KASHI RAM VERMA vs CENTRAL ADMINISTRATIVE TRIBUNAL LKO BENCH LKO & ORS

Heard learned counsel for parties and perused the record.

This writ petition under Article 226 of Constitution of India has arisen assailing the judgment dated 23.04.2015 passed by Central Administrative Tribunal, Lucknow Bench, Lucknow (hereinafter referred to as "Tribunal") dismissing petitioner''s Original Application No. 393 of 2009.

Petitioner was appointed as Geophysical Workshop Assistant on 10.05.1982. Certain posts in the cadre of Junior Technical Assistant fell vacant in 1984, 25 per cent whereof, as per Recruitment Rules, were to be filled in by direct recruitment and 75 per cent by promotion from Geophysical Workshop Assistant. Eligibility condition, prescribed for the purpose of promotion, was five years regular service in the feeder cadre which admittedly petitioner did not fulfill when vacancies occurred, i.e., in 1984 or when process for filling up the said vacancies was initiated.

Counsel for petitioner submitted that there were five vacancies in 1984 on the post of Junior Technical Assistant but bifurcation of the same was illegally done inasmuch one vacancy should have been filled up by direct recruitment and rest four by promotion and respondents wrongfully calculated the last two vacancies to be filled in by direct recruitment.

It is admitted position that even till 26.11.1986 when the two vacancies of direct recruitment were kept in abeyance, petitioner was not eligible and hence was not under the zone of consideration to be considered for promotion against the said vacancies occurred in 1984 or earlier thereto.

Moreover, he did not challenge the said bifurcation till 2008 in any Court of law. For the first time, Original Application 359 of 2008 was filed seeking mandamus that he should be promoted as Junior Technical Assistant with effect from 10.05.1987, i.e., when he completed five years regular service with all consequential benefits and the said application was disposed of by means of order dated 12.01.2009 directing authority concerned to decide petitioner''s pending representation in regard to promotion to the post of Junior Technical Assistant and pass a reasoned order as per Rules. Petitioner''s representation was rejected, hence he preferred another Original Application No. 393 of 2009, which has been dismissed by means of impugned order. Hence this writ petition.

Broadly Tribunal has proceeded on two premises; firstly, Tribunal has found that petitioner did not challenge bifurcation which occurred in 1984 for almost more than two decades and is guilty of laches. Secondly, he was not within the zone of consideration at the relevant time and hence had no locus standi to challenge the same at all.

Learned counsel for petitioner submitted that once breach of Rules in regard to bifurcation was evident from record, the same could have been challenged at any point of time and further that order dated 12.01.2009 passed by Tribunal in Original Application No. 359 of 2008 directing authority to consider and decide petitioner''s representation and thereafter order passed by authority concerned, on the representation of petitioner, would cover up the period of laches.

The submissions are thoroughly misconceived and in our view have to be rejected.

In C. Jacob Vs. Director of Geology and Mining and another 2008 (10) SCC 115, a two-Judge Bench was dealing with the concept of representations and the directions issued by the court or tribunal to consider the representations and the challenge to the said rejection thereafter. In that context, the court has expressed thus:- "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." (emphasis added)

In Union of India and others Vs. M.K. Sarkar 2010 (2) SCC 59, Court after referring to C. Jacob (supra) has ruled, 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 cannot 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.

From the aforesaid authorities it is clear as crystal that even if the court or tribunal directs for consideration of representations relating to a stale claim or dead grievance, it does not give rise to a fresh cause of action. The dead cause of action cannot rise like a phoenix. Similarly, a mere submission of representation to the competent authority does not arrest time. In Karnataka Power Corpn. Ltd. through its Chairman & Managing Director v. K. Thangappan and another, (2006) 4 SCC 322, the Court took note of the factual position and laid down that when nearly for two decades the respondent- workmen therein had remained silent mere making of representations could not justify a belated approach.

In K.V. Rajalakshmiah Setty Vs. State of Mysore, AIR 1967 SC 993, it was said that representation would not be adequate explanation to take care of delay. Same view was reiterated in State of Orissa Vs. Pyari Mohan Samantaray and others AIR 1976 SC 2617 and State of Orissa and others Vs. Arun Kumar Patnaik and others 1976(3) SCC 579 and the said view has also been followed in Shiv Dass Vs. Union of India and others AIR 2007 SC 1330. The aforesaid authorities of the Apex Court has also been followed by this Court in Chunvad Pandey Vs. State of U.P. and others, 2008(4) ESC 2423. This has been followed in Virender Chaudhary Vs. Bharat Petroleum Corporation & Ors., 2009(1) SCC 297. In S.S. Balu and another Vs. State of Kerala and others, 2009(2) SCC 479 the Apex Court held that it is well settled principle of law that delay defeats equity.

So far as eligibility is concerned, it is admitted position that petitioner became eligible to be promoted on the post of Junior Technical Assistant on 10.05.1987 and therefore, there was no occasion to consider him for promotion against the vacancies occurred prior to 10.05.1987.

Moreover, no person has indefeasible right of promotion and it is only when vacancies are available and employer decides to fill in the vacancies, an incumbent has a right, that too, only to be considered for promotion, if he otherwise comes within the zone of consideration and fulfills criteria for promotion.

Apex Court in State of Haryana Vs. Subash Chander Marwaha, AIR 1973 SC 2216 has held that it is the privilege of employer to keep a post vacant. In the present case the mere fact that petitioner has completed eligibility requirement or there existed would not entitle him to claim promotion as a matter of right. (See also: Jitendra Kumar and others Vs. State of Punjab and others (1985) 1 SCC 122 and Shankarsan Dash Vs. Union of India 1991 (3) SCC 47).

We, therefore, find no error apparent on the face of record in the order impugned in this writ petition warranting interference.

The writ petition lacks merits. Dismissed.

Interim order, if any, stands vacated.