Central Administrative Tribunal - Allahabad
Bhanu Pratap Sharma vs Union Of India on 28 August, 2018
RESERVED.
CENTRAL ADMINISTRATIVE TRIBUNAL, ALLAHABAD BENCH
ALLAHABAD
This is the 28th day of August 2018.
ORIGINAL APPLICATION NO. 1518 of 2009
ALONG WITH
ORIGINAL APPLICATION NO. 1519 of 2009
ALONG WITH
ORIGINAL APPLICATION NO. 1453 of 2009
Present:
HON'BLE MR. GOKUL CHANDRA PATI, MEMBER (A)
HON'BLE MR RAKESH SAGAR JAIN, MEMBER (J).
1. Bhanu Pratap Sharma S/o Late Dev Dutt Sharma, R/o 47
Saraswati Nagar, Phase -1, P.O. Shahganj, Agra at
present post as Section Supervisor
In the office of EPFO, SRO, Agra
2. Ashok Kumar Agrawal S/o Shri C.L. Agrawal, R/o Birma
Nagar, Sewla Sarai, P.O. Naina, Gwalior Road, Agra
at present working as E.O. EPFO, SRO, Agra.
...............Applicants in O.A No. 1518/09.
By Advocate: Shri Shyamal Narain
VERSUS
1. Union of India through Central Provident Fund
Commissioner, Employees Provident Fund Organization,
Bhavishya Nidhi Bhawan, 14, Bhikaji Cama Place, New
Delhi 110 066.
2. Regional Provident Fund Commissioner, Regional
Office, Nidhi Bhawan, Saryodaya Nagar, Kanpur.
3. Additional Central Provident Fund Commissioner/HR
Employees Provident Fund Organization, Bhavishya
Nidhi Bhawan, 14, Bhikaji Cama Place, New Delhi 110
066.
4. Regional Provident Fund Commissioner (Exam),
Employees Provident Fund Organization, Bhavishya
Nidhi Bhawan, 14, Bhikaji Cama Place, New Delhi 110
066.
.................Respondents in O.A No. 1518/09
By Advocate : Shri Satyajit Mukerji, Sri Sandeep Kumar
Singh, Shri Rakesh Kumar Dixit.
ORIGINAL APPLICATION NO. 1519 of 2009
Pramod Srivastava S/o Late Shyam Bihari Lal, R/o 59 Aman
Vihar, Niranjan Pur Mazra, Dehradun, at present posted as
2
Section Supervisor in the office of EPFO, Regional
Office, Dehradun.
............Applicants in O.A. No. 1519/09
By Advocate: Shri Shyamal Narain.
Versus
1. Union of India through Central Provident Fund
Commissioner, Employees Provident Fund Organization,
Bhavishya Nidhi Bhawan, 14, Bhikaji Cama Place, New
Delhi 110 066.
2. Regional Provident Fund Commissioner, Regional
Office, Nidhi Bhawan, Saryodaya Nagar, Kanpur.
3. Additional Central Provident Fund Commissioner/HR
Employees Provident Fund Organization, Bhavishya
Nidhi Bhawan, 14, Bhikaji Cama Place, New Delhi 110
066.
4. Regional Provident Fund Commissioner (Exam),
Employees Provident Fund Organization, Bhavishya
Nidhi Bhawan, 14, Bhikaji Cama Place, New Delhi 110
066.
5. Mahesh Kumar R/o 45 Mohit Vihar G.M.S. Road,
Dehradun (Uttarakhand)
.................Respondents in O.A No. 1519/09
By Advocate : Shri Satyajit Mukerji, Sri Sandeep Kumar
Singh
Shri Rakesh Kumar Dixit.
ORIGINAL APPLICATION NO. 1453 of 2009
R. K. Maheshwari S/o Shri P. N. Maheshwari, R/o 211/4,
Jagriti Vihar, Meerut At present posted as Assistant (now
Section Supervisor) In the office of EPFO, Regional
Office, Jagriti Vihar, Sector - 5, Meerut.
......Applicants in O.A No. 1453/09
By Advocate: Shri Shyamal Narain.
Versus
1. Union of India through Central Provident Fund
Commissioner, Employees Provident Fund Organization,
Bhavishya Nidhi Bhawan, 14, Bhikaji Cama Place, New
Delhi - 110 066
2. Regional Provident Fund Commissioner
Regional Office : Nidhi Bhawan, Saryodava Nagar,
Kanpur.
3. Additional Central Provident Fund Commissioner / HR
Employees Provident Fund Organization, Bhavishya
Nidhi Bhawan, 14, Bhikaji Cama Place, New Delhi -
110 066.
4. Regional Provident Fund Commissioner (Exam)
Employee Provident Fund Organization
Bhavishya Nidhi Bhawan, 14, Bhikaji Cama Place, New
Delhi - 110066.
3
5. Raj Yash Sharma S/o Late S. R. Sharma R/o LIG - 15
Ratan Lal Nagar Kanpur
6. Dileep Kumar S/o Shri Choith Ram Resident of 120
Anita Vihar (NearKarmalogi Kamla Nagar, Agra.
.....Respondents in O.A No. 1453/09
By Advocate : Shri Satyajit Mukerji, Sri Sandeep Kumar
Singh, Shri Rakesh Kumar Dixit.
O R D E R
BY HON'BLE MR RAKESH SAGAR JAIN, MEMBER (J).
1. Since all the three OAs have been filed with the common prayer for similar reliefs with similar cause of action, all the three OAs are being decided by this common order. OA No. 1518 of 2009 being taken as the leading case for this order.
2. Applicants seek the following reliefs:
1) Quashing of notification dated 01.09.2009 and order dated 25.11.2009;
2) Direct the respondents not to give effect to notification dated 01.09.2009 and order dated 25.11.2009 or keep post of the selection underway vacant.
3. Notification dated 01.09.2009 is regarding the conduct of Departmental Competitive Examination for promotion to the post of Enforcement Officer/Accounts Officer from 7th to 11th December, 2009 in the Employees' Provident Fund Organization in the States mentioned in Annexure - I for filing up the vacancies mentioned therein under each category and the Regional Provident Fund Commissioner are directed to notify the vacancies and invite applications from the eligible candidates and send the list to RPFC Incharge of erstwhile region. As per the Annexure-I, the vacancies in Uttar Pradesh were 4 Vacancy Position GL SC ST Total 15 02 03 20
4. As per, the Employees Provident Fund Organization (Enforcement Officer/Assistant Accounts Officer) Recruitment Rules, 2002 (hereinafter to be referred as the Rules of 2002), the posts of EO/AAO are to be filled up by way of promotion to the extent of 50% (other than examination quota), 25% by promotion on the basis of Limited Departmental Competitive Examination (LDCE) and 25% by direct recruitment.
5. Applicants' case is that in January 1999, the result of Limited Departmental Examination was declared in which applicants declared passed. Applicants further aver that "That though according to the calculations as per the instructions dated 08.03.2007 comes to clear vacancy of 07 according to the calculations of the applicants. It was the applicants who would have been given promotion and if at all the calculation of the applicants is reckoned in true spirit then there was no scope for not being promoted". The year wise details of candidates qualified and promoted to the EO/AAO under RTI Act is attached as Annexure-A7 in OA No. 1518/2009
6. However, no information was given to applicants as to why only 2 candidates were promoted in January 1999 recruitment under the Examination Quota where more posts were available. As per, normal practice once the applicants has passed the Limited Departmental Examination, then he does not have to appear again for being promoted to the post of EO/AAO, as he has perfected his right to be promoted after clearing Limited Departmental Examination, as per, the norms prescribed under law.
57. It is the further case of applicants that they were entitled to be promoted in 1999 but after 1999-2000, there has been no Limited Departmental Examination with the department promoting departmental candidates. As per the department, there were 3 posts available to the EQ quota but according to the applicants there are 5 which can be demonstrated from the revised calculation sheet prepared by the applicants.
8. In short, as per the averments made in the O.A., the case of applicants is that there are glaring discrepancies in the administration of the department viz.-a- viz. the treatment meted out to the department candidates who have passed the Limited Departmental Examination. The applicants claims promotion with effect from 1999 since the claim of department that there were 2 vacancies during L.D.E. is incorrect, since more vacancies existed in 1999.
9. Applicants further aver that notification dated 01.09.2009 includes 5 vacancies of 1999 against which the applicants stakes their claims as they were entitled to promotion in 1999 and that is why they seek quashing of the notification dated 01.09.2009.
10. In the counter affidavit by the official respondents, it has been averred that, as per, the standard and uniform practice followed by the examination wing of the respondents, the number of candidates to be declared as successful in the departmental competitive examination in respect of any region could only be to the extent the vacancies are notified. Even, in case any increase/decrease in 6 vacancies occurs in respect of any region, the same need to be notified by the concerned administrative authority before the declaration of the result of the Departmental Competitive Examination (DCE) for promotion to the post of EO/AO. As such, once the DCE results get declared, there has not been nor can there be any revision in the said result i.e. in the number of candidates declared as successful. In the event of subsequent accrual of any new vacancy in respect of earlier years for any particular quota, the same is and has been carried forward to the next recruitment year so as to get them filled through the next process of mode of recruitment.
11. In rebuttal to the averment in O.A., that there were 2 vacancies for general quota, the respondents have taken the stand that in 1999, there were 3 vacancies. One each under EQ general, SC and ST quota out of which ST candidate was not available. The new additional vacancies cited by the applicants surfaced after implementation of judgments of Central Administrative Tribunal, Bangalore and Delhi and could be taken into account at the convening of subsequent review Departmental Promotion Committee in 2008. Respondents have specifically denied the allegation of applicants that vacancies of a particular quota have been filed up by through other quota.
12. Respondents have further averred in the counter affidavit that in the exam of 1999, two candidates of general and SC categories were declared successful and the vacancies position upto 31.10.1998 were 3, one each in general, ST and SC quota in U.P. region and it is only in 2009 that applicants has awoken up to challenge the position of 1999 but failed to explain and give reasons for 7 the delay and laches in approaching the Tribunal. The calculation of applicants are incorrect as 9 vacancies in the opening balance on 04.03.1990, 5 were allocated to SC category and 4 to ST category. The vacancies intimated under RTI Act were based on the calculation of the same in compliance to order in O.A. No. 2472/99 which came in force after 2007 whereas in 1999, there were three vacancies - 1 general, 1 ST and 1 SC out of which general and SC quota were filled in the said exam and in which exam of 1999 the applicants were not successful.
13. In the supplementary affidavit filed by official respondents on 22.10.2013, it has been averred that all candidates who fail to find a place in the merit list of successful candidates to the extent of vacancies notified will be deemed to be unsuccessful in that examination. It is further averred that the judgment of Central Administrative Tribunal Jaipur in O.A. No. 211/2012 titled Madan Lal Jolia v/s Union of India decided on 13.09.2012 has been made the basis for withdrawing the department letter dated 22.12.2011 which stated that the case of applicants may be considered and the withdrawal was vide letter dated 21.01.2013 (Annexure SA5)
14. So, in nutshell, the applicants have a grouse in respect of the number of seats which were available in the exam of 1999. Their case being that the department deliberately kept the seats for the LDC quota at a low number so as to benefit the candidates of other quotas.
15. The Learned Counsel for respondents has strenuously argued that the present O.A. is highly belated and applicants filing this O.A. in 2009 seeks to challenge the result of the exam conducted in the 8 year 1999. LC, therefore, submits that the present O.A. is barred by period of limitation and to be dismissed summarily.
16. In so far as Administrative Act 1985 which governs the case of the applicants herein, Section 21 of the Act specifies limitation period. Section 21 reads as under:
(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 9 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 subsection (2), an application may be admitted after the period of one year specified in clause (a) or clause (b) of sub- section (1) or, as the case may be, the period of six months specified in sub-section (2), if the applicants satisfies the Tribunal that they had sufficient cause for not making the application within such period.
17. A reading of the said section would indicate that sub-section (1) of Section 21 provides for limitation for redressal of the grievances in clauses (a) and (b) and specifies the period of one year. Sub-section (2) amplifies the limitation of one year in respect of grievances covered under clauses (a) and (b) and an outer limit of six months in respect of grievances covered by sub-section (2) is provided. Sub-section (3) postulates that notwithstanding anything contained in sub-section (1) or sub-section (2), if the applicantss satisfy the Tribunal that they had sufficient cause for not making the applications within such period enumerated in sub-sections (1) and (2) from the date of application, the Tribunal has been given power to condone the delay, on satisfying itself that the applicantss have satisfactorily explained the delay in filing the applications for redressal of their grievances. When subsection (2) has given power (sic right) for making applications within one year of the grievances covered under clauses (a) and (b) of subsection (1) and within the outer limit of six 10 months in respect of the grievances covered under sub-section (2), there is no need for the applicants to give any explanation to the delay having occurred during that period. They are entitled, as a matter of right, to invoke the jurisdiction of the court for redressal of their grievances. If the applications come to be filed beyond that period, then the need to give satisfactory explanation for the delay caused till date of filing of the application must be given and then the question of satisfaction of the Tribunal in that behalf would arise. Sub-section (3) starts with a non obstante clause which rubs out the effect of sub-section (2) of Section 21 and the need thereby arises to give satisfactory explanation for the delay which occasioned after the expiry of the period prescribed in sub-sections (1) and (2) thereof.
18. In Esha Bhattachargee Vs. Managing Committee of Raghunathpur Nafar Academy and Others, (2013) 12 SCC 649, after discussing the entire case law on the point of condonation of delay, the Hon'ble Apex Court has culled out certain principles as under:-
"21. From the aforesaid authorities the principles that can broadly be culled out are:
21.1. There should be a liberal, pragmatic, justice-
oriented, non- pedantic approach while dealing with an application for condonation of delay, for the courts are not supposed to legalise injustice but are obliged to remove injustice.
21.2. The terms "sufficient cause" should be understood in their proper spirit, philosophy and purpose regard being had to the fact that these terms are basically elastic and are to be applied in proper perspective to the obtaining fact- situation.
1121.3. Substantial justice being paramount and pivotal the technical considerations should not be given undue and uncalled for emphasis. 21.4. No presumption can be attached to deliberate causation of delay but, gross negligence on the part of the counsel or litigant is to be taken note of. 21.5. Lack of bona fides imputable to a party seeking condonation of delay is a significant and relevant fact.
21.6. It is to be kept in mind that adherence to strict proof should not affect public justice and cause public mischief because the courts are required to be vigilant so that in the ultimate eventuate there is no real failure of justice. 21.7. The concept of liberal approach has to encapsule the conception of reasonableness and it cannot be allowed a totally unfettered free play. 21.8. There is a distinction between inordinate delay and a delay of short duration or few days, for to the former doctrine of prejudice is attracted whereas to the latter it may not be attracted. That apart, the first one warrants strict approach whereas the second calls for a liberal delineation. 21.9. The conduct, behaviour and attitude of a party relating to its inaction or negligence are relevant factors to be taken into consideration. It is so as the fundamental principle is that the courts are required to weigh the scale of balance of justice in respect of both parties and the said principle cannot be given a total go by in the name of liberal approach.
21.10. If the explanation offered is concocted or the grounds urged in the application are fanciful, the courts should be vigilant not to expose the other side unnecessarily to face such a litigation. 21.11. It is to be borne in mind that no one gets away with fraud, misrepresentation or interpolation 12 by taking recourse to the technicalities of law of limitation.
21.12. The entire gamut of facts are to be carefully scrutinized and the approach should be based on the paradigm of judicial discretion which is founded on objective reasoning and not on individual perception.
21.13. The State or a public body or an entity representing a collective cause should be given some acceptable latitude.
22. To the aforesaid principles we may add some more guidelines taking note of the present day scenario. They are: -
22.1.An application for condonation of delay should be drafted with careful concern and not in a half hazard manner harbouring the notion that the courts are required to condone delay on the bedrock of the principle that adjudication of a lis on merits is seminal to justice dispensation system. 22.2. An application for condonation of delay should not be dealt with in a routine manner on the base of individual philosophy which is basically subjective. 22.3. Though no precise formula can be laid down regard being had to the concept of judicial discretion, yet a conscious effort for achieving consistency and collegiality of the adjudicatory system should be made as that is the ultimate institutional motto.
22.4. The increasing tendency to perceive delay as a non- serious matter and, hence, lackadaisical propensity can be exhibited in a non-challant manner requires to be curbed, of course, within legal parameters".
19. In Chennai Metropolitan Water Supply and Sewarage Board and Others Vs. T.T. Murali Babu (2014) 4 SCC 13 108, it was held by the Hon'ble Apex Court as under:-
"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
20. 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 Hon'ble Apex 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.
21. In State of M.P. and others etc. etc. v. Nandlal Jaiswal, AIR 1987 SC 251 the Court observed that:
"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 15 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 16 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". 13. A careful perusal of the decisions of the Hon'ble Apex Court in Esha Bhattarchargee (supra) and Chennai Matropolitan Water Supply and Sewarage Board and Others (supra) wherein it was categorically held that the conduct, behaviour and attitude of a party relating to its inaction or negligence are relevant factors to be taken into consideration and the fundamental principles that the courts are required to weigh the scale of balance of justice in respect of both parties and the said principle cannot be given a total go by in the name of liberal approach and with the increasing tendency to perceive delay as a non-serious matter, and lackadaisical propensity can be exhibited in a non-challant manner requires to be curbed off and the court is not expected to give indolent persons who compete with 'Kumbhakarna' or for that matter 'Rip Van 17 Winkle', wherein such delay does not deserve any indulgence and on the said ground alone, the courts should have thrown the petition overboard at the very threshold..
22. In the present case, the applicants on their own showing are seeking relief in the year 2009 regarding the examination pertaining to the year 1999 and seeks to justify the delay by averring that they were making representations and waiting for a response from the respondents and as also the fact that other O.A.s have been filed.
23. The reasons put forth by applicants for condoning the delay are not plausible. In our view, the applicants do not deserve any indulgence in entertaining the OAs. In Union of India & Others Vs. M.K. Sarkar (2010) 2 SCC 58, the Hon'ble Apex Court held as under:-
"15. 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 can not be considered as furnishing a fresh cause of action for 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".18
24. It was also held by the Hon'ble Supreme Court in the case of C. Jacob vs. Director of Geology and Mining, (2008) 10 SC 115 that:-
The courts/tribunals proceed on the assumption, that every citizen deserves a reply to his representation. Secondly they assume that a mere direction to consider and dispose of the representation does not involve any `decision' on rights and obligations of parties. Little do they realize the consequences of such a direction to 'consider'. If the representation is considered and accepted, the ex-employee gets a relief, which he would not have got on account of the long delay, all by reason of the direction to `consider'. If the representation is considered and rejected, the exemployee files an application/writ petition, not with reference to the original cause of action of 1982, but by treating the rejection of the representation given in 2000, as the cause of action. A prayer is made for quashing the rejection of representation and for grant of the relief claimed in the representation. The Tribunals/High Courts routinely entertain such applications/petitions ignoring the huge delay preceding the representation, and proceed to examine the claim on merits and grant relief. In this manner, the bar of limitation or the laches gets obliterated or ignored.
10. 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 19 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.
11. When a direction is issued by a court/tribunal to consider or deal with the representation, usually the directee (person directed) examines the matter on merits, being under the impression that failure to do may amount to disobedience. When an order is passed considering and rejecting the claim or representation, in compliance with direction of the court or tribunal, such an order does not revive the stale claim, nor amount to some kind of 'acknowledgment of a jural relationship' to give rise to a fresh cause of action."
25. In the facts of the present case, the claim of the applicants seeking relief of promotion, which, if at all was available to them in 1999 is being made the subject matter of the present O.A filed in the year 2009, it is a stale and dead claim and cannot be entertained at this long lapse of time. It would be pertinent to note that the applicants have not challenged the result of the examination of 1999 declared on 09.07.1999 in which they had appeared. The respondents had held a examination in the year 2003 but the exam was not held in U.P. State, since no vacancies were available, even then the applicants did not challenge the non-holding of the exam in U.P., though on their own showing seats for LDC quota were available and it is only, when the 20 examination process started in the year 2009, that the applicants became active.
26. In view of the facts and circumstances of the case, we are of the opinion that the present O.A. is hopelessly barred by period of limitation.
27. Even on merit, the case of applicants does not justify its acceptance. Learned Counsels for applicants argued that there existed more vacancies in the year 1999 than those calculated by the respondents and therefore, the applicants should be promoted against those vacancies of 1999, which have been wrongly calculated by the respondents.
28. On the other hand, Learned Counsel for respondents while denying the averments of the applicants that there was mis-calculation in the existing vacancies in 1999 argued that in case it is found that there were vacancies pertaining to previous years, the same would not be given retrospective effect but would, as per, the prevailing practice, be treated as new vacancies and taken up in the next examination.
29. Reliance has been placed on Note 5 of letter dated 08.03.2007 issued by Regional Provident Fund Commissioner (HR) to All Additional Central Provident Fund Commissioners detailing the actions to be taken regarding the vacancies and the adjustment in the quota in case of any excess or shortfall. Note 5 reads: In case of any excess in any of the three categories may be clearly listed out year-wise. In the event of excess recruitment in DR and EQ due to miscalculation of vacancies for EQ and DR, the review DPC may be convened and the officials who should have been promoted against the 21 SQ may be recommended for promotion from the respective year of vacancy as per their entitlement.
30. As per the respondent No. 5, in his counter affidavit dated 23.09.2012, it has been averred that the aforementioned letter dated 08.03.2007 was issued for collecting the information in terms of Order dated 14.03.2001 issued by the Principal Bench, Delhi in O.A. No. 2472/1999. The vacancies were reviewed in review DPC held on 25.07.2008 in compliance to direction to the judgment O.A. No. 2472/1999 titled B.P.Jain v/s The Employees Provident Fund Organization decided on 14.03.2001 by the Principal Bench, New Delhi and after ascertaining the vacancy position, the selection was notified in 2009 and it falsifies the calculations made by the applicants. It is stated that there was only one vacancy of general candidate in the year 1999 which was filled up by the successful candidate Shri Chhabinder Saini on the basis of result declared on 09.07.1999 and the calculation made by the applicants is wrong and not in accordance with the actual position. That there was one vacancy of general candidate in the year 1999 is all the more clear from the letter dated 09.04.2012 addressed by Assistant Provident Commissioner (ADM.) to the Addl. Central Provident Fund Commissioner (UP & BR) that in 1999, 3 vacancies under EQ were notified which were to be filled up from each category of officials i.e. General, SC and ST.
31. Learned counsels for respondents has referred to the observation in order dated 04.03.2011 of the Principal Bench, Central Administrative Tribunal, New Delhi in O.A. 395/2010 titled Shri Devinder Kumar v/s Union of India and ors wherein the dispute 22 regarding the number of seats cropped up in respondent-department, it was observed that:
"The nature of the examination is only competitive and not qualifying. Though the respondents have indicated that the applicants has passed in the examination, the same is qualified by the term, 'subject to vacancy' Two individuals in the merit list have already been appointed against two posts for that year. Though the applicants had tried to establish that there were three vacancies, the respondents have stated that when due to review of the vacancy position in pursuance of certain orders of the Tribunal as contained in reply to para 4.11 and 4.12, any such vacancy that had been found existing, could only be filled up in the next year examination and the same is the practice. We are not prepared to turn down the above submission, for, a vacancy when found available for a previous year can be filled only prospectively and when it is a practice, the same cannot be ignored. It is pertinent to observe here that where a practice has been in existence, the same cannot be ignored. Only when such a practice is deviating from the prescribed statutory rule that the practice may have to be marginalized."
32. Applicants' case is that there were more vacancies in the year 1999 than held out by the official respondents and therefore, applicants should be adjusted in those vacancies nor found for the year 1999. Respondents have clearly averred that there was one vacancy for general candidate in the year 1999 which was filled up and that the number of vacancies that were notified for the year 1999 before the examination, cannot be changed now, since the number of notified vacancies in 1999 cannot be 23 increased nor as per the procedure being followed for the examination. Hence, it will be appropriate to carry over the vacancy to current year when it can be advertised afresh.
33. The learned Counsel for the applicants placed reliance on judgment dated 05.05.2011 passed in Writ Petition (S/S) No. 1027 of 2010 titled Bal Krishna v/s State of Uttarakhand decided by the Hon'ble High Court of Uttarakhand at Nanital. In the said case, State PSC had advertised 70 posts of Junior Engineer but 258 candidates for the posts of Junior Engineer were selected and the challenge was that any selection over 70 posts is illegal. Respondents stand was that after restructuring, between 2006- 2006, it was found that the vacancies before the date of advertisement were 258 and on request of State, selection for 258 posts were made. The Hon'ble Court observed that the Court cannot loose sight of the fact that it was dealing with extraordinary situation where due to creation of State of Uttarakhand, the matter refers to post reorganization period. The Court took the view that in these unusual and extraordinary circumstances, there is nothing unusual for the State Government to conclude later that actual vacancies were 258 and since these vacancies were existing prior to the date of advertisement, no prejudice has been caused to a person who was not even qualified for making an application in response to the advertisement.
34. The facts of the Uttarakhand case are entirely different from the facts of the present case and is of no avail to the applicant. In the present Original Applications were invited from candidates in the organization for promotional test whereas Uttarakhand case, applications were invited for 24 fresh selection and that the decision in Uttarakhand case was taken due to an extraordinary situation.
35. Looking to the stand of the respondents which cannot be termed to be wrong or perverse and also the observations and finding of the Principal Bench in O.A. 395/2010 titled Shri Devinder Kumar v/s Union of India (supra), which covers the present case on all fours, we are of the view that applicants have been unable to make out a case in their favour for grant of the reliefs sought by them. The O.As. being meritless, are to be dismissed.
36. O.As are dismissed in terms of aforementioned reasons. Interim directions shall stand vacated. No order as to costs.
(Rakesh Sagar Jain) (Gokul Chandra Pati)
Member (J) Member (A)
Manish/-