HARMINDER SINGH Vs. UNION OF INDIA THROUGH THE GENERAL MANAGER, NORTHERN RAILWAY, BARODA HOUSE, NEW DELHI

JUDGEMENT

(1.) APPLICANT has sought direction to the respondents No.1 and 2 to promote him to the post of Loco Shunter from the date when his juniors Mahipal Singh and Dharampal Singh were promoted to the post of Shunter and allow him all the consequential benefits.

(2.) IT is stated by the applicant that applicant and respondents No.3 and 4 are similarly situated persons inasmuch as applicant was initially appointed as casual labour on 1.6.1976 and had worked for 177 days from 1.7.1976 to 28.2.77. Thereafter he worked in different spells from 1978 to 1984. Respondent No.2 had issued a circular in the year 1987 inviting applications for some posts of Sub Loco Cleaners in Loco Shed in Moradabad Division and on 17.6.1988, applicant was appointed as Substitute Loco Cleaner. However, after verification of documents, applicant along with other persons, was terminated. One of such persons who were terminated, namely, Mithlesh Kumar Singh had filed a case in the Honble High Court of Allahabad which was transferred to the Tribunal and renumbered as TA 62/1988, challenging his termination and the order of termination was quashed with liberty to the respondents to conduct necessary enquiry in accordance with law. In the meantime, Respondents No.3 and 4 were re -engaged on 22.3.1988 as Loco Cleaners provisionally, subject to verification of their working days. The applicants suspension was set aside on 24.3.1995 and he was given duty on 25.3.1995. R -3 and R -4 were acquitted on 5.2.1997 in the enquiry, and on the same day, a provisional list was issued by respondent No.2 wherein applicant was placed at Sl.No.2 while R -3 and R -4 were placed at Sl.3 and 4 respectively. Respondents No.3 and 4 filed OA No.1683/2002 claiming benefit of the seniority from 1981 when they were empanelled on the basis of screening tests of 1980, as was given to Mithlesh Kumar Singh and others. Their OA bearing No.1683/2002 was allowed on 27.6.2003 and as a result, Respondents No.3 and 4 were promoted to the post of Shunter on 28.6.2005 ignoring the claim of the applicant. Being aggrieved, he gave a representation in February, 2008 but the same was rejected in an arbitrary manner on 30.10.2009. In these circumstances, he had no other option but to file the present OA.

(3.) RESPONDENTS have opposed this OA on the ground of limitation as applicant is seeking benefit of judgment dated 27.6.2003 after a lapse of over 8 years, therefore, OA is liable to be dismissed on this ground alone. Reliance has been placed on the following judgments: - (i) Shri Arun Kumar Aggarwal Vs. Nagreeka Exports Pvt. Ltd. And Another reported in 2002 (10) SCC 101. (ii) D.C.S. Negi Vs. Union of India and Others (SLP ( C) No. 7956/2011 decided on 7.3.2011 on the point of limitation. (iii) Ratan Chandra Sammanta & Ors vs. Union of India & Ors (JT 1993 (3) SC 418) wherein it was held that delay deprives the person of the remedy available in law. A person, who has lost his remedy by lapse of time, loses his right as well. (iv) S.S. Rathore Vs. State of Madhya Pradesh reported in AIR 1990 SC 10 wherein it has been held by the Honble Supreme Court that repeated representation do not extend the period of limitation. (v) Karnataka Power Corporation Limited Through Its CMD and another Vs. K Thangappan and another reported in (2006) 4 SCC 322 wherein the Hon ble Supreme Court held that mere making of representations cannot justify delay. (vi) Bhoop Singh Vs. UOI & Ors. reported in 1992 (2)SLJ 103 SC decided by three Judges Bench wherein it was held that inordinate and unexplained delay or laches is by itself a ground to refuse relief to the petitioner irrespective of the merit of his claim. If a person is entitled to a relief, chooses to remain silent long, he thereby gives rise to a reasonable belief in the mind of others that he is not interested in claiming that relief. (vii) Union of India and Others Vs. M.K. Sarkar reported in 2010 (2) SCC 59 (para 14) wherein it has been clarified by the Supreme Court as follows: - 14. The order of the Tribunal allowing the first application of the respondent without examining the merits, and directing the 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 cannot 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 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. (viii) P.K. RAMACHANDRAN Vs. STATE OF KERALA AND ANOTHER reported in JT 1997 (8) SC 189 wherein it has been held by the Honble Supreme Court that the law of limitation may harshly affect a particular party but it has to be applied with all its rigor when the statute so prescribe and the Courts have no power to extend the period of limitation on equitable grounds. The discretion exercised by the High Court was, neither proper nor judicious. The order condoning the delay, therefore, cannot be sustained. (ix) State of Karnataka and others V. S M Kotrayya and others, reported in (1996) SLR SC 664 wherein it was held as follows: 8. Thus considered, we hold that it is not necessary that the respondents should give an explanation for the delay which occasioned for the period mentioned in sub -sections (1) or (2) of Section 21, but they should give explanation for the delay which occasioned after the expiry of the aforesaid respective period applicable to the appropriate case and the Tribunal should be required to satisfy itself whether the explanation offered was proper explanation. In this case, the explanation offered was that they came to know of the relief granted by the Tribunal in August 1989 and that they filed the petition immediately thereafter. That is not a proper explanation at all. What was required of them to explain under sub -sections (1) and (2) was as to why they could not avail of the remedy of redressal of their grievances before the expiry of the period prescribed under sub -section (1) or (2). That was not the explanation given. Therefore, the Tribunal is wholly unjustified in condoning the delay. (x) Ramesh Chand Sharma etc. vs. Udham Singh Kamal & Ors, reported in 2000 (2) AISLJ S.C. 89 wherein Honble Supreme 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. They have thus submitted that the OA may be dismissed on the preliminary objections.