Divisional Raillway Manager (Private) S.E. Railway, Vkisakhapatnam and Others Vs. K. Ramulu and Another - Court Judgment

Excerpt:
services - delay - section 19 of administrative tribunal act, 1985 - respondent appointed as casual labourer - claimed seniority before tribunal - respondent filed original application after lapse of 26 years from questioning of seniority - delay in filing of application not explained was sufficient ground for refusing equitable relief - seniority given with retrospective effect likely to prejudice right of any other person - held, relief cannot be granted to person who sleep over their rights. - - 4..there is no reliable document to accept this statement also. ' 4. a bare perusal of the said order would clearly go to show that the said finding is based upon surmises and conjunctures only. we do not stand in the way of any of the railway counsels to submit, if they are acquainted with the facts, without checking whether he/she is the allotted counsel, as such a check is not possible and even if it is possible, the respondents may not like such a check to be made, as all of them are the learned counsels for the railways. ..8. the learned tribunal failed to notice that even the standing counsel are required to file memo of appearance upon obtaining instructions in that regard. even the allegations made in the original application clearly show that the 1st respondent herein was absorbed in the year 1977 and he could not have been granted seniority from 1972 unless it was clearly held, upon arriving at a satisfaction, that he had a legal right therefor. 10. the learned tribunal further failed to take into consideration the fact that the original application was filed in the year 1994 although the 1st respondent questioned the seniority which was granted to him claiming his seniority from 1968. there is nothing on record to show as to how he explained the delay. 11. it is now well settled principle of law that those who sleep over their rights are not entitled to any equitable relief. , 1989(43)elt790(sc) ,it has clearly been held that an aggrieved person should approach the court or the tribunal immediately after rejection of his representation. 7..the petitioner furthermore, filed the writ application after a long time although the impugned order as contained in annexure 'd' to the writ application passed as aforesaid on 19-12-1988. it is now well known that those who sleep over their right could not be granted any equitable relief.orders.b. sevha, cj 1. the writ petition is directed against an order dated 16-7-1998 passed by the central administrative tribunal, hyderabad in review application no.63 of 1997 arising out of original application no.9i6 of 1994 whereby and wherennder the review application filed by the petitioners herein was dismissed.2. the 1st respondent herein was appointed as casual labourer under iow, south eastern railway, waltair with effect from 16-3-1966. he was appointed as a diesel cleaner with effect from 20-7-1968. he claimed his seniority on that basis from 20-7-1968. it appears that the learned counsel for the petitioners herein had contended before the learned tribunal that all the material papers had been misplaced. the learned tribunal did not consider the issue before it even in the absence of the records and directed that the seniority of the 1st respondent herein should be counted from 1972 stating that the same shall not be treated to be a precedent.3. having regard to the fact that the same was being disposed of without proper examination of all the records, the learned tribunal observed that although a statement had been made that the posts of air cleaners were converted as diesel cleaners in support whereof no evidence had been adduced but only because a statement was made that such air cleaners were converted as diesel cleaners in the year 1972 and they had been absorbed on such basis of 14-10-1977, and thus came to the following conclusion:'4....there is no reliable document to accept this statement also. the applicant joined as a casual labourer in 1966. hence it is not very likely that he could have become diesel cleaner in the year 1968 within 2 years of his joining as casual labourer. however, it may be possible that having worked in the diesel shed in the mechanical wing and on that basis he could have been progressed further. in that case, it is likely that he could have been screened for the post of diesel cleaner in the year 1972 as he was a diesel khalasi in the shed. once a khalasi has been screened for diesel cleaner, there is no reason to absorb that screened khalasi of diesel khalasi after 5 years i.e., in the year 1977. hence when the applicant submits that he was screened in 1972 and there is a possibility of his screening as a diesel cleaner during that year, then it has to be held that the applicant has to be posted as diesel cleaner immediately thereafter. absorbing the screened diesel khalasis as diesel cleaners after a lapse of 5 years from the date of screening is very late and may not be correct statement. in that view we feel that the applicant can be given the seniority position in the cadre of diesel cleaner from the date he qualified as diesel cleaner in the year 1972. on that basis his further promotion to the higher grade has to be regulated.'4. a bare perusal of the said order would clearly go to show that the said finding is based upon surmises and conjunctures only.5. a court can draw a presumption that all official acts have been done in regular course of business. the respondent herein also did not question his absorption in the year 1977 at any point of time earlier. a tribunal is required to decide the question of fact on the basis of the material placed onrecords. it may also rely upon presumptive evidence. the 1st respondent herein had filed the original application without any supporting document. the statements were not properly verified on oath. only such statements could have been held to have been admitted by applying the principles of non-traverse. but as the learned tribunal did not believe the statements made in the said affidavit, it could not have arrived at a finding contrary to or inconsistent with the statements made in the affidavit of the 1st respondent. the learned tribunal thus completely misdirected itself in law inarriving at the aforementioned finding.6. before the learned tribunal a review application was filed and records were produced. the learned tribunal refused to look into the said records inter alia on the ground that all 1994 cases were to be finalised by july, 1997 and only a few 1994 cases were left over which were taken up without granting any further adjournments.7. as regards the question -as to whether the learned counsel appearing on behalf of the applicants in the review application was properly instructed or not it was held:'.....even then we had heard thelearned counsel for the applicants i.e., respondents in the oa even though shri d.f. paul submits that he is the counsel and not shri n.r. devaraj. there are about 4 or 5 counsels for the railways. we do not stand in the way of any of the railway counsels to submit, if they are acquainted with the facts, without checking whether he/she is the allotted counsel, as such a check is not possible and even if it is possible, the respondents may not like such a check to be made, as all of them are the learned counsels for the railways. hence, we did not question the appearance of sri n.r. devaraj as the learned counsel for therespondent and disposed of the case after hearing him. when no reply was filed and the case was decided on the basis of the record available on the file of this tribunal, it cannot be said that the case has to be re-heard once again......'8. the learned tribunal failed to notice that even the standing counsel are required to file memo of appearance upon obtaining instructions in that regard.9. we do not appreciate the approach of the learned tribunal. the learned tribunal, can review its order in the interest of justice. even the allegations made in the original application clearly show that the 1st respondent herein was absorbed in the year 1977 and he could not have been granted seniority from 1972 unless it was clearly held, upon arriving at a satisfaction, that he had a legal right therefor. as noticed hereinbefore even the 1st respondent did not file any proof in support of the said contention.10. the learned tribunal further failed to take into consideration the fact that the original application was filed in the year 1994 although the 1st respondent questioned the seniority which was granted to him claiming his seniority from 1968. there is nothing on record to show as to how he explained the delay. delay and laches on the part of the applicant in such matter is itself a ground for refusing to grant any equitable relief.11. it is now well settled principle of law that those who sleep over their rights are not entitled to any equitable relief. in a. hamsaveni v. state of t.n., (1994) 6 scc 52, it has been held:'4.....no reliance can be placed onthe averment that they did not approach earlier as they were not affected. even if it be so they are to thank themselves, sleeping over the rights, if there wereany, with eyes open does not cure laches.......'12. in s.s. rathore v. state of m.p., : 1989(43)elt790(sc) , it has clearly been held that an aggrieved person should approach the court or the tribunal immediately after rejection of his representation.13. in state of maharashtra v, digambar, : air1995sc1991 , it has been held:'23. in our view, the above allegation isin no way sufficient to hold that the writ petitioner (respondent here) has explained properly and satisfactorily the undue delay of 20 years which had occurred between the alleged taking of position of his land and the date of filing of writ petition in the high court. we cannot overlook the fact that it is easy to make such kind of allegations against anybody that too against the state. when such general allegation is made against a state in relation to an event said to have occurred 20 years earlier, and the state's non-compliance with petitioners demands, state may not at all be in a position to dispute such allegation, having regard to the manner in which it is required to carry on its governmental functional.......'14. in high court of m..p. v. mahesh prakash, air 1994 sc 2559, it has been held:'16.....apart therefrom, the 1st respondent's delay in approaching the writ court had resulted in the creation of a long settled position as to seniority in the subordinate judiciary disturbing the long settled position adversely affected not only the 39 civil judges whose seniority was displaced but also the functioning of the subordinate judiciary, responsibility for which lay with the high court. it is, therefore, as open tothe high court to agitate the ground of delay and laches as it would have been open for the 39 civil judges had they preferred an appeal.'15. in principal, engineering college v. s. mukherjee, 1998 1 chn 471, it has been held:' 7.....the petitioner furthermore, filed the writ application after a long time although the impugned order as contained in annexure 'd' to the writ application passed as aforesaid on 19-12-1988. it is now well known that those who sleep over their right could not be granted any equitable relief. reference in this connection may be made to : (1997)iillj299sc .....'16. any seniority given retrospectively is likely to prejudice the right of any other person. in such situation it is not permissible to the court to determine an application in absence of those whose rights would be affected unless although not all at least any one in the representative capacity is impleaded as a party.17. in prabodh verma v. state of up., : [1985]1scr216 , it has been held:'50. to summarise our conclusions :--(1) a high court ought not to hear and dispose of a writ petition under article 226 of the constitution without the persons who would be vitally affected by its judgment being before it as respondents or at least some of them before it as respondents in a representative capacity if their number is too large to join them as respondents individually, and, if the petitioners refuse to so join them, the high court ought to dismiss the petition for non-joinder of necessary parties.....'18. for the reasons aforementioned we are of the opinion that the impugnedorder cannot be sustained and it is accordingly set aside. the writ petition is accordingly allowed.

Judgment:
ORDER

S.B. Sevha, CJ

1. The writ petition is directed against an order dated 16-7-1998 passed by the Central Administrative Tribunal, Hyderabad in Review Application No.63 of 1997 arising out of original Application No.9I6 of 1994 whereby and wherennder the review application filed by the petitioners herein was dismissed.

2. The 1st respondent herein was appointed as casual labourer under IOW, South Eastern Railway, Waltair with effect from 16-3-1966. He was appointed as a diesel cleaner with effect from 20-7-1968. He claimed his seniority on that basis from 20-7-1968. It appears that the learned Counsel for the petitioners herein had contended before the learned Tribunal that all the material papers had been misplaced. The learned Tribunal did not consider the issue before it even in the absence of the records and directed that the seniority of the 1st respondent herein should be counted from 1972 stating that the same shall not be treated to be a precedent.

3. Having regard to the fact that the same was being disposed of without proper examination of all the records, the learned Tribunal observed that although a statement had been made that the posts of air cleaners were converted as diesel cleaners in support whereof no evidence had been adduced but only because a statement was made that such air cleaners were converted as diesel cleaners in the year 1972 and they had been absorbed on such basis of 14-10-1977, and thus came to the following conclusion:

'4....There is no reliable document to accept this statement also. The applicant joined as a casual labourer in 1966. Hence it is not very likely that he could have become diesel cleaner in the year 1968 within 2 years of his joining as casual labourer. However, it may be possible that having worked in the diesel shed in the mechanical wing and on that basis he could have been progressed further. In that case, it is likely that he could have been screened for the post of diesel cleaner in the year 1972 as he was a diesel khalasi in the shed. Once a khalasi has been screened for diesel cleaner, there is no reason to absorb that screened khalasi of diesel khalasi after 5 years i.e., in the year 1977. Hence when the applicant submits that he was screened in 1972 and there is a possibility of his screening as a diesel cleaner during that year, then it has to be held that the applicant has to be posted as diesel cleaner immediately thereafter. Absorbing the screened diesel khalasis as diesel cleaners after a lapse of 5 years from the date of screening is very late and may not be correct statement. In that view we feel that the applicant can be given the seniority position in the cadre of diesel cleaner from the date he qualified as diesel cleaner in the year 1972. On that basis his further promotion to the higher grade has to be regulated.'

4. A bare perusal of the said order would clearly go to show that the said finding is based upon surmises and conjunctures only.

5. A Court can draw a presumption that all official acts have been done in regular course of business. The respondent herein also did not question his absorption in the year 1977 at any point of time earlier. A Tribunal is required to decide the question of fact on the basis of the material placed onrecords. It may also rely upon presumptive evidence. The 1st respondent herein had filed the Original Application without any supporting document. The statements were not properly verified on oath. Only such statements could have been held to have been admitted by applying the principles of non-traverse. But as the learned Tribunal did not believe the statements made in the said affidavit, it could not have arrived at a finding contrary to or inconsistent with the statements made in the affidavit of the 1st respondent. The learned Tribunal thus completely misdirected itself in law inarriving at the aforementioned finding.

6. Before the learned Tribunal a review application was filed and records were produced. The learned Tribunal refused to look into the said records inter alia on the ground that all 1994 cases were to be finalised by July, 1997 and only a few 1994 cases were left over which were taken up without granting any further adjournments.

7. As regards the question -as to whether the learned Counsel appearing on behalf of the applicants in the review application was properly instructed or not it was held:

'.....Even then we had heard thelearned Counsel for the applicants i.e., respondents in the OA even though Shri D.F. Paul submits that he is the Counsel and not Shri N.R. Devaraj. There are about 4 or 5 Counsels for the Railways. We do not stand in the way of any of the Railway Counsels to submit, if they are acquainted with the facts, without checking whether he/she is the allotted Counsel, as such a check is not possible and even if it is possible, the respondents may not like such a check to be made, as all of them are the learned Counsels for the Railways. Hence, we did not question the appearance of Sri N.R. Devaraj as the learned Counsel for therespondent and disposed of the case after hearing him. When no reply was filed and the case was decided on the basis of the record available on the file of this Tribunal, it cannot be said that the case has to be re-heard once again......'

8. The learned Tribunal failed to notice that even the standing Counsel are required to file memo of appearance upon obtaining instructions in that regard.

9. We do not appreciate the approach of the learned Tribunal. The learned Tribunal, can review its order in the interest of justice. Even the allegations made in the Original Application clearly show that the 1st respondent herein was absorbed in the year 1977 and he could not have been granted seniority from 1972 unless it was clearly held, upon arriving at a satisfaction, that he had a legal right therefor. As noticed hereinbefore even the 1st respondent did not file any proof in support of the said contention.

10. The learned Tribunal further failed to take into consideration the fact that the original application was filed in the year 1994 although the 1st respondent questioned the seniority which was granted to him claiming his seniority from 1968. There is nothing on record to show as to how he explained the delay. Delay and laches on the part of the applicant in such matter is itself a ground for refusing to grant any equitable relief.

11. It is now well settled principle of law that those who sleep over their rights are not entitled to any equitable relief. In A. Hamsaveni v. State of T.N., (1994) 6 SCC 52, it has been held:

'4.....NO reliance can be placed onthe averment that they did not approach earlier as they were not affected. Even if it be so they are to thank themselves, Sleeping over the rights, if there wereany, with eyes open does not cure laches.......'

12. In S.S. Rathore v. State of M.P., : 1989(43)ELT790(SC) , it has clearly been held that an aggrieved person should approach the Court or the Tribunal immediately after rejection of his representation.

13. In State of Maharashtra v, Digambar, : AIR1995SC1991 , it has been held:

'23. In our view, the above allegation isin no way sufficient to hold that the writ petitioner (respondent here) has explained properly and satisfactorily the undue delay of 20 years which had occurred between the alleged taking of position of his land and the date of filing of writ petition in the High Court. We cannot overlook the fact that it is easy to make such kind of allegations against anybody that too against the State. When such general allegation is made against a State in relation to an event said to have occurred 20 years earlier, and the State's non-compliance with petitioners demands, State may not at all be in a position to dispute such allegation, having regard to the manner in which it is required to carry on its Governmental functional.......'

14. In High Court of M..P. v. Mahesh Prakash, AIR 1994 SC 2559, it has been held:

'16.....Apart therefrom, the 1st respondent's delay in approaching the writ Court had resulted in the creation of a long settled position as to seniority in the subordinate judiciary disturbing the long settled position adversely affected not only the 39 Civil Judges whose seniority was displaced but also the functioning of the subordinate judiciary, responsibility for which lay with the High Court. It is, therefore, as open tothe High Court to agitate the ground of delay and laches as it would have been open for the 39 civil Judges had they preferred an appeal.'

15. In principal, Engineering College v. S. Mukherjee, 1998 1 CHN 471, it has been held:

' 7.....The petitioner furthermore, filed the writ application after a long time although the impugned order as contained in annexure 'D' to the writ application passed as aforesaid on 19-12-1988. It is now well known that those who sleep over their right could not be granted any equitable relief. Reference in this connection may be made to : (1997)IILLJ299SC .....'

16. Any seniority given retrospectively is likely to prejudice the right of any other person. In such situation it is not permissible to the Court to determine an application in absence of those whose rights would be affected unless although not all at least any one in the representative capacity is impleaded as a party.

17. In Prabodh Verma v. State of UP., : [1985]1SCR216 , it has been held:

'50. To summarise our conclusions :--(1) A High Court ought not to hear and dispose of a writ petition under Article 226 of the Constitution without the persons who would be vitally affected by its judgment being before it as respondents or at least some of them before it as respondents in a representative capacity if their number is too large to join them as respondents individually, and, if the petitioners refuse to so join them, the High Court ought to dismiss the petition for non-joinder of necessary parties.....'

18. For the reasons aforementioned we are of the opinion that the impugnedorder cannot be sustained and it is accordingly set aside. The writ petition is accordingly allowed.