Central Administrative Tribunal - Lucknow
Rama Kant Maurya vs Union Of India on 29 February, 2024
1 OA No.348/2017
Reserved
CENTRAL ADMINISTRATIVE TRIBUNAL, JABALPUR BENCH
JABALPUR
Original Application No.348/2017
Jabalpur, this Thursday, the 29th day of February, 2024
THIRD JUDGE REFERENCE
(Under Section 26 of Administrative Tribunals Act, 1985)
HON'BLE MR. JUSTICE AKHIL KUMAR SRIVASTAVA, JUDICIAL MEMBER
Rama Kant Maurya, aged about 34 years, Son of Shri Hari Prasad Maurya,
Resident of 589/60, Saleh Nagar, Old Jail Road, Bangla Bazar, Lucknow,
Pin - 226002 -Applicant
(By Advocate - Shri Praveen Kumar)
Versus
1. Union of India through its Secretary, Ministry of HRD, Govt. of India,
New Delhi.
2. The Commissioner, Kendriya Vidyalaya Sangathan (KVS), 18,
Institutional Area, Shaeed Jeet Singh Marg, New Delhi - 110602.
3. The Deputy Commissioner, Kendriya Vidyalaya Sangathan, Regional
Office, IIT Campus, Powai, Mumbai - 400076.
4. The Under Secretary, Ministry of Urban Development, Nirman Bhawan,
New Delhi.
5. The Principal Registrar, Central Administrative Tribunal, Principal
Bench, New Delhi -Respondents
(By Advocate - Shri Aruj Kant, proxy counsel of Ms. Pushpila Bisht)
(Date of reserving order : 15.02.2024)
Page 1 of 22
2 OA No.348/2017
ORDER
The instant matter is a Third Judge Reference under Section 26 of Administrative Tribunals Act 1985.
2. While deciding this Original Application, a difference of opinion arose between the two Members, sitting in Division Bench of Central Administrative Tribunal, Lucknow. While Hon'ble Mr. Devendra Chaudhry, Member (Administrative) allowed the OA, the Hon'ble Member (Judicial) Mr. Swarup Kumar Mishra, dismissed the OA giving their independent reasoning for taking the different views.
3. In absence of concurrence, the judgment could not be finalized and, accordingly, the matter was referred to Principal Bench of CAT for placing it before Hon'ble Chairman to nominate a third Member for hearing on such points on which the difference of opinion arose between the Division Bench.
4. Vide order dated 05.01.2024, the Hon'ble Chairman was pleased to nominate the undersigned as third Member to hear this case.
5. I have heard learned counsel for the parties through video conferencing and perused the pleadings and the documents available on record. Page 2 of 22 3 OA No.348/2017
6. Before adverting to the point of controversy, due to which conflicting judgments were passed by both the Hon'ble Members, it is necessary to throw a glance on the facts of this case, which may be summarised as under:
6.1 The applicant joined at Kendriya Vidyalaya Sangathan, Regional Office Mumbai on 22.10.2007 as Stenographer Grade-III on direct recruitment.
6.2 Before joining in Kendriya Vidyalaya Sangathan, the applicant had applied in Staff Selection Commission to the post of Stenographer Grade D. The applicant after issuance of call letter, moved an application through proper channel for grant of No Objection Certificate vide his application dated 25.01.2008 and the NOC was issued by the respondent No.3 on 29.01.2008 (Annexure A-4).
6.3 The applicant appeared in the skill test scheduled on 17.02.2009 and after qualifying the same, he was issued with an offer of appointment on 18.02.2009 (Annexure A-5). The applicant accepted the offer of appointment and he tendered his technical resignation on 24.02.2009 (Annexure A-6).
After completion of all the formalities, the applicant was relieved by the respondent No.3 to join the office of respondent No.4 vide letter dated Page 3 of 22 4 OA No.348/2017 06.03.2009 (Annexure A-8). However, the respondent No.3 refused to transmit the Service Book of the applicant.
6.4 A query was raised by the respondent No.4 vide letter dated 12.05.2010 from the respondent No.3 as to whether the applicant had applied through proper channel and if his resignation was accepted as technical resignation or not. In response, the respondent No.3 sent a letter dated 22.06.2010 stating that technical resignation of the applicant was not accepted. 6.5 The applicant, thereafter, sent a letter for accepting his technical resignation, which was also forwarded by the respondent No.4 to respondent No.3 vide letter dated 20.09.2010 (Annexure A-11). In pursuance of the said letter, the respondent No.3 passed an order dated 25.11.2010 indicating that the applicant had informed about the SSC examination on 25.01.2008, i.e. after three months of his joining when he was called for skill test on 12.02.2008 for obtaining No Objection Certificate and since he had not applied through proper channel, his resignation cannot be treated as technical.
7. In the counter affidavit filed by the respondents Nos.2 and 3, it has been stated that the applicant intimated the office first time after a gap of Page 4 of 22 5 OA No.348/2017 three months on 25.01.2008 that he had applied in Staff Selection Commission to the post of Stenographer Grade D and he had not informed about this immediately after his joining in KVS.
7.1 Though the NOC was issued in favour of the applicant on 29.01.2008, but it clearly mentions that the applicant will be relieved as per the terms and conditions of Kendriya Vidyalaya Sangathan and after receiving the offer of appointment dated 18.02.2009, the applicant was relieved from the duty of KVS on 06.03.2009.
7.2 The applicant submitted a representation dated 07.09.2010 through the respondent No.4 for considering his resignation as technical resignation for the purpose of counting past service. But since the applicant has not applied through proper channel, his resignation cannot be treated as technical resignation as per the provisions contained in Office Memorandum dated 22.01.1993 issued by the DoP&T. 7.3 The respondent-KVS has also raised the objection regarding delay as the request of the applicant for accepting his technical resignation has already been rejected vide letter dated 25.11.2010, which the applicant has not annexed with his O.A. Page 5 of 22 6 OA No.348/2017
8. The applicant has also filed rejoinder to the reply filed by the respondents Nos.2 & 3 and apart from reiterating what has been averred in his Original Application, he states that the examination which was notified by the SSC was much prior to notification issued by the KVS and as soon as he joined the KVS, the applicant immediately applied for NOC when he was called to appear in the skill test.
9. The matter was heard at length by the Division Bench comprising of Hon'ble Mr. Devendra Chaudhry, Member (A) and Hon'ble Mr. Swarup Kumar Mishra, Member (J). Hon'ble Mr. Devendra Kumar Chaudhry, Member (A) after taking into consideration the rival contentions of learned counsel for both the parties and after placing reliance on the judgment passed by the Hon'ble Apex Court in the matter of Indian Railway Construction Co. Ltd. v Ajay Kumar, AIR 2003 SC 1843; Ashok Kumar Kalra vs Wing Cdr Surendra Agnihotri, SLP (C) No.23599 of 2018 decided on 19.11.2019; judgment of Hon'ble High Court Delhi in Writ Petition (C) 2447/2018 in the case of Jagdis Saran vs UOI, had directed the respondent- KVS to accept the technical resignation of the applicant, whereas Hon'ble Member (J) Mr. Swarup Kumar Mishra dismissed the Original Application Page 6 of 22 7 OA No.348/2017 on the ground that the doctrine of estoppels would stand on the way of the applicant as the applicant had accepted the relieving order on the term 'Resignation', without any demur or protest and has no locus standi to claim at such belated stage to treat his 'Resignation' as 'Technical Resignation'. It was also opined by the Hon'ble Judicial Member that there is an inordinate delay in filing the Original Application.
10. The reasons given by Hon'ble Member (Administrative) while allowing the Original Application are as under:-
"6. It is seen that the 1993 O.M. after referring to the 1955 Circular - 17.6.1955, has laid down the condition of grant of past benefit of service to a government servant provided the information with regards to the application to another appointment under Govt/Govt organisation is to be made on joining at the later department and only then the subsequent TR would be grantable. The 2016 Circular is also a reiteration of the same factual position. The defense of the applicant in the matter is that first of all he was not confirmed about any offer of appointment from the SSC whose Preliminary and Main examinations he had written. That there was confirmation only and only after he received the letter for appearing for the Skill Test vide letter dated 14/01/2008 and so immediately after he moved the application dated 25/01/2008 for grant of NOC for appearing for the Skill Test. That this request for NOC contains information with regards to the examination concerning the SSC. Therefore, the applicant had indeed informed the KVS in time as per the cited Circulars. That if there was any irregularity the same should have been pointed out when the NOC itself was granted vide respondent-KVS own letter dated 29/01/2008 but there was no such objection. Therefore, the applicant in good faith appeared for the test and qualified successfully for the same and after joining at the new place dutifully offered the TR. This line of argument of the applicant seems quite convincing inasmuch that surely the applicant had no way of knowing as to the fate of his application at the SSC qua the examinations and so any Page 7 of 22 8 OA No.348/2017 intimation before the receipt of the call letter dated 14/01/2008 would be without substance and well-nigh premature. Hence we are inclined to accept that the applicant did meet the condition of information to the KVS regarding the application etc to the SSC once he was confirmed with the fate of his application and had justifiable reasons to do so per the Circulars of 1993 and 2016. To deny the service continuity benefits for a lapse even if of three months would be too harsh a reading of the extant Circulars and against the spirit of interpreting them as laid down by the Hon Apex Court in the matter of Indian Railway Construction Co. Ltd. v Ajay Kumar, AIR 2003 SC 1843 in which it was held as under:
``...The authority in which a discretion is vested can be compelled to exercise that discretion, but not to exercise it in any particular manner. In general, a discretion must be exercised only by the authority to which it is committed. That authority must genuinely address itself to the matter before it; it must not act under the dictates of another body or disable itself from exercising a discretion in each individual case. In the purported exercise of its discretion, it must not do what it has been forbidden to do, nor must it do what it has not been authorized to do. It must act in good faith, must have regard to all relevant considerations and must not be influenced by irrelevant considerations, must not seek to promote purposes alien to the letter or to the spirit of the legislation that gives it power to act, and must not act arbitrarily or capriciously. These several principles can conveniently be grouped in two main categories: (i) failure to exercise a discretion, and (ii) excess or abuse of discretionary power. The two classes are not, however, mutually exclusive. Thus, discretion may be improperly fettered because irrelevant considerations have been taken into account, and where an authority hands over its discretion to another body it acts ultra vires ... "
6.1 What the respondent-KVS has misread in their over reach is that Circulars of the government have to be seen from the spirit in which they are complied with. The applicant has not withheld the information from the KVS ad infinitum and gone ahead and appeared for the Skill Test without informing the then employer department viz the KVS. He could have done so and the KVS would have been no wiser. But he did not do so and came clean on that. Yes, had he not done so then he would not have had even a fig leaf of cover to protect his bona fide with regards to complying related govt Circulars. Hence the interpretation of the respondent-KVS is bristling with unjustifiable thorns and hence needs to be cut down by the dispassionate sword of the law. Substantive justice demands so. It is not for nothing that Page 8 of 22 9 OA No.348/2017 the Hon Apex Court has held in the matter of Ashok Kumar Kalra vs Wing Cdr Surendra Agnihotri on 19 November, 2019 in a Bench comprising the very Hon Chief Justice himself being part of the four judge Bench ordained as under:
" . .7. At the outset, there is no gainsaying that the procedural justice is imbibed to provide further impetus to the substantive justice. It is this extended procedural fairness provided by the national courts, which adds to the legitimacy and commends support of general public.
17. As discussed by us in the preceding paragraphs, the whole purpose of the procedural law is to ensure that the legal process is made more effective in the process of delivering substantial justice. ......there cannot be a rigid and hypertechnical approach that the provision stipulates that the counterclaim has to be filed along with the written statement and beyond that, the Court has no power. The Courts, taking into consideration the reasons stated in support of the counter claim, should adopt a balanced approach keeping in mind the object behind the amendment and to subserve the ends of justice. There cannot be any hard and fast rule to say that in a particular time the counterclaim has to be filed, by curtailing the discretion conferred on the Courts....."
Thus, substantive justice demands that rules interpretation does not become so that procedure becomes the queen of justice instead of being the hand- maiden. In the event therefore, we are inclined to accept the plea of the applicant with regards to appropriate intimation to the respondent-KVS with regards to information per time provided to them regarding the previous employment. Thus, in light of this law laid down by the Hon Apex Court the facts of the case in hand are squarely covered and so we have no choice but to follow the view held by the Hon Apex Court. The citation by the ld counsel for the applicant concerning citation of Jagdis Saran vs UOI in a judgment of the Hon' High Court Delhi dated Writ Petition (C) 2447/2018 lend unqualified support to the exact case in hand. The relevant portion of the judgement reads as under:
"..1. The Petitioner has filed the present petition under Article 226 of the Constitution of India, impugning orders dated 22nd July, 2017 and 26th December, 2017 whereby the Respondents have rejected the representations of the Petitioner and declined to consider his resignation as a ,,technical resignation'. Consequently Petitioner"s past service of one year and three months in CISF at the rank of Sub-Inspector is not being considered for claiming benefits under CCS Rules (Pension) 1972.Page 9 of 22 10 OA No.348/2017
27. In the case of Sardar Amarjit Singh Kalra (dead) by L.Rs. v.Pramod Gupta (Smt.) (dead) by L.Rs 2003 (3) SCC 272 and The State of Punjab v. Shamlal Murari (1976) 1 SCC 719, the Apex Court has categorically held that laws of procedure are meant to regulate effectively, assist and aid the object of doing substantial and real justice.
29, It is not only important to understand the purport and the intent of the said OM"s but it is also imperative to give a harmonious interpretation to the provisions of the OM"s. The Government has, in fact, under the above- mentioned OM laid down guidelines/instructions regarding technical resignation, to give benefit to Government Servants of their past services. The benefit of the past service is subject to the conditions laid down therein. Clause 2.1.2 deals with the government servants who had applied for another government service, before joining a particular Department of the Government. In such cases, the benefit of past service is allowed, subject to fulfillment of the conditions mentioned therein.
32. In view of the above, since Respondent No.2 has processed the application and accepted the Petitioner"s resignation as a technical resignation, being fully aware of the Petitioner"s selection with BSF, there is no rationale in the Respondents decision to deny the Petitioner the benefits stemming from his past services.
33. Accordingly, the Writ Petition is allowed ..... "
The citation of the ld respondent counsel for the KVS, viz - Deepak Kumar vs District and Sessions Judge dated 17/ 11/2016 is also of Hon' High Court Delhi but is of 2016 and so the 2018 judgement of the same Hon' High Court would prevail. In light of all the above, the plea of the applicant is worthy of being upheld on this point.
6.2 As regards the respondent- KVS to insist that the applicant has no right to prefer an O.A. before the Tribunal as the related communication qua the impugned orders are between the KVS and the concerned offices of CAT / Ministry of Urban Development would be like stating that Thou shall be beaten and badgered but Thou shall have no right to protest against the injustice because Thou have not been told about the crime directly''. What kind of defense is this given the fact that firstly the applicant has taken the correct procedure of making his representations through the extant employer government department whether the Ministry of Urban Development or the CAT for placing his grievance before the KVS and then he is being lampooned for doing that. It is expected that the respondent - KVS swearing letter and spirit compliance of the government Circulars is Page 10 of 22 11 OA No.348/2017 also aware of the fact that any government servant has to make representations to any other govt department or any entity relating to government service through the concerned employer where he/she might be working and not doing so would make him/her liable for crossing the Conduct and related rules relating to service conditions while in govt. The KVS cannot blow hot and cold on the need for compliance of govt Circulars by methods of their own choosing. Article 14 of the Constitution guarantees equality before law. The KVS is also bound by the same as much as the applicant. Therefore, the plea that the applicant has no right to represent his case even before the Tribunal is a blatant misreading of the law, importantly the Fundamental Rights, what to talk of the government Circulars alluded to in the same breath. Therefore, this opposition of the respondent-KVS is trashed.
7. Thus, we find that the assertions of the respondent-KVS are not justifiable and there is merit in the prayer of the applicant. It is accordingly directed as under:
i. the order dated 03/08/2017 read with order Dated 25/ 11/2010 with order dated 22/06/2010 are quashed;
ii. the respondent -KVS are directed to accept the Technical Resignation of the applicant vide 20/09/2010 [Annexure A-11] as submitted to through the proper channel of respondent-4. iii. Above orders shall be complied within four weeks of receipt of certified copy of this order by respondent-3 of the Kendriya Vidyalaya Sanghthan."
12. To the contrary, the Hon'ble Member (Judicial) while dismissing the OA observed as under:
3. In Office Order dated 06.03.2009, the applicant was relieved to join in his new post in the following terms:
"Consequent upon the acceptance of "resignation" for the post of Junior Stenographer w.e.f. 06.03.2009 (AN) to join the post of Stenographer Grade D in the Ministry of Urban Development, Govt. of India, New Delhi, Shri Ramakant Maurya Junior Stenographer is hereby relieved from his duties in the Afternoon of 06.03.2009."Page 11 of 22 12 OA No.348/2017
(Emphasis added)
4. The applicant accepted the Relieving Order dated 06.03.2009 as aforesaid without any demur or protest and joined Ministry of Urban Development, Govt. of India, New Delhi on 09.03.2009. The later department also, in acceptance of the Office Order dated 06.03.2009, allowed the applicant to join. It is a well known principle that resignation ceases relationship of master and servant, as also, the employee concerned forfeits all his entitlement from the previous department. It is the case of the applicant that the Respondent No.4/MoUD had requested the Respondent No.3/KVS to sent the Service Book of the applicant, which was rejected on the ground that the applicant had resigned from the KVS. Applicant again sent application for technical resignation to Respondent No.3 through Respondent No.4 on 20.09.2010 (A/11) and Respondent No.3 rejected the application on 25.11.2010 on the similar ground. Respondent No.3 has also reiterated the reason of rejection vide letter dated 03.08.2017 on the further request from the applicant's side.
5. The applicant has filed this O.A. with prayer to quash the order dated 03.08.2017 read with order dated 25.11.2010 and order dated 22.06.2010 and to treat his resignation as technical resignation and grant all consequential benefits. The applicant rightly and consciously did not challenge the Office Order dated 06.03.2009 reliving him on acceptance of the resignation to join the new post, which he had accepted and, accordingly, his joining report was accepted by the MoUD. The applicant has sought quashing of the order dated 03.08.2017 wherein the ground of rejection for non-acceptance of the technical resignation was reiterated by Respondent No.3 vide order dated 25.11.2010.
6. In this connection, kindly apropos the need for a greater degree of circumspection of the present matter, which is necessary to consider whether the applicant was precluded from raising this point by applying the doctrine of waiver or acquiescence. The waiver of right can either be expressed or implied. It is important to understand the doctrine of waiver at this juncture. Express waiver is done in writing or giving a statement of waiver and implied waiver is judged based on the conduct or act of a person. Further, in the simplest sense, doctrine of stoppage precludes a person to negate anything to the contrary of what has been constituted as truth either by his own actions, by his deeds or by his representation or by the acts. By the very acceptance of the resignation, the applicant was relieved and joined at MoUD after which any effort to treat his resignation Page 12 of 22 13 OA No.348/2017 as technical resignation when it had already taken effect at such a distance place and time, is a matter writ large.
7. Another important aspect of the matter, which cannot be ignored by this Tribunal, is that the law of limitation provided under Section 21 of the ATs Act, 1985. As stated above, the original cause of action to the applicant, if at all, arose on 06.03.2009 with the relieving of the applicant on acceptance of resignation. The department of MoUD, knowing very well that it is a resignation and technical resignation had sought the Service Book of the applicant from Respondent No,3, which was declined. The applicant had again submitted technical resignation to Respondent No.3, which was forwarded by Respondent No.4 vide letter dated 20.09.2010 (A/11), which was rejected in letter dated 25.11.2010. But, the applicant did not challenge the same at that point of time also and, as it appears, the stand of rejection was reiterated in letter dated 03.08.2017 on furtherance of the request of CAT, Lucknow Bench and, thereafter, he has filed this O.A.
8. Further, it may be recorded that no right is accrued on an employee to insist the competent authority to accept his request of resignation or technical resignation as a matter of right. The authority concerned in the instant case has given the reason of non-acceptance of request of technical resignation submitted by the applicant in 2009, which the applicant failed to challenge at that appropriate time. It is also trite law that the Tribunal is not the Appellate Authority to sit over the decision of the competent authority. When the competent authority given the reason for non-acceptance of the technical resignation of the applicant this Tribunal lacks any competence to interfere on the same and direct the respondents to accept of resignation as technical resignation at such a distance time. The Hon'ble Apex Court time and again have cautioned the Tribunal not to close its eyes to the provision made in Section 21 of the ATs Act, even if it is not raised by the parties concerned. Further, it has been held that repeated unsuccessful representations not provided by law will not save the limitation provided under section 21 of the Administrative Tribunals Act. Sub-section (1) has prescribed a period of one year for making of the application and power of condonation of delay of a total period of six months has been vested under sub-section (3). Therefore, in every such case only when the appeal or representation provided by law is disposed of, cause of action shall first accrue and where such order is not made, on the expiry of six months from the date when the appeal was-filed or representation was made, the right to sue shall first accrue. Submission of just a memorial or representation to the Page 13 of 22 14 OA No.348/2017 authorities, who has considered and rejected the grievance shall not be taken into consideration in the matter of fixing limitation.
9. In view of the discussions made above, this O.A. appears to be without any merit and is liable to be dismissed."
13. Now, in view of the difference of opinion, the reference for 3rd Member opinion as per Section 26 of the ATs Act, framed by Hon'ble Judicial Member is as follows:
"(a) Whether after being relieved vide order dated 06.03.2009 from KVS on acceptance of "Resignation" and joining in the new department on 09.03.2009, the applicant has any locus standi to claim at such belated stage to treat his "Resignation" as "Technical Resignation"?
(b) Whether in such circumstances, doctrine of waiver/acquiescence/estoppels would stand on the way of the applicant and Tribunal decide the matter ignoring the above principel?
(c) Whether the Tribunal can close its eyes and routinely entertain the O.A. on the basis of the reply to the repeated representations ignoring the law of limitation [Board of Secondary Education of Assam Vs. Mohd. Sarifuz Zaman, (2003) 12 SCC 408, U.P. Jal Page 14 of 22 15 OA No.348/2017 Nigam Vs. Jaswant Singh, (2006) 11 SCC 464, New Delhi Municipal Council Vs. Pan Singh and Ors., (2007) 9 SCC 278]?
14. On the other side, the Hon'ble Member Administrative has framed the following issues:
"1. Does the ratio laid down by the Division Bench of Hon'ble High Court Delhi, in the identical matter of Jagdis Saran v/s Union of India - WP [C] No.2447/2018 - decided on 30 November, 2018 not apply in the case at hand?
2. Substantive justice predicates that per facts of a case at hand, procedure is only a hand maid of justice and not the other way round -
[Hon Apex Court judgement in the matter of Ashok Kumar Kalra v/s Wing Commander Surendra Agnihotri, SLP (C) NO. 23599 OF 2018 decided on 19/11/2019 in a four judge Bench presided by the Hon Chief Justice refers - Author: Hon N.V. Ramana CJI, Bench:
M M Shantanagoudar, A Rastogi, M M Shantanagoudhar, N Ramana]. Should this law laid down by the Hon Apex Court as also in a catena of judgements not be read in the instance case given a technical delay of only three months between the date of joining at Page 15 of 22 16 OA No.348/2017 the Kendriya Vidyalaya Sanghatan viz 22/10/2007 and the application to it vide date 25/01/2008 with regards to the SSC examination in which he earlier appeared and was required to inform KVS after joining its Regional Office in Mumbai?
3. Whether the ratio laid down in Board of Secondary Education of Assam v/s Mohd Sarifuz Zaman {(2003) 12 SCC 408} in which the facts concerned a student having taken his education in Government Boys Higher Secondary School passed the matriculation examination conducted by the Board of Secondary Education, Assam, in the year 1991 and later the B.Sc. examination in the year 1998 whereafter he, on October 12, 1999, moved an application to the Board complaining that his date of birth was wrongly mentioned in the school records as May 30, 1974, while his actual date of birth was August 16, 1975 - patent delay of more than eight years apply in the instant case, moreso, when the Hon Apex Court actually ordained in the judgement that in view of the very fair concession given by the learned counsel for the appellant Board, it is directed that this judgment shall not have any effect or bearing on the relief allowed to the two respondents herein by Page 16 of 22 17 OA No.348/2017 correcting the entries as to date of birth made in their respective certificates.
4. Whether the ratio laid down in the matter of UP Jal Nigam v/s Jaswant Singh, [2006] 11 SCC 464, the Hon Apex Court held as under:
"respondents are the employees of the Uttar Pradesh Jal Nigam ( hereinafter to be referred to as 'the Nigam') and they were retired on attaining the age of superannuation at 58 years. Some of them filed writ petitions in the High Court of Judicature at Allahabad challenging the retirement of the employees of the Nigam on attaining the age of 58 years whereas the State Government employees were allowed to continue up to the age of 60 years and therefore, they should also be allowed to continue up to the age of 60 years. The writ petitions filed before the High Court failed and against that Civil Appeal No.7840 of 2002 and batch of other appeals were filed before this Court. This Court disposed of the case of Harwindra Kumar along with other appeals and held that employees of Nigam are entitled to continue up to 60 years. This has been reported in (2005) 13 SCC 300.
It appears that during the pendency of the appeals and writ petitions before this Court and after disposal of the same by this Court, a spate of writ petitions followed in the High Court by the employees who had retired long back. Some of the petitions were filed by the employees who retired on attaining the age of 58 years long back. However, some were lucky to get interim orders allowing them to continue in service. Number of writ petitions were filed in the High Court in 2005 on various dates after the judgment in the case of Harwindra Kumar (supra) and some between 2002 and 2005. All those writ petitions were disposed of in the light of the judgment in the case of Harwindra Kumar (supra) and relief was given to them for continuing in service up to the age of 60 years. Hence, all these appeals arise against various orders passed by the High Court from time to time.
Therefore, in case at this belated stage if similar relief is to be given to the persons who have not approached the Court that will unnecessarily overburden the Nigam and the Nigam will completely collapse with the liability of payment to these persons in terms of two years' salary and increased benefit of pension and other consequential benefits. Therefore, Page 17 of 22 18 OA No.348/2017 we are not inclined to grant any relief to the persons who have approached the Court after their retirement. Only those persons who have filed the writ petitions when they were in service or who have obtained interim order for their retirement, those persons should be allowed to stand to benefit and not others."
5. Whether the ratio laid down apply as in the matter of New Delhi Municipal Council v/s Pan Singh and Ors., [2007] 9 SCC 278 wherein relief was sought after a purported delay of 27 years as the relevant extracts hereunder would apprise:
There is another aspect of the matter which cannot be lost sight of. Respondents herein filed a Writ Petition after 17 years. They did not agitate their grievances for a long time. They, as noticed herein, did not claim parity with the 17 workmen at the earliest possible opportunity. They did not impleaded themselves as parties even in the reference made by the State before the Industrial Tribunal. It is not their case that after 1982, those employees who were employed or who were recruited after the cut-off date have been granted the said scale of pay. After such a long time, therefore, the Writ Petitions could not have been entertained even if they are similarly situated. It is trite that the discretional jurisdiction may not be exercise in favour of thos who approach the Court after a long time. Delay and laches are relevant factors for exercise of equitable jurisdiction. See Govt. of W.B. v. Tarun K. Roy And Others, [(2004) 1 SCC 347], Chairman U.P. Jal Nigam & Anr. v. Jaswant Singh And Anr., [2006 (12) SCALE 347] and Karnatak Power Corpn. Ltd. through its Chairman & Managing Director and Another v. K. Thangappan and Another [(2006) 4 SCC 322] Although, there is no period of limitation provided for filing a Writ Petition under Article 226 of the Constitution of India, ordinarily, Writ Petition should be filed within a reasonable time.Page 18 of 22 19 OA No.348/2017
6. Whether given the facts and related law points of citations at Sl-3 to 5 above, would their ratio apply to the case at hand in light of the law laid down by the Hon Apex Court in the matter of Ramesh Chand Daga v. Rameshwari Bai [(2005) 4 SCC 772], wherein the Hon Apex Court held"
"A judgment, as is well known, is not to be read as a statute. A judgment, it is trite, must be construed upon reading the same as a whole. For the said purpose the attendant circumstances may also be taken into consideration."
Also in the matter of Zee Telefilms Ltd. & Another v. Union of India & Others (2005) 4 SCC 649] In P.S. Sathappan (Dead) By Lrs. V. Andhra Bank Ltd. & Others [(2004) 11 SCC 672], wherein the Hon Apex Court held:
"The judgment of this Court must be read as a whole and the ratio therefrom is required to be culled out from reading the same in its entirety and not only a part of it."
15. Section 26 of Administrative Tribunals Act, 1985 provides that if the Members are equally divided and a reference is made to the Chairman, the Chairman shall either hear the point on which the Members have differed, either himself or refer the case to any other Member or Members to hear on Page 19 of 22 20 OA No.348/2017 such points. In view of the above, I am limiting myself to take a decision on the aforesaid points formulated by the Hon'ble Members.
16. On perusal of the record, it is clear that prior to his joining in KVS as Junior Stenographer, Gr. III, the applicant had also submitted his candidature for the post of Stenographer as per the notification issued by the SSC and has appeared in the Preliminary Examination before joining the KVS. The record further makes it clear that the applicant had informed the KVS on 25.01.2008, i.e. after three months from the date of his joining as the applicant had joined the KVS on 22.10.2007. The claim of the applicant for counting his services rendered in the KVS is purely based on the NOC given by the KVS on 29.01.2008 to appear in the skill test, but it does not confer any right upon him as the Office Memorandum dated 22.01.1993 explicitly says that the benefit of past service is admissible to Government servants, who had applied for post in same or other Department before joining Government service subject to the condition that the Government servant had intimated the details of such application immediately on his joining.
17. During the course of argument, learned counsel for the applicant placed reliance on a judgment of Hon'ble High Court of Delhi at New Delhi in Page 20 of 22 21 OA No.348/2017 Jagdis Saran (supra) to say that the present matter is fully covered by the said judgment. On the other hand, learned counsel for the respondents also relied upon the judgment of the very same Hon'ble High Court of Delhi in Deepak Kumar vs. District and Sessions Judge, 2016 SCC OnLine Del. I find that the facts of the present case are not exactly similar to the case of Jagdis Saran (supra) as in that case the petitioner's request for technical resignation was processed and indeed accepted by the respondents as technical resignation, whereas in the instant case, the Office Order dated 06.03.2009 issued by the KVS while relieving him to join in his new post clearly mentions the term "resignation" and not "technical resignation", which the applicant has duly accepted without any protest.
18. I also find that the impugned communication dated 03.08.2017 (Annexure A-1), whereby the applicant's request for accepting his technical resignation has been turned down by the KVS is nothing but repetition to the communication dated 25.11.2010 vide which the applicant has already been apprised about the same. But the applicant did not challenge the rejection order at that point of time and has filed the present Original Application almost after a gap of seven years. Hence, the provisions of Section 21 of the Administrative Tribunals Act, 1985 cannot be brushed aside and the instant Page 21 of 22 22 OA No.348/2017 Original Application is clearly barred by limitation period as provided under the Act.
19. Considering the overall facts and circumstances of the case, I am of the opinion that the view taken by Hon'ble Member (Judicial) Shri Swarup Kumar Mishra appears more appropriate and justified. On the basis of the above discussion, I fully concur with the view taken by Hon'ble Member (J).
20. Accordingly, this Original Application is dismissed.
Third Member Reference decided accordingly.
(Akhil Kumar Srivastava) Judicial Member Anupam/-
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