Central Administrative Tribunal - Delhi
Shamsher Singh S/O Shri Phool Singh, ... vs Union Of India (Uoi) And Ors. Through The ... on 30 August, 2007
ORDER Neena Ranjan, Member (A)
1. The applicant, presently Assistant Commercial Manager (ACM), Northern Railway has assailed the impugned order dated 16.8.2005, a response to his numerous representations, objecting to exclusion from consideration for promotion in selection processes for Limited Departmental Examination (LDE) held in 1992 and 1995 and also for non observance of the sealed cover procedure.
2. Briefly, facts of the case are that applicant, an ST candidate, was appointed on 19.5.1977 as Coaching Clerk in Northern Railway in Group 'C'. Till 1984, he continued upwards in the hierarchy of Group 'C' to the level of Chief Booking Supervisor. His grievance starts from 1992, when a selection to Group 'B' was initiated on 29.7.1992. He gave written examination but he was not called for viva voce for reasons unknown. In the second selection held on 23.4.1995 he was not called to sit for the examination. However, one Shri C.L. Meena, junior to applicant, was allowed to sit in this second examination. Later, it was admitted by respondents that inclusion of Shri C.L. Meena had been wrongly done and this fact is stated in the impugned order. After third selection in 1998, a combined seniority list was issued wherein applicant was placed at S. No. 74 and Shri C.L. Meena at S. No. 95. Even though wrongly allowed to sit for examination Shri C.L. Meena had not made the grade in 1995 but later in 1998. When applicant passed written examination in the third selection, he was promoted from Group 'C' to Group 'B' along with Shri C.L. Meena on 16.11.1998.
3. After clearing examination, applicant was placed at Sl. No. 10 and and Shri Chhotey Lal Meena at S. No. 14 (Annexure A-6) on the panel of selection for the post of ACM against 70 quota for the year 1998-2000.
4. The entire thrust of applicant's grievance is that he was not called for viva voce exam in 1992 and then again Shri C.L. Meena, his junior throughout, had been allowed to appear in 1995. If he had appeared in 1995, he could have qualified and been promoted. In short, the applicant argues that firstly, he had a right to be considered at the right time, i.e., 1992 and 1995 when his juniors were considered and secondly he ought to have been kept in zone of consideration.
5. The applicant admits that during this period two charge-sheets were pending against him. The first was decided on 19.5.1995 wherein an entry of censure was awarded. In the second, decided on 21.5.1998, he had been exonerated. Both these charge-sheets were during his tenure in Group 'C'. However, his case could have been considered and the sealed cover procedure followed. On the question of delay to filing of this application in 2005, when cause of action arose in 1992/1995 his contention is that he had repeatedly represented his case right from 4.7.2002 to 2005 but there was no response. When the final reply came as per the impugned order dated 16.8.2005, he had filed this OA on 4.11.2005.
6. The case of the respondents rests on the grounds that all selections have been conducted within the framework of rules laid down in the Railway Servants (Discipline and Appeal) Rules. Details of the three selections held from Group 'C' to Group 'B' as per laid down quota of 30% (on merit) and 70% (on inter se seniority) in the Limited Departmental Examinations) is as under:
Selection Group 'B' Year Posts/Vacancies Gen. SC ST
Ist 22.1.1994 70% selection 1992 10 2 1
IInd 21.3.95 81 candidates 1995 23 No vacancy for SC/ST was
(70% vacancies) kept since their quota was
in excess
IIIrd 3.7.1998 70% vacancies 1998 27 4 2
7. The contention of the respondents is that the applicant was eligible to appear in 1994 examination and he did so, qualified in the written test but since quota of SC/ST got filled by ST candidate obtaining higher marks, he was not called for the viva voce. In any case, he had been allowed to appear as per prevailing Railway Board relaxed rules vide letter No. E(GP) 87/2/72 dated 1.1.1988. Sub-rule (iii) of Rule 3 reads as under:
The Notice issued for the selection, besides containing the name of eligible employees constituting the field, should contain a reserve list carrying the names of extra eligible employees with the indication that the latter would be called for the written examination in the event of drop out of employees constituting the field.
8. The respondents admit that a mistake had been committed when Shri C.L. Meena (also in the reserved list) was allowed to appear in the examination in 1995, but applicant was not called. However, since Shri Meena he had failed to make the grade there was no fall out and this mistake was later rectified. It is also contended that applicant was not called in 1995 since there was no vacancy for an ST candidate their quota was in excess. Moreover, his name was also not on the requisite list. It is to be noted that applicant has made no representations that objected to these issues till very late and in fact no representation exists on record, till 2004. The sealed cover procedure was not followed in his case since at that time he could not secure minimum qualifying marks/merit position against the reserved vacancy of ST quota and thus he was not placed on the panel of ACM. It would seem that by doing so no prevailing rule was violated.
9. The respondents also contend that the first receipted representation of applicant is of 2004. The applicant had claimed that he gave many representations from 2000 onwards but he has been unable to produce them because they got lost in transit on his transfer from Lucknow to Moradabad. Since no receipts are available for these representations, they cannot be taken as material evidence.
10. We have heard both the learned Counsels and gone through the records of the three selections which have been detailed by the applicant and the respondents in their respective OA and counter. As seen by tabulated position in para 4 two discrepancies are being assailed by applicant - one that even though he had passed written exam of LDE in 1992 he was not called for viva voce etc. and promoted and second, that he was not called to sit for 1995 exam, though his junior Shir Meena was called. The respondents indicate that for first exam the quota of ST for that year got filled by more meritorious candidates from the ST itself, hence applicant could be considered. For the second exam, the mistake has been admitted and rectified. We tend to agree with the argument and clarifications advanced by counsel for respondents. The records also support this view of the matter.
11. In support of contention regarding delay, the counsel of the applicant has referred to a number of judgments in the case of State of Bihar v. Kameshwar Prasad Singh and Ors. 2000 SOL Case No. 1062, Collector, I and Acquisiton, Anantnag and Anr. v. Mst. Katiji and Ors. , State of Haryana v. Chandra Mani and Ors. , Nand Kishore v. State of Punjab and N. Balakrishan v. M. Krishnamurthy to show that even long delays of over 11 years and 31 years have been condoned by the Apex Court. In the case of N. Balakrishan (Supra) it was observed as under:
11. Rules of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. Law of limitation fixes a life span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During efflux of time newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the courts. So a life span must be fixed for each remedy.
13. It must be remembered that in every case of delay there can be some lapse on the part of the litigant concerned. That alone is not enough to turn down his plea and to shut the door against him. If the explanation does not smack of mala fides or it is not put-forth as part of a dilatory strategy the Court must show utmost consideration to the suitor.
12. In the case of Chandra Mani and Ors. (Supra) it was observed as under:
10. It is notorious and common knowledge that delay in more than 60 per cent of the cases filed in this Court - be it by private party or the state - are barred by limitation and this Court generally adopts liberal approach in condonation of delay finding somewhat sufficient cause to decide the appeal on merits.... It is axiomatic that decisions are taken by officer/agencies proverbially at slow pace and encumbered process of pushing the files from table to table and keeping it on table for considerable time causing delay - intentional or otherwise - is a routine. Equally, the State cannot be put on the same footing as an individual. The individual would always be quick in taking the decision whether he would pursue the remedy by way of an appeal or application since he is a person legally injured while State is an impersonal machinery working through its officers or servants. Considered from the perspective, it must be held that the delay of 109 days in this case has been explained and that it is a fit case for condonation of the delay.
13. On question of delay, respondents on the other hand, have relied on Balbir Singh v. U.O.I. and Ors. SLR 2001 (2) 282, Ramesh Kumar v. U.O.I. and Ors. 2003 (6) SLR 55, State of West Bengal v. Gobinda Nath Deya and Ors. 194 (4) SLR 138. In the case of Ramesh Kumar (Supra) it was observed as follows:
Constitution of India, Articles 226, 227 and 323-A "Administrative Tribunals Act, 1985, Sections 3(b), (q), (r), 14(1), 19(1), 20 and 21" Limitation/Cause of action "OA filed after 4 years of the cause of action before the CAT" Barred by limitation - The cause of action shall be taken to arise not from the date of the original adverse order but the order of the higher authority where a statutory remedy is provided entertaining the appeal or representation is made and where no such order is made, though the remedy has been availed of, a six months period from the date of preferring of the appeal or making of the representation shall be taken to be the date when cause of action shall be taken to have first arise. It is also clarified that the principle may not be applicable when the remedy availed of has not been provided by law. Repeated unsuccessful representations not provided by law are not governed by this principle.
14. In the case of Balbir Singh (Supra), it was observed as under:
Constitution of India, Article 226 "Administrative Tribunals Act, 1985, Section 21" Limitation "Application can be filed before Central Administrative Tribunal within one year from the date of accrual of cause of action" Application filed after six years "Tribunal does not have jurisdiction to entertain application after six years being barred by limitation" Claim of the petitioner is rejected.
15. However, in our view, the cases referred to by applicant on question of delay do not help his case since there is little parity in the circumstances detailed. Moreover, it is seen that in this case the cause of action had occurred in 1992 and 1995. The impugned order had itself been given in 1995 and within a year the applicant ought to have come to the Tribunal. He has now done so after more than 10 years. At this late stage to disturb actions taken by department for various employees, over such a long period of time, would lead to unsettling of many settled matters. As per available records, the case of the respondents rests on observance of sanctioned rules and procedures. Hence in the interest of both justice and administrative exigencies, no fit grounds exist to interfere with the orders of the Railway Board in this case.
16. In view of the above, OA being bereft of merit is dismissed. No costs.