Principal Raja Balwant Singh ... vs Dr. Sunder Singh And Others
2019 Latest Caselaw 4347 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

					 		Reserved  on 17.04.2019
 
				           		Delivered on 10.05.2019
 

 
Court No. - 29
 

 
Case :- WRIT - A No. - 53378 of 2012
 

 
Petitioner :- Principal Raja Balwant Singh College
 
Respondent :- Dr. Sunder Singh And Others
 
Counsel for Petitioner :- Smt. Durga Tiwari
 
Counsel for Respondent :- A.S.G.I.,M.N.Singh,S.C.,V.K. Singh
 
And
 
Case :- WRIT - A No. - 33536 of 2012
 

 
Petitioner :- Union Of India And Others
 
Respondent :- Dr. Sunder Singh And Others
 
Counsel for Petitioner :- Ramesh Chandra Shukla
 
Counsel for Respondent :- G.K. Singh,V.K. Singh
 

 
Hon'ble Pankaj Mithal,J.

Hon'ble Prakash Padia,J.

These two petitions under Article 226 of the Constitution of India, one by the Principal Raja Balwant Singh College, Agra and the other by the Union of India and others challenges the same order dated 02.12.2011 passed by the Central Administrative Tribunal, Allahabad Bench, Allahabad.

The Tribunal by the aforesaid order set aside/quashed the order dated 05.10.1996 of the Principal denying the respondents No.1, 2 & 3 the same pay-scale equal to that of Assistant Statistician of Rs.3700-5700/- w.e.f. 1st November, 1996 on completion of 13 years of their service and issued directions not only to the Principal but to the Union of India, the department of Agriculture and Co-operative Government of India Directorate of Economic and Statistics (Cost Study Branch) to make payment of the said pay-scale to the respondents No.1, 2 & 3 at par with one A.K. Jain within a period of three months of the submission of the copy of its order.

The respondents No.1, 2 & 3 were appointed sometime between September, 1978 to October, 1983 on the post of Field Supervisor in the college concerned. On completion of 5 years of service they were given senior scale of Rs.3000/- to Rs.5000/- w.e.f. 1st November, 1988. They became entitle to the pay-scale of Rs.3700-5400/- w.e.f. 1st November, 1996 on completion of 13 years of service but the Principal vide order dated 05.10.1996 changed the pay-scale to Rs.2200-4000/- as was available to the non-teaching staff allegedly on the directions of the Ministry of Agriculture, Government of India.

The respondents No.1, 2 & 3 preferred original application before the Tribunal seeking quashing of the above order of the Principal dated 05.10.1996 and for a direction to make payment to them @ Rs.3700-5700/- at par with A.K. Jain, who was working as Assistant Statistician. The said Original Application has been allowed by the order impugned.

We had heard Smt. Durga Tiwari learned counsel for the Principal Raja Balwant Singh College, Agra and Sri R.C. Shukla, learned counsel for the Union of India and others as well as Sri Samarth Singh, learned counsel for the private parties i.e. Dr. Sunder Singh, Dr. Kayam Singh Shosodiya and Dr. Ram Veer Singh Gautam in both the petitions.

Smt. Durga Tiwari, assails the aforesaid order of the Tribunal on following two counts:-

(i) the original application before the Tribunal was patently barred by limitation and could not have been allowed as there was no application seeking condonation of the delay and the delay was not condoned; and

(ii) the Tribunal manifestly erred in granting parity in the payment of pay-scale to the respondents No.1, 2 & 3 at par with A.K. Jain, who was an Assistant Statistician and the grant of the pay-scale of Rs.3700-5700/- to him was under special orders which itself provided that it would not be a precedent for others.

Sri R.C. Shukla, adopted the arguments of Smt. Durga Tiwari and could not add anything new so as to assail the order of the Tribunal.

Sri Samarth Singh, in defence submitted that the cause of action for filing original application was of a recurring nature. It was not barred by time and there was no need for seeking condonation of delay in filing the same. He added that the petitioners failed to take the plea of limitation before the Tribunal and no argument was advanced in that regard and as such they are not entitle to raise it at this stage. He relied upon a Division Bench decision of the Lucknow Bench of this court in the case of Nand Lal1 to contend that delay and latches is no bar to oust legitimate claim of the parties and therefore the O.A. could not have been dismissed on that ground or for want of limitation. Reliance was also placed by him upon Mohd. Akram Ansari2 to support the argument that the plea not raised in the initial stage cannot be raised subsequently in the higher forum.

A perusal of the Original Application as filed by the respondents No.1, 2 &3 which is part of the petition as annexure-2 clearly reveals that the challenge before the Tribunal was to the order dated 05.10.1996 passed by the Principal of the College and the ancillary relief was for a direction to make payment of salary in the pay-scale of Rs.3700-5700/- at par with A.K. Jain, who was directed by the Department of Agriculture and Cooperative and the Directorate of Economic and Statics vide letter dated 06.03.1995 for payment of the said scale. The ancillary relief is dependent upon the first relief where the demand is for quashing of the order of the Principal. Therefore, the ancillary relief is not admissible unless the order of the Principal is quashed. In this situation the basic challenge is to the order dated 05.10.1996 passed by the Principal.

Section 21 of the Administrative Tribunal Act, 1985 (hereinafter referred to as the Act) provides for the limitation for filing application before the Tribunal. It provides that in case of a final order it would be one year from the date of the said order and in case where an appeal or representation has been made and a period of six months has expired but without any final order, the limitation would be one year from the date of expiry of six months from the filing of such appeal or representation i.e. it would be one and a half year of the grievance or there cause.

In view of the above provision which is clear and explicit, there is no room to doubt that the period for approaching the Tribunal by way of an Original Application is one year if the challenge is to the final order and one year six months where a appeal/representation is made to the authority and it is not decided. The respondents No.1, 2 and 3 preferred the Original Application in 2004 so as to challenge the order dated 05.10.1996 and as such it was patently barred by limitation as provided under Section 21 of the Act.

Section 21(3) of the Act authorises the Tribunal to condone the delay in filing Original Application if the applicants satisfies the Tribunal that he was prevented by sufficient cause from making the application within the time prescribed. The said satisfaction can only be recorded if there is an application explaining the reasons that prevented the applicant to approach the Tribunal in time and some supporting material. In the absence of such an application the Tribunal cannot record its satisfaction for condoning the delay.

In other words the Tribunal is empowered to condone the delay in filing the Original Application if the applicant satisfies that he was prevented by sufficient cause from filing it within time meaning thereby that the applicant in such a case should always move an application for condonation of delay in filing the Original Application.

In the instant case, admittedly no application was moved by the respondents No.1, 2 & 3 for getting the delay condoned nor the delay was condoned. Therefore, in the absence of any such application or any material on record which could have satisfied the Tribunal to condone the delay, the Original Application could not have been entertained and allowed. It rather ought to have been dismissed as barred by limitation.

The submission that the question of limitation cannot be pressed into motion at this stage primarily on the basis of the decision in the case of Nand Lal (Supra) and that of the Supreme Court in the case of Mohd. Akram Ansari (Supra) is not of any help to the respondents No.1 to 3.

The case of Nand Lal is in connection with the filing of a writ petition before the High Court. It was in that context that the court said that delay and latches do not bar the jurisdiction of the court since it lies in the discretion of the court.

The aforesaid decision was rendered as no time limitation is prescribed for invoking the writ jurisdiction though as a matter of procedure it has been recognised that a writ petition ought to be filed without any delay preferably within a period of three months of the cause of action. The ratio of the said decision would not apply to proceedings which are of a statutory nature and where specific time limit has been prescribed for availing the remedy.

The period of limitation prescribed by the Section 21 of the Act cannot be nullified or circumvented at the discretion of the Tribunal.

In Mohd. Akram Ansari (Supra) the Supreme Court observed that the presumption is that Judge deals with all points that are pressed before him and if a point is not mentioned in the judgement of the court the presumption is that point was never pressed before the Judge and was actually given up.

On its basis the submission is that the petitioner having given up the point of limitation cannot raise it before this court.

The preposition of law laid down by the aforesaid decision is of a general nature relating to other grounds but it cannot be applied to the point of limitation for the reason that the question of limitation is generally open to be taken up at any stage of the proceeding even in an appeal or a Second Appeal. This is on the basis of the principle enshrined under Section 3 of the Limitation Act which provides for dismissal of every suit instituted, the appeal preferred and application made after the prescribed period even though limitation has been set up as a defence. Therefore, setting up of defence on the basis of limitation is not essential rather it is supposed to be the duty of the court to see if the proceedings are within time or not. It is for this reason that the courts have very often held that the issue of limitation is open to be raised at any stage.

In D.C.S. Negi3 in respect to matter arising Central Administrative Tribunal, the Supreme Court laid down that the Tribunal cannot admit an application unless the same is within time prescribed or an order is passed in terms of Sub-Section (3) of Section 21 of the Act for entertaining application after the prescribed period.

It was further held that it is the issue of the tribunal to first considering the issue of limitation and only thereafter if it is found to be within time or sufficient cause is shown for not filing it within time the Tribunal can admit it and the fact that no objection was raised regarding limitation would be of no use as Tribunal cannot abdicate its duty to act in accordance with the statutory principles and ignore the issue of limitation.

It may be pertinent to point out that it is not the case where the petitioners have not pleaded or raised the point of limitation before the Tribunal. The petitioners have filed counter affidavit to the original application supported by an affidavit wherein not only in paragraph 11 but also in paragraph 12 it was categorically alleged that the challenge is to the order dated 05.10.1996 passed by the Principal, the applicants i.e. respondents No.1, 2 & 3 have slept over their rights and therefore, are not entitle for any relief by the Tribunal, the Original Application filed by them is time bared and is liable to be rejected on this ground alone.

Thus, we find that the petitioners pleaded the issue of limitation though it may not have been addressed by the Tribunal.

In view of the aforesaid facts and circumstances, we are not at all convinced that the proceedings initiated by the respondents No. 1, 2 & 3 before the Tribunal by way of Original Application were within time. Since there was no application for condoning the delay in filing the Original Application and the delay was not condoned, the Tribunal manifestly erred in law in entertaining and deciding the Original Application on merits, rather it was liable to be dismissed on the ground of limitation alone.

In connection with the second point regarding grant of parity to the respondents No.1, 2 and 3 at par with A.K. Jain it may be worth noting that the respondents No.1, 2 & 3 worked as Field Officers whereas the aforesaid A.K. Jain was an Assistant Statistician. He was granted pay scale of Rs.3700-5700/- vide letter dated 06.03.1995 of the Government of India, Ministry of Agricultural, Department of Agricultural and Co-operation/Department of Economics and Statistics that the said pay-scale was restored to him purely for personal reason in unequivocal terms that it will not be a precedent for any other staff of the College. Therefore, it is evident that the case of A.K. Jain was distinguishable from that of the respondents No. 1, 2 & 3. The grant or restoration of pay-scale of Rs.3700-5700/- to him cannot be a precedent for granting the same pay scale to others. Moreover, since he was granted the benefit as a special case, he may not otherwise be entitle to it in law. There are no pleadings anywhere that he was legally entitled to the said pay-scale and was rightly paid. It is well recognised that the concept of equality is a positive concept and the court cannot grant any benefit on the basis of that which has been extended to one another person unless it is established that the said person was legally allowed the said benefit whereas others have been unnecessarily deprived of it.

The court cannot issue a mandate for commission of another illegality or to pass a wrong order or to extend benefit which is not legally admissible. This is the view that has been expressed by the Supreme Court in Usha Mehta 4

In view of above legal position, we are of the opinion that the Tribunal erred in law in directing for the payment of the same pay-scale as was given to A.K. Jain to the respondents No.1, 2 &3.

Accordingly, we find that the judgment and order of the Tribunal herein dated 02.12.2011 is unsustainable on both the counts and is liable to be quashed. It is accordingly, quashed.

The Writ Petitions are allowed.

Order Date :- 10.05.2019

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