Central Administrative Tribunal - Delhi
Coram vs Union Of India & Others Through on 3 August, 2015
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH O.A.NO.1670 OF 2012 New Delhi, this the 3rd day of August, 2015 CORAM: HONBLE SHRI ASHOK KUMAR, ADMINISTRATIVE MEMBER & HONBLE SHRI RAJ VIR SHARMA, JUDICIAL MEMBER . Shri D.N.Chaudhary, s/o late Shri R.R.Choudhary, Retd. as S.P., R/o 281, Arunodaya Apartments, C.B.I.Colony, Vikas Puri, New Delhi .. Applicant (By Advocate: Mr.Harpreet Singh) Vs. Union of India & others through 1. The Secretary, Department of Personnel &Training, Ministry of Personnel, Public Grievances and Pension, North Block, New Delhi 2. The Director, Central Bureau of Investigation, 4th Floor, CGO Complex, Lodhi Road, New Delhi 110001 3. The Secretary, Ministry of Expenditure, Ministry of Finance, North Block, New Delhi. 4. The Secretary, Union Public Service Commission, Shahjahan Road, New Delhi Respondents (By Advocates: Shri A.K.Singh for Respondents 1 to 3; and Shri Ravinder Agarwal for Respondent 4) .. ORDER RAJ VIR SHARMA, MEMBER(J):
Brief facts of the applicants case are as follows:
1.1 The applicant was initially appointed as Sub Inspector of Police in Central Bureau of Investigation on 15.12.1968. He was promoted as Inspector of Police in July 1974, and as Deputy Superintendent of Police on 26.4.1984. In the seniority list of Deputy Superintendents of Police as on 30.1.1997, circulated by respondent no.3 on 8.8.1997, his name figured at Sl.No.31.
1.2 As the DPC did not meet for considering the eligible officers in the grade of Deputy Superintendent of Police for promotion to the grade of Superintendent of Police against the vacancies of the years 1995,1996, 1997 and 1998, some of the officers, who were promoted on ad hoc basis to the grade of Superintendent of Police, filed O.A.No.1335 of 1998 (Sh.N.N.Singh and 6 others v. Union of India and others) before the Tribunal, seeking a direction to the respondents to hold DPC meeting and consider their cases for promotion on regular basis to the grade of Superintendent of Police against the vacancies pertaining to the aforesaid years. The Tribunal, vide order dated 6.9.2000 (Annexure A-3), allowed the said O.A.No.1335 of 1998. Paragraph 11 of the order dated 6.9.2000 ibid reads thus:
11. In view of the foregoing discussion, upholding the contentions of the learned counsel for the applicants, we hold that the respondents being obligated under law to have filled up the vacancies arising from 1996 till date as and when they arose, had failed in their obligation and the respondents could be compelled to fill up the vacancies. The O.A., therefore, succeeds. The respondents are directed to hold DPCs to fill up the vacancies that occurred in 1996, 1997, 1998 and thereafter till date in accordance with the rules existing on the date when the vacancies arose and to consider the cases of the applicants and others for promotion to the posts of SP on regular basis for the vacancies of 1996 and 1997 and the vacancies arising from 1998 onwards on ad hoc basis subject to review after the recruitment rules of 1979 are amended and pass orders granting all consequential benefits to the applicants, within a period of three months from the date of receipt of a copy of this order. The O.A. is accordingly allowed with costs of Rs.5,000/- (Rupees five thousand only). 1.3 In compliance with the Tribunals order dated 6.9.2000 ibid, DPC meeting was held in February 2001 for filling up 28 vacancies which arose till December, 1998. However, respondent no.3-CBI, vide its order No.288/2001, dated 9.3.2001 (Annexure A-4), promoted only 25 officers from the grade of Deputy Superintendent of Police to the grade of Superintendent of Police.
1.4 As he was not promoted to the grade of Superintendent of Police by the said order No.288/2001, dated 9.3.2001, the applicant filed OA No.1033 of 2002 before the Tribunal, seeking a direction to the respondents to consider his case for promotion to the grade of Superintendent of Police in terms of the Tribunals order dated 6.9.2000 ibid. The Tribunal, vide order dated 18.4.2002, disposed of OA No.1033 of 2002, with the following direction:
3. Having regard to the aforestated facts, we find that the interests of justice will be duly met by disposing of the present OA at this stage itself even without issue of notices with a direction to the respondents to fill up the remaining all the three posts by directing promotions in compliance with the aforesaid order and in case, for such reasons, they are unable to do so, they will assign cogent and valid reasons by passing a reasoned and a speaking order. This be done expeditiously and in any event within a period of two months from the date of service of a copy of this order. 1.5 The respondents, vide order No.984/2002, dated 26.7.2002 (Annexure A/6), promoted the applicant and four others from the grade of Additional Superintendent of Police to the grade of Superintendent of Police in the pay scale of Rs.12000-16500/-, with effect from the date of their taking over charge of the new post.
1.6 In the meanwhile, Shri R.S.Dwivedy and three others, who were promoted from the grade of Deputy Superintendent of Police to the grade of Superintendent of Police in the pay scale of Rs.12000-375-16500/-, vide order dated No.288/2001, dated 9.3.2001 (Annexure A-4), filed OA No.2913 of 2002 (Sh.R.S.Dwivedi and others v. Union of India and others), seeking a direction to the respondents to grant them the pay scale of Rs.14300-18300/-. By the said order No.288/2001, dated 9.3.2001, out of the 25 officers promoted to the grade of Superintendent of Police, 12 were granted pay scale of Rs.14300-18300, and 13 officers were granted pay scale of Rs.12000-16500/-. The applicants in OA No.2913 of 2002 were four out of the 13 officers who were promoted to the grade of Superintendent of Police in the pay scale of Rs.12000-16500/-. The Tribunal, vide order dated 25.8.2003 (Annexure A/7), allowed O.A. No.2913 of 2002. Paragraph 7 of the order dated 25.8.2003 reads thus:
7. There is no dispute that the applicants were promoted to the rank of Superintendent of Police in the year 2001 against the vacancies of the years 1997 and 1998. This Tribunal by order dated 6.9.2000 in OA 1335/1998 had directed the respondents to make regular promotion to the posts of Superintendent of Police by holding the DPC to fill up the vacancies that occurred in 1996, 1997 and 1998 and thereafter till date in accordance with Rules existing on the date when the vacancies arose. In view of the fact that the vacancies against which the applicants have been promoted pertain to the year 1997 and 1998, the Recruitment Rules of 31.1.1997 were applicable. These Rules provided scale of pay of Rs.4100-5300 (Revised to Rs.14300-18300) for the post of SP, CBI. The Recruitment Rules providing for lower pay scale of Rs.3700-5000/- (Revised to Rs.12000-16500) were notified only w.e.f. 7.9.2000. We are of the view that the delay in convening the DPC cannot deprive the applicants of their legitimate rights to higher pay scale of Rs.14300-18300 which was admissible to them when the vacancies arose. We, therefore, direct the respondents to allow them the same pay scale as has been allowed in the cases of certain SPs, CBI, who were earlier promoted on ad hoc basis. 1.7 In compliance with the Tribunals order dated 25.8.2003 ibid, the aforesaid 13 officers were granted pay scale of Rs.14300-18300/-.
1.8 After coming to know about the Tribunals order dated 25.8.2003 ibid, the applicant made a representation dated 16.12.2011 (Annexure A/10) requesting respondent no.1 to grant him pay scale of Rs.14300-18300/- on promotion to the grade of Superintendent of Police as has been granted to the applicants in OA No.2913 of 2002 and others. In support of his claim, the applicant relied on the orders passed by the Tribunal in OA No.1335 of 1998, O.A.No.1033 of 2002, O.A No.2913 of 2002, which have been referred to in the preceding paragraphs of this order.
1.9 The respondents, vide order dated 12.3.2012 (Annexure A/1), rejected the applicants representation dated 16.12.2011 (Annexure A/10). Thereafter, the applicant once again made a representation dated 13.3.2012 requesting the respondents to reconsider the matter and grant him the pay scale of Rs.14300-18300/- on his promotion to the grade of Superintendent of Police. There being no response, the applicant filed the present O.A. on 15.5.2012, seeking the following reliefs:
8.1 That this Honble Tribunal may graciously be pleased to allow this application and set aside the order dated 12.3.2012 with all consequential benefits.
8.2 That this Honble Tribunal may graciously be pleased to pass an order to direct the respondents to consider his case for pay scale of Rs.14300-18300/- without any discrimination with all consequential benefits.
8.3 That this honourable Tribunal may graciously be pleased to extend the same benefit to the applicant, which were extended to R.S.Dwivedi & others similarly situated persons without any discrimination.
8.4 That any other or further relief which this Honble Tribunal may be deem fit and proper under the circumstances of the case may also be granted in favour of the applicants.
8.5 That the cost of the proceedings may also be awarded in favour of the applicants.
2. Opposing the O.A., the respondents have filed a counter reply. It is, inter alia, stated by the respondents that the applicant was promoted from the grade of Deputy Superintendent of Police to the grade of Additional Superintendent of Police in 2001, and from the grade of Additional Superintendent to the grade of Superintendent of Police on 26.7.2002 on the recommendations of the DPC which met on 27th and 28th March, 2001 and in the year 2002 respectively. He retired as Superintendent of Police on attaining the age of superannuation on 30.6.2004. There were 28 vacancies, i.e., 4 (2 General, 1 SC & 1 ST) for the year 1996, 21 (17 General, 3 SC and 1 ST) for the year 1997, and 3 General vacancies for the year 1998, in the grade of Superintendents of Police. As per the Recruitment Rules, 1997 in force at the relevant time, Deputy Superintendent of Police with 13 years regular service in the grade were eligible for promotion to the rank of Superintendent of Police in the pay scale of Rs.4100-5300/-. Subsequently, on the recommendation of the 5th CPC notified in September, 1997, the pay scale of Superintendent of Police was reduced from Rs.4100-5300/- to Rs.3700-5000/- (pre-revised) (corresponding to the revised pay scale of Rs.12000-16500/-). However, those officers, who were already promoted to the grade of Superintendent of Police on ad hoc basis in the scale of pay of Rs.4100-5300/- (pre-revised) were given the corresponding pre-revised pay scale of Rs.4100-5300/- (revised pay scale of Rs.14300-18300/-) as personal to them. In view of reduction in the pay scale for the post of Superintendent of Police, the Recruitment Rules for the post of Superintendent of Police were required to be amended and the revision was underway and, therefore, the meeting of the DPC for effecting promotion from the grade of Deputy Superintendent of Police to grade of Superintendent of Police to fill up the vacancies of 1996, 1997 and 1998 could not be convened. In compliance with the Tribunals order dated 6.9.2000 passed in OA No.1335 of 1998, a meeting of the DPC for filling up 28 vacancies for the years 1996, 1997 and 1998 was held. Against the 28 vacancies, the DPC had recommended the names of 27 Deputy Superintendent of Police(including one Shri J.P.Verma in the extended panel in lieu of Shri S.Kumar who had already retired from service) for promotion to the rank of Superintendent of Police. The DPC did not give extended panel in lieu of Shri I.S.Saroha who retired on 31.8.2000, as the date of his retirement was not within the vacancy yeard. Two vacancies, i.e., one each of SC and ST remained unfilled due to non-availability of SC/ST officers. In pursuance of the recommendations of the DPC, promotion order in respect of 25 Deputy Superintendents of Police to the rank of Superintendent of Police was issued on 9.3.2001. Out of these 25, Deputy Superintendents of Police already working as Superintendents of Police on ad hoc basis and drawing their pay in the pay scale of Rs.14300-18300/- on regular promotion as Superintendent of Police were allowed the pay scale of Rs.14300-18300/- as personal to them, while the remaining 13 Deputy Superintendents of Police on promotion as Superintendents of Police were allowed the pay scale of Rs.12000-16500/-. In compliance with the order dated 25.8.2003 passed in OA No. 2913 of 2002, the aforesaid remaining 13 Deputy Superintendents of Police were allowed the pay scale of Rs.14300-18300/-, vide order dated 23.12.2003.
2.1 In the meanwhile, the DoP&T, vide its letter dated 6.4.2000, accorded the sanction of the Government to upgrade 75 posts of Deputy Superintendent of Police as Additional Superintendent of Police in the revised scale of Rs.10000-15200/-. As per the Recruitment Rules dated 7.9.2000, out of these 75 posts, 60 posts were required to be filled by promotion from amongst Deputy Superintendents of Police with 6 years regular service in the grade. Accordingly, a meeting of the DPC was held on 27th and 28th March, 2001, and 60 Deputy Superintendents of Police, including the applicant, were promoted to the rank of Additional Superintendent of Police in 2001. Subsequently, the DPC met in 2002 for considering the cases of eligible officers for promotion from the rank of Additional Superintendent of Police to the rank of Superintendent of Police against 7 vacancies of the year 2002. On the recommendation of the said DPC, the applicant was promoted from the rank of Additional Superintendent of Police to the rank of Superintendent of Police in the pay scale of Rs.12000-16500/-, vide order dated 26.7.2002. The applicant was promoted to the rank of Superintendent of Police against the vacancy of 2002. By this time, the new Recruitment Rules were notified on 7.9.2000, under which the pay scale for the post of Superintendent of Police was Rs.12000-16500/-, which was rightly granted to the applicant on his promotion from the grade of Additional Superintendent of Police to the rank of Superintendent of Police. In the above context, the respondents state and submit that the case of the applicant is not covered by the order dated 25.8.2003 passed by the Tribunal in OA No.2913 of 2002. The order dated 18.4.2002 was passed by the Tribunal in OA No.1033 of 2002 without issuing notices to the respondents. The applicant has raised the issue of granting him pay scale of Rs.14300-18300/- on his promotion to the grade of Superintendent of Police after a long period of more than ten years from the date of the order passed by the Tribunal and after eight years of his retirement. Therefore, the cause of action does not survive at this belated stage and the application is barred by limitation.
3. Refuting the stand taken by the respondents, the applicant has filed a rejoinder reply, wherein he has more or less reiterated the same averments and contentions as in his O.A. Along with MA No.2560 of 2013, the applicant has filed coy of note in the relevant file dealing with the order dated 18.4.2002 passed by the Tribunal in OA No.1033 of 2002. Referring to the said notes, the applicant has stated that there existed 3 vacancies in the grade of Superintendent of Police in the year 1999, and that the said vacancy position remained till 6.9.2000.
4. The respondents, in their additional affidavit, have stated that in its order dated 5.4.1999 passed in OA No.751 of 1998 (Shri P.D.Meena & others v. Union of India and others), the Tribunal directed that SC/ST officers holding the post of Deputy Superintendent of Police on 31.1.1997, i.e., the date of notification of the revised Recruitment Rules, shall continue to enjoy benefit of reservation for promotion to the post of Superintendent of Police and other concessions available to them under the old rules. Therefore, in order to consider the cases of SC/ST officers for promotion against the vacancies of 1998, two (one each for SC and ST) unfilled vacancies of 1997 were carried forward to the year 1998, and the DPC in its meeting held on 7th and 8th February, 2001considered the question of filling up the said two vacancies.
5. In his reply to the said additional affidavit of the respondents, the applicant has stated that the DPC, which met on 7th and 8th February 2001, recommended 25 officers for promotion to the post of Superintendent of Police, although 28 vacancies were available. The breakup of the three unfilled vacancies was 1 for SC, 1 for ST, and 1 for General which occurred on retirement of Sh.I.S.Saroha on 31.8.2000. Since the vacancy occurred on the retirement of Sh. I.S.Saroha was prior to the notification of the new Recruitment Rules on 7.9.2000, he was entitled to be promoted against the said vacancy in the pay scale of Rs.14300-18300/-. This was all the more necessary in view of the Tribunals order dated 6.9.2000 passed in OA No.1335 of 1998, whereby the respondents were directed to fill up the vacancies up to 6.9.2000.
6. We have heard Shri Harpreet Singh, learned counsel appearing for the applicant, and S/Shri A.K.Singh and Ravinder Agarwal, learned counsel appearing for the respondents.
7. It was contended by Shri Harpreet Singh, learned counsel appearing for the applicant, that only after coming to know about the order dated 25.8.2003 passed by the Tribunal in OA No.2913 of 2002, the applicant made the representation dated 16.12.2011 to respondent no.1 for granting him the pay scale of Rs.14300-18300/- on his promotion to the post of Superintendent of Police inasmuch as he was similarly placed as applicants in OA No.2913 of 2002. The applicant having claimed similar benefit as granted by the respondents to the applicants in OA No.2913 of 2002 in compliance with the order dated 25.8.2003 passed by the Tribunal, the plea of delay and laches, as raised by the respondents, is untenable. In support of this contention, the learned counsel relied on the decision of the Honble Supreme Court in K.C.Sharma & others v. Unon of India & others, 1998(1) S.L.J. (SC) 54, wherein it has been held that application filed by similarly placed persons should not be rejected for bar of limitation. The learned counsel also relied on the decision of the Tribunal in Savita Rani and others v. Union of India, Chandigarh & others, 2003(2) SLJ (CAT) 125, wherein it has been held that the Government should give benefit of a final decision to all similarly placed persons, and that the Government should not unnecessarily send the people to Court.
7.1 It was also contended by Shri Harpreet Singh, learned counsel appearing for the applicant, that in terms of the Tribunals order dated 6.9.2000 passed in OA No.1335 of 1998, the respondents ought to have considered the case of the applicant along with others for promotion to the rank of Superintendent of Police in respect of the vacancies which arose in the years 1996, 1997, 1998, 1999 and up to 6.9.2000 in accordance with the Recruitment Rules of 1996. Instead of doing so, the respondents considered the cases of eligible officers in the rank of Deputy Superintendent of Police, including the applicant, for promotion against the vacancies for the years 1996, 1997 and 1998 only and kept three vacancies unfilled, which included one for General category. As one Shri I.S.Saroha retired on 31.8.2000, i.e., before the Recruitment Rules of 2000 came into force on 7.9.2000, the respondents ought to have promoted the applicant to the rank of Superintendent of Police against the said vacancy. As the respondents failed to promote him to the rank of Superintendent of Police in accordance with the Recruitment Rules of 1996 against the vacancy that arose on account of retirement of Shri I.S.Saroha on 31.8.2000, the applicant ought not to have been denied the pay scale of Rs.14300-18300/- on his promotion to the rank of Superintendent of Police.
8. On the other hand, Shri A.K.Singh, learned counsel appearing for respondent nos. 1 to 3, submitted that the applicant was promoted from the grade of Deputy Superintendent of Police to the grade of Additional Superintendent of Police in the year 2001 and thereafter from the grade of Additional Superintendent of Police to the grade of Superintendent of Police in the year 2002 in accordance with the Recruitment Rules of 2000 which came into force with effect from 7.9.2000. On his promotion to the grade of Superintendent of Police, the applicant was granted the pay scale of Rs.12000-16500/- as prescribed in the Recruitment Rules of 2000. He retired from service on 30.6.2004. After more than 9 years of his promotion to the grade of Superintendent of Police in the pay scale of Rs.12000-16500/- and 7 years of his retirement, the applicant raised the issue of granting him the pay scale of Rs.14300-18300/-. Thus, the issue raised by the applicant is barred by delay and laches. In support of his contention, the learned counsel placed reliance on the decision of the Supreme Court in Bharat Sanchar Nigam Limited v. Ghanshyam Dass & others, (2011) 4 SCC 374.
8.1 It was also submitted by Shri A.K.Singh, learned counsel appearing for respondent nos. 1 to 3, that the applicant, having accepted his promotion from the grade of Additional Superintendent of Police to the grade of Superintendent of Police in the pay scale of Rs.12000-16500/- in the year 2002 without any demur, cannot be said to have a subsisting right as regards his promotion to the rank of Superintendent of Police under the Recruitment Rules of 1996 so as to be granted the pay scale of Rs.14300-18300/-.
8.2 It was also submitted by the learned counsel that at the time of his retirement from service on 31.8.2000, Shri I.S.Saroha was holding the post of Deputy Superintendent of Police on substantive basis and working as Superintendent of Police on ad hoc basis.
9. Shri Ravinder Agarwal, learned counsel appearing for respondent no.4, adopted the arguments as advanced by Shri A.K.Singh, learned counsel appearing for respondent nos.1 to 3. Shri Agarwal also filed a copy of the order dated 5.4.1999 passed by the Tribunal in the case of Sh.P.D.Meena and another v. Union of India and others, OA No.751 of 1998, whereby the respondents were directed to consider the cases of the applicants therein for regular promotion to the post of Superintendent of Police against reserved vacancies under the old Recruitment Rules applicable before 1.2.1997. In the said case, it was also decided by the Tribunal that the SC/ST officers holding the post of Deputy Superintendent of Police on 31.1.1997 shall continue to enjoy the benefit of reservation in promotion to the post of Superintendent of Police and other concessions available to them under the old Recruitment Rules.
10. We have given our anxious consideration to the facts and circumstances of the case, and the rival contentions of the parties.
11. In the present Original Application, the applicant has prayed for setting aside the order dated 12.3.2012 passed by the respondent-Department rejecting his representation dated 16.12.2011 for granting him pay scale of Rs.14300-18300/- on promotion from the grade of Additional Superintendent of Police to the grade of Superintendent of Police. He has also prayed for a direction to the respondent-Department to consider his case and extend him the same benefit as has been granted to the applicants in OA No.2913 of 2002.
12. The Central Bureau of Investigation (Senior Police Posts) Recruitment Rules, 1996 (hereinafter referred to as Recruitment Rules of 1996) came into force with effect from 31.1.1997. The Recruitment Rules of 1996 provided for promotion from the grade of Deputy Superintendent of Police to the grade of Superintendent of Police and prescribed the pay scale of Rs.4100-5300/- for the post of Superintendent of Police. There was no grade of Additional Superintendent of Police under the Recruitment Rules of 1996. The Government of India, Ministry of Personnel, Public Grievances and Pensions, Department of Personnel & Training, vide order No.203/3/97-AVD.II, dated 6.4.2000, upgraded prospectively 10 posts of Superintendent of Police as Senior Superintendent of Police in the Central Bureau of Investigation in the revised pay scale of Rs.14,300-18300/-, and 75 posts of Deputy Superintendent of Police as Additional Superintendent of Police in the Central Bureau of Investigation in the revised pay scale of Rs.10,000-15,200/-. The Recruitment Rules of 1997 were superseded by the Central Bureau of Investigation (Senior Police Posts) Recruitment Rules, 2000 (hereinafter referred to as Recruitment Rules of 2000) which came into force with effect from 7.9.2000. Recruitment Rules of 2000 provided for promotions from the grade of Deputy Superintendent of Police to the grade of Additional Superintendent of Police in the pay scale of Rs.10,000-15,200/-, and from the grade of Additional Superintendent of Police to the grade of Superintendent of Police in the pay scale of Rs.12,000-16,500/-.
13. The Tribunal, vide its order dated 6.9.2000 passed in OA No.1335 of 1998, directed the respondent-Department to hold DPC to fill up the vacancies that occurred in 1996, 1997, 1998 and thereafter till date (6.9.2000) in accordance with the rules existing on the date when the vacancies arose and to consider the cases of the applicants and others for promotion to the grade of Superintendent of Police on regular basis. The DPC, which met on 7th and 8th February, 2001, considered the question of selection of officers for promotion from the grade of Deputy Superintendent of Police to the grade of Superintendent of Police against 28 vacancies, the breakup of which was 4 ( 2 General, 1 SC, and 1 ST) for the year 1996, 21 (17 General, 3 SC, and 1 ST) for the year 1997, and 3 General for the year 1998. The applicant was not in the zone of consideration for the vacancies of the years 1996 and 1997. He was in the zone of consideration for the vacancies of the year 1998. His name was mentioned at sl.no.12 of the list of 14 officers in the zone of consideration for the vacancies of the year 1998. The DPC assessed the suitability of the officers for empanelment against 3 General + 1 SC & 1 ST (both carried forward) vacancies of the year 1998. The officer named at sl.no.1 was belonging to SC community, and all other officers at sl.nos. 2 to 11 were belonging to General category. The DPC followed the sealed cover procedure in respect of five out of 10 officers belonging to General category who were placed above the applicant, and that is how the officers named at sl.nos. 9 to 11 were empanelled by the DPC for promotion to the grade of Superintendent of Police against the 3 General vacancies. The DPC prepared panel of 4 officers for the year 1996, panel of 19 officers for the year 1997 with extended panel of one officer, Mr.J.P.Verma in place of Mr.S.Kumar who had already retired, and panel of 3 officers belonging to General category for the year 1998, leaving 1 SC and 1 ST vacancies which were carried forward to the year 1998. Office order No.288/2001, dated 9.3.2001, was issued by the respondent-Department promoting 25 officers from the grade of Deputy Superintendent of Police to the grade of Superintendent of Police, as Shri Saroha, included in the panel for the year 1997, had already retired on superannuation by the date of issue of the order dated 9.3.2001. It was stipulated in the order dated 9.3.2001 that the officers at sl.nos. 1 to 10 and 20 and 21 on their promotion to the grade of Superintendent of Police would be allowed the scale of pay of Rs.14,300-18,300/- as personal to them, and that other remaining 13 officials on their such promotion would be allowed the scale of pay of Rs.12,000-16,500/-.
14. While the matter stood thus, on the recommendation of the DPC, which met on 27th and 28th March 2001, the applicant, along with others, was promoted from the grade of Deputy Superintendent of Police to the grade of Additional Superintendent of Police in the pay scale of Rs.10,000-15,200/- in the year 2001 under the Recruitment Rules of 2000. After getting this promotion, the applicant filed O.A.No.1033 of 2002 seeking a direction to the respondents to consider his case for promotion to the grade of Superintendent of Police in terms of the Tribunals order dated 6.9.2000 ibid. However, the Tribunal, without issuing notices to the respondents, disposed of the said O.A., vide order dated 18.4.2002, with a direction to the respondents to fill up the remaining three posts in compliance with its earlier order dated 6.9.2000 ibid. The Tribunal also directed that in case, for such reasons, they are unable to do so, they would assign cogent and valid reasons by passing a reasoned and speaking order within a period of 2 months from the date of service of copy of the order dated 18.4.2002.
15. It is pertinent to mention here that we have already found from the proceedings of the DPC, which met on 7th and 8th February 2001, that the applicant was duly considered along with others by the DPC for the vacancies of the year 1998, and officers senior to the applicant were empanelled for promotion against the vacancies falling under General category for the year 1998, and only two reserved vacancies remained unfilled due to non-availability of SC and ST category officers.
16. It is also pertinent to mention here that Shri I.S.Saroha, who was empanelled by the DPC for promotion against one of the General vacancies for the year 1997, was not promoted by the office order dated 9.3.2001 ibid as he had already retired from service on 31.8.2000, i.e., before the Recruitment Rules of 2000 came into force on 7.9.2000.
17. It is the contention of the applicant that against the vacancy that arose on account of retirement of Shri I.S.Saroha, the respondents ought to have promoted him to the grade of Superintendent of Police. In reply, the respondents have asserted that Shri I.S.Saroha was not holding the post of Superintendent of Police on substantive basis, and that he retired as ad hoc Superintendent of Police. If at all the applicant had any grievance on this count, he could have agitated the same before the departmental authorities within a reasonable period and approached the Tribunal within the prescribed period of limitation in the event of his being unsuccessful in getting the said grievance redressed in the hands of the respondent-departmental authorities. Instead of asking for specific relief in regard thereto, the applicant filed OA No.1033 of 2002 seeking a direction to the respondents to fill up the remaining three posts in compliance with the Tribunals order dated 6.9.2000 ibid, and was satisfied with the order dated 18.4.2002 ibid. Thereafter, on the recommendation of the DPC, which presumably met after O.A.No.1033 of 2002 was disposed of by the Tribunal, vide its order dated 18.4.2002 ibid, the respondent-Department issued office order No.984/2002, dated 26.7.2002 promoting the applicant and four others from the grade of Additional Superintendent of Police to the grade of Superintendent of Police in the pay scale of Rs.12000-16500/- under the Recruitment Rules of 2000, which he duly accepted. After working for a period of about two years in the grade of Superintendent of Police in the pay scale of Rs.12000-16500/-, the applicant retired from service on 30.6.2004.
18. It is not made clear from the pleadings of the parties as to whether, or not, any of the aforesaid five officers, who were senior to the applicant in the grade of Deputy Superintendent of Police and were considered, along with the applicant, by the DPC, which met on 7th and 8th February 2001, for considering the eligible officers promotion from the grade of Deputy Superintendent of Police to the grade of Superintendent of Police for the 3 General vacancies of the year 1998, and in respect of whom sealed cover procedure was followed, was made free from vigilance angle, sealed cover in respect of him was opened, and he was promoted from the grade of Deputy Superintendent of Police to the grade of Superintendent of Police, before the order dated 26.7.2002 was issued by the respondent-Department promoting the applicant from the grade of Additional Superintendent of Police to the grade of Superintendent of Police in the pay scale of Rs.12,000-16,500/- in accordance with the Recruitment Rules of 2000. Some of the said five officers were also considered for the vacancies of the years 1996 and 1997, and the DPC followed the sealed cover procedure in their cases. Even if it is assumed that a vacancy in the grade of Superintendent of Police arose on account of retirement of Shri I.S.Saroha, the applicant cannot claim promotion to the grade of Superintendent of Police against the said vacancy solely on the ground that Shri H.C.Bisht, the officer just above him in the seniority list had been promoted to the grade of Superintendent of Police, vide office order dated 9.3.2001. Furthermore, in the absence of recommendation of the DPC in favour of the applicant for promotion against the vacancies of the year 1998, and in view of the fact that no DPC meeting was held for the purported vacancy that arose on account of retirement of Shri I.S.Saroha on 31.8.2000, we find no substance in the plea of the applicant that the respondent-Department having failed to promote him against the purported vacancy arising on account of retirement of Shri I.S.Saroha on 31.8.2000, the pay scale of Rs.14,300-18,300/- ought to have been granted to him on promotion to the grade of Superintendent of Police, vide office order dated 26.7.2012 ibid. It is trite law that a Government employee has a right to be considered for promotion if he/she is in the zone of consideration, and he/she cannot claim to be promoted as a matter of right. If at all no DPC meeting was held and the applicant was not considered for promotion against the purported vacancy that arose on account of retirement of Shri I.S.Saroha on 31.8.2000, he could have raised the said issue by making a representation to the departmental authorities within a reasonable period and approached the Tribunal within the prescribed period of limitation in the event of his being unsuccessful to get his grievance redressed at the hands of the departmental authorities, but he chose not to do so.
19. As regards the note filed by the applicant, along with MA No.2560 of 2013, on the basis of which he has claimed that there existed 3 vacancies in the year 1999, and that such vacancy position remained till 6.9.2000, we would like to observe here that the said note was prepared by the concerned Clerk and countersigned by his supervisors, i.e., O.S. and A.O. The applicant has not produced before us any other contemporaneous material to corroborate the contents of the said note, nor has he produced the minutes and/or order of the competent authority on the said note prepared by the concerned Clerk and countersigned by his supervising officers. This apart, the vacancy position, as indicated in the said note, is contrary to the proceedings of the DPC, as discussed by us in the preceding paragraphs.
20. As already found, the applicant was promoted from the grade of Deputy Superintendent of Police to the grade of Additional Superintendent of Police in 2001 and from the grade of Additional Superintendent of Police to the grade of Superintendent of Police under the Recruitment Rules of 2002. The Recruitment Rules of 2000 prescribed the pay scale of Rs.12,000-16,500/- for the post of Superintendent of Police. The applicant raised the issue of granting him pay scale of Rs.14,300-18,300/- for the first time by making a representation to the respondent-Department on 16.12.2011, i.e., after more than 9 years of his promotion and 7 years of his retirement. After his representation dated 16.12.2011 was rejected by the respondent-Department, vide letter dated 12.3.2012, the applicant has filed the present O.A. The cause of action, if any, arose in 2001 when he was promoted from the grade of Deputy Superintendent of Police to the grade of Additional Superintendent of Police in the pay scale of Rs.10,000-15,200/- under the Recruitment Rules of 2000, and further in 2002 when he was promoted from the grade of Additional Superintendent of Police in the pay scale of Rs.12,000-16,500/-. If at all he had any grievance with respect to grant of pay scale of Rs.14,300-18,300/- on his promotion to the grade of Superintendent of Police in 2002, the applicant ought to have approached the departmental authorities within a reasonable period and approached the Tribunal within the prescribed period of limitation in the event of his being unsuccessful in getting his grievance redressed at the hands of the departmental authorities. Having not done so, his purported claim for granting him pay scale of Rs.14,300-18,300/- became stale and dead, and his representation dated 16.12.2011 or the order dated 12.3.2012 passed by the respondent-Department rejecting his representation dated 16.12.2011 could not give him a fresh cause of action and/or revive his stale and dead claim.
21. In State of Karnataka & Ors. v. S.M.Kotrayya & Ors., (1996) 6 SCC 267, the respondents woke up to claim the relief which was granted to their colleagues by the Tribunal with an application to condone the delay. The Tribunal condoned the delay. Therefore, the State approached the Honble Supreme Court. Their Lordships, after considering the matter, observed as under :
"..it is not necessary that the respondents should give an explanation for the delay which occasioned for the period mentioned in sub-section (1) or (2) of Section 21, but they should give explanation for the delay which occasioned after the expiry of the aforesaid respective period applicable to the appropriate case and the Tribunal should be required to satisfy itself whether the explanation offered was proper explanation. In this case, the explanation offered was that they came to know of the relief granted by the Tribunal in August 1989 and that they filed the petition immediately thereafter. That is not a proper explanation at all. What was required of them to explain under sub-sections (1) and (2) was as to why they could not avail of the remedy of redressal of their grievances before the expiry of the period prescribed under sub-section (1) or (2). That was not the explanation given. Therefore, the Tribunal is wholly unjustified in condoning the delay."
22. In Jagdish Lal & Ors. v. State of Haryana & ors. (1997) 6 SCC 538, the Honble Supreme Court reaffirmed the rule if a person chose to sit over the matter and then woke up after the decision of the Court, then such person cannot stand to benefit, and that the delay disentitles a party to the discretionary relief under Article 226 or Article 32 of the Constitution of India.
23. In Karnataka Power Corpn. Ltd. through its Chairman & Managing Director v. K. Thangappan and another, (2006) 4 SCC 322, the Court took note of the factual position and laid down that when nearly for two decades, the respondent-workmen therein had remained silent, mere making of representations could not justify a belated approach.
24. In C. Jacob v. Director of Geology and Mining and another, (2008) 10 SCC 115, the Honble Supreme Court observed thus:
Every representation to the Government for relief, may not be replied on merits. Representations relating to matters which have become stale or barred by limitation, can be rejected on that ground alone, without examining the merits of the claim. In regard to representations unrelated to the Department, the reply may be only to inform that the matter did not concern the Department or to inform the appropriate Department. Representations with incomplete particulars may be replied by seeking relevant particulars. The replies to such representations, cannot furnish a fresh cause of action or revive a stale or dead claim.
25. In Union of India and others v. M.K. Sarkar, (2010) 2 SCC 59, the Honble Supreme Court, after referring to C. Jacobs case (supra), has ruled that when a belated representation in regard to a stale or dead issue/dispute is considered and decided, in compliance with a direction by the court/tribunal to do so, the date of such decision cannot be considered as furnishing a fresh cause of action or reviving the dead issue or time-barred dispute. The issue of limitation or delay and laches should be considered with reference to the original cause of action and not with reference to the date on which an order is passed in compliance with a courts direction. Neither a courts 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.
26. In Bharat Sanchar Nigam Limited v. Ghanshyam Dass and others (supra) the Honble Supreme Court reiterated the principle stated in Jagdish Lal v. State of Haryana, (1977) 6 SCC 538 and proceeded to observe that as the respondents therein preferred to sleep over their rights and approached the tribunal in 1997, they would not get the benefit of the order dated 7.7.1992.
27. In the light of the above discussions, we hold that the applicant is not similarly placed as applicants in OA No.2913 of 2002 decided by the Tribunal, vide its order dated 25.8.2002. Consequently, the decisions in K.C.Sharma & others v. Union of India & others (supra) and Savita Rani and others v. Union of India, Chandigarh & others (supra) are of no help to the case of the applicant. We also hold that the O.A. filed by the applicant, besides being barred by delay and laches, is devoid of merit and liable to be dismissed.
28. Accordingly, the O.A. is dismissed. No order as to costs.
(RAJ VIR SHARMA) (ASHOK KUMAR) JUDICIAL MEMBER ADMINISTRATIVE MEMBER AN AN