Central Administrative Tribunal - Cuttack
Dr B N Panda vs N.C.E.R.T on 3 March, 2022
1 O.A.No. 260/00825 of 2016
CENTRAL ADMINISTRATIVE TRIBUNAL
CUTTACK BENCH, CUTTACK
O.A.No. 260/00825 of 2016
Cuttack, this the 03rd day of March, 2022
Reserved on 22.02.2022
CORAM:
THE HON'BLE MR. DEVENDRA CHAUDHRY, MEMBER (A)
THE HON'BLE MR. SWARUP KUMAR MISHRA, MEMBER (J)
Dr. Bhujendra Nath Panda, aged about 58 years, S/o-
Late Gajendra Nath Panda, Professor in Education,
Regional Institute of Education, Sachivalaya Marg,
Bhubaneswar.
......Applicant
VERSUS
1. Union of India, represented through the Secretary,
HRD, Shastri Bhawan, New Delhi-110001.
2. Director, National Council of Education Research
and Training, Sri Aurobindo Marg, New Delhi-
110016.
......Respondents.
For the applicant : Mr. S.K.Nanda, Counsel
For the respondents: Mr. B.Dash, Counsel
2 O.A.No. 260/00825 of 2016
O R D E R
Swarup Kumar Mishra, Member (J):
The applicant had joined as Reader in Education in the Regional College of Education, Bhubaneswar on 19.04.1993. The grievance of the applicant is that as per the stipulation in 5th CPC as recommended by the UGC, he was eligible for promotion to the post of Professor on 19.04.2001 under Career Advancement Scheme. He was called by the selection committee for the first time in the year 2005 then in 2011 but despite doing well in the interview and having excellent academic records, he was not given promotion. It has been submitted that he was not called for interview in the year 2008 and 2009. Ultimately, after being selected in the interview held on 03.08.2013, he was recommended for promotion to the post of Professor vide notification dated 05.08.2013 w.e.f. 17.10.2012. Ld. Counsel for the applicant contends that as per circular dated 09.12.2011 framed on the recommendation of Sri D.K.Bhatacharjee Committee, applicant's promotion should have been given effect to from 19.04.2003, i.e. two years after attaining the date of eligibility, but his placement has been wrongly done as per the circular dated 01.02.2012 for which the applicant has to languish for 19 long years as Reader/Associate 3 O.A.No. 260/00825 of 2016 Professor as against the stipulated 8 years. He further submits that as per the Notification No. 3/2009 dt. 30.06.2010, a candidate becoming eligible for CAS promotion prior to 31.12.2008 will be governed by the old rules. His series of representations to this effect has been rejected by the respondents. Hence, he has filed this O.A. with the following reliefs (as amended vide order dated 18.01.2017 of this Tribunal):
".....to admit this case, issue notice and after hearing all the sides be further pleased to quash the date of placement fixed as 17.12.2012 passed by Respondent No.3 to be incorrect, illegal and whimsical vide the promotional order dated 05.08.2013 at annexure-3 and further quash operation of circular dtd. 01.02.2012 at annexue-7 as far as applicant is concerned promoting him from Reader to Professor in respect of the Applicant;
And the further be pleased to quash the orders of rejections of appeals by the Applicant vide orders dated 10.10.2013 (at A/6), 18.03.2014 (at A/8), 25.08.2014 (at A/9), 22.01.2015 (at A/10) and 23.10.2015 (at A/11);
And the Hon'ble Tribunal may further be pleased to direct that the Applicant is eligible for placement with effect from
19.04.2003 in such order at annexure-3 vides the circular dated 09.12.2011 at annexure-4 constituted recommendations of the Sri. D.K. Bhatacharjee committee but not under with effect from 17.10.2012 as per the circular dtd. 01.02.2012 as relied by the Respondent No.3;
And be further pleased to direct the Respondents to antedate the date of placement from 17.10.2012 to 19.04.2003 and make available all consequential service, financial and consequential reliefs to the Applicants;
4 O.A.No. 260/00825 of 2016And/Or any other Order/s as this Hon'ble Tribunal may deem fit and proper in the best interest of justice."
2. Respondents by filing their counter, besides challenging maintainability of the O.A. due to delay in approaching the Tribunal have also challenged the O.A. on merit.
In reply to MA. 46/2017, petition for condonation of delay filed by the applicant, respondents submits that the O.A. should be dismissed in limine being grossly barred by limitation as the applicant has challenged the order dated 05.08.2013 and circular dated 01.02.2012 in this O.A. filed on 01.11.2016. Respondents submit that the applicant kept representing the authorities in regular intervals from 2013 till 2015, which were duly replied/rejected and communicated to him in due course and the same cannot obliterate the delay. The specific averment of the respondents is that the since the applicant has challenged the order dated 05.08.2013 after a gap of about 3 years, it is barred by limitation. The repeated representation and reply thereto cannot give a right to the applicant to approach the Tribunal at a belated stage.
So far as merit of the case is concerned, it is submitted by the respondents that selection committee meeting for promotion to the post of 5 O.A.No. 260/00825 of 2016 Professor was held on 23.12.2005 but the applicant having not found suitable for promotion his name was not recommended by the selection committee. Further selection committee was held on 17.10.2011 but the applicant again was found not suitable for recommendation for promotion. Finally, in view of the interview conducted on 03.08.2013, the selection committee recommended his case for promotion and, accordingly, he was accorded promotion to the post of Professor w.e.f. 17.10.2012 and the order to this effect was issued on 05.08.2013 in accordance with Council's Circular No. F. 1- 6/2000/E-I dated 01.02.2012.
Ld. Counsel for the respondents contended that the applicant misinterpreted the scheme for calculating his eligibility for promotion. He submits that the guideline dated 09.12.2011, which was issued on the recommendation of the Prof. D.K.Bhatacharjee Committee on which the applicant is harping for his promotion, was subsequently superseded by the Circular dated 01.02.2012 and, in terms of circular dated 01.02.2012 the applicant was given promotion by adding one year from the date of the last rejection. Since the applicant's case for promotion was last rejected on 17.10.2011, his promotion as per circular dated 01.02.2012 was effected from 6 O.A.No. 260/00825 of 2016 17.10.2012 even if the interview was conducted on 03.08.2013. As such, the action of the respondents cannot be faulted with.
Ld. Counsel for the respondents further submitted that the representation of the applicant dated 21.08.2013 was considered and reply was furnished to him on 10.10.2013. His further representation dated 07.02.2014 citing the case of Dr. G.Anwar Reader in Education (Retd.), RIE, Mysore, was also considered and replied to the applicant on 18/20.03.2014 clarifying that the case of Dr. G.Anwar was finalized as per Council's order dated 01.02.2012 and not as per order dated 09.12.2011. Subsequent representations of the applicant was also duly replied to and communicated to the applicant.
3. Applicant has filed his rejoinder more or less reiterating the grounds taken in the O.A. It is submitted that many of his juniors were promoted to the post of Professor but the applicant was ignored.
4. Heard Ld. Counsels for both the parties and perused the materials on record.
5. Instead of going into the merits of the case, so far as maintainability of this O.A. is concerned, we find that the applicant has filed this O.A. on 01.11.2016 challenging his date of placement vide promotion order dated 7 O.A.No. 260/00825 of 2016 05.08.2013. On the face of this, it is palpable that the applicant has approached this Tribunal belatedly. In his application seeking condonation of delay, M.A. 46/2017, the applicant has taken a plea that after his promotion order dated 05.08.2013, he kept representing the authorities and after rejection of his last representation on 23.10.2015, he has approached this Tribunal on 01.11.2016. Hence, the delay, if any, caused should be condoned. The Tribunal noticed that the case of the applicant was not found suitable by the Selection Committee in 2005 and 2011 and he was subsequently recommended for promotion by the Selection Committee in 2013 and was accorded promotion w.e.f. 17.10.2012 as per order dated 01.02.2012. It would not be out of place to mention that there might be several others who got promotion before the promotion of the applicant, which also gains support from the averment of the applicant in his pleadings that many of his juniors have been promoted before his promotion. Hence, the O.A. is also hit by non- joinder of necessary parties. Besides that submission of successive representation to the authorities cannot be a ground to condone the delay.
6. In catena of cases, law has been laid down by the Hon'ble Apex Court regarding interference in the case of delay in approaching the Tribunal/Court. In the matter of Chennai Metropolitan Water Supply & Sewerage Board and 8 O.A.No. 260/00825 of 2016 ors. Vs. Murali Babu, AIR 2014 SC 1141, the Hon'ble Apex Court have heavily come down on the Courts/Tribunals for entertaining matters without considering the statutory provision of filing application belatedly. The relevant portion of the observations of the Hon'ble Apex Court as contained in para 16 is quoted herein below:
"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. 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 9 O.A.No. 260/00825 of 2016 being absolutely careless to his duty and nurturing a lackadaisical attitude to the responsibility had remained unauthorisedly absent on the pretext of 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."
Further, in the matter of Lanka Venkateswarlu Vs. State of AP, (2011) 4 SCC 363, the Hon'ble Apex Court has held as under:
"26. The High Court proceeded to condone the delay. In our opinion, such a course was not open to the High Court, given the pathetic explanation offered by the respondents in the application seeking condonation of delay."
In the case of State of Uttaranchal and another Vs. Sri Shiv Charan Singh Bhandari and others, 2013(6) SLR 629, Hon'ble Supreme Court, while considering the issue regarding delay and laches and referring to earlier judgments on the issue, opined that repeated representations made will not keep the issues alive.
10 O.A.No. 260/00825 of 2016
7. In our considered view, the explanation offered for condonation of delay is neither sufficient nor satisfactory and thus does not merit consideration. In view of the discussions made above and the law laid down by the Hon'ble Apex Court (supra), the O.A. is dismissed on the ground of undue delay and non joinder of necessary parties. Parties to bear their own costs.
(SWARUP KUMAR MISHRA) (DEVENDRA CHAUDHRY) Member (Judicial) Member (Admn.) RK/PS