Central Administrative Tribunal - Delhi
Dharam Pal Singh vs Ajay Kumar Bhalla Secretary M/O Home ... on 10 January, 2025
1
Item No. 27/ C-2 R.A. No. 126/2024
C.P. No. 706/2023
O.A. No. 2416/2016
Central Administrative Tribunal
Principal Bench: New Delhi
R.A. No. 126/2024
In
C.P. No. 706/2023
In
O.A. No. 2416/2016
This the 10th day of January, 2025
Hon'ble Mr. R.N. Singh, Member (J)
Hon'ble Mr. Rajinder Kashyap Member (A)
1. SH. AJAY KUMAR BHALLA SECRETARY, MINISRY OF
HOME AFFAIRS, NORTH BLOCK, NEW DELHI.
2. SH. MRITUNJAY KUMAR NARAYAN, REGISTRAR
GENERAL OF INDIA, MINISTRY OF HOME AFFAIRS,
2/A, MAN SINGH ROAD, NEW DELHI.
3. SH. S. RADHA CHOUHAN, SECRETARY,
DEPARTMENT OF PERSONAL & TRAINING (ESTT.-D),
NORTH BLOCK, NEW DELHI.
...Review Applicants
(By Advocate: Mr. Deepak Bhardwaj)
Versus
1. DHARAM PAL SINGH, DE OPERATOR, GRADE-B,
S/O SH. RAJA RAM TYAGI
R/O SECTOR-1, H.NO.1,
R.K. PURAM, NEW DELHI-110022
2. RAJ BALA, SENIOR SUPERVISOR,
W/O SH. PRAKASH CHANDER MADAN,
R/O 42, ΤΥΡΕ-III, NEW MOTI BAGH, NEW DELHI-
110021
3. RAMESH KUMAR, SENIOR SUPERVISOR, S/O LATE
HUKAM CHAND R/OC-159, AVANTIKA, ROHINI, SEC-1,
DELHI-110085
2
Item No. 27/ C-2 R.A. No. 126/2024
C.P. No. 706/2023
O.A. No. 2416/2016
4. HARSWAROOP, SENIOR SUPERVISOR, S/O SH. SUKH
RAM, R/O D-61, GALI NO.-4, VIKAS MARG, NEW
DELHI-110092
5. VEENA SONI, RETD SENIOR SUPERVISOR, W/O
RAKESH SONI, R/O 13/445, SUNDER VIHAR, PASCHIM
VIHAR, NEW DELHI-110087
6. SUSHILA JOSHI, SENIOR SUPERVISOR, W/O S.C.
JOSHI R/O 851, SECT-5, RK PRAM, NEW DELHI-110022
7. S.S. MANRAL, DE OPERATOR, GRADE-B, S/O B.S.
MANRAL, R/O D-1059, PKT-3, DDA FLAT, BINDAPUR,
NEW DELHI-110059
8. NARAIN DEVI, RETD.DE OPERATOR, GRADE-B, W/O
JAI CHAND MADAN, (THROUH LR) JAI CHAND R/O H.
NO. 1640, RANI BAGH, DELHI
9. NILOO BHATNAGAR, DE OPERATOR, GRADE-B, W/O
LT. K.K. BHATNAGAR, (THROUGH LR) CHHABI R/O H.
NO. 35, LANCER'S ROAD, TIMAR PUR, DELHI
10. BALBIR KAUR CHADHA, DE OPERATOR, GRADE-B,
W/O HARJIT SINGH CHADHA, R/O C-5/62A,
LAWRENCE ROAD, NEW DELHI-110035
11.H.C. NARANG, RETD. DE OPERATOR, GRADE-B, S/O
LT. HARNAM DASS NARANG, R/O 68/E, RAM NAGAR
EXTN., NEAR KRISHNA NAGAR NEW DELHI-110051
12. ANITA MISHRA, RETD. DE OPERATOR, GRADE-B,
W/O K.K. MISHRA, R/O CC-30E, LIG FLAT, HARI NAGAR
NEW DELHI-110064
13.PRAMOD KUMAR, SENIOR SUPERVISOR, S/O
GURUBACHAN SINGH, R/018/330, LODHI COLONY,
NEW DELHI-110003
14. VARINDER KUMAR, DE OPERATOR, GRADE-B, S/O
DIWAN CHAND, R/O 1125, SEC-11-12, NSBC COLONY,
PANIPAT (HARYANA)
3
Item No. 27/ C-2 R.A. No. 126/2024
C.P. No. 706/2023
O.A. No. 2416/2016
15. HANS RAJ SINGH, RETD. SENIOR SUPERVISOR, S/O
LT. BUGER SINGH, R/O WZ-38, 3RD FLOOR, GALI NO. 6,
KRISHNA PARK, NEW DELHI-110018
16.SANTOSH SACHDEVA, DE OPERATOR, GRADE-B,
W/O NAVAL KISHORE SACHDEVA, R/O D-61B,
CHANKYA PLACE, PART-1, NEAR JANAK PURI C-1, NEW
DELHI-110018.
17.NEENA WASON, DE OPERATOR, GRADE-B, W/O
BHUPINDER BHUSHAN, R/O 185/2, ARJUN NAGAR,
NEAR SAFDARJUNG ENCLAVE, NEW DELHI-110029
18.SARITA SIGHAI, DE OPERATOR, GRADE-B, W/O
SATISH SINGHAL, R/O C-2/706, MILAN VIHAR APPT, IP
EXTN, PATPARGANJ, NEW DELHI-110092
19.SHISH PAL SINGH, DE OPERATOR, GRADE-B, S/O
KADAM SINGH, R/O H. NO. 1116, JANTA FLAT, G.T.B.
ENCLAVE, NEW DELHI-110093
20.MANGE RAM, RETD. DE OPERATOR, GRADE-B, S/O
LT. UDAI SINGH, R/O VILL & PO-DHIKOLI, DISTT-
BHAGPAT (U.P.)
21.NIRMAL SONI, DE OPERATOR, GRADE-B, W/O
ADESH KUMAR SONI, R/O F-16A, MOTI NAGAR, NEW
DELHI-110015
22.PROMILA SAXENA, RETD. DE OPERATOR, GRADE-B,
W/O LT. SHAM SUNDER LAL, R/O 26, POORVI
APPARTMENT, POORVI MARG, VASANT VIHAR, NEW
DELHI
23.MADHU KHANNA, RETD.SENIOR SUPERVISOR. W/O
P.P. KHANNA R/O 126, NARANG COLONY, 1ST FLOOR,
JANAK PURI, NEW DELHI-110058
24. MADHU BALA MANOCHA, RETD SENIOR
SUPERVISOR, W/O RAJINDER KUMAR MANOCHA, R/O
B-45, MILANSAR APPARTMENT, SEC-14, ROHINI, NEW
DELHI-110085
25. VIVEK HARI CHATURVEDI, SENIOR SUPERVISOR,
S/O SH. HARISH CHANDRA CHATURVEDI, R/O H.NO.
C-42, BALRAM NAGAR, LONI,. GHAZIABAD, UTTAR
PRADESH
4
Item No. 27/ C-2 R.A. No. 126/2024
C.P. No. 706/2023
O.A. No. 2416/2016
26. SAVITA BHANDARI, DE OPERATOR, GRADE-B, W/O
LATE SH. PRADEEP BHANDARI, R/O Q.NO. 1052, TYP-II,
LAXMI BAI NAGAR, NEW DELHI-110023.
...Respondents
(By Advocate: Mr. M.K. Bhardwaj)
5
Item No. 27/ C-2 R.A. No. 126/2024
C.P. No. 706/2023
O.A. No. 2416/2016
ORDER (ORAL)
Hon'ble Mr. R.N. Singh, Member (J) By way of the present Review Application, the review applicants have prayed for review of the order dated 30.07.2024 of this Tribunal in CP No. 706/2018 in the captioned OA.
2. Learned counsel appearing for the review applicants, in support of the present Review Application, argues that in the captioned Contempt Petition, the order of the Tribunal sought to be reviewed is in contradiction to the law laid down by the Hon'ble Apex Court in the matter of Union of India and Anr. V/s Tarsem Singh reported in AIRONLINE 2008 SC 68 (Annexure RA -3), dated 13.08.2008, particularly paragraphs 4 & 5 thereof, which read as under:
"4. The principles underlying continuing wrongs and recurring/ successive wrongs have been applied to service law disputes. A `continuing wrong' refers to a single wrongful act which causes a continuing injury. Recurring/successive wrongs' are those which occur periodically, each wrong giving rise to a distinct and separate cause of action. This Court in Balakrishna S.P. Waghmare vs. Shree Dhyaneshwar Maharaj Sansthan - [AIR 1959 SC 798], explained the concept of continuing wrong (in the context of section 23 of Limitation Act, 1908 corresponding to section 22 of Limitation Act, 1963):
"It is the very essence of a continuing wrong that it is an act which creates a continuing source of injury and renders the doer of the act responsible and liable for the continuing wrong even thought the damage resulting from the act may continue. If, however, a wrongful act is of such a character that the injury caused by it itself continues, then the act constitutes a continuing wrong. In this connection, it is necessary to draw a it distinction 6 Item No. 27/ C-2 R.A. No. 126/2024 C.P. No. 706/2023 O.A. No. 2416/2016 between the injury caused by the wrongful act and what may be described as the effect of the said injury."
In M. R. Gupta vs. Union of India [1995 (5) SCC 628], the appellant approached the High Court in 1989 with a grievance in regard to his initial pay fixation with effect from 1.8.1978. The claim was rejected as it was raised after 11 years. This Court applied the principles of continuing wrong and recurring wrongs and reversed the decision. This Court held:
"The appellant's grievance that his pay fixation was not in accordance with the rules, was the assertion of a continuing wrong against him which gave rise to a recurring cause of action each time he was paid a salary which was not computed in accordance with the rules. So long as the appellant is in service, a fresh cause of action arises every month when he is paid his monthly salary on the basis of a wrong computation made contrary to rules. It is no doubt true that if the appellant's claim is found correct on merits, he would be entitled to be paid according to the properly fixed pay scale in the future and the question of limitation would arise for recovery of the arrears for the past period. In other words, the appellant's claim, if any, for recovery of arrears calculated on the basis of difference in the pay which has become time barred would not be recoverable, but he would be entitled to proper fixation of his pay in accordance with rules and to cessation of a continuing wrong if on merits his claim is justified. Similarly, any other consequential relief claimed by him, such as, promotion etc., would also be subject to the defence of laches etc. to disentitle him to those reliefs. The pay fixation can be made only on the basis of the situation existing on 1.8.1978 without taking into account any other consequential relief which may be barred by his laches and the bar of limitation. It is to this limited extent of proper pay fixation, the application cannot be treated as time barred.
In Shiv Dass vs. Union of India - 2007 (9) SCC 274, this Court held:
"The High Court does not ordinarily permit a belated resort to the extraordinary remedy because it is likely to cause confusion and public ely Inconvenience and bring in its train new injustices, and if writ jurisdiction is exercised after unreasonable delay, it may have the effect of inflicting notonly hardship and inconvenience but also injustice on third parties. It was pointed out that when writ jurisdiction is invoked, unexplained delay coupled with the creation of third party rights in the meantime is an important factor which also weighs with the High Court in deciding whether or not to exercise such jurisdiction.7
Item No. 27/ C-2 R.A. No. 126/2024 C.P. No. 706/2023 O.A. No. 2416/2016 In the case of pension the cause of action actually continues from month to month. That, however, cannot be a ground to overlook delay in filing the petition........... If petition is filed beyond a reasonable period say three years normally the Court would reject the same or restrict the relief which could be granted to a reasonable period of about three years."
5. To summarise, normally, a belated service related claim will be rejected on the ground of delay and laches (where remedy is sought by filing a writ petition) or limitation (where remedy is sought by an application to the Administrative Tribunal). One of the exceptions to the said rule is cases relating to a continuing wrong. Where a service related claim is based on a continuing wrong, relief can be granted even if there is a long delay in seeking remedy, with reference to the date on which the continuing wrong commenced, if such continuing wrong creates a continuing source of injury. But there is an exception to the exception. If the grievance is in respect of any order or administrative decision which related to or affected several others also, and if the re-opening of the issue would affect the settled rights of third parties, then the claim will not be entertained. For example, if the issue relates to payment or re- fixation of pay or pension, relief may be granted in spite of delay as it does not affect the rights of third parties. But if the claim involved issues relating to seniority or promotion etc., affecting others, delay would render the claim stale and doctrine of laches/limitation will be applied. In so far as the consequential relief of recovery of arrears for a past period, the principles relating to recurring/successive wrongs will apply. As a consequence, High Courts will restrict the consequential relief relating to arrears normally to a period of three years prior to the date of filing of the writ petition."
2. The second argument advanced on behalf of the learned counsel for review applicants is that the order of the Tribunal sought to be reviewed is also contrary to the order/judgment dated 02.05.2019 judgment of a Coordinate Bench of this Tribunal at Chandigarh in OA No. 60/976/2017 titled Sehdev Paswan & Ors. Vs. Union of India & Ors. (Annexure RA-4) 8 Item No. 27/ C-2 R.A. No. 126/2024 C.P. No. 706/2023 O.A. No. 2416/2016 upheld by the Hon'ble High Court of Punjab and Haryana in its order dated 14.08.2024 (Annexure RA-5)
3. We have considered the submissions made by the learned counsel for the review applicants and with his assistance, we have also gone through the relevant pleadings before us. It is not in dispute that the aforesaid OA was adjudicated by this Tribunal vide order/judgment dated 03.08.2023. The same was challenged by the review applicants before the Hon'ble High Court of Delhi in W.P.(C) No. 2925/2024 and Hon'ble High Court vide order/judgment dated 28.02.2024, dismissed the Writ Petition.
4. It is also not in dispute that the order/judgment of the Tribunal read with that of the Hon'ble High Court in W.P.(C) No. 2925/2024 has attained finality and in view of this, the respondents in the OA were to implement the directions of the Tribunal.
5. Alleging willful disobedience of the directions of this Tribunal in the captioned OA read with the order/judgment of the Hon'ble High Court of Delhi in W.P.(C) 2925/2024 (supra), the applicants in the captioned OA had filed C.P. No. 706/2023. In the said C.P. the order dated 30.07.2024, sought to be reviewed has been passed. The same reads as under:
9
Item No. 27/ C-2 R.A. No. 126/2024 C.P. No. 706/2023 O.A. No. 2416/2016 "In the present C.P., willful defiance of the directions of the Tribunal in order dated 03.08.2023 in the captioned O.A. has been alleged.
2. Paras 12 to 14 of the said order dated 03.08.2023 read as under:-
"12. From the aforesaid judgment of the Hon'ble Apex Court in Amresh Kumar Singh and others (Supra), it is evident that the position of law stands settled that for being entitled for the benefits of financial upgradation under ACP Scheme first time or second time, possession of educational qualification prescribed for the higher post is not mandatory.
13. In view of the aforesaid facts and law, the O.A. deserves allowed. The same is allowed with following orders:-
(i) The impugned order dated 06.07.2016 (Annexure A/1) is aside, the applicants are declared to be entitled for grant of the 2 financial upgradation in Grade pay of Rs. 5400/-, in Pay Band-III completion of 24 years of regular service.
(ii) Respondents are directed to comply with the orders by passing order as expeditiously as possible and within six weeks of receipt of a copy of this order and preferable shall also release the difference of pay and allowances in accordance with rules accruing to the applicants in compliance of the aforesaid, as expeditiously as possible and preferably within 6 weeks thereafter.
14. O.A. stands allowed in the aforesaid terms."
3. In response to notice in the present C.P., the respondents had filed a reply affidavit on 06.12.2023. In the said affidavit, the respondents have stated that there are obvious contradictions wi a viz the order in the instant O.A. and the judgments of Hon'bi High Court of Bihar and Hon'ble High Court of Orissa. According the matter was deliberated and as advised, the respondents have been in the process of filing a writ petition before the Hon'ble High Court of judicature at Delhi.
4. Mr. Bhardwaj, learned counsel for the petitioner submits that the respondents have filed a writ petition being W.P.(C) No. 2925/2024 to assail the order dated 03.08.2023 of this Tribunal in the captioned O.A. The Hon'ble High Court dismissed the said writ petition vide order/judgment dated 28.02.2024. Paras 7 and 8 of the said order/judgment dated 28.02.2024 of the Hon'ble High Court read as under:-
"7. From a perusal of the aforesaid, what emerges is that the Apex Court 10 Item No. 27/ C-2 R.A. No. 126/2024 C.P. No. 706/2023 O.A. No. 2416/2016 has in Amresh Kumar Singh & Ors.(supra) categorically held that for the purposes of grant of financial upgradation under the ACP scheme, an employee is not mandatorily required to possess the qualification prescribed for the promotional post. Learned counsel for the petitioner has vehemently contended that since the respondents do not possess the requisite qualifications as per the Recruitment Rules for promotion to the post of Assistant Director (Data Science), the post vis-a-vis the benefit of second ACP was to be extended to them, the petitioners were justified in not extending benefits of the same to them.
8. In our view, once the Apex Court categorically held in Amresh Kumar Singh & Ors. (Supra) that financial upgradation under the ACP scheme can be granted even to an employee, who does not possess the qualifications prescribed for the promotional post, we have no option but to dismiss the present petition."
5. Mr. Bhardwaj, learned counsel for the applicant submits that on bare perusal of the aforesaid order dated 03.08.2023 of this Tribunal and the order/judgment dated 28.02.2024 would clearly indicate that the claim of the applicants in the O.A. were adjudicated not by this Tribunal keeping in view, the law laid down on the subject by the Hon'ble Apex Court in the case of Amresh Kumar Sinha (supra) and the Order of the Tribunal was upheld by the Hon'ble High Court of Delhi, keeping in view, the judgment of the Hon'ble Apex Court in the case of Amresh Kumar Sinha (supra).
6. He further submits once that issue had been adjudicated by this Tribunal and upheld by the Hon'ble High Court of Delhi, the directions of the Tribunal have become binding on the parties. The respondents are having no jurisdiction to modify the directions of this Tribunal in the matter. On the other hand, Mr. Bhardwaj, learned counsel appearing for the respondents submits that the respondents have taken a decision to implement the directions of the Tribunal in the captioned O.A. vide O.M. dated 25.07.2024. He has placed on record a copy of such O.M. which reads as under:-
"OFFICE MEMORANDUM Subject: Order dated 3.8.2023 in OA No. 2416/2016 - reg The undersigned is directed to refer to the order dated 3.8.2023 of the Hon'ble Central Administrative Tribunal, Principal Bench in OA No. 2416/2016, as upheld by the Hon'ble High Court of Delhi in Delhi vide order dated 28.2.2024 in WP(C) No. 2925/2024 and to convey the approval of the competent authority for implementation of the above order in respect of the applicants in the OA, who are otherwise 11 Item No. 27/ C-2 R.A. No. 126/2024 C.P. No. 706/2023 O.A. No. 2416/2016 eligible for grant of 2nd financial upgradation under ACP Scheme w.e.f. 1.1.2006 onward, as "in personam basis" without any precedent value subject to Hon'ble Supreme Court order dated 13th August, 2008 in Civil Appeal No. 5151- 5152 of 2008 with regard to payment of arrears.
Signed by Kulvinder Singh Date:29-07-2024 11:31:45 (Kulvinder Singh) Under Secretary to the Govt. of India"
7. In view of the aforesaid, we find that compliance indicated vide the aforesaid memorandum is patently in contradiction with the directions of this Tribunal upheld by the Hon'ble High Court of Delhi inasmuch as the directions have been given keeping in view the judgment of the Hon'ble Apex Court in Amresh Kumar Sinha (supra) and the implementation of the order of this Tribunal cannot be made subject to the Order of the Hon'ble Apex Court dated 13.08.2008 in Civil Appeal No. 5151/5152 of 2008. However, in the interest of justice, the respondents are accorded further four weeks' time as last opportunity to report full compliance of the directions of this Tribunal at later stage by way of an affidavit. A copy of this order be sent to all the respondents through speed post as well.
8. Re-notify on 11.09.2024."
6. Subsequent to the aforesaid, review applicants approached this Tribunal in RA No. 92/2024 and the same was dismissed as withdrawn vide order dated 25.10.2024 (Annexure RA-1). Learned counsel for the review applicants submits that as order/judgment of this Tribunal in the OA is contrary to the law laid down by the Hon'ble Apex Court in Tarsem Singh (Supra), the order of the Tribunal dated 30.07.2024 in the aforesaid C.P. deserves to be recalled. With regard to limitation, he submits that in view of the liberty accorded by the Tribunal while dismissing 12 Item No. 27/ C-2 R.A. No. 126/2024 C.P. No. 706/2023 O.A. No. 2416/2016 the earlier RA i.e. RA No. 92/2024 vide order dated 25.10.2024, there is no delay in filing of the present R.A.
7. We have considered the submissions made by the learned counsel for the review applicants.
8. It is an admitted fact that the order in the captioned OA has attained finality. All the grounds available to the review applicants to challenge the order of this Tribunal dated 03.08.2023 could have been agitated by the review applicants before the Hon'ble High Court and admittedly they have agitated as such and that before this Tribunal after dismissal of the relevant Writ Petition and that too in the contempt proceedings.
9. With regard to limitation, involved in the present R.A., we are of the considered view that liberty, if any, accorded to the review applicants while dismissing their earlier review application, seeking review of the same order dated 30.07.2024 cannot sustain in law and the submission that the present review application is within limitation is misconceived. Of course, the same could have been a ground to seek condonation of delay, if any.
10. Further, once the order of this Tribunal in the OA has attained finality after dismissal of relevant Writ Petition, another judgment of a Coordinate Bench of this Tribunal at Chandigarh and/or of 13 Item No. 27/ C-2 R.A. No. 126/2024 C.P. No. 706/2023 O.A. No. 2416/2016 any other Bench referred to herein above cannot be a ground to seek review of the order of the Tribunal in the captioned C.P.
11. In view of the above, we do not find any error apparent on the face of the order dated 30.07.2024 in C.P. No. 706/2023. Thus the R.A. is devoid of any merit and also barred by limitation. The respondents in place of compliance of the directions of the Tribunal in order dated 03.08.2023 in the captioned OA have chosen to file earlier RA No. 92/2024, seeking review of the order in the captioned C.P. and now the present R.A. The same is nothing but misuse of the process of law and therefore, the same deserves to be dismissed with cost of Rs.10,000/- payable by the review applicants to the Prime Minister's Relief Fund.
(Rajinder Kashyap) (R.N. Singh) Member (A) Member (J) /ks/