Central Administrative Tribunal - Allahabad
Abdur Rahman Khan vs Union Of India Through General Manager ... on 16 April, 2012
Open Court CENTRAL ADMINISTRATIVETRIBUNAL,ALLAHABAD BENCH, ALLAHABAD (This the 16th Day of April 2012) Honble Mr. Sanjeev Kaushik-JM Honble Mr. Shashi Prakash- AM Original Application No. 438 of 2012 (U/S 19, Administrative Tribunal Act, 1985) Abdur Rahman Khan, S/o Khursheed Ahmad Khan, R/o B/1060, Kareilly Scheme, Kareilly, Allahabad. . Applicant By Advocate: Shri S.K. Om Versus 1. Union of India through General Manager Eastern Railway, Gorakhpur. 2. Chief Personnel Officer, North Eastern Railway, Gorakhpur. 3. Chief Medical Director, North Eastern Railway, Gorakhpur. 4. Sr. Personnel Officer (Recruitment), N.E. Railway, Gorakhpur. .. . Respondents By Advocate: Shri Avnish Tripathi O R D E R
(By Honble Mr. Sanjeev Kaushik, J.M) By way of the present original application, the applicant seeks direction from this Tribunal to command the respondents to consider applicants appeal dated 27.01.2006 with further direction to the respondents to appoint him as Commercial Clerk consequent to passing the vocational training examination from the date his other counterparts of the year 1999 batch of vocation training are being appointed and assign him the seniority etc from that date.
2. Alongwith O.A the applicant has also filed Misc. Application No. 1189/12 for condoning the delay in filing O.A and to hear the matter on merits.
3. Shri Avnish Tripathi, who is having advance notice on behalf of respondents appeared, raised preliminary objection of delay and latches and prayed that the O.A be dismissed as the applicant is seeking direction to decide his pending appeal dated 27.01.2006 by filing the present O.A in 2012 after the delay of more than six years from the date of filing of appeal. He placed reliance upon the order of this Tribunal dated 30.03.2012 in O.A No. 227/2012 titled as Adesh Mishra & Another Vs. U.O.I & Ors.
4. Shri S.K. Om, learned counsel for the applicant on the other hand argued that the applicant filed appeal on 27.01.2006. Thereafter reminders were sent on 21.09.2006, 30.10.2007, 21.07.2009 and lastly the applicant filed an application under R.T.I Act on 26.09.2011. The applicant consistently approached the respondents for decision of his pending appeal; therefore, it does not lie in the mouth of the respondents to raise the objection of delay. Moreover, it is incumbent upon the respondents to decide his pending statutory appeal. He placed reliance upon the judgment of Honble Supreme court in the case of State of Bihar and Others Vs. Kameshwar Prasad Singh & Ors reported as 2000(9) SCC - 94 and argued that it is held by the Apex Court that dismissing the appeal on technical ground of limitation would not , in any way, advance interest of justice but admittedly the result in failure of justice.
5. We have considered the rival submissions.
6. Before looking the mater on merit, we deem it appropriate to firstly decide the preliminary issue of delay and latches raised by the respondents
7. Section 14 of the Administrative Tribunals Act 1985 (herein after referred as Act of 1985) deals with, who can approach the Tribunal for redressal of his grievance. Section 21of the Act of 1985 lay down the limitation for approaching the Tribunal, which is one year from the date of cause of action, which can be extended by another six months from the date of filing of statutory appeal, revision or representation. Section 21 of 1985 Act prescribes the limitation for approaching the Tribunal. Section 21 of 1985 Act reads as under: -
21.Limitation.- (1) A Tribunal shall not admit an application,-
(a) in a case where a final order such as is mentioned in clause (a) of sub-section (2) of section 20 has been made in connection with the grievance unless the application is made, within one year from the date on which such final order has been made;
(b) in a case where an appeal or representation such as is mentioned in clause (b) of sub-section (2) of section 20 has been made and a period of six months had expired thereafter without such final order having been made, within one year from the date of expiry of the said period of six months.
(2) Notwithstanding anything contained in sub-section (1), where-
(a) the grievance in respect of which an application is made had arisen by reason of any order made at any time during the period of three years immediately preceding the date on which the jurisdiction, powers and authority of the Tribunal becomes exercisable under this Act in respect of the matter to which such order relates; and
(b) no proceedings for the redressal of such grievance had been commenced before the said date before any High Court.
the application shall be entertained by the Tribunal if it is made within the period referred to in clause (a), or, as the case may be, clause (b), of sub-section (1) or within a period of six months from the said date, whichever period expires later.
(3) Notwithstanding anything contained in sub-section (1) or sub-section (2), an application may be admitted after the period of one year specified in clause (a) or clause (b) of section (1) or, as the case may be, the period of six months specified in sub-section (2), if the applicant satisfies the Tribunal that he had sufficient cause for not making the application within such period.
8. From the perusal of the aforesaid section it is clear that under the 1985 Act the O.A is to be filed within one year from the date of cause of action. The same is extended by another six months in terms of 21(i)(b). If the O.A is not filed within limitation then in terms of section 21(3) the applicant has to move Misc. Application for seeking Condonation of delay by explaining each day delay in not filing the Original Application within the limitation and if Tribunal satisfied the cause for not filing Original Application in time then Tribunal can condone the delay.
9. The Section 21 of the Administrative Tribunal Act 1985 came up for consideration before the Honble Apex Court in following cases:-
a. S.S. Rathore v. State of M.P. reported in 1990 SCC (L&S) 50 b. Administrator of Union Territory of Daman and Diu and others Vs. R.D. Valand 1995 Supp(4) Supreme Court Cases 593 c. Union of India & Ors. v. M.K. Sarkar reported in (2010)2 Supreme Court Cases 59 d. Union of India & Ors. v. A. Durairaj reported in JT 2011 (3) SC 254 In S.S. Rathores Case Lordship of Supreme Court held that successive representations cannot extend the period of limitation. The observations of Para 20 and 21 of the said judgments is reproduced herein under : -
20. We are of the view that the cause of action shall be taken to arise not from the date of the original adverse order but on the date when 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 arisen. We, however, make it clear that this 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.
21. It is appropriate to notice the provision regarding limitation under Section 21 of the Administrative Tribunals Ac. Sub Section (1) has prescribed a period of one year for making of the application and power of condonation of delay of a total period of six months has been vested under sub-section (3). The civil courtss jurisdiction has been taken away by the Act and, therefore, as far as government servants are concerned, Article 58 may not be invocable in view of the special limitation. Yet, suits outside the purview of the Administrative Tribunals Act shall continue to be governed by Article 58.
In the case of Administrator of Union Territory of Daman and Diu and others (Supra) the Honble Supreme Court has held as under : -
.......... The Tribunal fell into patent error in brushing aside the question of limitation by observing that the respondent has been making representation from time to time and as such the limitation would not come in his way .
10. Recently in the case of Union of India & Ors. v. A. Durairaj reported in JT 2011 (3) SC 254, the Honble Apex Court has held as under:-
Re: Question(i)
12. Section 21 of the Administrative Tribunals Act, 1985 prescribes the limitation for approaching the Tribunal in this case the medical examination of the Respondent and the non-promotion as ad hoc ASTE were in the year 1976. The Respondent accepted the diagnosis that he was colour blind and did not make any grievance in regard to his non-promotion. On the other hand, he attempted to get treatment or correction contact tenses from USA (to aid the colour blind to distinguish colours correctly). On account of the non challenge, the issue relating to his non-selection in 1976 attained finality and the same issue could not have been reopened in the year 1999-2000, on the ground that medical tests conducted in 1998 and 2000 showed him to be not colour blind.
13. 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 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.
14. This is a typical case where an employee gives a representation in a matter which is stale and old, after two decades and gets a direction of the Tribunal to consider and dispose of the same, and thereafter again approaches the Tribunal alleging that there is delay in disposal of the representation (or if there is an order rejecting the representation, then file an application to challenge the rejection, treating the date of rejection of the representation as the date of cause of action). This Court had occasion to examine such situations in Union of India v. M.K. Sarkar (JT 2009 (15) SC 70: 2010(2) SCC 58) and held as follows:-
The order of the Tribunal allowing the first application of Respondent without examining the merits, and directing appellants to consider his representation has given rise to unnecessary litigation and avoidable complications. Xxxxx 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 cannot be considered as furnishing a fresh cause of action for reviewing 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 courts direction. Neither a courts direction to consider a representation issued without examining the merits, nor a decision given in compliance with such direction, will extended the limitation. Or erase the delay and laches.
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 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 legal position and effect. 14.1 We are therefore of the view that the High Court ought to have affirmed the order of the Tribunal dismissing the application of the Respondent for retrospective promotion from 1976, on the ground of delay and laches.
11. We have considered the judgment cited by the learned counsel for the applicant and are of the view that the same is not applicable to the facts and circumstances of the instant case. Honble Supreme Court has considered the point of delay on the part of the Government and held that in the case of Government liberal view be taken. Section 21 of the Act frames time limitation of one year from the date of cause of action, which can be extended by another six months. In the present O.A admittedly the applicant under gone training in the year 1989-99, declared medically unfit by letter dated 16.01.2006. He preferred appeal on 27.01.2006 instead of approaching the court of law for redressal of his grievance, he keep on making representations. He filed the present O.A after six year from the date of filing appeal and ten years from the date of cause of action when others were given appointment. It is held by the Lordships of Apex Court in the case of S.S. Rathore v. State of M.P. reported in 1990 SCC (L&S) 50 that the repeated representation cannot extend the period of limitation. Though the law of limitation is harsh but it is to be applied rigorously, as stale claim cannot be allowed to alive after unreasonable / unexplained period that too for a person who slept over his right by not seeking remedial action for redressal of his grievance at the relevant time.
12. By applying the above ratio of law to the facts of the present case, we are satisfied that the applicant failed to given cogent reason, therefore, M.A No. 1189/12 for condonation delay in filing O.A is rejected. Accordingly the O.A is dismissed on the ground of delay and latches. No costs.
Member A. Member - J. /Anand/ ?? ?? ?? ?? 9 O.A. No.438 of 2012