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Judgment
Nita Chowdhury, J
By filing this OA, the applicant is seeking the following reliefs:-
"a) Set aside Office Memorandum dated 8/13.07.2016 bearing No. 18 (68)/88/918 and Office Memorandum dated 28/30.09.2016 No. A/p 16(86)/88/1896 issued by the Administrative Officer for the Director of National Institute of Malaria Research (Indian Council of Medical Research) and direct that the services of the petitioner be regularized with retrospective effect from the date of this Original appointment on 16.8.1988 and grant consequential reliefs including proper pay scales promotions, and all other benefits which have been given to similarly placed employees consequent upon the judgment of the Hon'ble High Court Delhi in Writ Petition (C) No.1554/2003 Malaria research Centre Employees Welfare Association & Anr Vs Malaria Research Centre Thru, Its Director & Ors. b) Allow cost of these proceedings. c) Grant any other relief which this Hon'ble Tribunal may deem fit and proper in the facts and circumstances of the case."
The grievance of the applicant, who stood retired on 21.8.2012, is that discriminatory treatment is meted out in his case as his representations dated 11.3.2016, 18.04.2016 and 15.9.2016 seeking extension of benefit of the judgment passed by Hon'ble High Court of Delhi in Writ Petition (Civil) No.1554/2003 dated 20.3.2013 have been rejected illegally by the respondents vide impugned order dated 8/13.7.2016 and 28/30.09.2016 and therefore, he has file this OA seeking the relief as quoted above.
The contents of impugned Order dated 8/13.07.2016 are reproduced as under:-
"This is with reference to your applications dated 11/3/2016 and 18/04/2016 regarding regularization of service. In this connection it is stated that in pursuance of order dated 20/3/2013 passed by the Hon'ble High Court of Delhi in the matter of Writ Petition (Civil) No.1554/2003 (Malaria Research Centre Employee Welfare Association & Others v/s UOI & others), 118 employees of IDVC project have been regularized who were members of MRC Employees Association. As you are not a member of the Association, your case has not been considered for regularization."
Another representation made by the applicant was also rejected on the same very ground vide impugned order dated 28/30.09.2016.
Counsel for the applicant submitted that representations of the applicant have solely been rejected on the ground that he was not a member of the Association, which is violative of Articles 14, 16 and 21 of the Constitution of India as similarly situated employees are also entitled to the same legal rights and service benefits and only because the applicant did not become a member of the association, he cannot be discriminated.
Counsel for the respondents submitted that there is no illegality in the stand of the respondents as first of all, in the judgment passed by the Hon'ble Delhi High Court in the said Writ Petition, it is specifically observed that "we adopt the reasoning of the Division Bench of the High Court of Judicature at Madras and thus dispose of the instant writ petition declaring that the law declared by the Madras High Court, which it actually does, shall govern all Project employees who are the members of the first petitioner." and applicant admitted in this OA that at no point of time he has chosen to become the member of the said Association, which had filed the said Writ Petition before the Hon'ble Delhi High Court and the High Court restricted the adoption of the reasoning of the Division Bench of the Hon'ble High Court of Madras in WP(C) No.2260/2011, which was upheld by the Hon'ble Supreme Court, qua the members of the first petitioner in the Writ Petition, i.e., Malaria Research Centre Employees' Welfare Association and that the present OA is hopelessly barred by limitation as the applicant stood retired on 21.8.2012 and before the date of retirement at any point of time, he has neither taken any step to become a member of the said Association nor has taken any steps for raised his grievance and now after the decision of the Hon'ble Delhi High Court in the said Writ Petition decided on 30.3.2013 the applicant has filed this OA on 6.4.2017, i.e., after expiry of four years from the date of the said Order of the Hon'ble Delhi High Court. Counsel further submitted that the Hon'ble High Court of Delhi in Writ Petition (Civil) No. 10489/2015 on 18.05.2016, titled Hariom, Head Constable Vs. The Commissioner of Police and Ors, wherein the Hon'ble High Court held that the applicant in that case was a fence-sitters had approached the Court after a long delay and hence he is not entitled to any relief. Relevant para 11 of the said judgment of the Hon'ble High Court is extracted below:-
"11. The petitioner relies on State of Uttar Pradesh and Ors. Vs. Arvind Kumar Srivastava and Ors. (2015) 1 SCC 347. Having examined the factual matrix, we observe that the petitioner had failed to act at the relevant time and had woken up after a long delay, whereas his two counterparts in the Delhi Police had approached the Court at an earlier point of time and after a long battle had succeeded in August, 2013. The petitioner should not be given the benefit of the judgment as he was a fence sitter. In the meantime, in 2012, another examination was held, and vacancies were filled. We have already observed that the petitioner cannot claim any right on the vacancies or new posts of Sub Inspectors (Exe.) created post the vacancies, included in the Phase II, 2009 examination. There are other pertinent reasons as to why the bar of limitation would be attracted. As per the list available at page No.138 of the paper book, there were at least fifteen other departmental candidates, who had secured marks between 155 and 163 i.e., marks of the last open category general candidate and the last selected candidate under 10% departmental quota. Two unsuccessful candidates had approached the Tribunal in 2010 and order dated 22nd August, 2013 has been passed in their favour. Thirteen others including the petitioner would be entitled to a similar benefit in case the present writ petition is allowed. The respondents would have to redo and rework the entire exercise of finding out who would or would not have qualified from the open category. Law of limitation, sometimes perceived as technical and iniquitous, serves an important public purpose. It ensures certainty and negates ill effect when settled positions are sought to be altered. At the distinct point of time in 2014, about four years after the results of the 2009 examination were declared, the said exercise would create unforeseen complications and possibly litigation on issues like seniority. The open category candidates selected in the 2009 Examination have already joined. They are not impleaded. Question of seniority etc. with those selected in 2009 and 2012 would be an issue. This is not the case of an illiterate or denied person not aware of his rights, who for economic and social reasons possibly had limited resources or had hesitated in approaching courts/ tribunals/authorities."
After hearing learned counsel for the parties and also having carefully perused the pleadings on the record, this Court observes that this Tribunal is governed by the Administrative Tribunals Act, 1985, Section 21 of the Administrative Act, ibid, clearly provides as under:-
"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 subsection
(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."
7.1 The Apex Court as well as Hon'ble High Courts while dealing with this issue of limitation and also on the point of delay condonation passed various orders as enumerated below:-
(a) The Hon'ble Apex Court in D.C.S. Negi v. Union of India & others (Civil Appeal No.7956 of 2011) decided on 7.3.2011, condemned entertaining of the OAs by the Tribunal in disregard of the limitation prescribed under Section 21 of the Administrative Tribunals Act 1985. In the said order, following observations were made:
"Before parting with the case, we consider it necessary to note that for quite some time, the Administrative Tribunals established under the Act have been entertaining and deciding the Applications filed under Section 19 of the Act in complete disregard of the mandate of Section 21. .....
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)."
(b) The Apex Court in the case of S.S. Rathore v. State of Madhya Pradesh, (1989) 4 SCC 582. In the said case, the Hon'ble Supreme Court has held thus:-
"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."
(c) In Chennai Metropolitan Water Supply and Sewerage Board & Ors. Vs. T.T. Murali Babu, (2014) 4 SCC 108, the Apex Court has been ruled thus:
"Thus, the doctrine of delay and laches should not be lightly brushed aside. A writ court is required to weigh the explanation offered and the acceptability of the same. The court should bear in mind that it is exercising an extraordinary and equitable jurisdiction. As a constitutional court it has a duty to protect the rights of the citizens but simultaneously it is to keep itself alive to the primary principle that when an aggrieved person, without adequate reason, approaches the court at his own leisure or pleasure, the court would be under legal obligation to scrutinise whether the lis at a belated stage should be entertained or not. Be it noted, delay comes in the way of equity. In certain circumstances delay and laches may not be fatal but in most circumstances inordinate delay would only invite disaster for the litigant who knocks at the doors of the court. Delay reflects inactivity and inaction on the part of a litigant - a litigant who has forgotten the basic norms, namely, "procrastination is the greatest thief of time" and second, law does not permit one to sleep and rise like a phoenix. Delay does bring in hazard and causes injury to the lis".
(d) "In A.P. Steel Re-Rolling Mill Ltd. v. State of Kerala and others, (2007) 2 SCC 725 following the earlier judgment in U. P. Jal Nigam's case, it was opined as under:
"40. The benefit of a judgment is not extended to a case automatically. While granting relief in a writ petition, the High Court is entitled to consider the fact situation obtaining in each case including the conduct of the petitioner. In doing so, the Court is entitled to take into consideration the fact as to whether the writ petitioner had chosen to sit over the matter and then wake up after the decision of this court. If it is found that the appellant approached the Court after a long delay, the same may disentitle him to obtain a discretionary relief."
(e) In the case of State of Uttaranchal and another v. Sri Shiv Charan Singh Bhandari and others, 2013(6) SLR 629, Hon'ble the Supreme Court, while considering the issue regarding delay and laches and referring to earlier judgments on the issue, opined that repeated representations made will not keep the issues alive. A stale or a dead issue/dispute cannot be got revived even if such a representation has either been decided by the authority or got decided by getting a direction from the court as the issue regarding delay and laches is to be decided with reference to original cause of action and not with reference to any such order passed.
Relevant paragraphs from the aforesaid judgment are extracted below:
"13. We have no trace of doubt that the respondents could have challenged the ad hoc promotion conferred on the junior employee at the relevant time. They chose not to do so for six years and the junior employee held the promotional post for six years till regular promotion took place. The submission of the learned counsel for the respondents is that they had given representations at the relevant time but the same fell in deaf ears. It is interesting to note that when the regular selection took place, they accepted the position solely because the seniority was maintained and, thereafter, they knocked at the doors of the tribunal only in 2003. It is clear as noon day that the cause of action had arisen for assailing the order when the junior employee was promoted on ad hoc basis on 15.11.1983. In C. Jacob v. Director of Geology and Mining and another, 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."
In Union of India and others v. M.K. Sarkar, this Court, after referring to C. Jacob (supra) has ruled that 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, 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 State of Orissa v. Pyarimohan Samantaray it has been opined that making of repeated representations is not a satisfactory explanation of delay. The said principle was reiterated in State of Orissa v. Arun Kumar Patnaik.
In Bharat Sanchar Nigam Limited v. Ghanshyam Dass (2) and others, a three-Judge Bench of this Court reiterated the principle stated in Jagdish Lal v. State of Haryana and proceeded to observe that as the respondents therein preferred to sleep over their rights and approached the tribunal in 1997, they would not get the benefit of the order dated 7.7.1992.
In State of T.N. v. Seshachalam, this Court, testing the equality clause on the bedrock of delay and laches pertaining to grant of service benefit, has ruled thus: -
"....filing of representations alone would not save
the period of limitation. Delay or laches is a relevant factor for a court of law to determine the question as to whether the claim made by an applicant deserves consideration. Delay and/or laches on the part of a government servant may deprive him of the benefit which had been given to others. Article 14 of the Constitution of India would not, in a situation of that nature, be attracted as it is well known that law leans in favour of those who are alert and vigilant."
7.2 In the light of the above said legal position of the various High Courts, especially in the case of Hariom (supra), and Apex Court as also having regard to the provisions of the Act ibid, it is clear that in order to get the benefit of limitation, the application has to satisfy this Tribunal that he was diligently pursuing his matter and was prevented by sufficient cause for not filing the OA within the period of limitation.
Admittedly, the applicant in this case is seeking directions to the respondents to extend the benefit of the judgment passed by Hon'ble High Court of Delhi in Writ Petition (Civil) No.1554/2003 dated 20.3.2013 and the said judgment was passed in personam as observed by the Hon'ble Delhi High Court in the said judgment, the relevant part of the same has already been quoted above and the representations for seeking the benefits of extension of the said judgment was preferred in 2016, which were duly replied by the respondents and there is no averment in the OA, which proves that he was diligently pursuing his matter and was prevented by sufficient cause for not filing the OA. Admittedly, the applicant has taken action to file the OA in the matter only in 2016 and there is no explanation whatsoever for the dealys with regard to the period of four years from the date of order of the Delhi High Court. If the applicant has also the same grievance as that of the member of the said Association, he ought to have taken steps at the relevant point of time as the said Writ Petition was preferred by the said Association in 2003 and the judgment on the same was passed in 2013 and the representations for extension of the benefits of the said decision of the Delhi High Court was sought by representations preferred in 2016 and it is the fact that the said judgment of the Hon'ble High Court was not in rem but in personam as is evident from the aforesaid quoted observation.
In the result, and for the foregoing reasons, this Court does not find any illegality in the impugned orders and accordingly, the present OA is dismissed. There shall be no order as to costs.