V. Ajay Kumar, Member (J)
MA 3625/2012:
The applicant has filed the MA for condonation of delay in filing the OA No.4333/2012. He has stated in the said MA that on the permission of this Tribunal in OA No.399/2003, decided on 30.05.2003 (Annexure A12), he filed OA No.1755/2003 by challenging the Scheme of the respondents, i.e., New Recruitment and Assessment Scheme (NRAS), but the said OA was dismissed on 06.05.2004 on the ground of resjudicata. He further stated that the Honble High Court of Delhi dismissed the WP(C) No.10394/2004 and 23790/2005, which was filed against the said decision of this Tribunal dated 06.05.2004, vide its Judgment dated 23.05.2011, which was also upheld by the Honble Supreme Court in SLP (C) Nos.25894-95 of 2011 vide its order dated 24.09.2012.
2. However, the applicant stated that, in the present OA, the applicant has challenged the constitutional validity of another Scheme of the respondents, i.e., Merit And Normal Assessment Scheme (MANAS) and its Circular dated 13.02.1996. Therefore, he prays that the delay if any in filing the present OA may be condoned in the interest of justice, for this he tenders sincere heartfelt apology.
3. The present application is filed under Section 19 of the Administrative Tribunals Act, 1985 praying as follows:
a) To judicial review the constitutional validity of Merit and Normal Assessment Scheme Circular dated 13.02.1996 and direct the respondent to implement it w.e.f. 01.01.1982 instead of prospectively.
b) To direct the respondent to complete all the pending assessments/promotions within a period decided by this Tribunal and pay the consequential benefits, interest and file compliance report.
c) To direct the respondent CSIR to exercise Power to Relax rule to mitigate undue hardship as allowed to other persons in relaxing essential qualification as held by the Honble Supreme Court in J.C.Yadav and Others v. State of Haryana, (1990) SCC 189, CSIR v. Chandra Aggarwal (2009) 3 SCC 35, Kendriya Vidyalaya Sangathan v. Sajal Kumar Roy, etc.
d) Any other Writ or order or direction which it deem fit and proper in the facts and circumstances of the case and in the interest of justice.
4. Briefly stated, the applicant joined the National Physical Laboratory (NPL), constituent unit of the Council of Scientific and Industrial Research (CSIR), as a Fine Mechanic w.e.f. 18th May, 1979 in the pay scale of Rs.380-560. He completed and passed the Associat Membership Examination Section A and B of the Aeronautical Society of India on 1.09.1982, which is recognized at par with Bachelors degree in Aeronautical Engineering for purposes of recruitment by the Ministry of Education. The CSIR in the meantime introduced a New Recruitment and Assessment Scheme (NRAS) which was circulated on 2.11.1981 providing for Fast Track Promotion (FTP for short) to Scientific and Technical staff as were in position on that date and possessed the prescribed entry level qualification for the next higher group subject to the conditions laid down in the scheme. As an Associate Member of the Aeronautical Society, the applicant had the requisite qualification for entry into the Scientist Grade which was Group IV of the service. However, as the higher qualification was acquired by him after 2.11.1981, he was not considered eligible. The CSIR by letter dated 5.3.83 extended the cut off date from 2.11.1981 to 31.12.1981. This was also of no assistance to the applicant. However, his case was considered for FTP within Group III and by an order dated 21.2.1983 he was w.e.f. 1.9.82, promoted from the post of Fine Mechanic to Technician Grade VIII within Group III with three advance increments over and above normal fixation.
5. The applicant filed OA 2990/1991 claiming that he is entitled to the benefit of the NRAS even though he acquired the qualification for entry level to Group-IV after the cut off date of 31.12.1981. He has also preferred OA No.1757/1994 challenging the virus of letter dated 03.03.1994 of Fast Track Assessment (FTA) whereby it has been claimed that only such employees would be considered for Group-IV who were in Groups-III and II as on 24.11.1982.
6. A Coordinate Bench of this Tribunal, by a common order dated 08.08.1997, disposed of the said OA No.2990/1991 and OA No.1757/1994 by observing as follows:
â15. In the light of the above discussion, we come to the following conclusion:-
The applicant is not entitled to promotion as Scientist B w.e.f. 1.9.82 in the pay scale of Rs.700-1300 (pre-revised) with consequential benefits;
The orders of respondent No.1 and 2 in OA No.1747/1994, dated 3.3.94, 4.7.94 and 16.11.1984 are not ultra vires;
The respondents O.M. dated 28.1.91 is quashed to the extent it seeks to postpone the date of promotion of the applicant from 1.9.82 to 3.5.1984.
16. We dispose off the O.As on the basis of above conclusions. The applicant will be entitled to consideration for further promotion on the basis of the promotion as Technician Grade VIII w.e.f. 1.9.82. As we have been informed that the consideration of his further promotion has been withheld due to the pendency of these O.As, we also direct that the respondents will complete the consideration of his case for further promotion within a period of three months from the date of issue of these orders and also give him all consequential benefits in respect of arrears of pay etc. within a period of three months thereafter.â
7. The CWP No.4817/1997, preferred by the applicant against the aforesaid orders of this Tribunal, was dismissed on 16.11.1998, by the Honble High Court of Delhi.
8. The applicant filed OA 399/2003, which was dismissed as withdrawn on 30.05.2003 permitting him to challenge the validity of New Recruitment and Assessment Scheme (NRAS), in accordance with law. Accordingly, he filed OA No.1755/2003 seeking the following reliefs:
(a) To judicially review the New Recruitment and Assessment Scheme (NRAS) of the respondent and declare them ultra vires violative of Articles 14, 16 and 39 (d) of the Constitution.
(b) If the NRAS is declared ultra vires to the Constitution of India to direct the respondent to grant placement in Group IV on the basis of interview held on 16th February 1983 as per direction by the Honble Supreme Court in State of Bihar v. Dr. Braj Kumar Mishra, 1999 SOL Case No.676.
(c) To grant consequential benefits including arrears and interest @18% p.a. from the date of due to date of payment.
But the same was dismissed vide Judgment dated 06.05.2004 being hit by principle of res judicata by observing that the reliefs claimed in OA No.1755/2003 are similar to the reliefs claimed in OA No.2990/1991 and OA No.1757/1994, which were disposed of by a common order dated 08.08.1997. The Writ Petitions (C) 10395/2004 and 23790/2005 filed in the Hon'ble High Court of Delhi were also dismissed on 23.05.2011. The SLP (C) No.25894-25895/2011 is also stated to be dismissed vide order dated 24.09.2012.9. Per contra, the respondents have filed their detailed counter, denying the OA averments.
10. At the very outset, the respondents counsel has brought to notice of this Bench that the applicant earlier filed OA No.4152/2012 (it has been stated that the said OA was decided on 08.02.2013) inter alia seeking a similar direction, as in the present OA, and the applicant has suppressed the said fact and filed the present OA once again. A bare perusal of the Order dated 08.02.2013 pertains to claim of the applicant for entitlement of Air Travel on LTC, which is separate cause of action, therefore, non mentioning of the said OA in the present proceedings cannot be stated to be a suppression of a material fact.
10-A Â Further, another preliminary objection taken by the respondents is that the present OA is also barred by limitation, as he was aware of the fact of Circular dated 13.02.1996, issued in the Scheme of MANAS [he was placed on record in CWP No.4817/1997, after the hearing was concluded and reserved for orders, which was decided on 16.11.1998] but the applicant has not challenged the same within the period of limitation.
10-B. Â They have also taken a preliminary objection of res judicata since the OA No.1757/1994 and OA No.1755/2003 filed by the applicant with same relief(s) were dismissed by orders dated 08.08.1997 and 06.05.2004 respectively.
10-C. Â Further, they have stated that the present OA is premature and it has been filed in undue haste, as the respondents are in the process of setting up of an Assessment Committee to consider the case of the applicant for promotion (3rd Chance) as he has submitted his work report pursuant to the order of the Honble Apex Court in SLP No.25894/2011 dated 10.05.2012.
11. Heard the applicant in person and also the learned counsel for the respondents Ms. K. Iyer and have gone through the pleadings on record, including the written submissions filed by both sides.
12. At the very outset, we find that the present OA is liable to be dismissed as barred by limitation as the applicant himself stated in his rejoinder that the respondents, before the Honble High Court of Delhi, contended that Circular of 13.02.1996 pertains to MANAS and not NRAS. This would indicate that the applicant was aware of the Circular dated 13.02.1996 in the year 1998 itself. Therefore, challenging the said Circular dated 13.02.1996 [pertains to MANAS, came to know him in the year 1998], in the year 2012, is hopelessly barred by limitation under Section 21 of the Administrative Tribunals Act, 1985, as held by the Honble Supreme Court in D.C.S.Negi v. Union of India and Others [Civil Appeal No.7956/2011 dated 07.03.2011].
13. In the said case, the Apex Court, while dismissing the Appeal, has emphasized that the Administrative Tribunal established under the Act is duty bound to first consider whether the application is within limitation, and that 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). The relevant observations of the Honble Apex Court are extracted below:
âA reading of the plain language of Section 21 makes it clear that the Tribunal cannot admit an application unless the same is made within the time specified in clauses (a) and (b) of Section 21(1) or Section 21(2) or an order is passed in terms of sub-section (3) for entertaining the application after the prescribed period. 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).â
Thus, in terms of the provisions of the Administrative Tribunals Act, 1985, an application has to be filed within the period prescribed above and there is a clear bar to admit a belated application unless the applicant is able to show sufficient grounds for not making the application within the prescribed period.
14. In the present case, in the MA filed for condonation of delay, the applicant has not mentioned any justifiable reasons to condone the delay. Therefore, the MA is dismissed. Consequently, the OA is also dismissed as barred by limitation.
15. Normally, in such frivolous cases, heavy costs would be imposed on the applicant but as the applicant appears in person and that too without any legal assistance, we decline to impose cost on him in the present proceedings.
16. However, this order shall not preclude the respondents from considering the case of the applicant for promotion to the next grade, if he is found eligible as per the rules in force as stated in the respondents counter reply at para 1 of the Preliminary Objections.