Central Administrative Tribunal - Cuttack
Banka Nidhi Behera vs D/O Post on 14 November, 2024
1 O.A.No. 260/00696 of 2019
CENTRAL ADMINISTRATIVE TRIBUNAL
CUTTACK BENCH, CUTTACK
O.A.No. 260/00696 of 2019
Reserved on 13.11.2024 Pronounced on 14.11.2024
CORAM:
THE HON'BLE SHRI SUDHI RANJAN MISHRA, MEMBER (J)
THE HON'BLE SHRI PRAMOD KUMAR DAS, MEMBER (A)
1. Banka Nidhi Behera, aged about 59 years, S/o. Late
Manohar Behera, SPM, Mahimagadi, Dhenkanal H.O.
759120, residing At/Po: Kusupanga, Via: Meramandali,
Dist: Dhenkanal-759014 (Gr-C)
2. Srikar Sethi, aged about 55 years, S/o. Late Subal Sethi,
working as SPM, Talcher MDG, Angul H.O. 759100,
residing At/Po: Kantioputasahi, Via: Anlabereni, Dist:
Dhenkanal-759026 (Gr-C).
3. Mahura Behera, aged about 60 years, S/o. Late Nanda
Kishore Behera, working as SPM, Kaniha S.O. under
Angul H.O.-759118, residing At: Katumunda, Po:
Ghagarmunda, Via: Parjang, Dist: Dhenkanal-759120
(Gr-C).
4. Smt. Jayanti Naik, aged about 58 years, D/o. Late
Bhaskar Chandra Naik, working as SPM, Dhenkanal
College, S.O. Dhenkanal H.O.-759001, residing At:
Sariapada, Po: Balarampur, Dist: Dhenkanal- 759025
(Gr-C).
5. Ashok Kumar Nanda, aged about 56 years, D/o. Late
Bhaskar Chandra Naik, working as SPM, Jublitown, S.O.
Dhenkanal H.O.-759001, residing At:Sariapada, Po:
Balarampur, Dist: Dhenkanal- 759025 (Gr-C).
......Applicant
VERSUS
1. Union of India represented through its Director General
of Post, Ministry of Telecommunication, Dept. of Posts,
Dak Bhawan, Sansad Marg, New Delhi- 110001.
2 O.A.No. 260/00696 of 2019
2. The Chief Post Master General, Odisha Circle,
Bhubaneswar, Khurda, Odisha-751001.
3. The Superintendent of Post Offices, Dhenkanal Division,
Dhenkanal-759001.
......Respondents
For the applicant : Mr. N.K.Sahoo, Counsel
For the respondents: Mr. D.K.Sahoo, Counsel
O R D E R
SUDHI RANJAN MISHRA, MEMBER (J):
Applicants have filed this OA on 15.10.2019 seeking to quash the orders dated 19.03.2019 and 23.08.2019 with further prayer to extend the benefit of regularization of their service from the date of their initial appointment, i.e. rendered as Reserved Trained Pool (RTP) period, for the purpose of grant of financial upgradation under TBOP & MACP Scheme in view of the order dated 15.04.2015 passed by CAT, Hyderabad Bench in OA Nos. 779 and 780 of 2013.
2. The case of the applicants is that through a regular process of selection, applicant No.3 was recruited as Postal Assistant under Reserved Trained Pool (RTP) in 1982 and applicant Nos. 1, 2, 4 & 5 were recruited as such in the year 1983 in Dhenkanal Division. They were sent for training on 11.04.1983, which they completed 3 O.A.No. 260/00696 of 2019 successfully and joined the said post. Their services were regularized in the year 1986. It is submitted by Ld. Counsel for the applicants that the applicants are entitled for regularization of their services from the date they were kept under RTP candidate as the similar benefits were granted to similarly situated persons on the strength of the order of the CAT, Jabalpur Bench in TA No. 82/1986 dated 16.12.1986 upheld by the Hon'ble Apex Court in SLP No. 11313/1987 dated 11.05.1988; order dated 31.08.2010 of the Bombay Bench in OA No. 719 to 727 of 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 the order dated 19.03.2019 rejecting their representation for extension of the said benefits. Praying for similar relief, applicants preferred representations, which have been rejected vide orders dated 19.03.2019 and 23.08.2019. Thereafter, they preferred another representation on 29.03.2019 before respondent No.2 and, having received no response, have filed this OA, along with MA 888/2019 seeking condonation of delay in filing this OA.
3. Respondents filed their counter contesting the case of the applicant both on delay/laches, limitation so also on merit. Ld. 4 O.A.No. 260/00696 of 2019 Counsel for the respondents by producing a copy of the order of this Bench in OA No. 534/2019 has submitted that some of the similarly situated employees, to that of the applicants herein, had approached this Tribunal and this Tribunal vide order dated 07.12.2023 dismissed the OA on the ground of delay. Since in the instant OA the facts and grounds stated by the applicants are similar, this OA is also liable to be dismissed.
4. In the MA, it is stated that after the order dated 11.05.1988 of the Hon'ble Supreme Court in SLP No. 11313/1987, the various Benches of the Tribunal allowed the OAs filed by the applicants therein. After coming to know such facts, applicants submitted representation on 29.03.2019 praying for counting his service from the dates of their initial appointment in between 1982-83. When the respondents did not give any attention to their representation, they have approached this Tribunal within the time, i.e. on 15.10.2019. Thus, in terms of the provision under Section 21 of the AT Act, there is no delay in approaching this Tribunal. It is further stated that the decision of the Hon'ble Apex Court was judgment in rem and, therefore, the benefit should have been extended to all similarly situated employees as held by the Hon'ble Apex Court in the case of State of UP Vs. A.K.Srivastava, (2015) 1 SCC 347. Since respondents 5 O.A.No. 260/00696 of 2019 did not extend the benefit, they have approached this Tribunal and, therefore, the point of limitation has no application. Further, it is stated in the MA that the cause of action is a recurring one and, therefore, the limitation has no application. In this regard, the applicant has placed reliance on the decision of the Hon'ble Apex Court in the case of UOI & Ors Vs.Tarsem Singh, (2008) 2 SCC (L&S) 765, and M.R.Gupta Vs UOI, AIR 1996 SC 669. He has also relied on the other decisions in this regard. Ld. Counsel for the respondents has submitted that the fact and issues involved in those cases relied on by the applicant has no application to the present case. It is submitted that in the event allowing this OA would tantamount to unsettling a settled matter after a long lapse of time and, that, in case the prayer is allowed, the applicants will have to be placed above many of the employees in the seniority list but none of them have been made as a parties in this OA. Further, it is submitted that the applicants seek the relief in an indirect manner, which they are not entitled to directly. In stating so, it has been submittd that this Tribunal after taking into cons ideation all aspect of the matter and with discussion and deliberation rejected the similar case in OA No. 534/2019, which order has not been set aside by any higher forum 6 O.A.No. 260/00696 of 2019 and, therefore, the same still hold the field. Accordingly, Ld. Counsel for the respondents has prayed for dismissal of this OA.
5. After giving due consideration to the arguments advanced by the parties, we have perused the pleadings and the materials placed in support thereof by the respective parties. We have also gone through the decisions relied on by the applicants in support of their prayer for condonation of delay and the facts of this case with reference to the OA No. 534/2019. The applicants have themselves placed reliance on the decision of the Hon'ble Apex Court in the case of State of Uttar Pradesh and Others v. Arvind Kumar Srivastava and Others, (2015) 1 SCC 347, wherein the Hon'ble Apex Court was pleased to hold as under:
22.1. The normal rule is that when a particular set of employees is given relief by the court, all other identically situated persons need to be treated alike by extending that benefit. Not doing so would amount to discrimination and would be violative of Article 14 of the Constitution of India.
This principle needs to be applied in service matters more emphatically as the service jurisprudence evolved by this Court from time to time postulates that all similarly situated persons should be treated similarly. Therefore, the normal rule would be that merely because other similarly situated persons did not approach the Court earlier, they are not to be treated differently.
22.2. However, this principle is subject to well recognised exceptions in the form of laches and delays as well as acquiescence. Those persons who did not challenge the wrongful action in their cases and acquiesced into the same and woke up after long delay 7 O.A.No. 260/00696 of 2019 only because of the reason that their counterparts who had approached the court earlier in time succeeded in their efforts, then such employees cannot claim that the benefit of the judgment rendered in the case of similarly situated persons be extended to them. They would be treated as fence-sitters and laches and delays, and/or the acquiescence, would be a valid ground to dismiss their claim.
22.3. However, this exception may not apply in those cases where the judgment pronounced by the court was judgment in rem with intention to give benefit to all similarly situated persons, whether they approached the court or not. With such a pronouncement the obligation is cast upon the authorities to itself extend the benefit thereof to all similarly situated persons. Such a situation can occur when the subject-matter of the decision touches upon the policy matters, like scheme of regularisation and the like (see K.C. Sharma v. Union of India). On the other hand, if the judgment of the court was in personam holding that benefit of the said judgment shall accrue to the parties before the court and such an intention is stated expressly in the judgment or it can be impliedly found out from the tenor and language of the judgment, those who want to get the benefit of the said judgment extended to them shall have to satisfy that their petition does not suffer from either laches and delays or acquiescence."
6. Hence, based on the aforesaid decision, their cases fall to the ground when, admittedly, no step was taken by them starting from 1982-83 till 2018. However, we find that the applicants did not assigned any reason for sleeping over the matter starting from 1982 till filing of representation in 2018. Hon'ble Apex Court in the case of State of Karnataka & Ors. Vs. S.M. Kotrayya & Ors., (1996) 6 SCC 267, have rejected the contention that a petition should be considered ignoring the delay and laches on the ground that he filed 8 O.A.No. 260/00696 of 2019 the petition just after coming to know of the relief granted by the Court in a similar case as the same cannot furnish a proper explanation for delay and laches. The Court observed that such a plea is wholly unjustified and cannot furnish any ground for ignoring delay and laches.
7. According to the Ld. Counsel for the applicant, this being a recurring cause, by application of the decisions relied on by him delay is not attracted is not appeal to judicial conscience because the prayer for regularization from 1982-83 will certainly alter the seniority of many persons in the cadre, which was set at rest long since but the persons, who shall be affected by virtue of granting relief to the applicants have not been made as a party in this OA. The Hon'ble Supreme Court in the case of State of West Bengal Vs. Debabrata Tiwari, 2023 SCC OnLine SC 219, have held that the prolonged delay in approaching the Court may be regarded as a waiver of a remedy and such a delay would disentitle the writ petitioners to the discretionary relief under Article 226 of the Constitution of India. In view of the facts and law, none of the decision cited by the applicants is of any help to them. 9 O.A.No. 260/00696 of 2019
8. However, after going through the order of this Tribunal dated 07.12.2023 in OA 534/2019, we find that the facts and issues involved in the present case were the same and similar to the OA No. 534/2019 wherein this Tribunal after due discussion and deliberation of the entire matter, dismissed the OA, relevant portion of which are quoted herein below:
"11. 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.
12. This Tribunal is also reminded by the decision of 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, the Hon'ble Apex Court have clearly 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, 10 O.A.No. 260/00696 of 2019 "procrastination is the greatest thief of time" and second, law does not permit one to sleep and rise like a phoenix. Delay does bring 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 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).
13. 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."11 O.A.No. 260/00696 of 2019
14. 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:
"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."
15. 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."
16. 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 12 O.A.No. 260/00696 of 2019 has to be applied with all its rigour when the statute so prescribes and the Courts have no power to extend the period of limitation on equitable grounds."
17. 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 reasonable time.13 O.A.No. 260/00696 of 2019
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 14 O.A.No. 260/00696 of 2019 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."
18. 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 much be arraigned as party to the litigation. In the present case, as admitted by the applicants, they were regularized as RTP in the year 1985-86. They woke from the slumber by making representation on 06.07.2018 (i.e. after a lapse of more than three decades) praying inter alia for their regularization from the date of their 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 regularized in 1985-86. 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 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. This Tribunal has gone into the decision relied on by the Ld. Counsel for the applicant in the case of Tarsem Singh (supra), which was a case where the applicant was entitled to certain financial benefits, which were not granted to him and, therefore, the Hon'ble Apex Court held that the matter being recurring cause of action, the delay has no application to the said case but this is a case where the applicant seeks to make them eligible by directing respondents to regularize them retrospectively and grant them the TBOP and MACP benefits. Thus, the decision in the case of Tarsem Singh is not at all 15 O.A.No. 260/00696 of 2019 applicable in the instant matter. Taking into consideration the entire aspect of this matter, this Tribunal is well convinced that this is a matter where no leniency can be shown to the applicant.
19. In the result, for the discussions made above, MA 617/2019 stands dismissed and as a consequence the OA fails."
9. In the instant case, we also do agree with the stand of the respondents that granting the relief in the present OA would tantamount to unsettling the settled matter after a long lapse of time and, that, the persons, who shall be affected in case relief is granted to an applicant, have not been arraigned as party to the litigation. In this connection this Tribunal is reminded by a decision of the Hon'ble Apex Court Supertech Ltd. Vs. Emerald Court Owner Resident Welfare Association and Ors, (2024) 1 SCC (L&S) 819, wherein it has been held that one cannot do indirectly what one cannot do directly ["Quando aliquid prohibetur ex directo, prohibetur et per obliquum"]. This decision has fullest application to the case in hand because though the applicants did not specifically pray in this OA for revision of seniority, the same is axiomatic in the event of grant of the relief for regularization of the applicants retrospectively.
10. In view of the detailed analysis made above and going by the earlier order of this Tribunal, quoted above, we are of the 16 O.A.No. 260/00696 of 2019 considered view that the applicants were not vigilant but were content to be dormant and close to sit on the fence till somebody else's case came to be decided and hence the MA 888/2019 stands dismissed and, accordingly, the OA fails.
11. In the result, both MA as well as OA are dismissed by leaving the parties to bear their own costs.
(Pramod Kumar Das) (Sudhi Ranjan Mishra) Member (Admn.) Member (Judl.) RK/PS