PRANAB KUMAR CHATTOPADHYAY, J. - (1.) IN the instant case, we are required to decide whether any illegality can be allowed to be sustained on the sole ground of delay and laches.
(2.) THE petitioner herein is aggrieved by the judgment and order dated 31st August, 2007 passed by the Central Administrative Tribunal, Calcutta Bench whereby and whereunder the said learned tribunal refused to entertain the original application filed by the said petitioner and accordingly dismissed both the original application being O.A. 257 of 2006 and the connected application being MA 235 of 2006 on the ground that the same were time barred. From the records we find that the petitioner herein applied for the post of Assistant Station Master in response to an advertisement issued by the Railway Recruitment Board. THE Railway Recruitment Board thereafter, conducted written examination as well as viva voce for the purpose of selecting candidates. THE petitioner was selected in the said written examination and viva-voce test. Accordingly, the competent authority offered provisional appointment to the said petitioner as Trainee ASM subject to his passing the prescribed medical examination by the authorised medical officer of the Railways. The petitioner herein was initially sent to the Chief Medical Officer, Dhanbad Railway Medical Hospital for medical examination in the month of September 1993. It has been submitted on behalf of the petitioner that before appearing for the medical examination at Dhanbad Railway Medical Hospital, he was asked to accept some preconditions which have no link with the medical examination. Since the petitioner could not accept those pre-conditions, he was forced to come back without appearing at the medical examination at Dhanbad.
(3.) THE petitioner thereafter by a written communication dated 5th October 1993 requested the Senior Personnel Officer (RP), Eastern Railways to issue further medical Memo for medical examination by any authorised medical officer of the Railway excepting Dhanbad Railway Medical Hospital. Considering the aforesaid prayer further medical memo was issued to the petitioner for medical examination by the Railway Medical Officer, Howrah. THE concerned railway medical officer at Howrah examined the petitioner and declared him medically fit for appointment as Trainee ASM. THE petitioner submitted the aforesaid medical certificate issued by the Railway Medical Officer, Howrah to the Senior Personnel Officer for the purpose of allowing him to join the training. According to the petitioner, the competent authority of the Railways did not allow the said petitioner to undergo training in spite of submission of the medical fitness certificate. The petitioner, thereafter, filed the application before the learned Central Administrative Tribunal, Calcutta Bench in the year 2006 i.e. after long lapse of almost 13 years. The learned Tribunal by the impugned judgment and order dated 31st August, 2007 dismissed the original application filed by the petitioner being O.A. 257 of 2006 and the connected application for condonation of delay being MA 235 of 2006 on the ground that the same were time barred. The learned counsel representing the petitioner urged before this court that illegality cannot be allowed to be sustained only on the ground of delay and/or laches. It has been argued on behalf of the petitioner that the learned Tribunal should have issued an appropriate direction to the respondent authorities to allow the said petitioner to undergo the prescribed training so that the petitioner could be absorbed in the regular category of the Railways after successful completion of the training period. The learned counsel of the petitioner referred to and relied on a decision of the Supreme Court in the case of M/s Dehri Rohtas Light Railway Company Limited vs. District Board, Bhojpur and Others reported in (1992) 2 SCC 598 wherein the Hon'ble Supreme Court observed: "13 The real test to determine delay in such cases is that the petitioner should come to the writ court before a parallel right is created and that the lapse of time is not attributable to any laches or negligence. The test is not to physical running of time. Where the circumstances justifying the conduct exist, the illegality which is manifest cannot be sustained on the sole ground of laches" ;