Central Administrative Tribunal - Lucknow
Babu Lal Agarwal vs Union Of India Through Its Secretary on 26 May, 2016
CENTRAL ADMINISTRATIVE TRIBUNAL LUCKNOW BENCH LUCKNOW Original Application No. 332/00550/2015 Reserved on 16.05.2016. Pronounced on 26th May, 2016 Honble Mr. Navneet Kumar, Member J Honble Ms. Jayati Chandra, Member - A Babu Lal Agarwal, aged about 63 years, son of Late Sri Ram Niwas Agarwal, R/o 3/5 Vipul Khand, Gomti Nagar, Lucknow 226010. ............ Applicant By Advocate: Sri Anag Mishra VERSUS 1. Union of India through its Secretary, Department of Personnel and Training, Ministry of Personnel, Public Grievance and Pensions, Govt. of India, North Block, New Delhi. 2. Union Public Service Commission, through its Secretary, Dhaulpur House, Shahjahan Road, New Delhi 110069. 3. State of Uttar Pradesh, through its Principal Secretary, Department of Appointment, Civil Secretariat, Lucknow 226001. ............ Respondents By Advocate: Sri P.K. Singh (for R-1) Sri G.K. Singh (for R-2) Sri S. Seth (for R 3) O R D E R
Delivered by: Honble Mr. Navneet Kumar, Member - J By means of this O.A filed under Section 19 of the Administrative Tribunals Act, the applicant has prayed for the following reliefs:
(i) to issue a direction to the respondents to appoint the applicant to the Indian Administrative Service cadre of Uttar Pradesh with all consequential benefits on the basis of inclusion of his name in the Select List of 2006, not later than to his immediate junior, namely Mr. Shahbbudin Mohammad who has been appointed to IAS Cadre on the basis of the same select list of 2006.
(ii) To issue any other order or direction which this Honble Tribunal may deems fit, just and proper in the circumstances of the case.
(iii) Allow the original application with costs.
2. The facts of the case are that the applicant belongs to the Provincial Civil Service (PCS) of U.P. and was assigned 1978 Batch. In accordance with rule 4 read with rule 8 and rule 9 of the Indian Administrative Service Recruitment Rules 1954, the State Government sent a proposal in October 2010 to the Govt. of India to hold a meeting of the Selection Committee (also called DPC in the O.A) for promotion of State Civil officers to the IAS, including the applicant, who were falling in the zone of consideration. Before the Selection Committee meeting could be held, an order was passed in W.P. No. 146/2009 (Rajesh Kumar Vs. State of U.P.) and W.P. No. 1389 of 2007 (Prem Kumar Singh Vs. State of U.P.) holding the provisions of the Section 3(7) of U.P Act, 1994 read with Rule 8-A of the U.P. Government Servants (3rd Amendment) Rules, 2007 as invalid and unconstitutional vide its order dated 01.01.2011. This order was challenged before the Honble Apex Court vide SLP No. 3916/2011 and other petitions. The SLP was decided vide judgement/ order dated 27.04.2012 upholding the order dated 04.01.2011 passed by the Lucknow Bench of the Honble High Court of Allahabad. During the pendency of the said litigations, no selection meeting could be held consequent upon a status-quo.
3. Finally, the selection meeting was held on 7th, 8th and 22nd November, 2012 and a notification showing the names of selected candidates was issued on 27.11.2012. The applicants name was included in the notification of the persons selected against the vacancies of the year 2006 at Sl No. 208 (Annexure A-3). However, in the appointment notification also dated 27.11.2012 issued in accordance with the Rule 8(1) of IAS (Recruitment) Rule 1954 read with Regulation 9(1) of IAS (Appointment by Promotion) the name of the applicant alongwith few others were not included. Some Officers belonging to 1976 Batch of the PCS filed an O.A No. 4533/2011 claiming the relief of their appointment in the IAS against the vacancies of the year 2004 as their names had also been similarly considered and were approved in the select list but were missing from the appointment list. Subsequently four other PCS Officers preferred O.A Nos. 2143/2013 and 2144/2013 as their names were similarly missing from the appointment list for the year 2006 although included in the select list. More particularly one Sri Mahesh Chandra II whose name appeared at Sl No. 16 of the select list of 2006 but not included in the appointment notification preferred a writ petition No. 844/2013 (Mahesh Chand Vs Union of India and Others) before the Honble Apex Court which was disposed of vide order dated 16.10.2014. In the said order the Honble Apex Court held as follows:
........ we direct that the present petitioner shall be deemed to have been appointed to Indian Administrative Service, cadre of Uttar Pradesh with all consequential benefits on the basis of inclusion of his name in the Select List of 2006, not later than to his immediate junior, namely, Mr. Vinay Priya Dubey, who has been appointed to IAS Cadre on the basis of the same select list of 2006. It is hereby made clear that date of appointment of Mr. Vinay Priya Dubey shall be the governing factor for grant of extension of benefit to the petitioner. The benefits be extended within a period of three months hence.
4. One Mr. K. K. Shukla had preferred a impleadment application in the aforementioned W.P. on the ground that he is senior to the writ petitioner and was similarly placed. Allowing the same, the Honble Court was pleased to hold the following:
At this juncture, we may note that I.A No. 1/2013 has been filed by one Mr. Krishna Kant Shukla for impleadment on the ground that he is senior to the present petitioner and similarly placed. If that is so, the Union of India shall be well advised to extend the benefit to Krishna Kant Shukla on same parameters so that the Central Government can set an example how a litigation can be avoided.
5. The applicant thereafter preferred a representation dated 30.11.2014 placing reliance upon the order passed by the Honble Apex Court in W.P. No. 844/2013 (Supra). Vide their letter dated 29.12.2014, the State Govt. i.e. respondent No. 3 forwarded the said representation to respondent No. 1, Govt. of India alongwith cases of Sri Mahesh Chandra and Sri K.K. Shukla. The respondent No. 1 vide their order dated 09.12.2014 (Annexure A-7) appointed Mr. Mahesh Chandra and Sri K. K. Shukla to the IAS cadre of U.P but left out the name of the applicant in the most whimsical manner. Subsequently, the Principal Bench of this Tribunal disposed of the O.A No. 4533/2011, 2143/2013 and 2144/2013 vide a single order directing the respondents to examine the claim of the applicants for their appointment to the IAS in terms of the aforementioned judgement of Honble Supreme Court within eight weeks from the date of receipt of a copy of the order. Vide letter dated 07.12.2015, the applicant once again claimed similar benefits as was available vide order dated 16.10.2014 passed by the Honble Apex Court in W.P. No. 844/2013.
6. The applicant who retired, as per his date of birth on 31.01.2012 further claims the shelter of DoPT O.M. No. 22017/4/98-Estt.(D) dated 12.10.1998 detailing the procedure to be followed by the DPC in regard to retired employees in the following terms:
......... There is no specific bar in the aforesaid Office Memorandum dated April 10, 1989 or any other related instructions of the Department of Personnel and Training for consideration of retired employees, while preparing year-wise panel(s), who were within the zone of consideration in the relevant year(s). According to legal opinion also it would not be in order if eligible employees, who were within the zone of consideration for the relevant year(s) but are not actually in service when the DPC is being held, are not considered while preparing year wise zone of consideration/panel and, consequently, their juniors are considered (in their places), who would not have been in the zone of consideration if the DPC(s) had been held in time. This is considered imperative to identify the correct zone of consideration for relevant year(s). Name of the retired officials may also be included in the panel(s). Such retired officials would, however, have no right for actual promotion. The DPC(s) may, if need be, prepare extended panel(s) following the principles prescribed in the Department of Personnel and Training Office Memorandum No. 22011/8/87-Estt.(D) dated April 9, 1996.
7. Further, vide O.M. No. 22011/1/2014-Estt.(D) dated 14.11.2014 the position with regards to inclusion of eligible officers who are due to retire in the panel of promotion has been clarified, wherein it has been specifically been observed that DPCs often do not consider such eligible officers who are retiring before the occurrence of the vacancy in the panel year, which negates the very purpose of the O.M. No. 22017/4/98-Estt.(D) dated 12.10.1998 and is thus against the principle of Natural Justice. Thus, strict compliance of instructions of the DOPT vide O.M No. 22017/4/98-Estt.(D) dated 12.10.1998 ought to be done. More particularly, the applicant is squarely covered by the judicial pronouncements made in O.A No. 844/2013 read with O.A No. 4533/2011, 2143/2013 and 2144/2013. The applicant filed the present O.A for relief as quoted above.
8. The respondent No. 1 and 2 have in principle by their statement made at the Bar at the time of hearing had adopted the objections raised by the respondent No. 3 against the maintainability of the O.A. The respondent No. 3 has objected to the maintainability of the present O.A on the ground of the limitation as laid down in Section 21 of the CAT Act read with Section 20 of the CAT Act. Section 20 reads as follows:
20. Applications not to be admitted unless other remedies exhausted. (1) A Tribunal shall not ordinarily admit an application unless it is satisfied that the applicant had availed of all the remedies available to him under the relevant service rules as to redressal of grievances.
(2) For the purposes of sub-section (1), a person shall be deemed to have availed of all the remedies available to him under the relevant service rules as to redressal of grievances,
(a) if a final order has been made by the Government or other authority or officer or other person competent to pass such order under such rules, rejecting any appeal preferred or representation made by such person in connection with the grievance; or
(b) where no final order has been made by the Government or other authority or officer or other person competent to pass such order with regard to the appeal preferred or representation made by such person, if a period of six months from the date on which such appeal was preferred or representation was made has expired.
(3) For the purposes of sub-sections (1) and (2), any remedy available to an applicant by way of submission of a memorial to the President or to the Governor of a State or to any other functionary shall not be deemed to be one of the remedies which are available unless the applicant had elected to submit such memorial.
9. Section 21 reads as follows:
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 sub-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.
10. The cause of action in the present case arose from the date of notification of appointment i.e. 27.11.2012. The applicant made first representation on 30.11.2014 followed up by subsequent representation dated 07.12.2015. These representations are not statutory representations as there is no provision for such representation under the IAS (Appointment by Promotion) Act 1954 or Rules. Thus, the period of their pendency/ non disposal cannot be taken into account for counting of the period of delay. The applicant never agitated against the said order either by approaching a judicial forum directly or praying for impleadment in any of the O.As/ Writs which were filed by similar aggrieved person. Such action on his part could be deemed to mean that he had acquiesced with the action of the respondents or that he was not sufficiently vigilant for his cause. It is only when a favourable order was passed in the case of those who had approached for redressal of their grievance that he decided to seek the extension of pronouncement in W.P No. 844/2013 to himself. The Honble Supreme Court in Jaddish Narain Maltiar Vs The state of Bihar and Others, (1973) 1 SCC 811 in a similar case where the petitioner kept on giving non statutory representations and then approached the Court held that the High Court had rightly refused to condone the delay in his case. The following observation is particularly relevant:
8.......... thereafter he kept on submitting one memorandum after another to the Government and it was not until late in 1966 that he filed a writ petition in High Court to challenge the order of removal. The memorials presented by him to the Government were in the nature of mercy petitions and he should have realised that in pursuing a remedy which was not duly appointed under the law he was putting in peril a right of high value and significance. By his conduct he disabled the High Court from exercising its extraordinary powers in his favour. We are therefore of the opinion that the High Court was justified in refusing to entertain the petition.
11. In the case of State of Maharashtra Vs Digambar,(1995) 4 SCC 683, the Honble Supreme Court allowed the appeal filed against the order of the High Court which had overlooked the delay of 20 years in claiming relief against action of the State Government. The following observation is particularly relevant:
14. ........ Thus, in our view, persons seeking relief against the State under Article 226 of the Constitution, be they citizens or otherwise, cannot get discretionary relief obtainable thereunder unless they fully satisfy the High Court that the facts and circumstances of the case clearly justified the laches or undue delay on their part in approaching the Court for grant of such discretionary relief. Therefore, where a High Court grants relief to a citizen or any other person under Article 226 of the Constitution against any person including the State without considering his blame-worthy conduct, such as laches or undue delay, acquiescence or waiver, the relief so granted becomes unsustainable even if the relief was granted in respect of alleged deprivation of his legal right by the State.
19. 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.
24. Since we have held earlier that the person seeking grant of relief under Article 226 of the Constitution, even if it be against the State, is required to satisfy the High Court that he was not guilty of laches or undue delay in approaching it for relief, need arises for us to consider whether respondent in the present appeal (writ petitioner in the High Court) who had sought for relief of compensation on the alleged infringement of his legal right, had satisfied the High Court that he was not guilty of undue delay or laches in approaching it for relief. The allegation of the petitioner in the writ petition, as becomes clear from the judgment under appeal, was that although certain extent of his land was taken away in the year 1971-72 by the agency of the State for the scarcity relief road works undertaken by the State Government in the year 1971-72, to find work for small agriculturists and agricultural labourers in the then prevailing severe drought conditions, without his consent, he was not compensated therefore, despite requests made to the State Government and various agencies in that regard ever since till the date of filing of the writ petition by him.
26. Thus, when the writ petitioner (respondent here) was guilty of laches or undue delay in approaching the High Court, the principle of laches or undue delay adverted to above, disentitled the writ petitioner (respondent here) for discretionary relief under Article 226 of the Constitution from the High Court, particularly, when virtually no attempt had been made by the writ petitioner to explain his blame- worthy conduct of undue delay or laches. The High Court, therefore, was wholly wrong in granting relief in relation to inquiring into the allegation and granting compensation for his land alleged to have been used for scarcity relief road works in the year 1971-72. As seen from the judgment of the High Court, the allegation adverted to above, appear to be the common allegation in other 191 writ petitions where judgments are rendered by the High Court following the judgment under appeal and which are subject of S.L.P's in this Court that are yet to be registered. We have, therefore, no hesitation in holding that the High Court had gone wholly wrong in granting the relief which it has given in the judgment under appeal, and judgments rendered following the said judgment in other 191 writ petitions, said to be the subject of S.L.P's or otherwise. All the said judgments of the High Court, having regard to the fact that they were made in writ petitions with common allegation and seeking common relief, are liable to be interfered with and set aside in the interests of justice even though only learned counsel appearing for a few writ petitioners were heard by us.
12. In State of Karnataka and Others Vs S.M. Kotrayya and Others, (1996) 6 Supreme Court Cases 267, the Honble Apex Court in a case where certain similarly placed persons had sought the shelter of favourable order passed in an O.A to which they were not parties, held that delay cannot be condoned on the mere statement that they filed for relief after coming to know of the former order.
4. ............. Some of the persons filed applications in the Tribunal questioning the power of the Government to recover the same. It would appear that thereafter in August 1989 the Tribunal allowed similar claims and had held that the appellant-Government could not recover the same from the respondents, On coming to know of it, the respondents filed applications in August 1989 before the Tribunal with an application to condone the delay. The Tribunal has condoned the delay by the impugned order.
9. Thus considered we hold that it is not necessary that the respondents should give an explanation for the delay which occasioned for the period mentioned in sub sections (1) 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 grievance 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.
13. The Honble Supreme Court has held in U.P. Jal Nigam and Another Vs Jaswant Singh and Another, (2006) 11 SCC 464 that when a person is not vigilant of his rights and acquiesces with the situation, and the acquiescence prejudices, or there is a change of position on the part of the party allegedly violating the rights, such persons writ petition cannot be heard after the delay on the ground that same relief should be granted as was granted to persons similarly situated, but who were vigilant of their rights. The Honble Supreme Court posed the following question:
5. Therefore, a serious question that arises for consideration is whether the employees who did not wake up to challenge their retirement and accepted the same, collected their post retirement benefits, can such persons be given the relief in the light of the subsequent decision delivered by this Court ? Therefore it was observed that:
6. The question of delay and laches has been examined by this Court in a series of decisions and laches and delay has been considered to be an important factor in exercise of the discretionary relief under Article 226 of the Constitution. When a person who is not vigilant of his rights and acquiesces with the situation, can his writ petition be heard after a couple of years on the ground that same relief should be granted to him as was granted to person similarly situated who was vigilant about his rights and challenged his retirement which was said to be made on attaining the age of 58 years. A chart has been supplied to us in which it has been pointed out that about 9 writ petitions were filed by the employees of the Nigam before their retirement wherein their retirement was somewhere between 30.6.2005 and 31.7.2005. Two writ petitions were filed wherein no relief of interim order was passed. They were granted interim order. Thereafter a spate of writ petitions followed in which employees who retired in the years 2001, 2002, 2003, 2004 and 2005, woke up to file writ petitions in 2005 & 2006 much after their retirement. Whether such persons should be granted the same relief or not? The Honble Supreme Court held the following:
13. In view of the statement of law as summarized above, the respondents are guilty since the respondents has acquiesced in accepting the retirement and did not challenge the same in time. If they would have been vigilant enough, they could have filed writ petitions as others did in the matter. Therefore, whenever it appears that the claimants lost time or while away and did not rise to the occasion in time for filing the writ petitions, then in such cases, the Court should be very slow in granting the relief to the incumbent. Secondly, it has also to be taken into consideration the question of acquiescence or waiver on the part of the incumbent whether other parties are going to be prejudiced if the relief is granted............
14. In the case of Ghulam Rasool Lone Vs State of Jammu and Kashmir and Another, (2009) 15 SCC 321, the Honble Supreme Court disallowed the claim of a person claiming parity in promotion who had delayed in laying his claim for promotion while others were getting it through judicial pronouncement and held that who claims equity must enforce his claim within a reasonable time. The Honble Apex Court observed the following:
16. The said principle was reiterated in S.S. Balu v. State of Kerala [(2009) 2 SCC 479] in the following terms:-
"17. It is also well-settled principle of law that "delay defeats equity". The Government Order was issued on 15-1-2002. The appellants did not file any writ application questioning the legality and validity thereof. Only after the writ petitions filed by others were allowed and the State of Kerala preferred an appeal there against, they impleaded themselves as party-respondents. It is now a trite law that where the writ petitioner approaches the High Court after a long delay, reliefs prayed for may be denied to them on the ground of delay and laches irrespective of the fact that they are similarly situated to the other candidates who obtain the benefit of the judgment. It is, thus, not possible for us to issue any direction to the State of Kerala or the Commission to appoint the appellants at this stage."
21. It will bear repetition to state that the petitioner waited till Abdul Rashid Rather was in fact promoted. He did not consider it necessary either to join him or to file a separate writ petition immediately thereafter, although even according to him, Abdul Rashid Rather was junior to him. The Division Bench, therefore, in our opinion rightly opined that the petitioner was sitting on the fence.
22. If at this late juncture the petitioner is directed to be promoted to the post of Sub-Inspector even above Abdul Rashid Rather, the seniority of those who had been promoted in the meantime or have been directly recruited would be affected. The State would also have to pay the back wages to him which would be a drainage of public funds. Whereas an employee cannot be denied his promotion in terms of the Rules, the same cannot be granted out of the way as a result whereof the rights of third parties are affected. The aspect of public interest as also the general administration must, therefore, be kept in mind while granting equitable relief.
15. The learned counsel for the applicant has filed rejoinder to the objection so raised more or less as stated earlier. The applicant stated that copies of the notification dated 27.11.2012 was never served upon the applicant and since he has already superannuated on 31.01.2012 he had no knowledge that his name had appeared in the select list of 2006. Subsequently O.A No. 4533/2011, 2143/2013 and 2144/2013 pending before the Principal Bench of this Tribunal were allowed vide order dated 23.09.2015 in the light of the decision of the Honble Apex Court. After learning about the aforementioned order the applicant once again represented to respondents vide letter dated 07.12.2015. The Honble Supreme Court has consistently opined that when a particular set of employees is given relief by the court, all other identically situated persons need to be treated alike by extending that benefit. Not doing so would amount to discrimination and would be violative of Article 14 of the Constitution of India. The order dated 16.10.2014 is a judgement in rem with intention to give benefit to all similarly situated persons whether they approached the court or not. He has placed reliance upon the case of State of Uttar Pradesh and Others Vs Arvind Kumar Srivastava and Others, (2015) 1 SCC 347 in which the Honble Apex Court held the following:
6. It so happened that a few other candidates who were also affected by the same orders dated June 22, 1987, whereby their appointments were cancelled, approached the Tribunal challenging the legality, validity and proprietary of the said order on several grounds. One of the grounds taken was that before cancellation of their appointments, no show-cause notice was given to them. The Tribunal decided the case filed by them in their favour vide judgment dated August 16, 1991 holding the impugned order dated June 22, 1987 as illegal and void and quashed the same. Against the order of the Tribunal, the State filed the writ petition in the High Court. This writ petition was dismissed on August 27, 1992 thereby confirming the order passed by the Tribunal. The Special Leave Petition filed by the State met the same fate as that was also dismissed by this Court on August 12, 1994. In this manner, the Tribunal's order dated August 16, 1991 attained finality and the persons who had approached the Tribunal got the appointments.
22. The legal principles which emerge from the reading of the aforesaid judgments, cited both by the appellants as well as the respondents, can be summed up as under:
22 (1) Normal rule is that when a particular set of employees is given relief by the Court, all other identically situated persons need to be treated alike by extending that benefit. Not doing so would amount to discrimination and would be violative of Article 14 of the Constitution of India. This principle needs to be applied in service matters more emphatically as the service jurisprudence evolved by this Court from time to time postulates that all similarly situated persons should be treated similarly. Therefore, the normal rule would be that merely because other similarly situated persons did not approach the Court earlier, they are not to be treated differently.
22 (2) However, this principle is subject to well recognized exceptions in the form of laches and delays as well as acquiescence. Those persons who did not challenge the wrongful action in their cases and acquiesced into the same and woke up after long delay only because of the reason that their counterparts who had approached the Court earlier in time succeeded in their efforts, then such employees cannot claim that the benefit of the judgment rendered in the case of similarly situated persons be extended to them. They would be treated as fence-sitters and laches and delays, and/or the acquiescence, would be a valid ground to dismiss their claim.
22(3) However, this exception may not apply in those cases where the judgment pronounced by the Court was judgment in rem with intention to give benefit to all similarly situated persons, whether they approached the Court or not. ......... He has also refuted the case laws cited by the learned counsel for the respondent No. 3 and 4 on the ground that these are not applicable in his case.
16. We have heard the counsel for the parties and perused the records on file.
17. The basic grievance of the applicant arise from the fact that his name was included in the select list of candidates selected for promotion to the IAS against the vacancy year 2006 vide notification dated 27.11.2012. However, his name alongwith various others were not included in the appointment notification dated 27.11.2012. Admittedly, the applicant never approached for any kind of administrative or judicial intervention prior to his representation dated 29.12.2014 submitted before the respondents and filing the case in December 2015 i.e. four years after the order dated 27.11.2012. He has claimed through his O.A that there is no delay or laches in his O.A, although from the narration of the fact there is a gap of four years between the date of notification and filing this O.A. He has explained this gap in terms of the fact that as he has retired on 31.10.2012, he was not aware of the selection notification dated 27.11.2012 or the appointment notification dated 27.11.2012. He has by his own admission stated that various other persons who had also retired had filed various cases before the Honble Supreme Court and before the Principal Bench of this Tribunal namely Sri Mahesh Chandra through W.P. No. 844/2013, Sri Ramesh Chandani, Sri Anwarul Haque and Sri Pramod Narain Batham through O.A No. 4533/2011, Sri Prabhat Kumar Mishra through O.A No. 2143/2013 and Sri Ashok Kumar Singh, Sri Upendra Narayan Thakur and Sri Anand Bardhan through O.A No. 2144/2013. All these O.As and writ petitions were filed within certain time frame. The applicant infact seeks the same benefits as has been given to Mr. K. K. Shukla in W.P. No. 844/2013. During the pendency of the W.P, the applicant neither filed any independent O.A nor applied to join in either of the O.As. Such action on his part cannot be condoned on the ground of lack of knowledge and in the absence of any prayer for condonation of delay we are inclined to agree with the citations quoted Para 8 to 14 above.
18. The applicant has argued that the judgement passed in W.P No. 844/2013 is a judgement passed in rem. A careful reading of the said judgement does not give any credence to the averments so made by the applicant. The Honble Supreme Court in W.P. No. 844/2013 has given relief to Sri K.K. Shukla, even in granting relief to Sri K. K. Shukla states the following:
At this juncture, we may note that I.A No. 1/2013 has been filed by one Mr. Krishna Kant Shukla for impleadment on the ground that he is senior to the present petitioner and similarly placed. If that is so, the Union of India shall be well advised to extend the benefit to Krishna Kant Shukla on same parameters so that the Central Government can set an example how a litigation can be avoided. (high light added) Even in the citation relied upon by the learned counsel for the applicant State of Uttar Pradesh and Others Vs Arvind Kumar Srivastava and Others (Supra) the Honble Apex Court while holding all similar persons should be treated similarly even if some people may not have approached the Court earlier, has observed the following:
22 (2) However, this principle is subject to well recognized exceptions in the form of laches and delays as well as acquiescence. Those persons who did not challenge the wrongful action in their cases and acquiesced into the same and woke up after long delay only because of the reason that their counterparts who had approached the Court earlier in time succeeded in their efforts, then such employees cannot claim that the benefit of the judgment rendered in the case of similarly situated persons be extended to them. They would be treated as fence-sitters and laches and delays, and/or the acquiescence, would be a valid ground to dismiss their claim.
19. Therefore, on the basis of discussions above, the O.A is time barred and deserves to be dismissed and is accordingly dismissed. No costs.
(Ms. Jayati Chandra) (Navneet Kumar)
Member (A) Member (J)
RK
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