Central Administrative Tribunal - Delhi
Hari Bhajan vs Union Of India & Ors. Through on 25 October, 2011
Central Administrative Tribunal Principal Bench O.A.No.207/2010 New Delhi, this the 25th day of October, 2011 Honble Shri Shailendra Pandey, Member (A) Honble Dr. Dharam Paul Sharma, Member (J) Hari Bhajan Serving as Cataloguer National Centre of Organic Farming Ghaziabad (UP). Res. CC-52 Avantika, Ghaziabad (UP). .. Applicant (By Advocate: Sh. M.K.Bhardwaj) Versus Union of India & Ors. Through The Secretary (INM) Department of Agriculture & Cooperation Krishi Bhawan New Delhi. The Director National Centre of Organic Farming 204-B Wing, CGO-2, Kamla Nehru Nagar Ghaziabad. Respondents (By Advocate: Sh. R.K.Sharma) O R D E R By Shailendra Pandey, Member (A):
The grievance of the applicant in this OA is that respondents have not given him the full benefits that accrue to him from OM dated 24.07.1990 and OM dated 21.02.2002, issued by the Ministry of Finance, Government of India. He has challenged the order dated 4.02.2009, rejecting his representation dated 3.03.2008, with regard to the implementation of the provisions of the aforesaid OMs in the National Centre of Organic Farming, Ghaziabad.
2. The brief facts of the case are that the applicant had joined on the post of Cataloguer on 26.08.1991 in the pay scale of Rs.1200-2040 (4th CPC) in the National Biofertiliser Development Centre, Ghaziabad (hereinafter referred as NBDC) under the Department of Agriculture & Cooperation, Ministry of Agriculture, Government of India, and the duties of the post of Cataloguer were assigned to him. The NBDC being HQ of National Project on Development and Use of Bio-fertilizers was subsumed as National Centre of Organic Farming, Ghaziabad (hereinafter referred as NCOD) HQ of National Project on Organic Farming with effect from October 2004. It is stated that when the applicant had joined, there were 3 sanctioned posts for the library stream in the NBDC viz. Editor-cum-Librarian, Cataloguer and Library Attendant. The post of Editor-cum-Librarian was never filled up by the respondents and the post of Library Attendant was filled and abolished and the applicant, being the only qualified Library staff, was made to manage all the works of library and documentation wing alone and independently from the date of his joining. In 1990, the Government of India, Ministry of Finance, issued OM dated 24.07.1990 introducing uniform designation and pay structure for Library Staff, and advised all Ministries/Departments to place the existing staff into the revised pay structure. It also indicated recruitment qualifications for direct recruits and promotees for each grade of Library Staff and advised all Ministries/Departments to modify the recruitment rules for various posts in the Library under their control on these lines. The applicant submitted a representation to the respondents for his placement in the revised grade of pay on 06.10.1994, and accordingly his case was referred to the Department of Agriculture & Cooperation (Respondent No.1) by Respondent No.2 vide letter dated 23.11.1994 for his placement in the revised pay scale of Rs.1400-2600. Thereafter, the applicant was placed in the pay scale of Rs.1400-2600 w.e.f. 3.3.1992 vide letter dated 14.01.2002 (Annexure R3). However, his designation was not changed from Cataloguer to Library and Information Assistant. It is stated that the applicant requested for a change of his designation as above on 21.02.2002 but his request was not acceded to. In the year 2002, the Ministry of Finance issued another OM dated 21.02.2002 (Annexure A3), merging the post of Library & Information Assistant with Senior Library & Information Assistant in the pay scale of Rs.5500-9000 as the entry pay scale for departmental Librarians possessed minimum qualifications of B.Lib with graduate degree. The applicant again represented on 24.02.2002 for grant of the pay scale of Rs.5500-9000 as per this OM dated 21.2.2002 and his case was again considered for approval vide letter dated 3.07.2002 by Respondent No.2 but it was informed by DAC vide letter dated 06.05.2003 (Annexure R/5) that the matter has been examined in consultation with the Ministry of Finance, who have clarified that the post of Cataloguer should be operated in the existing pay scale only. This is because of the fact that as per Requirement Rules, the prescribed qualification was Intermediate plus certificate in Library Science only. It is stated that as he did not get any relief in spite of his being entitled to the same, the applicant followed up his representation dated 24.02.2002 continuously and submitted representations to the Director, Joint Secretary (DAC) and the Director of Administration and Public Grievances, but to no avail. In response to his representation dated 4.08.2004 for change of designation he was informed by the DAC vide their letter dated 17.09.2004 that his designation cannot be changed from Cataloguer to Library & Information Assistant. The applicant sought information from the Department of Expenditure and the DAC about implementation of the OM dated 24.07.1990 and 21.02.2002, and again represented to Director, NCOF on 3.03.2008 and 19.08.2008 for implementation of the provisions of OM dated 24.07.1990 and change of designation in his case but the respondents informed him vide impugned order dated 4.02.2009, that the benefits could not be given to him in view of the clarification given by the Ministry of Finance that the qualifications referred to in para 3 of the Ministrys OM dated 21.2.2002 should be read as recruitment qualifications as laid down in the relevant recruitment rules for the post in a Department and not as possessed by an individual officer. Hence, the present OA has been filed for the following reliefs:
To quash and set aside the impugned order dated 4.2.2009 and direct the respondents to re-designate the post of Cataloguer as Library and Information Assistant as per provisions of Government of India, Ministry of Finance OM No.19(1)/86-IC dated 24.07.1990 and OM No.71/3/2001-IC dated 21.02.2002 with effect from 26.08.1991 with all consequential benefits including arrears of pay.
To direct the respondents to implement the recommendations of the Committee constituted for categorization of NCOF Library w.e.f. date of study for categorization of NCOF Library and to grant consequential benefits to the applicant read with the provisions of OM dated 24.07.1990.
To direct the respondents to grant pay scale of Rs.5500-9000 to the applicant w.e.f. 1.1.1996 with all consequential benefits including arrears of pay by quashing all adverse orders and changing the designation.
3. The main grounds on which the aforesaid reliefs have been sought are as under:
That the respondents have arbitrarily not implemented the OMs dated 24.07.1990 and 21.02.2002 in his case although it has been clearly mentioned in the OM that all the posts in Library in all Ministries under Government of India were required to be re-designated/the existing library staff placed into revised grade of pay.
That the respondents have rejected the claim of the applicant without application of mind and the same is evident from the impugned order itself. No justification has been given by the respondents for rejecting the claim of the applicant, when the benefits of the aforesaid OM were made available to all the Library Staff in other Departments/Ministries. The applicant has, therefore been discriminated against.
That it has not been considered by the respondents that the applicant is holding an isolated post with no promotion avenues, therefore, non-grant of benefits in terms of the aforesaid OM has caused grave injustice to the applicant.
4. The respondents have opposed the OA and have taken a preliminary objection of limitation. On merits also, they have opposed the OA stating that the benefits of the concerned OMs, had been extended to the applicant as and when applicable, except for the change of designation. Further, all the decisions in the case of the applicant have been taken as per the advice of the Ministry of Finance, the competent authority and the applicant has also been given the benefit of the pay scale as applicable to the post of Cataloguer and also the benefit of Pay Commissions recommendations. Accordingly, they have prayed that the OA be dismissed both on limitation as well as on merits.
5. We have heard the learned counsel for both the parties and have been through the pleadings on record.
6. At the very outset, it would be necessary to dealt with the objection of the respondents on the point of limitation.
Section 21 of the Administrative Tribunals Act, 1985, which deals with limitation as under:
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
(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. Thus in terms of the provisions of the Administrative Tribunals Act, 1985 an application has to be filed within the period prescribed above, and there is a clear bar to admitting a belated application unless the applicant is able to show sufficient grounds for not making the application within the prescribed period.
It would also be relevant in this connection to refer to the judgments of Honble Supreme Court on the point of limitation:
In the case of S.S.Rathore v. State of M.P., AIR 1990 SC 10 wherein it was held as under:
20. We are of the view that the cause of action shall be taken to arise not from the date of the original adverse order but on the date when the order of the higher authority where a statutory remedy is provided entertaining the appeal or representation is made and where no such order is made, though the remedy has been availed of, a six months' ,period from the date of preferring of the appeal or making of the representation shall be taken to be the date when cause of action shall be taken to have first arisen. We, however, make it clear that this principle may not be applicable when the remedy availed of has not been provided by law. Repeated unsuccessful representations not provided by law are not governed by this principle.
21. It is appropriate to notice the provision regarding limitation under S. 21 of the Administrative Tribunals Act. Sub-section (1) has prescribed a period of one year for making of the application and power of condonation of delay of a total period of six months has been vested under sub-section (3). The Civil Court's jurisdiction has been taken away by the Act and, therefore, as far as Government servants are concerned, Article 58 may not be invocable in view of the special limitation. Yet, suits outside the purview of the Administrative Tribunals Act shall continue to be governed by Article 58.
22. It is proper that the position in such cases should be uniform. Therefore, in every such case until the appeal or representation provided by a law is disposed of, accrual of cause of action for cause of action shall first arise only when the higher authority makes its order on appeal or representation and where such order is not made on the expiry of six months from the date when the appeal was filed or representation was made. Submission of just a memorial or representation to the Head of the establishment shall not be taken into consideration in the matter of fixing limitation. In a recent Judgement of the Honble Apex Court in the matter of D.C.S. Negi v. Union of India & Ors. decided on 07.03.2011 in SLP (C) No.7956/2011(CC No.3709/2011) the Apex Court, while dismissing the Appeal, has emphasized that the Administrative Tribunal established under the Act is duty bound to first consider whether the application is within limitation, and that 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). The relevant observations of the Honble Apex Court are extracted below:
A reading of the plain language of Section 21 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). Thus, in terms of the provisions of the Administrative Tribunals Act, 1985, an application has to be filed within the period prescribed above and there is a clear bar to admitting a belated application unless the applicant is able to show sufficient grounds for not making the application within the prescribed period.
7. The present OA has not been filed within the period prescribed nor has such `sufficient ground been shown by the applicant for not doing so. It is clearly barred by limitation as the claim of the applicant was rejected in the year 2004, and further representations made by the applicant would not extend the period of limitation.
8. The learned counsel for the applicant submitted during arguments that the main grievance of the applicant is regarding non-grant of pay scale, therefore, the objection of delay taken by the respondents is not justified as the Honble Supreme Court has held in M.R.Gupta v. Union of India and Others, [1995 SCC (L&S) 1273] that the law of limitation is not applicable in the pay related matters as the same gives rise to a recurring cause of action every month on the occasion of payment of salary.
8.1. We do not accept the submission that the issue involved relates to pay fixation only. What the applicant is actually seeking in this OA is a re-designation of the post of Cataloguer to that of Library & Information Assistant, which alone would entitle him to the other benefits (such as pay, etc.) attendant on such re-designation. This has been denied to him and informed to him in 2004 itself and, therefore, limitation would have to be reckoned from this date.
9. Further, the learned counsel for the applicant submitted that the impugned letter dated 09/11.06.2004 was not a rejection as in the said letter it has been clearly stated that the case of the applicant is being taken up with the Ministry of Finance and the Ministry of Finance has rejected the claim of the applicant only in January 2009 and thereafter, the impugned order dated 04.02.2009 has been issued. Therefore, according to him, it cannot be said that the claim of the applicant was closed in 2004.
9.1. This plea of the applicant can be better appreciated with reference to the letter dated 9/11.06.2004, the relevant part of which reads as follows:
The matter regarding up-gradation of the scale of pay of the post held by Shri Hari Bhajan was examined in consultation with the Ministry of Finance who had stated that the post of Cataloguer should be operated in the existing scale of pay only. This was duly communicated vide this Departments letter of even number dated 6.5.2003. This Department had vide letters of even number dated 18.3.2004 and 1.6.2004 requested for fresh proposals alongwith necessary justifications for again taking up the case of up-gradation of the scale of pay of the post of Cataloguer. Pending receipt of a fresh proposal on the subject, the matter has been treated as closed in so far as this Department is concerned. Regarding the issue of re-designation of the post, it may be stated that the same can be achieved by amendment of the recruitment rules of the post. However, it has now been decided that the case for up-gradation of the pay scale of the post should be taken up first followed by the case of revision of the recruitment rules for the post of Cataloguer. A plain reading of the aforesaid reveals that the matter had been treated as closed in so far as the Department of Agriculture and Cooperation was concerned. Of course, it is always open to the authorities to make administrative changes or otherwise. But that would not revive the cases which have already been closed. The redressal in respect of such closed cases should be sought in time. If this is not done, rights in respect thereto cannot be revived with reference to subsequent events.
9.2. We, therefore, do not accept the above argument of the learned counsel for the applicant. The reply given in 2009 in response to the latest representation made in 2008 by the applicant would not give him a fresh cause of action.
10. Therefore, in view of the legal position in the matter, the facts and circumstances of the case and the discussion above, the OA is clearly barred by limitation and is liable to be dismissed on this ground alone.
11. Further, it is also noticed that the case of the applicant with regard to the admissibility of various benefits/re-designation in terms of Ministry of Finance OMs dated 1990 and 2002, referred to above, has been decided in consultation with the Ministry of Finance, who had issued the OMs, and no warrant for interference in the matter is, therefore, made out.
12. In view of the above discussion, the OA is dismissed. No order as to costs.
(Dharam Paul Sharma) (Shailendra Pandey) Member (J) Member (A) /nsnrsp/