Mahavir Singh, Delhi Vs. Union of India Through Secretary Ministry of Commerce (Supply Division), New Delhi and Another - Court Judgment

V. Ajay Kumar, Member (J).

1. The applicant, who is working in the substantive post of Peon and in the post of Lower Division Clerk (LDC) on ad hoc basis, filed the present OA, seeking the following reliefs:

8.1. Direct the Respondents to amend the seniority list and place the applicant above Shri Lohre Ram in the seniority list since the applicant is senior to him.

8.2.Direct the Respondents to confirm the applicant on the post of LDC with effect from 24.10.2000 i.e. the date from which his junior was confirmed by the Respondent.

8.3.Direct the Respondent to consider applicant for promotion to the post of UDC with effect from 27.04.2010 i.e. the date from which his junior was promoted to the post of UDC with all consequential benefits.

8.4. Levy exemplary cost on the respondent for their inaction, and deliberate unwanted delay in implementing C.A.T.s orders which has caused immense mental agony to the applicant.

8.5. Grant any other relief which the Court may think just and proper under the facts and circumstances of the case.

2. Briefly stated, as per the OA averments, the applicant joined in the respondents Department as ad hoc Peon on 31.10.1984 and was regularized in the said post on 29.11.1985. Later he was promoted as ad hoc LDC on 18.09.1987 (Annexure A1). On 24.10.2000, the 3rd Respondent, also an ad hoc LDC and junior to the applicant was regularized, whereas the applicant was reverted from the post of ad hoc LDC on 10.10.2007 (Annexure A2). The OA No.1754/2007, filed by the applicant questioning the said reversion order, was disposed of along with two other OAs, vide Order dated 12.08.2008 (Annexure A3) as follows:

5. O.A. stands disposed of with a direction to the respondents to finalise their seniority on common eligibility list within a period of three months from the date of receipt of a copy of this order. If the applicants are senior enough to be considered for promotion as LDCs, their claim shall be considered in accordance with rules and instructions and law on the subject. If their juniors are found to have been regularized earlier, which is contrary to the rules, the applicants would also be given benefit from the same dates the juniors were given. No costs.

3. The Writ Petition No.14043/2009 filed by the respondents was dismissed by the Honble High Court of Delhi on 21.12.2009. The respondents, on 27.04.2010, have further promoted the 3rd Respondent to the post of UDC.

4. It is the specific case of the applicant that the 3rd Respondent Shri Lohre Ram and the applicant were confirmed as regular Peons on the same date, i.e., on 29.11.1985 and since the applicant is older than the said Shri Lohre Ram, by virtue of his earlier date of birth, and hence the respondents ought to have shown the applicant as senior to 3rd Respondent. However, the respondents in their seniority list of Peons as on 01.10.1988 (Annexure 5) shown the 3rd Respondent as senior to the applicant, by placing him at Sl. No.149 and the applicant at 150, though as on the relevant date, the applicant was working as ad hoc LDC (w.e.f. 31.08.1987) and whereas the 3rd Respondent was working only as Peon. Further, the respondents confirmed the 3rd Respondent as LDC w.e.f. 24.10.2000. Later, the 3rd Respondent was promoted as UDC on 27.04.2010 (Annexure A13).

5. It is submitted that since the respondents promoted the 3rd Respondent as LDC on 24.10.2000, and further promoted him as UDC on 27.04.2010, and since the applicant is senior to the 3rd Respondent in the category of Peons, as both of them confirmed on the same date and the applicant is older than the 3rd Respondent in age, the applicant is also entitled for the said promotions w.e.f. the date on which his junior, i.e., the 3rd Respondent, is promoted.

6. Per contra, the respondents vide their detailed counter and the additional affidavit, while denying the OA averments, would submit as follows:

a). The present OA seeking to amend the seniority list of Group `D employees which was issued in the year 1989, i.e., more than 20 years back, is hopelessly barred by the period of limitation, and accordingly is liable to be dismissed.

b). It is further submitted that as per the Record Retention Schedule, being following by all the departments of Government of India, the files related to the seniority lists are retained only for three years and hence, it is not feasible for the Department to verify the `belated and `stale claims of the applicant, at this stage, as he has not raised the issue of his seniority with reference to the 3rd Respondent for all these years.

c). It is submitted that no junior of the applicant is now working as LDC on regular basis. The 3rd Respondent was shown as senior to the applicant all through, i.e., with effect from the year 1989, when the seniority list of Peons as on 01.10.1988 was published. Hence, the contention of the applicant that he should be promoted to the post of LDC and thereafter to UDC from the date of his juniors promotion, has no legs to stand.

d). The vague and unfounded contentions raised by the applicant that by virtue of his caste, i.e., SC, and reservation roster he should be promoted before the 3rd Respondent should be rejected for want of proper pleadings, limitation and not questioning the promotion order of the 3rd Respondent till date.

7. Heard Shri B.S. Mathur, learned counsel for the applicant and Shri T. A. Ansari, the learned counsel for the respondents and have been through the pleadings on record.

8. Section 21 of the Administrative Tribunals Act, 1985, which deals with limitation 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.

9. 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 admitting a belated application unless the applicant is able to show sufficient grounds for not making the application within the prescribed period.

10. At this juncture it would also be relevant to refer to the judgments of Honble Supreme Court on the point of limitation:

11.  In the case of Ramesh Chand Sharma v. Udham Singh Kamal and Ors., (Civil Appeal No.3119 of 1997, decided on 12.10.1999) [(1999) 8 SCC 304], the Apex 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. The law in this behalf is now settled, see Secretary to Government of India v. Shivram Mahadu Gaikwad, 1995 Supp (3) SCC 231.

8. For the reasons stated above, the impugned order passed by the Administrative Tribunal on August 6, 1996 in O. A. No. 631 of 1994 is set aside and the said O. A. is dismissed on the ground of limitation. The Civil Appeal Nos. 3119 of 1997 and 3120 of 1997 are allowed. In the circumstances, parties are directed to bear their own costs.

12. In the case of Union of India and Others v. M. K. Sarkar, (2010) 2 SCC 59=2009 (14) SCALE 425 wherein it was held as under:

14. 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. The ill-effects of such directions have been considered by this Court in C. Jacob vs. Director of Geology and Mining and Anr. - 2009 (10) SCC 115:

"The courts/tribunals proceed on the assumption, that every citizen deserves a reply to his representation. Secondly they assume that a mere direction to consider and dispose of the representation does not involve any `decision' on rights and obligations of parties. Little do they realize the consequences of such a direction to `consider'. If the representation is considered and accepted, the ex-employee gets a relief, which he would not have got on account of the long delay, all by reason of the direction to `consider'. If the representation is considered and rejected, the ex-employee files an application/writ petition, not with reference to the original cause of action of 1982, but by treating the rejection of the representation given in 2000, as the cause of action. A prayer is made for quashing the rejection of representation and for grant of the relief claimed in the representation. The Tribunals/High Courts routinely entertain such applications/petitions ignoring the huge delay preceding the representation, and proceed to examine the claim on merits and grant relief. In this manner, the bar of limitation or the laches gets obliterated or ignored."

15. 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.

16. 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 `state' 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.

(Emphasis added)

13.  In the Judgment of the Honble Apex Court in the matter of D.C.S. Negi v. Union of India and Ors. decided on 07.03.2011 in SLP (C) No.7956/2011(CC No.3709/2011) 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:

A 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).

(Emphasis supplied)

14.  In a recent Judgment of the Honble Apex Court in State of Tripura v. Arabinda Chakraborty (2014) 5 SCALE 335 held as under:

10. Simply by making a representation, when there is no statutory provision or there is no statutory appeal provided, the period of limitation would not get extended. The law does not permit extension of period of limitation by mere filing of a representation. A person may go on making representations for years and in such an event the period of limitation would not commence from the date on which the last representation is decided.

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13. It is a settled legal position that the period of limitation would commence from the date on which the cause of action takes place. Had there been any statute giving right of appeal to the respondent and if the respondent had filed such a statutory appeal, the period of limitation would have commenced from the date when the statutory appeal was decided. In the instant case, there was no provision with regard to any statutory appeal. The respondent kept on making representations one after another and all the representations had been rejected. Submission of the respondent to the effect that the period of limitation would commence from the date on which his last representation was rejected cannot be accepted. If accepted, it would be nothing but travesty of the law of limitation. One can go on making representations for 25 years and in that event one cannot say that the period of limitation would commence when the last representation was decided. On this legal issue, we feel that the courts below committed an error by considering the date of rejection of the last representation as the date on which the cause of action had arisen. This could not have been done.

15. 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 admitting a belated application unless the applicant is able to show sufficient grounds for not making the application within the prescribed period.

16.  Admittedly, the applicant is seeking a direction to the respondents to amend the seniority list of Peons as on 01.10.1988 and to place the applicant above the 3rd Respondent in the said seniority list. It was not the case of the applicant that he was not aware of the fact that he was shown as junior to the 3rd Respondent way back in the year 1989 itself when the aforesaid seniority list was issued. It was also not the case of the applicant that he was not aware of the promotion of the 3rd Respondent to LDC and thereafter as UDC on 24.10.2000 and 27.04.2010 respectively. Admittedly, for the first time, the applicant questioned the Annexure A5 seniority list of Peons as on 01.10.1988, by filing the present OA, i.e., in the year 2011. Even the earlier OA No.1754/2007 was filed aggrieved by the Orders of the respondents dated 10.10.2007 in reverting the applicant from the post of ad hoc LDC to the post of Peon, but not questioning the seniority position of the applicant, qua the 3rd Respondent, in the cadre of Peon, though there was a vague contention that some of his juniors were promoted as LDC, whereas he was denied the same.

17.  In the present case, a specific prayer is made by the applicant to amend the seniority list of 1989, therefore, the cause of action arose in the year 1989 but the present OA has been filed in the year 2011, which is hopelessly barred by limitation. In view of the above settled law, we are of the considered view that the present OA has not been filed within the period prescribed nor has such sufficient ground has been shown by the applicant for not doing so. It is clearly barred by limitation.     18.  It was not even the case of the applicant that he made representations to correct his seniority position but the respondents have not considered the same. In any case, the settled position of seniority cannot be unsettled after a lapse of long period as held by the Honble Apex Court in K.R. Mudgul and others v. R.P. Singh, 1986 (4) SCC 531.

19. The OA is accordingly dismissed. No order as to costs.