Central Administrative Tribunal - Delhi
All India Civil Accounts Employees ... vs M/O Finance on 18 December, 2024
1
O.A. No. 2532/2021
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH: NEW DELHI
O.A. No. 2532/2021
Reserved on: 17.10.2024
Pronounced on: 18.12.2024
HON'BLE MR. CHHABILENDRA ROUL, MEMBER (A)
HON'BLE SHRI AJAY PRATAP SINGH, MEMBER (J)
(i) All India Civil Accounts Employees Association
(through its Secy.Gen., Krishna Kant Yadav)
(recognized by Govt of India)
Office address:
Lok Nayak Bhawan,
Room No.351, "A" Wing, Third Floor,
Khan Market,
New Delhi - 110 003.
(ii) Pradeep Kumar Bagat,
RZ-60/61, Block N,
M.D. Road, Gopal Nagar Extn.,
Near Young Talent School,
New Delhi.
...Applicants
Versus
1. Union of India through
Controller General of Accounts,
Ministry of Finance,
Department of Expenditure,
Mahalekha Bhawan, CGO Complex,
INA, New Delhi - 110 022.
2. Secretary,
Department of Expenditure,
North Block,
New Delhi.
...Respondents
For Applicant: Mr. Vidya Sagar, Advocate
For Respondents: Mr. Hanu Bhaskar, Senior Central
Government Standing Counsel.
ORDER
AS PER AJAY PRATAP SINGH, MEMBER JUDICIAL:
Applicants are espousing cause of its members working as Senior Accountants by filing present OA invoking jurisdiction of this Tribunal under Section 19 of the Administrative Tribunals Act, 1985 2 O.A. No. 2532/2021 seeking direction to respondents to convene year-wise DPCs from year 2015 and grant notional promotions on the post of Asstt. Accounts Officer/Junior Accounts Officer with all consequential benefits when the Central Civil Accounts Service (Junior Accounts Officer and Assistant Accounts Officer) Recruitment Rules, 2000 [for brevity, hereinafter referred as Rules, 2000] are under revision.
PRAYER
2. By way of present OA, applicants sought following main relief
(s) [as extracted from the OA) reads as under:-
"(i). Direct Respondents to convene year-wise DPCs from 2015 and make promotions against 10% quota.
(ii). Grant notional promotions from date with all consequential benefits, and/or
(iii) Pass any other order or grant relief in the applicants' favour as deemed appropriate in the facts and circumstances of the case."
FACTS IN BRIEF
3. Briefly stated facts as adumbrated by the applicants that applicant no.1 is espousing the cause of its members working as Senior Accountants and entitled for consideration for promotion as Junior Accounts Officer/Assistant Accounts Officer (in short JAO/AAO) under clause (ii) of Column 12 of Rules, 2000 which provides as "10% of posts in the grade of Junior Accounts Officer shall be filled up by promotion from common seniority list to be drawn up and maintained by Controller General of Accounts of Senior Accountants who have rendered not less than 10 years service in the grade on selection-cum-seniority and who have crossed the age of 53 years as on 1st January of the year". The applicants - Senior Accountants after 53 years of age becomes ineligible to take departmental exam for promotion and they are entitled for promotion based on their seniority. But the respondents have not operated the 10% quota for promotion to JAO/AAO after year 2015. It seems that after VI CPC recommendations the pay scales of JAOs and AAOs merged into a single replacement pay scale. The 10% quota remained operative upto year 2015 and there is no amendment in the Rules, 2000 and as per Clause (i) of Column 12 3 O.A. No. 2532/2021 of Rules, 2000 - 90% quota of posts in grade of JAO filled by promotion on seniority-cum-fitness who have passed JAO |(Civil ) Exam in spite of merger of grades.
4. It is also the case of applicants as set out in the OA that there are more than 500 vacancies of JAOs/AAOs and at least 50 vacancies backlog for 10% quota from 2015 and existing Rules, 2000 will prevail till same are revised/amended. Applicants are entitled for consideration for promotion on notional basis from year 2015 till amendment in existing Rules, 2000, with all consequential benefits are carried out.
5. Per contra, the respondents have contested the claim of the applicant by filing counter-reply affidavit and on preliminary objections that applicant no.1 is an unrecognized Association has no locus to file present OA. So also Hon'ble High Court of Kerala at Ernakulam in All India Civil Accounts Employees Association Vs. Union of India & Ors. [WP (C) 25287 of 2022, vide judgment dated 07.12.2022 has dismissed the writ petition by applicant no.1
- being not recognized association.
6. The respondents have also made averments in the WS that applicants are seeking promotion by operation of 10% quota since 2015 and OA filed in 2021 after limitation period prescribed for filing OA and there is no application for condonation of delay. The DoP&T did not agree for 10% quota on seniority basis as none of the organized Accounts Services has this quota and DoP&T suggested deletion and informed applicants on 12.05.2016, 15.12.216 and so on. The applicants if at all aggrieved out to have approached this Tribunal at the initial date of cause of action at relevant time in year 2015. The respondents could not operate the 10% quota in 2015 in the light of a conscious decision vide DoP&T Note dated 08.05.2015 and UPSC has approved the revised Recruitment Rules, 2000 of the post of AAO on 30.05.2018. The revised RRs to the post of AAO submitted to the Department of Expenditure in light of DoP&T Note in Col.12, promotion is to be made from departmental candidates who passed Limited Departmental (Civil) Qualifying Exam. Since May, 2015 no promotion based on 10% quota operated after 6th CPC, the post of JAO and AAO were merged and re-designated as 4 O.A. No. 2532/2021 AAO, Group "B" and same necessitated revised RRs. Conscious decision already taken in year 2015 to delete 10% quota based on seniority as none of the other organized Accounts Services has this provision. The revision of rules kept abeyance in light of 7th CPC recommendations and awaiting acceptance of DOE.
7. Rejoinder has been filed by the applicants in rebuttal to averments made in the WS stating that under Rule 4(b) (a) of CAT (Procedure) Rules, 1987 - Association can file the OA and there is no requirement of recognition by the Government. So also held by Hon'ble Supreme Court in case of Akhil Bhartiya Soshit Karamchari Sangh (Railway) Vs. Union of India [(1981) 1 SCC 246], Their Lordships held whether petitioner belongs to a recognized Union or not, the fact remains that a large body of persons with a common grievance can approach the court. So far as objection of period of limitation is concerned, communication dated 19.11.2020 (Annexure A-1) has given rise to cause of action and OA was listed on 15.11.2021 hence within limitation.
8. Applicants have reiterated grievance in the rejoinder that respondents illegally stopped 10% quota for promotion of Senior Accountants to AAD/JAO since 2015 and notional promotion to the members of association - Senior Accountants ought to be given by DPC including employees, those who have retired, revision of pension and the grievance is not barred by limitation.
SUBMISSIONS ON BEHALF OF APPLICANTS
9. Shri Vidya Sagar, learned counsel for the applicants vociferously canvassed and can be summarized as under :-
(i) Applicant no.1 is an Association espousing cause of its members working as Senior Accountants. Applicants are legally entitled for consideration of promotion to the post of AAO in accordance with clause (ii) of Column No.12 of Rules, 2000 whereas
- "10% of the posts in the grade of JAO may be filled up by promotion from common seniority of Senior Accountants in Pay Scale Rs.5000-8000, rendered 10 years of service and crossed age of 53 years based on selection-cum-seniority". The applicants are eligible and entitled for consideration for promotion to the post of 5 O.A. No. 2532/2021 AAO against 10% quota based on seniority against vacancies which has occurred since year 2015. The respondents have illegally deprived applicants from consideration for promotion as per prevalent Rules, 2000 since year 2015.
(ii) Applicants have legal right for consideration for promotion to posts of AAO as per existing un-amended Rules, 2000 and vacancies were governed by Rules, 2000 since 2015 and to be filled up by operating 10% quota based on seniority for post of AAO.
(iii) Respondents have denied promotion to the applicants by not operating 10% quota as per seniority to the post of AAO since 2015 and cause of action has arisen to applicants on receipt of communication dated 19.11.2020 (Annexure A-1) informing applicants by the respondents on representation dated 26.09.2020 of the applicant no.1. Applicant no.1 received communication dated 19.11.2020 and OA has been filed on 09.11.2021 within limitation period prescribed for filing the OA under Section 21 of the Administrative Tribunals Act, 1985.
SUBMISSIONS ON BEHALF OF THE RESPONDENTS
10. Shri Hanu Bhaskar, Senior CGSC, learned counsel appearing for respondents vehemently argued and can be summarized as under
(i) Applicant no.1 is an Association and neither avermnets made nor any registration certificate filed with OA and also there is no resolution of authorization to represent said Association. So also Hon'ble High Court of kerala at Ernakulam in WP(C) 25287 of 2022 titled as All India Civil Accounts Employees Association Vs. Union of India & Ors, vide judgment dated 07.12.2022 has dismissed the writ petition as the applicant no.1 is not recognized association and cannot prosecute the petition.
(ii) Applicants are seeking consideration for promotion to the post of JAOs/AAOs by convening year-wise DPCs from 2015 to make promotions against 10% quota based on seniority as prescribed under Clause (ii) of Column No.12 of Rules, 2000 against available vacancies including for employees, who have retired with all 6 O.A. No. 2532/2021 benefits. The cause of action has arisen since 08.05.2015 when the DoP&T did not agree to the proposal from Department of Expenditure for separate quota of 10% for recruitment on seniority basis and draft Recruitment Rules to be finalized in consideration with UPSC and Ministry of Law. The original cause of action has arisen in year 2015 and applicant no.1 has been representing vide communications dated 12.05.2016, 15.12.2016, 19.02.2019, 14.08.2019, 18.03.2020 and did not file present OA within one year of initial date of cause of action i.e. 08.05.2015 in spite of knowing well that since 2015, respondents taken conscious decision not to operate the quota with valid reason that none of the other Organized Accounts Services has this 10% quota based on seniority. The present OA filed after six years of cause of action is hopelessly barred by limitation under Section 21 of the Act, 1985. Applicants are very well aware as evident from letter dated 12.05.2016, 15.12.2016 addressed to applicants filed in the OA that DoP&T in year 2015 suggested to delete 10% quota. There is no application to condone the delay explaining sufficient cause. This Tribunal cannot even condone delay as there is no application to condone delay, so also no sufficient cause shown in the OA. Hence, the OA deserves to be dismissed threshold barred by limitation.
(iii) On implementation of 6th CPC, the posts of JAO and AAO were merged and re-designated as AAO, Group "B" and necessitated the revision of Rules, 2000 to newly merged posts of AAO. The Department of Expenditure submitted proposal for amendment of RRs for post of AAO to DoP&T. But DoP&T did not agree to carry on with 10% quota for promotion based on seniority of Senior Assistants to post of JAO/AAO as none of the other organized Accounts Services has this provision. The draft RRs were forwarded by DoP&T vide note dated 08.05.2015 and UPSC approved on 30.05.2018.
ANALYSIS AND FINDINGS
11. We have bestowed our anxious considerations on the rival contentions of learned counsel appearing for the parties and perused the material placed on record as well as considered precedents relied.
7 O.A. No. 2532/2021THE ISSUE
12. From above submissions of learned counsel for parties and material placed on record, the issues arise for our consideration are-
"(i) Whether the present OA filed on 09.11.2021 seeking direction to respondents to promote applicants from year 2015against 10% quota based on seniority is barred by limitation under Section 21 of Administrative Tribunals Act, 1985?
(ii) Whether applicants have right to be promoted on mere availability of vacancies of 10% quota based on seniority as per Rules, 2000 from Sr. Accountant to JAO/AAO, when the RRs are under revision and there is a conscious decision not to have separate quota of 10% as none of other organized Accounts Services has this provision?
AS TO ISSUE NO.1.
13. To appreciate the first issue arising in the present OA, it will be necessary to notice the Scheme of the Administrative Tribunals Act, 1985. For ready reference Section 19, 20, 21 of Act and Section 5 of Limitation Act, 1963 reproduced as -
(A) "Section- 19. Applications to tribunals.--(1) Subject to the other provisions of this Act, a person aggrieved by any order pertaining to any matter within the jurisdiction of a Tribunal may make an application to the Tribunal for the redressal of his grievance. Explanation.--For the purposes of this sub-section, "order" means an order made--
(a) by the Government or a local or other authority within the territory of India or under the control of the Government of India or by any corporation 3[or society] owned or controlled by the Government; or
(b) by an officer, committee or other body or agency of the Government or a local or other authority or corporation 3[or society] referred to in clause (a).
(2) Every application under sub-section (1) shall be in such form and be accompanied by such documents or other evidence and by such fee (if any, not exceeding one hundred rupees) 4[in respect of the filing of such application and by such other fees for the service or execution of processes, as may be prescribed by the Central Government].
8 O.A. No. 2532/2021[(3) On receipt of an application under sub-section (1), the Tribunal shall, if satisfied after such inquiry as it may deem necessary, that the application is a fit case for adjudication or trial by it, admit such application; but where the Tribunal is not so satisfied, it may summarily reject the application after recording its reasons.] (4) Where an application has been admitted by a Tribunal under sub-section (3), every proceeding under the relevant service rules as to redressal of grievances in relation to the subject-matter of such application pending immediately before such admission shall abate and save as otherwise directed by the Tribunal, no appeal or representation in relation to such matter shall thereafter be entertained under such rules.
(B) Section 20. Applications not to be admitted unless other remedies exhausted.--(1) A Tribunal shall not ordinarily admit an application unless it is satisfied that the applicant had availed of all the remedies available to him under the relevant service rules as to redressal of grievances.
(2) For the purposes of sub-section (1), a person shall be deemed to have availed of all the remedies available to him under the relevant service rules as to redressal of grievances,--
(a) if a final order has been made by the Government or other authority or officer or other person competent to pass such order under such rules, rejecting any appeal preferred or representation made by such person in connection with the grievance; or
(b) where no final order has been made by the Government or other authority or officer or other person competent to pass such order with regard to the appeal preferred or representation made by such person, if a period of six months from the date on which such appeal was preferred or representation was made has expired.
(3) For the purposes of sub-sections (1) and (2), any remedy available to an applicant by way of submission of a memorial to the President or to the Governor of a State or to any other functionary shall not be deemed to be of one of the remedies which are available unless the applicant had elected to submit such memorial.
(C) Section 21. Limitation.--(1) A Tribunal shall not admit an application,--
(a) in a case where a final order such as is mentioned in clause (a) of sub-section (2) of section 20 has been made in connection with the grievance unless the application is made, within one year from the date on which such final order has been made;
(b) in a case where an appeal or representation such as is mentioned in clause (b) of sub-section (2) of section 20 has been made and a period of six months had expired thereafter without such final order having been made, within one year from the date of expiry of the said period of six months.
(2) Notwithstanding anything contained in sub-section (1), where--
(a) the grievance in respect of which an application is made had arisen by reason of any order made at any time during the period of three years immediately preceding the date on which the jurisdiction, powers and authority of the Tribunal becomes exercisable under this Act in respect of the matter to which such order relates; and 9 O.A. No. 2532/2021
(b) no proceedings for the redressal of such grievance had been commenced before the said date before any High Court, the application shall be entertained by the Tribunal if it is made within the period referred to in clause (a), or, as the case may be, clause
(b), of sub-section (1) or within a period of six months from the said date, whichever period expires later.
(3) Notwithstanding anything contained in sub-section (1) or sub-section (2), an application may be admitted after the period of one year specified in clause (a) or clause (b) of sub- section (1) or, as the case may be, the period of six months specified in sub-section (2), if the applicant satisfies the Tribunal that he had sufficient cause for not making the application within such period."
(D) Section 5 of Limitation Act 1963 envisages that:-
"5. Extension of prescribed period in certain cases.--Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908), may be admitted after the prescribed period if the appellant or the applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application within such period.
[Emphasis supplied]
14. A bare reading of the Section 21 of A.T. Act, 1985 would indicate that sub-section (1) of Section 21 provides for limitation for redressal of the grievances in clauses (a) and (b) and specifies the period of one year. Sub-Section (2) amplifies the limitation of one year in respect of grievances covered under clauses (a) and (b) and an outer limit of six months in respect of grievances covered by sub- section (2) is provided. Sub-Section (3) postulates that notwithstanding anything contained sub-section (1) or sub-Section (2), if the applicants satisfy the Tribunal that they had sufficient cause for not making the application within such period enumerated in sub-section (1) and (2) from the date of application.
The Tribunal has been given power to condone the delay on satisfy itself that the applicant has explained the delay in filing the application for rederssal of their grievances. The Sub-section (2) has given power, right for making applications within one year of the grievances covered under clauses (a) and (b) of Sub-Section (2). There is no need for the applicant to give any explanation to the delay having occurred during that period. Applicant entitled, as a matter of right to invoke the jurisdiction of the court for redressal of their grievances. If the application to be filed beyond that period, then the need to satisfactory explanation for the delay caused till date of filing of the application must be given and then the 10 O.A. No. 2532/2021 question of satisfaction of the Tribunal in that behalf would arise. Sub-Section (3) starts with a non-obstante clause which rubs out the effect of sub-section (2) of Section 21 and the need thereby arises to given satisfactory explanation for the delay which occasioned after the expiry of the period prescribed in Sub-Section (1) & (2) thereof.
15. Present OA has been filed under Section 19 of the A.T. Act, 1985 and intention of legislature is plain with opening words in sub- section (1) of Section 19 that subject to the other provisions of this Act, a person aggrieved by any order pertaining to any matter within the jurisdiction of a Tribunal may make an application. So also sub-section (3) of Section 19 provides that on receipt of such OA subject to other provisions of this AT Act, 1985 and coupled with the fact, the Tribunal shall if satisfied after such inquiry as it may deem necessary, that the such application is a fit case for adjudication or trial by it, admit such application, but where the Tribunal is not so satisfied, it may summarily reject the application after recording its reasons.
16. Thus the intention of the legislature is clear and object of the A.T. Act, 1985 is clear as evident from the scheme extracted herein above.
17. So far as the admitted facts of the case in hand on implementation of 6th CPC recommendations, the posts of JAO and AAO were merged and re-designated as AAO, Group "B". The said merger necessitated the revision of Recruitment Rules, 2000 to the newly merged posts of AAO and the proposal was submitted to the DoP&T. DoP&T on 08.05.2015 did not agree to carry on with 10% quota for promotion based on seniority from Sr. Accountant to AAO/JAO as none of the other organized Accounts Services has this provision of 10% quota based on seniority. The DoP&T issued draft/modified RRs, 2000 as evident from Note dated 08.05.2015 with WS and revised RRs, 2000 were approved by UPSC on 30.05.2018.
18. The respondents have also informed to the applicant no.1- Employees Association vide communicated dated 12.05.2016, 11 O.A. No. 2532/2021 15.12.2016 about minutes of meeting held on 15.11.2016 at serial no.5 - grant of promotion to the Sr. Accountants as AAOs, who are eligible for promotion under 10% promotion quota - and conveyed to the applicant no.1 vide letter dated 26.10.2015 that DoP&T suggested deletion of 10% provision for promotion of Senior Accountants as AAO on seniority basis.
19. Applicant no.1 submitted comments dated 12.01.2018 and 10.09.2018 on the RRs to the posts of AAO and demanded that RRs may not be amended as 10% quota for promotion of Senior Accountants on basis of seniority it is proposed to be reviewed is not justified.
20. In present OA, the applicants are seeking direction to convene year-wise DPCs from year 2015 to make promotions against 10% quota from Senior Accountants to the post of AAOs under old Rules, 2000. In fact the initial cause of action arisen in year 2015 as DoP&T already taken a decision to delete 10% quota as none of the other Accounts Services has this provision. Applicant no.1 has been communicating with respondents on this issue as evident from representations dated 22.09.2015 (page 59 of OA), 12.01.2018, 10.09.2018. So also respondents have been communicating to the applicant no.1 - Employees Association regarding modification/ revision of RRs as to 10% quota based on seniority not agreed by DoP&T as evident from letter dated 15.12.2016, 18.03.2018, 19.02.2019, 14.08.2019 and 14.11.2020/
21. Applicants have filed present OA on 09.11.2021, seeking direction to convene year-wise DPCs from 2015 and make promotions against 10% quota based on seniority. Cause of action arisen in year 2015 when DoP&T did not agree to suggestions of Department of Expenditure to continue quota of 10% based on seniority. DoP&T on 08.05.2015 taken conscious decision with valid reason accordingly modified the schedule of RRs, 2000 with cogent reason and a separate quota of 10% on seniority basis not agreed and sent vide Note dated 08.05.2015 and UPSC finalized the same on 30.05.2018.
12 O.A. No. 2532/202122. Applying the principles of Section 21 of Act, 1985, present OA has been filed on 09.11.2021 whereas cause of action arisen in May, 2015 after delay of more than six years. Applicants have not shown any sufficient cause in the para 3 of the OA for not filing OA within one and half year of cause of action i.e. May, 2015, so also not filed any application for condonation of delay.
23. This Tribunal is empowered to consider application for condonation of delay only if proper explanation of delay is given. In present case in hand, the applicants have neither explained the factum of delay in para 3 nor filed any MA for condonation of delay.
24. It is well settled in law in principles of service jurisprudence that the Central Administrative Tribunal is a creature of the statute (Administrative Tribunals Act, 1985) and the Tribunal is bound to function within four corners of provisions of the Administrative Tribunals Act, 1985 and this Tribunal just does not have any jurisdiction to exercise power out of purview of provisions of the Administrative Tribunals Act, 1985.
25. So also the Division Bench of this Tribunal in case of Manoj Kmar Vc. Union of India, OA No. 842 of 2023 (Patna) dismissed the OA vide order dated 15.01.2024 and observed that there is no prayer for condonation of delay, in absence of any ground for condonation of delay, OA not maintainable under Section 21 of A.T. Act, 1985 and dismissed the OA on ground of limitation.
26. This Tribunal does not have power to condone delay as in present case applicant had not given any explanation nor any MA for condonation of delay filed. So also Division Bench of Hon'ble High Court of M.P., in case of Union of India & ors Vs. Raj Kumar Lodhi, M.P.No. 2448 of 2023 decided vide judgment dated 14.07.2023. Their Lordships held - "Tribunal has to function within four corners of the statute, i.e. A.T. Act, 1985 which in mandatory terms prescribes the period of limitation under Section 21 and also the parameters extending the period of limitation which admittedly are not satisfied in the present case".
27. Hon'ble Supreme Court in 3 Judge Bench decision in case of Secretary to Government of India and others versus Shivram 13 O.A. No. 2532/2021 Mahadu Gaikwad, 1995, Supp (3) SCC 231. Their Lordships held-
"2. The learned counsel for the Union of India raised a preliminary contention, namely, that the application was filed almost after about four years from the date of discharge and, therefore, it was clearly barred by Section 21 of the Administrative Tribunals Act, 1985. He pointed out that this question was squarely raised in the counter filed in answer to the respondent's application in the following terms:
"These respondents state that the applicant herein is challenging the order dated 7-10-1986 discharging him from the service and has filed this application on 14-9- 1990, as such this application is barred by the provisions of limitation under Section 21 of the Central Administrative Tribunals Act, 1985."
When we turn to the judgment of the Tribunal we find that there is no mention about the question of limitation even though it stared in the face. It would immediately occur to anyone that since the order of discharge was of 7- 10-1986 and the application was filed in 1990, it was clearly barred by limitation unless an application for condoning the delay was made under Section 21(3) of the Administrative Tribunals Act. No such application was in fact made. Even if it was the contention of the employee that he was suffering from schizophrenia, that could have been projected as a ground for condonation of delay under sub-section (3) of Section 21 of the said statute. Even otherwise without insisting on the formality of an application under Section 21(3) if the Tribunal had dealt with the question of limitation in the context of Section 21 we may have refrained from interfering with the order of the Tribunal under Article 136, but it seems that the Tribunal totally overlooked this question which clearly stared in the face. Even the employee made no effort to explain the delay and seek condonation. We find no valid explanation on record for coming to the conclusion that the case for condonation of delay is made out. In the circumstances, there is no doubt that the application was clearly barred by limitation. It is also difficult to understand how the Tribunal could have awarded full back wages even for the period of delay for which the employee was solely responsible. However, since application itself is barred by limitation under Section 21 of the Administrative Tribunals Act, it deserves to be dismissed."
[Emphasis supplied]
28. In D.C.S. Negi Vs. Union of India & Ors decided on 07.03.2011 in SLP (C) No.7566/211, Hon'ble Supreme Court analyzed the provision of Section 21 of the Act, 1985 and held as -
"A reading of the plain language of the above reproduced section makes it clear that the Tribunal cannot admit on application unless the same is made within the time specified in Clause (a) and (b) of section 21(1) or section 21(2) or an order is passed in term of Sub-section (3) for entertaining the application after the prescribed period. Since section found to have been made within the prescribed period or sufficient cause is shown for not 14 O.A. No. 2532/2021 doing so within the prescribed period and an order is passed under section 21(3)."
[Emphasis supplied]
29. In Balwant Singh vs Jagdish Singh and Ors (2010) 8 SCC 685, Their Lordships held on the law of limitation as under:
"26. The law of limitation is a substantive law and has definite consequences on the right and obligation of a party to arise. These principles should be adhered to and applied appropriately depending on the facts and circumstances of a given case. Once a valuable right has accrued in favour of one party as a result of the failure of the other party to explain the delay by showing sufficient cause and its own party. Justice must be done to both parties equally. Then alone the ends of justice can be achieved. If a party has been thoroughly negligent in implementing its rights and remedies, it will be equally unfair to deprive the other party of a valuable right that has accrued to it in law as a result of his action vigilantly."
[Emphasis supplied]
30. Applicants are claiming retrospective promotions by convening year-wise DPCs from year 2015 against 10% quota based on seniority from post of Senior Accountants to Assistant Accounts Officer. Learned counsel for respondents submitted that 10% quota was not allowed to be filled by DoP&T. DoP&T in year 2015 already examined and taken conscious decision to delete provision of 10% promotion quota based on seniority from Sr. Accountants to AAOs as none of the other organized Accounts Services has this provision. The respondents have carried out promotions against such quota from the other categories particularly, the Senior Accountants who have passed the Departmental exam and employees already promoted as AAO and further promoted but one of affected employee been impleaded as necessary party in the OA. The present OA also suffers from non-joinder of necessary parties.
31. Shri Vidya Sagar, learned counsel appearing for the applicants much emphasized that respondents communicated on 19.11.2020 (Annexure A-1) and same has given cause of action. It is well settled in law that mere submissions of representations does not justify belated approach as held by Hon'ble Supreme Court in State of Orissa Vs. Pyarimohan Samantaray (1977) 3 SCC 396.
15 O.A. No. 2532/202132. In State of Tamil Nadu Vs. Seshachalam (2017) 10 SCC 137, Their Lordships held -
"16. Filing of representations alone would not save the period of limitation. Delay or latches is a relevant factor for a court of law to determine the question as to whether the claim made by an applicant deserves consideration. Delay and/or latches on the part of a Government servant may deprive him of the benefit which had been given to others. Article 14 of the Constitution of India would not, in a situation of that nature, be attracted as it is well known that law leans in favour of those who are alert and vigilant."
[Emphasis supplied]
33. Hon'ble Supreme Court in Ramesh Chand Sharma Vs. Udham Singh Kamal and Others (1999) 8 SCC 304, where departmental representation against non-promotion was rejected on 02.07.1991. OA was filed on 02.06.1994, i.e., after three years. The Hon'ble Supreme Court held that in view of Section 21(!)(a) of the A.T. Act, the Tribunal could not admit the application and decide it on merits. The delay was sought to be covered by pleading some new facts. The plea for which no foundation was laid before lower court or Tribunal was not entertained by the Hon'ble Supreme Court.
34. For the reasons stated hereinabove, the Issue No.1 is decided accordingly against the applicants. We have no hesitation to hold that present OA to convene DPC for retrospective protection from year 2015 after more than six years of initial cause of action. Each consideration for promotion/recruitment is a separate cause of action for one time for each time and no recurring character in present case. So also applicants neither explained reasons of delay nor filed any MA for condonation of delay in filing the OA. The present OA filed after six years of initial cause of action is barred by limitation prescribed under Section 21 of Act, 1985.
AS TO ISSUE NO.2
35. Another aspect of the matter as to on merits of the case on hand that respondents since 2015 not implemented the provision of 10% quota based on seniority as stipulated in Clause (ii) of Column No.12 of Rules, 2000 for promotion from Senior Accountants to AAO/JAO.
16 O.A. No. 2532/202136. Undisputedly, on the implementation of 6th CPC, the posts of JAO and AAO were merged and re-designated as AAO, Group "B" and necessitated the revision of RRs to newly merged post of AAO.
37. The Department of Expenditure submitted RRs as framed in 2000 notified on 02.01.2001 to DoP&T to retain 10% quota but the same was not agreed to by DoP&T as none of the other organized Accounts Services has this provision of 10% promotion quota based on mere seniority from feeder cadre of Senior Accountants to JAO/AAO. Hence, with a conscious decision based on cogent reasons taken in year 2015 and so also informed applicant no.1 vide communication dated 12.05.2016 and 15.12.2016 and no promotion/seniority based 10% quota has been operated since 2015. The modified RR without 10% quota based on seniority was approved by the UPSC of the post of AAO on 30.05.2018. The detailed Note dated 08.05.2015 for ready reference reads -
"Department of Personnel & Training Establishment (RR) Dy. No.1072541/15/US(Estt.RR-II) Reference notes at pre-page.
2. This is regarding a proposal received from Department of Expenditure for amendment of recruitment rules for the post of Assistant Accounts Officer (AAA) in PB-2 GP Rs.4800.
3. The proposal was earlier examined in DOPT vide note at p.11/N of the Linked File wherein the draft recruitment rules for the post of AAO was approved by this Deptt. inter alia providing that the method of recruitment is to be by promotion failing which by deputation or absorption failing both by direct recruitment.
4. The method of recruitment suggested by this Deptt. is not agreed to by D/o Expenditure stating that the same would clog the promotional avenues of Senior Accountant who could not clear the AAO Civil Examination for obvious reasons. It has also been stated by D/o Expenditure that denying them promotion due to non- clearance of AAO/Civil Examination will lead to great inequality and resentment among the care.
5. The proposal has been examined again and the suggestion of D/o Expenditure is not agreed to as AAO of the CGA has historical parity with the AAO of the other Accounts Services and the RRs for the post of AAO prescribed promotion after clearance of the Departmental Examination. Therefore, a separate quota of 10% for recruitment on seniority basis is not agreed to. Accordingly the schedule of recruitment rules has been modified and it is observed as follows:-17 O.A. No. 2532/2021
(i) In Col. 10 the method of recruitment should be by promotion failing which by deputation failing both by direct recruitment.
(ii) In Col. 11 the promotion is to be made from departmental candidate who have passed the Limited Departmental AAO (Civil) qualifying examination conducted by CGA or any authority specified by him.
(iii) In Col.12 separate Departmental Confirmation Committee needs to be provided.
6. Subject to above observation and minor corrections made therein, DOPT may agree to the RRs for the post of AAO in CGA. The same needs to be finalized in consultation with UPSC and M/o Law and with the approval of competent authority.
Sd/-
US(RR-II)"
[Emphasis supplied]
38. As evident from the above notings, that respondents/DOPT has taken a conscious decision not to keep a separate quota of 10% for recruitment on seniority basis from Sr. Accountants as none of the other Accounts Services has this provision and accordingly modified RRs and UPSC has also approved the same on 30.05.2018. Respondents have taken conscious decision not to retain the provision for 10% quota based on seniority as none of the other organized Accounts Service has this provision and based on this conscious decision did not fill up vacancies since 2015 pursuant to 10% quota. Accordingly, existing vacancies of AAO were filled up by respondents by carrying out promotions from other categories, Senior Accountants, who have passed departmental exam and affected parties not been arrayed as respondents.
39. Hon'ble High Court of Delhi in WP(C) No.19087-91/2006, Pradeep Kumar & Ors. Vs. Govt. of NCT of Delhi, vide judgment dated 04.08.2016 upheld Order dated 01.08.2005 in OA No.162/2005, whereby plea of applicants therein seeking promotion as per existing rules has been dismissed, as respondents had taken conscious decision not to fill up existing vacancies till the amendment in the recruitment rules.
40. Hon'ble Supreme Court in 3-Judge Bench decision in case of Dr. K. Ramulu and Anr. Vs. Dr. S. Surya Prakash Rao & Ors, reported in (1997) 3 SCC 59, Their Lordships were seisin with similar issue whether decision of the Tribunal to prepare panel for 18 O.A. No. 2532/2021 promotion when rules are under revision is correct in law or not. Their Lordships held that if the department takes a conscious policy decision to stop further promotion as per existing rules and same is backed by proper reasons, then the eligible employees cannot claim as a right the preparation of a panel as per old Rules."
41. It is settled legal position that the right of an employee to be considered for promotion accrues only on the date of consideration of eligible candidates by the department not before or if the rules provide for a particular time frame in which the selection process is completed. No right accrues to applicants - employees upon the occurrence of vacancies against 10% quota based on seniority since 2015. Applicants are claiming right to promotion on available vacancies in AAO cadre. It is settled legal preposition that employees have no vested legal right to claim promotion merely on ground as vacancies are available.
42. In view whereof, on merits taking into consideration notings dated 08.05.2015, extracted hereinabove, the DOP&T has already taken decision not to retain a separate quota of 10% for recruitment from Senior Accountants to JAO/AAO with valid reason as none of the other organized Accounts Services has this provision and, hence, no promotion/seniority based on 10% quota operated due to conscious decision not to have 10% quota based on seniority. The respondents carried out promotions to AAO against such quota from employees of other categories, who had passed departmental exam. Merely availability of vacancies or eligibility for promotion does not confer any right upon applicants. The right to be considered for promotion accrues only on the date of consideration of eligible candidates by the department. Since the vacancies have not been filled up for 10% quota based on seniority on account of conscious decision of DOP&T dated 08.05.2015 with reasons as none of the other organized Accounts Services has this provision and not to retain 10% quota based on seniority.
43. In our considered opinion, the decision of respondents is based on proper reasons and no interference is called for. The Issue 19 O.A. No. 2532/2021 No.2 is also accordingly decided in favour of the respondents and against the applicants.
CONCLUSION
44. This Tribunal has already analyzed in detail the issues in light of aforesaid analysis.
45. Accordingly findings on Issue Nos. 1 & 2 are decided against the applicants and in favour of the respondents.
46. Resultantly, the OA being barred by limitation and being devoid of merits is hereby dismissed.
47. There shall be no order as to costs.
48. As a sequel thereof, pending Miscellaneous Application(s), if any, shall also stand disposed off.
(Ajay Pratap Singh) (Chhabilendra Roul)
Member (J) Member (A)
/na/