Full Judgment
Honourable Mrs. Meera Chhibber, Member (J)
Applicant has challenged order dated 20.10.2004 whereby Shri B.C. Nagar was promoted and order dated 14.7.2010 (page 18) whereby his request for promotion w.e.f. 1.11.2003 under restructuring has been rejected. He has further sought a direction to the respondents to consider him for promotion as given to Shri Phool Singh and grant him consequential benefits.
2.It is stated by the applicant that he was initially appointed as Clerk in Ferozpur Division on 2.9.1971 but was later transferred to Delhi Division in 1972. He was promoted as Head Clerk w.e.f. 1.1.1984 as Office Superintendent Grade-II on 29.4.1994/24.11.1995 and Office Superintendent Grade-I in the grade of Rs.6500-10500 w.e.f. 23.11.1997.
3.Railway Board issued restructuring orders on 10.5.1998 whereby 3 additional posts of Chief Office Superintendent (hereinafter referred as COS) as in the grade of Rs.7450-11500 were sanctioned but they were not implemented. On 9.10.2003 restructuring Scheme was issued whereby 4 more posts of COS were sanctioned w.e.f. 1.11.2003. In compliance of Railway Board s letter dated 10.5.1998 panel of 3 COS was issued on 11.10.2004 while panel of 4 COS was issued on 20.10.2004 in compliance with letter dated 9.10.2003.
4.It is stated by the applicant that one Shri Phool Singh (retired OS) got the benefit of restructuring from the Tribunal in OA No.159/2005 for promotion as COS. While promoting Shri Phool Singh, Smt. Jagwati was reverted in 2009. At this stage applicant gave his representation for promoting him also as COS because applicant should have been promoted against general post. However, his representation was rejected on 14.7.2010. Thereafter Shri Phool Singh retired on 31.8.2000 and applicant s junior Shri B.C. Nagar was promoted on 20.10.2004 even though he was junior to the applicant. In these circumstances, applicant had no other option but to file the present OA.
5.We have heard counsel for the applicant and perused the pleadings. Though applicant has placed reliance on Shri Phool Singh s case but perusal of judgment dated 9.12.2005 passed in OA No. 159/2005 shows Shri Phool Singh had challenged the promotion order dated 19.10.2004 whereby 3 of his juniors were promoted viz. Smt. Kamla Topo, Smt. Uma and Smt. Jagwati. The said OA was allowed by directing the respondents to consider applicant s case for promotion to the post of Ch.OS under modified selection in view of his seniority in OS Grade-I w.e.f. 10.5.1998. In case he is found fit, to grant him promotion from the same day when his junior was promoted with all consequential benefits including re-fixation of his pensioary benefits and arrears thereof. However, no directions were given against promotion of 3 juniors meaning thereby their promotions were not upset. It is further relevant to note that applicant has himself annexed seniority list of O.S.-I wherein all the 3 ladies viz. Smt. Kamla Topo, Smt. Uma and Smt. Jagwati are shown senior to the applicant as they are at Sl.No.1, 2 and 3 while applicant is at Sl.No.7. Name of Shri Phool Singh does not appear here because as per the judgment annexed by applicant himself, he was senior to these 3 ladies also, therefore, how his promotion can help the applicant could not be explained by the counsel. Shri B.C. Nagar is at Sl.No.10 but he was promoted as COS vide order dated 20.10.2004 (page 46). If applicant was aggrieved by the promotion of Shri B.C. Nagar, he should have challenged the said order in 2004/2005 when applicant was still in service. Not having done so, it is not open to the applicant to challenge the promotion of Shri B.C. Nagar at this belated stage or to claim promotion now in the year 2010 w.e.f. 1.11.2003. It is further relevant to note that Shri B.C. Nagar was promoted being SC against a reserved point whereas applicant is a general candidate, therefore, it was all the more reason to challenge his promotion then and there if it was wrong. Applicant has not been able to explain why he is challenging the promotion of Shri B.C. Nagar now. This is definitely barred by limitation. Hon ble Supreme Court has repeatedly held Court should not entertain stale matters. In U.O.I. Vs. M.K. Sarkar reported in 2010 (2) SCC 58 Hon ble Supreme Court held as follows:-
The order of the Tribunal allowing the first application of respondent without examining the merits, and directing 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 can not 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 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 .
6.From above it is clear that limitation has to be reckoned from the original cause of action. In the instant case applicant is challenging the promotion of B.C. Nagar, who was promoted in 2004 while the present OA has been filed on 16.8.2010. This is, therefore, definitely a stale matter and not maintainable in view of above judgment. The OA is accordingly dismissed on this ground alone at the admission stage itself.
No costs.