Central Administrative Tribunal - Allahabad
Awadh Behari Shukla vs Union Of India Through The Secretary on 20 March, 2012
Open Court CENTRAL ADMINISTRATIVETRIBUNAL,ALLAHABAD BENCH, ALLAHABAD (This the 20th Day of March 2012) Honble Mr. Sanjeev Kaushik-JM Honble Mr. Shashi Prakash- AM Original Application No. 1392 of 2006 (U/S 19, Administrative Tribunal Act, 1985) 1. Awadh Behari Shukla, Ticket No. 2575/BK 2. K.C. Srivastava, do 2607/BK 3. Raj Bahadur do 2609/CAMP 4. Ram Sukh Lal do 2634/TFC 5. Ram Babu do 2637/CAMP 6. Pradeep Kumar Dwivedi do 2676/TFC 7. Ram Sewak do 2719/CAMP 8. G.R. Singh do 2875/CL-II 9. Deo Narain do 2877/CAMP 10. A.B. Singh do 3141/CLO-II 11. Vimal Kumar do 3167/CLO-I 12. A.K. Singh do 3387/CLO-I 13. Ram Badan do 3446/TFC All presently employed as Packer Mates, Central Ordnance Depot (C.O.D), Kanpur . Applicants By Advocate: Shri M.K. Upadhyay Versus 1. Union of India through the Secretary, Ministry of Defence, Government of India, New Delhi. 2. Directorate General of Ordnance Services, Army Hd. Qrs., DHQ PO New Delhi. 3. Commandant, Central Ordnance Depot (C.O.D), Kanpur. .. . Respondents By Advocate: Shri R.K. Srivastava O R D E R
(By Honble Mr. Sanjeev Kaushik, J.M) Present original application has been filed seeking direction from this Tribunal to the respondents to fill all future vacancies of Packers (O) in the C.O.D., Kanpur by promoting the applicants, who are in the select list published vide C.O.D D.O Pt. II No. 377/Coord dated 22.11.1993. Further direction has also been sought to the respondents not to promote any one on the post of Packer (O) from outside the select list before promoting the applicants.
2. The facts of the case , in brief, are that the applicants were initially engaged as Mazdoor in C.O.D, Kanpur and engaged in packing work. As per S.R.O No. 263/80 it was decided to conduct a trade test for promotion of the Industrial Personnel, who were engaged in packing work, from Mazdoor to Packer (O). Pursuance to the said SRO a trade test was held on 17.02.1993 and on subsequent dates. Result of the trade test was declared on 22.11.1993 in which 144 Industrial employees including the applicants were declared successful. The name of the applicants shown in the selected list at Sl. No. 73, 79, 80, 85, 87, 89, 101, 102, 121, 123, 139 and 142 respectively. According to the applicants, the promotion were to be effected to the post of Packer (O) from the said list. The respondents promoted and appointed the candidates from Sl. No. 1 to 71 to the post of Packer (O) according to their seniority. It is submitted that the further promotions were also to be made in the order of seniority from amongst the empanelled candidates of select list dated 22.11.1993 but the respondents promoted the outsiders , who are not in the select list, as Packer (o) leaving the applicants and that to without exhausting the remaining candidates of the select list between Sl. No. 73 to 144. Aggrieved by the action of the respondents the applicants preferred representation dated 30.11.2005 to the Commandant C.O.D., Kanpur (Annexure A-2 to A-7). Another representation through Trade Union/Mazdoor Panchayat was also moved but the grievance of the applicants has not been considered and decided, hence the O.A.
3. On notice Shri R.K. Srivastava, Advocate appeared on behalf of respondents and filed Counter Affidavit. They have raised objection on the point of delay in para G of Counter Affidavit on the ground that the cause of action for filing the present Original Application accrued in the year 1993, whereas the applicants have filed the present O.A in the year 2006 i.e. almost more than 13 years from the empanelment in the year 1993, therefore, the O.A deserves to be dismissed being time barred.
4. On merits, it is argued that prior to 1990 Mazdoors/ Packer Mates with three years of regular service in the grade and who had qualified the requisite trade test prescribed by the DGOS, were eligible for promotion to Packer (O) on the authority of SRO 263/80, which consequent upon implementation of Arbitration Award in respect of Packer (Mates) of AOC by the Government of India vide letter No. 6/17/89/D(O-II) dated 17.05.1990 was ceased. Thereafter only Packer Mates were required to be promoted to Packer (O) (Annexure CA-1). It is further argued that till the Award by the Government was issued vide letter dated 17.05.1990, no amendment in Recruitment Rules as existed in SRO No. 263/80 was made. Learned counsel for the respondents urged that while considering the case of fixation of Packer (O) was objected by the Audit Authorities vide letter dated 30.05.1998, therefore, the mater was referred to Army Headquarter , who vide Letter No. B/13006/OS-8C(ii) dated 06.09.1999 upheld the objection raised by the Audit authorities (Annexure CA-3). The case was again referred to the Army Headquarter, who directed the Commandant, COD, Kanpur vide their letter dated 18.07.2000 to take the decision at the level of appointing authority (Annexure A-4). Learned counsel further argued that since it was clarified by the Army Headquarter in para 2 of the letter dated 06.09.1999 that the panel for promotion is valid for only one year extendable by another six months in accordance with the instructions on the subject, therefore, remaining individuals could not be promoted. Since the provisions of SRO 263/80 are no longer valid after coming into force of Packer Award in the year 1989, the applicants are not entitled to the promoted as Packer (O) hence prayed for dismissal of O.A.
5. We have considered the rival submissions.
6. In view of the preliminary objection raised by the respondents we deem it appropriate to decide the same first. In para G of the preliminary submission of Counter Affidavit the respondents have taken a preliminary objection that the present original application is highly time barred as the cause of action arose in favour of the applicant in the year 1993 when they were included in the panel of eligible candidates. The present original application has been filed on 26.11.2006 i.e. almost more than 13 years. In terms of Section 21 of Administrative Tribunals Act 1985, aggrieved person is to approach the Tribunal for redressal of his grievance within a period of one year from the date of cause of action, which can be extended by another six months by filing representation or appeal.
7. Section 21 of 1985 Act prescribes the limitation for approaching the Tribunal. Section 21 of 1985 Act reads as under: -
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 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.
8. From the perusal of the aforesaid section it is clear that under the 1985 Act the O.A is to be filed within one year from the date of cause of action. The same is extended by another six months in terms of 21(i)(b). If the O.A is not filed within limitation then in terms of section 21(3) the applicant has to move Misc. Application for seeking Condonation of delay by explaining each day delay in not filing the Original Application within the limitation and if Tribunal satisfied the cause for not filing Original Application in time then Tribunal can condone the delay.
9. The Section 21 of the Administrative Tribunal Act 1985 came up for consideration before the Honble Apex Court in following cases:-
a. S.S. Rathore v. State of M.P. reported in 1990 SCC (L&S) 50 b. Administrator of Union Territory of Daman and Diu and others Vs. R.D. Valand 1995 Supp(4) Supreme Court Cases 593 c. Union of India & Ors. v. M.K. Sarkar reported in (2010)2 Supreme Court Cases 59 d. Union of India & Ors. v. A. Durairaj reported in JT 2011 (3) SC 254
10. In S.S. Rathores Case Lordship of Supreme Court held that successive representations cannot extend the period of limitation. The observations of Para 20 and 21 of the said judgments is reproduced herein under : -
20. We are of the view that the cause of action shall 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 when cause of action shall be taken to have first arisen. We, however, make it clear that this principle may not be applicable when the remedy availed of has not been provided by law. Repeated unsuccessful representations not provided by law are not governed by this principle.
21. It is appropriate to notice the provision regarding limitation under Section 21 of the Administrative Tribunals Ac. Sub Section (1) has prescribed a period of one year for making of the application and power of condonation of delay of a total period of six months has been vested under sub-section (3). The civil courtss jurisdiction has been taken away by the Act and, therefore, as far as government servants are concerned, Article 58 may not be invocable in view of the special limitation. Yet, suits outside the purview of the Administrative Tribunals Act shall continue to be governed by Article 58.
In the case of Administrator of Union Territory of Daman and Diu and others (Supra) the Honble Supreme Court has held as under : -
.......... The Tribunal fell into patent error in brushing aside the question of limitation by observing that the respondent has been making representation from time to time and as such the limitation would not come in his way .
11. Recently in the case of Union of India & Ors. v. A. Durairaj reported in JT 2011 (3) SC 254, the Honble Apex Court has held as under:-
Re: Question(i)
12. Section 21 of the Administrative Tribunals Act, 1985 prescribes the limitation for approaching the Tribunal in this case the medical examination of the Respondent and the non-promotion as ad hoc ASTE were in the year 1976. The Respondent accepted the diagnosis that he was colour blind and did not make any grievance in regard to his non-promotion. On the other hand, he attempted to get treatment or correction contact tenses from USA (to aid the colour blind to distinguish colours correctly). On account of the non challenge, the issue relating to his non-selection in 1976 attained finality and the same issue could not have been reopened in the year 1999-2000, on the ground that medical tests conducted in 1998 and 2000 showed him to be not colour blind.
13. It is well settled that anyone who feels aggrieved by non-promotion or non-selection should approach the Court/Tribunal as early as possible. If a person having a justifiable grievance allows the matter to become stale and approaches the Court/Tribunal belatedly grant of any relief on the basis of such belated application would lead to serious administrative complications to the employer and difficulties to the other employees as it will upset the settled position regarding seniority and promotions which has been granted to others over the years. Further, where a claim is raised beyond a decade or two from the date of cause of action, the employer will be a great disadvantage of effectively contest or counter the claim, as the officers who dealt with the matter and/or the relevant records relating to the matter may no longer be available. Therefore, even if no period of limitation is prescribed, any belated challenge would be liable to be dismissed on the ground of delay and laches.
14. This is a typical case where an employee gives a representation in a matter which is stale and old, after two decades and gets a direction of the Tribunal to consider and dispose of the same, and thereafter again approaches the Tribunal alleging that there is delay in disposal of the representation (or if there is an order rejecting the representation, then file an application to challenge the rejection, treating the date of rejection of the representation as the date of cause of action). This Court had occasion to examine such situations in Union of India v. M.K. Sarkar (JT 2009 (15) SC 70: 2010(2) SCC 58) and held as follows:-
The order of the Tribunal allowing the first application of Respondent without examining the merits, and directing appellants to consider his representation has given rise to unnecessary litigation and avoidable complications. Xxxxx 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 reviewing 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 extended the limitation. Or erase the delay and laches.
A Court or Tribunal before directing consideration of a claim or representation should examine whether the claim or representation is with reference to a live issue or whether it is with reference to a dead or stale issue or dispute, the Court/Tribunal should put an end to the matter and should not direct consideration or reconsideration. If the court or Tribunal deciding to direct consideration without itself examining of the merits, it should make it clear that such consideration will be without prejudice to any contention relating to limitation or delay and laches. Even if the Court does not expressly say so, that would be legal position and effect. 14.1 We are therefore of the view that the High Court ought to have affirmed the order of the Tribunal dismissing the application of the Respondent for retrospective promotion from 1976, on the ground of delay and laches.
12. In any case, cause of action arose in favour of the applicant in the year 1993; therefore, in terms of Section 21 of Administrative Tribunals Act 1985 and as per above authoritative judgments of Apex Court, which is binding upon us, the O.A is liable to be dismissed being time barred as no application for condonation in filing O.A has been filed. Hence the O.A is dismissed being time barred. No costs Member A. Member - J.
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10 O.A. No.1392 of 2006