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Judgment
Om Prakash VII, Member (J)
Shri A K Dave, learned counsel for the applicant and Shri Pradeep Kumar Mishra, learned counsel for the respondents, were present at the time of hearing.
The subject OA has been filed by the applicants challenging the impugned rejection order date 18.09.2023, passed by the AGR (HR) O/o GMTD Prayagraj BA, rejecting the claim of the applicant for treating his promotion on the post of Senior TOA (G) just after completion of training, as he claims to have been given to other counterparts w.e.f. 31.12.2001, instead of 01.08.2004. The promotion order for the post of Sr. TOA (G) was issued on 02.01.2003 whereby the applicant has claimed that four employees who were similarly placed to the applicant were promoted w.e.f. 31.12.2001 but the applicant was ignored.
A perusal of the case records reveals that the applicant has sought promotion w.e.f. 31.12.2001 and is aggrieved by the promotion order issued on 02.01.2003. In both the cases, it is evident that the cause of the case arose in the year 2001 / 2003 itself i.e., the date from which the applicant is claiming promotion or the date on which the promotion order was passed but the OA has been filed in the year 2024. This implies that a huge delay of more than 20 years has occurred in filing the original application. Explaining the aforesaid delay, applicant has filed Delay Condonation Application vide MA No. 3457of 2024.
Referring to the contents of the affidavit annexed with the delay condonation application, learned counsel for the applicant argued that the respondents had considered his case for promotion vide letter dated 12.04.2006 whereby the Dy GM (Admn) asked the GMTD, Allahabad to consider the promotion of the applicant to Sr. TOA (G) if the vacant post is available and noting that he has completed the training for restructured grade. In response to the aforesaid letter, the applicant was granted promotion to the post of Sr. TOA (G) w.e.f. 01.08.2004 instead of 31.12.2001. Applicant’s counsel has contended that his counterparts who were similarly placed were granted promotion w.e.f. 31.12.2001 and as such he was liable to be given promotion from the said date. Applicant has also contended that the GMTD, Allahabad wrote a letter dated 27.01.2021 and another one dated 04.01.2022 to AGM (Adm) O/o CGMT UP(E) Circle Lucknow seeking direction regarding promotion of the applicant from the date of completion of training or from the date of availability of the post in SSA Cadre in CTOA. Applicant’s counsel further argued that nothing was done on the aforesaid letter dated 04.01.2022 and therefore the applicant preferred a representation dated 26.08.2022 but the same got rejected illegally thereby denying the promotion to the applicant. Thus, referring to the aforesaid facts, learned counsel for the applicant argued that although there is a delay of several years in filing the OA but the same has occurred only because of the fact that the applicant was hopeful of the fact that his grievance will be redressed as his case was actively under consideration for all those years. Thus, it is prayed that the delay condonation application may be allowed to hear and decide the case on merits.
54 Learned counsel for the respondents vehemently opposed the averments of the applicants’ counsel and referring to the objection filed against delay condonation application, he argued that the cause of action for filing the instant OA arose in the year 2003 when the promotion order was passed but the applicant did not approach the Tribunal at that time. Further, day to day delay occurred in filing the OA has not been adequately explained by the applicant’s counsel in the delay condonation application. To substantiate his arguments, learned counsel further referred to the provisions contained in Section 21 (Limitation Act) of Administrative Tribunal Act, 1985 and also relied upon the judgments passed by the Hon’ble Supreme Court of India in the case of SS Rathore Vs State of MP reported in 1990 SCC (L&S) arguing that the issue of delay and laches was examined by the Hon’ble Court. Thus, prayer was made to reject the delay condonation application thereby dismissing the OA as being devoid of merits at this stage itself.
Applicant has also filed reply to the objection filed against the delay condonation application referring to which the learned counsel for the applicant rebutted the contents of objection and argued that the delay occurred on the part of the applicant in filing the OA is not deliberate and the same is attributed to the fact that the applicant was hopefully waiting for the respondents to grant him the benefit of the promotion as the same was under consideration for such a long time. Time and again, it has been affirmed by several courts across the country including the Apex Court that a person is not required to approach before any court of law seeking grant of remedy that has already been awarded to any other person who is similarly placed to him. The respondents have faulted as it was incumbent upon them to have granted the benefit of promotion to the applicant w.e.f. the date as his counterparts were granted. To substantiate his claim further, learned counsel for the applicant has also placed reliance upon the judgment passed by the Apex Court in the case of State of Bihar Vs Kameshwar Prasad Singh reported in 2000 Supreme Court Cases (L&S) 845. Thus, referring to the contents of the reply filed to the objection filed against the delay condonation application, learned counsel for the applicant reiterated his prayer to allow the delay condonation application to decide the OA on merits.
We have considered the rival submissions and carefully gone through the records and judgments relied upon by the contesting parties.
Admittedly, vide letter dated 12.04.2006, the case of the applicant for grant of promotion was considered and subsequently he was granted promotion to the post of Sr. TOA (G) w.e.f. 01.08.2004. But the applicant has contended that his counterparts who were similarly situated as him on all respects were granted the same promotion w.e.f. 31.12.2001 vide order dated 02.01.2003. Respondents have contended that if the applicant was aggrieved by the promotion order of 01.01.2003 or 12.04.2006, he must have approached the Tribunal at that time itself but he did not do so and instead this OA has been filed belatedly in the year 2024 after a lapse of about 20+ years since the cause of action arose.
It is pertinent to mention here the a perusal of the records also reveal that the issue of promotion of the applicant did not get settle when the applicant was granted promotion w.e.f. 01.08.2004 and even after a lapse of about 15 years, the GMTD Allahabad was writing letters to the other resondents’ authorities seeking clarifications with regard to the promotion of the applicant. Vide letter dated 27.01.2021 and again vide letter dated 04.01.2022 written by the GMTD, Allahabad to AGM (Adm.) O/o CGMT UP(E) Circle, Lucknow, the GMTD, Allahabad sought a direction regarding promotion of the applicant from the date of completion of training or from the date of availability of the post in SSA cadre in CTOA. But when nothing was done on the aforesaid letters, the applicant preferred a representation dated 26.08.2022 seeking the relief but the same got rejected vide order dated 18.09.2023.
Notwithstanding the aforesaid factum, it is pertinent to record that if the applicant was aggrieved from the promotion list issued on 02.01.2003 whereby he claims that similarly situated persons were granted promotion w.e.f. 31.12.2001, or even with the promotion list issued later whereby the applicant was granted promotion although w.e.f. 01.08.2004, in all such circumstances, it was incumbent upon the applicant to approach the Tribunal seeking the redressal of his grievance. But the applicant failed to do so. Mere filing representations will not give any benefit to his case. Even if for a moment, it is assumed that the case of the applicant did not attain finalization till a very later stage considering the letters dated 27.01.2021 or 04.01.2022 issued by the respondents for one purpose of another, the very fact that the applicant remained fence sitter for all these years cannot be overlooked. In such significant service matters that deal with promotional aspects of an employee especially the cases of antedated promotion, it becomes a thing of utmost importance to meticulously consider each and every detail that lead to belated filing of the application. The Tribunal cannot simply condone the inordinate and inexplicable delay of more than 20 years as is operating in the instant case of the applicant as no good purpose would be served in doing so.
In this regard, it would be in the fitness of things to refer to the law laid down by the Apex Court in its judgment dated 17.10.2014 passed in Civil Appeal No. 9849 of 2014 titled State of Uttar Pradesh and others Vs. Arvind Kumar Srivastava and others wherein it was held that:
“23) The legal principles which emerge from the reading of the aforesaid judgments, cited both by the appellants as well as the respondents, can be summed up as under:
(1) Normal rule is that when a particular set of employees is given relief by the Court, all other identically situated persons need to be treated alike by extending that benefit. Not doing so would amount to discrimination and would be violative of Article 14 of the Constitution of India. This principle needs to be applied in service matters more emphatically as the service jurisprudence evolved by this Court from time to time postulates that all similarly situated persons should be treated similarly. Therefore, the normal rule would be that merely because other similarly situated persons did not approach the Court earlier, they are not to be treated differently.
(2) However, this principle is subject to well recognized exceptions in the form of laches and delays as well as acquiescence. Those persons who did not challenge the wrongful action in their cases and acquiesced into the same and woke up after long delay only because of the reason that their counterparts who had approached the Court earlier in time succeeded in their efforts, then such employees cannot claim that the benefit of the judgment rendered in the case of similarly situated persons be extended to them. They would be treated as fence-sitters and laches and delays, and/or the acquiescence, would be a valid ground to dismiss their claim.
(3) However, this exception may not apply in those cases where the judgment pronounced by the Court was judgment in rem with intention to give benefit to all similarly situated persons, whether they approached the Court or not. With such a pronouncement the obligation is cast upon the authorities to itself extend the benefit thereof to all similarly situated person. Such a situation can occur when the subject matter of the decision touches upon the policy matters, like scheme of regularisation and the like (see K.C. Sharma &Ors. v. Union of India (supra). On the other hand, if the judgment of the Court was in personam holding that benefit of the said judgment shall accrue to the parties before the Court and such an intention is stated expressly in the judgment or it can be impliedly found out from the tenor and language of the judgment, those who want to get the benefit of the said judgment extended to them shall have to satisfy that their petition does not suffer from either laches and delays or acquiescence.
24) Viewed from this angle, in the present case, we find that the selection process took place in the year 1986. Appointment orders were issued in the year 1987, but were also cancelled vide orders dated June 22, 1987. The respondents before us did not challenge these cancelleation orders till the year 1996, i.e. for a period of 9 years. It means that they had accepted the cancellation of their appointments. They woke up in the year 1996 only after finding that some other persons whose appointment orders were also cancelled got the relief. By that time, nine years had passed. The earlier judgment had granted the relief to the parties before the Court. It would also be pertinent to highlight that these respondents have not joined the service nor working like the employees who succeeded in earlier case before the Tribunal. As of today, 27 years have passed after the issuance of cancellation orders. Therefore, not only there was unexplained delay and laches in filing the claim petition after period of 9 years, it would be totally unjust to direct the appointment to give them the appointment as of today, i.e. after a period of 27 years when most of these respondents would be almost 50 years of age or above.”
Thus, in view of the aforesaid deliberations and carefully perusing the records and going through the case laws cited by the contesting parties and specifically considering the ratio laid down by the Apex Court in the case of Arvind Srivastava (supra), the Tribunal is of the considered opinion that the delay of more than 20 years occurred in filing the OA is not liable to be condoned. Accordingly, delay condonation application MA No. 3457 of 2024 is rejected. Since delay condonation application stands rejected, the Original Application No. 531 of 2024 is also dismissed.
All associated MAs stand disposed of. No costs.