Central Administrative Tribunal - Delhi
Coram vs Union Of India on 7 August, 2014
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH O.A.NOS.4065 OF 2012 AND 1552 & 1745 OF 2013 New Delhi, this the 7th day of August, 2014 CORAM: HONBLE SHRI V.N.GAUR, ADMINISTRATIVE MEMBER AND HONBLE SHRI RAJ VIR SHARMA, JUDICIAL MEMBER .. In OA 4065/12: Sh.Subhash Kumar, EE (QS & C), S/o Sh.B.K.Prasad, MES No.486735 Jt. Director (Contracts), O/o CCE (COD), Kashmir House, Rajaji Marg, New Delhi 110070 Applicant (By Advocate: Shri Vinay Kr.Garg with Sh.Vivek Sharma) Vs. 1. Union of India, Through its Secretary, Ministry of Defence, South Block, New Delhi 2. The Engineer-in-Chief, Kashmir House, Army Headquarters, New Delhi 3. Sh.Manasha Ram, MES No.502725 (Service on Respondent No.3 to be effected through Respondent No.2) (By Advocate: Shri Rajesh Katiyal) In OA No.1552/13: Sh. Rajendra Kumar, EE (QS&C), S/o Sh.Johri Singh, MES No. 439131, R-15/40, Raj Nagar, Ghaziabad (UP) 201002 .. Applicant. (By Advocate: Shri Vinay Kr.Garg with Sh.Vivek Sharma) Vs. 1. Union of India, Through its Secretary, Ministry of Defence, South Block, New Delhi 2. The Engineer-in-Chief, Kashmir House, Army Headquarters, New Delhi 3. Sh.Sunil Kapoor, MES No.300361 (Service on Respondent No.3 to be effected through Respondent No.2) (By Advocate: Shri Rajesh Katiyal) In OA No.1745/13: Sh.Rajendra Kumar, EE (QS & C), S/o Sh.Mangali Prasad, Presently posted at CWE Ahmedabad .. Applicant (By Advocate: Shri Vinay Kr.Garg with Sh.Vivek Sharma) Vs. 1. Union of India, Through its Secretary, Ministry of Defence, South Block, New Delhi 2. The Engineer-in-Chief, Kashmir House, Army Headquarters, New Delhi 3. Sh.Manasha Ram, MES No.502725 (Service on Respondent No.3 to be effected through Respondent No.2) . Respondents (By Advocate: Shri Rajesh Katiyal) .. ORDER Raj Vir Sharma, Member(J):
These three Original Applications being similar in nature involving common questions of law and fact have been heard together, and we propose to decide the same by this common order. For the purpose of deciding the issues raised therein, we take OA No.1745 of 2013 as lead case and refer to the pleadings of the parties and consider the rival submissions made by the learned counsel appearing for them.
OA No.1745/13:
2. In this Original Application, the applicant has prayed for the following relief:
a) direct respondents to conduct a review DPC for the post of Executive Engineer (QS & C) and accord the applicant promotion w.e.f. the date at least when respondent no.3 was promoted as Executive Engineer (QS&C); and direct the respondents to draw All India Seniority List of Executive Engineer (QS&C) and placing the name of applicant therein at a place immediately above his junior i.e. respondent No.3; and pass any such further order or direction as may be deemed fit, proper and necessary.
3. Brief facts of the applicants case run thus: In Military Engineering Services (MES for short), the posts in the cadre of Surveyors of Works (S.W. for short) were being filled in accordance with the MES (Surveyor of Works Cadre) Recruitment Rules, 1985 (hereinafter referred to as Rules of 1985) (Annexure B). The entry grade to the cadre was the post of Assistant Surveyor of Works (A.S.W. for short). The posts in the grade of A.S.W. were being filled to the extent of 50% by promotion from amongst Surveyor Assistant Grade I holding Degree in Civil Engineering from recognized University or equivalent and the remaining 50% were being filled by direct recruitment for which the Degree in Civil Engineering from a recognized University, or equivalent, was provided as the eligibility qualification. Under the Rules of 1985, the posts in the next higher grade, i.e., S.W., were non-selection posts and were being filled 100% by promotion from amongst A.S.W. with 4 years regular service in the grade and having passed the Final Examination of the Institution of Surveyors (India), or equivalent. The nomenclatures of the posts of A.S.W. and S.W. were changed as Assistant Executive Engineer (QS&C) and Executive Engineer (QS&C) respectively, vide order dated 21.10.2002.
3.1 The applicant joined M.E.S. as A.S.W. on 8.7.1996. The private respondent no.3 joined M.E.S. as A.S.W. on 26.6.2997. In the All India Seniority List of A.S.W., circulated vide order dated 22.6.2001 (Annexure C), the applicant was shown at sl.no.26 whereas the private respondent no.3 was shown at sl.no.49.
3.2 Respondent no.2, vide letter dated 6.4.1998 (Annexure D) addressed to all the five Commandants, stipulated that for promotion to the grade of S.W., an A.S.W. should have 4 years regular service in the grade and should have passed final/direct final examination of the Institution of Surveyors(India), or equivalent. It was also stipulated by the said respondent no.2 in the letter dated 6.4.1988 (ibid) that no other examination was specified as an equivalent of passing Final/Direct Final Examination of the Institution of Surveyors (India) and as such for promotion to S.W., it was essential to pass Final/Direct Final Examination of the Institution of Surveyors (India) even for Engineering Degree holders.
3.3 In view of the said letter dated 6.4.1988 (Annexure D) issued by respondent no.2, confusion arose as to whether or not the Degree in Civil Engineering from a recognized University/Institution would be equivalent to Pass in Final/Direct Final Examination of the Institution of Surveyors (India). The Union Public Service Commission (UPSC), vide letter dated 31.1.1994 (Annexure E), clarified that pass in the Final Examination of Institution of Surveyors(India) in the Building & Quantity Surveying was recognized by the Government of India as equivalent to Degree in Civil Engineering for the purpose of recruitment to superior services/posts under the Central Government. The Government of India, through the Ministry of Human Resources Development, Department of Education, vide its letter dated 21.1.1995 (Annexure F), also acknowledged that Degree in Civil Engineering from a University is equivalent to Final/Direct Final Examination of the Institution of Surveyors in Building & Quantity Surveying.
3.4 The applicant possessed the qualification of Degree in Civil Engineering from a recognized University, but had not then passed the Final Examination of the Institution of Surveyors (India). According to the applicant, the respondent no.2 refused to consider him for promotion to the post of S.W. because of his not passing the Final Examination of the Institution of Surveyors (India), notwithstanding the fact that there were vacancies. That is how in the panel of promotion dated 21.6.2001 the private respondent no.3, who was junior to the applicant in the grade of A.S.W., was promoted to the post of S.W. The said panel of promotion was amended and some more officials junior to the applicant in the grade of A.S.W. were also promoted, vide order dated 8.11.2001 (Annexure G).
3.5 According to the applicant, he was promoted to the post of Executive Engineer (QS&C) only in 2004 after he passed the Direct Final Examination of Institution of Surveyors (India).
3.6 The Rules of 1985 were replaced by the MES (Quantity Surveying & Contract Cadre) Group A Posts, Recruitment Rules, 2005 providing for promotion to the post of Executive Engineer (QS&C)(NFSG) from amongst Executive Engineers (QS&C) with five years regular service in the grade and possessing Degree in Civil Engineering from a recognized University or equivalent or final/direct final examination of Institution of Surveyors (India).
3.7 Chandigarh Bench of this Tribunal, vide order dated 15.11.1996 (Annexure H) passed in O.A.No.1217-J&K/1994 (R.K.Gupta vs. Union of India), held that Degree in Civil Engineering could be regarded as equivalent to pass in Final Examination of the Institution of Surveyors (India) and directed respondent no.1 to accord promotion to the applicant in that case. The SLP preferred by the respondent-Union of India against the decision of Chandigarh Bench of the Tribunal failed and respondent nos. 1 and 2 implemented the Tribunals decision dated 15.11.1996 in respect of Shri R.K.Gupta.
3.8 In O.A.No.1333-PB/1992 (Sunil V.Mane vs. Union of India), decided by Chandigarh Bench, vide its order dated 2.8.2000, reiterated its view taken in R.K.Guptas case and directed the respondents to treat Degree in Civil Engineering as equivalent to passing of Final Examination of the Institution of Surveyors (India) and to consider the applicant in that case for promotion. C.W.P.No.1694 of 2001 filed against the Tribunals decision was dismissed by the Honble High Court of Punjab & Haryana, vide judgment dated 5.2.2001 (Annexure I). Without further challenging the decisions of the Tribunal, the respondents implemented the decision of the Tribunal and treated the qualification of Degree in Civil Engineering as equivalent to Final Examination of the Institution of Surveyors (India) and promoted the applicant Sh.Sunil V.Mane, vide order dated 26.6.2001 (Annexure J).
3.10 The Full Bench of this Tribunal, vide order dated 3.3.2003 (Annexure K) passed in O.A.Nos.1290 and 1476 of 2001 and 1275 of 2002, concurred with the view taken by Chandigarh Bench and directed that the applicants therein be considered for promotion, treating their qualification of Degree in Civil Engineering as equivalent to Final Examination of the Institution of Surveyors (India).
3.11 The Full Benchs order dated 3.3.2003 (ibid), so far as OA Nos. 1476 of 2001 and 1275 of 2002 were concerned, was challenged by the official respondents before the Honble High Court of Delhi, vide W.P. ( C ) Nos. 6365 of 2003 and 6011 of 2003. It was pleaded by the official respondents before the Honble High Court that the issue with regard to equivalence of a Degree in Civil Engineering with Final Examination conducted by Institution of Surveyors (India) for the purpose of promotion to the post of Surveyors of Works was under consideration before the Honble Supreme Court of India in S.L.P. ( C ) No. 6471 of 2003 (Civil Appeal No.3150 of 2007. Therefore, the Honble High Court entertained the writ petitions and stayed the operation of the Full Benchs order dated 3.3.2003.
3.12 The Honble High Court of Delhi, vide order dated 15.12.2010 passed in W.P. ( C ) No. 6365 of 2003 (Annexure L), took the view that since the respondents had implemented the order of this Tribunal in the case of Sunil V.Mane (supra) and other cases, the said writ petition could be disposed of directing the respondents to provisionally promote the applicant therein to the post of S.W. subject of course to the outcome of the cases pending before the Honble Supreme Court.
3.13 The Honble High Court of Delhi, vide order dated 9.11.2001, also disposed of W.P. ( C ) No. 6011 of 2003 in terms of the order dated 15.12.2010.
3.14 The official respondents implemented the order dated 15.12.2010(ibid) passed by the Honble High Court of Delhi and convened Review DPC for according promotion to the applicant therein to the post of S.W., vide proceedings dated 29.3.2012 (Annexure M).
3.15 On the above factual matrix, it is contended by the applicant that he is entitled to be promoted to the post of S.W. [now re-designated as Executive Engineer (QS &C)] from the date when the private respondent no.3 was promoted to the said post and placed above the said respondent no.3 in the seniority list of Executive Engineers (QS & C). The declaration of law by the Tribunal, as upheld by the Honble High Court of Punjab & Haryana and the Honble High Court of Delhi that the qualification of Degree in Civil Engineering is equivalent to pass in Final/Direct Final Examination of the Institution of Surveyors (India) is a judgment in rem applicable to all those who are similarly situated and therefore, the official respondents ought to have considered him for promotion to the post of S.W. while considering those applicants for such promotion by virtue of the decisions of the Tribunal.
4. Opposing the O.A., the official respondents have filed a counter reply. It is stated by the respondents that the panel for promotion to the erstwhile post of S.W. was issued on 8.11.2001 wherein the private respondent no.3 was promoted. Thus, the grievance, if any, had arisen in the year 2001 itself and the cause of action, if any, had accrued to the applicant in the year 2001. The Original Application filed by the applicant in the year 2013 after a delay of almost twelve years being hopelessly barred by limitation in terms of Section 21 of the Administrative Tribunals Act, 1985 is liable to be dismissed. It is also stated that the applicant had never made any representation to the departmental authorities in the matter before approaching the Tribunal in this O.A. and therefore, the applicant having failed to exhaust the other remedies available to him, the O.A. is liable to be dismissed as being hit by Section 20 of the Administrative Tribunals Act,1985. It is further stated by the official respondents that the order of the Honble High Court of Delhi to provisionally promote the applicant in W.P. (C) No. 6365 of 2003 was only in respect of the parties to the said writ petition and not for everyone. Moreover, the order dated 3.3.2003 passed by the Full Bench of the Tribunal in OA No.1476 of 2001 and the judgment dated 15.12.2010 of the Honble High Court of Delhi in C.W.P. No.6365 of 2003 were implemented subject to the outcome of SLP CC No.20155 of 2011 filed by Akhilesh Shukla and others. It is submitted by the official respondents that pending final decision by the Honble Supreme Court on the issue, promoting others including the applicant to the post of S.W. is likely to create administrative problems and chaos.
5. The private respondent no.3 has also filed a counter reply wherein it is, inter alia, stated that as per the Rules of 1985, all officers in the grade of ASW, whether direct recruits or promotees, are required to qualify Final/Direct Final Examination of Institution of Surveyors (India) to become eligible for promotion to the grade of SW. The applicant was promoted to the post of SW only after he qualified the said examination. It is also stated by the private respondent no.3 that the O.A. is clearly time barred and hence is not maintainable.
6. The applicant has not filed rejoinder reply to the respondents counter replies.
7. We have perused the pleadings and heard the learned counsel appearing for the parties.
8. At the outset we would like to consider as to whether or not the O.A. as laid by the applicant is maintainable. Section 20 of the Administrative Tribunals Act, 1985 reads thus:
20. Application not to be admitted unless other remedies exhausted (1) A Tribunal shall not ordinarily admit an application unless it is satisfied that the applicant had availed of all the remedies available to him under the relevant service rules as to redressal of grievances.
(2) For the purposes of sub-section (1), a person shall be deemed to have availed of all the remedies available to him under the relevant service rules as to redressal of grievances, -
(a) if a final order has been made by the Government or other authority or officer or other person competent to pass such order under such rules, rejecting any appeal preferred or representation made by such person in connection with the grievance; or
(b) where no final order has been made by the Government or other authority or officer or other person competent to pass such order with regard to the appeal preferred or representation made by such person, if a period of six months from the date on which such appeal was preferred or representation was made has expired.
(3) For the purposes of sub-sections (1) and (2), any remedy available to an applicant by way of submission of a memorial to the President or to the Governor of a State or to any other functionary shall not be deemed to be one of the remedies which are available unless the applicant had elected to submit such memorial.
9. Admittedly, the applicant had not made any representation to the departmental authorities in the matter of his promotion to the post of S.W. from the date of promotion of the private respondent no.3. In paragraph 6 of the O.A. the applicant has stated that the official respondents did not take any steps for more than one and a half years to hold Review DPC for considering him for promotion to the post of S.W. and circulated a seniority list of the Executive Engineers (QS&C), vide letter dated 12.01.2012, causing serious prejudice to his rights and thus in the emergent circumstances, he approached this Tribunal.
10. It is not understood as to how the seniority list, circulated by the respondents vide letter dated 12.01.2012, created an emergent situation for the applicant to approach this Tribunal without making a representation to the departmental authorities in the matter. Assuming for a moment that there is any flaw in the said seniority list, it is the departmental authority which has to rectify the same, provided the applicant makes a representation in the matter urging valid grounds in support of his claim for rectification thereof. Only after the competent authority takes a decision and if the applicant is aggrieved by the said decision, he can file an application before this Tribunal under Section 19 of the Administrative Tribunals Act, 1985 within the prescribed period of limitation for redressal of his grievance, if any. In the present case, the applicant having failed to approach the departmental authorities in the matter, we have no hesitation to hold that the O.A. is not maintainable as being hit by Section 20 (1) of the Administrative Tribunals Act, 1985.
11. As regards the question of limitation, Section 21 of the Administrative Tribunals Act, 1985 reads thus:
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 sub-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.
12. The learned counsel appearing for the respondents submitted that cause of action, if any, had arisen in 2001 when, according to the applicant, the official respondents refused to consider him for promotion to the post of S.W. and the private respondent no.3 was promoted to the post of S.W and therefore, the O.A. filed in 2013 is hopelessly barred by limitation. In support of his contention, the learned counsel placed reliance on the decision of the Honble Supreme Court in State of Uttaranchal and another vs. Sri Shiv Charan Singh Bhandari and others, Civil Appeal Nos. 7328-7329 of 2013, decided on 23.8.2013.
13. The learned counsel appearing for the applicant, on the other hand, submitted that the Full Benchs decision dated 3.3.2003 was stayed by the Honble High Court of Delhi till 15.12.2010 when W.P. ( C ) No. 6365/2003 was finally disposed of by the Honble Court directing the official respondents to provisionally promote the applicant in that case. It was also submitted by the learned counsel that the official respondents, without considering the applicant for promotion to the post of S.W. with effect from the date of promotion of respondent no.3, circulated the seniority list of Executive Engineers (QS&C), vide letter dated 12.01.2012, showing the applicant below the private respondent no.3 therein. It was further submitted by the learned counsel that the official respondents implemented the Honble Courts order dated 15.12.2010 and convened the Review DPC on 29.3.2012 for according promotion of the applicant in O.A.No.1476 of 2001. Therefore, fresh cause of action arose on 12.01.2012 and 29.3.2012 and the present OA filed in 2013 cannot be said to be barred by limitation. In support of his contentions, the learned counsel placed reliance on Baljit Singh Bahmania vs. Union of India and others, W.P. ( C ) No. 8955 of 2011, decided on 3.9.2012; Indo Rama Synthetics (India) Limited vs. Union of India and others, 96(2002) DLT 340 (DB); and Madras Port Trust vs. Hymanshu International, etc., (1979) 4 SCC 176.
14. In Baljit Singh Bahmanias case (supra), the petitioner was initially appointed as a Junior Engineer (Civil) in the CPWD on 01.11.1979. He was promoted on ad hoc basis to the post of Assistant Engineer (Civil) on 04.06.1993.The respondent no.3 was appointed as a Junior Engineer (Civil) on 30.10.1983. In the provisional seniority list of Assistant Engineers (Civil) circulated by an O.M. dated 04.06.2002 the petitioner was shown at sl.no.2600 and it had been indicated that he had been promoted to the post of Assistant Engineer (Civil) with effect from 29.11.1994. It was the case of the petitioner that his date of promotion as Assistant Engineer (Civil) should have been indicated as 04.06.1993 and not as 29.11.1994. According to the applicant, because of this mistake, respondent no.3, though promoted to the post of Assistant Engineer (Civil) on 17.9.1993, was shown at sl.no.2078 in the said provisional seniority list. Thereafter, promotions to the post of Executive Engineer (Civil) were ordered on 12.5.2006. Since the petitioner was not amongst the list of persons who were promoted to the post of Executive Engineer (Civil) and, according to him, officers junior to him had been promoted to that post, the petitioner submitted representation on 22.5.2006. All his approaches to the departmental authorities did not yield any result. The respondents circulated the final seniority list of Assistant Engineers (Civil) as on 1.1.2011, vide O.M. dated 1.8.2011, being aggrieved whereby the petitioner approached the Tribunal in OA No.4154 of 2011. The Tribunal, at the stage of admission itself, took the view that the said O.A. was not maintainable on account of delay and laches and that the issuance of the final seniority list on 1.8.2011 would not result in an automatic condonation of the delay/laches in respect of the original cause of action, which, according to the Tribunal, had accrued on 1.4.2002. Since the petitioner had not filed any application for condonation of delay, the Tribunal felt that it could not even examine the case from the standpoint of the petitioner having a sufficient cause for approaching the court after the said alleged delay. The Honble High Court held that seniority based on a provisional list cannot be regarded as a settled position unless and until the final seniority list is published and that the Tribunal ought not to have dismissed the petitioners O.A. at the threshold on the ground of delay and/or laches.
15. The decision in Baljit Singh Bahmanias case (supra) does not come to the aid of the applicant inasmuch as it is not his case that there was any error in the seniority list of Executive Engineers (QS&C), circulated vide letter dated 12.01.2012. It is his case that the official respondents ought to have promoted him to the grade of S.W., when the private respondent no.3 was promoted to the said post in 2001, and accordingly assigned his position above the private respondent no.3 in the seniority list of the Executive Engineers (QS&C). Admittedly, the private respondent no.3 was promoted to the post of S.W. in 2001 and the applicant was promoted to the post of S.W. in 2004 and, therefore, there was no mistake in the seniority list circulated vide letter dated 12.01.2012. In view of this, it cannot be said that on the issuance of the seniority list vide letter dated 12.01.2012, the cause of action accrued to the petitioner on 12.01.2012 to agitate the matter.
16. In Indo Rama Synthetics (India)Limiteds case (supra), the petitioner was a public limited company engaged in the business of manufacturing synthetic yarn and fibre. It had been importing machinery and spare parts for using in its manufacturing plants from time to time. A Bill of Entry was issued for import of spare parts. An error, however, was committed in payment of the Excise Duty by ignoring the declared value for the purpose of assessment under the Excise Act and as a result, 100 times more customs duty had been paid. After a long time, the mistake was detected whereafter an application purported to be under Section 154 of the Customs Act seeking rectification of the said clerical error was filed and a request made for issuance of assessment order. When the petitioners request was not acceded to by the authorities, the writ petition was filed. The Honble High Court of Delhi held thus:
10. Having regard to the principles adumbrated under Article 14 of the Constitution of India, there cannot be any doubt whatsoever that in all its actions the State must act reasonably, fairly and equitably. It is trite that the State must act as benevolent litigant, and should not take the plea of limitation or other technical pleas for the purpose of defeating the just and bona fide claim of the importer.
17. In Indo Rama Synthetics (India) Limiteds case, the petitioners requests for rectification of clerical error and consequent refund of the excise duty paid in excess of what was due and for issuance of assessment order were not acceded to and the Honble High Court held that the State should not take the plea of limitation for the purpose of defeating the lawful claim of the importer. Therefore, the observation of the Honble Court in the said case is of no help to the case of the applicant in the present case.
18. In Madras Port Trusts case(supra), the question before the Honble Supreme Court was whether the claim of the respondent for refund of the amount of wharfage, demurrage and transit charges paid to the appellant was barred by Section 110 of the Madras Port Trust Act. The Honble Supreme Court held thus:
2. We do not think that this is a fit case where we should proceed to determine whether the claim of the respondent was barred by Section 110 of the Madras Port Trust Act (II of 1905). The plea of limitation based on this section is one which the court always looks upon with disfavour and it is unfortunate that a public authority like the Port Trust should, in all morality and justice, take up such a plea to defeat a just claim of the citizen. It is high time that governments and public authorities adopt the practice of not relying upon technical pleas for the purpose of defeating legitimate claims of citizens and do what is fair and just to the citizens. Of course, if a government or a public authority takes up a technical plea, the Court has to decide it and if the plea is well-founded, it has to be upheld by the court, but what we feel is that such a plea should not ordinarily be taken up by a government or a public authority, unless of course the claim is not well-founded and by reason of delay in filing it, the evidence for the purpose of resisting such a claim has become unavailable. Here, it is obvious that the claim of the respondents was a just claim supported as it was by the recommendation of the Assistant Collector of Customs and hence in exercise of our discretion under Article 136 of the Constitution, we do not see any reason why we should proceed to hear this appeal and adjudicate upon the plea of the appellant based on Section 110 of the Madras Port Trust Act (II of 1905).
19. In Madras Port Trusts case(supra), the claim of the respondent for refund of wharfage, demurrage and transit charges paid to the appellant was duly recommended by the statutory authority and the Honble Court rejected the plea of limitation raised by Madras Port Trust, a public authority. This decision is also not applicable to the facts and circumstances of the instant case.
20. In State of Uttaranchal and another vs. Sri Shiv Charan Singh Bhandari and others (supra), the respondents were appointed to Group III posts in Subordinate Agricultural Services (SAS) in the Department of Agriculture in the undivided State of Uttar Pradesh. Some of them were appointed in 1974 and some in the year 1975. A provisional seniority list in the cadre of SAS Group III was prepared where they were shown senior to one Madhav Singh Tadagi. The said Madhav Singh Tadagi, who was working as Agriculture Plant Protection Supervisor, Group III, was given ad hoc promotion to the post of Assistant Development Officer (Plant Protection, Group II) by the Deputy Director of Agriculture on 15.11.1983. In the year 1983 a Selection Committee was constituted for making promotion to Group II posts on the basis of seniority-cum-fitness from amongst the employees of Group III posts and in the said selection process the respondents as well as Madhav Singh Tadagi were promoted on regular basis in Group II posts. After regular promotion was made, a seniority list was finalized in respect of promotional cadre and the respondents were shown senior to Madhav Singh Tadagi. The final seniority list was issued on 12.2.1994. On 9.11.2000, under U.P. Reorganization Act, 2000 the State of Uttaranchal (presently State of Uttarakhand) was created. The respondents as well as Madhav Singh Tadagi were allocated to the State of Uttarakhand. On 14.10.2003, the respondents filed a claim petition No. 154 of 2003 before the Public Services Tribunal of Uttarakhand at Dehradun (for short the tribunal) claiming that they were entitled to promotion from SAS Group III to SAS Group II with effect from 15.11.1983, the date on which the junior was promoted and, accordingly, to get their pay fixed along with other consequential benefits, namely, arrears of salary and interest thereof. The respondents had submitted number of representations during the period from July, 2002 to June, 2003, but the said representations were not dealt with. The claims put forth by the respondents were resisted by the State and its functionaries contending, inter alia, that promotion to Madhav Singh Tadagi was given by an officer who was not competent to promote any incumbent from SAS Group III to SAS Group II post; that the promotion was made without prejudice to the seniority of other employees; and that the grievance put forth was hit by limitation. The tribunal, after hearing the rival submissions urged before it, came to hold that as a junior person was extended the benefits of promotion in the year 1983, the seniors could not be deprived of the said promotional benefits and, hence, they are entitled to get promotion from the said date. Being of this view, the tribunal directed that the respondents shall be given benefits of promotion with effect from November, 1983 and as they had already been promoted in the year 1989, they would be entitled to notional promotional benefits from 15.11.1983. Assailing the order of the tribunal the State of Uttarakhand and its functionaries preferred Writ Petition No. 133 of 2006 before the High Court of Uttarakhand at Nainital. The High Court opined that Madhav Singh Tadagi was promoted on ad hoc basis, continued in the said post and was allowed increments and the promotional pay-scale till his regular promotion, and the claimants though seniors, were promoted on a later date on regular basis and, therefore, the directions issued by the tribunal could not be found fault with. After disposal of the writ petition, an application for review was filed with did not find favour with the High Court and accordingly it dismissed the same by order dated 2.3.2012. Hence, appeals by special leave were preferred challenging the said orders. Allowing the appeal and setting aside the orders passed by the tribunal and the Honble High Court, the Honble Supreme Court observed and held thus:
13. We have no trace of doubt that the respondents could have challenged the ad hoc promotion conferred on the junior employee at the relevant time. They chose not to do so for six years and the junior employee held the promotional post for six years till regular promotion took place. The submission of the learned counsel for the respondents is that they had given representations at the relevant time but the same fell in deaf ears. It is interesting to note that when the regular selection took place, they accepted the position solely because the seniority was maintained and, thereafter, they knocked at the doors of the tribunal only in 2003. It is clear as noon day that the cause of action had arisen for assailing the order when the junior employee was promoted on ad hoc basis on 15.11.1983. In C. Jacob v. Director of Geology and Mining and another, (2008) 10 SCC 115, a two-Judge Bench was dealing with the concept of representations and the directions issued by the court or tribunal to consider the representations and the challenge to the said rejection thereafter. In that context, the court has expressed thus:
Every representation to the Government for relief, may not be replied on merits. Representations relating to matters which have become stale or barred by limitation, can be rejected on that ground alone, without examining the merits of the claim. In regard to representations unrelated to the Department, the reply may be only to inform that the matter did not concern the Department or to inform the appropriate Department. Representations with incomplete particulars may be replied by seeking relevant particulars. The replies to such representations, cannot furnish a fresh cause of action or revive a stale or dead claim.
14. In Union of India and others v. M.K. Sarkar, (2010) 2 SCC 59. this Court, after referring to C. Jacob (supra) has ruled that 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 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 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 extend the limitation, or erase the delay and laches.
15. From the aforesaid authorities it is clear as crystal that even if the court or tribunal directs for consideration of representations relating to a stale claim or dead grievance it does not give rise to a fresh cause of action. The dead cause of action cannot rise like a phoenix. Similarly, a mere submission of representation to the competent authority does not arrest time. In Karnataka Power Corpn. Ltd. through its Chairman & Managing Director v. K. Thangappan and another, (2006) 4 SCC 322, the Court took note of the factual position and laid down that when nearly for two decades the respondent-workmen therein had remained silent mere making of representations could not justify a belated approach.
16. In State of Orissa v. Pyarimohan Samantaray, (1977) 3 SCC 396, it has been opined that making of repeated representations is not a satisfactory explanation of delay. The said principle was reiterated in State of Orissa v. Arun Kumar Patnaik, (1976) 3 SCC 579.
17. In Bharat Sanchar Nigam Limited v. Ghanshyam Dass (2) and others, (2011) 4 SCC 374, a three-Judge Bench of this Court reiterated the principle stated in Jagdish Lal v. State of Haryana. (1977) 6 SCC 538 and proceeded to observe that as the respondents therein preferred to sleep over their rights and approached the tribunal in 1997, they would not get the benefit of the order dated 7.7.1992.
18. In State of T.N. v. Seshachalam, (2007) 10 SCC 137, 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.
19.There can be no cavil over the fact that the claim of promotion is based on the concept of equality and equitability, but the said relief has to be claimed within a reasonable time. The said principle has been stated in Ghulam Rasool Lone v. State of Jammu and Kashmir and another, (2009) 15 SCC 321.
20. In New Delhi Municipal Council v. Pan Singh and others, (2007) 9 SCC 278, the Court has opined that though there is no period of limitation provided for filing a writ petition under Article 226 of the Constitution of India, yet ordinarily a writ petition should be filed within a reasonable time. In the said case the respondents had filed the writ petition after seventeen years and the court, as stated earlier, took note of the delay and laches as relevant factors and set aside the order passed by the High Court which had exercised the discretionary jurisdiction.
21. Presently, sitting in a time machine, we may refer to a two-Judge Bench decision in P.S. Sadasivasway v. State of Tamil Nadu, (1975) 1 SCC 152, wherein it has been laid down that a person aggrieved by an order of promoting a junior over his head should approach the Court at least within six months or at the most a year of such promotion. It is not that there is any period of limitation for the Courts to exercise their powers under Article 226 nor is it that there can never be a case where the Courts cannot interfere in a matter after the passage of a certain length of time, but it would be a sound and wise exercise of discretion for the Courts to refuse to exercise their extraordinary powers under Article 226 in the case of persons who do not approach it expeditiously for relief and who stand by and allow things to happen and then approach the Court to put forward stale claims and try to unsettle settled matters.
22. We are absolutely conscious that in the case at hand the seniority has not been disturbed in the promotional cadre and no promotions may be unsettled. There may not be unsettlement of the settled position but, a pregnant one, the respondents chose to sleep like Rip Van Winkle and got up from their slumber at their own leisure, for some reason which is fathomable to them only. But such fathoming of reasons by oneself is not countenanced in law. Any one who sleeps over his right is bound to suffer. As we perceive neither the tribunal nor the High Court has appreciated these aspects in proper perspective and proceeded on the base that a junior was promoted and, therefore, the seniors cannot be denied the promotion. Remaining oblivious to the factum of delay and laches and granting relief is contrary to all settled principles and even would not remotely attract the concept of discretion. We may hasten to add that the same may not be applicable in all circumstances where certain categories of fundamental rights are infringed. But, a stale claim of getting promotional benefits definitely should not have been entertained by the tribunal and accepted by the High Court. True it is, notional promotional benefits have been granted but the same is likely to affect the State exchequer regard being had to the fixation of pay and the pension. These aspects have not been taken into consideration. What is urged before us by the learned counsel for the respondents is that they should have been equally treated with Madhav Singh Tadagi. But equality has to be claimed at the right juncture and not after expiry of two decades. Not for nothing, it has been said that everything may stop but not the time, for all are in a way slaves of time. There may not be any provision providing for limitation but a grievance relating to promotion cannot be given a new lease of life at any point of time.
21. On the facts and in the circumstances of the case and in the light of the decision of the Honble Supreme Court in State of Uttaranchal and another vs. Sri Shiv Charan Singh Bhandari and others (supra), we hold that the present O.A. is hopelessly barred by limitation and is liable to be dismissed.
22. There is another aspect of the matter which cannot be lost sight of. The applicant filed the Original Application after 12 years of the promotion of private respondent no.3, and 9 years after his promotion to the post of S.W. He has averred in the Original Application that the Chandigarh Bench in R.K.Guptas case (supra) had declared that Degree in Civil Engineering could be regarded as equivalent to pass in Final Examination of the Institution of Surveyors (India) and directed the official respondents to accord promotion to the applicant in that case; that the SLP filed against the said decision was dismissed by the Honble Supreme Court; and that the official respondents implemented the Chandigarh Benchs decision dated 15.11.1996. It has also been averred by the applicant that the Chandigarh Bench in the case of Sunil V.Manes case (supra), decided on 2.8.2000 had also taken the same view and the writ petition filed against the said decision was dismissed by the Honble High Court of Punjab & Haryana. It has also been averred by the applicant that the Full Bench of the Tribunal in O.A.Nos. 1290 and 1476 of 2001 and 1275 of 2002, decided on 3.3.2003, had also taken similar view and the writ petitions filed against the Full Benchs decision were disposed of by the Honble High Court of Delhi directing the respondents to provisionally promote the applicants therein to the post of S.W. It is thus clear that the applicant did not agitate his grievance for long time. The applicant, as noticed herein, did not claim parity with the applicants in those cases at the earliest possible opportunity. He did not even make any representation to the departmental authorities to extend the similar benefits in 2001 when the private respondent no.3 was promoted or in 2004 when he was promoted to the post of S.W. After such long time, therefore, the Original Application cannot be entertained by the Tribunal even if he is similarly situated. It is trite that the discretionary jurisdiction may not be exercised in favour of those who approach the Court/Tribunal after long time. Delay and laches are relevant factors for exercise of equitable jurisdiction. In this connection reference is made to the following decisions.
23. In M/s. Rup Diamonds & Ors. v. Union of India & Ors., (1989) 2 SCC 356, the Honble Supreme Court observed that those people who were sitting on the fence till somebody else took up the matter to the court for refund of duty, cannot be given the benefit. In that context, their Lordships held as follows :
Petitioners are re-agitating claims which they had not pursued for several years. Petitioners were not vigilant but were content to be dormant and chose to sit on the fence till somebody else's case came to be decided. Their case cannot be considered on the analogy of one where a law had been declared unconstitutional and void by a court, so as to enable persons to recover monies paid under the compulsion of a law later so declared void. There is also an unexplained, inordinate delay in preferring the present writ petition which is brought after a year after the first rejection. As observed by the Court in Durga Prashad case, the exchange position of this country and the policy of the government regarding international trade varies from year to year. In these matters it is essential that persons who are aggrieved by orders of the government should approach the High Court after exhausting the remedies provided by law, rule or order with utmost expedition. Therefore, these delays are sufficient to persuade the Court to decline to interfere. If a right of appeal is available, this order rejecting the writ petition shall not prejudice petitioners' case in any such appeal. "
24. In State of Karnataka & Ors. v. S.M.Kotrayya & Ors., (1996) 6 SCC 267, the respondents woke up to claim the relief which was granted to their colleagues by the Tribunal with an application to condone the delay. The Tribunal condoned the delay. Therefore, the State approached the Honble Supreme Court. Their Lordships, after considering the matter, observed as under :
".it is not necessary that the respondents should give an explanation for the delay which occasioned for the period mentioned in sub-section (1) or (2) of Section 21, but they should give explanation for the delay which occasioned after the expiry of the aforesaid respective period applicable to the appropriate case and the Tribunal should be required to satisfy itself whether the explanation offered was proper explanation. 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). That was not the explanation given. Therefore, the Tribunal is wholly unjustified in condoning the delay."
25. In Jagdish Lal & Ors. v. State of Haryana & ors. (1997) 6 SCC 538, this Court reaffirmed the rule if a person chose to sit over the matter and then woke up after the decision of the Court, then such person cannot stand to benefit. In that case it was observed by the Honble Supreme Court that the delay disentitles a party to the discretionary relief under Article 226 or Article 32 of the Constitution of India. The appellants kept sleeping over their rights for long and woke up when they had the impetus from the case of Union of India v. Virpal Singh Chauhan, (1995) 6 SCC 684. The appellants desperate attempt to redo the seniority is not amenable to judicial review at this belated stage.
26. In Union of India & Ors. v. C.K. Dharagupta & Ors.(1997) 3 SCC 395, it was observed as follows :
" We, however, clarify that in view of our finding that the judgment of the Tribunal in R.P.Joshi gives relief only to Joshi, the benefit of the said judgment of the Tribunal cannot be extended to any other person. The respondent C.K.Dharagupta (since retired) is seeking benefit of Joshi case. In view of our finding that the benefit of the judgment of the Tribunal dated 17-3-1987 could only be given to Joshi and nobody else, even Dharagupta is not entitled to any relief."
27. In Government of W.B. v. Tarun K. Roy & Ors. (2004) 1 SCC 347, the Honble Supreme Court considered delay as serious factor and did not grant relief. Therein it was observed as follows :
" The respondents furthermore are not even entitled to any relief on the ground of gross delay and laches on their part in filing the writ petition. The first two writ petitions were filed in the year 1976 wherein the respondents herein approached the High Court in 1992. In between 1976 and 1992 not only two writ petitions had been decided, but one way or the other, even the matter had been considered by this Court in Debdas Kumar. The plea of delay, which Mr.Krishnamani states, should be a ground for denying the relief to the other persons similarly situated would operate against the respondents. Furthermore, the other employees not being before this Court although they are ventilating their grievances before appropriate courts of law, no order should be passed which would prejudice their cause. In such a situation, we are not prepared to make any observation only for the purpose of grant of some relief to the respondents to which they are not legally entitled to so as to deprive others there from who may be found to be entitled thereto by a court of law."
28. In Chairman, U.P.Jal Nigam & another vs. Jaswant Singh & another, 2006(12) SCALE 347, the respondents were the employees of the U.P.Jal Nigam (hereinafter to be referred to as 'the Nigam') and were retired on attaining the age of superannuation at 58 years. Some of them filed writ petitions in the High Court of Judicature at Allahabad challenging the retirement of the employees of the Nigam on attaining the age of 58 years whereas the State Government employees were allowed to continue up to the age of 60 years and therefore, they should also be allowed to continue up to the age of 60 years. The writ petitions filed before the High Court failed and against that Civil Appeal No.7840 of 2002 and batch of other appeals were filed before the Honble Supreme Court. The Honble Supreme Court disposed of the case of Harwindra Kumar along with other appeals and held that employees of Nigam are entitled to continue up to 60 years. This has been reported in (2005) 13 SCC 300. During the pendency of the appeals and writ petitions before the Honble Supreme Court and after disposal of the same by the Honble Supreme Court, a spate of writ petitions followed in the High Court by the employees who had retired long back. Some of the petitions were filed by the employees who retired on attaining the age of 58 years long back. However, some were lucky to get interim orders allowing them to continue in service. Number of writ petitions were filed in the High Court in 2005 on various dates after the judgment in the case of Harwindra Kumar (supra) and some between 2002 and 2005. All those writ petitions were disposed of in the light of the judgment in the case of Harwindra Kumar (supra) and relief was given to them for continuing in service up to the age of 60 years. Hence, the appeals arose against various orders passed by the High Court from time to time. In the appeals, the Honble Supreme Court held thus:
In view of the statement of law as summarized above, the respondents are guilty since the respondents had acquiesced in accepting the retirement and did not challenge the same in time. If they would have been vigilant enough, they could have filed writ petitions as others did in the matter. Therefore, whenever it appears that the claimants lost time or while away and did not rise to the occasion in time for filing the writ petitions, then in such cases, the Court should be very slow in granting the relief to the incumbent. Secondly, it has also to be taken into consideration the question of acquiescence or waiver on the part of the incumbent whether other parties are going to be prejudiced if the relief is granted. In the present case, if the respondents would have challenged their retirement being violative of the provisions of the Act, perhaps the Nigam could have taken appropriate steps to raise funds so as to meet the liability but by not asserting their rights the respondents have allowed time to pass and after a lapse of couple of years, they have filed writ petitions claiming the benefit for two years. That will definitely require the Nigam to raise funds which is going to have serious financial repercussion on the financial management of the Nigam. Why the Court should come to the rescue of such persons when they themselves are guilty of waiver and acquiescence.
29. Considering the facts and circumstances of the present case in the light of the above decisions, we are of view that the applicants claim is clearly hit by the principles of acquiescence, waiver and estoppel.
30. In the light of the above discussions, we arrive at the following findings:
(i) The O.A. is not maintainable as being hit by Section 20 of the Administrative Tribunals Act, 1985;
(ii) The O.A. is barred by limitation in terms of Section 21 of the Administrative Tribunals Act, 1985; and The O.A. is also hit by the principles of acquiescence, waiver and estoppel.
Therefore, the applicant is not entitled to the relief claimed by him in the O.A. This apart, entertaining such claim, as has been made by the applicant in the present O.A., will not only unsettle the settled position but also encourage other similarly placed persons to file unnecessary litigations.
OA No.4065/12 & OA No.1552/13:
31. In these two O.As., the applicants have sought similar reliefs as in OA No.1745 of 2013, besides relief of quashing and setting aside All India Seniority List of Executive Engineers (QS & C) circulated vide letter No.B/42030/AISL/EE(QS&C)/E-I (DPC) dated 12.01.2012. After going through the pleadings of the parties, we find that no other view than the one taken in OA No.1745 of 2013 can be taken in OA Nos. 4065/12 and 1552/13.
32. Accordingly, all the three O.As. are dismissed. There shall be no order as to costs. The Registry shall keep the original order in the case file of OA No.1745 of 2013 and certified copy thereof in the case files of OA Nos.4065 of 2012 and 1552 of 2013.
(RAJ VIR SHARMA) (V.N.GAUR) JUDICIAL MEMBER ADMINISTRATIVE MEMBER AN