Ashok Kumar, Member (A) - (1.) THIS OA has been filed for grant of promotion to the Post of Under Secretary from 01.07.2003 as per the Select List of that year along with increments and consequential retrial benefits. The reliefs sought in the OA are as under: - i. direct the respondents to grant notional promotion to the applicant from the date of inclusion in the Select List for the year 2003 along with increments and consequential post -retirement benefits including dues accruing there from. ii. Pass any other Order(s) which this Hon'ble Tribunal deems fit and proper under the facts and circumstances of the case at hand. According to the facts, stated in the OA, the applicant joined as LDC on 20.03.1967 and later on qualified the Upper Division Grade Limited Departmental Competitive examination held in 1972 and joined as UDC on 01.10.1973. He was thereafter promoted as Assistant and subsequently as Section Officer on 01.02.1993. He superannuated on 31.03.2005 without getting promotion of the next promotional post of Under Secretary whereas his juniors were promoted. The Select List for the year 2003 of the Officers of the Central Secretariat Service (CSS) for appointment to Grade I (under Secretary) was issued on 25.08.2009 (Annexure P -1) and the applicant was included in the Select List. In the case of P.G. George Vs. UOI & Anr. (OA No. 1409/2009 decided on 22.04.2010 by this Tribunal), the Tribunal vide Order dated 22.04.2010 granted notional promotion to the applicant in that OA from the date his immediate juniors were promoted with the condition that the promotion would be notional but would count towards increments and consequent recalculation of post retirement dues. Similar decision was passed in OA No. 204/2010 Jagdish Lal Jokhani Vs. DOP&T & Anr. on 10.05.2010 by the Tribunal. The applicant made representation but no reply has been given by the respondents. He, therefore, filed this OA. The applicant has declared in para 3 of the OA that it is within the limitation period prescribed under Section 21 of the Administrative Tribunals Act, 1985 and further that non -grant of higher pay scale and consequent increments/retrial benefits is a recurring cause of action.
(2.) COUNTER reply has been filed by the Respondent No. 1. The preliminary objection, raised in the counter, is that the applicant has superannuated from service on 31.03.2005 and was later on included in the Select List of 2003. It is further stated in para 6 of the reply that the OA is barred by limitation, delay and latches and should be dismissed on this ground because the Select List of 2003 was issued on 25.8.2009 on the basis of DPC conducted by the UPSC in August, 2009, and applicant superannuated from service on 31.3.2005. The OA has been filed in August, 2012 without any explanation of delay nor application seeking condonation for inordinate delay has been filed. Both the parties were heard through the learned counsel Shri Moni Cinmmey for the applicant and Shri R.N. Singh and Shri D.S. Mahendru for the respondent No. 1 and 2 respectively.
(3.) AT the initial stage itself, the objection with respect to delay needs to be decided. Applicant's counsel argued that Respondents counsel's objection regarding delay could not be sustained because the claim in this OA relates to a continuing and recurring cause of action because it involved non -payment of higher pay scale and consequential increments/retirement benefits. On the other hand, referring to various judgments of the Hon'ble High Court and the Hon'ble Supreme Court the respondents have stated that this delay cannot be condoned and the application needs not be considered on merit in view of the limitation under section 21. He reiterated that no condonation for delay has been sought and, therefore, the OA cannot be entertained.;