Central Administrative Tribunal - Delhi
Shri Dharamveer Vats vs The Chief Secretary on 23 August, 2011
Central Administrative Tribunal Principal Bench O.A.No.2438/2010 New Delhi, this the 23rd day of August, 2011 Honble Mrs. Meera Chhibber, Member (J) Honble Shri Shailendra Pandey, Member (A) Shri Dharamveer Vats s/o Late Shri C.M.Vats r/o House No.156, Palam Village New Delhi 110 045. Applicant (By Advocate: Sh. Bijender Singh) Versus The Chief Secretary Govt. of NCT of Delhi New Secretariat Players Building, I.P.Extension New Delhi 110 002. The Chief Engineer Department of Irrigation & Floods Govt. of NCT of Delhi Fourth Floor, ISBT Kashmere Gate Delhi 110 006. .. Respondents (By Advocate: Ms. Rashmi Chopra) O R D E R By Shailendra Pandey, Member (A):
This is the third round of litigation in this Tribunal.
2. The grievance of the applicant in this OA is that he was not given three chances for appearing in the relevant examination, by giving age relaxation, in terms of the direction (the second direction) by this Tribunal vide its order dated 20.09.1991 passed in OA No.207/1986.
3. The brief facts of the case are that the applicant was initially appointed w.e.f. 07.05.1980 by the respondent for doing typing work on daily wage basis, and worked in this capacity till 31.10.1983. Thereafter, he was appointed as work charge Beldar-cum-Chowkidar on ad hoc basis from 1.11.1983 to 30.09.1985. After this, though his ad-hoc service was not extended, he was engaged as daily wage Typist with the respondent for a specified period from 01.10.1985 to 30.04.1986. Thereafter, his services were not renewed and, therefore, he filed OA No.207/1986 before this Tribunal which was disposed of vide order dated 20.09.1991 with the following two specific directions:
To place the applicant in a panel for ad hoc appointment or casual appointment to posts which may be filled up on ad-hoc or daily rated basis, keeping in view his overall length of service from May, 1980 till 30.04.1986 as a single unbroken spell of employment on casual-cum-ad hoc basis for determining his seniority; and To give the applicant three chances to appear in a test or examination for regular appointment, as a Typist-Clerk or any other Group `C post for which he is eligible, deeming the age limit to have been relaxed in his case. The test may be administered directly by the respondents or the Staff Selection Commission, and the applicant was to be regularly appointed if he qualified in the said test or examination.
4. On his taking up the matter of implementation of the Tribunal order dated 20.09.1991, the applicant was informed by Office of the Executive Engineer, Flood Control & DRG. Division IV, Delhi Admn., vide its Memorandum dated 26.09.1992 that his name has been empanelled for ad hoc/casual basis appointment to posts which may be filled up on adhoc or daily rated basis in this department. As regards affording three chances to appear in a post or examination conducted by Staff Selection Commission for regular appointment on a Typit-Clerk or any other Grade-C post suitable to his qualifications, he was further informed that the matter has been taken up with the services Department and decision in this regard will be communicated in due course. Thereafter, the applicant filed OA No.1246/1993 before this Tribunal in which the following order was passed on 07.06.1993:
5. The learned counsel for the petitioner submits that he would like to withdraw this O.A. with liberty to pursue the matter in contempt proceedings. The O.A. is dismissed as withdrawn with liberty to the petitioner to pursue the matter in accordance with law, if so advised.
5. It is stated that in OA No.1112/1991, filed by some similarly placed persons, directions were given on 28.07.1995 to appoint them on probation basis subject to their passing a suitability test on relaxed standards, and that on 10.01.1998 the respondent regularised the services of 117 persons on work charged establishment on the recommendations of the DPC constituted to conduct a suitability test for all categories of Group `C casual workers. However, while conducting this suitability test, the direction given by this Tribunals order dated 20.09.1991 were ignored and the applicant was not informed that he should appear in the suitability test. It is admitted that the applicant was not a party to the proceedings in OA No.1112/1991. It is stated by the applicant that he sent a representation dated 24.03.2001 followed by a legal notice dated 08.08.2001, but there was no response from the respondents and he, therefore, approached the Industrial Tribunal on 30.05.2003 vide ID No.61/3/06(10/03). The Industrial Tribunal dismissed the case of the applicant on 07.10.2009 with the following observations:
In view of the above observation, it is clearly found that the controversy regarding regular appointment has already been settled by the Central Administrative Tribunal by holding workman/applicant entitled for regular appointment when vacancy is available and applicant qualifies the test given by the management or through SSC. It is not the case of the workman that he has qualified any test given by the management or by SSC. It is alleged that he was not informed about the test where 180 persons have taken the test and have employed on regular basis. This workman did not make any representation or applied for the test. In view of these facts, I have no hesitation to hold that claim of workman that appointing him, on a suitable post as per his panel seniority is not maintainable as this issue has already been decided by Honble Central Administrative Tribunal. Directions were given to the management to place the workman on the panel but this workman did not comply with the directions of the Honble Central Administrative Tribunal by not making an application for taking test or examination or making any representation. Therefore, the claim of the workman is not maintainable in view of the objections taken by the management as same controversy has already been adjudicated by Honble Central Administrative Tribunal. Accordingly, both issues are decided in favour of management and against the workman.
Thereafter, the applicant approached the High Court of Delhi in WP (C) No.1745/2010, which was also dismissed on 12.03.2010 as withdrawn giving liberty to the applicant to take appropriate proceedings before the Central Administrative Tribunal for his grievance in regard to directions contained in the order of this Tribunal dated 20.09.1991 passed in OA No.207/1986. Hence, the present OA has been filed, raising various grounds mentioned in Para 5 of the OA, and the following relief is sought:
to direct the respondents to reinstate the applicant on regular basis with full back wages w.e.f. 1st May, 1986 with consequential benefits and arrears from 01.05.1986 till the date of resumption of duty with continuity of service.
6. The respondents have filed their reply and have stated that the directions issued in OA No.207/1986 were complied with by the respondents, and after 19 years, the applicant is raising grievances for which he is himself at fault, and that such a belated claim cannot be entertained. In so far as the first direction of this Tribunal in OA No.207/1986 is concerned, it is stated that the applicant was empanelled for ad hoc/casual appointment and this direction was, therefore, complied with. As regards the second direction in the OA No.207/1986, it is stated that this could only have been implemented when the applicant applies for any specific post or makes an application to the SSC (DSSSB) through the department, but he did not do so and in spite of being in possession of all the facts of his case, he never submitted any application for recommending to the SSC, who conducts such test/exams. It is also stated that there is no vacant post of Group `C Typist available in Irrigation and Flood Control Department. It is further stated that in compliance of this Tribunals order dated 28.07.1995 in OA No.1112/91 (Shri Jagpal Singh & Others v. Govt. of NCT of Delhi) the respondents had conducted suitability test (on the basis of relaxed standards) of the applicants therein, by engaging an independent agency, i.e., Department of Technical Education, Govt. of NCT of Delhi on 09.04.1997. Had the applicant applied for the said test, he could have been offered the chance to appear in the same. His failure to apply suggests that he may have been gainfully employed somewhere for all these years. Further, it is stated that after the Judgement of the Honble Supreme Court in Umadevi v. State of Karnataka, it is no longer possible to regularise contract/adhoc/daily wage employees.
7. In the rejoinder, the applicant has stated that with regard to the question of limitation, the High Court of Delhi vide its order dated 12.03.2010 has given the liberty to the applicant to approach this Tribunal, therefore, the OA is not time barred.
8. We have heard the counsel for both the parties and have been through the pleadings on record.
9. In OA 207/1986, the Tribunal vide its order dated 20.09.1991 gave the following two directions to the respondents, as already referred hereinbefore:
To place the applicant in a panel for ad hoc appointment or casual appointment to posts which may be filled up on ad-hoc or daily rated basis, keeping in view his overall length of service from May, 1980 till 30.04.1986 as a single unbroken spell of employment on casual-cum-ad hoc basis for determining his seniority; and To give the applicant three chances to appear in a test or examination for regular appointment, as a Typist-Clerk or any other Group `C post for which he is eligible, deeming the age limit to have been relaxed in his case. The test may be administered directly by the respondents or the Staff Selection Commission, and the applicant was to be regularly appointed if he qualified in the said test or examination.
The grievance of the applicant is that he was not given three chances for appearing in a test or examination for regular appointment after giving him age relaxation, and in particular, he was not informed of the suitability test got conducted in the year 1997/1998 by the respondents for the applicants in OA No.1112/1991. In this connection, he submits that the onus lies on the department to inform him of any test being got conducted for a post for which he was eligible with age relaxation and that when the respondents had informed him vide their letter dated 26.09.1992 that the matter had been taken up with the service Department and the decision would be communicated to him in due course, the onus lies on the Department to inform him of any test being held by them or by the Staff Selection Commission. He also in this connection, produced a copy of the noting (Annexed at Page 66 along with his rejoinder) in which the respondents had acknowledged that the applicant had not informed of the test(s) (held in 1996 and 1997) and it had even been suggested that test be conduced solely for him on the same pattern. Whereas, it is noticed that the respondents had not informed the applicant of the suitability test(s) held after passing of the Tribunals order dated 29.09.1991, the applicant also did not pursue the matter. The Tribunal had given a clear cut direction that the applicant be given three chances to appear in a test or examination either to be conducted directly by the respondents or the Staff Selection Commission. Therefore, it was the primary responsibility of the applicant to keep track of developments in this regard and apply for the test/examination whenever the Staff Selection Commission (DSSSB) advertised for a post for which he was eligible or the respondents held any such test/examination. However, he did not do so.
It is well settled that individuals should pursue their rights and remedies promptly and if they choose to sleep over their rights and remedies for an inordinately long time, then the Court would decline to interfere in the matter.
It is noticed that the applicant has not kept track of relevant developments of his case nor has pursued the matter with the respondents at the appropriate time.
10. The applicant had addressed a letter to the respondents dated 19.08.1992 regarding implementation of the CATs order dated 20.09.1991, in response to which he was informed vide respondents letter dated 26.09.1992 as follows:
With reference to his letter Number Nil dated 19/8/92 regarding implementation of judgment of Honble Central Administrtive Tribunal dated 20/9/91 passed in O.A. No.207/86, Sh. Dharam Veer is hereby informed that his name has been empanelled for ad hoc/casual basis appointment to the post which may be filled up on adhoc or daily rated basis in this department. As regards affording three chances to appear in a post or examination conducted by Staff Selection Commission for regular appointment on a Typit-Clerk or any other Grade-C post suitable to his qualifications, he is further informed that the matter has been taken up with the services Department and decision in this regard will be communicated in due course. Thus, it was for the applicant to have pursued the matter with the respondents thereafter, and keep track of whether any test/examination for a post for which he was eligible was being held. Not having done so at the relevant time, he cannot now put the blame for the same squarely on the respondents. His claim for regularization now after a lapse of over 19 years is clearly an attempt to revive a stale claim and is barred by limitation under Section 21 of the Administrative Tribunals Act, 1985. At this distant date, it is not possible for us to overlook the aspect of limitation. It is not the case of the applicant that he applied for the post of Clerk/Typist and the respondents have not considered or given age relaxation, etc.
11. The liberty given by the High Court will also not extend the period of limitation, as contended by the applicant in his rejoinder, as limitation has to be reckoned from the date the original cause of action occurred - in this case limitation would be attracted one year after the Tribunals order dated 20.09.1991 or, if we take a liberal view, one year after receipt of the letter dated 26.09.1992. In this connection, it would be useful to refer the observations of the Honble Supreme Court in Union of India & Others v. M. K. Sarkar, (2010) 2 SCC 59 = 2009 (14) Scale 425 wherein it was held as under:
14. 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. The ill-effects of such directions have been considered by this Court in C. Jacob vs. Director of Geology and Mining & Anr. - 2009 (10) SCC 115:
"The courts/tribunals proceed on the assumption, that every citizen deserves a reply to his representation. Secondly they assume that a mere direction to consider and dispose of the representation does not involve any `decision' on rights and obligations of parties. Little do they realize the consequences of such a direction to `consider'. If the representation is considered and accepted, the ex-employee gets a relief, which he would not have got on account of the long delay, all by reason of the direction to `consider'. If the representation is considered and rejected, the ex-employee files an application/writ petition, not with reference to the original cause of action of 1982, but by treating the rejection of the representation given in 2000, as the cause of action. A prayer is made for quashing the rejection of representation and for grant of the relief claimed in the representation. The Tribunals/High Courts routinely entertain such applications/petitions ignoring the huge delay preceding the representation, and proceed to examine the claim on merits and grant relief. In this manner, the bar of limitation or the laches gets obliterated or ignored."
15. 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.
16. 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 `state' 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 the legal position and effect.
12. The learned counsel for the applicant has relied on the following two judgements in support of his contention that his case is not barred by limitation:
Daya Singh and Another v. Gurdev Singh (dead) By LRs. And Others, (2010) 2 SCC 194 and Transport Corporation of India Ltd. v. Veljan Hydrair Ltd., (2007) 3 SCC 142.
Both these cases are clearly distinguishable and will not be of any help to the applicant for crossing the hurdle of limitation. The case at (a) above dealt the case in which a compromise entered into between two parties in 1972 for sharing of suit property and the revenue entries wrongly entered were discovered for the first time in 1990, therefore, the Honble Supreme Court held that the cause of action did not arise on the date of entering into the compromise but when the compromise decree had been acted upon/delivery of suit property had taken place and that the cause of action to sue accrues only when right asserted in suit is infringed or that there is threat to infringe that right. Clearly this case has no relevance to the case of the applicant in the present OA. The case at (b) above dealt with the issue of when none delivery of a consignment of goods would become a case of loss and this has no relevance whatsoever to the present OA. In the present case, as already observed, limitation would have to be reckoned from the date of the original cause of action.
13. We may also, at this juncture, usefully refer to a recent Judgement of the Honble Apex Court in the matter of D.C.S. Negi v. Union of India & Ors. decided on 07.03.2011 in SLP (C) No.7956/2011(CC No.3709/2011) in which the Apex Court has observed that the Administrative Tribunal established under the Act is duty bound to first consider whether the application is within limitation, and an application can be admitted only if the same is found to have been made within the prescribed period or sufficient cause is shown for not doing so within the prescribed period and an order is passed under Section 21 (3).
In view of the provisions of the Administrative Tribunals Act, 1985 and the aforesaid Judgment, this Tribunal is duty bound to follow the limitation provisions prescribed under Section 21 of the Administrative Tribunals Act, 1985 in true letter and spirit. We have no hesitation, therefore, in holding that the present OA is hopelessly barred by limitation.
14. Further, the applicant has filed the present application for the same relief which he has sought in OA No.1246/1993 before this Tribunal which was decided on 07.06.1993 and, despite liberty given to the applicant to pursue the matter in contempt proceedings, it appears that he has not chosen to pursue the matter at the appropriate time in an appropriate proceedings.
15. In view of the above discussion, the OA is dismissed as being barred by limitation. No costs.
(Shailendra Pandey) (Meera Chhibber) Member (A) Member (J) /nsnrsp/