M.R. Mittal vs Union of India (UOI) and Others

V.M. Sahai, J.—We have heard Mr M.S. Trivedi, learned Counsel for the Petitioner. In this petition order dated 30.11.2010 passed in O.A. No. 303 of 2009 with M.A. No. 90 of 2010 passed by the Central Administrative Tribunal, Ahmedabad Bench, Ahmedabad for short, "the Tribunal") has been challenged by which the OA has been rejected by the Tribunal.

Learned Counsel for the Petitioner has urged that once the Tribunal came to the conclusion that the O.A. was not maintainable, it was not required to dismiss the O.A. on merits. On a question put by us to Mr Trivedi whether the Tribunal had jurisdiction or not, he answered in affirmative that the Tribunal had jurisdiction. Therefore, we have proceeded to examine the matter on merits and we have heard Mr Trivedi, learned Counsel for the Petitioner on merits of the petition.

The facts of the case has been given in detail by the Tribunal by order dated 24.5.1993 and we need not go into those facts. The Petitioner was awarded penalty of reduction of pay by two stages for two years without cumulative effect. The Petitioner gave representation dated 2.9.1993 and thereafter he attained the age of superannuation on 31.5.1995. His representation was not decided. After more than 11 years the Petitioner made fresh representation in the year 2006 which was rejected by the authorities. The Tribunal, by order dated 6.10.2008 rejecting his representation which was also endorsed vide memorandum dated 31.10.2008 recorded its findings as under:

Furthermore, as reflected from the impugned order, the applicant had not raised such grievance by making any representation prior to December, 2006. First representation highlighting grievance regarding confirmation in the Grade of EOS was preferred in December, 2006 i.e. about 12 years after his retirement. It is well settled law that the settled service position cannot be unsettled and disturbed after a long time. The applicant himself chose not to seek ventilation of his grievance either during the period when he was in service or immediately thereafter. Even after retirement he kept quite more than a decade. No exception can be taken to the view taken by the Respondents as projected vide impugned communication dated 6.10.2008 and, which was endorsed vide memorandum dated 31.10.2008.

It has been held by a three Judges'' Bench of the Apex Court in Bharat Sanchar Nigam Limited v. Ghanshyam Dass (2) and Ors. in (2011) 4 SCC 374 in paras 26 to 28 as under:

On the other hand, where only the affected parties approach the court and relief is given to those parties, the fence-sitters who did not approach the court cannot claim that such relief should have been extended to them thereby upsetting or interfering with the rights which had accrued to others.

In Jagdish Lal v. State of Haryana, the applicants who were general candidates belatedly challenged the promotion of Scheduled Caste and Scheduled Tribe candidates on the basis of the decisions in Ajit Singh Januja v. State of Punjab, Union of India v. Virpal Singh Chauhan and R.K. Sabharwal v. State of Punjab and this Court refused to grant the relief saying: (Jagdish Lal case, SCC pp 562-63 para 18)

...this Court has repeatedly held, the delay disentitles the party to the discretionary relief under Article 226 or Article 32 of the Constitution. It is not necessary to reiterate all the catena of precedents in his behalf. Suffice it to state that the Appellants kept sleeping over their rights for long and elected to wake up when they had the impetus from Virpal Chauhan and Ajit Singh ratios. But Virpal Chauhan and Sabharwal cases, kept at rest the promotion already made by that date, and declared them as valid; they were limited to the question of future promotions given by applying the rule of reservation to all the persons prior to the date of judgment in Sabharwal case which required to be examined in the light of the law laid in Sabharwal case. Thus earlier promotions cannot be reopened. Only those cases arising after that date would be examined in the light of the law laid down in Sabharwal case and Virpal Chauhan case and equally Ajit Singh case. If the candidate has already been further promoted to the higher echelons of service, his seniority is not open to be reviewed. In A.B.S. Karamchari Sangh case, a Bench of two Judges to which two of us, K. Ramaswamy and G.B. Pattanaik, JJ. were members, had reiterated the above view and it was also held that all the prior promotions are not open to judicial review. In Chander Pal v. State of Haryana a Bench of two Judges consisting of SC Agrawal and G.T. Nanavati, JJ. considered the effect of Virpal Chauhan, Ajit Singh, Sabharwal and A.B.S. Karamchari Sanch cases and held that the seniority of those Respondents who had already retired or had been promoted to higher posts could not be disturbed. The seniority of the Petitioner therein and the Respondents who were holding the post in the same level or in the same cadre would be adjusted keeping in view the ratio in Virpal Chauhan and Ajit Singh; but promotion, if any, had been given to any of them during the pendency of this writ petition was directed not to be disturbed.

Since the Respondents preferred to sleep over their rights and approached the Central Administrative Tribunal only in 1997, they cannot get the benefit of the order dated 7.7.1992 of the Tribunal in Santosh Kapoor case and will only be entitled to the benefit of the Circular dated 13.12.1995 which was in force in 1997.

Similar view has been taken in Shiba Shankar Mohapatra and Others Vs. State of Orissa and Others, as under:

It is settled law that fence-sitters cannot be allowed to raise the dispute or challenge the validity of the order after its conclusion. No party can claim the relief as a matter of right as one of the grounds for refusing relief is that the person approaching the court is guilty or delay and the laches. The court exercising public law jurisdiction does not encourage agitation or stale claims where the right of third parties crystallises in the interregnum. (Vide aflatoon v. Ltd. Governor of Delhi, State of Mysore v. K Kangan, Municipal Council, Ahmednagar v. Shah Hyder Beig, Inder Jit Gupta v. Union of India, Shiv Dass v. Union of India, APSRTC v. N. Satyanarayana and City and Industrial Development Corporation v. Dosu Aardeshir Bhinwandiwala)

In State of Orissa and Another Vs. Mamata Mohanty, the Apex Court, in paras 52 to 54 held as under:

In the very first appeal, the Respondent filed writ petition on 11.11.2005 claiming relief under the Notification dated 6.10.1989 w.e.f 1.1.1986 without furnishing any explanation for such inordinate delay and on laches on her part. Section 3 of the Limitation Act, 1963, makes it obligatory on the part of the court to dismiss the suit or appeal if made after the prescribed period even though the limitation is not set up as a defense and there is no plea to raise the issue of limitation even at the appellate stage because in some of the cases it may go to the root of the matter (see Lachhmi Sewak Sahu v. Ram Rup Sahu and Kamlesh Babu v. Lajpat Rai Sharma)

Needless to say that the Limitation Act, 1963 does not apply in writ jurisdiction. However, the doctrine of limitation being based on public policy, the principles enshrined therein are applicable and writ petitions are dismissed at initial stage on the ground of delay and laches. In a case like at hand, getting a particular pay scale may give rise to a recurring cause of action. In such an eventuality, the petition may be dismissed on the ground of delay and laches and the court may refuse to grant relief for the initial period in case of an unexplained and inordinate delay. In the instant case, the Respondent claimed the relief from 1.1.1986 by filing a petition on 11.11.2005 but the High Court for some unexplained reason granted the relief w.e.f. 1.6.1984, though even the Notification dated 6.10.1989 makes it applicable w.e.f. 1.1.1986.

This Court has consistently rejected the contention that a petition should be considered ignoring the delay and laches in case the Petitioner approaches the Court after coming to know of the relief granted by the Court in a similar case as the same cannot furnish a proper explanation for delay and laches. A litigant cannot wake up from deep slumber and claim impetus from the judgment in cases where some diligent person had approached the Court within a reasonable time. (See Rup Diamonds v. Union of India, State of Karnataka v. S.M. Kotrayya and Jagdish Lal v. State of Haryana).

In Union of India v. A. Durairaj AIR 2011 SCW 873, the Apex Court held in paras 13 and 14 as under:

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 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.

This is a typical case where an employee gives a representation in a matter which is stale and old, after two decades and gets a direction of the Tribunal to consider and dispose of the same; and thereafter again approaches the Tribunal alleging that there is delay in disposal of the representation (or if there is an order rejecting the representation, then file an application to challenge the rejection, treating the date of rejection of the representation as the date of cause of action). This Court had occasion to examine such situations in Union of India (UOI) and Others Vs. M.K. Sarkar, and held as follows (para 9 of AIR SCW)

The order of the Tribunal allowing the first application of Respondent without examining the merits, and directing Appellants to consider his representation has given rise to unnecessary litigation and avoidable complications. xxxx

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.

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 ''stale'' issue or dispute, the court/Tribunal should put an end to the matter and should not direct consideration or reconsideration. If the court/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.

We are therefore of the view that the High Court ought to have affirmed the order of the Tribunal dismissing the application of the Respondent for retrospective promotion from 1976, on the ground of delay and laches.

In view of the aforesaid decisions of the Apex Court, it is not open to the Petitioner to raise grievance which could have been raised by him in the year 1994-95 or in 1996. After a delay of 12 years, the delay in filing M.A. No. 90/2010 in approaching the Tribunal has rightly not been condoned by the Tribunal.

In the result, this petition fails and is accordingly dismissed.