Central Administrative Tribunal - Delhi
Ajay Kumar vs M/O Railways on 27 October, 2015
OA 244/14 1 Ajay Kumar v. UOI & anr
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
O.A.NO.244 OF 2014
New Delhi, this the 27th day of October, 2015
CORAM:
HON'BLE SHRI SUDHIR KUMAR, ADMINISTRATIVE MEMBER
AND
HON'BLE SHRI RAJ VIR SHARMA, JUDICIAL MEMBER
..........
Ajay Kumar,
Village-Kakana Bhadri,
P.O-Anayat,
Tehsil-Gohana,
Distt. Sonepat,
Haryana 131301 ........ Applicant
(By Advocate: Shri Ravinder Kumar Mirg)
Vs.
1. The Union of India,
through the Secretary,
Ministry of Railways (Railway Board),
Govt. of India,
New Delhi
2. The General Manager,
Northern Railway,
Baroda House,
New Delhi ....... Respondents
(By Advocate: Shri Shailendra Tiwari)
......
ORDER
RAJ VIR SHARMA, MEMBER(J):
The applicant has filed the present Original Application seeking the following reliefs:
"1. Summon the records of the relevant Respondents wherein the Applicant's representation dated 23.03.2013 has been Page 1 of 16 OA 244/14 2 Ajay Kumar v. UOI & anr dealt with in accordance with his achievements in sports and the rules governing it.
2. Direct the Respondents to change the Applicant's designation from Office Clerk (grade 3,050-4,500/-) to Sr. Clerk (grade 4,500 -7000/-) with effect from the date of his appointment.
3. Direct the Respondents to allow all the consequential benefits as resulting from change in the Applicant's designation from Office Clerk (grade 3,050-4,500/-) to Sr.Clerk (grade 4,500-7000/-) with effect from the date of his appointment.
4. Pass any other order or direction in favour of the applicant, which this Hon'ble Tribunal may deem fit in the facts and circumstances of the case; and
5. Allow the OA with costs."
2. The applicant is a Boxer. The respondent-Railways appointed him to the post of Office Clerk in the pay scale of Rs.3,050-4,590/- with fixation of his pay at Rs.4,350/- on grant of 17 advance increments with effect from 19.10.2005 against sports quota under the Talent Scouting Scheme on the basis of his application along with copies of certificates of educational qualifications, and of sports achievements.
3. It is the case of the applicant that having participated and won three Gold Medals in Senior National Boxing Championships, and also having represented the country and participated in two Senior International Meets, in one of which he won Bronze Medal, as on the date of consideration of his case by the respondent-Railways for appointment to a Group 'C' post against sports quota under the Talent Scouting Scheme, he ought to have been appointed to the post of Senior Clerk in the pay scale of Rs.4,500-7000/- with 17 advance increments, instead of Office Clerk in the pay scale of Rs.3050-4590/- with 17 advance increments. Therefore, he Page 2 of 16 OA 244/14 3 Ajay Kumar v. UOI & anr made a representation dated 23.3.2013 requesting the respondent-Railways to change his designation from 'Office Clerk ( grade Rs.3050-4590/-)' to 'Senior Clerk (grade Rs.4500-7000/-)' in accordance with the instructions contained in paragraphs 8.1(3)(a) and (b) of letter No.E(SPORTS)2000/Policy/2, dated 19.8.2000, issued by the Railway Board, and to grant him all consequential benefits with effect from the date of his appointment to the post of Office Clerk. It is stated by the applicant that after a copy of the Railway Board's letter dated 19.8.2000, ibid, was supplied to him by the respondent-Railways under the R.T.I.Act, he made the representation dated 23.3.2013,ibid. There being no response to his representation dated 23.3.2013, ibid, he made further representations/reminders dated 27.4.2013, 5.7.2013, and 12.10.2013, requesting the respondent-Railways to take appropriate decision in his matter, but to no avail. Therefore, he filed the present O.A. on 17.1.2014 seeking the reliefs, as aforesaid.
4. It is urged by the applicant that besides possessing the educational qualification of B.A. (Pass), he had the following sports achievements to his credit as on the date of his appointment to the post of Office Clerk (grade Rs.3050-4590/-) in the Railways against sports quota under the Talent Scouting Scheme:
(i) First Position in XIV Northern India Sr. Men Boxing Championship held at Sports Complex, Sector 42, Chandigarh from 11th June to 13th June 2004;Page 3 of 16
OA 244/14 4 Ajay Kumar v. UOI & anr
(ii) Gold Medal (Heavy Weight Category) in 51st Senior
National Boxing Championship (Men) held at Mahavir Stadium, Hisar (Haryana) from August 3-8, 2004;
(iii) First Position (Heavy Weight Category) in the All India Inter-University Boxing (Men) Tournament held at University of Mumbai from 31st October 2004 to 5th November 2004;
(iv) State Gold Medalist in Delhi;
(v) Representing India, he participated in Giraldo Cardova
Cardin held at Cuba from 25th to 30th April, 2005, and won Bronze Medal in 91 KG weight category; and
(vi) Representing India, he participated in the 4th Commonwealth Boxing Championship held at Scotland from August 15-20, 2005 (Heavy Weight Category).
It is contended by the applicant that the above sports achievements entitled him to be appointed to the post of Senior Clerk in the pay scale of Rs.4,500- 7,000/- with 17 advance increments with effect from 19.10.2005. It is also contended by the applicant that a number of other candidates, who had equal or less sports achievements to their credit, have been appointed as Senior Clerks in the pay scale of Rs.4,500-7,000/- with 17 advance increments, whereas he has been discriminated against.
5. On the other hand, the respondent-Railways have stated that on the basis of his application, along with copies of the certificates showing his Page 4 of 16 OA 244/14 5 Ajay Kumar v. UOI & anr educational qualifications and sports achievements, seeking appointment in the Railways against sports quota under the Talent Scouting Scheme, the applicant was appointed to the post of Office Clerk in the pay scale of Rs.3050-4590/- with 17 advance increments. Accepting the offer of appointment made by the Railways, the applicant joined on 19.10.2005 as Office Clerk in the pay scale of Rs.3050-4590/- with 17 advance increments. The claim made by the applicant for appointing him to the post of Senior Clerk in the pay scale of Rs.4500-7000/- with 17 advance increments against sports quota under the Talent Scouting Scheme with effect from 19.10.2005 after more than seven years of his joining as Office Clerk (Rs.3050-4590/- with 17 advance increments) is grossly barred by delay and laches, and, therefore, the O.A. filed by the applicant is liable to be dismissed on that ground alone.
6. We have perused the records, and have heard Shri Ravinder Kumar Mirg, learned counsel appearing for the applicant, and Shri Shailendra Tiwari, learned counsel appearing for the respondents. We have also perused the relevant departmental records of the Northern Railway produced by Shri Shailendra Tiwari, learned counsel appearing for the respondents.
7. In MA No.239 of 2014 filed by the applicant seeking condonation of delay, the applicant has stated that after his joining as Office Clerk on 19.10.2005, he remained busy in sports activities for nearly five years and also in attending the office for duty. Thereafter, he was on Page 5 of 16 OA 244/14 6 Ajay Kumar v. UOI & anr extraordinary leave for attending to his old father who suffered from cancer and was undergoing treatment at Delhi. Therefore, he could not move the Tribunal for redressal of his grievance as now raised by him in the O.A. 7.1 In the present case, the cause of action had arisen on 19.10.2005 when the applicant was appointed to the post of Office Clerk in the pay scale of Rs.3050-4590/- with fixation of his pay at Rs.4350/- on grant of 17 advance increments. We are not satisfied with the explanation given by the applicant for the delay of more than seven years in raising the issue of his appointment and/or change of his designation from 'Office Clerk (grade Rs.3050-4590/-)' to 'Senior Clerk (grade Rs.4500-7000/-)' by making a representation, dated 23.3.2013, to the respondent-Railways, and for the delay of more than eight years in filing the present Original Application on 14.1.2014.
7.2 On a perusal of the materials placed before us, we have found that the applicant, for the first time, made the representation on 23.3.2013 requesting the respondent-Railways to change his designation from 'Office Clerk (grade Rs.3050-4590/-)' to 'Senior Clerk (grade Rs.4500-7000/-)', and to grant him all consequential benefits with effect from 19.10.2005. The said representation dated 23.3.2013 was made by the applicant after more than seven years of his accepting the appointment offered by the respondent- Railways to him in the post of Office Clerk in the pay scale of Rs.3050- 4590/- with pay fixation at Rs. 4350/- against sports quota under the Talent Scouting Scheme. If at all the applicant had any grievance against the offer Page 6 of 16 OA 244/14 7 Ajay Kumar v. UOI & anr of appointment to the post of Office Clerk in the pay scale of Rs.3050- 4590/- with pay fixation at Rs.4350/- on grant of 17 advance increments, the option was available to him either to accept or to forgo the same and to make a representation requesting the respondent-Railways to consider his case for appointing him to the post of Senior Clerk in the pay scale of Rs.4500- 7000/- with 17 advance increments. Had he made such a representation at that point of time, the Ministry of Railway in its wisdom would have considered his case and taken appropriate decision. Having slept over the matter for more than seven years, and having accepted the offer of appointment and joined as Office Clerk in the pay scale of Rs.3050-4590/-, with pay fixation at Rs.4350/- on grant of 17 advance increments, on 19.10.2005, the applicant cannot, at this belated stage, be allowed to raise the issue of his appointment to the post of Senior Clerk in the pay scale of Rs.4500-7000/- with 17 advance increments and/or change of his designation from 'Office Clerk (Rs.3050-4590/-)' to 'Senior Clerk (Rs.4500- 7000/-)' with all consequential benefits from 19.10.2005. In our considered view, the issue/dispute as raised by the applicant in the present O.A. is clearly barred by delay and laches.
7.3 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 Page 7 of 16 OA 244/14 8 Ajay Kumar v. UOI & anr the Hon'ble 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."
7.4 In Jagdish Lal & Ors. v. State of Haryana & ors., (1997) 6 SCC 538, the Hon'ble Supreme Court reaffirmed the rule that 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, and that the delay disentitles a party to the discretionary relief under Article 226 or Article 32 of the Constitution of India.
7.5 In Karnataka Power Corpn. Ltd. through its Chairman & Managing Director v. K. Thangappan and another, (2006) 4 SCC 322, the Hon'ble Supreme Court took note of the factual position and held that when nearly for two decades, the respondent-workmen therein had remained silent, mere making of representations could not justify a belated approach.
Page 8 of 16
OA 244/14 9 Ajay Kumar v. UOI & anr
7.6 In C. Jacob v. Director of Geology and Mining and another,
(2008) 10 SCC 115, the Hon'ble Supreme Court observed 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."
7.7 In Union of India and others v. M.K. Sarkar, (2010) 2 SCC 59, the Hon'ble Supreme Court, after referring to C. Jacob's case (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 or 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 court's direction. Neither a court's 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.
7.8 In Bharat Sanchar Nigam Limited v. Ghanshyam Dass and others, (2011) 4 SCC 385, the Hon'ble Supreme Court reiterated the Page 9 of 16 OA 244/14 10 Ajay Kumar v. UOI & anr principle stated in Jagdish Lal's case (supra) and held 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.
7.9 Having considered the facts and circumstances of the present case in the light of the above decisions, we have no hesitation in holding that the O.A. is barred by delay and laches, and hence, liable to be rejected.
8. Coming to the merits of the claim made by the applicant, as raised in the O.A., we have found on a perusal of the departmental records of the Northern Railway that an undated application addressed to the Secretary, Railway Sports Promotion Board, Railway Bhawan, Delhi, along with bio data/resume, and copies of certificates of educational qualifications, and of sports achievements, was submitted by the applicant to Shri Kishan Singh Sangwan, Member of Parliament (Lok Sabha), Sonepat (Haryana). The certificates of sports achievements, copies of which were appended to the applicant's undated application, were to the following effect:
(i) First Position in XIV Northern India Sr.Men Boxing Championship held at Sports Complex, Sector 42, Chandigarh from 11th June to 13th June 2004;
(ii) Gold Medal (Heavy Weight Category) in 51st Senior National Boxing Championship (Men) held at Mahavir Stadium, Hisar (Haryana) from August 3-8, 2004; and Page 10 of 16 OA 244/14 11 Ajay Kumar v. UOI & anr
(iii) First Position (Heavy Weight Category) in the All India Inter-University Boxing (Men) Tournament held at University of Mumbai from 31st October 2004 to 5th November 2004.
Shri Kishan Singh Sangwan, M.P.(LS), Sonepat (Haryana), vide his letter dated 28.2.2005, forwarded the applicant's undated application with the appended copies of certificates of educational qualifications, and of sports achievements, to Shri Lalu Prasad Yadav, Minister of Railway, for doing the needful. Thereafter, the Deputy Director Estt. (Sports), Railway Board, vide letter dated 3.8.2005, communicated the approval of the Ministry of Railway (Railway Board) for appointment of the applicant in a Group 'C' post in the pay scale of Rs.3050-4590/- with fixation of pay at Rs.4350/- against sports quota under the Talent Scouting Scheme by relaxing the upper age limit and also by releasing one Group 'C' berth from RSPB's quota for the year 2005-
06. The said letter dated 3.8.2005 was addressed to the General Manager (P), Northern Railway, New Delhi. However, while dealing with the said letter dated 3.8.2005 (ibid) and seeking further orders from the General Manager, Northern Railway, in the matter, the Assistant Sports Officer, Northern Railway, in his notes dated 12.9.2005 (at page 2/N of the departmental records of the Northern Railway), mentioned, inter alia, the following sport achievement of the applicant:
"1. He represented India in the Ciraldo Cordova Cardin Boxing Championship held at Cubia from 25th April to 30th April 2005 and won the Bronze Medal in heavy weight category."Page 11 of 16
OA 244/14 12 Ajay Kumar v. UOI & anr Although a copy of the certificate granted by the Indian Amateur Boxing Federation stating that the applicant represented the country and participated in the Giraldo Cordova Cardin held at Cuba from 25th to 30th April 2005, and won Bronze Medal therein, is available on the departmental records of the Northern Railway, vide Sl.No.2/2(C), there is no other contemporaneous document available thereon to show as to how and when a copy of the said certificate was brought on records of the Northern Railway. It is not the case of the applicant that subsequent to his undated application, ibid, he submitted a copy of the said certificate to the Assistant Sports Officer, or any other officer of the Northern Railway. The original letter addressed by Shri Rakesh Thakran, Coordinator, IABF, bearing no. nil, dated 30.6.2005, addressed to the 'Secretary, Railway Sports Promotion Board, 452, Rail Bhawan, Raisinia Road, New Delhi' bearing the initials of some officials on 4.7.2005 and 5.7.2005, is also available on the departmental records of the Northern Railway, vide Sl.No.2/1 (C ). The relevant portion of the said letter is reproduced below:
"Subject:- Certificate Dear Sir, Please refer to your FAX vide which received certificate of Sh. Ajay Kumar, Boxer.
As per record available in this office, the said certificate of Sh.Ajay Kumar, Boxer found correct and issued from this office.
Thanking you,"
The above letter does not speak about the certificate that the applicant represented the country and participated in the Giraldo Cordova Cardin held Page 12 of 16 OA 244/14 13 Ajay Kumar v. UOI & anr at Cuba from 25th to 30th April 2005, and won Bronze Medal therein. The copy of the letter dated 8.9.2005 issued by the very same Assistant Sports Officer, Northern Railway to the Honorary Secretary, Indian Amateur Boxing Federation of India, New Delhi, regarding verification of sports certificate of the applicant, is available at Sl.No.11 ( C) of the departmental records of the Northern Railway. The relevant portion of the said letter dated 8.9.2005 is reproduced below:
"This is to inform you that the case of Sh.Ajay Kumar, boxer is under consideration for appointment against sports quota on this Railway. He has submitted the sports certificate regarding his participation in the 51st Sr.National Boxing Championship held at Mahavir Stadium, Hisar from 3rd to 8th August 2004 and won Gold Medal in heavy weight category as per the photo copy of the certificate attached.
You are requested to please verify this certificate and advise the correctness and genuineness of this certification so that his cae for appointment against sports quota can be considered further."
The above letter dated 8.9.2005 also does not speak about the verification of the certificate showing that the applicant represented the country and participated in the Giraldo Cordova Cardin held at Cuba from 25th to 30th April 2005, and won Bronze Medal therein. It is, thus, clear that the applicant and the concerned Assistant Sports Officer of the Northern Railway maneuvered to keep the letter dated 30.6.2005, ibid, and copy of the certificate showing that the applicant represented the country and participated in the Giraldo Cordova Cardin held at Cuba from 25th to 30th April 2005, and won Bronze Medal therein, on the departmental records of the Northern Railway so as to make out a case for appointment of the applicant to the post of Senior Clerk in the pay scale of Rs.4500-7000/- with Page 13 of 16 OA 244/14 14 Ajay Kumar v. UOI & anr 17 advance increments. With this motive, the Assistant Sports Officer, Northern Railway, mentioned about the applicant's sports achievement in his notes dated 12.9.2005, ibid. Even if it is assumed that a copy of the aforesaid certificate was available on departmental records of the Northern Railway, there is nothing on the said departmental records to show that copy of the said certificate was forwarded by the Northern Railway to the Ministry of Railway (Railway Board) for taking the same into account while considering the case of the applicant for appointment to a Group 'C' post against sports quota under the Talent Scouting Scheme on the basis of his undated application, which was forwarded by Shri Kishan Singh Sangwan, M.P.(LS), Sonepat (Haryana), vide his letter dated 28.2.2005, to Shri Lalu Prasad Yadav, Minister of Railway. Save and except his undated application, along with its enclosures, which was forwarded to the Railway Ministry in February 2005, no other application of the applicant to consider his case for appointment to a Group 'C' post against sports quota under the Talent Scouting Scheme is available on the departmental records of the Northern Railway. It is, thus, clear that a copy of the certificate stating that the applicant represented the country and participated in the Giraldo Cordova Cardin held at Cuba from 25th to 30th April, 2005, and won Bronze Medal therein, was not available before the Ministry of Railway (Railway Board) while considering the case of the applicant for appointment to a post against sports quota under the Talent Scouting Scheme. The other certificate granted by the Indian Amateur Boxing Federation stating that the applicant Page 14 of 16 OA 244/14 15 Ajay Kumar v. UOI & anr represented the country and participated in the 4th Commonwealth Boxing Championship held at Scotland from August 15-20, 2005, copy of which was filed by the applicant along with M.A.No.3057 of 2015, is not available on departmental records of the Northern Railway. It cannot also be said that copy of the said certificate was submitted by the applicant either to the Northern Railway or to the Ministry of Railway (Railway Board) before the letter dated 3.8.2005 was issued by the Ministry of Railway (Railway Board) communicating the approval for appointment of the applicant in a Group 'C' post in scale of pay of Rs.3050-4590/-, with pay fixation at Rs.4350/-, to the General Manager (P), Northern Railway. The aforesaid two sports achievements, on the basis of which the applicant claimed appointment to the post of Senior Clerk in the pay scale of Rs.4500-7000/- with 17 advance increments, having not been brought by the applicant to the notice of the Ministry of Railway (Railway Board) while considering his case for appointment to a Group 'C' post against sports quota under the Talent Scouting Scheme on the basis of his undated application forwarded to the Ministry of Railway(Railway Board) in February 2005, no infirmity can be found in the decision taken by the Ministry of Railway (Railway Board) approving the applicant's appointment to a Group 'C' post in the pay scale of Rs.3050-4590/- with fixation of pay at Rs.4350/-, and in the consequential order issued by the Northern Railway appointing the applicant to the post of Office Clerk in the pay scale of Rs.3050-4590/- with fixation of pay at Rs.4350/- on grant of 17 advance increments with effect from Page 15 of 16 OA 244/14 16 Ajay Kumar v. UOI & anr 19.10.2005 against sports quota under the Talent Scouting Scheme. The applicant has not produced before us any rule, instruction, or circular issued by the Ministry of Railway (Railway Board) for entertaining and acceding to the claim as made by him in the present case. In the absence of any such rule, instruction, or circular issued by the Ministry of Railway (Railway Board), the applicant cannot be said to have any right to claim appointment to the post of Senior Clerk in the pay scale of Rs.4500-7000/- with 17 advance increments from 19.10.2005, i.e., the date of his appointment to the post of Office Clerk in the pay scale of Rs.3050-4590/- with 17 advance increments. In other words, the applicant cannot also be said to have any right to claim change of his designation from 'Office Clerk (grade Rs.3050- 4590/-)' to 'Senior Clerk (grade Rs.4500-7000/-) with effect from 19.10.2005, i.e., date of his appointment to the post of Office Clerk in the pay scale of Rs.3050-4590/- with pay fixation at Rs.4350/- on grant of 17 advance increments, with all consequential benefits.
9. In the light of our above discussions, we have no hesitation in holding that the O.A., besides being barred by delay and laches, is devoid of merit and liable to be dismissed. Accordingly, the O.A. is dismissed. No costs.
(RAJ VIR SHARMA) (SUDHIR KUMAR) JUDICIAL MEMBER ADMINISTRATIVE MEMBER AN Page 16 of 16 OA 244/14 17 Ajay Kumar v. UOI & anr AN Page 17 of 16