P.Venkatesan vs Secretary To The Govt. Of India And ...
2012 Latest Caselaw 1496 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                      Judgment delivered on 02.03.2012

+      W.P.(C) 1076/2012


P.VENKATESAN                                                    ...       Petitioner

                                        versus

SECRETARY TO THE GOVT. OF INDIA AND ANR.                        ...       Respondents

Advocates who appeared in this case:
For the Petitioner : Mr Krishna Kumar
For the Respondents: Mr Jatan Singh for UOI.


CORAM:
HON'BLE MR. JUSTICE BADAR DURREZ AHMED
HON'BLE MR. JUSTICE V.K.JAIN

                          JUDGMENT

BADAR DURREZ AHMED (ORAL)

CM 2365/2012(exemption)

Allowed, subject to all just exceptions

The application stands disposed of.

W.P.(C) 1076/2012 & CM 2364/2012(condonation of delay in re-filing the petition)

1. The petitioner's Original Application No.1355/2010 was dismissed by the Tribunal by an order dated 29.04.2010, inter alia, on the ground of limitation. The petitioner had moved a representation on 10.01.2008. That was not heeded to

according to the petitioner. Thereafter, the petitioner is stated to have filed another representation dated 15.04.2008 to the Cabinet Secretary who, according to him, is a competent authority. That was also not heeded to and, consequently, the petitioner approached the Tribunal by way of the said Original Application No.1355/2010 on 22.03.2010. The Tribunal came to the conclusion that while the petitioner had not been included in the panel for in-situ upgradation as Joint Secretary prepared in February, 2007, he had filed the Original Application after three years, only in 2010. His first representation was moved on 10.01.2008 and, thereafter, he kept making representations which were not responded to by the respondents. The Tribunal observed that in terms of Section 21 of the Administrative Tribunals Act, 1985, the petitioner's Original Application was barred by limitation. The Tribunal also noted that the petitioner had not even filed any application seeking condonation of delay.

2. The Tribunal had also found that the petitioner's case had no merit, however, we need not go into that aspect of the matter inasmuch as the petitioner has to first cross the hurdle of limitation.

3. Before us, the learned counsel for the petitioner submitted that the starting point should not be the representation dated 10.01.2008 because, according to him, that representation was made to the Secretary Personnel, Department of Personnel and Training, who was not the competent authority. He drew our attention to the provisions of Section 20(2)(b) of the said Act and submitted that the representation ought to have been made to a competent authority before it could be construed for the purposes of counting limitation. He submitted that the representation which was made to the competent authority was made later, on 15.04.2008. But, that, too,

does not help the petitioner. This is so because the representation having been made on 15.04.2008, the petitioner was entitled to wait for six months before he could seek the remedy before the Tribunal. That period of six months elapsed on 15.10.2008. Thereafter, the petitioner had one year's time to approach the Tribunal in terms of Section 21(1)(b) of the said Act which reads as under:-

21. Limitation (1) A Tribunal shall not admit an application, -

xxxx xxxx xxxx xxxx

(b) in a case where an appeal or representation such as is mentioned in clause (b) of sub- section (2) of section 20 has been made and a period of six months had expired thereafter without such final order having been made, within one year from the date of expiry of the said period of six months."

4. In other words, the petitioner could have filed the Original Application on or before 15.10.2009. Unfortunately, the petitioner did not do so and his Original Application was filed on 23.03.2010, beyond the stipulated period of one year. Consequently, the provisions of Section 21(1)(b) of the said Act would come into play and there would be a bar on the Tribunal from admitting such an application. In the absence of any condonation of delay application, the Tribunal was well within its rights to have dismissed the petitioner's Original Application on the ground of limitation.

5. Before us, we had asked the learned counsel for the petitioner as to what was the reason for the delay, if at all, we had permitted him to file an application for condonation of delay, the only answer forthcoming was that he was pursuing his representation. Unfortunately, that answer is not good enough insofar as the law is

concerned. Waiting for the result of the representation beyond six months or making further representations does not push the point of time when the clock of limitation starts running. The clock had started running on 15.10.2008 when the period of six months had expired, even if we are to consider that the first representation of 10.01.2008 was not made to a competent authority. The OA should have been filed within one year, that is, by 15.01.2009. Since it had not so been filed, the petitioner's Original Application was rightly dismissed by the Tribunal on the point of limitation. Unless the petitioner is able to cross that hurdle, the question of going into merits does not arise. The writ petition is dismissed. There shall be no order as to costs.

BADAR DURREZ AHMED, J

V.K.JAIN, J MARCH 02,2012 'sn'