Mukhtiar Singh v. Union of India

2. In this case, the petitioner was appointed to the post of Assistant Comptroller of Accounts on 01.01.2006; and it is claimed that he was eligible to be considered for promotion to the post of Deputy 2019:DHC:5205-DB Comptroller of Accounts in Senior Time Scale. The petitioner was scheduled to superannuate on 30.04.2006.

3. Accordingly, the petitioner requested the department to convene a Departmental Promotion Committee (‘DPC’) before the said date. However, the petitioner states till the time the petitioner superannuated, a DPC was not convened. Post his retirement on 30.04.2006, the petitioner made a representation on 17.07.2006 seeking notional promotion w.e.f. 01.01.2006; but this representation was also rejected on 16.11.2006.

4. Thereafter, the petitioner approached the National Commission for Scheduled Castes (‘Commission’) on 08.01.2007 seeking relief for the same grievance. The matter remained pending before the Commission for a period of 8 years; and thereafter a speaking order was passed on 12.08.2015. The respondent however expressed their inability to comply with the order of the Commission. Another representation made by the petitioner before the Commission was also rejected on 05.07.2017; following which the petitioner approached the Tribunal by way of the O.A.

5. The grievance of the petitioner is that the Tribunal has rejected his OA only on the ground of being barred by limitation, without deciding the matter on merits.

6. Learned counsel for the respondent has entered appearance on advance copy. Learned counsel submits that a reading of the impugned order would show that the grounds for delay have been duly considered in para 5, where the Tribunal has noted that the applicant, being the petitioner herein, had retired way back on 30.04.2006. He made a representation to his department on 17.07.2006; his request was turned down on 16.11.2006; and the OA filed in 2017 could not have been entertained after a gap of 11 years.

7. At this stage, we have asked counsel for the petitioner to elaborate the grounds for seeking condonation of delay. Learned counsel submits that almost a decade was spent before the Commission; and thus it cannot be said that the petitioner was responsible for the delay or that he was careless in not having pursued his remedies. He further submits that the final representation of the petitioner was rejected by the Commission on 05.07.2017 and the petitioner approached the Tribunal soon after, on 19.07.2017.

8. Learned counsel for the respondent has relied upon the judgment in the case of Union of India & Ors. vs. M.K. Sarkar reported as (2010) 2 SCC 59, para Nos. 14 & 15 of which read 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 illeffects of such directions have been considered by this Court in

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 latches.”

9. The facts recorded in the foregoing paras are not disputed; it is not disputed that the petitioner superannuated on 30.04.2006; it is also not in dispute that the representation was made by him soon after his retirement on 17.07.2006; and that the O.A. was filed only in 2017.

10. The fact of the petitioner having approached the Commission and the matter having remained pending there for a period of 8 years, in our view, cannot extend the period of limitation for inviting the petitioner’s legal remedy before the Tribunal. Moreover, the cause of action in this case arose when the first representation made to the department was rejected as far back on 16.11.2006; and not when the representations were made before the Commission in 2007 or 2017.

11. We may observe that the view taken in M.K. Sarkar (supra) that decisions on representatives made on ‘stale’ claims do not furnish a fresh cause of action has been followed even recently in the case of Union of India & Ors. vs. C. Girija & Ors. reported as 2019 SCC Online SC 187, in which case the Supreme Court has held under: