Central Administrative Tribunal - Delhi
I. S. Harith vs Union Of India & Others on 25 May, 2011
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH NEW DELHI Review Application No.271 of 2010 Misc. Application No.2546/2010 in Original Application No.2069 of 2009 This the 25th day of May, 2011 HONBLE SHRI JUSTICE V. K. BALI, CHAIRMAN HONBLE SHRI L. K. JOSHI, VICE-CHAIRMAN (A) I. S. Harith Applicant ( By Shri Nalin Tripathi, Advocates ) Versus Union of India & others Respondents ( By Shri Gagan Mathur, Advocate ) O R D E R Justice V. K. Bali, Chairman:
O.A. No.2069 of 2009 filed by the applicant was dismissed by us vide order dated 7.8.2009. Aggrieved, the applicant filed a writ petition in the Honble High Court of Delhi against the order aforesaid, which was disposed of by recording the following order on 27.7.2010:
1. After some arguments Mr. G. D. Gupta learned Senior Counsel seeks leave to withdraw the writ petition stating that the petitioner intends to seek a review before the Tribunal after placing before the Tribunal certain documents which inadvertently could not be placed for consideration before the Tribunal.
2. The writ petition is accordingly dismissed as not pressed.
3. Needless to state, if the petitioner were to file an application seeking review of the order passed by the Tribunal and along therewith files certain documents which the petitioner claims were inadvertently not placed before the Tribunal the application for review would be decided by the Tribunal on the known and recognized principles seeking review predicated on the plea that certain documents available and relevant for the enquiry were not placed before the Tribunal.
4. Needless to state, if and when an application seeking review is filed all permissible defenses would be available to the respondents.
5. No costs.C.M. 7279/2010
Dismissed as infructuous. The applicant has filed the review application, which is accompanied by an application seeking condonation of delay. Notice in the review application was issued to the respondents who have filed their reply. The applicant has filed rejoinder as well.
2. We have heard the learned counsel representing the parties and with their assistance examined the records of the case. The writ petition was dismissed as not pressed as the counsel representing the applicant intended to seek review before the Tribunal by placing certain additional documents on record which inadvertently could not be placed for consideration of the Tribunal. During the course of arguments, the additional documents which have now been placed on record are stated to be some representations made by the applicant. Before we may make a mention of the additional documents, as stated above, which are only representations made from time to time, we may reiterate that the applicant was promoted to the post of Assistant on ad hoc basis on 27.5.1977 and was confirmed on 1.3.1980. The applicant superannuated in 2002. The case of the applicant in the OA was that he should be treated to have been regularly appointed on 27.5.1977, his seniority as Assistant should be reckoned from the date aforesaid, and further promotions be given to him accordingly. Even though, the case of the applicant was at par with one R. K. Tikania who had got the relief as asked for by the applicant in the OA, we yet dismissed the OA on two grounds, namely, that in the matter of R. K. Tikania itself the High Court while disposing of the writ petition filed on behalf of the respondents, had clearly mentioned that the relief granted by the Tribunal was confined to R. K. Tikania only and that those who had not approached the Tribunal or the ICAR, would not be entitled to similar relief, and, therefore, no relief could be granted to the applicant; and that the Application was barred by limitation as also suffering from delay and laches. The applicant, we observed, had woken up from his long slumber after a period of 32 years. We may note in verbatim the contention raised by the respondents and the findings recorded by the High Court as regards confining the relief to R. K. Tikania only. The same reads, thus:
9. Petitioner lastly contended that in case the period of ad hoc service rendered by the respondent no.1 is counted for the purpose of seniority and other benefits then many persons would be superseded. Not only this, all others appointed along with respondent No.1 on ad hoc basis in the year 1977 would demand similar benefits, which would entail large scale reversions and change in seniority which would be likely to affect the working of the officers causing resentments and representations.
10. The plea is unfounded. The relief granted by the Tribunal is confined to Respondent no.1 and no other person has approached the Tribunal or the Petitioners for similar relief. In any case, this by itself cannot be made a ground to denying a benefit for which respondent no.1 is legally entitled. Reference may be usefully made to the decision of the Supreme Court in Union of India Vs. Kishorilal Bablani reported at (1999) 1 SCC 729 where the Supreme Court while recognizing that the contention of the Union of India that it was not possible to re-open the issue of vacancies after several years and the process of selection and modification cannot and ought not to be re-opened in the interest of proper functioning and morale of concerned officers, however still held that it would not be fair to take away a benefit which he had secured on the basis of contentions which had been accepted. The Court therefore maintained the relief granted to him, but maintained that it cannot be granted to anyone else. In view of the above, the petitioners plea of large scale reversion and claim of similar benefit by others resulting in resentment and representations, would be of no avail. The observations as extracted above would manifest that the plea as raised by the respondents as regards similar reliefs that may have to be granted to others, was repelled on the basis of the judgment of the Honble Supreme Court referred to by the High Court, wherein it was held that the relief granted to the petitioner could not be granted to anyone else. It is in view of the observations of the Supreme Court in Kishori Lal Bablani (supra), as mentioned above, that the plea raised by the respondents that similar benefit may have to be granted to others, was repelled. The judgment of the High Court clearly mandates that relief in the case would be confined to R. K. Tikania only. There cannot possibly be any escape route for the applicant to get over the findings of the High Court, as mentioned above. No arguments have been raised even during the course of hearing in the review application that this Tribunal may have any choice in the matter and allow the OA despite the findings of the High Court as extracted above.
3. As regards the additional documents, as mentioned above, the same are only representations made by the applicant. The first in that regard is dated 17.3.1979 wherein the applicant indeed prayed for regular appointment against the post of Assistant, and resented his appointment on ad hoc basis vide order dated 27.5.1977. The next representation made by the applicant is dated 20.7.1982, more than three years after the first representation was made. The third representation was made on 23.4.1992, almost after ten years when the second representation was made. The next representation is dated 26.3.2009, which was made almost after 17 years. The applicant made yet another representation on 15.5.2009. The last two representations, it appears, came to be made after the decision of the High Court in the case of R. K. Tikania. The applicant has made reference to the judgment in his representations referred to above. The order that came to be passed on 9.6.2009, mentioned as 9.7.2009 in our order under review, reads as follows:
Please refer to your representations dated 26-30/3/2009 addressed to Director, IARI with copy endorsed to US (Admn.), Estt.I Section, ICAR, representation dated 15/5/2009 addressed to Dr. H. S. Gupta, Director, IARI and representation dated 27/5/2009 addressed to Director, IARI submitting request to grant promotion as Supdt. w.e.f. 14/10/1982, AAO w.e.f. 12/9/1986, AO w.e.f. 30/6/1993 and SAO w.e.f. 31/5/2001 with reference to promotion given to Sh. R. K. Tikania, Ex-AAO as per Honble Court Orders.
In this regard it is to inform that as per office order dated 27/5/1977 issued regarding promotion to the post of Asstt. (Adhoc) of yourself and Sh. R. K. Tikania alongwith other officials and seniority list of Assistant as on 1/1/1984, Sh. M. D. Azad, Sh. K. L. Gosain and you were senior to Sh. Tikania. But no other official including yourself represented for the regularisation of service period as Asstt. (Adhoc) from 27/5/1977 before IARI authorities like Sh. Tikania during service tenure.
Honble CAT has directed to give seniority and other benefits to Sh. Tikania and Honble High Court has also upheld the decision of Honble CAT and also directed that the same benefit is not to be given to any other person as nobody else has represented for the same.
Service period as Asst. (Adhoc) performed by Sh. M.D. Azad and Sh. K. L. Gosain, who were senior to you and Sh. Tikania, promoted vide office order dated 27/5/1977, has also not been regularised like Sh. Tikania as no one represented before IARI authorities and Honble Court during service period. Sh. Tikania has been given promotion from back dates as per Honble Court orders only after regularisation of Asstt. (Adhoc) service period from 27/5/1977. Therefore your case for promotion from back date like Sh. Tikania cannot be considered under Next Below rule as per reasons mentioned above.
This issues with the approval of Director, IARI. Perusal of order aforesaid would clearly show that one reason so as not to grant the relief to the applicant despite the fact that R. K. Tikania had got the relief from the High Court is that the said benefit was to be given only to Tikania as no one else had represented for the same. The order would also show that M. D. Azad and K. L. Gosain were also senior to R. K. Tikania, similarly as the applicant. Surely, if the applicant is to be granted relief at this distance of time, other seniors to Tikania named above can well claim the same relief even now, which would not be permissible as per observations/directions of the High Court mentioned above. We are not going into the question as to whether the representations were such which were inadvertently not mentioned or placed on records when we decided the OA. Although prima facie we are of the view that these representations were made by none other than the applicant and were to his knowledge, the same were in existence and it cannot be a case for seeking review by stating that these representations were not inadvertently placed on record. We are, however, as mentioned above, not going into the question as to whether the applicant could seek review on such documents which were to his knowledge, and would rather prefer to dispose of the matter on merits. We have already mentioned that the other ground dismissing the OA was limitation. Limitation is governed by Section 21 of the Administrative Tribunals Act, 1985, which 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. [ It is settled proposition of law that repeated representations do not revive a cause of action, which may have come to an end by bar of limitation. As per the provisions of Section 21 reproduced above, limitation would start running if no decision is taken on the representation within six months. Limitation to file an application would be one year after expiry of six months. The applicant, as mentioned above, would make one representation and sleep over the matter, and repeat it after number of years, ranging from three years to seventeen years. The Honble Supreme Court in a recent decision in the matter of D. C. S. Negi v Union of India & others [SLP(C) No.7956/2011, CC 3709/2011], decided on 7.3.2011, has held as under:
A reading of the plain language of the above reproduced section makes it clear that the Tribunal cannot admit an application unless the same is made within the time specified in clauses (a) and (b) of Section 21(1) or Section 21(2) or an order is passed in terms of sub-section (3) for entertaining the application after the prescribed period. Since Section 21(1) is couched in negative form, it is the duty of the Tribunal to first consider whether the application is within limitation. An application can be admitted only if the same is found to have been made within the prescribed period or sufficient cause is shown for not doing so within the prescribed period and an order is passed under Section 21(3).
In the present case, the Tribunal entertained and decided the application without even adverting to the issue of limitation. Learned counsel for the petitioner tried to explain this omission by pointing out that in the reply filed on behalf of the respondents, no such objection was raised but we have not felt impressed. In our view, the Tribunal cannot abdicate its duty to act in accordance with the statute under which it is established and the fact that an objection of limitation is not raised by the respondent/non applicant is not at all relevant.
4. Once, we are disposing of this review application on merits, there would be no need to deal with the prayer of the applicant seeking condonation of delay in filing the review application.
5. For the reasons mentioned above, the review application is found to be bereft of merit and is accordingly dismissed.
( L. K. Joshi ) ( V. K. Bali ) Vice-Chairman (A) Chairman /as/