Retired vs Indian on 7 February, 2012

[Cites 5, Cited by 0]

Kerala High Court

Retired vs Indian on 7 February, 2012

The petitioners in this O.P.(CAT) are the applicants in O.A.No.640/2011 on the file of the Central Administrative Tribunal, Ernakulam Bench. They are retired Paramedical Staff of the Vikram Sarabhai Space Centre (VSSC), a constituent centre of the Indian Space Research Organisation (ISRO).

2. The petitioners joined service on 15/1/1972, 20/9/1974, 20/6/1975, 10/5/1973, 3/10/1974 and 17/4/1973, respectively and they retired from service on 31/5/2007, 30/11/2007, 30/11/2008, 31/5/2009, 31/8/2009 and 31/10/2009, respectively, after rendering 33 to 36 years of service. According to the petitioners, as per the norms prescribed by the ISRO, all those who join with a post-metric qualification in the Scientific/Technical category have promotional opportunities up to the grade equal to that of Sr. Technician 'C' which carry the pay scale 10,000-15,200/-. While so, the paramedical category alone is singled out and provided only two O.P.(CAT).No.2621 of 2013 2 promotion grades 'B' and 'C' in the pay scale 5,000-8,000/- and 5,500-9,000/-, respectively. Accordingly, two promotions were granted to the petitioners on completion of about 6 years of service. Due to lack of further promotional avenues/higher grades, they had been stagnating in Grade 'C' till the year 2003. The ISRO, in the year 2003, created one higher grade in the pay scale 6,500- 10,500/-, as Grade 'D', which was later re-designated as Senior 'B' and accordingly, the petitioners were placed in that pay scale in April, 2003, and continued till their retirement from service.

3. The lack of promotional avenues for Paramedical Staff like the petitioners was the subject matter of litigation before the Tribunal in O.A.No.1857/1993. The Tribunal disposed of the said O.A. by Ext.P2 order dated 26/8/1994, with an observation that the applicants therein may bring their grievances before the 5th Pay Commission or such appropriate authority, who can consider it. According to the petitioners, though the grievances of the Paramedical Staff were raised before the competent authorities, as evident from Annexures A1 and A2, all efforts were in vain. O.P.(CAT).No.2621 of 2013 3

4. In July, 2011, the petitioners approached the Tribunal in O.A.No.640/2011, seeking a declaration that, the Paramedical Staff and other Scientific/Technical Staff in the non-core sectors are similar in relation to the activities of the ISRO and in view of the ISRO norms, and that, the Paramedical Staff in the ISRO are subjected to hostile discrimination in regard to career opportunities. They also sought an order directing the respondents to consider the question of extending them the benefit of Annexure A4 OM dated 12/3/1998 and to fix notionally all the promotions and grant them all consequential monetary and pensionary benefits in terms of Annexure A4 OM.

5. When the Tribunal pointed out the delay in filing the O.A, as the relief sought in the O.A. filed in the year 2011 is to extend them the benefit of Annexure A4 OM dated 12/3/1998, the petitioners filed M.A.No.884/2011 under Rule 8(4) of the Central Administrative Tribunal (Procedure) Rule, 1987, seeking condonation of 4380 days delay in filing the O.A.

6. The Tribunal by Ext.P5 order dated 7/2/2012 dismissed the said M.A. and consequently, the O.A. was also dismissed on O.P.(CAT).No.2621 of 2013 4 account of limitation. Seeking review of Ext.P5 order, the petitioners filed R.A.No.63/2012, under Section 22(3)(f) of the Administrative Tribunals Act, 1985. But, the Tribunal dismissed the said application by Ext.P7 order dated 16/1/2013. It is aggrieved by Exts.P5 and P7 orders of the Tribunal, the petitioners are before us in this O.P. (CAT).

7. We heard the arguments of the learned counsel for the petitioners and the learned Assistant Solicitor General appearing for the official respondents.

8. The petitioners retired from service during 2007-2009, while working as Paramedical Staff in the VSSC. Much after their retirement, the petitioners approached the Tribunal in O.A.No.640/2011, seeking mainly an order directing the respondents to consider the question of extending them the benefit of Annexure A4 OM dated 12/3/1998 and to fix notionally all the promotions and grant them all consequential monetary and pensionary benefits in terms of the said OM. Going by the averments in M.A.No.884/2011 filed for condonation of delay, the petitioners have been agitating the matter before the competent authorities in terms of the direction O.P.(CAT).No.2621 of 2013 5 issued by the Tribunal in Ext.P2 order dated 26/8/1994 in O.A.No.1857/1993. According to the petitioners, while the grievance of the Paramedical Staff who were singled out was pending consideration, Annexure A4 OM dated 12/3/1998 was issued granting relief to similarly situated Lab Assistants. Apart from Annexure A2 representation dated 11/8/2010, the petitioners raised this issue before the competent authority vide Annexure MA1 representation dated 18/1/2010 and MA3 representation dated 21.4.2010. According to the petitioners, they have been agitating the issue before various forums while they were in service and even after retirement. The reason for non-inclusion of Paramedical Staff in Annexure A4 OM dated 12/3/1998 was not known to them till a document under the Right to Information Act was supplied in the year 2010. Therefore, according to the petitioners, there is no deliberate delay or laches on their part in approaching the Tribunal.

9. From the documents on record, it is evident that, the petitioners claimed the benefit of Annexure A4 OM dated 12/3/1998, for the first time, in Annexure MA3 representation dated 21/4/2010, after a lapse of more than 12 years from the issuance of the said O.P.(CAT).No.2621 of 2013 6 OM. The cause of action in the O.A. arose way back in the year 1998, when the department sought option from certain categories working in the Laboratory stream such as Lab Attendant/Lab Assistant/Sr. Lab Assistant/Scientific Assistant-B/Scientific Assistant- C/Technical Assistant-B/Technical Assistant-C, who are desirous of merging with the then Tradesman category, to exercise their option on or before 31/5/1998, vide the said OM dated 12/3/1998. Therefore, the representations, i.e., Annexure MA3 dated 21/4/2010 or Annexure A2 dated 11/8/2010, cannot revive the cause of action of the year 1998.

10. It is now well settled that, making of repeated representations cannot be said to be a satisfactory explanation for the delay in approaching a Court or Tribunal. Going by the Apex Court judgment in U. P. SRTC v. Ram Singh (2008 (17) SCC

627), the mere fact that the petitioners were making repeated representations would not justify them raising the issue before the Tribunal after a delay of more than 12 years. The relevant portion of paragraph 7 of the judgment reads thus;

O.P.(CAT).No.2621 of 2013 7

"7. ...... The mere fact that the respondent was making repeated representations would not justify his raising the issue before the Labour Court after 13 years. In any event the last representation was made in 1983 and the industrial dispute was admittedly raised in 1986. The lack of diligence on the part of the respondent is apparent."

11. Further, in C. Jacob v. Director of Geology and Mining (2008 (10) SCC115), the Apex Court held that, the Court and Tribunal should be circumspect in issuing directions to consider a stale claim as such directions ultimately leads to consideration of case on merits at subsequent stages of the litigation as if the cause of action stood revived due to fresh consideration. The Apex Court held further that, when an order is passed considering and rejecting the claim or representation, in compliance with direction of the Court or Tribunal, such an order does not revive the stale claim, nor amount to some kind of acknowledgment of a jural relationship to give rise to a fresh cause of action. Paragraphs 11 and 14 of the judgment read thus;

"11. When a direction is issued by a court/tribunal to consider or deal with the representation, usually the directee (person directed) examines the matter on merits, being under the impression that failure to do may amount to disobedience. When an order is passed considering and rejecting the claim or representation, in compliance with direction of the court or tribunal, such an order does not revive O.P.(CAT).No.2621 of 2013 8 the stale claim, nor amount to some kind of "acknowledgment of a jural relationship" to give rise to a fresh cause of action.

14. We are constrained to refer to the several facets of the issue only to emphasise the need for circumspection and care in issuing directions for "consideration". If the representation is on the face of it is stale, or does not contain particulars to show that it is regarding a live claim, courts should desist from directing "consideration" of such claims."

12. Relying on the judgment of the Apex Court in Union of India v. Shantiranjan Sarkar (2009 (3) SCC 90) it was contended by the learned Counsel for the petitioners that, the delay in filing the O.A. should not have been a bar against the Tribunal in granting equitable reliefs to the petitioners. It was contended further that, the Union of India as a benevolent cannot be permitted to take such a contention against grant of any such equitable reliefs. Paragraphs 9 to 12 of the judgment of the Apex Court read thus;

"9. The fact that the respondent is a member of Scheduled Caste is not in dispute. His name figured at Sl. No. 124 of the seniority list of Dak Sevakas in A&N Islands Divisions, Port Blair. It has not been denied or disputed before us that in Central Administrative Services, a person belonging to Scheduled Caste in any State would be deemed to be a member of the Scheduled Caste. Respondent, therefore, should have been treated to be a member of 'Schedule Caste' for the purpose of consideration of his candidature.

O.P.(CAT).No.2621 of 2013 9

10. The High Court in its impugned order categorically held that the appellants at no point of time denied or disputed that the respondent had obtained marks more than 30% but less than 45%. The High Court furthermore noticed that the notification dated 9.6.1989 issued by the Director of Postal Services, A&N Islands in categorical terms stated that his status of the Scheduled Castes should be accepted and recognised in the department examination. A member of a Scheduled Caste, thus, notified in any of the States within the territories of India, having regard to the provisions contained in Article 341 of the Constitution, was entitled to get the benefit of the said status for the purpose of entering into Central Civil Service. The High Court furthermore has rightly held that as a member of the Scheduled Caste, the respondent was entitled to the benefit of the lower percentage of marks, viz., 30% in the departmental examination for promotion from the post of Extra Departmental Mail Guard to the Post of Peon or Group 'D'.

11. If, thus, for the reasons known to the respondent that he was entitled to the benefit of the status of the Scheduled Caste in the Andaman and Nicobar Islands, irrespective of the fact that the advertisement issued recognised only two categories of reserve categories, viz., Scheduled Tribes and 'OC', there was no reason to deprive the respondent from the said benefit. Respondent, therefore, was not appointed because of a mistake committed on the part of the authorities of the appellants. They, thus, cannot be permitted to take advantage of the same.

12. In that view of the matter, the delay in filing the original application should not be held to be a bar in granting him an equitable relief. Union of India as a benevolent litigant cannot be permitted to take advantage of its own wrong. Furthermore, the appellants are guilty of suppression of material facts before this O.P.(CAT).No.2621 of 2013 10 Court. It, in its list of dates, did not state that the original order of the High Court dated 9.07.2004 had been recalled and reviewed by the Division of the said Court by an order dated 30.10.2004."

13. In Shantiranjan Sarkar's case (supra), the Apex Court was dealing with a case in which a member of a Scheduled Caste, admittedly entitled to get the benefit of the said status for the purpose of entering into the Central Civil Service with lower percentage of marks in the departmental examination for promotion, was deprived of the said benefit because of a mistake committed by the authorities in issuing the advertisement, which recognised only two reserve categories, viz., Scheduled Tribes and 'OC'. As he was not appointed only because of the said mistake committed by the authorities, the Apex Court held that, the Union of India as a benevolent litigant cannot be permitted to take advantage of its own wrong and that, the delay in filing the original application should not be held to be a bar in granting him an equitable relief. But, in the case on hand, the claim made by the petitioners is for extension of the benefits which were given to certain categories working in the Laboratory stream, under Annexure A4 OM dated 12/3/1998, to the Paramedical Staff as well. This is neither an equitable relief nor O.P.(CAT).No.2621 of 2013 11 establishment of an existing right. On the other hand, the petitioners are seeking creation of a new right, i.e., grant of the benefits enjoyed by certain categories working in the Laboratory stream in terms of Annexure A4 OM. Therefore, the principles laid down by the Apex Court in Shantiranjan Sarkar's case (supra) would not come of the rescue of the petitioners.

14. As we have already noticed, the cause of action in the O.A. arose way back in the year 1998, when the department sought option from certain categories working in the Laboratory stream, who are desirous of merging with the then Tradesman category, to exercise their option on or before 31/5/1998, vide Annexure A4 OM dated 12/3/1998. The petitioners who were in service at that point of time were having adequate opportunity to claim extension of the said benefit to the Paramedical Staff, by submitting representations either individually or through their employees union or association. There failure to claim the extension of the benefits under Annexure A4 OM at appropriate time, would certainly disentitle them from raising such a claim, which on the face of it is a stale claim, at this point of time. Moreover, no sufficient reasons whatsoever have been O.P.(CAT).No.2621 of 2013 12 stated in M.A.No.884/2011 filed for condonation of 4830 days delay in filing the O.A. Therefore, we are of the considered view that, there is no irregularity or illegality in Ext.P5 order passed by the Tribunal in dismissing M.A.No.884/2011 filed for condonation of delay and consequently dismissing O.A.No.640/2011. Similarly, there is no irregularity or illegality in Ext.P7 order passed by the Tribunal in dismissing R.A.No.63/2012 filed by the petitioners seeking a review of Ext.P5 order, on the ground that there is no error apparent of the face of the record warranting exercise of such power. We find absolutely no grounds to interfere with Exts.P5 and P7 orders passed by the Central Administrative Tribunal, Ernakulam Bench.

In the result, this O.P.(CAT) is dismissed.

ANTONY DOMINIC, JUDGE ANIL K.NARENDRAN, JUDGE skj

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