Central Administrative Tribunal - Delhi
Manorma Devi W/O Late Sh. Giriraj Singh vs Union Of India Through on 7 October, 2010
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
OA 2430/2009
MA 1636/2009
New Delhi, this the 7th day of October, 2010
HONBLE MRS. MEERA CHHIBBER, MEMBER (J)
HONBLE DR. A.K. MISHRA, MEMBER (A)
Manorma Devi W/o Late Sh. Giriraj Singh
R/o Near Railway Colony, Rampur,
Hathras Junction, UP. Applicant
(By Advocate: Shri U.Srivastava)
Versus
Union of India through
1. The General Manager,
Northern Central Railway,
Allahabad, U.P.
2. The Divisional Railway Manager,
Northern Central Railway,
Allahabad, U.P. Respondents.
(By Advocate: Shri Shailendra Tiwary for Shri Saba Rahman)
O R D E R (ORAL)
By Honble Mrs. Meera Chhibber, Member (J) Applicant, who is widow of Shri Giriraj Singh, has filed this OA seeking a direction to the respondents to consider and finalize her case for extension of benefits of promotion as well as revision of retirement benefits of her husband in accordance with the relevant rules and instructions on the subject which is still pending with them and pay her all other consequential benefits, namely the arrears of difference of pension etc. etc.
2. It is stated by the applicant that her husband was appointed as Khalasi on 04.09.1963 and was posted in S&T Department. Due to unblemished and satisfactory services, he was promoted as ESM Grade-III and thereafter as ESM Grade-II in terms of order dated 17.09.1990 after qualifying the promotion test. He was even spared for appearing in the promotion test of ESM Grade-I from the Office of Divisional Engineer (Railway), Northern Railway, Hathras Junction in the year 1995 but it was due to some confusion of Senior Section Engineer (Signal), Northern Railway Junction that he could not be spared as it was not clear whether he was holding the post of ESM Grade-III or II. He was again spared for appearing in the promotion test of ESM Grade-I in terms of order dated 16.12.1996. However, again some confusion remained and he was ultimately allowed to appear in the promotion test of ESM Grade-I and qualified the same also but the applicants husband was not promoted due to non-availability of vacancy. Husband of the applicant had been representing to the respondents for grant of the benefits of the promotion to the post of ESM Grade-II in the pay scale of Rs.1200-1800/- from September, 1990 along with the benefits of increments and also the chance of the promotion to ESM Grade-I but he was promoted ESM Grade-II in the pay scale of Rs.4000-6000 vide order dated 13.04.1998. In this background, widow of the applicant has filed the present OA seeking relief as mentioned above.
3. She has also filed an application for condonation of delay on the ground that her husband had been representing to the authorities. After retirement her husband had given papers to one Advocate Shri A.P.Pandey, who is practicing in District Court, Hathras, who had not filed any case. Her husband retired in the year 2000 and died in 2008. The papers were given to the applicant thereafter by the said Advocate, therefore, she has filed the present OA in the year 2009. She has thus prayed that the delay may be condoned.
4. Respondents have opposed this OA. They have stated that the cause of action had arisen long back in the year 2000 whereas O.A. has been filed in 2009 by giving lame excuse therefore there is no justification to condone the delay. The M.A. and O.A. are therefore liable to be dismissed on the ground of limitation.
5. On merits, they have stated that the husband of the applicant had retired from service in the year 2000. If he was aggrieved for not promoting him to the higher post he should have taken up the matter when cause of action had arisen. He did not file any representation to the Department during his service and even after his retirement till he expired he did not file any case, which shows that he did not have any objection to the orders passed by the respondents otherwise he would have agitated for the same at that time itself. They have stated that the promotion to ESM Grade-I can be given to only those persons who have worked in ESM Grade-II for more than two years. Reason for not carrying out promotion in ESM Grade-II is not known as applicant did not claim the said promotion during his service period from September 1990 to April 1998 which shows that either the employee was under pending D & AR case or punishment. The fact remains that when he was finally given promotion as ESM Grade-II in the year 1998, even that was not challenged by the applicant, therefore, this OA may be dismissed at this belated stage.
6. We have heard counsel for the applicant and perused the pleadings as well. Admittedly, the applicants husband was in service till 2000. As per applicants own averments, applicants husband was promoted as ESM Grade-II vide order dated 13.04.1998 but he was not allowed to work on the promotional post. Ultimately, he was promoted as ESM Grade-II vide order dated 13.04.1998. During the period 1990-1998, the applicants husband was very much in service and if he was aggrieved by the non-grant of his promotion in the year 1990 he should have challenged the same at that time itself. He ought to have challenged the same by filing an OA in the Tribunal. Admittedly, no such action was taken by the applicants husband even in 1998 when applicants husband was indeed promoted as ESM Grade-II. Since he did not challenge the same, he acquiesced to the situation of having been promoted as ESM Grade-II on 13.04.1998. It is an admitted position that the applicants husband retired in the year 2000 and died on 01.02.2008. There was sufficient time for the applicants husband to challenge the action of the respondents even after his retirement, in case he had any grievance or any valid justification for claiming promotion w.e.f. 1990 in ESM Grade-II. The very fact that the applicants husband did not take any action in 1990 nor took objection to the order passed by the respondents in 1998 nor approached this Tribunal till he died shows that there must have been some valid reason for denying promotion to the applicants husband in 1990 otherwise he would have challenged the same. Since he did not challenge those orders, it is not open to the widow of the employee now to seek benefit of such promotion and to seek revision of pension etc. on the basis of said promotion.
7. Applicant has filed this case on 31.07.2009 whereas cause of action had arisen in the year 1990. The period of limitation as per Section 21 of the Administrative Tribunals Act 1985 is one year from the date of cause of action. The O.A. is therefore definitely barred by limitation.
8. At this juncture, it would be relevant to quote the following judgments:-
i) In S.S. Rathore Vs. State of Madhya Pradesh reported in AIR 1990 SC 10 it has been held by Honble Supreme Court as follows:-
In the case of service dispute the cause of action must be taken to arise not from the date of the original adverse order but on the date when the order of the higher authority where a statutory remedy is provided entertaining the appeal or representation is made and where no such order is made, though the remedy has been availed of, a six months period from the date of preferring of the appeal or making of the representation shall be taken to be the date of preferring of the appeal or making of the representation shall be taken to be the date when cause of action shall be taken to have fires arisen.
This principle has no application when the remedy availed of has not been provided by law. Repeated unsuccessful representations not provided by law are not governed by this principle.
ii) Similarly in Union of India and Others Vs. M.K. Sarkar reported in 2010 (2) SCC 59 it has been held by Honble Supreme Court as follows:-
Issue of limitation or delay and laches has to be considered with reference to original cause of action.
iii) In P.K. RAMACHANDRAN Vs. STATE OF KERALA AND ANOTHER reported in JT 1997 (8) SC 189 it has been held by Honble Supreme Court that the law of limitation may harshly affect a particular party but it has to be applied with all its rigor when the statute so prescribe and the Courts have no power to extend the period of limitation on equitable grounds. The discretion exercised by the High Court was, thus, neither proper nor judicious. The order condoning the delay, therefore, cannot be sustained.
iv) Similarly in State of Karnakata Vs. S.M. Kotraya 1996 (7) SCALE 179 it was again held by Honble Supreme Court that it is not necessary that the respondents should give an explanation for the delay which occasioned for the period mentioned in sub-Sections (1) and (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 as prescribed under Section 21 of the Administrative Tribunals Act, 1985. In view of above, it is duty of the court to see whether the delay has been properly explained by the person who is approaching the court after an inordinate delay. Accordingly, filing an application does not entitle the person to claim condonation of delay.
From above it is clear that delay can be condoned only if delay is properly explained to the satisfaction of the Court.
9. The only ground taken by the widow in the application for seeking condonation of delay is that her husband had given papers to some advocate who had given the same to her in the year 2009 itself therefore she has filed the O.A. in 2009. This reasoning is not justifiable if applicants husband had given papers to an advocate and he was not taking any action on it, he should have taken the remedy by engaging some other counsel because he was very much alive till 31.08.2008. Admittedly he had not taken any action till he died, therefore, the ground taken is not a valid ground for condoning of delay. The application for condonation of delay is therefore rejected. Since we have not condoned the delay, the OA is barred by limitation. The OA is accordingly dismissed being barred by limitation. No costs.
(Dr.A.K.Mishra) (Mrs.Meera Chhibber) Member(A) Member (J) /kdr/