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Judgment
Nita Chowdhury, Member (A)
By filing this OA, the applicant is seeking the following reliefs:-
"(a) to direct the respondents to grant extension of benefit of order dt.7/09/09 in CWP 11331/09 passed by the Hon'ble Delhi High Court in the case of Commissioner MCD vs. Shashi & Ors. as well as order dt.5/6/09 in TA 163/09, order dt. 20/08/09 in TA 348/09 (Ms. Nirmal Sachdeva & or vs. Lt. governor & Ors and order dt 21/11/11 in OA 1853/11 passed by this Tribunal within a specified time limit.
(b) to direct the respondents to appoint him as a Primary Teacher as has been done in the case of other similarly placed candidates who have obtained 55 grading and above in OBC.
(c) grant all the consequential benefits flowing from grant of relief (a) & (b).
(d) to pass any other order/s as may be deemed just fit and proper in the fact and circumstances of the case."
The bare minimum facts of the case as stated by the applicant are that the respondents invited application for the post of Primary Teacher in erstwhile MCD schools in July 1996 and the applicant applied for the said post as an OBC candidate. On 23.1.1998, respondents changed the criteria and introduced the DOB but applicant was ignored.
2.1 Applicant contents that this Tribunal in the case of Shashi & Ors. vs. Commissioner & ors in TA 163/2009 set aside the criteria vide Order dated 5.9.2009 and another TA 348/09 was also decided on the basis of the Order passed in TA 163/2009. Writ Petition No.11331/2009 preferred by the respondents against the aforesaid order of this Tribunal before the Hon'ble Delhi High Court and the High Court vide Order dated 7.9.2009 dismissed the same. The applicant further stated that in 2010-11, the candidates with 55 grading were given appointment by the MCD (now EDMC) under OBC and 72 grading under General Category.
2.2 Applicant further submitted that he moved a representation for grant of extension of benefit of the decisions of the Hon'ble Delhi High Court as well as of this Tribunal on 22.2.2011. However, the same has not been replied by the respondents till date. Applicant also stated that SLP filed by the respondents against the aforesaid decision of the Hon'ble Delhi High Court has also been dismissed by the Hon'ble Supreme Court vide judgment dated 20.1.2015.
In the reply filed by the respondents besides giving reply on merits of the case, the respondents have raised the preliminary objection that the present OA is barred by limitation.
From the above bare minimum facts of the case, it is evidently clear that the present OA has not been filed within the period of limitation as prescribed under the Administrative Tribunals Act, 1985, as this OA has been filed on 10.3.2015 and the applicant is seeking the benefits of the Order of this Tribunal passed in TA No.163/2009 dated 5.9.2009 which was upheld by the Hon'ble High Court of Delhi as well as Hon'ble Supreme Court.
Counsel for the applicant submitted that the present application is within limitation period as prescribed in Section 21 of the A.T. Act 1985 as the applicant is seeking extension of benefits of the Order dated 20.8.2009, 7.12.2010 and 21.11.2011 as well as his representation is still pending.
So far as the limitation is concerned, this Tribunal is governed by the provisions of Section 21 of the Administrative Tribunals Act, 1985 which provides 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 subsection
(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."
From the above provisions, it is clear that if the representation is preferred and then 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. As such it is evident from the facts that the Original Application is highly belated as it is filed in the year 2015 and the cause of action can be said to have arisen in the year 2009 or at the most in the year 2011 when the benefits of the aforesaid judgments were extended to the similarly situated candidates as per the averments of the applicant.
The Hon'ble Apex Court in D.C.S. Negi v. Union of India & others (Civil Appeal No.7956 of 2011) decided on 7. 3.2011, condemned entertaining of the OAs by the Tribunal in disregard of the limitation prescribed under Section 21 of the Administrative Tribunals Act 1985. In the said order, following observations were made:
"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. .....
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 Chennai Metropolitan Water Supply and Sewerage Board & Ors. Vs. T.T. Murali Babu, (2014) 4 SCC 108, the Apex Court has been ruled thus:
"Thus, the doctrine of delay and laches should not be lightly brushed aside. A writ court is required to weigh the explanation offered and the acceptability of the same. The court should bear in mind that it is exercising an extraordinary and equitable jurisdiction. As a constitutional court it has a duty to protect the rights of the citizens but simultaneously it is to keep itself alive to the primary principle that when an aggrieved person, without adequate reason, approaches the court at his own leisure or pleasure, the court would be under legal obligation to scrutinise whether the lis at a belated stage should be entertained or not. Be it noted, delay comes in the way of equity. In certain circumstances delay and laches may not be fatal but in most circumstances inordinate delay would only invite disaster for the litigant who knocks at the doors of the court. Delay reflects inactivity and inaction on the part of a litigant - a litigant who has forgotten the basic norms, namely, "procrastination is the greatest thief of time" and second, law does not permit one to sleep and rise like a phoenix. Delay does bring in hazard and causes injury to the lis".
In A.P. Steel Re-Rolling Mill Ltd. v. State of Kerala and others, (2007) 2 SCC 725 as well, same issue was considered and following the earlier judgment in U. P. Jal Nigam's case, the Hon'ble Apex Court opined as under:
"40. The benefit of a judgment is not extended to a case automatically. While granting relief in a writ petition, the High Court is entitled to consider the fact situation obtaining in each case including the conduct of the petitioner. In doing so, the Court is entitled to take into consideration the fact as to whether the writ petitioner had chosen to sit over the matter and then wake up after the decision of this court. If it is found that the appellant approached the Court after a long delay, the same may disentitle him to obtain a discretionary relief."
The Hon'ble Supreme Court in the case of State of Uttaranchal and another Vs. Sri Shiv Charan Singh Bhandari and others [Civil Appeal Nos. 7328-7329 of 2013 arising out of S.L.P. (C) Nos. 15197-98 of 2012] decided on 23. 8.2013 held as follows:-
"22. We are absolutely conscious that in the case at hand the seniority has not been disturbed in the promotional cadre and no promotions may be unsettled. There may not be unsettlement of the settled position but, a pregnant one, the respondents chose to sleep like Rip Van Winkle and got up from their slumber at their own leisure, for some reason which is fathomable to them only. But such fathoming of reasons by oneself is not countenanced in law. Any one who sleeps over his right is bound to suffer. As we perceive neither the tribunal nor the High Court has appreciated these aspects in proper perspective and proceeded on the base that a junior was promoted and, therefore, the seniors cannot be denied the promotion. Remaining oblivious to the factum of delay and laches and granting relief is contrary to all settled principles and even would not remotely attract the concept of discretion. We may hasten to add that the same may not be applicable in all circumstances where certain categories of fundamental rights are infringed. But, a stale claim of getting promotional benefits definitely should not have been entertained by the tribunal and accepted by the High Court. True it is, notional promotional benefits have been granted but the same is likely to affect the State exchequer regard being had to the fixation of pay and the pension. These aspects have not been taken into consideration. What is urged before us by the learned counsel for the respondents is that they should have been equally treated with Madhav Singh Tadagi. But equality has to be claimed at the right juncture and not after expiry of two decades. Not for nothing, it has been said that everything may stop but not the time, for all are in a way slaves of time. There may not be any provision providing for limitation but a grievance relating to promotion cannot be given a new lease of life at any point of time.
We will be failing in our duty if we do not state something about the benefit of promotion conferred on the junior employee. We have been apprised by the learned counsel for the State that the promotion extended to him on 15.11.1983 has been cancelled and, as further put forth by the learned counsel for the respondents, the same is under assail before the High Court. The said Madhav Singh Tadagi was neither a party before the tribunal nor before the High Court and he is also not a party before this Court. As presently advised, we refrain ourselves from expressing any opinion on the cancellation of promotion and the repercussions of the same. As the matter is sub- judice before the High Court, suffice it to say that the High Court shall deal with the same in accordance with the settled principles of law in that regard. We say no more on the said score. However, we irrefragably come to hold that the direction given by the tribunal which has been concurred with by the High Court being absolutely unsustainable in law is bound to be axed and we so do.
Consequently, the appeals are allowed and the orders passed by the High Court and that of the tribunal are set aside. There shall be no order as to costs."
Counsel for the respondents further submitted that a similarly situated employee had filed OA No.3674/2012 (Smt. Urmila Goswami vs. Commissioner, EDMC and others) before this Tribunal wherein he also sought extension of benefit of Order dated 7.9.2009 passed by this Tribunal in TA 163/2009, and this Tribunal vide Order dated 23.7.2015 dismissed the said OA. The said Order of this Tribunal was also challenged before the Hon'ble Delhi High Court in Writ Petition (Civil) No.9095/2015 and the Hon'ble High Court dismissed the said Writ Petition vide Order dated 22.9.2015 observed as under:-
"8. In our view the petitioner seems to be a fence sitter who was watching the proceedings for all these years and has some now seeking relief on the basis of resemblance with other cases and this conduct of the petitioner indicates that she is trying to derive the benefit of an earlier judgment, by filing an independent O.A., notwithstanding the fact that she was a part and parcel of the earlier round of litigation and after sleeping over her rights for more than 18 years, she cannot be permitted to extract benefits on the principle of equity.
On the other hand, where only the affected parties approach the court and relief is given to those parties, the fence-sitters who did not approach the court cannot claim that such relief should have been extended to them thereby upsetting or interfering with the rights which had accrued to others. In Jagdish Lal and Ors. Vs. State of Haryana and Ors. (1997) 6 SCC 538, the Appellants who were general candidates belatedly challenged the promotion of Scheduled Caste and Scheduled Tribe candidates on the basis of the decisions in Ajit Singh Januja Vs. State of Punjab (1996) 2 SCC 715, Union of India Vs. Virpal Singh Chauhan (1995) 6 SCC 684 and R.K. Sabharwal v. State of Punjab (1995) 2 SCC 745, the Hon'ble Supreme Court refused to grant the relief by observing as under :
"...this Court has repeatedly held, the delay disentitles the party to the discretionary relief under Article 226 or Article 32 of the Constitution. It is not necessary to reiterate all the catena of precedents in this behalf. Suffice it to state that the Appellants kept sleeping over their rights for long and elected to wake up when they had the impetus from Virpal Chauhan and Ajit Singh ratios. But Virpal Chauhan and Sabharwal cases, kept at rest the promotion already made by that date, and declared them as valid; they were limited to the question of future promotions given by applying the rule of reservation to all the persons prior to the date of judgment in Sabharwal case which required to be examined in the light of the law laid in Sabharwal case. Thus earlier promotions cannot be reopened. Only those cases arising after that date would be examined in the light of the law laid down in Sabharwal case and Virpal Chauhan case and equally Ajit Singh case. If the candidate has already been further promoted to the higher echelons of service, his seniority is not open to be reviewed. In A.B.S. Karamchari Sangh case a Bench of two Judges to which two of us, K. Ramaswamy and G.B. Pattanaik, JJ. were members, had reiterated the above view and it was also held that all the prior promotions are not open to judicial review. In Chander Pal v. State of Haryana a Bench of two Judges consisting of S.C. Agrawal and G.T. Nanavati, JJ. considered the effect of Virpal Chauhan, Ajit Singh, Sabharwal and A.B.S. Karamchari Sangh cases and held that the seniority of those Respondents who had already retired or had been promoted to higher posts could not be disturbed. The seniority of the Petitioner therein and the Respondents who were holding the post in the same level or in the same cadre would be adjusted keeping in view the ratio in Virpal Chauhan and Ajit Singh; but promotion, if any, had been given to any of them during the pendency of this writ petition was directed not to be disturbed...."
After perusing the above cases, we are of the considered view that the petitioner preferred to sleep over her rights and approached the Central Administrative Tribunal belatedly in 2012, she cannot be extended the benefit of the orders passed earlier in this context. Accordingly, this submission of the learned Counsel for the petitioner must fail on the ground of the delay and laches in approaching the proper forum.
In view of the aforesaid facts and circumstances of the case, we feel that the petitioner does not deserve the relief which has been set out by her in the writ petition and accordingly the writ petition is dismissed as it does not have any merit.
We find no infirmity in the judgment of the Central Administrative Tribunal. No order as to costs."
SLP (CC No.2362/2016) filed against the aforesaid Order of the Hon'ble Delhi High Court was also dismissed by the Hon'ble Apex Court vide Judgment dated 12.2.2016.
In view of the aforesaid facts and circumstances of the present case, this Court is of the considered view that this OA is barred by limitation as the relief sought by the applicant in this OA cannot be granted to him at this belated stage. Accordingly, the present OA dismissed as such. There shall be no order as to costs.