Central Administrative Tribunal - Delhi
Gaj Raj Singh (Guard) vs Union Of India on 14 February, 2011
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH, NEW DELHI OA No.1950/2010 New Delhi, this the 14th day of February, 2011 HONBLE MRS. MEERA CHHIBBER, MEMBER (J) HONBLE DR. A.K. MISHRA, MEMBER (A) 1. Gaj Raj Singh (Guard), S/o Shri Nihal Singh, Under Station Superintendent, Moradabad (U.P.). 2. Firoz Akhtar Sodium (Guard), S/o A.R. Siddiqui, Under Station Superintendent, Lucknow (U.P.). 3. Akhilesh Kumar Saxena, S/o Shri Krishna Saxena, Head Parcel Clerk, Under Station Superintendent, Shahjahanpur (U.P.). 4. Uday Raj Sharma, Presently posted as Head Booking Clerk, Gajraulla, Distt. J.P. Nagar (U.P.) 5. Niranjan Singh (Guard) S/o Shri Bhoopal Singh, Under Station Superintendent, Moradabad (U.P.). 6. Rishi Pal Singh, S/o Shri Shankar Singh Chauhan, Head Booking Clerk, Under Station Superintendent, Chandausi (U.P.). 7. Virendra Kumar (Guard), S/o Shri Kalyan Singh, Under Station Superintendent, Moradabad (U.P.). 8. Smt. Vimla Sharma, W/o Shri Gopal Sharma, Head Booking Clerk, Under Station Superintendent, Moradabad (U.P.). 9. Kuldeep Trikha, TTE, Under Station Superintendent, Moradabad (U.P.). 10. Vijay Kumar, S/o Shri Ganga Dayal, TTE, Under Station Superintendent, Bareilly (U.P.). 11. Kifayatullah, S/o Shri Hidayatullah, CIT, Under Station Superintendent, Moradabad (U.P.). ..Applicants By Advocate: Shri Anoop Kumar Srivastava. Versus 1. Union of India Through the General Manager, Northern Railway, Railway Headquarter, Baroda House, New Delhi. 2. Divisional Railway Manager, Moradabad Division, Northern Railway (DRM Office), Moradabad (U.P.). Respondents By Advocate: Shri R.L. Dhawan. O R D E R By Honble Mrs. Meera Chhibber, Member (J) :
OA has been filed by as many as 11 persons who have claimed a direction to the respondents for granting them attending benefits arising out of temporary status on completion of 120 days from the date of initial appointment and regularization 3 years thereafter in terms of order dated 4.6.1990 passed by the Tribunal in the case of Mohinder Kumar Vs. Union of India & Others.
2. It is submitted by the applicants they were appointed as Mobile Booking Clerks (hereinafter referred to as MBC) on daily wage basis from 1979 onwards. As per the judgment, they ought to have been given temporary status on completion of 120 days and regularised after 3 years of regular service thereafter, whereas the applicants were selected as Coaching Clerks (hereafter referred to as CC) which shows applicants were at Sl.Nos. 6, 14, 18, 21, 22, 29, 35, 39, 41 and 42. They have given representation to the authorities on 19.8.2008 claiming the above benefits. However, since no reply was given, they had filed OA No. 870/2008 which was disposed of on 9.4.2008 (page 73 at 83) by directing the respondents to decide their representation. The respondents thereafter passed order dated 29.6.2009 (page 25 at 27) rejecting their claim on the ground that the applicants were directly recruited as CC through Railway Service Commission, Allahabad and Muzaffarpur in the year 1985. Though they had worked as MBC for certain period, but had not been regularized from the post of MBC to CC, therefore, benefit of Circular dated 24.8.1990 cannot be extended to the applicants.
3. Applicants had now filed the present OA seeking the relief, as mentioned above. They have basically relied on Circular dated 24.8.1990 (page 144) which reads as under:-
Sub.: Regularization and temporary status to Mobile Booking Clerks.
Hon CAT in case of Mohinder Kumar and others Vs. U.O.I. in O.A. No.896/88 and others, have delivered judgment dated 04.06.1990 and the court has issued directions as below :-
In the process of regularization, 1095 working days should not be considered but only 3 years should be considered. In the judgment the court has explained that the applicant M.B.Cs should be given the benefit of Sundays and gazetted holidays.
That temporary status should be given to those M.B.Cs who complete four months continuous services and even on a day if they have worked for a few hours it should be construed as one day.
That back wages should be paid to all the M.B.Cs from the day they were discharged to the day they were re-engaged in terms of CAT, Principal Bench, Delhis judgment in O.A. No.1174-A/86 dated 28.08.87 in case of Meera Mehta and others Vs U.O.I. The case was put up to a G.M. for deciding on filing SLP in the issues. It has been decided that items (i) and (ii) should be implemented whereas on item (iii) regarding back wages the Railway should contest by filing the SLP.
4. Respondents on the other hand have opposed this OA. They have taken preliminary objection to the maintainability of the OA on the ground that neither this court has jurisdiction to entertain this OA nor it is maintainable being barred by limitation. They have placed reliance on the judgment in the case of Raghubir Singh Vs. U.O.I. reported in SLJ 2007 (3) CAT 149 and Ratam Chandra Sammanta Vs. U.O.I. reported in JT 1993 (3) 418.
5. They have further stated though applicants are seeking temporary status on completion of 120 days of service as MBC in the year 1979 but they have not indicated how they were appointed as MBC, the place where they have worked as MBC, the date on which they completed 120 days of continuous service etc. Neither have they produced any authentic document in support of their averment. They have specifically stated that circular dated 24.8.1990 would not apply in the case of applicants because they were directly recruited as CC through Railway Service Commission, Allahabad and Muzaffarpur in the year 1985 in accordance with the RRs. They attended course T-7 from 25.2.1985 to 22.4.1985 at Zonal Training School, Chandausi in the last week of February, 1985. They were declared pass, as is evident from Annexure A-7 as annexed by the applicants themselves. The order dated 29.6.2009 was passed in compliance with the courts directions but it would not give them a fresh cause of action to file the present OA as their cause of action had arisen in 1979.
6. They have further stated that though applicants have sought benefit of the judgment in the case of Mohinder Kumar and Others Vs. U.O.I. & Others but copy of the said judgment has not been filed by them, therefore, they are not in a position to respond to that. They have thus prayed that the OA may be dismissed.
7. We have heard both the counsel and perused the pleadings also.
8. In Shri Arun Agarwal Vs. Nagreeka Exports Pvt. Limited and Another reported in 2002 (1) SCC 101 it was held by Honble Supreme Court when preliminary objection is taken, it is required to be decided first.
9. In view of above, we would first have to deal with the preliminary objection.
10. It is stated by the applicants that they were appointed as MBC on daily wages in the year 1979. They should have been given temporary status on completion of 120 days and regularized as such on completion of 3 years of service meaning thereby that they are claiming benefit from 1979 itself or latest by 1982. However, the applicants have not annexed any order to show when exactly they were engaged as MBC, under whom they had worked and when they had completed 120 days of service or 3 years of regular service. They have also not annexed any order to show how they were regularized as is alleged by the counsel for the applicants. On the contrary, perusal of page 43, Annexure A-6 letter dated 9.1.1985 shows the subject itself is Recruitment and Training of Probationary Coaching Clerk, Grade Rs.260-340. Reading of this letter shows that the list of persons which is annexed with the letter were to be sent for Training Course of Coaching Clerk, Grade Rs.260-340 from the last week of February, 1985 at Chandausi. It was in this context that Station Superintendent, Moradabad, Hapur, Haridwar, Bareilly, Shajahanpur, Dehradun, Rampur, Luxar, Hardoi and Nazibabad were directed to advise the persons accordingly. From above it is clear that this order neither granted temporary status to the applicants nor they were regularized as was claimed by the counsel for the applicants. Respondents have specifically stated that the applicants were recruited directly through the Railway Service Commission, Allahabad and Muzaffarpur as CC in the year 1985. It is thus clear that the applicants were directly recruited in 1985. This appointment was accepted by the applicants and they have been working on these posts since then. If applicants felt they were entitled for grant of temporary status or regularisation from an anterior date, they ought to have come to the court when their cause of action had arisen. Admittedly, neither they filed any case in the year 1979 nor in 1985 when they were directly recruited as CC. Even in 1990 when this circular was issued by the respondents, they made no effort to claim the benefit of said circular by filing an OA. The present OA has been filed on 23.12.2009. The applicants have not explained why they did not approach the court at appropriate stage when cause of action was alleged to have arisen in their favour. The only representation which has been annexed by the applicants was also dated 19.8.2008 whereas they are claiming benefit of circular dated 24.8.1990. It is thus clear that even this representation was given after a long delay.
11. It is correct that applicants approached this Tribunal by filing OA No. 870/2008 which was disposed of by giving a direction to the respondents to dispose of the representation without going into the merits of the case. It was in compliance with the directions given by this Tribunal that respondents issued order dated 29.6.2009 rejecting their claim by stating in clear words that they were not regularized as MBC but were recruited as CC directly by the Railway Service Commission, Allahabad and Muzaffarpur. Interestingly, applicants have not even challenged this order in the present OA meaning thereby the reasoning of respondents stands unrebutted. They have only sought a direction to the respondents to grant them temporary status on completion of 120 days of service and regularisation 3 years thereafter. The present OA is, therefore, definitely barred by limitation.
12. As far as order dated 29.6.2009 is concerned, this will not give any fresh cause of action to the applicants in view of judgment given by Honble Supreme Court in the case of U.O.I. Vs. M.K. Sarkar, reported in 2010 (2) SCC 58, wherein it has been explained that limitation has to be counted from the date of original cause of action and not from the date when an order is passed in compliance with courts order. It was further held that stale matters should not be entertained:
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. 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. Moreover, 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 `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 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.
This case would squarely cover the present case. Since their initial cause of action had arisen in 1979 whereas the OA has been filed in 2009, this is definitely a stale matter.
13. Even if we go by the averments made by the applicants, cause of action had arisen in 1979 itself because they are seeking temporary status on completion of 120 days whereas the Tribunal came into existence on 1.11.1985. In the Central Administrative Tribunals Act, 1985, it is made clear that it would look into the grievances where cause of action has arisen 3 years prior to the Notification of the Act, therefore, at best the grievance which had arisen on or after 1.11.1982 could alone have been looked into by the Tribunal. Since cause of action had arisen prior to 1.11.1982, this Tribunal would not even have jurisdiction to entertain this OA. The present OA is, therefore, barred by limitation as well as jurisdiction both.
14. Even otherwise, as we have already noted above, the application is absolutely vague inasmuch as the basic particulars which may be necessary for adjudicating the issue have also not been placed on record by the applicants nor any supporting documents have been placed on record inasmuch as applicants have not even stated when they had completed 120 days under whom and at which station. They have placed reliance on Mohinder Kumars judgment but the case of Mohinder Kumar was also decided on 4.6.1990. No satisfactory reason has been given by the applicants as to why they are claiming benefit of said judgment after lapse of 9 years. Honble Supreme Court in Bhoop Singh Vs. UOI & Ors., 1992 (2)SLJ 103 SC has held that a government servant who had legitimate claim to approach the Court for the relief should do it within a reasonable period. Judgment in some other case cannot give fresh cause of action to the applicants. This was necessary to avoid dislocating the administrative set-up after functioning for years. Similarly, the Honble Supreme Court in the case of State of Karnataka & Ors. Vs. S.M. Kotrayya & Ors., 1996 SCC (L&S) 1488 has held that belated applications, immediately after coming to know that similar claim has been granted by the Tribunal, was not a proper explanation to justify condonation of delay. The observations of the Honble Supreme Court reads as follows:-
In this case, the explanation offered was that they came to know of the relief granted by the Tribunal in August 1989 and that they filed the petition immediately thereafter. That is not a proper explanation at all. What was required of them to explain under sub-sections (1) and (2) was as to why they could not avail of the remedy of redressal of their grievances before the expiry of the period prescribed under sub-section (1) or (2). In the case of Ratan Chandra Sammanta & Ors vs. Union of India & Ors (JT 1993 (3) SC 418) the Apex Court has held that delay deprives the person of the remedy available in law. A person, who has lost his remedy by lapse of time, loses his right as well. In the said case, the petitioners had approached Honble Supreme Court after over 15 years and even at that time they had not placed supporting documents on record. Honble Supreme Court observed as follows:-
The petitioners did not take any step to enforce their claim before the Railways except sending a vague representation nor did they even care to produce any material to satisfy this Court that they were covered in the scheme framed by the Railways. It was urged by the learned Counsel for petitioners that they may be permitted to produce their identity cards etc., before opposite parties who may accept or reject the same after verification. We are afraid it would be too dangerous to permit this exercise. A writ is issued by this Court in favour of a person who has some right. And not for the sake of roving enquiry leaving scope for manoeuvring. Delay itself deprives a person of his remedy available in law. In absence of any fresh cause of action or any legislation a person who has lost his remedy by lapse of time loses his right as well.
15. In P.K. RAMACHANDRAN Vs. STATE OF KERALA AND ANOTHER reported in JT 1997 (8) SC 189 it has been held by Honble Supreme Court that the law of limitation may harshly affect a particular party but it has to be applied with all its rigor when the statute so prescribe and the Courts have no power to extend the period of limitation on equitable grounds. The discretion exercised by the High Court was, thus, neither proper nor judicious. The order condoning the delay, therefore, cannot be sustained.
16. In view of above, it is clear that not only the OA is barred by limitation and jurisdiction but is vague, we, therefore, are not inclined to interfere. The same is dismissed. No order as to costs.
(DR. A.K. MISHRA) (MRS. MEERA CHHIBBER)
Member (A) Member (J)
Rakesh