Nita Chowdhury, Member (A)
1. Heard learned counsel for the parties and perused the material available on record.
2. This Review Application is filed by the original applicant seeking review of the Order dated 15.9.2008 passed in OA No.1241/2008 by this Tribunal.
3. Counsel for the review applicant submitted that this Review Application has been filed pursuant to liberty granted by this Tribunal vide Order dated
18.1.2016 in OA No.601/2013 although there is a delay of about 2762 days in filing the present Review Application. Counsel also submitted that he
has filed MA for condonation of delay in filing the present Review Application in which he has stated the reasons for delay in filing the same and the
same is neither intentional nor deliberate but due to the reasons as explained in the Delay Condonation Application.
4. Counsel for the review respondents submitted that they have clearly explained in their counter affidavit that the instant Review Application is
hopelessly barred by limitation as the Review is required to be filed within 30 days from the date of Order, which is sought to be reviewed, as Rule 17
of the CAT (Procedure) Rules, 1987, did not confer power to condone the delay, unless the review application is filed within a period of 30 days as
prescribed under the said rules, it is liable to be dismissed. The review respondents have also urged that the applicant in the review application has not
come with clean hands. The reasons assigned for delay are vague and not proper. It has further been urged that once an order passed by this Tribunal
in the aforementioned O.A. has been implemented, it is not open to applicant to file the present R.A. Learned Counsel for the review respondents has
strenuously urged that in view of the law laid down by the Hon'ble Supreme Court in K. Ajit Babu and Ors. v. Union of India and Ors., 1997(6) SCC
473, the right of review is not a right of appeal where a question decided is open to challenge and review is possible only on limited grounds. It is urged
that right of review is available if such an application is filed ""within the period of limitation."" In other words, it is contended, that unless the review
application is filed within a period of 30 days as prescribed under Rule 17 of the Rules, filing of the review application after the said period is not
maintainable at all and there is no power available to this Tribunal to condone the delay.
4.1 Counsel for the review respondents also placed reliance on the judgments of Honâ€ble Apex Court in the cases of State of Punjab vs. Gurdev
Singh, (1991) 4 SCC 1 ,UOI vs. Ratan Chandra Samanta, JT 1993 (3) SC 418H, arish Uppal vs. Union of India, JT 1994 (4) SC 126 A, jay Walia vs.
State of Haryana and others, JT 1997 (4) SC 592,U nion of India vs. M.K. Sarkar, (2010) 2 SCC 59, D.C.S. Negi vs. Union of India and others. in
Appeal (Civil) No.7956/2011, decided on 7.3.2011. Counsel lastly submitted that the instant Review Application is liable to be dismissed by this
Tribunal on the ground of limitation.
4.2 Counsel further submitted that pursuance to the Order of this Tribunal dated 15.9.2008, the applicant joined as TGT (Hindi) on 11.2.2009.
Thereafter the applicant filed OA 270/2012, which was disposed of vide Order dated 25.1.2012 and thereafter CP no.368/2012 was also filed which
was disposed of on 17.7.2012. Thereafter applicant filed OA 601/2013, which came up for hearing on 18.1.2016, then the counsel for respondents
raised the question of res-judicata. Counsel further submitted that even if any liberty is granted to the review applicant cannot go against the said
provisions and the said liberty is only for seniority and pay provided she has not prayed it in the earlier OA, therefore, the principles of res-judicata will
be applicable to her and the RA may be dismissed on this sole ground as the review applicant cannot be permitted to re-ague the matter at this stage
in view of the Honâ€ble Supreme Court judgment in Meera Banja (Smt.) vs. Nirmala Kumari Choudhury (Smt.), (1995) SCC 17,0 in which Apex
Court held that Review Application must be confined to error apparent on the face of record and the court cannot go again on merits of the case. As
there is no error apparent on the face of record or discovery of new material, which was not available with the review applicant despite due diligence
at the time of final hearing.
4.3 Counsel further submitted that review applicant vide result/notice/office order no.79 dated 16.10.2008 given her merit position at Sl. No.21 as UR
â€" 115 and the final seniority list issued on 27.4.2011 shows her name at sl. No.1022, seniority no.4277 and penal order as 79/16.10.2008.
5. It is an admitted fact that the present Review Application is filed against the Order passed in OA 1241/2008 and other connected cases, which was
dated 15. 9.2012, and the present Review Application was filed on 8. 4.2016 and admittedly there is delay of about 2762 days in filing the present
Review Application. The plea of the counsel for the review applicant that the present Review Application is filed in view of liberty granted by this
Tribunal vide Order dated 18.1.2016 passed in OA 601/2013 which was filed by the instant review applicant seeking seniority and pay and allowances
at par with his counterparts who were selected pursuance the same selection in which applicant had also participated but she was deprived the
appointment as Delhi Subordinate Staff Selection Commission did not declare her result and the same was declared pursuant to the Order dated
15.9.2008 and thereafter the applicant was appointed to the post in question and joined on 11.2.2009.
6. Further this Court found that this RA was filed on 8. 4.2016 and as per the averment of the review applicant, the same was filed in pursuance of
liberty granted by this Tribunal vide Order dated 18.1.2016 passed in OA 601/2013 even then the present Review Application is not filed within the
period of 30 days from the date of said Order. The ground for delay as stated in the MA is that “for filing the review, the record of the present OA
was required, which was not available with the applicant as the files were with her counsel, who had expired.†Later on another MA was filed by the
applicant in which she sought amendment in the earlier MA to the extent that “for filing the review record of the present OA was required, which
was not available with the applicant.â€
This ground is not sufficient to condone the delay in filing the Review Application as this RA was filed on 8.4.2016 and the so called liberty was
granted by this Tribunal by Order dated 18.1.2016 and as such the RA should have been filed on or before 17.2.2016, although the review applicant is
seeking review of order which was passed on 15.9.2008 in OA 1241/2008. As such there is admittedly a considerable delay in filing the present
Review Application. The Honâ€ble Apex Court in its Judgment in D.C.S. Negi v. Union of India & others (Civil Appeal No.7956 of 2011) decided on
7.3.2011, condemned entertaining of the OAs by the Tribunal in disregard of the limitation prescribed under Section 21 of the Administrative Tribunals
Act 1985. In the said order, following observations were made:
“Before parting with the case, we consider it necessary to note that for quite some time, the Administrative Tribunals established under the Act
have been entertaining and deciding the Applications filed under Section 19 of the Act in complete disregard of the mandate of Section 21. ….. Since
Section 21 (1) IS COUCHED IN NEGATIVE FORM, IT IS THE DUTY OF THE Tribunal to first consider whether the application is within
limitation. An application can be admitted only if the same is found to have been made within the prescribed period or sufficient cause is shown for not
doing so within the prescribed period and an order is passed under section 21 (3).â€
7. In the case of Union of India & others v. A. Durairaj (dead) by LRs, JT 2011 (3) SC 254, the Honâ€ble Supreme Court ruled as under:-
“13. It is well settled that anyone who feels aggrieved by non-promotion or non-selection should approach the Court/Tribunal as early as possible.
If a person having a justifiable grievance allows the matter to become stale and approaches the Court/Tribunal belatedly, grant of any relief on the
basis of such belated application would lead to serious administrative complications to the employer and difficulties to the other employees as it will
upset the settled position regarding seniority and promotions which has been granted to others over the years. Further, where a claim is raised beyond
a decade or two from the date of cause of action, the employer will be at a great disadvantage to effectively contest or counter the claim, as the
officers who dealt with the matter and/or the relevant records relating to the matter may no longer be available. Therefore, even if no period of
limitation is prescribed, any belated challenge would be liable to be dismissed on the ground of delay and laches.
14. This is a typical case where an employee gives a representation in a matter which is stale and old, after two decades and gets a direction of the
Tribunal to consider and dispose of the same; and thereafter again approaches the Tribunal alleging that there is delay in disposal of the representation
( or if there is an order rejecting the representation, then file an application to challenge the rejection, treating the date of rejection of the
representation as the date of cause of action). This Court had occasion to examine such situations in Union of India v.M.K.Sarkar 2010 (2) SCC 58
and held as follows:
The order of the Tribunal allowing the first application of Respondent without examining the merits, and directing Appellants to consider his
representation has given rise to unnecessary litigation and avoidable mcomplications. 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 for 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 courtâ€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. 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. 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 effectâ€.
9. In view of the above and for the foregoing reasons, the MA seeking condonation of delay in filing the Review Application is rejected as the grounds
raised in the MA for condoning the delay are not sufficient and justifiable to condone the delay. Accordingly, the present Review Application is also
dismissed being barred by limitation.
