Central Administrative Tribunal - Delhi
Shri Prem Parkash vs Union Of India And Others Through on 16 April, 2015
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH, NEW DELHI O.A.NO.1109 OF 2014 This the 16th day of April, 2015 CORAM: HONBLE SHRI P.K.BASU, ADMINISTRATIVE MEMBER & HONBLE SHRI RAJ VIR SHARMA, JUDICIAL MEMBER . Shri Prem Parkash, Under Secretary, Ministry of Defence, New Delhi s/o late Sh.Bani Singh, R/o 31, Type IV, Sector 3, Sadiq Nagar, New Delhi 110049 . Applicant (By Advocate: Shri O.P.Kalshian) Vs. Union of India and others through 1. The Secretary, Department of Personnel & Training, Ministry of Personnel, Public Grievances & Pension, North Block, New Delhi 2. The Secretary, Ministry of Defence, South Block, New Delhi 3. The Secretary, Planning Commission, Yojana Bhawan, New Delhi 4. The Secretary, Union Public Service Commission, Dholpur House, New Delhi. 5. Sh.Thomas E.V., Under Secretary, Ministry of Urban Development, Room No.201-C, Nirman Bhawan, New Delhi 110011 .. Respondents. (By Advocates: S/Shri R.N.Singh, Amit Sinha, R.V.Singh & Rajender Nischal) . ORDER Raj Vir Sharma, Member (J):
In this Original Application, the applicant has prayed for setting aside the O.M.No.5/12/2013-CS-I(U),dated 13.11.2013 (Annexure A/1), issued by respondent no.1, whereby the applicants representation for inclusion of his name in USSL-2006 has been rejected. The applicant has also prayed for issuing a direction to respondent no.1 to place him at Sl.No.29 in USSL-2006, with all consequential benefits, by holding a Review D.P.C.
2. Brief facts of the applicants case run thus: The applicant joined as an Assistant (CSS) in August 1986. He qualified in the LDCE 1991 for promotion as Section Officer and was accordingly included in SOSL-1991. Thereafter, he was promoted as Under Secretary on ad hoc basis in August 2006. While working as Under Secretary in the Planning Commission, the applicant received an O.M. dated 16.7.2007 from the administration seeking his explanation on the complaint made by one Ms.Renu Gangarh, Steno Grade D, who was posted to work with him. He submitted explanation on 17.7.2007. He also appeared before the Complaint Committee on 27.7.2007. In September 2007 he was transferred from the Planning Commission to the Ministry of Defence. The Ministry of Defence, vide O.M. dated 20.11.2007, communicated to him the report of the Complaint Committee, along with the DoP&Ts letter dated 4.10.2007 and 12.11.2007. By the said O.M. dated 20.11.2007 the applicant was called upon to make his representation against the report of the Complaint Committee which found him guilty of sexual harassment. The applicant made a detailed representation on 1.2.2008 denying the allegations levelled against him. In December 2009, the DPC met and considered the eligible Section Officers, including the applicant, for preparation of Select Lists for the years 2004 to 2008 of officers for appointment to the grade of Under Secretary. Even though he was eligible to be included in the Select List of 2006, yet he was not included in USSL-2006, which was circulated vide DoP&Ts O.M. dated 7.1.2010. The Ministry of Defence, vide ID dated 15.4.2010 (Annexure A/8), communicated the DoP&Ts order dated 9.2.2010 and the UPSCs advice dated 7.10.2009. By the DoP&Ts order dated 9.2.2010, issued by order and in the name of the President, minor penalty of Censure was imposed on the applicant. He was included in the Under Secretaries Select List of 2009, vide DoP&Ts O.M. dated 26.11.2012 (Annexure A/5). Thereafter, he made a representation dated 9.9.2013 (Annexure A/9) requesting respondent no.1 to reconsider his case and convene a Review DPC for placing him at Sl.No.29 in USSL-2006. Respondent no.1 considered and rejected his representation, vide O.M. dated 13.11.2013 (Annexure A/1), which reads thus:
No.5/12/2013-CS.I(U) Government of India Ministry of Personnel & Public Grievances OFFICE MEMORANDUM Subject: Non-inclusion of name in Under Secretary Select List for the year 2008-representation received from Shri Prem Prakash, US regarding.
*** The undersigned is directed to refer to representation dated 09.09.2013 received from Shri Prem Prakash, Under Secretary, Ministry of Defence on the subject mentioned above.
2. Shri Prem Prakash has raised the issue of his non-inclusion in USSL-2006 at this stage on the following grounds:
(i) He was eligible for USSL-2008 in which his junior was included. The period of Sl-2006 is from 1.7.2006 to 30.6.2007. He was clear from vigilance angle during this select list period as disciplinary proceedings were initiated only in July 2007. Had SL-2006 was drawn in time, he could have been promoted as he was clear from vigilance angle during the relevant period.
(ii) A minor penalty of Censure was imposed on him. However, his inclusion in USSL-2009 instead of USSL-2006 meant imposition of penalty of withholding of promotion for a period of three years which is a separate penalty.
(iii) Penalty of Censure has been imposed on him on false allegations without following principles of natural justice.
3. Shri Prem Prakash is a SO of 1991 Select List. His CSL No. in the grade of SO is 5399. Shri Prem Prakash was considered by the DPC convened by the UPSC for inclusion in the said SL. However, at the time of convening of DPC for USSLs 2004 to 2008 in December 2009, disciplinary proceedings were pending against Shri Prem Prakash. In view of this, the recommendations of the DPC were placed in sealed covers. Disciplinary proceedings resulted in imposition of a minor penalty of Censure vide AVD-I order No.109/15/2007-AVD.I dated 09.02.2010. As the disciplinary proceedings resulted in imposition of penalty, the sealed covers were not opened. He was considered by the DPC held in the normal course after imposition of the penalty, i.e., for USSL-2009 and he was included in that USSL.
4. In terms of DOPTs instructions dated 14.9.1992, at the time of consideration for promotion details of Government servants in the consideration zone for promotion falling under the following category should be specifically brought to the notice of the Departmental Promotion Committee.
i) Government servants under suspension.
ii) Government servants in respect of whom a charge sheet has been issued and the disciplinary proceedings are pending, and
iii) Government servants in respect of whom prosecution for criminal charge is pending.
4.1 The Departmental Promotion Committee shall assess the suitability of Government servants coming within the purview of the circumstances mentioned above along with other eligible candidates without taking into consideration the disciplinary cases/criminal prosecution pending. The assessment of the DPC including unfit for promotion and the grading awarded by it will be kept in a sealed cover.
4.2 On the conclusion of the disciplinary case/criminal prosecution which results in dropping of allegations against the Government servant, the sealed cover or covers shall be opened.
4.3 If any penalty is imposed on the Government servant as a result of of the disciplinary proceedings or if he is found guilty in the criminal prosecution against him, the findings of the sealed cover/covers shall not be acted upon. His case for promotion may be considered by the next DPC in the normal course and having regard to the penalty imposed on him.
5. The procedure as stated above was followed in the case of Shri Prem Prakash also. In terms of the instructions, the Govt. servant in the eligibility list should be clear from vigilance angle at the time of holding of DPC and accordingly, the action of the DPC in placing its recommendations in sealed cover is in order.
6. USSL-2006 was issued on 7.1.2010 and it is since more than three years. Shri Prem Prakash has raised the issue of his non-inclusion after a period of more than 3 years and 8 moths. The representation of Shri Prem Prakash is belated and also not covered by the extant instructions regarding promotion of officers.
7. As regards the contention that though censure was imposed on him, in fact by denying promotion the penalty of withholding of promotion was also imposed on him, it is stated that in terms of the above quoted OM dated 14.9.1992, if any penalty is imposed on the Government servant as a result of the disciplinary proceedings, the findings of the DPC placed in sealed cover/covers shall not be acted upon. His case for promotion may be considered by the next DPC in the normal course and having regard to the penalty imposed on him. In view of these instructions, as penalty of Censure was imposed on Shri Prem Prakash, sealed covers were not opened.
8. As regards the contention of Shri Prem Prakash that penalty of Censure was imposed on him on false allegations without following the principles of natural justice, the issue has been consulted with AVD.I Divsion of this Department who is the nodal Division for disciplinary matters of US and above level officers of CSS. The following has been observed by AVD.I:
2. A perusal of the points raised by Shri Prem Prakash at para 7 of his representation, brought out here in brief is that he has basically raised the point that Complaints Mechanism Committee has not followed the procedure laid down under Rule 14 of the CCS (CCA) Rules,1985 and he ws not issued any charge sheet, no opportunity was provided by the Complaints Committee to him for his reply. He was not provided with a list of documents and a list of witnesses by whom the charges were proposed to be sustained, not provided any opportunity to take the assistance of Defence Assistant, inquiring authority did not obtain his oral or written statement and also he was not provided any opportunity to cross-examine the complaint or witnesses. Thus the penalty imposed on him is against all the norms and procedure without following principles of natural justice.
3. In this regard it may be mentioned that the allegation of Shri Prem Prakash at this stage that penalty of censure has been imposed on him on false allegations without following principles of natural justice is unfounded, without any basis, hence cannot be accepted. If may be noted that it was a well considered decision of the disciplinary authority to impose minor penalty on him in the light of facts of the case and after taking into account the findings of Complaints Committees report and its analysis thereof, his submissions before the Committee and advice of UPSC and all other relevant facts and circumstances of the case and keeping in view, the extent, the allegations of sexual harassment complained has been substantiated against him.
4. It may further be noted that the report of the Complaint Committee revealed that the conclusion arrived at were based on written statement from the complainant as well as depositions made by witnesses. As regards his contention that the prescribed procedure under Rule 14 of CCS (CCA) Rules was not followed, it may be noted that in terms of the proviso below Rule 14(2) of the CCS (CCA) Rules, 1965, the Complaints Committee shall be deemed to be inquiring authority appointed by the disciplinary authority for the purpose of the said rules and report of the Complaints Committee is treated as inquiry report in terms of O.M.No.1103/11/2001-Estt.(A) dated 12.12.2002 as amended by O.M. of the same number dated 4.8.2005. In terms of Rule 15(2) of the said rules, a copy of the report of the findings of the complaint committee was furnished to Shri Prem Prakash, vide Memorandum No.109/15/2007-AVD.I dated 12.11.2007. Shri Prem Prakash had requested for certain documents which were also furnished to him vide OM No.109/15/2007-AVD.I dated 12.11.2007. Shri Prem Prakash had requested for certain documents which were also furnished to him vide OM No.109/15/2007-AVD.I dated 20.12.2007 and it was also conveyed that the Complaint Mechanism Committee has come to the conclusion on the basis of written statement from the complainant as well as depositions made by witnesses. Further, Shri Prem Parkash was also personally heard by the Committee.
5. From the facts mentioned, it is evident that he was given enough opportunity to present his defence. He was given complete report of inquiring authority as well as all other documents requested by him vide letter dated 20.12.2007, his representation was examined and considered, and as per extant procedure, advice of UPSC was obtained before taking a view by the disciplinary authority to impose a penalty
9. In view of the foregoing, the points raised by Shri Prem Prakash, US in his representation are without any merit and his request for consideration of his case for inclusion in USSL-2006 cannot be acceded to.
Sd/ (V.Srinivasaragavan) Under Secretary to the Government of India Hence, the applicant filed the present O.A. with the prayers referred to earlier. It is contended by the applicant that the meeting of the DPC and preparation of the panel for the vacancy year 2006 should have been completed before March 2006 as per the Calendar of the DPC (Annexure A/3). Respondent no.1 prepared the panel for the vacancy years 2004 to 2008 together in the end of the year 2009, and the USSLs 2004 to 2008 were circulated, vide O.M. dated 7.1.2010. There was no reason to delay the convening of the DPC meeting in the end of the year 2009 for preparation of USSLs 2004 to 2008. As no charge sheet was issued against him at the time of holding of the meeting of the DPC, the sealed cover procedure should not have been adopted. The Complaint Committee did not hold the inquiry in accordance with the procedure laid down in the CCS (CCA) Rules, 1965 and therefore, the report submitted by the said Committing finding him guilty is unsustainable.
3. Opposing the O.A., the respondents have filed a counter reply. They have stated that the USSL-2006 was issued/circulated vide DoP&T O.M. dated 7.1.2010, and that the applicant for the first time raised the question of non-inclusion of his name therein by making a representation dated 9.9.2013, i.e, after a period of more than 03 years and 08 months of issuance/circulation of the USSL-2006, vide O.M. dated 7.1.2010 (ibid). The said representation of the applicant dated 9.9.2013 was belated and also not covered by the extant instructions regarding promotion of officers. Therefore, they have submitted that the O.A. is barred by limitation. They have stated that the Select Lists in the Under Secretary (US) Grade for several years were in arrears on account of long drawn litigation relating to seniority between direct recruit and promotee Section Officers. On conclusion of the litigation, USSL for the years 1987 onwards could be brought out only in the year 2000 and thereafter. In the meanwhile, cadre restructuring of CSS was undertaken for the first time in the year 2003, which resulted in increase of the sanctioned strength of Under Secretaries from 450 to 1400. In view of huge increase in the sanctioned strength of Under Secretaries, more than 1500 Section Officers were in the zone of consideration for USSL-2003. These officers were posted in more than 70 Ministries/Departments of the Central Government and therefore, collection of ACRs and other relevant data took a long time, and in view of this, USSL-2003 could be brought out only on 25.8.2009. Subsequently, in January 2010, the Department of Personnel & Training brought out USSL for the years 2004 to 2008. In the meanwhile, an OA was filed for quashing and redrawing of USSL 2003 (OA No.3278 of 2010 Smt. Garima Singh v. UOI) and a Contempt Petition was also filed against issue of USSLs 2004 to 2008. Due to these litigations, action for bringing out USSLs for the years 2009 onwards could not be undertaken for about two years. Subsequently, action could be initiated only in 2012 to prepare Select List of Under Secretaries from the year 2009 onwards to bring it up to date. At the time of convening of DPC for USSLs 2004 to 2008 in December 2009, disciplinary proceedings were pending against the applicant. In terms of the DoP&Ts OM dated 14.9.1992, the recommendation of the DPC in respect of the applicant was kept in the sealed cover. The disciplinary proceeding culminated in imposition of minor penalty of Censure on the applicant, vide O.M. dated 9.2.2010. Therefore, the sealed cover containing the recommendation in respect of the applicant was not opened. In the year 2012, the applicant was considered by the DPC. On the basis of the recommendation of the DPC, the applicant was included in the USSL-2009.
4. The applicant has filed a rejoinder reply. Referring to the decision of the Honble Supreme Court in Union of India v. K.V.Jankiraman, AIR 1991 SC 2010, the applicant has stated that as no charge sheet was ever issued to him, disciplinary proceedings cannot be said to be pending at the time of consideration of his case for inclusion in the USSL-2006 and, therefore, the sealed cover procedure ought not to have been adopted by the DPC in his case. The applicant has also stated that the representation dated 9.9.2013, which was rejected by the impugned O.M. dated 13.11.2013, being a non-statutory representation, the provision of limitation would not be attracted. In this connection, he has referred to the decision of the Tribunal in Rajiv Tandon v. Government of India, OA No.412 of 2005, decided on 7.3.2012. It is contended by the applicant that as he was clear from vigilance angle on 1.7.2006, i.e, the date of promotion of his junior, he has a right to be considered for promotion with effect from the date of promotion of his junior through a review DPC in terms of O.M. dated 23.1.2014. In support of his contention, the applicant has relied on the decision of the Honble High Court of Delhi in Baljit Singh Bahmania vs. Union of India and others, W.P. (C ) No. 8955/2011, decided on 3.9.2012.
5. We have perused the pleadings and have heard S/Shri O.P.Kalshian & Basaba Sengupta, learned counsel appearing for the applicant, and S/Shri R.N.Singh & R.V.Singh, learned counsel appearing for the respondents.
6. As the respondents have raised the question of delay and laches on the part of the applicant in putting forth the claim for inclusion of his name in USSL-2006, and the rejection of the applicants said claim by respondent no.1, vide O.M. dated 13.11.2013 ibid, is the subject-matter of the present O.A., we have firstly to consider and decide the said question.
7. It was submitted by Shri O.P.Kalshian, learned counsel appearing for the applicant, that the representation made by the applicant on 9.9.2013 for inclusion of his name in USSL-2006 being a non-statutory one, the provision of limitation would not be attracted, and that the persons junior to him in the grade of Section Officer having been included in the USSL-2006, he has a right to be included therein, and his such right cannot sought to be defeated by the respondents on the ground of delay and laches. Therefore, the present O.A. deserves consideration on merits. In support of his contentions, the learned counsel relied on the decision of the Tribunal in Rajiv Tandon v. Government of India (supra), and the decision of the Honble High Court of Delhi in Baljit Singh Bahmania vs. Union of India and others (supra).
7.1 In Rajiv Tandon v. Government of India (supra), the coordinate Bench of the Tribunal held that the Tribunal is a creation of the statute, which has come into existence by virtue of provisions contained in Article 323-A of the Constitution of India. It is not a Civil Court or a Court, as the case may be, and, therefore, provisions contained in Article 137 of the Limitation Act, 1963, would not be applicable. The period of limitation and terminus a quo, therefore, as referred to under Section 21 of the Administrative Tribunals Act, 1985, relate only to statutory appeals or representations, and not ordinary appeals or representations, not provided under the rules. For such ordinary appeals or representations, Article 137 of the Act of 1963 would not apply. Where there is no period of limitation provided under the statute, the lis cannot be dismissed on bar of limitation.
7.2 In Baljit Singh Bahmanias case (supra), the petitioner was initially appointed as a Junior Engineer (Civil) in the CPWD on 01.11.1979. He was promoted on ad hoc basis to the post of Assistant Engineer (Civil) on 04.06.1993.The respondent no.3 was appointed as a Junior Engineer (Civil) on 30.10.1983. In the provisional seniority list of Assistant Engineers (Civil) circulated by an O.M. dated 04.06.2002 the petitioner was shown at sl.no.2600 and it had been indicated that he had been promoted to the post of Assistant Engineer (Civil) with effect from 29.11.1994. It was the case of the petitioner that his date of promotion as Assistant Engineer (Civil) should have been indicated as 04.06.1993 and not as 29.11.1994. According to the applicant, because of this mistake, respondent no.3, though promoted to the post of Assistant Engineer (Civil) on 17.9.1993, was shown at sl.no.2078 in the said provisional seniority list. Thereafter, promotions to the post of Executive Engineer (Civil) were ordered on 12.5.2006. Since the petitioner was not amongst the list of persons who were promoted to the post of Executive Engineer (Civil) and, according to him, officers junior to him had been promoted to that post, the petitioner submitted representation on 22.5.2006. All his approaches to the departmental authorities did not yield any result. The respondents circulated the final seniority list of Assistant Engineers (Civil) as on 1.1.2011, vide O.M. dated 1.8.2011, being aggrieved whereby the petitioner approached the Tribunal in OA No.4154 of 2011. The Tribunal, at the stage of admission itself, took the view that the said O.A. was not maintainable on account of delay and laches and that the issuance of the final seniority list on 1.8.2011 would not result in an automatic condonation of the delay/laches in respect of the original cause of action, which, according to the Tribunal, had accrued on 6.4.2002. Since the petitioner had not filed any application for condonation of delay, the Tribunal felt that it could not even examine the case from the standpoint of the petitioner not having a sufficient cause for approaching the court after the said alleged delay. The Honble High Court held that seniority based on a provisional list cannot be regarded as a settled position unless and until the final seniority list is published and that the Tribunal ought not to have dismissed the petitioners O.A. at the threshold on the ground of delay and/or laches.
8. Per contra, Shri R.N.Singh, learned counsel appearing for the respondents submitted that the DPC, which met in December 2009, considered the applicant and others for preparation of the USSL-2006. At the time of consideration of the applicants case, along with others, by the said DPC, disciplinary proceedings were pending against the applicant, and therefore, the DPC kept its finding in respect of the applicant in the sealed cover. Therefore, the applicants name was not included in the USSL 2006, which was circulated vide O.M. dated 7.1.2010 (ibid). The said disciplinary proceedings culminated in imposition of minor penalty of Censure on the applicant, vide O.M. dated 9.2.2010 ibid. Therefore, the sealed cover containing the finding of the DPC in respect of the applicant was not opened. Thereafter, the DPC, which met in 2012, considered the case of the applicant, along with other eligible officers, for inclusion in the USSL-2009. On the basis of the recommendation of the said DPC, the applicant was included in USSL-2009, which was circulated by O.M.dated 26.11.2012. Only after his name was included in USSL-2009, which was circulated vide O.M. dated 26.11.2012, the applicant made the representation dated 9.9.2013 seeking inclusion of his name in USSL-2006. In the said representation, the applicant stated that as disciplinary proceeding was initiated against him only in 2007 and the persons, who were junior to him, were included in the USSL-2006, he could have been included in USSL-2006; that had the DPC meeting been held in 2006 for consideration of his case and inclusion of his name in USSL-2006, he could have been included in the USSL-2006; that inclusion of his name in USSL-2009, instead of USSL-2006, amounts to withholding of promotion for a period of 3 years, which is a separate punishment. Shri Singh submitted that the issue of non-inclusion of his name in the USSL-2006 was raised by the applicant for the first time in his representation dated 9.9.2013, i.e., after 3 years and 8 months of circulation of the USSL-2006, vide O.M. dated 7.1.2010. The said representation made by the applicant on 9.9.2013 was rejected by respondent no.1 not only on the ground of delay and laches, but also as being devoid of merit, vide O.M. dated 13.11.2013(Annexure-A/1), which is impugned in the present O.A. The issue as raised by the applicant in his representation dated 9.9.2013 is a dead and stale one, the order of rejection of his said representation, vide O.M. dated 13.11.2013, cannot give a fresh life to the said dead/stale issue thus and thereby entitling the applicant to maintain the present O.A. seeking quashing of the O.M. dated 13.11.2013 and also praying for issuance of a direction to the respondents to include his name in USSL-2006. Therefore, the learned counsel submitted that the O.A. should be rejected on the ground of delay and laches. In support of his contentions, the learned counsel appearing for the respondents invited our attention to the decisions of the Honble Supreme Court in State of Karnataka and othes v. S.M.Kotrayya and others, (1996) 6 SCC 267; Union of India and others v. M.K.Sarkar, (2010) 2 SCC 59; D.C.S.Negi v. Union of India and others, Special Leave Petition ( C ) CC No.3709/2011, decided on 7.3.2011; and State of Uttaranchal and another v. Sri Shiv Charan Singh Bhandari and others, Civil Appeal Nos. 7328-7329 of 2013, decided on 23.8.2013.
8.1 In State of Karnataka and others v. S.M.Kotrayya and others (supra), 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."
8.2 In Union of India and others v. M.K.Sarkar (supra), the respondent joined the railway service on 10.2.1947. He was a subscriber to the Contributory Provident Fund Scheme. The Railways introduced the pension scheme, vide Railway Boards letter dated 16.11.1957. Under the said scheme, those who entered railway service on or after 16.11.1957, were automatically governed by the pension scheme. Those employees who were in service as on 1.4.1957 and those who joined between 1.4.1957 and 16.11.1957 were given an option to switch over to pension scheme, instead of continuing under the Contributory Provident Fund Scheme. Those who did not opt for the pension scheme were given further opportunities to exercise options to switch over to the pension scheme whenever the pension scheme was liberalized or made more beneficial, vide Notifications dated 17.9.1966, 26.101962, 17.1.1964, 3.3.1966, 13.9.1966, 15.7.1972, and 23.7.1974. The validity period of the Eighth Option under the notification dated 23.7.1974, which was from 1.1.1973 to 22.1.1975, was extended from time to time up to 31.12.1978. Under the terms of the option, a retired railway employee who opted for the pension scheme had to refund the Governments contribution to the provident fund. The respondent, though aware of the introduction of the pension scheme and the options given on eight occasions between the years 1957 to 1974, consciously did not opt for the pension scheme and continued with the Contributory Provident Fund Scheme. Ultimately, the respondent while serving as Controller of Stores, took voluntary retirement with effect from 15.10.1976. As on the date of his retirement, the Eighth Option to shift to pension scheme, was still open for exercise. But the respondent did not opt for the pension scheme, but received the contributory provident fund dues on his retirement. More than 22 years after his retirement, and after receiving his dues under the Provident Fund Scheme, the respondent made a representation dated 8.10.1998, requesting that he may be extended the benefits of the pension scheme. He stated that he was willing to refund the amount received under the Provident Fund Scheme (by way of adjustment against the amount of pension that would become payable to him on acceptance of his request for switching over to the pension scheme). The said request was not accepted. The respondent, therefore, approached the Central Administrative Tribunal in OA No.657 of 1999 seeking a direction to the Railway Administration to permit him to exercise an option to switch over to pension scheme. The Tribunal, by order dated 11.2.2004, disposed of the application and directed the appellants to take a decision on the representation of the respondent by a reasoned order, making it clear that it did not examine the claim on merits. The Chairman, Railway Board, having rejected the belated request of the respondent, another Original Application was filed before the Central Administrative Tribunal. The Tribunal allowed the O.A., and the appellants writ petition challenging the Tribunals order having been dismissed by the Honble High Court, the appellants approached the Honble Supreme Court. The Honble Apex Court, allowing the appeal and setting aside the orders of the Tribunal and the Honble High Court, held in paragraph 22 of the judgment as follows:
22. The Tribunal was examining the issue with reference to a case where there was a delay of 22 years. A person, who is aware of the availability of the option, cannot contend that he was not served a written notice of the availability of the option after 22 years. In such a case, even if Railway Administration was represented, it was not reasonable to expect the department to maintain the records of such intimation(s) of individual notice to each employee after 22 years. In fact by the time the matter was considered more than nearly 27 years had elapsed. Further when notice or knowledge of the availability of the option was clearly inferable, the employee cannot after a long time (in this case 22 years) be heard to contend that in the absence of written intimation of the option, he is still entitled to exercise the option. 8.3 In D.C.S.Negi v. Union of India and others (supra), the petitioners case was considered by the DPC, which met on 2.6.2003, for promotion to the Senior Administrative Grade, but he was not found suitable. The recommendations of the DPC were approved by ACC some time in December 2003. Thereafter, some of the officers junior to the petitioner were promoted to Senior Administrative Grade. After almost two years of his supersession, the petitioner made representation dated 26.10.2005, which was followed by another representation dated 7.12.2005 for reconsideration of his case for promotion to the Senior Administrative Grade, but the same did not appear to have been accepted by the competent authority. His case was considered by the DPC in its meeting held on 2.3.2006 for promotion against the vacancies of the year 2006, and on being found suitable, he was promoted, vide order dated 10.5.2006. Soon after his promotion, the petitioner approached the Tribunal in OA No.1316 of 2006. The Tribunal, after going through the records produced by the respondents, recorded a finding that the ACC had not disapproved the recommendations of the DPC and held that the petitioners grievance in the matter of non-promotion was untenable because he was found unfit. The writ petition filed by the petitioner was also dismissed by the High Court. The Honble Supreme Court dismissed the SLP. Before parting with the case, the Honble Supreme Court considered it necessary to note that for quite some time, the Administrative Tribunals established under the Act have been entertaining and deciding the applications filed under section 19 of the Act in complete disregard of the mandate of Section 21, and observed as follows:
A reading of the plain language of the above reproduced section makes it clear that the Tribunal cannot admit an application unless the same is made within the time specified in clauses (a) and (b) of Section 21(1) or Section 21(2) or an order is passed in terms of sub-section (3) for entertaining the application after the prescribed period. Since Section 21(1) is couched in negative form, it is the duty of the Tribunal to first consider whether the application is within limitation. An application can be admitted only if the same is found to have been made within the prescribed period or sufficient cause is shown for not doing so within the prescribed period and an order is passed under Section 21(3).
In the present case, the Tribunal entertained and decided the application without even adverting to the issue of limitation. Learned counsel for the petitioner tried to explain this omission by pointing out that in the reply filed on behalf of the respondents, no such objection was raised but we have not felt impressed. In our view, the Tribunal cannot abdicate its duty to act in accordance with the statute under which it is established and the fact that an objection of limitation is not raised by the respondent/non-applicant is not at all relevant. 8.4 In State of Uttaranchal and another v. Sri Shiv Charan Singh Bhandari and others (supra), the respondents were appointed to Group III posts in Subordinate Agricultural Services (SAS) in the Department of Agriculture in the undivided State of Uttar Pradesh. Some of them were appointed in 1974 and some in the year 1975. A provisional seniority list in the cadre of SAS Group III was prepared where they were shown senior to one Madhav Singh Tadagi. The said Madhav Singh Tadagi, who was working as Agriculture Plant Protection Supervisor, Group III, was given ad hoc promotion to the post of Assistant Development Officer (Plant Protection, Group II) by the Deputy Director of Agriculture on 15.11.1983. In the year 1983 a Selection Committee was constituted for making promotion to Group II posts on the basis of seniority-cum-fitness from amongst the employees of Group III posts and in the said selection process the respondents as well as Madhav Singh Tadagi were promoted on regular basis in Group II posts. After regular promotion was made, a seniority list was finalized in respect of promotional cadre and the respondents were shown senior to Madhav Singh Tadagi. The final seniority list was issued on 12.2.1994. On 9.11.2000, under U.P. Reorganization Act, 2000 the State of Uttaranchal (presently State of Uttarakhand) was created. The respondents as well as Madhav Singh Tadagi were allocated to the State of Uttarakhand. On 14.10.2003, the respondents filed a claim petition No. 154 of 2003 before the Public Services Tribunal of Uttarakhand at Dehradun (for short the tribunal) claiming that they were entitled to promotion from SAS Group III to SAS Group II with effect from 15.11.1983, the date on which the junior was promoted and, accordingly, to get their pay fixed along with other consequential benefits, namely, arrears of salary and interest thereof. The respondents had submitted number of representations during the period from July, 2002 to June, 2003, but the said representations were not dealt with. The claims put forth by the respondents were resisted by the State and its functionaries contending, inter alia, that promotion to Madhav Singh Tadagi was given by an officer who was not competent to promote any incumbent from SAS Group III to SAS Group II post; that the promotion was made without prejudice to the seniority of other employees; and that the grievance put forth was hit by limitation. The tribunal, after hearing the rival submissions urged before it, came to hold that as a junior person was extended the benefits of promotion in the year 1983, the seniors could not be deprived of the said promotional benefits and, hence, they are entitled to get promotion from the said date. Being of this view, the tribunal directed that the respondents shall be given benefits of promotion with effect from November, 1983 and as they had already been promoted in the year 1989, they would be entitled to notional promotional benefits from 15.11.1983. Assailing the order of the tribunal the State of Uttarakhand and its functionaries preferred Writ Petition No. 133 of 2006 before the High Court of Uttarakhand at Nainital. The High Court opined that Madhav Singh Tadagi was promoted on ad hoc basis, continued in the said post and was allowed increments and the promotional pay-scale till his regular promotion, and the claimants, though seniors, were promoted on a later date on regular basis and, therefore, the directions issued by the tribunal could not be found fault with. After disposal of the writ petition, an application for review was filed with did not find favour with the Honble High Court and accordingly it dismissed the same by order dated 2.3.2012. Hence, appeals by special leave were preferred challenging the said orders. Allowing the appeal and setting aside the orders passed by the tribunal and the Honble High Court, the Honble Supreme Court observed and held thus:
13. We have no trace of doubt that the respondents could have challenged the ad hoc promotion conferred on the junior employee at the relevant time. They chose not to do so for six years and the junior employee held the promotional post for six years till regular promotion took place. The submission of the learned counsel for the respondents is that they had given representations at the relevant time but the same fell in deaf ears. It is interesting to note that when the regular selection took place, they accepted the position solely because the seniority was maintained and, thereafter, they knocked at the doors of the tribunal only in 2003. It is clear as noon day that the cause of action had arisen for assailing the order when the junior employee was promoted on ad hoc basis on 15.11.1983. In C. Jacob v. Director of Geology and Mining and another, (2008) 10 SCC 115, a two-Judge Bench was dealing with the concept of representations and the directions issued by the court or tribunal to consider the representations and the challenge to the said rejection thereafter. In that context, the court has expressed 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.
14. In Union of India and others v. M.K. Sarkar, (2010) 2 SCC 59. this Court, after referring to C. Jacob (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 for 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.
15. From the aforesaid authorities it is clear as crystal that even if the court or tribunal directs for consideration of representations relating to a stale claim or dead grievance it does not give rise to a fresh cause of action. The dead cause of action cannot rise like a phoenix. Similarly, a mere submission of representation to the competent authority does not arrest time. 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.
16. In State of Orissa v. Pyarimohan Samantaray, (1977) 3 SCC 396, it has been opined that making of repeated representations is not a satisfactory explanation of delay. The said principle was reiterated in State of Orissa v. Arun Kumar Patnaik, (1976) 3 SCC 579.
17. In Bharat Sanchar Nigam Limited v. Ghanshyam Dass (2) and others, (2011) 4 SCC 374, a three-Judge Bench of this 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.
18. In State of T.N. v. Seshachalam, (2007) 10 SCC 137, this Court, testing the equality clause on the bedrock of delay and laches pertaining to grant of service benefit, has ruled thus:
....filing of representations alone would not save the period of limitation. Delay or laches 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 laches 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.
19. There can be no cavil over the fact that the claim of promotion is based on the concept of equality and equitability, but the said relief has to be claimed within a reasonable time. The said principle has been stated in Ghulam Rasool Lone v. State of Jammu and Kashmir and another, (2009) 15 SCC 321.
20. In New Delhi Municipal Council v. Pan Singh and others, (2007) 9 SCC 278, the Court has opined that though there is no period of limitation provided for filing a writ petition under Article 226 of the Constitution of India, yet ordinarily a writ petition should be filed within a reasonable time. In the said case the respondents had filed the writ petition after seventeen years and the court, as stated earlier, took note of the delay and laches as relevant factors and set aside the order passed by the High Court which had exercised the discretionary jurisdiction.
21. Presently, sitting in a time machine, we may refer to a two-Judge Bench decision in P.S. Sadasivasway v. State of Tamil Nadu, (1975) 1 SCC 152, wherein it has been laid down that a person aggrieved by an order of promoting a junior over his head should approach the Court at least within six months or at the most a year of such promotion. It is not that there is any period of limitation for the Courts to exercise their powers under Article 226 nor is it that there can never be a case where the Courts cannot interfere in a matter after the passage of a certain length of time, but it would be a sound and wise exercise of discretion for the Courts to refuse to exercise their extraordinary powers under Article 226 in the case of persons who do not approach it expeditiously for relief and who stand by and allow things to happen and then approach the Court to put forward stale claims and try to unsettle settled matters.
22. We are absolutely conscious that in the case at hand the seniority has not been disturbed in the promotional cadre and no promotions may be unsettled. There may not be unsettlement of the settled position but, a pregnant one, the respondents chose to sleep like Rip Van Winkle and got up from their slumber at their own leisure, for some reason which is fathomable to them only. But such fathoming of reasons by oneself is not countenanced in law. Any one who sleeps over his right is bound to suffer. As we perceive neither the tribunal nor the High Court has appreciated these aspects in proper perspective and proceeded on the base that a junior was promoted and, therefore, the seniors cannot be denied the promotion. Remaining oblivious to the factum of delay and laches and granting relief is contrary to all settled principles and even would not remotely attract the concept of discretion. We may hasten to add that the same may not be applicable in all circumstances where certain categories of fundamental rights are infringed. But, a stale claim of getting promotional benefits definitely should not have been entertained by the tribunal and accepted by the High Court. True it is, notional promotional benefits have been granted but the same is likely to affect the State exchequer regard being had to the fixation of pay and the pension. These aspects have not been taken into consideration. What is urged before us by the learned counsel for the respondents is that they should have been equally treated with Madhav Singh Tadagi. But equality has to be claimed at the right juncture and not after expiry of two decades. Not for nothing, it has been said that everything may stop but not the time, for all are in a way slaves of time. There may not be any provision providing for limitation but a grievance relating to promotion cannot be given a new lease of life at any point of time.
9. Admittedly, the USSL-2006 was finalized and circulated by the respondent-DoP&T, vide its O.M. dated 7.1.2010. The name of the applicant was not included in the USSL-2006 whereas the names of persons junior to him were included therein. Thus, according to the applicant, he was superseded by his juniors. If at all the applicant was aggrieved by non-inclusion of his name in the USSL-2006, he could have made a representation to the respondent-DoP&T immediately after it was circulated on 7.1.2010 or within a reasonable period thereafter, but he did not do so. It is found that after his name was included in USSL-2009, which was circulated by the DoP&T, vide its O.M. dated 26.11.2012, the applicant made the representation dated 9.9.2013 raising the issue of non-inclusion of his name in USSL-2006, i.e., after 3 years and 8 months of circulation of the USSL-2006, vide O.M. dated 7.1.2010. Therefore, as rightly contended by the respondents, the issue raised by the applicant in his representation dated 9.9.2013 was a dead and/or stale one. However, his representation was considered by the respondent-DoP&T. The respondent-DoP&T, vide O.M. dated 13.11.2013(Annexure A/1), rejected the applicants representation on the findings that the issue raised by the applicant was barred by delay and laches on the part of the applicant; that as disciplinary proceeding was pending against the applicant on the date of meeting of the DPC in December 2009, in terms of the O.M. dated 14.9.1992, the finding of the DPC in respect of him was kept in sealed cover; that as minor penalty of Censure was imposed on the applicant, vide order dated 9.2.2010, the sealed cover was not opened; and that the applicant was considered by the subsequent DPC which met in the year 2012 and his name was included in the USSL-2009 on the basis of the recommendation of the said DPC. Considering the facts and circumstances of the case and the reasoning given by the respondent-DoP&T in the said O.M. dated 13.11.2013, in the light of the decisions of the Honble Supreme Court in State of Karnataka and others v. S.M.Kotrayya and others (supra), Union of India and others v. M.K.Sarkar (supra), D.C.S.Negi v. Union of India and others (supra), and State of Uttaranchal and another v. Sri Shiv Charan Singh Bhandari and others (supra), we have no hesitation in holding that the claim raised by the applicant in the present O.A. is liable to be rejected on account of delay & laches on his part.
9.1 Under Rule 23(iv) of the CCS (CCA)Rules,1965, a Government servant may prefer an appeal against an order which denies or varies to his disadvantage his pay, allowances, pension, or other conditions of service as regulated by rules or by agreement. The Government of India, Ministry of Defence, O.M. No.PC 318 to MFO 2051/OS/Art.3/D (Appts.), dated 7.6.1967 (printed as Government of Indias Decision below Rule 23 (Ibid) at page 137 of Swamys Compilation of CCS CCA Rules, 37th Edition-2014) stated that a doubt had arisen whether an appeal against supersession in the matter of promotion could be considered under the CCS (CCA) Rules, 1965, and that the Ministry of Home Affairs had clarified that an appeal against supersession in the matter of promotion would fall within the purview of Rule 23(iv) of the CCS (CCA) Rules, 1965. In view of this, the representation made by the applicant on 9.9.2013 against non-inclusion of his name and inclusion of the names of juniors in the USSL-2006 is certainly a statutory representation/appeal. Therefore, the decision of the coordinate Bench of the Tribunal in Rajiv Tandons case (supra) is of no help to the applicant.
9.2 As discussed in paragraph 7.2 of this order, the facts and circumstances in Baljit Singh Bahmanias case (supra) are totally different from that of the case of the present applicant. In the instant case, the applicants name was not included in USSL-2006 because of any mistake in the seniority list of Section Officers. His name was not included in the USSL-2006 because the disciplinary proceeding for imposition of minor penalty was pending at the time of meeting of the DPC in December 2009, and in terms of the DoP&Ts O.M. dated 14.9.1992, the finding in respect of him was kept in the sealed cover. That is why the names of his juniors were included in the USSL-2006. The seniority list of Section Officers, which was placed before the DPC in December 2009, was the final seniority list and was in force at all relevant times. The same also did not undergo any change in 2013. In view of this, the decision in Baljit Singh Bahmanias case (supra) is of no avail to the applicant.
10. Moreover, on a perusal of the records, we have found that the Complaint Committee, after considering the materials available on records, including the explanation submitted by the applicant against the complaint lodged by the woman employee, and after hearing the applicant, submitted its report on 10.8.2007 finding the applicant guilty of sexual harassment. The Complaint Committee also recommended strong action against the applicant and his transfer from the Planning Commission with immediate effect. The copy of the Complaint Committees report was served on the applicant, vide DoP&Ts Memo dated 4.10.2007. The applicant submitted his representation against the Complaint Committees report. After considering the Complaint Committees report and the applicants representation, on 20.2.2009 the competent authority took a tentative decision for imposition of one of the minor penalties on the applicant. The UPSC gave its advice on 7.10.2009. Thereafter, the order dated 9.2.2010 was issued by order and in the name of the President imposing on applicant the penalty of Censure. It is, thus, evident that the disciplinary proceeding for imposition of minor penalty was initiated against the applicant on 4.10.2007 when the respondent-DoP&T took cognizance of the Complaint Committees report containing the imputations of misconduct or misbehavior on the part of the applicant and called upon the applicant to submit his representation/reply thereto, and/or on 20.2.2009 when the competent authority, after considering the materials available on record including the representation of the applicant against the Complaint Committees report served on him, vide DoP&Ts O.M. dated 4.10.2007, took a tentative decision to impose one of the minor penalties on the applicant. Therefore, in the case of the applicant, the question of issuance of charge memo/charge sheet under Rule 14 of the CCS (CCA) Rules, 1965, which prescribes the procedure for imposing major penalties, did not arise. In view of this, we do not find any substance in the contention of the applicant that in the absence of any charge memo/charge sheet being issued under Rule 14(2) of the CCS (CCA) Rules, 1965, no disciplinary proceedings could be said to be pending against him in December 2009 when the DPC met to consider his case, along with others, for inclusion in the USSL-2006, and that the sealed cover procedure could not have been adopted in his case. The said minor penalty disciplinary proceeding culminated in imposition of minor penalty of Censure on the applicant, vide order dated 9.2.2010. Therefore, the DPC, which met in December 2009, rightly adopted the sealed cover procedure in the case of the applicant. The respondent-DoP&T is also found to have acted in accordance with rules by not opening the sealed cover containing the finding of the DPC which met in December 2009, because the minor penalty proceedings culminated in imposition of the penalty of Censure on the applicant, vide order dated 9.2.2010(ibid).
10.1 In the above view of the matter, the decisions in Union of India, etc., etc. v. K.V.Jankiraman, etc., AIR 1991 SC 2010; Union of India and others v. Anil Kumar Sarkar, 2013(3) SCALE 542; Sandeep Khurana v. Delhi Transco Ltd. and others, 135(2006) DLT 346; Sh.Harsh Kumar v. Secretary, Ministry of Environment & Forests and others, OA No.549-PB-2013, decided on 11.11.2013, cited by the learned counsel appearing for the applicant during the course of hearing, are not helpful to the case of the applicant.
10.1.1 In Union of India, etc., etc. v. K.V.Jankiraman, etc.(supra), the Honble Supreme has held that the sealed cover procedure is to be resorted to only after the charge memo/charge sheet is issued.
10.1.2 In Union of India and others v. Anil Kumar Sarkar (supra), the Honble Supreme Court, following its decision in Union of India, etc., etc., v. K.V.Jankiraman, etc. (supra), has also held that disciplinary proceedings commence only when a charge sheet is issued.
10.1.3 In Sandeep Khurana v. Delhi Transco Ltd. and others (supra), the petitioner was removed from service on the basis of the recommendations of the State Complaint Committee. The Honble Court held that the procedure prescribed in Rule 14 of the CCS (CCA)Rules, 1965, has to be followed for imposing a major penalty on an employee for a misconduct of sexual harassment. Accordingly, the Honble Court quashed the notice as well as order issued by the disciplinary authority imposing on petitioner the penalty of removal from service.
10.1.4 In Sh. Harsh Kumar v. Secretary, Ministry of Environment & Forests (supra), FIRs were registered by the CBI against the applicant at the time of consideration of his case for promotion by the DPC. Solely on the basis of registration of FIRs by the CBI against the applicant on the date of consideration of his case for promotion, the DPC kept its finding in respect of the applicant in the sealed cover. Following the decisions of the Honble Supreme Court in Union of India, etc., etc. v. K.V.Jankiraman, etc.(supra) and Union of India and others v. Anil Kumar Sarkar (supra), the Tribunal directed the respondent-Department to open the sealed cover and consider the case of the applicant for promotion.
11. During pendency of the present O.A., the applicant filed MA No.642 of 2015 praying for issuance of a direction to the respondents to consider the applicant for placement in USSL-2006 and also for promotion to the grade of Deputy Secretary with effect from the date of placement/promotion of his immediate junior with all consequential benefits of seniority and pay, etc. In support of his prayer, the applicant has filed copies of the DoP&Ts order dated 22.12.2014, DoP&Ts O.M. dated 14.1.2015, and DoP&Ts O.M. dated 6th/9th February 2015. By the order dated 22.12.2014 (ibid), 23 officers of Grade I (Under Secretary) of CSS were promoted to the Selection Grade (Deputy Secretary) on ad hoc basis for a period up to 30.6.2015 or until further orders whichever is earlier. By O.M. dated 14.1.2015 (ibid), the DoP&T took a decision to implement the Tribunals order dated 9.5.2011 passed in OA No.3278 of 2010 (Smt. Garima Singh v. UOI) subject to the outcome of the writ petition pending before the Honble High Court of Delhi. By the O.M. dated 14.1.2015 (ibid), the DoP&T also decided to review the USSLs-2003 to 2008. While undertaking the exercise of review of USSL-2003, the DoP&T appears to have prepared and circulated three lists of different officers who were included in USSLs 2002 and 2003. Thereafter, by O.M. dated 6/9.2.2015 (ibid), the DoP&T requested the Ministries/Department to submit confirmation about the regular USs in position as on 1.7.2003. Considering the scope and ambit of the present O.A. and in view of our findings in the foregoing paragraphs, we are not inclined to entertain M.A.No.642 of 2015 filed on 18.2.2015. Accordingly, MA No.642 of 2015 is rejected.
12. In the light of the above discussions, we find no scope for interference in the matter. The O.A. is dismissed. No costs.
(RAJ VIR SHARMA) (P.K.BASU) JUDICIAL MEMBER ADMINISTRATIVE MEMBER AN