Full Judgment
ORAL:
Mrs. Meera Chhibber, Member (J)
1. Applicant has sought direction to the respondents No.1 and 2 to promote him to the post of Loco Shunter from the date when his juniors Mahipal Singh and Dharampal Singh were promoted to the post of Shunter and allow him all the consequential benefits.
2. It is stated by the applicant that applicant and respondents No.3 and 4 are similarly situated persons inasmuch as applicant was initially appointed as casual labour on 1.6.1976 and had worked for 177 days from 1.7.1976 to 28.2.77. Thereafter he worked in different spells from 1978 to 1984. Respondent No.2 had issued a circular in the year 1987 inviting applications for some posts of Sub Loco Cleaners in Loco Shed in Moradabad Division and on 17.6.1988, applicant was appointed as Substitute Loco Cleaner. However, after verification of documents, applicant along with other persons, was terminated. One of such persons who were terminated, namely, Mithlesh Kumar Singh had filed a case in the Hon’ble High Court of Allahabad which was transferred to the Tribunal and renumbered as TA 62/1988, challenging his termination and the order of termination was quashed with liberty to the respondents to conduct necessary enquiry in accordance with law. In the meantime, Respondents No.3 and 4 were re-engaged on 22.3.1988 as Loco Cleaners provisionally, subject to verification of their working days. The applicant’s suspension was set aside on 24.3.1995 and he was given duty on 25.3.1995. R-3 and R-4 were acquitted on 5.2.1997 in the enquiry, and on the same day, a provisional list was issued by respondent No.2 wherein applicant was placed at Sl.No.2 while R-3 and R-4 were placed at Sl.3 and 4 respectively. Respondents No.3 and 4 filed OA No.1683/2002 claiming benefit of the seniority from 1981 when they were empanelled on the basis of screening tests of 1980, as was given to Mithlesh Kumar Singh and others. Their OA bearing No.1683/2002 was allowed on 27.6.2003 and as a result, Respondents No.3 and 4 were promoted to the post of Shunter on 28.6.2005 ignoring the claim of the applicant. Being aggrieved, he gave a representation in February, 2008 but the same was rejected in an arbitrary manner on 30.10.2009. In these circumstances, he had no other option but to file the present OA.
3. Respondents have opposed this OA on the ground of limitation as applicant is seeking benefit of judgment dated 27.6.2003 after a lapse of over 8 years, therefore, OA is liable to be dismissed on this ground alone. Reliance has been placed on the following judgments:-
(i) Shri Arun Kumar Aggarwal Vs. Nagreeka Exports Pvt. Ltd. and Another reported in 2002 (10) SCC 101.
(ii) D.C.S. Negi Vs. Union of India and Others (SLP ( C) No. 7956/2011 decided on 7.3.2011 on the point of limitation.
(iii) Ratan Chandra Sammanta and Ors vs. Union of India and Ors (JT 1993 (3) SC 418) wherein it was held that delay deprives the person of the remedy available in law. A person, who has lost his remedy by lapse of time, loses his right as well.
(iv) S.S. Rathore Vs. State of Madhya Pradesh reported in AIR 1990 SC 10 wherein it has been held by the Hon’ble Supreme Court that repeated representation do not extend the period of limitation.
(v) Karnataka Power Corporation Limited Through Its CMD and another Vs. K Thangappan and another reported in (2006) 4 SCC 322 wherein the Honble Supreme Court held that mere making of representations cannot justify delay.
(vi) Bhoop Singh Vs. UOI and Ors. reported in 1992 (2)SLJ 103 SC decided by three Judges Bench wherein it was held that ‘inordinate and unexplained delay or laches is by itself a ground to refuse relief to the petitioner irrespective of the merit of his claim. If a person is entitled to a relief, chooses to remain silent long, he thereby gives rise to a reasonable belief in the mind of others that he is not interested in claiming that relief’.
(vii) Union of India and Others Vs. M.K. Sarkar reported in 2010 (2) SCC 59 (para 14) wherein it has been clarified by the Supreme Court as follows:-
“14. The order of the Tribunal allowing the first application of the respondent without examining the merits, and directing the appellants to consider his representation has given rise to unnecessary litigation and avoidable complications. 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. Moreover, a Court or Tribunal, before directing `consideration' of a claim or representation should examine whether the claim or representation is with reference to a `live' issue or whether it is with reference to a `dead' or `stale' issue. If it is with reference to a `dead' or `stale' issue or dispute, the court/Tribunal should put an end to the matter and should not direct consideration or reconsideration. If the court or Tribunal deciding to direct 'consideration' without itself examining of the merits, it should make it clear that such consideration will be without prejudice to any contention relating to limitation or delay and laches. Even if the court does not expressly say so, that would be the legal position and effect.”
(viii) P.K. RAMACHand RAN Vs. STATE OF KERALA and ANOTHER reported in JT 1997 (8) SC 189 wherein it has been held by the 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, neither proper nor judicious. The order condoning the delay, therefore, cannot be sustained.
(ix) State of Karnataka and others V. S M Kotrayya and others, reported in (1996) SLR SC 664 wherein it was held as follows:
“8. Thus considered, we hold 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) or (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. In this case, the explanation offered was that they came to know of the relief granted by the Tribunal in August 1989 and that they filed the petition immediately thereafter. That is not a proper explanation at all. What was required of them to explain under sub-sections (1) and (2) was as to why they could not avail of the remedy of redressal of their grievances before the expiry of the period prescribed under sub-section (1) or (2). That was not the explanation given. Therefore, the Tribunal is wholly unjustified in condoning the delay.”
(x) Ramesh Chand Sharma etc. vs. Udham Singh Kamal and Ors, reported in 2000 (2) AISLJ S.C. 89 wherein Hon’ble Supreme Court held as under:
“7. On perusal of the materials on record and after hearing Counsel for the parties, we are of the opinion that the explanation sought to be given before us cannot be entertained as no foundation thereof was laid before the Tribunal. It was open to the first respondent to make proper application under Section 21 (3) of the Act for condonation of delay and having not done so, he cannot be permitted to take up such contention at this late stage. In our opinion, the O.A. filed before the Tribunal after the expiry of three years could not have been admitted and disposed of on merits in view of the statutory provision contained in Section 21(1) of the Administrative Tribunals Act, 1985.”
They have thus submitted that the OA may be dismissed on the preliminary objections.
4. On merits, they have explained that the applicant had appeared in the screening for the post of Loco Cleaner held in 1980-81. His name was placed at Sl.No. 329 but he was not found fit by the Screening Committee as his casual labour card was doubtful. He was later on appointed as Substitute Cleaner on 18.11.1988. Thereafter he remained under suspension w.e.f. 3.9.1990 to 24.7.1992 and was removed from service on 25.7.1992 on the charge that he had secured employment on the basis of forged documents produced by him. Further, on a revision filed by him, the Divisional Manager, Moradabad set aside the removal order and decided to treat the period from removal to reinstatement as leave without pay. Later on, suspension period was also regularized as duty. He was thereafter promoted as Diesel Assistant on 21.1.1998.
5. In contrast thereto, R-3 and R-4, i.e., Mahipal Singh and Dharampal Singh had also appeared in the screening of Loco Cleaner in 1980-81 and were placed at Sl.No.180 and 209 respectively and were declared fit by the Screening Committee subject to verification of their date of birth. They were appointed as Substitute Cleaner on 23.3.1988 and were empanelled in the year 1989. However, Shri Mahipal Singh and Dharam Pal Singh approached the Tribunal by filing OA No. 1683/2002 to assign them seniority in the cadre of Loco Cleaner from 1981 as they were already empanelled on the basis of screening held in 1980. Their OA was allowed on 27.6.2003 as a result of which they were assigned seniority from 1981. They have thus stated that even as per the said panel, applicant was at Sl.No.329 whereas Shri Mahipal Singh and Shri Dharam Pal Singh were at Sl.No.180 and 209 respectively, therefore, they cannot be termed as junior to the applicant and as such, the relief claimed by the applicant cannot be granted to him.
6. Applicant has reiterated the facts in the rejoinder.
7. We have heard both the counsel and perused the pleadings also.
8. Respondents have annexed the list of screening tests held in the year 1980-81 which shows that R-3 Shri Mahipal Singh was at S.No.180 (page 92) while Shri Dharampal Singh, R-4 was at Sl.No.209 on page 93. Both these respondents were part of the list of candidates who were declared successful or fit in the screening. This list was up to Sl.No.214. Thereafter another list was issued of those persons who claimed to have worked prior to 1.8.1978 but their names did not find place in the payment register and it was mentioned that their casual labour card appears to be doubtful. They were hence not considered fit for empanelment. This list starts from Sl.No.282 and applicant’s name figures in this list at Sl.No.329 (page 98 at 99). From above, two things are absolutely clear that while R-3 and R-4 were found fit in the screening held in 1980-81, while the applicant herein, was not found fit by the screening held in 1980-81.
9. It is also relevant to note that R-3 and R-4 had approached the court earlier by filing OA No.1683/2002 claiming seniority with effect from 1981 on the ground that they were originally found fit by the screening. Their OA was allowed on 27.6.2003. It was as a result of the said judgment that R-3 and R-4 got their seniority from the year 1981 whereas the applicant before us neither sought seniority from the back date, i.e., from 1981 in any other proceedings nor he has sought this relief in the present OA. All that he is seeking is that he should be promoted to the post of Loco Shunter from the date when his juniors Shri Mahipal Singh and Shri Dharampal Singh were promoted. We have already noted above that Shri Mahipal Singh and Shri Dharampal Singh were given seniority with effect from 1981 as they were found fit in the screening held in 1981 on the basis of a judgment given by the Tribunal whereas in 1980-81, applicant was not found fit by the screening as is evident from page 94, therefore, by no stretch of imagination, can applicant claim that Shri Mahipal Singh and Shri Dharampal Singh were junior to him. It is also relevant to note that applicant is seeking the benefit of the judgment given to R-3 and R-4 but they were given benefit on the basis of facts which were prevalent in their case whereas applicant’s case is distinguishable inasmuch as he was not found fit in the screening held in 1981.
10. Even otherwise, applicant has not been fount fit from 1981, therefore, he cannot claim promotion as Loco Shunter because the seniority of Shri Mahipal Singh and Shri Dharampal Singh has undergone a change on the basis of the directions given by the Tribunal. There are number of judgments given by the Hon’ble Supreme Court wherein it has been held that those who sleep over their rights, lose the remedy as well. In the instant case, we have already stated above that Shri Mahipal Singh and Shri Dharampal Singh had approached the court in the year 2002 whereas the applicant did not approach the court at all for seeking seniority from an earlier date. He is only seeking benefit given to Shri Mahipal Singh and Shri Dharampal Singh. It can thus easily be stated that he would come in the category of fence-sitters. At this stage, it would be relevant to refer to the judgment of Hon’ble Supreme Court in the case of Bharat Sanchar Nigam Limited Vs. Ghanshyam Dass and Others reported in AISLJ Vol.1. SC 472 wherein it was held that fence sitters who sleep on their rights cannot be given the benefit. The principle laid down in K.I. Shephard and Others Vs. Union of India and Others reported in 1987 (4) SCC 431 was also explained as to where it is not necessary for every person to approach the court for relief by setting out the circumstances where the said principle would apply, namely:-
(a) where the order is made in a petition filed in a representative capacity on behalf of all similarly situated employees;
(b) where the relief granted by the court is a declaratory relief which is intended to apply to all employees in a particular category, irrespective of whether they are parties to the litigation or not;
(c) where an order or rule of general application to employees is quashed without any condition or reservation that the relief is restricted to the petitioners before the court; and
(d) where the court expressly directs that the relief granted should be extended to those who have not approached the court.
Applicant’s case does not fit in any of the above circumstances because the basic facts are different. In view of above, simply because some relief was given to Shri Mahipal Singh and Shri Dharampal Singh, it cannot be extended to the applicant. The OA is bereft of merit. The same is accordingly dismissed. No costs.