Oral:
Mrs. Meera Chhibber, Member (J)
1. Applicant has sought the following relief:-
“(i) That the Hon’ble Tribunal may graciously be pleased to direct the respondents to re-promote the applicant as Boiler Maker Chargeman B by making status-quo as on 29/09/88 and regularise his services as BMC-B grade Rs.1400-2300/- RPS w.e.f. April 1983 from the date of Ad-hoc promotion under the extant policy on the subject.
That the Hon’ble Tribunal may graciously be pleased to direct the respondent to arrange arrears along with all consequential benefits”.
2. It is stated by the applicant that the applicant was working as Boiler Maker Chargeman (hereinafter referred to as BMC). Vide order dated 29.9.1988 he was reverted as Boiler Maker Mistry (hereinafter referred to as BMM) which was challenged by him by filing an OA. The order of reversion was quashed by the Tribunal and applicant was even found suitable for the post of BMC on 27.7.1989 yet he was not promoted as BMC. He finally retired on attaining the age of superannuation on 30.4.1990 but without promoting him as BMC. Being aggrieved, applicant gave a legal notice apart from various representations, but no reply was given to him. In these circumstances, applicant had no other option but to file the present OA.
3. We have heard counsel for the applicant.
4. Applicant has annexed Annexure A-1 which is dated 31.1.1989 with the petition which for ready reference reads as under:-
5. Perusal of same shows that this Tribunal had though held order dated 29.9.191988 of reversion was bad in law, however, in the next sentence it was also observed that there was no merit in the claim of the applicant that he was working on the post of BMC. It was not found to be correct. It was further held that in case applicant is found eligible or qualified for regular promotion as BMC he may be promoted otherwise he may be reverted to the lower post of Mistry by a separate order meaning thereby that order of reversion was quashed on the technical ground but liberty was given to the respondents that in case he is not found suitable he may be reverted back to the lower post. This order was passed as back as in 1989. It is stated by the applicant that he was found suitable in the selection which is evident from page 11. However, he was not promoted. He superannuated on 30.4.1990. It goes without saying that if applicant was not promoted he should have either filed a CP or should have approached the court by filing fresh OA. Counsel for the applicant has not been able to show us any steps taken by him seeking his promotion as BMC on the basis of his selection as per letter dated 27.7.1989 (annexed on page 11) within one year or 18 months thereafter.
6. When we asked counsel for the applicant to explain why he has approached the court now in 2012 for seeking promotion with effect from 1983 and to explain the delay he only stated that applicant had been giving representations from time to time. He submitted since it was the mistake of the respondents, therefore, limitation will not come in his way.
7. According to us, if applicant had been declared qualified in the selection held in 1989 it was open to him to seek promotion on the basis of the said letter within a reasonable period. Applicant has annexed only one representation dated 5.11.1989 but thereafter he did not seem to have taken action to seek redressal of his grievance. According to Section 19 of the Administrative Tribunals Act, 1985, the period of limitation is one year from the date of cause of action or within 18 months in case representation is given but is not responded to.
8. In the instant case it is stated by the applicant that he was found selected on 27.7.1989 and in spite of court’s orders he was not promoted as BMC. If that be so, he should have approached the court within one year or at best within 18 months from 27.7.1989. Admittedly, no such effort was made by the applicant. On the contrary, he retired on 30.4.1990. Even at that stage he did not come to the court. The only ground taken by him in the application for condonation of delay is that he kept giving representations to the department. Law is well settled that mere filing of representations cannot extend the period of limitation. In Jai Dev Gupta Vs. State of Himachal Pradesh and Another reported in 1999 (1) AISLJ SC 110 it has been held by the Hon’ble Supreme Court that continued representations do not keep the limitation alive. Similar view has been taken by Hon’ble Supreme Court in Hon’ble Supreme Court in Karnataka Power Corporation Ltd. Through its Chairman and Managing Director and Others Vs. K. Thangappan and Another reported in 2006 (4) SCALE page 56 has held as under:-
“It has been pointed out by this Court in a number of cases that representation would not be adequate explanation to take care of delay”.
9. The present OA has been filed on 7/2/2012 without explaining the cause of action. He had sought some information through RTI which was provided to him on 10.6.2010 (page 18) whereby he was informed that applicant could not find place in the panel of BMC hence the question of his posting as BMC does not arise. In this letter, applicant was further informed of that in view of compliance with the Tribunal’s order dated 23.12.1988 applicant was reverted from the post of BMC to Boiler Maker Mistry (page 18). Even at this stage applicant did not approach the court immediately. He has filed the present OA, as stated above, only in 2012 meaning thereby that applicant is taking the matter rather lightly and has approached the court after inordinate delay. It has recently been held by the Hon’ble Supreme Court in the latest judgment in the case of D.C.S. Negi Vs. U.O.I. and Others ( SLP (Civil) No.7956/2011 CC No.3709/2011) decided on 11.3.2011 as follows:-
“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, which reads 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 sub-section (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”.
A reading of the plain language of the above reproduced section 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).
In the present case, the Tribunal entertained and decided the application without even adverting to the issue of limitation. Learned counsel for the petitioner tried to explain this omission by pointing out that in the reply filed on behalf of the respondents, no such objection was raised but we have not felt impressed. In our view, the Tribunal cannot abdicates its duty to act in accordance with the statute under which it is established and the fact that an objection of limitation is not raised by the respondent/non-applicant is not at all relevant”.
10. From above judgment, it is clear that a duty is cast on the Tribunal to see whether OA has been filed within the limitation period or not. We have no hesitation in observing that the OA is definitely barred by limitation as it has been filed after over a period of 23 years from the date of cause of action, therefore, it is barred by limitation.
11. Learned counsel for the applicant has relied on S.R. Bhanrale Vs. U.O.I. and Others reported in AIR 1997 SC 27. However, that was a case where applicant was seeking his pensionary benefits. It was a case where an employee was not paid retrial dues at the verge of retirement and it was held that the amounts were due to him but were wrongly withheld. It was in those circumstances held by the Hon’ble Supreme court that it was not open to the respondents to take the plea of limitation whereas in the instant case applicant is seeking promotion to the post of BMC with effect from 1983. He had retired also in 1990 but has filed the present OA in the year 2012, therefore, above judgment cannot come to applicant’s rescue. His case would be covered by the latest judgment of the Hon’ble Supreme Court in the case of D.C.S. Negi.
12. It would also be relevant to refer to the judgment of Hon’ble Supreme Court in the case of E. Parmasivan and Others Vs. U.O.I. and Others reported in 2005 SCC (LandS) 125 wherein it was held as under:-
“All the petitioners had retired from the service long before the judgment of the principal bench, CAT, dated 13.11.1992. In the judgments of different benches of CAT, copies of which have been placed on record in the case, the applicants were officers in service. The anomaly in the scale of pay of the petitioners arose as early as on 12.1.1976 when the government of India declined to extend the revised scale of pay in terms of the concordance table to members of the cadres of the store officers and administrative officers. Therefore the petitioners would have raised objection regarding the anomaly in their scale of pay at that point of time. Even thereafter when they retired from the service they could have made the claim for pay fixation in terms of the concordance table and for calculation of pension on that basis. They did not take any step in that regard till 1995.
3. In the circumstances of the case, the Tribunal, in our view, was right in holding that the original application filed by the petitioners was barred by limitation and hence no relief as claimed by them could be granted to them. Thus the petition being devoid of merit is dismissed”.
The same view has been reiterated by Hon’ble Supreme Court in High Court of Judicature of Patna Vs. Madan Mohan Prasad and Others reported in 2011 (9) SCC 65.
13. Though applicant has filed MA 334/2012 seeking condonation of delay but it is more by way of formality as delay has not at all been explained. The only ground taken is that applicant kept giving representations. We have already noted above that this is not a good ground for condoning the delay.
14. The law is well settled that one who comes to the court, after a long delay has to explain to the entire satisfaction of the court about the delay. In State of Karnakata Vs. S.M. Kotraya 1996 (7) SCALE 179 it was again held by Hon’ble Supreme Court that it is not necessary that the respondents should give an explanation for the delay which occasioned for the period mentioned in sub-Sections (1) and (2) of Section 21, but they should give explanation for the delay which occasioned after the expiry of the aforesaid respective period applicable to the appropriate case and the tribunal should be required to satisfy itself whether the explanation offered was proper explanation as prescribed under Section 21 of the Administrative Tribunals Act, 1985. In view of above, it is duty of the court to see whether the delay has been properly explained by the person who is approaching the court after an inordinate delay. Accordingly, filing an application does not entitle the person to claim condonation of delay. Similarly in P.K. RAMACHandRAN Vs. STATE OF KERALA and ANOTHER reported in JT 1997 (8) SC 189 it has been held by Hon’ble Supreme Court that the law of limitation may harshly affect a particular party but it has to be applied with all its rigor when the statute so prescribe and the Courts have no power to extend the period of limitation on equitable grounds. The discretion exercised by the High Court was, thus, neither proper nor judicious. The order condoning the delay, therefore, cannot be sustained.
Since no plausible ground is given by the applicant in the above MA, the same is rejected.
15. Since we have not condoned the delay, the OA is also dismissed being barred by limitation at the admission stage itself. No costs.