Delhi High Court
Ram Singh vs Chairman Cum Managing Director ... on 4 January, 2017
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ WRIT PETITION (CIVIL) No. 3387/2016
Reserved on: 8th November, 2016
% Date of Decision: 4th January, 2017
RAM SINGH ..... Petitioner
Through: Mr. J.S. Maan, Advocate.
versus
CHAIRMAN CUM MANAGING DIRECTOR DELHI
TRANSPORT CORPORATION & ORS .....Respondents
Through: Ms. Manisha Tyagi, Advocate.
CORAM:
HON'BLE MR. JUSTICE SANJIV KHANNA
HON'BLE MR. JUSTICE CHANDER SHEKHAR
CHANDER SHEKHAR, J.
Ram Singh by this writ petition impugns order dated 23 rd December,
2015 whereby his OA No.4138/2013 has been dismissed as barred by
limitation.
2. This is the third round of litigation by the petitioner, who had earlier
filed OA Nos.2322/2012 and 3337/2012. OA No. 2322/2012 was dismissed
as withdrawn as recorded in the order dated 17th July, 2012 after the
Tribunal had noted that the original application was barred by limitation
and no application had been filed for condonation of delay. OA
No.3337/2012 was filed along with an application M.A. No.2785/2012
seeking condonation of delay. This OA and the application were dismissed
vide order dated 10th October, 2012 recording that there was delay of nearly
15 years. Reference was also made to the order dated 17 th July, 2012 by
which OA No.2322/2012 was dismissed. It was observed that the petitioner
was unable to explain and show reasonable and satisfactory cause for the
prolonged delay. The petitioner had referred to the communication dated
30th August, 2012 and the fact that the he had earlier challenged the order
dated 9th April, 2012. The Tribunal, however, did not accept the plea of the
petitioner that the cause of action had arisen in 2012.
3. The petitioner thereupon had filed W.P. (C) No. 4268/2013, which
was dismissed by a speaking order dated 9th July, 2013, recording that the
cause of action had accrued on 31st July, 1997, when persons junior to the
petitioner were promoted. Albeit, the petitioner had filed OA
No.3337/2012 after 15 years without giving satisfactory explanation for the
said delay. The Court also recorded that the writ petition impugning order
dated 10th October, 2012 passed by the Tribunal in the said OA was
challenged after nearly 9 months. Pertinently, the petitioner did not raise
any other ground or contention, except for stating that the petitioner was an
innocent and hardworking person, but this it was observed would not
explain the quietus for 15 years. Thereafter, Review Petition No.531/2013
was filed by the petitioner, which too was dismissed vide order dated 23rd
October, 2013. This order records that the petitioner had claimed
consequential benefits including all promotions. The Division Bench had
dismissed the prayer for review, rejecting the plea that a wrong impression
had vitiated the order of which review was sought.
4. Undeterred, the petitioner thereafter filed the aforesaid OA
No.4138/2013, which as noticed above, was dismissed vide order dated
22nd December, 2015.
5. Counsel for the petitioner submits that the prayer made in OA
No.4138/2013 is different from the prayer made in OA No. 3337/2014 and
our attention was drawn to prayer clause of OA No. 4138/2012. For the
sake of convenience, we would like to reproduce the prayer clause of the
two OAs as mentioned in the writ petition itself:-
"
OA 3337/2012 4138/2013
(i) Quash the impugned a) Call for the record of the
Memorandum/order dated case and quash DPC proceedings
30.08.2012, 09.04.2012, as intimated vide letter dated
10.02.2010 and 21.09.2011 21.09.2011 by the Respondent;
passed by the Respondents. and/or
(ii) Issue direction to the b) Quash Appellate order
respondents to promote the from dated 09.04.2012 passed by the
31.07.1997 and grant the all Respondents; and/or
promotion benefits since then. c) Quash adverse remarks
awarded to the in the year 2000
as intimated to the vide letter
(iii) Grant cost in favour of the. dated 21.09.2011 by the
Respondents; and/or
(iv) Any other relief as this
d) Direct the respondents to
Hon'ble Tribunal may deem fit
consider the, afresh and treat his
and proper in the facts and
promoted for the post of Traffic
circumstances of this case may
Inspector w.e.f 2003 or in
also granted in favour of the in
subsequent years instead of w.e.f
the interest of justice."
10.02.2010 with pay &
allowances applicable as per
(Refers para 7 of impugned order)
e) Direct the respondents to
grant consequent further
promotions to the post of
Supervisor and upward with pay
& allowance applicable as per the
rules; and/or
f) Direct the respondents to
grant arrears of pay & allowances
applicable as per the rules for the
post of ATI w.e.f. 1997; and/or
g) Pass such other or further
orders as may be deemed fir and
proper in the facts and
circumstances of the case.
(Refers para 1 of impugned
order)
"
6. The contention of the petitioner is that he had challenged the order
dated 10th February, 2010 in OA No.4138/2013 and, therefore, the said OA
was not barred by limitation as such. Our attention was drawn to the letter
dated 4th November, 2009 stating that the counterparts of the petitioner
have already been promoted to the post of Assistant Traffic Inspector on
officiating basis vide memorandum dated 2 nd June, 1999 and that the
petitioner, though promoted on 10th August, 2008, the period from 4th June,
1999 would be reckoned towards minimum period of service for
determining his eligibility for promotion to the next higher post. It is
submitted that vide memorandum dated 10 th February, 2010, the petitioner
was promoted to the post of Traffic Inspector, but this promotion was
belated and was due earlier when others similarly situated as the petitioners
were promoted.
7. We are afraid that the petitioner cannot be permitted and allowed to
raise the aforesaid pleas. We have quoted the two prayer clauses in OA
Nos.3337/2012 and 4138/2013. In OA No.3337/2012, the petitioner had
specifically challenged the orders dated 10th February, 2010 and 21st
September, 2011. By order dated 10th February, 2010, the petitioner had
been promoted to the post of Traffic Inspector and the challenge obviously
was not to the promotion from the said date, but the petitioner wanted
retrospective promotion from an earlier date. The petitioner has not
bothered and cared to place on record a copy of the OA No.3337/2012, but
it is apparent that the order dated 10th February, 2010 was questioned and
challenged in OA No.3337/2012. As noted above, OA No.3337/2012 was
dismissed on the ground of limitation vide order dated 5 th October, 2012.
This order was affirmed when W.P (C) No. 4268/2013 filed by the
petitioner was dismissed vide order dated 9th July, 2013. The petitioner then
in the said OA and writ petition did not seek to explain the "difference"
between the reliefs prayed with regard to antedating his promotion to the
post of Assistant Traffic Inspector from 1997 and Traffic Inspector from
2003 instead of 10th February, 2007.
8. In view of the order dated 9th July, 2013 passed in W.P. (C) No.
4268/2013, upholding the dismissal of OA on the ground of limitation,
which indeed it was, we do not think that the petitioner can be permitted
and allowed to file a second round of litigation, projecting that it is
predicated on a different or new cause of action which had arisen on 10th
February, 2010. The petitioner has reworded the prayer clauses, which
substantially and in substance claim the same and similar reliefs.
9. It is correct that the order dismissing the OA on the ground of
limitation would not operate a res judicata on the merits but would bar and
prohibit any subsequent adjudication on question of limitation based on the
same cause of action. Principles of constructive res judicata would also
apply and hit the plea/contention raised. Once the Delhi High Court had
affirmed the dismissed order, the petitioner could not have initiated another
round by filing OA No.4318/2013. The law of limitation and the decisions
of the Tribunal and the High Court affirming rejection of OA
No.3337/2012 on the ground of limitation would interject and prevent the
petitioner from raising the issue again. Public policy postulates and
endorses end to litigation and not repeated litigation.
10. The record demonstrates, as discussed hereinabove that the OA
No.2322/2012 was dismissed as withdrawn as recorded in the order dated
17.07.2012 after the tribunal had noted that the Original Application was
barred by limitation and no application had been filed for the condonation
of delay. O.A. No. 3337/2012 was filed alongwith M.A. No. 2785/2012
seeking condonation of delay and the same was also dismissed vide order
dated 17.07.2012 observing that the petitioner was unable to explain and
show the reasonable and satisfactory cause for the delay. The petitioner
challenged the order dated 17.07.2012 by way of filing W.P.(C)
No.4268/2013 which was also dismissed. The review petition thereafter
was dismissed. The petitioner had failed to explain and show reasonable
and satisfactory cause for the delay as well as due diligence. The second
round, in such circumstances, was rightly censured and rejected.
11. We do not find any infirmity in the order of the tribunal.
Accordingly, the writ petition is dismissed.
(CHANDER SHEKHAR)
JUDGE
(SANJIV KHANNA)
JUDGE
JANUARY 04, 2017
NA/ssc
