Honble Mr. D.C. Lakha, Member-A

1. This application has been instituted for the following relief(s) :-

8.1. By means of writ of certiorari quash the impugned order dated 29.09.2009 (contained as Annexure No. A-1 to this Original Application).

8.2. to issue a writ, order or direction in the nature of mandamus thereby commanding respondents to keep the name of applicant in Casual Labour Live Register and issue the service card No. 05877696 of Casual Labour (Applicant) as stated in their own letter of order (contained as Annexure No. A-9 to this Original Application) and regularize the applicant in Group D services.

Brief facts of the case, as stated in the O.A., are that the applicant worked as Casual Labour under the Jhansi Division at different places and in different spells for 435 days. But inspite of Master Circular No. 48 (A-2) providing for grant of temporary status on completion of 120 days, the applicant has not been accorded temporary status. The respondents have admitted in their letter (A-1) applicant s working days as 242. From 19.03.1985 and 18.06.1985 (101 days) applicant has worked as daily rated casual Khalasi in the office of Chief Bridge Inspector, N.C.R. Jhansi and from 17.05.1986 to 18.07.1986 (92 days), while certificate of service was given for 92 days. But the respondents have not issued casual labour card nor did they enter the name of the applicant in the casual labour live Register. In the letter dated 05.08.1999 (A-9) the name of the applicant is at serial No. 4 with service card No. 05877696. It is submitted that after completion of 120 days, the name of the applicant should automatically come in Casual labour live Register and he should be granted temporary status. A letter dated 05.08.1999 (A-19) shows that the name of applicant is at the Serial no. 34. Even after acceptance of 242 working days of the applicant, his name has not been shown in the casual labour live Register. The applicant preferred OA No. 357/05 seeking direction for regularization which was decided by the Tribunal on 02.04.2009 (A-11) directing the respondents to decide the grievance of the applicant within three months from the date of receipt of representation.

2. The OA filed by the applicant has been strenuously contested by the respondents by means of filing detailed counter affidavit. It has been stated that in response to notification dated 30.8.2001 calling for Bio data from the Casual Labourers borne on Live/Supplementary Live Casual Labour Register, the application of the applicant was not received. After verification, total working days of applicant were found to be 242 days. The working days from 1.12.1983 to 21.3.1984 could not be verified being very old for which record is not traceable. As per Railway Board Scheme dated 30.4.1996 the casual labours on the roll as on 30.4.1996 were regularized. The applicant being off the roll since 20.7.1988 could not be regularized. The persons regularized were having more number of working days than the applicant. Applicant did not produce the order of his first engagement/appointment even on demand. Thousands of ex casual labours borne on live/supplementary live casual labour register applied/submitted their particulars against the notification dated 30.8.2001 but the applicant did not submit his application for regularization in response to the said notification and evenon demand by the respondents for verification, the applicant could not produce any proof of his having submitted his application in response to the notification dated 30.8.2001. Therefore, he could not be considered for regularization and the whole process of screening and regularization came to an end by 2003-04. It is also submitted that the name of applicant did not find any mention in the casual labour live register of Senior Section Engineer (Bridge) Jhansi as per verification got done by him. The letter dated 5.8.99 pertains to another workman of similar name as Hari Shankar who was working and was on roll on 5.8.99 and Shri Hari Shankar son of Brij Lal was regularized as he was on roll on 30.4.1996 and not the applicant. The number 05877969 mentioned is not of a casual labour card number of the applicant but it is a ticket number of another working employee i.e. Shri Hari Shankar son of Shri Brij Lal. Accordingly the O.A. lacks merit and is liable to be dismissed. No R.A. has been submitted on behalf of the applicant.

3. Supplementary Counter has been filed by the respondents laying emphasis on the point of limitation stating that the applicant is not working since 20.7.1988 and he kept mum till filing of earlier O.A. No. 357/2005. The applicant cannot get relaxation for calculating the period of limitation by means of deciding the representation vide impugned order dated 29.9.2009, as per direction of the Tribunal without entering into the merits of the case as held in the case of Union of India vs. M.K. Sarkar (2010(2) SCC 58 in which it has been held that Neither a court s direction to consider a representation issued without examining the merits, nor a decision given in compliance with such direction, will extend the limitation, or erase the delay and laches. and confirmed by the Honble apex court in Union of India and ors. vs. A. Durairaj (Dead) by LRs 2011 (10 SCALE 494). Supplementary Counter II has also been filed reiterating mainly the contentions raised in the Counter reply.

4. In reply to supplementary counter reply (II) applicant has filed supplementary rejoinder reply referring to Railway Board Circular dated 28.2.2001 (Annexure- SR-1) providing that a register should be maintained by all Divisions concerned to indicate the names of casual labour, substitutes and temporary workmen who have rendered six months service either continuous or in broken periods. Again a circular of Railway Board dated 30.6.1992 (Annexure-SR-II) has been referred making the point that casual labour engaged on seasonal specific works of less than 180 days duration if shifted from one work to another of the same type (e.g. relaying) and the total continuous period of such work at the time is of more than 180 days duration they should be treated as temporary after the expiry of 120 days of continuous employment. He has further referred to Railway Board circular dated 28.2.2001 (Annexure-SR-III) stating that ex-casual labour borne on live casual labour registers, will first be considered for absorption on the Railways strictly as per their turn according to seniority based on the total number of days put in by them as casual labour. Following judgments have also been referred in the Supplementary Rejoinder:-

i. Union of India and others Vs. Basant Lal and others 1992 SCC (L&S) 611

ii. Ram Nivas Tyagi Vs. State of U.P. and others (2007) 3 UPLBEC (Sum.) 103.

iii. Smt. Sakkubai and anr. Vs. The Secretary, Ministry of Communications, New Delhi & ors. (Full Bench- Hyderabad) OA No. 912 and 961 of 1992.

iv. V.A. Chandran & ors. Vs. U.O.I & ors. (OA No. 866/06)

v. Jugal Kishore & ors. Vs. U.O.I. & ors. (OA No. 163 of 2004).

5. I have heard the Learned Counsel for the parties and perused the pleadings on record. I have also perused the judgments/orders annexed by the applicant alongwith Supplementary Rejoinder reply, which I do not find applicable in the present case. While arguing the case, the Learned Counsel for the applicant has laid much stress on the points that as per own admission of the respondents the applicant has completed 242 days working and, therefore, as per Railway Board instructions, his name should have been entered into the casual labour live register only after completion of 120 days and he should also have been accorded temporary status. Thus, he should be regularized. Regarding limitation it is submitted that the original application has been filed by challenging impugned order dated 29.9.2009, as such point of limitation does not arise. Learned Counsel for the respondents has argued that the applicant was off the roll since 20.7.1988 and hence he was not regularized. His name also does not find place in casual labour live register. It is also argued that the applicant did not submit his application for regularization in response to notification 30.8.2001. It has been empathically argued that neither a court s direction to consider a representation issued without examining the merits nor a decision given in compliance of such direction will extend the limitation or erase the delay and laches ( UOI Vs. M.K. Sarkar (supra) and therefore the limitation period cannot be counted from the date of impugned order i.e. 29.9.2009, deciding the representation of the applicant. Learned Counsel for the respondents has also cited the case of Santosh Kumar Vs. UOI & ors. (OA No. 532/07 CAT, Allahabad decided on 4.3.2009) and Tahir Vs. UOI & ors. of Honble Supreme Court, Special Leave to Appeal (civil No. 31085/09 decided on 7.7.2009). The Honble Apex Court in a matter on the point of limitation held that the cause of action arose in the year 2001 but the petitioner approached the Central Administrative Tribunal as late as in the year 2008. There is no explanation for this inordinate delay of seven years. The Tribunal and the High Court have denied relief to the petitioner, primarily, on the ground of the aforesaid inordinate delay. It has emerged from the above account, that in response to the notification dated 30.8.2001 issued by Jhansi Division, the applicant did not avail himself of the opportunity to apply. In the absence of application the respondents were not in a position to consider the case of the applicant for regularization. The case of the applicant was considered by the respondents in view of the direction of the Tribunal in O.A. no. 357/2005 and accordingly, the impugned order dated 29.9.2009 was passed. I have given thoughtful consideration to the pleadings and arguments of both sides and have also gone through the impugned order. After having been out of service since 20.7.1988 the applicant has been sleeping over his case and never applied for regularization and when the opportunity was available to him, even then he did not apply in response to the notification dated 30.8.2001. The delay in filing the O.A. is very obvious and in view of the law settled by the Hon. Supreme court in more than one judgments, as referred to above, the delay cannot be condoned. Thus, the O.A. is apparently barred by limitation and the impugned order is not afflicted by any legal lacuna calling for interference at the level of the Tribunal. Accordingly, the OA is dismissed. No costs.