Full Text
HIGH COURT OF DELHI
Date of Order : 28th January, 2020
SAVITRI ..... Petitioner
Through: Mr.Rajat Malhotra and Mr.Uday Arora, Advocates
Through: Ms.Manpreet Kaur Bhasin, G.P. for UOI for respondents no.1 and 2.
HON'BLE MR. JUSTICE ANUP JAIRAM BHAMBHANI
JUDGMENT
Exemption is allowed subject to just exceptions.
Application stands disposed of.
The petitioner impugns order dated 07.02.2019 made by the
Central Administrative Tribunal (‘Tribunal’ for short) in M.A.
No.3616/2017 in O.A. 2797/2017, whereby the Tribunal has dismissed the petitioner’s application seeking condonation of delay of about 6 years in filing the O.A.; and has thereby also dismissed the O.A. as being time-barred. The petitioner also impugns order dated 05.08.2019, whereby M.A. No.2464/2019 seeking condonation of delay in filing a review application has also been rejected by the Tribunal by circulation, on the ground that no sufficient reason has been cited to condone the delay; and as a result, the review application also stands rejected.
2020:DHC:594-DB
2. The genesis of the matter is an application made by the petitioner for appointment to the post of ‘Junior Hindi Translator’ and ‘Hindi Pradhyapak’ in different offices/divisions of the Ministry of Defence. The petitioner is aggrieved by letter dated 15.07.2016 whereby the petitioner’s candidature in the Scheduled Caste category has been rejected, although according to the petitioner, she was eligible; had qualified the written test; and had even been asked to appear for interview.
3. Since no view was taken by the Tribunal on the merits of the petitioner’s contentions and the O.A. as well as the review application have been rejected on point of limitation, we confine our discussion only to the issue of whether the petitioner was entitled to condonation of delay in filing both applications. On the issue of delay in filing the Original Application
4. It is the petitioner’s contention in the present petition, that:
11. Section 20 of the Act further mandates that an application would not ordinarily be admitted by the Tribunal unless other administrative remedies have been exhausted by an applicant. Section 20 of the Act reads as under: “20. Applications not to be admitted unless other remedies exhausted.— (1) A Tribunal shall not ordinarily admit an application unless it is satisfied that the applicant had availed of all the remedies available to him under the relevant service rules as to redressal of grievances. (2) For the purposes of sub-section (1), a person shall be deemed to have availed of all the remedies available to him under the relevant service rules as to redressal of grievances,— (a) if a final order has been made by the Government or other authority or officer or other person competent to pass such order under such rules, rejecting any appeal preferred or representation made by such person in connection with the grievance; or (b) where no final order has been made by the Government or other authority or officer or other person competent to pass such order with regard to the appeal preferred or representation made by such person, if a period of six months from the date on which such appeal was preferred or representation was made has expired. (3) For the purposes of sub-sections (1) and (2), any remedy available to an applicant by way of submission of a memorial to the President or to the Governor of a State or to any other functionary shall not be deemed to be one of the remedies which are available unless the applicant had elected to submit such memorial.”
12. While it is only natural for an aggrieved party to attempt a resolution of a grievance by making representations before governmental authorities, hoping for a review of an adverse decision without having to resort to the somewhat arcane and cumbersome procedures of approaching a court or a tribunal, as a matter of legal policy a period of limitation is prescribed under various statutes, for the following purpose, as explained by the Supreme Court[1]: 1 N. Balakrishnan vs. M. Krishnamurthy: (1998) 7 SCC 123 “11. Rules of limitation are not meant to destroy the rights of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. The law of limitation fixes a lifespan for such legal remedy for the redress of the legal injury so suffered. Time is precious and wasted time would never revisit. During the efflux of time, newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the courts. So a lifespan must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. The law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae up sit finis litium (it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the rights of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time.”
13. In the present case, the Act mandates that a proceeding may be filed before the Tribunal within one year: a. of the date on which a final order is made by the Government or other authority rejecting any appeal or representation made by a person (Section 20(2)(a)); b. after expiration of a period of six months from the date on which an appeal or representation is made, if the Government or other authority has not made a final order on such appeal or representation by that time (Section 20(2)(b)); and c. with the further qualification that the submission of a memorial to the President or Governor or any other functionaries is not deemed to be one of the remedies available to a person, unless the person has elected to submit such memorial.
14. Ergo the Act not only provides a period of limitation under section 21, it also statutorily provides that an application shall not ordinarily be admitted by a Tribunal unless an aggrieved person has first availed administrative remedies by way of an appeal or representation or memorial. Other things apart, it is also stipulated that an aggrieved person must wait for a period of six months for a final order to be made by the administrative authorities on a representation or appeal, failing which the person would be entitled to approach the Tribunal even if such final order has not been made. Upon a conjoint reading of sections 20 and 21 of the Act, it is evident that a period of six months has already been factored-in, to allow a person to avail administrative remedies by way of appeal or representation; and it is only after a final order is made or, if six months have elapsed, without a final order being made by the administrative authorities, that the limitation period of one year will start running.
15. It is of course true that section 21(3) gives discretion to the Tribunal to admit an application even after the expiration of the limitation period, if the applicant satisfies the Tribunal that there was sufficient cause for not making the application within the stipulated time.
16. The issue at hand has been conclusively settled by the decision of the Supreme Court in Union of India Vs. M.K. Sarkar[2], where the Supreme Court was considering a case in which, in the first round, the Tribunal had allowed an O.A. without examining its merits and had directed the governmental authority to consider the applicant’s representation. The representation having been rejected, the applicant approached the Tribunal again with the same grievance, but well after 2010 (2) SCC 59 the expiration of the period of limitation. In this backdrop in M.K. Sarkar (supra), the Supreme Court observed as under: “14. The order of the Tribunal allowing the first application of respondent without examining the merits, and directing the appellants to consider his representation has given rise to unnecessary litigation and avoidable complications. The ill-effects of such directions have been considered by this Court in C. Jacob v. Director of Geology and Mining [(2008) 10 SCC 115: (2008) 2 SCC (L&S) 961]: (SCC pp. 122-23, para 9)
9. The courts/tribunals proceed on the assumption, that every citizen deserves a reply to his representation. Secondly, they assume that a mere direction to consider and dispose of the representation does not involve any ‘decision’ on rights and obligations of parties. Little do they realise the consequences of such a direction to ‘consider’. If the representation is considered and accepted, the ex-employee gets a relief, which he would not have got on account of the long delay, all by reason of the direction to ‘consider’. If the representation is considered and rejected, the ex-employee files an application/writ petition, not with reference to the original cause of action of 1982, but by treating the rejection of the representation given in 2000, as the cause of action. A prayer is made for quashing the rejection of representation and for grant of the relief claimed in the representation. The tribunals/High Courts routinely entertain such applications/petitions ignoring the huge delay preceding the representation, and proceed to examine the claim on merits and grant relief. In this manner, the bar of limitation or the laches gets obliterated or ignored. “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 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.
16. 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 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.”
17. While the above discussion and observations of the Supreme Court are with reference to delay caused by reason of the court/tribunal having remitted a matter back to the administrative authorities for considering a representation made by an aggrieved party, the principle laid down is clearly that the question of limitation, or of delay and laches, should be considered with reference to the original cause of action and not with reference to the date on which a representation is decided by administrative authorities.
18. Even otherwise, there is no provision of law which provides for extension or exclusion of time spent in making representations to administrative authorities for the purpose of computing the period of limitation or of condonation of delay. To that extent, section 20 of the Act is in fact a salutary provision that expressly affords an opportunity to an aggrieved person to make a representation or an appeal before the administrative authorities; and to exhaust all administrative remedies to that extent, before invoking the formal judicial procedures under the Act. However, even section 20 provides that a representation or an appeal having been made, if the same is not finally decided within a period of six months, an aggrieved person would be entitled to invoke the formal judicial procedure by filing an original application before the Tribunal. It is accordingly provided that where a representation or appeal made has not been finally decided, the limitation period of one year would be reckoned from the date when such period of six months runs-out.
19. In this view of the matter, there is little scope for contending that an aggrieved person must be granted any further relaxation in the limitation period stipulated under the Act. In the present case, it is seen that the petitioner lingered on making representation upon representation, before multiple administrative authorities including one to the Prime Minister's Office, before invoking her legal remedy by filing the O.A. before the Tribunal.
20. At this point we may also discuss the principles to be applied for considering an application seeking condonation of delay under the general law of the land.
21. In Esha Bhattacharjee Vs. Managing Committee of Raghunathpur Nafar Academy & Others[3], the Supreme Court has culled-out the principles to be applied while considering the issue of condonation of delay, while adding some other principles/guidelines taking note of the current scenario, in the following words:
the underscored principles being our guide for the present case.
22. We may also refer to the precedent cited by the Tribunal while dismissing the O.A. viz. Chennai Metropolitan Vs. T.T. Murali Babu[4]. This however is a decision on the doctrine of delay and laches in filing a writ petition. Since it is nobody’s contention that the present writ petition suffers from delay and laches, we do not think it relevant to discuss this decision.
23. On their part, the respondents have cited Pardeep Kumar vs. Union of India and Ors.5, in which a Division Bench of this court had declined to entertain a writ petition filed impugning a rejection letter dated 17.04.2012 since the writ petition was filed on 13.04.2017, that is five years after the impugned letter. The Division Bench accordingly declined to entertain the petition on the ground of delay and laches and also observed that the recruitment process under challenge in that matter was long over; that granting relief in the writ petition would set the clock back by 4-5 years; and that that would lead to administrative difficulty and chaos. The court in that matter also said that the petitioner had failed to explain the long delay of 4-5 years satisfactorily and thereby dismissed the writ petition. Pardeep Kumar (supra) is however again a decision relating to delay and laches; and would not have direct bearing on this case.
24. The respondents have also placed reliance on P.K. Ramachandran vs. State of Kerala and Anr.[6] citing the following observations of the Supreme Court in that case: “6. Law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the statute so prescribes and the courts have no power to extend the period of limitation on equitable grounds. The discretion exercised by the High Court was, thus, neither proper nor judicious. The order condoning the delay cannot be sustained. This appeal, therefore, succeeds and the impugned order is set aside. Consequently, the application for condonation of delay filed in the High Court would stand rejected and the miscellaneous first appeal shall stand dismissed as barred by time. No costs.” W.P.(C) 3410/2017 decided on 22.05.2017
25. On the O.A. being dismissed, the petitioner filed a review application; and from a reading of impugned order dated 05.08.2019, it would appear that the delay in filing the review application is about 135 days. Since we have considered the issue of delay in filing of O.A. itself, it is not necessary to delve into the question of delay in filing the review application. Accordingly, we refrain from doing so.
26. Based upon the aforecited factual backdrop and judicial precedents, we would crystalize our inferences and conclusions, to say: (a) that in the present case, to be sure, the issue is not of delay and laches in filing the present writ petition but of inordinate delay of about 6 years in filing the O.A. and of about 135 days in filing the review application before the Tribunal, which is beyond the prescribed period of limitation; (b) that mere engagement with a governmental authority by filing multiple representations or complaints or appeals, will neither extend limitation; nor would it be permissible to exclude the time spent in making such representations/complaints/appeals for computing the period of limitation under section 21 read with section 20 of the Act. Accordingly, regardless of the reasons why the petitioner spent almost six years in filing and chasing-up on representations and appeals preferred before various administrative authorities; and regardless of the response of the authorities thereto, such period has to be counted towards the delay in filing the O.A. before the Tribunal; by reason of which the Tribunal has correctly held the O.A. to have been filed way beyond the period of limitation provided under section 21 of the Act.
(c) that since the only cause cited by the petitioner for not filing the
O.A. within the one year limitation period prescribed under section 21 is that the petitioner was pursuing her representations/appeals/memorials before various administrative authorities, in view of the settled law as cited and discussed above, this reason cannot be regarded as ‘sufficient cause’ within the meaning of section 21(3) of the Act for condoning the delay and admitting the application after the period of limitation.
27. In view of the above, the contentions raised by the petitioner cannot be accepted.
28. We therefore see no infirmity in Tribunal’s orders dated 07.02.2019 and 05.08.2019; and thereby no reason to interfere with the impugned orders. We accordingly see no reason to entertain the present writ petition in our extra-ordinary jurisdiction under Article 226 of the Constitution.
29. The writ petition is accordingly dismissed.
ANUP JAIRAM BHAMBHANI, J G.S. SISTANI, J JANUARY 28, 2020