Central Administrative Tribunal - Delhi
Shri M Y Qureshi vs M/O Railways on 21 November, 2017
Central Administrative Tribunal
Principal Bench
OA No.1100/2015
MA No.3423/2017
New Delhi this the 21st day of November, 2017.
Hon'ble Mr. Justice Permod Kohli, Chairman
Hon'ble Mr. K.N. Shrivastava, Member (A)
Shri M.Y. Qureshi
Age-67 years
S/o Late Shri Alauddin Qureshi
Ex-Divisional Commercial Inspector (A.F.)
Western Railway Agra
R/o 255-C, M.I.G. Flat Quresh Nagar,
Delhi.
-Applicant
(By Advocate: Ms. Meenu Mainee)
Versus
Union of India: Through
1. Secretary
Railway Board
Ministry of Railway
Rail Bhawan, New Delhi.
2. General Manager
Western Railway
Church Gate
Mumbai.
3. Chief Commercial Manager
Western Railway
Church Gate, Mumbai
4. General Manager
N.C.R. Allahabad.
-Respondents
(By Advocate: Shri V.S.R. Krishna and
Shri A.K. Srivastava)
2
OA No.1100/2015
MA No.3423/2017
O R D E R (ORAL)
Mr. K.N. Shrivastava, Member (A):
This Original Application (OA) has been filed by the applicant under Section 19 of the Administrative Tribunals Act, 1985, praying for the following main relief:
" 8.1 That this Hon'ble Tribunal may be graciously pleased to allow this O.A. and direct the respondents to consider the case of the Applicant and interpolate his name in the panel of A.C.Ms. drawn in the selection held in 1994/95".
2. The brief facts of this case, as noticed from the records, are as under:
2.1 The applicant initially joined as a Commercial Clerk in the year 1993 in the Railway Department on his being selected by the Railway Recruitment Board (RRB), Mumbai.
He was promoted as Divisional Commercial Inspector and placed in the pay scale of Rs.2375-3500.
2.2 In the year 1994-95, the respondent-railway department started process for selection for the post of Assistant Commercial Manager (ACM) in the pay scale of Rs.2000- 3200. The selection was to be made on merit-cum-seniority basis. Since the zone of consideration was to include the employees from different streams of the Railways, the provisions of para 203.5 of Indian Railway Establishment Manual, Volume-I (IREM-I), 1989 Edition, were invoked for 3 OA No.1100/2015 MA No.3423/2017 determining the eligibility of the employees to be included in the zone of consideration. The said para 203.5 is extracted below:
"Since employees from the different streams will be eligible to appear for the section, their integrated seniority for purposes of the selection should be determined on the basis of total length of non-fortuitous service rendered in grade Rs.2000- 3200 (R.S.) and above. In other words the date of appointment to the grade Rs.2000-3200 (R.S.) and above. In other words the date of appointment to the grade Rs.2000- 3200 (R.S.) on a non fortuitous basis will be the criterion".
2.3 Para 203.4 of IREM-I prescribed the formulae for deciding the number of candidates to be included in the zone of consideration as under:
"Zone of consideration:- The number of employees to be called for the selection will be in accordance with sliding scale in the order of seniority as shown below.
01 vacancy -05 employees.
02 vacancies-08 employees.
03 vacancies-10 employees.
04 vacancies and above- employees equal to three times the number of vacancies".
2.4 The employees in the pay scale of Rs.2000-3200 were thus to be considered for selection for the post of ACM. Since the applicant was in the pay scale of Rs.2375-3500, he was not called for participating in the selection process. He made a representation dated 16.6.1995, which was followed by another representations dated 25.2.1996 (Annexure A-3). His plea in the representations was that he was the senior- most Group 'C' employee in the pay scale of Rs.2375-3500 4 OA No.1100/2015 MA No.3423/2017 and was eligible for selection to the post of ACM - a Group 'B' post in the pay scale of Rs.2000-3200. His grievance is that denial of opportunity to him to participate in the selection process for the post of ACM had adversely affected his career prospects and that respondents had failed to appreciate that in case a person in the lower grade is selected as ACM, a Group 'B' post, those who were in the higher grade in Group 'C' like him would become subordinate to their own juniors. The applicant has further pleaded that para 203.5 of IREM-I did not prohibit participation of Group 'C' employees in the pay scale of Rs.2375-3500 in the selection for the post of ACM albeit the post of ACM was in the lower pay scale of Rs.2000-3200. Since his representations were not given due consideration by the respondents, the applicant has filed the instant OA, praying for the reliefs as indicated in para-1 supra.
3. The applicant in support of his prayers has pleaded the following grounds:
a) The case of the applicant is squarely covered by the judgment of the Principal Bench of this Tribunal in the case of Sarwar Ali v. Union of India, OA No.723/2008, dated 05.12.2008, wherein an identically placed the applicant - a Railway employee, was granted the reliefs claimed by the 5 OA No.1100/2015 MA No.3423/2017 present applicant. The said judgment of the Tribunal was upheld by the Hon'ble High Court of Delhi in W.P. (C) No.10011/2009 vide judgment dated 18.07.2011.
b) A large number of juniors of the applicant were allowed to participate in the selection process for the post of ACM but the legitimate right of the applicant to participate in the selection process was ignored by the respondents and even the provisions of para 203.5 of IREM-I had not been judiciously complied.
4. Pursuant to the notices issued, the respondents entered appearance and filed their reply in which they have broadly made the following averments:
i) Para 203.5 of IREM-I states that integrated seniority should be determined on the basis of total length of non-
fortuitous service rendered in the scale of Rs.2000-3200 and above. In the other words, the date of appointment to the grade of Rs.2000-3200 on a non-fortuitous basis will be the criterion since the employees from different streams are to be allowed to participate in the selection.
ii) The applicant did not come under the zone of consideration since the total length of non-fortuitous service rendered in the pay scale of Rs.2000-3200 by him was not adequate.
6OA No.1100/2015 MA No.3423/2017
iii) The applicant has filed this OA after a long delay of over 10 years, the old records pertaining to the selection done in the year 1995-96 have been weeded out after expiry of their retention period.
iv) The integrated seniority of employees from different streams for participation in the selection for the post of ACM was strictly drawn in accordance with para 203.4 of IREM-I.
v) The judgment of the Tribunal in the case of Sarwar Ali (supra) was a judgment in personam and not in rem.
5. A rejoinder was filed by the applicant to the reply filed on behalf of the respondents in which besides reiterating the averments made in the OA, reliance has also been placed on the judgment of the Hon'ble Apex Court in Amrit Beri v. Collector of Central Excise, [1975 (1) 153], wherein it has been held as under:
"When a citizen aggrieved by the action of a government department has approached the Court and obtained a declaration of law in his favour in like circumstances should be able to rely upon the sense of responsibility of the department concerned and expect that they will be given the benefit of this declaration without a need to take their grievance in the Court".
6. On completion of the pleadings, the case was taken up for hearing the arguments of the learned counsel for the parties today. The arguments of Mrs. Meenu Mainee, learned counsel for the applicant and that of Mr. V.S.R. Krishna 7 OA No.1100/2015 MA No.3423/2017 along with Mr. A.K. Srivastava, learned counsel for the respondents were heard.
7. Mrs. Mainee, reiterated the averments made by the applicant in the OA and rejoinder. In addition, she also submitted that the applicant has already filed MA No.3423/2017 seeking condonation of delay of 7670 days. In support of the condonation of delay she placed reliance on the judgment of the Hon'ble Supreme court in the case of K.C. Sharma and others v. Union of India and others, [(1997) 6 SCC 721].
8. Shri V.S.R. Krishna, learned counsel for the respondents also confined his arguments to the pleadings of the respondents in their reply. He, however, sought dismissal of the OA on the ground of inordinate delay in filing the OA against a cause of action which arose in the year 1994-95.
9. We have considered the arguments of the learned counsel for the parties and have also perused the pleadings and documents annexed thereto. Indisputably, the selection for the post of ACM was done by the respondents in the year 1994-95. The integrated seniority list for considering the candidates eligible for participating in the selection process was drawn on the basis of the provisions of para 203.5 of 8 OA No.1100/2015 MA No.3423/2017 IREM-I, referred to hereinabove. According to para-203.5, the basis of drawl of integrated seniority was non-fortuitous service rendered by the candidates in the pay scale of Rs.2000-3200. The applicant could not make it to the list on account of his length of service. Hence, no fault can be found on the part of the respondents in not considering the applicant for selection.
10. The applicant has relied on the judgment of this Tribunal in Sarwar Ali (supra). We have gone through the said judgment. The relevant observations of the Tribunal in Sarwar Ali (supra) are reproduced below:
"5. If the impact of a provision unwittingly operate in a manner negativing just claims, the Tribunal is expected to suggest supplementary details, to make it fully functional, rather than setting aside the rule wholesale. On regular basis, applicant had come to be promoted to the pay scale of Rs.6500-10500 on 17.10.1990 and was there on non fortuitous basis upto 12.06.1996. Later on, he has been promoted as Chief Train Controller in the pay scale of Rs.7450-11500. What appears to be highlighted is that since he had come away from the lower pay scale, his promotability is lost. Also the principles of integrated list required that his position while he was in the said cadre alone could have been possible to be noted, but he did not come within the eligible zone. This provides interesting reading, because the argument is that in spite of his promotion, had he come in the eligible zone vis-vis the erstwhile cadre, he would have been considered. But he was 55th item and the last in the list held position of
38.
6. This leads to a curious position. A person whose merit had been recognized, and who is promoted to the higher cadre is sought to be denied opportunity to compete in a selection where persons who were not successful in the previous selection are permitted to partake. Definitely the successful would be brought above the head of the applicant as Grade B officer. Paragraph 9 OA No.1100/2015 MA No.3423/2017 203.5 of IREM does not appear to be arbitrarily worded. We only find that it has omitted to take notice of certain an anomalous situation like the above instance. What should be proper, we feel is that simultaneous with preparation of an integrated list, there should also be an examination as to whether any person, in the lower grade, had secured promotion by a process of selection and as in the present case. Such persons are to be given priority to be placed in the integrated list prepared. This will be more in consonance with the principles of service jurisprudence. The lower seniority in the erstwhile cadre when is compensated by a promotion, previous seniority position becomes irrelevant and the person is to be treated as having a prior claim to be included in the list, when selection steps to Group `B' posts are being processed. In other words, a person, who has been adjudged as meritorious, should as well get an opportunity, in fairness to complete for the Group B post. Of course, Mr. Yadav had invited our attention to a judgment of the Supreme Court in Vinod Krishna Kaul Vs. UOI & Ors. ( JT 1991 (5) SC (2), but we find the above discussion rested on totally different facts.
10.1 The Tribunal significantly noted that para-203.5 of IREM-I did not prohibit consideration of the applicant therein for the selection to Group 'B' post. While allowing the said OA, the Tribunal chose not to disturb the selection already done but at the same time directed for separate assessment of the claims of the applicant therein for consideration for promotion to Group 'B' post.
10.2 The applicant has not been able to explain satisfactorily the long delay of about 10 years in filing the OA from the date of the cause of action. Even the judgment of the Tribunal in Sarwar Ali (supra) was rendered on 05.12.2008 and was affirmed by the Hon'ble High Court of Delhi on 18.07.2011 but the applicant has filed the instant OA on 12.03.2015.10 OA No.1100/2015 MA No.3423/2017
The Tribunal as well as the Hon'ble High Court of Delhi have not laid down any ratio of law in their respective judgments in Sarwar Ali (supra). The reliefs granted in their judgment are specific to the applicant/petitioner therein and hence there is a merit in the contention of the respondents that those judgments are in personam and not in rem.
10.3 The respondents have also stated that the old records pertaining to the selection done in the year 1994-95 have since been weeded out after expiry of their retention period and hence they are not able to furnish comprehensive details of the selection done. The judgments of the Hon'ble Supreme Court relied upon by the applicant would not help him in explaining the inaction on his part for agitating for his rights at the appropriate time. On account of long delay involved in filing the OA even the records of the selection are not available. At this late stage, in the absence of records, the issues raised by the applicant cannot be effectively adjudicated.
11. On the issue of delay, the observations of Hon'ble Apex Court are as under:
"I. Hon'ble Supreme Court in BSNL Vs. Ghanshyam Das & Ors., reported in (2011) 4 SCC p.374, has held that the order of the Tribunal may not be treated as a 11 OA No.1100/2015 MA No.3423/2017 judicial precedent for those who were sitting at the fence. Paras 25 and 26 of the judgment read as under :
"25. The principle laid down in K.I. Shephard (supra) that it is not necessary for every person to approach the court for relief and it is the duty of the authority to extend the benefit of a concluded decision in all similar cases without driving every affected person to court to seek relief would apply only in the following circumstances:
(a) where the order is made in a petition filed in a representative capacity on behalf of all similarly situated employees;
(b) where the relief granted by the court is a declaratory relief which is intended to apply to all employees in a particular category, irrespective of whether they are parties to the litigation or not;
(c) where an order or rule of general application to employees is quashed without any condition or reservation that the relief is restricted to the petitioners before the court; and
(d) where the court expressly directs that the relief granted should be extended to those who have not approached the court.
26. On the other hand, where only the affected parties approach the court and relief is given to those parties, the fence-sitters who did not approach the court cannot claim that such relief should have been extended to them thereby upsetting or interfering with the rights which had accrued to others."
II. Hon'ble Apex Court in the case of D.C.S. Negi Vs. Union of India & Ors., [Special Leave (Civil)CC No. 3709/2011) on 07.03.2011 (supra) has held:
"Before parting with the case, we consider it necessary to note that for quite some time, the Administrative Tribunals established under the Act have been entertaining and deciding the Applications filed under Section 19 of the Act in complete disregard of the mandate of Section 21. .....12 OA No.1100/2015 MA No.3423/2017
Since Section 21 (1) IS COUCHED IN NEGATIVE FORM, IT IS THE DUTY OF THE Tribunal to first consider whether the application is within limitation. 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)."
III. In Oriental Aroma Chemical Industries Ltd. v. Gujarat Industrial Development Corporation & Another, [(2010) 5 SCC 459], Hon'ble Supreme Court observed as under:
"8.......The law of limitation is founded on public policy. The legislature does not prescribe limitation with the object of destroying the rights of the parties but to ensure that they do not resort to dilatory tactics and seek remedy without delay. The idea is that every legal remedy must be kept alive for a period fixed by the legislature. To put it differently, the law of limitation prescribes a period within which legal remedy can be availed for redress of the legal injury. At the same time, the courts are bestowed with the power to condone the delay, if sufficient cause is shown for not availing the remedy within the stipulated time. The expression "sufficient cause" employed in Section 5 of the Indian Limitation Act, 1963 and similar other statutes is elastic enough to enable the courts to apply the law in a meaningful manner which sub serves the ends of justice. Although, no hard and fast rule can be laid down in dealing with the applications for condonation of delay, this Court has justifiably advocated adoption of a liberal approach in condoning the delay of short duration and a stricter approach where the delay is inordinate."
IV. In Chennai Metropolitan Water Supply and Sewerage Board and Others Vs. T.T. Murali Babu, [(2014) 4 SCC 108], it was held by the Hon'ble Apex Court as under:-
13OA No.1100/2015 MA No.3423/2017
"13. First, we shall deal with the facet of delay. In Maharashtra State Road Transport Corporation v. Balwant Regular Motor Service, Amravati and others[AIR 1969 SC 329] the Court referred to the principle that has been stated by Sir Barnes Peacock in Lindsay Petroleum Co. v. Prosper Armstrong Hurd, Abram Farewall, and John Kemp[(1874) 5 PC 221], which is as follows: -
"Now the doctrine of laches in Courts of Equity is not an arbitrary or a technical doctrine. Where it would be practically unjust to give a remedy, either because the party has, by his conduct, done that which might fairly be regarded as equivalent to a waiver of it, or where by his conduct and neglect he has, though perhaps not waiving that remedy, yet put the other party in a situation in which it would not be reasonable to place him if the remedy were afterwards to be asserted in either of these cases, lapse of time and delay are most material. But in every case, if an argument against relief, which otherwise would be just, is founded upon mere delay, that delay of course not amounting to a bar by any statute of limitations, the validity of that defence must be tried upon principles substantially equitable. Two circumstances, always important in such cases, are, the length of the delay and the nature of the acts done during the interval, which might affect either party and cause a balance of justice or injustice in taking the one course or the other, so far as relates to the remedy."
14. In State of Maharashtra v. Digambar[(1995) 4 SCC 683], while dealing with exercise of power of the High Court under Article 226 of the Constitution, the Court observed that power of the High Court to be exercised under Article 226 of the Constitution, if is discretionary, its exercise must be judicious and reasonable, admits of no controversy. It is for that reason, a person's entitlement for relief from a High Court under Article 226 of the Constitution, be it against the State or anybody else, even if is founded on the allegation of infringement of his legal right, has to necessarily depend upon unblameworthy conduct of the person seeking relief, and the court refuses to grant the discretionary relief to such person in exercise of such power, when he approaches it with unclean hands or blameworthy conduct.
15. In State of M.P. and others etc. etc. v. Nandlal Jaiswal and others etc. etc.[ AIR 1987 SC 251] the Court observed that:
14OA No.1100/2015 MA No.3423/2017
"it is well settled that power of the High Court to issue an appropriate writ under Article 226 of the Constitution is discretionary and the High Court in exercise of its discretion does not ordinarily assist the tardy and the indolent or the acquiescent and the lethargic."
It has been further stated therein that:
"if there is inordinate delay on the part of the petitioner in filing a petition and such delay is not satisfactorily explained, the High Court may decline to intervene and grant relief in the exercise of its writ jurisdiction. "
Emphasis was laid on the principle of delay and laches stating that resort to the extraordinary remedy under the writ jurisdiction at a belated stage is likely to cause confusion and public inconvenience and bring in injustice.
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, "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.
17. 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 15 OA No.1100/2015 MA No.3423/2017 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 supplied).
12. In view of the unsatisfactory explanation of the applicant in explaining the inordinate delay in filing the OA and also taking note of the fact that the respondents had strictly conducted the selection process in accordance with the provisions of paras 203.4 and 203.5 of IREM-I, the OA is dismissed both on merit as well as on the ground of limitation.
13. There shall be no order as to costs.
(K.N. Shrivastava) (Justice Permod Kohli) Member (A) Chairman 'San.'