K.S. Sunilkumar v. Chairman & Secretary, Department of Space, Indian Space Research Organisation (ISRO) & Director, Vikram Sarabhai Space Centre

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON & THE HONOURABLE MRS. JUSTICE SHIRCY V. WEDNESDAY, THE 9TH DAY OF AUGUST 2017/18TH SRAVANA, 1939 **OP (CAT).No. 227 of 2017 () ----------------------------** AGAINST THE ORDER/JUDGMENT IN OA 612/2013 of CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH DATED 07.10.2016 PETITIONER/APPLICANT: ------------------ K.S.SUNILKUMAR AGED 54 YEARS, S/O K.K. SUKUMARAN, RESIDING AT T.C. 7/739920, SINDHOORAM, KOURA-23, KOCHULLOOR, MEDICAL COLLEGE PO. THIRUVANANTHAPURAM-695 011. BY ADVS.SRI.R.SREERAJ SMT.REKHA VASUDEVAN RESPONDENTS/RESPONDENTS: -------------- 1. THE CHAIRMAN & SECRETARY DEPARTMENT OF SPACE, INDIAN SPACE RESEARCH ORGANIZATION, ANTHARIKSH BHAWAN, NEW BEL ROAD, BANGALORE-560 231. 2. THE DIRECTOR VIKRAM SARABHAI SPACE CENTRE, THUMBA, THIRUVANANTHAPURAM-695 022. BY ADV. SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL THIS OP (CAT) HAVING COME UP FOR ADMISSION ON 09-08-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP (CAT).No. 227 of 2017 () ---------------------------- ## **APPENDIX** PETITIONER(S)' EXHIBITS ----------------------- EXHIBIT P1 TRUE COPY OF THE OA 612/2013 ALONG WITH THE ANNEXURES THERETO. EXHIBIT P2 TRUE COPY OF THE REPLY STATEMENT FILED BY THE RESPONDENTS IN OA 612/2013. EXHIBIT P3 TRUE COPY OF THE REJOINDER FILED BY THE PETITIONER APPLICANT IN OA 612/2013 EXHIBIT P4 TRUE COPY OF THE ADDITIONAL REPLY STATEMENT FILED BY THE RESPONDENTS IN OA 612/2013. EXHIBIT P5 TRUE COPY OF THE ADDITIONAL REJOINDER FILED BY THE PETITIONER (APPLICANT IN OA 612/2013) EXHIBIT P6 TRUE COPY OF THE 2ND ADDITIONAL REPLY STATEMENT FILED BY THE RESPONDENTS IN OA 612/2013. EXHIBIT P7 TRUE COPY OF THE HEARING NOTE SUBMITTED BY THE PETITIONER AT THE TIME OF ARGUING OA 612/2013 EXHIBIT P8 TRUE COPY OF THE ARGUMENT NOTES FILED BY THE RESPONDENTS IN OA 612/2013. EXHIBIT P9 TRUE COPY OF THE ADDITIONAL ARGUMENT NOTES FILED BY THE RESPONDENTS IN OA 612/2013. EXHIBIT P10 TRUE COPY OF THE FINAL ORDER DATED 7.10.2016 IN OA 612/2013 ON THE FILE OF THE HON'BLE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH. RESPONDENT(S)' EXHIBITS NIL ----------------------- /TRUE COPY/ P.S. TO JUDGE ## **P.R. RAMACHANDRA MENON** ## **& SHIRCY V, JJ.** .............................................................................. **O.P.(CAT)No.227 OF 2017** ......................................................................... **Dated this the 9[th] August , 2017** ## **J U D G M E N T** ## **P.R. Ramachandra Menon, J.** Challenge is against Ext.P10 order passed by the Tribunal, whereby the O.A. preferred by the petitioner in the year 2013 in respect of the service benefits, particularly by way of promotion while he was in service, came to be rejected both on the grounds of delay and merit. ## 2. Heard the learned counsel appearing for the petitioner at length. ## 3. The O.A. was filed with the following prayers: - _“1. Direct the respondents to consider promoting the applicant to Engineer SF grade from the entitled date._ _2. Direct the respondents to consider antedating promotion of the applicant to the grade of Engineer SE from due date and grant consequential promotion to the grade of Engineer SF._ _3. Direct the respondents to revise pension and retire benefits based upon promotion to Engineer SF grade from the entitled date and grant all consequential benefits._ _4. Direct the 1[st] respondent to consider and pass orders on Annexure A8 with reference to Annexure A10 to A13_ **2** ## **O.P.(CAT)No.227 OF 2017** _judgments._ _5. Any other further relief or order as this Hon'ble Tribunal my deem fit and proper to meet the ends of justice._ _6. Award the cost of these proceedings.”_ 4. The sequence of events reveals that the petitioner was appointed as an Engineer in the VSSC on 23.12.1985 and thereafter, he was promoted to the post of 'Engineer SC' on 01.01.1991. Further promotion was granted to the petitioner as 'Engineer SD' on 01.07.1993 and thereafter as 'Engineer SE' on 01.07.2003. While so, the petitioner submitted an application for voluntary retirement on 19.01.2009. It is stated that the said application was subsequently withdrawn by the petitioner, which was accepted and he was permitted to continue on duty. It is pointed out that the petitioner had submitted another application for voluntary retirement in the year 2012, which came to be accepted and he voluntarily retired from the service while working as 'Engineer SC', w.e.f. 01.03.2012. More than one year after the retirement, the petitioner submitted Annexure A8 representation dated 04.03.2013 before the first respondent, claiming promotion as Engineer SF at least w.e.f. 01.07.2001 **3** ## **O.P.(CAT)No.227 OF 2017** and also to pre- date the promotion already granted to him as 'Engineer SE' , to be w.e.f. 01.07.1997. It is stated that there was no response from the part of the Department, which made the petitioner to move the Tribunal with the prayers extracted above. 5. The claim was resisted from the part of the Department, by filing reply Statement; in response to which, the petitioner filed his rejoinder as well. After hearing both the sides, the Tribunal dealt with the matter both on the grounds of limitation as well as on the ground of merit, in turn leading to Ext.P10 order declining the relief, which forms the subject matter of challenge in this Original Petition. 6. With regard to the question of delay, the learned counsel for the petitioner points out that three reasons were offered before the Tribunal, mainly as projected in Annexure A8 representation itself. The first reason was with regard to the apprehension/fear of superiors, if at all any challenge was raised before them claiming the benefits as sought for before the Tribunal. The second reason was that the petitioner actually came across the denial of promotion, only much later, on **4** ## **O.P.(CAT)No.227 OF 2017** pursuing steps under the RTI Act and never before. The third reason was that it was a continuing wrong on the part of the Department involving denial of proper/higher pay scale (had he been promoted to the post in question, as requested for); and as such there was a continuing cause of action. It is also to be noted that Ext.P10 verdict was passed by the Tribunal way back on '07.10.2016', whereas the petitioner has approached this Court only after 10 months and as such, there is much delay in approaching this Court as well. 7. After hearing the learned counsel, this Court finds that the explanation offered from the part of the petitioner in Annexure-A8, or stated as made before the Tribunal in not projecting the grievance before the authorities well on time claiming promotion to the post in question or in approaching the Tribunal, is not at all palatable under any circumstance; more so, it being not liable to be called as an 'explanation'; much less any satisfactory explanation. It is settled law, that persons like the petitioner herein, who were sleeping on arm chair without any regard to their rights and interests, if any, are not entitled to have any relief at the hands of the Court/Tribunal. We find **5** ## **O.P.(CAT)No.227 OF 2017** support from the ruling rendered by the Supreme Court in **Rabindra Nath Bose vs. Union of India** [ **AIR 1970 SC 470** ]. 8. Another aspect to be noted is that, the petitioner admittedly did not have any claim to have retrospective promotion to the post of 'Engineer SE' or for any further promotion to the post of 'Engineer SF' while he was in service. No application or representation in this regard was ever made by the petitioner before the higher authorities at any point of time; nor had he approached the Tribunal in this regard. It is while so, that the petitioner made an application for voluntary retirement in the year 2009, which is stated as subsequently withdrawn and accepted by the Department. Submission of application for voluntary retirement is on the basis of a 'conscious decision' taken by the petitioner and same is the position with regard to the application for withdrawal of the same. It was thereafter, that the petitioner took another conscious decision, whereby he applied to the competent authority to permit him to retire voluntarily in the year 2012, which was accepted and he came out from the service on voluntary retirement in the year 2012 (i.e. 01.03.2012). This time also, there was no grievance **6** ## **O.P.(CAT)No.227 OF 2017** with regard to the lapse, if at all any on the part of the Department or as to the eligibility of the petitioner to be promoted to the post of 'Engineer SE' on a prior date or to be promoted further to the post of 'Engineer SF', based on such predating of the promotion. Once an application is submitted for voluntary retirement and the moment it is accepted, the employer-employee relationship is cut off, at the instance of the petitioner/employee and after accepting the same by the employer, the petitioner cannot take a 'U-turn' and approach the Tribunal claiming for promotion when he was in service, that too much belatedly. We find support from the ruling rendered by the Supreme Court as ## per the decision in _**A.K. Bindal vs. Union of India**_ ( **AIR 2003** **SC 2189** ]. This being the position, the Tribunal was perfectly justified in making a declaration that the O.A. was bad for limitation. This Court does not propose to deal anything with regard to the merits of the case as the O.A. was not liable to be maintained under any circumstance, as held by the Tribunal. So also, there is inordinate delay on the part of the petitioner in approaching this Court as well (challenging Ext.P10) and no **7** ## **O.P.(CAT)No.227 OF 2017** proper or satisfactory explanation is offered from the part of the petitioner in this regard. Interference is declined. O.P. fails and it is dismissed accordingly. **P.R. RAMACHANDRA MENON, JUDGE** **SHIRCY V, JUDGE** lk