AI Structured Summary
Not yet generated for this judgment
Judgment
D.S. Mahra, Member J
The applicant has filed MA No. 686/2022 seeking condonation of delay of 13 years in filing the OA. The fact of the case in brief as stated by the learned counsel for the applicant is that the applicant was selected as Constable in J&K Executive Police, Kashmir Province for District Baramullah vide No. 93 dated 28.2.2009. The applicant along with the other selected candidates were directed by the respondents to report to respondent No.3 along with all original testimonials/additional qualification/professional certificates and other relevant materials within 15 days from the date of publication of selection list. The applicant in pursuance of the said direction appeared before the respondent No.3 along with all requisite documents, but no formal appointment order was issued in his favour as the respondents have wrongly mentioned the name, parentage and address of the applicant in the selection list.
Learned counsel for the applicant further submits that from the date of selection of the applicant, the respondents took lot of time in verifying the documents of the applicant while issuing formal appointment order in his favour thereby same was verified and found correct. Consequently appointment order was issued by the respondents vide Govt. order No. 49 of 2010 dated 3.2.2010 whereby applicant was appointed as Constable against the advertised post. Learned counsel further submits that the applicant got selected as Constable in the year 2009 and was due for appointment from the date of his selection and the respondents are duty bound to give effect to the service of the applicant from the date of his selection. It is further submitted that the respondents consumed one year in correcting their own error and in passing appointment order in favour of the applicant which resulted serious prejudice to the applicant and his services will be reckoned from the year 2010 instead of year 2009 when the candidates who were selected along with the applicant joined their services. So the applicant will not be able to get pension under Old Pension Scheme and he will be deprived of subsequent service benefits.
Learned counsel for the applicant has given the reason of turbulent situation in the valley in the year 2019 behind the delay caused in filing the OA. It is further submitted that the applicant being a Policeman was continuously performing his duties to maintain law and order problem and hence he could not approach the lawyer in time and when the situation in the valley became normal, he continued to submit various applications before the respondents.
Mr.Waseem Gul, learned counsel for the respondents submits that the MA deserves to be dismissed in absence of any good and sufficient reasons for the delay as the applicant has failed to give any satisfactory explanations for the delay in approaching this Tribunal after 12 years. Each day’s delay has to be explained. He further submits that even otherwise also the applicant has no right to challenge the impugned appointment order as the same has been issued strictly in accordance with rules, without violating any right of the applicant and presently no cause of action has occurred for the applicant to interfere with the said order and the same may be dismissed.
Heard learned counsels for both the parties and perused the reply filed by the respondents for condonation of delay.
Section 21 of the Administrative Tribunals Act, 1985 deals with limitation, which, for the sake of convenience, is reproduced below:
“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.”
From the perusal of the aforesaid section, it is abundantly clear that the limitation has been prescribed for filing O.A. before this Tribunal is within one year from the date of cause of action. The same can be extended by another six months from the date of filing of appeal if the same is not decided. It has further been provided that if the application is not filed within time as stipulated in Section 21 of the A.T. Act, the applicant has to move a Misc.Application for seeking Condonation of delay by explaining each day in not filing the Original Application within the limitation. Section 21 of the Administrative Tribunal Act 1985 came up for consideration before the Hon’ble Apex Court in a catena of cases including the following cases:-
(a) S.S. Rathore v. State of M.P. (AIR 1990 SC 10);
(b) Administrator of Union Territory of Daman and Diu and others Vs. R.D. Valand – 1995 Supp(4) SC.C. 593;
(c) State of Karnataka & Ors. Vs. S.M.Kotrayya & Ors.(1996 (6) S.L.R. S.C. Page 664);
(d) P.K.Ramachandran versus State of Kerala & Another (J.T. 1997(8) S.C. 189);
(e) Karnataka Power Corporation Limited through its CMD & Another vs. K.Thangappan & Another (2006(4) S.C.C. 322);
(f) U.P.Jal Nigam vs. Jaswant Singh & Ors. (2007(1) S.C.T.225;
(g) C. Jacob vs. Director Geology & Mining (2008 (10) S.C.C 115) ;
(h) Union of India & Ors. v. M.K. Sarkar reported in (2010)2 Supreme Court Cases 59; and
(i) Union of India & Ors. Versus A.Duairaj (J.T. 2011(3) S.C. Page 254).
In S.S. Rathore v. State of M.P. (supra) the Hon’ble Supreme Court while dealing with the issue of delay and laches held as follows:
“We are satisfied that to meet the situation as has arisen here, it would be appropriate to hold that the cause of action first arises when the remedies available to the public servant under the relevant service Rules as to redressal are disposed of.
The question for consideration is whether it should be disposal of one appeal or 'the entire hierarchy of reliefs as may have been provided. Statutory guidance is available from the provisions of sub-ss. (2) and (3) of s. 20 of the Administrative Tribunals Act. There, it has been laid down:
"20(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 grievances; or
(b) where no final order has been made by tee 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 appli- cant by way of submission of a memorial to the President or 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."
We are of the view that the cause of action shall be taken to arise not from the date of the original adverse order but on the date when the order of the higher authority where a statutory remedy is provided entertaining the appeal or representation is made and where no such order is made, though the remedy has been availed of, a six months' period from the date of preferring of the appeal or making of the representation shall be taken to be the date when cause of action shall be taken to have first arisen. We, however, make it clear that this principle may not be applicable when the remedy availed of has not been provided by law. Repeated unsuccessful representations not provided by law are not governed by this principle. It is appropriate to notice the provision regarding limitation under s. 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). The Civil Court's jurisdiction has been taken away by the Act and, therefore, as far as Government servants are concerned, Article' 58 may not be invocable in view of the special limitation. Yet, suits outside the purview of the Administrative Tribunals Act shall continue to be governed by Article 58.
It is proper that the position in such cases should be uniform. 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 Head of the establishment shall not be taken into consideration in the matter of fixing limitation.
In the case of Administrator of Union Territory of Daman and Diu and others (supra) the Hon’ble Supreme Court has held as under: -
“.......... The Tribunal fell into patent error in brushing aside the question of limitation by observing that the respondent has been making representation from time to time and as such the limitation would not come in his way. “
In the case S M Kotrayya (supra), the Hon’ble Apex Court has held as under: -
“8. 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 grievances 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.”
In the case of P.K. Ramachandran (supra), the Hon’ble Supreme Court has held that the law of limitation may harshly affect a particular party but it has to be applied with all its rigor when the statute so prescribes and the Courts have no power to extend the period of limitation on equitable grounds. The discretion exercised by the High Court was, thus, neither proper nor judicious. The order condoning the delay, therefore, cannot be sustained.
Similarly in the case of Karnataka Power Corporation Limited (supra), the Hon’ble Supreme Court has held that mere making of representations cannot justify delay.
In the case of U.P.Jal Nigam (supra), the Hon’ble Supreme Court has held that “the litigant who is guilty of long delay and latches is deemed to have acquiesced or waived of his claim or right. Those who initiated action in time got the relief from the court. Similar orders cannot be claimed ignoring the long unexplained delay by others also who were not vigilant enough. If such claims result into some financial burden upon the establishment, it will or may not be possible for the employer to meet with such additional liability after a long time.”
The Apex Court in the case of C. Jacob (supra) in para 10 has held that:
“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 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.”
It would be relevant to refer to the judgment of Hon’ble Supreme Court in the case of U.O.I. Vs. M.K. Sarkar (supra), wherein it has again been reiterated that limitation has to be counted from the date of original cause of action and stale matters should not be entertained. The relevant observation of the Hon’ble Apex Court reads as under:
“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. A Court or Tribunal, before directing `consideration' of a claim or representation should examine whether the claim or representation is with reference to a `live' issue or whether it is with reference to a `dead' or `stale' issue. If it is with reference to a `dead' or `state' issue or dispute, the court/Tribunal should put an end to the matter and should not direct consideration or reconsideration. If the court or Tribunal deciding to direct 'consideration' without itself examining of the merits, it should make it clear that such consideration will be without prejudice to any contention relating to limitation or delay and laches. Even if the court does not expressly say so, that would be the legal position and effect.”
The Hon’ble Apex Court in the case of Union of India vs. A. Durairaj, JT 2011(3) SC 254, has held as follows:
"It is well settled that anyone who feels aggrieved by non-promotion or non-selection should approach the Court/Tribunal as early as possible. If a person having a justifiable grievance allows the matter to become stale and approaches the Court/Tribunal belatedly, grant of any relief on the basis of such belated application would lead to serious administrative complications to the employer and difficulties to the other employees as it will upset the settled position regarding seniority and promotions which has been granted to others over the years. Further, where a claim is raised beyond a decade or two from the date of cause of action, the employer will be at a great disadvantage to effectively contest or counter the claim, as the officers who dealt with the matter and/or the relevant records relating to the matter may no longer be available. Therefore, even if no period of limitation is prescribed, any belated challenge would be liable to be dismissed on the ground of delay and laches."
It is clear from the above that the applicant must give a convincing explanation as to why legal recourse was not invoked by him for such a long period. The only explanation given by the applicant in his condonation of delay application is that after the Article 370 was abrogated in the State, the situation in the region was not normal and being a police personnel the applicant was deputed in various places for controlling the law and order situation. This was the situation after 2019 when Article 370 was abrogated but he has not explained the delay from 2010 to 2019 for 09 years for not approaching the appropriate forum for relief.
In view of the legal position as explained above, the applicant has failed to explain the inordinate delay of 12 years in approaching this Tribunal. We find no reason to entertain the instant MA for condonation of delay. The plea of applicant that the matter is of recurring cause and was continuing cannot be accepted and condonation of delay application is rejected being not maintainable in view of Sections 20 and 21 of the Administrative Tribunals Act, 1985. Accordingly, the MA No.686/2022 is dismissed.
The accompanying original application stands dismissed for being barred by limitation.
MA No.686/2022 along with OA No. 636/2022 accordingly stands dismissed.