Sita Ram And Ors h vs Union Of India And Ors

This MA has been filed by the applicants seeking joining together in a single petition is allowed. Applicants are permitted to join together in this OA. By filing this OA, the applicants are seeking the following reliefs:-

"(i) That the Hon‟ble Tribunal may graciously be pleased to pass an order of quashing the impugned order dated 27.10.2014 (Colly) (Annex.A/1 & A/2), declaring to the effect that the same are illegal and arbitrary and consequently, pass an order directing the respondents to consider the case of the applicants for their regularization, from the date of regularization of junior persons in the light of the judgment passed by the Hon‟ble Tribunal in OA No.466/2010, decided on 3.6.2011 (Anne.A/3).

(ii) That the Hon‟ble Tribunal may graciously be pleased to pass an directing the respondents to consider the cases of the applicants for their antedated regularization i.e. from the date of regularization of their juniors w.e.f. Jan, 1993 with all the consequential benefits.

(iii) Any other relief which the Hon‟ble Tribunal deem fit and proper may also be granted to the applicant."

Brief facts of the case as stated by the applicants are that applicant no.1 was initially appointed as Carpenter on temporary basis in July 1986 and was regularized on the said post in January 2005 and applicant no.2 was initially appointed as Carpenter on temporary basis on 1.9.1984 and was regularized on the said post in February 2002 and they are since then working on the same post.

2.1 According to the applicants, persons junior to the applicant, namely, Shri Badri Dass, junior to applicant no.1, was initially appointed on temporary basis only in March, 1987 but was regularized in the year 1993 whereas applicant No.1 was regularized only in 2005, i.e., after 12 years. Likewise, namely, Sh. Liyakat Ali who is junior to applicant no.2 was initially appointed on temporary basis on 12.12.1985 and was regularized in the year 1994 whereas the applicant has been regularized only in February, 2002, i.e., after 8 years.

2.2 According to the applicants, some similarly situated persons as that of the applicants initially appointed on temporary basis to the post of Floor Assistant in the office of respondents and were subsequently regularized but were not regularized from the date of regularization of their junior persons filed OA 466/2010 before this Tribunal seeking regularization of their services from the date of regularization of their junior persons and this Tribunal vide Order dated 3.6.2011 allowed the said OA with the following observations:-

"8. On a careful consideration, it is seen that the applicants‟ claim has not been correctly appreciated by the respondents. The respondents appear to have misdirected themselves on the issue when proceeded to deal with the seniority of the applicants as regular Floor Assistants. The applicants are seeking antedating of their regularization under the Scheme under which they are entitled to regularization with reference to their initial engagement and before the persons who have been engaged subsequent to their initial engagement. Similar benefits have been accorded in the case of Kishan Lal Kambjoj (OA 2484/1993, decided vide Order 14.7.1999). The respondents have not been stated as to why the same benefits need not extended in the case at hand. Shri Kambhoj was given regularization with reference to the date of regularization of his junior Shri Sripal Singh. The names of both Shri Kishan Lal Kambhoj and Shri Sripal Singh are at Sl. Nos.60 and 65 respectively in the seniority list of Floor Assistants on assignment basis. All the applicants are occupying higher seniority vis-`-vis Shri Kishan Lal Kambhoj and Shri Sripal Singh, Respondents No.7 and 8 herein. The plea of under age was also taken up in the case of Kishan Lal kambhoj which, however, did not find favour with the Tribunal. The Tribunal was of the view that the prescription of 21 years of age was for regular appointment and not in the case of casual labour. The cases of the applicants are squarely covered by the case of Shri Kishan Lal Kambhoj (OA-2484/93) referred to above. That being the position, the applicants are also entitled to the benefits which have earlier been extended to Shri Kambhoj.

We, therefore, allow this application and set aside the impugned order as at Annexure A-1. The applicants are granted the reliefs in the same terms on which relief has earlier been granted to Shri Kishan Lal Kambhoj vide Order dated 14.7.1999 in OA-2484/1993. Accordingly, the respondents are directed to count the seniority of the applicants as Casual Floor Assistant with effect from their initial engagement from 18.4.1984, 16.6.1984 and 11.9.1985 respectively and consider them for regularization with effect from the date on which the private respondents or any person who had lesser length of service than the applicants has been considered for regularization and if they are found not otherwise unsuitable for such regularization to regularize them in service on the post with effect from the respective due dates subject to the condition that on the date of such regularization they should have attained the age of 21 years. The applicants shall also be entitled to all consequential benefits. This exercise shall be completed and consequential orders passed within three months from the date of receipt of a certified copy of this order. No order as to costs."

2.3 When the applicants came to know that the similarly situated persons who were appointed along with the applicants initially on temporary basis and were subsequently regularized have now been regularized from the date of regularization of their juniors in compliance of aforesaid judgment of this Tribunal, the applicants also submitted their representation dated 11.10.2014 which was followed by another representation dated 15.10.2014 seeking their regularization from the date of regularization of junior persons by way of extending the benefit of the said judgment. However, respondents without considering the said judgment rejected the said representations of the applicant vide orders dated 27.10.2014 (Annexures A/1 and A/2) on the ground that cases of the applicants are not covered by the judgment cited in the representations.

2.4 Feeling aggrieved by the said orders, the applicants have filed this OA seeking the reliefs as quoted above.

In compliance of notice issued by this Tribunal respondents have filed their counter affidavit in which raised the preliminary objection that claim of the applicant is barred by limitation and contrary to Section 21 of the Administrative Tribunals Act as the impugned order was issued on 2.3.2007 whereas the present OA has been filed in the month of September 2015. They further stated that the legislature has framed the Administrative Tribunal Act under Article 323-A of the Constitution of India and as such the OA must have been filed within one year from the date of original cause of action. Reliance is placed on judgment of Hon‟ble Supreme Court in the cases of D.C.S. Negi vs. Union of India and others (S.L.P. (Civil) No.7956/2011 decided on 7.3.2011) and S.S. Rathore vs. Union of India and others, AIR 1990 SC 10, Karnataka Power Corporation Ltd. through its CMD and another vs. K. Thangappan and another, 2006 (4) SCC 322, Bhoop Singh vs. Union of India and others, 1992 (3) SCC 136, Union of India & Ors. Vs. M.K. Sarkar, 2010 (2) SCC 58, P.K. Ramachandran vs. State of Kerala and another, JT 1997 (8) SC 189, State of Karnataka vs. S.M. Kotraya, 1996 (7) SCALE 179. They further stated that instant OA is not maintainable on the ground that applicant has not filed any Misc. Application for condonation of delay. In support of this contention, reliance is placed on Hon‟ble Supreme Court in Ramesh Chand Sharma vs. Udham Singh Kamal, 2000 SCC (L&S) 53.

3.1 They further contended that High Court while deciding to extend the benefits to casual assignees in WP (C) No.8655/2011 (The Director General Doordarshan and another vs. Sudhir Kumar Sharma and others) observed that this order shall not be treated as a precedent.

3.2 They also stated that present OA is filed against the order dated 27.10.2014 which in itself is not an order but a reply to the belated representations made with no basis, as the applicants were regularized way back in 2005 and 2002 as claimed in the OA itself and no grievance was ever raised since then till date.

3.3 They further stated that the issue in this case is squarely covered by the judgment of the Constitution Bench of the Hon‟ble Supreme Court in the case of Secretary, State of Karnataka & Others Vs. Uma Devi reported in (2006) 4 SCC 1.

3.4 They also submitted that applicants are relying on a judgment which was pronounced way back in 2011 and they are trying to take benefit in 2014, especially when the judgment does not cover the applicants by any set of imagination also.

Applicant has also filed his rejoinder reiterating the averments made in the and denying the contents of the counter affidavit.

Heard learned counsel for the parties and perused the material placed on record.

Counsel for the applicants submitted that the present case is not barred by limitation as the applicants are not seeking regularization but are seeking regularization from the date when their juniors were regularized by placing reliance on the judgment of this Tribunal in OA No.466/2010 which was decided by this Tribunal vide Order dated 3.6.2011 and the said Order had also been upheld by the Hon‟ble Delhi High Court in Writ Petition (Civil) No.8655/2011 decided on 21.12.2011.

Counsel for the respondents submitted that this case is barred by limitation as the relief claimed by the applicants in this OA is seeking quashing of orders dated 27.10.2014 and also seeking extension of benefits of judgment delivered by this Tribunal in OA No.466/2010 dated 3.6.2011, which is a prayer barred by limitation as the cause of action at the most arose to the applicants when their services were regularized or at the most when the said OA was decided by this Tribunal. As per the Section 21 of the Act ibid, if the applicants are aggrieved by the date of their regularization, they should have approached this Tribunal when their services were regularized or at the most when similarly situated employees filed the OA seeks regularization from the date when their juniors were regularized or at the most when the said OA was decided by this Tribunal but the applicants have filed this OA in the year 2015 and the said OA 466/2010 was decided by this Tribunal in 2011 and upheld by the Hon‟ble Delhi High Court in the year 2011 itself.

7.1 Counsel further submitted that while deciding the said Writ Petition, the Hon‟ble High Court specifically observed that "(iii) This order shall not be treated as a precedent." and as such the benefits of the said decision of the Tribunal, which was upheld by the Hon‟ble Delhi High Court, are not available to the applicants.

This Court also perused the Order dated 3.6.2011 passed by this Tribunal in OA 466/2010 and Order dated 21.12.2011 passed by the Hon‟ble Delhi High Court in WP(C) No.8655/2011 in which Hon‟ble High Court while upholding the aforesaid Order of this Tribunal observed that „this Order shall not be treated as a precedent‟. As the claim of the applicants is based on the Order of this Tribunal in OA No.466/2010, it is not sustainable in view of categorical aforesaid finding of the Hon‟ble Delhi High Court. Further it is admitted fact that the present OA has been filed in 2015 and the applicants are seeking extension of benefits of Order of this Tribunal delivered in 2011 and also upheld in 2011 itself. Mere challenge to the decision rendered by the respondents on their representations made in 2014 although the claim pertains to regularization of services from the date of regularization of their juniors instead of 2005 and 2002 is apparently barred by limitation. Moreover, the applicants have not annexed any seniority list to prove that the so called persons as mentioned in the OA are apparently juniors of them. Without substantiating thisaspect, this court is unable to accept the contention of the applicants that the said persons are so called juniors. During arguments, applicants‟ counsel produced two loose pages not filed even in his OA to attempt to show that applicants are senior to some persons who have been have been regularized from the date earlier than the applicants. Respondents have contested the same as not authenticated nor conclusive evidence as regularization of such casual employees depends upon availability of vacancy and other facts like educational qualifications etc. which have to be taken into account by the respondents while considering the cases of such employees for regularization. They further pointed out that the applicants have never raised this fact in the OA.

Further the applicants in the OA 466/2010 have claimed regularization like other similarly placed persons in terms of Order passed in OA 2483/1993, which OA was allowed by this Tribunal but when the appeal was preferred by the respondents before the Hon‟ble Delhi High Court, the High Court although upheld the aforesaid Order of this Tribunal but observed that the same cannot be treated as a precedent. So reliance on the same is of no help to the applicants in the instant OA and the cases of the applicants have to be decided on the basis of the facts of their cases. It is admitted fact that applicants have filed this OA in 2015 and are seeking extension of benefits of judgment delivered by this Tribunal in 2009 and they have also not filed any application for seeking the condonation of delay in filing the instant OA by adducing plausible reasons for delay.

In a judgment in 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. Delay and 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, in a situation of that nature, will not be attracted as it is well known that law leans in favour of those who are alert and vigilant. Even equality has to be claimed at the right juncture and not on expiry of reasonable time. Even if there is no period prescribed for filing the writ petition under Article 226 of the Constitution of India, yet it should be filed within a reasonable time. An order permitting a junior should normally be challenged within a period of six months or at the most in a year of such promotion. Though it is not a strict rule, the courts can always interfere even subsequent thereto, but relief to a person, who allows things to happen and then approach the court and puts forward a stale claim and try to unsettle settled matters, can certainly be refused on account of delay and laches. Any one who sleeps over his rights is bound to suffer. An employee who sleeps like Rip Van Winkle and got up from slumber at his own leisure, deserves to be denied the relief on account of delay and laches.

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, (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."

In Union of India and others v. M.K. Sarkar, (2010) 2 SCC 59, 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, (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 State of Orissa v. Pyarimohan Samantaray, (1977) 3 SCC 396, 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, (1976) 3 SCC 579.

In Bharat Sanchar Nigam Limited v. Ghanshyam Dass (2) and others(2011) 4 SCC 374, a three-Judge Bench of this Court reiterated the principle stated in Jagdish Lal v. State of Haryana, (1977) 6 SCC 538, 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, (2007) 10 SCC 137, 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."

There can be no cavil over the fact that the claim of promotion is based on the concept of equality and equitability, but the said relief has to be claimed within a reasonable time. The said principle has been stated in Ghulam Rasool Lone v. State of Jammu and Kashmir and another, (2009) 15 SCC 321.

In New Delhi Municipal Council v. Pan Singh and others, (2007) 9 SCC 278, the Court has opined that though there is no period of limitation provided for filing a writ petition under Article 226 of the Constitution of India, yet ordinarily a writ petition should be filed within a reasonable time. In the said case the respondents had filed the writ petition after seventeen years and the court, as stated earlier, took note of the delay and laches as relevant factors and set aside the order passed by the High Court which had exercised the discretionary jurisdiction.

Presently, sitting in a time machine, we may refer to a two-Judge Bench decision in P.S. Sadasivasway v. State of Tamil Nadu, (1975) 1 SCC 152, wherein it has been laid down that a person aggrieved by an order of promoting a junior over his head should approach the Court at least within six months or at the most a year of such promotion. It is not that there is any period of limitation for the Courts to exercise their powers under Article 226 nor is it that there can never be a case where the Courts cannot interfere in a matter after the passage of a certain length of time, but it would be a sound and wise exercise of discretion for the Courts to refuse to exercise their extraordinary powers under Article 226 in the case of persons who do not approach it expeditiously for relief and who stand by and allow things to happen and then approach the Court to put forward stale claims and try to unsettle settled matters.

We are absolutely conscious that in the case at hand the seniority has not been disturbed in the promotional cadre and no promotions may be unsettled. There may not be unsettlement of the settled position but, a pregnant one, the respondents chose to sleep like Rip Van Winkle and got up from their slumber at their own leisure, for some reason which is fathomable to them only. But such fathoming of reasons by oneself is not countenanced in law. Any one who sleeps over his right is bound to suffer. As we perceive neither the tribunal nor the High Court has appreciated these aspects in proper perspective and proceeded on the base that a junior was promoted and, therefore, the seniors cannot be denied the promotion. Remaining oblivious to the factum of delay and laches and granting relief is contrary to all settled principles and even would not remotely attract the concept of discretion. We may hasten to add that the same may not be applicable in all circumstances where certain categories of fundamental rights are infringed. But, a stale claim of getting promotional benefits definitely should not have been entertained by the tribunal and accepted by the High Court. True it is, notional promotional benefits have been granted but the same is likely to affect the State exchequer regard being had to the fixation of pay and the pension. These aspects have not been taken into consideration. What is urged before us by the learned counsel for the respondents is that they should have been equally treated with Madhav Singh Tadagi. But equality has to be claimed at the right juncture and not after expiry of two decades. Not for nothing, it has been said that everything may stop but not the time, for all are in a way slaves of time. There may not be any provision providing for limitation but a grievance relating to promotion cannot be given a new lease of life at any point of time.

(emphasis supplied)

The facts and circumstances show that the applicants have been considered for regularization and their services were regularized on the concerned post in 2005 and 2002 respectively.

Therefore, there is unexplained delay in the facts and circumstances of this case and as such this case is squarely covered by the judgments as mentioned supra. It is also been noted that the Hon‟ble Delhi High Court had already noticed the delay while deciding the Writ Petition (Civil) No.8655/2011 on which the applicants have sought reliance and clearly directed that „This Order shall not be treated as a precedent'.

The applicants of this OA are challenging the decision taken in their cases in 2005 and 2002. They have acquiesced to the same and woken up after long delay only because of the reason that their counterparts who had approached the Court earlier in time succeeded in their efforts. They would be treated as fence-sitters and laches and delays, and/or the acquiescence, would be a valid ground to dismiss their claim. The prayer of the applicant itself asked for their regularization from the date of regularization of alleged junior persons in the light of judgment passed by the Hon‟ble Tribunal in OA 466/2010 decided on 3.6.2011. The said Order of this Tribunal as noted supra has already been restricted by the Order of the Hon‟ble Delhi High Court in W.P.(Civil) No.8655/2011 in which the High Court noted the delay and lapses and hence has observed in para (vii) that "This order shall not be treated as a precedent." Hence, the Order of this Tribunal no longer applicable as it is the Order of the Hon‟ble High court only which can be taken into account and the same can only be said to be in personam.

Accordingly, in the facts and circumstances of the case and for the reasons stated above, the instant OA deserves to be dismissed. Accordingly, the same is dismissed on the ground of delay as well as merit. There shall be no order as to costs.