that after the decision int eh case of K.C.Sharma (supra) relied on by the applicant, the Hon'ble Apex Court was harsh in so far as limitation is concerned. Therefore, this decision is of no help to the case of the applicant. The decision of the Hon'ble High Court of Orissa in W.P.(C) No. 715/2017 and others, relied on by the respondents, has fullest application in the present case because it was the conscious view of the Hon'ble High Court of Orissa that the applicant therein never claimed the benefit when cause of action arose and they had approached the Tribunal only when other employees who approached the court of law at the right time got the relief. Hence, the Hon'ble High Court of Orissa quashed the order of this Tribunal by holding that the applicant therein slept over the matter for years 14 OA 260/00535 of 2019 together and they can safety be treated as fence sitter as in the present case.
19. Equally, it is well settled principle of law that a settled thing should not be unsettled after a long lapse of time. Further, it is well settled law that the persons, who shall be affected in case relief is granted to an applicant must be arraigned as party to the litigation. In the present case, the applicants were appointed as PA during the year 1986. They woke from the slumber by making representation in 2018, i.e. after a lapse of more than three decades, praying inter alia for their regularization of their services from the date of their initial enrollment as RTP for granting the financial upgradation under TBOP and MACP on the analogy that the RTP employee, who were not regularized approached the various Tribunals wherein orders were passed to regularize them retrospectively. But, no explanation is forthcoming for not being vigilant if at all they had acquired an indefeasible right to be regularized from the date when they were inducted as RTP starting from the day they were appointed as PA in 1986. Therefore, allowing the benefit by condoning the delay would tantamount to unsettling a settled matter after about three decades. Further, direction of retrospective regularization at this 15 OA 260/00535 of 2019 stage would have much more adverse repercussion/affect and it may so lead to upsetting the promotional effects etc. affecting the rights of the others, who are not before this Tribunal. Hence, taking into consideration the entire aspect of the matter, this Tribunal is well convinced that this is a matter where no leniency can be shown to the applicants. On examination, we find that the facts and issues of the earlier OA 534/2019 are same and similar to the present case and, therefore, we see no justification to defer from the view already taken by the applicant in the aforesaid case.
20. In the result, for the discussions made above, MA 619/2019 stands dismissed and as a consequence MA No. 618/2019 as well as OA fails and are dismissed.
(Pramod Kumar Das) (Sudhi Ranjan Mishra) Member (Admn.) Member (Judl.) RK/PS