UNION OF INDIA Vs. MANOJ BIGHAVINE

JUDGEMENT

(1.) Challenging the order dated 7.9.2009 passed by the Central Administrative Tribunal (for short âCATâ) in the matter of directing the Union of India to appoint the respondent -employee as TGT (Physical Education) WP No.12005/2009 has been filed by the Union of India and rejecting the claim of the candidate concerned in denying him the benefit of seniority and other monetary benefit of back wages WP No.15083/2013 has been filed by the candidate in question. That apart it is stated that certain posts are available in the Regional Institution of Education at Ajmer, and therefore the petitioner in WP No.15083/13 should be accommodated in the said institution.

(2.) An advertisement was issued by the National Council of Education Research and Training, New Delhi notifying one vacancy of a Teacher in the Physical Education Department reserved for an OBC candidate. The petitioner is said to have appeared and participated in the process of selection. The written test and screening was conducted and one Dipak Lakheraârespondent No.3 was appointed vide order dated 9.8.2004. Challenging the said appointment and contending that the petitioner is more meritorious than Lakhera, a representation was submitted on 5.11.2004 and this representation was rejected on 17.11.2004. After this representation was rejected nothing was done by the petitioner, but another representation seems to have been submitted by his father. When this representation submitted by his father was also rejected on 12.4.2005, a writ petition was filed before the High Court being WP No.2300/2006 and on 8.10.2007 when the said writ petition came for consideration before a bench of this Court it was found that the matter pertains to an appointment on the post in a department/establishment under the Union of India and the jurisdiction to deal with such matter pertaining to recruitment rests with the Central Administrative Tribunal, and therefore on 8.10.2007 the employee was directed to take the recourse of the remedy available under the Administrative Tribunals Act, 1985 and accordingly in the year 2007 an application was filed before the Central Administrative Tribunal and on 6.8.2009 after the delay in filing of the application was condoned, the matter was considered on merit and holding that the petitioner employee concerned i.e. respondent Manoj Bijghavine in WP No.12005/09 and the petitioner in WP No.105083/2013 had obtained more marks than Dipak Lakhera, it was directed that he should be accommodated by giving him a suitable post. However, on going through the order passed by the Tribunal, we find that the order was passed on the basis of pleading of the parties, as the Secretary of the Union of India filed an affidavit indicating that after result was declared in the year 2004 the documents pertaining to the examination/selection process are not available, and therefore they are unable to give any reply to the allegations made in the application. In this regard an affidavit of Dr. A.B. Saxena, Principal of the Regional Institute of Education, Bhopal was filed and by reference into the provisions of Section 114(g) of the India Evidence Act, 1872 the Tribunal has taken adverse inference, due to non - production of the document and the impugned order was passed.

(3.) Shri Ashok Lalwani, learned counsel for the petitioner raised two contentions in support of WP No.12005/2009. His first contention was that under Section 21 of the Administrative Tribunals Act, 1985 an application has to be filed within one year from the date of a decision taken and if no decision is taken within one year after a period of six months from the date of submission of the representation, he argues that the claim of the petitioner and his representation was rejected on 17.11.2004 and the application filed under Section 19 of the Administrative Tribunals Act, 1985 in the year 2007 i.e. on 23.10.2007 was barred by limitation and even if the limitation is calculated with reference to the date when the second representation made by the father of Manoj Bijghavine was decided on 12.4.2005 the period is beyond one year. It is said that merely because the petitioner took recourse to file a writ petition in the High Court, the delay could not be condoned. That apart he submits that because of delay of three years in initiating the proceeding, the records with regard to selection were not traceable and if when affidavit was submitted by the Principal of the Regional Institute of Education, Bhopal, the adverse inference could not be drawn under Section 114 of the Indian Evidence Act. Accordingly, Shri Lalwani submits that the learned Tribunal has committed an error in deciding the application in favour of the employee concerned and therefore the directions issued by the Tribunal should be quashed.