Dr. A. Philipose vs Union Of India And Ors.
2018 Latest Caselaw 325 Del

$~24.
*       IN THE HIGH COURT OF DELHI AT NEW DELHI
+       W.P.(C) 290/2018 & C.M. No. 1202/2018
        DR. A. PHILIPOSE                           ..... Petitioner
                       Through: Mr. Thomas Oommen, Advocate.

                          versus

        UNION OF INDIA AND ORS.                    ..... Respondents
                      Through: Mr. Arun Bhardwaj, CGSC.

        CORAM:
        HON'BLE MS. JUSTICE HIMA KOHLI
        HON'BLE MR. JUSTICE P.S. TEJI

                          ORDER

% 12.01.2018

1. The petitioner is aggrieved by the judgment dated 01.6.2017 whereby the Central Administrative Tribunal (CAT) has dismissed his O.A. No.1998/2017 on the ground that it is hopelessly barred by time.

2. The facts of the case, as set out in the impugned order, are that the petitioner had applied for appointment to the post of Project Officer in the Central Social Welfare Board (CSWB) in the year 1994. The interview for the post was conducted on 25.10.1994. The petitioner claimed that he had received the information with regard to the date of conducting the interview only after the interview was over on 27.10.1994, through a call letter dated 12.10.1994. He therefore made a representation to the respondents that he be afforded another opportunity to appear in the interview. On the said representation being rejected, the petitioner filed O.A. No. 1758/1994 before the Ernakulam Bench of the Tribunal and the selection made consequent

upon the interview held on 26.10.1994, was stayed. After hearing the parties, the Tribunal permitted the petitioner to withdraw the O.A. with liberty file a fresh one. Thereafter, the petitioner filed O.A. No. 1233/1995. In the said proceedings, the Tribunal permitted the petitioner to appear in the interview for the subject post on 24.11.1995, when he did appear. Finally, vide order dated 29.10.1996, the Tribunal observed as follows:-

"Based on the second interview conducted on the applicant/petitioner, the respondents had stated that he had got an average mark of 73 based on which he could be selected for the post of Project Officer. However, the respondents pointed out that since there is not post of Project Officer vacant under the general category at that point in time and stated that the petitioner shall be given an offer an appointment as soon as a vacancy under the general category occurs".

3. Between the year 1997 and 2000, no vacancy for the subject post was available with the respondents. Finally, in the year 2006, the respondents offered the subject post to the petitioner vide letter dated 19.5.2006, which he duly accepted.

4. On joining, the petitioner was placed on probation for a period of two years and at that time, he was duly informed that his appointment was against a temporary post. After the petitioner joined as a Project Officer on 02.6.2006, he had submitted a representation dated 14.9.2006 to the respondents No.2 and 3 praying inter alia that his rank/position be fixed in relation to the interview held on 25.10.1994 and he be given seniority and other consequential benefits.

5. Vide letter dated 17.4.2007, the respondents No.2 and 3 informed the petitioner that as he had been appointed on the subject post only on 02.6.2006, his seniority was fixed from the date of his joining (Annexure A-

18). Thereafter, the petitioner elected to adopt the RTI route to gather further information from the respondents and submitted yet another representation on the same issue on 23.11.2007, which was again rejected on 06.2.2008 (Annexure A-22). The rejection of the said representations was communicated to the petitioner vide letters dated 17.4.2007 and 25.10.2007 and it was made clear that the same may be treated as final and that no further communication shall be entertained on this issue in future. Despite this, the petitioner continued making several representations to the respondents. One of the representations dated 23.09.2010 came to be rejected by the respondents No.2 and 3 on 14.12.2010 (Annexure A-25) wherein, he was told that his case for fixation of seniority had already been examined in detail and the factual position intimated to him on 17.4.2007.

6. On 08.8.2012 the petitioner was promoted to the post of Dy. Director. Thereafter, he submitted representations dated 26.11.2012, 15.6.2015 and 21.3.2016 reiterating his earlier request for fixing his seniority. The said representations were again rejected by the respondents No.2 and 3, vide Office Memorandum dated 16.11.2016, informing him that his request had not been acceded to and the Department had given him due intimation in this regard on 25.10.2007, 06.2.2008 and 14.12.2010. The petitioner was also informed that as the post was from direct recruitment quota therefore, on the first occurrence of vacancy, he had been appointed to the subject post under the general category.

7. Making the said letter his base, the petitioner filed the Original Application in the year 2007, claiming inter alia that the respondents had wrongly rejected his representation and he is entitled to seniority from the same date as the other candidates who were selected on being interviewed

on 25.10.1994 and 24.11.1995. The Tribunal was however not impressed by the said submissions made by the petitioner and it observed that since he was never interviewed on 25.10.1994, his merits qua the other candidates cannot be considered and nor can he be equated with the other interviewees.

8. Further, the Tribunal noted that in O.A. 1233/1995 filed by the petitioner, there was no direction issued for granting him retrospective benefit on the basis of his merit in the selection process, in comparison with the other candidates. Instead, only a limited direction was issued by the Tribunal for his future appointment, without any linkage or lien with the selection already conducted. The Tribunal also noted that the petitioner has not placed on record, the details of the relief claimed by him in O.A. 1233/1995. The position remains the same even today. The petitioner has failed to file the pleadings in O.A. No. 1233/1995 for the perusal of this court.

9. Lastly, the Tribunal held that the claim of the petitioner stood rejected as long back in the year 2007 and again in the years 2008 and 2009, but he elected not to approach the court at the relevant time and in the meantime, he was also promoted to his next higher post. As a result, the O.A. filed by the petitioner was rejected not only because it is hopelessly barred by limitation, but also on merits.

10. Learned counsel for the petitioner insists that a fresh cause of action had arisen in favour of his client as soon as O.M. dated 16.11.2016 was issued by the respondents in reply to his representation dated 27.4.2016. We find that nothing new or different has been stated in the said O.M. that can vest a fresh cause of action in favour of the petitioner to approach the Court for relief. The said O.M. simply refers to the earlier replies given by the

Department to the petitioner on 17.4.2007, 25.10.2007, 06.2.2008 and 14.12.2010. Indubitably, the cause of action had arisen in favour of the petitioner as long back as in April, 2007 and again in October, 2007 but he did not approach the Tribunal for appropriate relief for a whole decade.

11. The petitioner could have approached the Tribunal within a reasonable time reckoned from October, 2007, which would have expired in the year 2008. If given further latitude on the basis of the letter dated 06.2.2008 issued by the respondents rejecting his representation, the petitioner ought to have approached the Tribunal for relief by the end of the year 2008. However, he elected to sit back in all this duration. Instead of promptly approaching the court for relief, he kept on sending one representation after another to the respondents, which can hardly be treated as a legal remedy for condoning the delay spanning over one decade in seeking legal recourse. Reliance placed by learned counsel for the petitioner on the judgment in S.S. Rathore vs. State of Madhya Pradesh, AIR 1990 SC 10 would also not be of any assistance inasmuch as the Supreme Court had expressed a view therein that:-

"20. ........The cause of action shall be taken to arise not from the date of the original adverse order but on the date when the order of the higher authority where a statutory remedy is provided entertaining the appeal or representation is made and where no such order is made, though the remedy has been availed. ........"

12. As per the view expressed in the aforesaid judgment, the petitioner ought to have sought legal recourse within a period of six months from 17.04.2007, the date when his representation had been turned down by the respondents. The period of six months for approaching the Tribunal has therefore to be reckoned from the date when the cause of action had first

accrued. Admittedly, none of the representations made by the petitioner have a statutory flavour for him to rely on the captioned decision.

13. As a result, the impugned order dated 01.6.2017 is upheld as legal and justified and the petition is dismissed as meritless along with the pending application.

HIMA KOHLI, J

P.S. TEJI, J

JANUARY 12, 2018 ap/rkb/na