Sat Pal vs Union Of India And Others

V. Ajay Kumar, J

Aggrieved by the action of the respondents in rejecting the request of the applicant to grant the assessment promotion and to fix his pay accordingly and pay arrears, vide Annexure A-1 proceeding dated 07.12.2015, the applicant filed the instant OA.

The applicant submits that he was appointed on the post of Cleaner with effect from 18.12.1964 on the basis of the Certificate of Competency Class-II (Electric) in the respondent-Council of Scientific & Industrial Research (CSIR). Since the date of appointment, the applicant was deputed for performing the duties and responsibilities of Mistry (Electrician), but the respondents fixed the pay of the applicant in the post of Cleaner and had been paying the scale of pay attached to the post of Cleaner. The applicant was entitled for next up-gradation in promotional post of Mistry (Electrician) after completion of 7 years continuous service in the pay scale of Rs.260-350 and thereafter, he was also entitled for next up-gradation on the post of Senior Electrician in the pay scale of Rs.380-640, but the respondents did not consider him for any promotion or up-gradation till 1981. However, the respondents selected the applicant for appointment to the post of Mistry Grade-II on the recommendations of the Selection Committee which met on 27.05.1981 and placed him in the pay scale of Rs.260-350. The applicant was entitled for absorption on the post of work charged staff after rendering 3 years duty and for further service benefits as assessment promotion as per the rules and for further benefits, such as, benefits under Flexible Complementing Scheme etc., but the respondents have not granted any of the said benefits to the applicant. Finally, the applicant was voluntarily retired from service on 09.09.1992 while performing the duty and responsibilities of Mistry Grade-II.

As the respondents failed to answer the representations of the applicant, he got issued a legal notice ventilating his grievances and the respondents vide Annexure A-8 dated 20.07.2015 denied the request of the applicant. Aggrieved by the same, the applicant preferred OA No.3368/2015 which was disposed of on 09.09.2015 by directing the respondents to consider the claim of the applicant and to pass a reasoned order. Thereafter, the respondents issued the impugned Annexure A-1 order dated 07.12.2015, however, again denying the claim of the applicant. Hence, the OA.

On the other hand, the respondents through their counter submitted that the OA is liable to be dismissed in limine being barred by limitation. The applicant is seeking fixation of his pay in the post of Mistry Grade-II (Electrician) with effect from the date of his initial appointment, i.e. on 24.12.1964 and with all consequential promotions in the Electrical Branch with pay fixation and arrears.

Further, the applicant voluntarily retired from service on 09.09.1992 and he raised the claim for the first time when he got issued a legal notice dated 05.05.2015, which was duly answered on 20.05.2015 and again by passing the impugned order on 07.12.2015 in pursuance of the directions of this Tribunal in OA No.3368/2015 dated 09.09.2015. In any event, the applicant having remained kept quiet from 09.09.1992 i.e. his date of voluntary retirement from service till 05.05.2015. i.e., the date of the legal notice of the applicant, i.e., for more than about 23 years, cannot maintain the OA since the claim of the applicant itself becomes stale and dead even as on the date of issuance of legal notice by the applicant.

It is further submitted by the respondents that the applicant was appointed as Cleaner with effect from 18.12.1964 and he got his first promotion as Cleaner (Special Grade) with effect from 23.11.1978 and second promotion as Helper Grade-B w.e.f. 01.02.1981. He was due for the next promotion on completion of 3 years residency period as Helper Grade-II, i.e., with effect from 01.02.1995, but even before the said date, the applicant took voluntary retirement with effect from 09.09.1992. The applicant having appointed on a substantive post of Cleaner in the year 1964 and enjoyed all the above referred promotions from time to time in the hierarchy of Cleaner, cannot contend now that he was entitled for his promotions and pay fixations as Mistry (Electrician), on the ground that he was posted in the Electrical Section as Cleaner for some time and was placed in work charged staff as work Ministry with effect from 10.06.1981. The said post of Mistry (Electrical) was only officiating in nature and non substantive and the applicant was all through holding a substantive post of Cleaner and got promotions in the said hierarchy, hence he is not entitled for the claim even on merits.

Heard Shri A.K. Bhakt, the learned counsel for the applicant and Shri Praveen Swarup, the learned counsel for the respondents and perused the pleadings.

As rightly pointed out by the learned counsel for the respondents, the claim of the applicant is stale and dead long back. The applicant now claiming that his pay should be fixed in the post of Mistry (Electrician) with effect from his date of initial appointment as Cleaner, i.e. on 18.12.1964 with all consequential benefits. The applicant voluntarily retired from service on 09.09.1992 and even from that date, he slept over the matter till the filing of OA No.3368/2015 which was decided on 09.09.2015. The submission of the learned counsel for the applicant that the cause of action for the OA arose on 07.12.2015, i.e., the date of issuance of the impugned Annexure A-1 is untenable and unsustainable as even by the date of filing of OA 3368/2015 decided on 09.09.2015 itself, the claim of the applicant becomes stale and dead. It is the settled principle of law that even if a Court/Tribunal directs the respondents to consider the representation/legal notice of a party, after the claim itself becomes stale and dead, such a direction or any order passed in pursuance of the said direction shall not either extend the period of limitation or create any new cause of action to the claim which was already dead and stale and for which the period of limitation expired long back.

In Union of India & Others Vs. M.K. Sarkar (2010) 2 SCC 58, the Hon'ble Apex Court held as under:-

"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".

Even on merits, as rightly pointed out and explained in the Annexure A-1 order dated 07.12.2015, the applicant having accepted the appointment in the substantive post of Cleaner and in the pay scale attached thereto on 24.12.1964 and who enjoyed three promotions in the hierarchy of Cleaner and who voluntarily retired on 09.09.1992, cannot contend that he was entitled to be appointed as Mistry (Electrician) in the year 1964 and with all consequential benefits in that hierarchy.

In the circumstances and for the aforesaid reasons, the OA is dismissed on the point of limitation and also on merits. No costs.