Central Administrative Tribunal - Delhi
Unknown vs Uoi) Is Distinct From Your Case. Shri ... on 28 November, 2014
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH O.A.NO.2886 OF 2012 New Delhi, this the 28th day of November, 2014 CORAM: HONBLE SHRI ASHOK KUMAR, ADMINISTRATIVE MEMBER AND HONBEL SHIR RAJ VIR SHARMA, JUDICIAL MEMBER . K.M.Varma, 189-A, PKT-C, Siddhartha Ext, New Delhi 14 Applicant (By Advocate: Shri Padma Kumar S.) Vrs. 1. Union of India, through Secretary, Ministry of Defence, South Block, D.H.Q. PO, New Delhi 110011 2. Joint Secretary (Trg) & CAO, Ministry of Defence, E Block, DHQ PO, New Delhi 110011. 3. Secretary, DOP&T, North Block, New Delhi .. Respondents (By advocate: Shri Satish Kumar) .. ORDER Raj Vir Sharma, Member(J):
In this Original Application, the applicant has prayed for the following relief:
(i) Quash the impugned order dated 29.5.2012.
(ii) Direct the respondents to grant the applicant in-situ financial upgradation in the pre-revised pay scale of Rs.12,000-375-16500/- on notional basis with effect from 3.7.2000 with actual financial benefits from the date of his repatriation from deputation i.e. 01.07.2002.
(iii) Direct Respondent no.2 to grant 3rd MACP to the applicant w.e.f. 01.07.2010 considering 10 years of service in pre-revised pay scale ofRs.12000-375-16500 w.e.f. 03.07.2000.
(iv) Grant the applicant all consequential benefits out of (ii) and (iii) above.
(v) Any other relief which the Honble Tribunal may deem appropriate.
2. Brief facts of the applicants case are as follows:
2.1 The applicant joined the Armed Forces Headquarters Civil Service (AFHQ Civil Service) as Assistant Civilian Staff Officer (ACSO) [now re-designated as Section Officer (SO)] on 2.7.1984. He was promoted to the post of Civilian Staff Officer (CSO) [now re-designated as Deputy Director) on 1.2.1992 in the pay scale of Rs.10000-15200/-. While working as CSO, he was selected and appointed on deputation basis as Registrar/Secretary, Debts Recovery Tribunal (DRT) and relieved of his duties in AFHQ Service on 30.6.1999. The said post of Registrar/Secretary in DRT is a post analogous to the post of Senior Civilian Staff Officer (SCSO) [now re-designated as Joint Director) in the pay scale of Rs.12000-16500/- which is a promotion post for the applicant in the AFHQ Civil Service.
2.2 Considering the acute stagnation in the cadre, the Ministry of Defence, vide order dated 3.7.2000(Annexure A/3), granted in-situ financial upgradation to the grade of SCSO in the pay scale of Rs.12000-375-16500/- to 163 officers of the grade of CSO who had completed seven and a half years of service in the grade. The said order dated 3.7.2000 required the officers, who were on deputation, to be repatriated to the parent cadre for getting the benefit of the in-situ upgradation to the grade of SCSO.
2.3 After completion of his deputation tenure in the DRT,Delhi, the applicant was repatriated to his parent cadre on 01.07.2002. He was granted the benefit of in-situ promotion to the grade of Joint Director with effect from 1.7.2002.
2.4 All the batch mates of the applicant, who were granted in-situ promotion with effect from 3.7.2000, were granted the 3rd MACP financial upgradation in PB 4 & Grade Pay of Rs.8700/- with effect from 3.7.2010, vide order dated 31.8.2010 (Annexure A/6).
2.5 The applicant made a representation dated 7.3.2011 (Annexure A/7) to the competent authority requesting for granting him the aforesaid in-situ promotion on notional basis with effect from 3.7.2000 and 3rd financial upgradation under the MACPS w.e.f. July 2010 2.5.1 In the representation dated 7.3.2011, the applicant stated that his case is similar to that of Shri P.S.Rathore. The said Shri Rathore, CSO, who was working on deputation basis as SCSO in Coast Guard Headquarters and was not granted the benefit of in-situ promotion with effect from 3.7.2000, had approached the Tribunal in OA No.2673 of 2008. The Tribunal, vide order dated 22.5.2009, directed the respondents to grant the said Shri Rathore in-situ promotion on notional basis from 3.7.2000 and actually from the date he reported back in service in the parent cadre. Similar view was also taken by the Tribunal in the order dated 23.12.2011 passed in OA No.4082 of 2011 filed by Shri K.Vijayan.
2.6 However, Respondent no.2 rejected the claim of the applicant, vide order dated 29.5.2012 (Annexure A/1), which reads thus:
Subject: Representation for Grant of Financial Upgradation by way of In situ promotion and MACPS Clarification thereon.
Sir, Reference your letter dated 07.03.2011 on the above subject.
2. As a matter of condition, deputationists are required to revert to the parent Cadre for availing the condition of in situ promotion. Accordingly, on issue of orders for grant of in situ promotion to the grade of Jt. Director vide this Note No.A/05563/99/CAO/P-I dated 03.07.2000, your willingness was sought vide letter dated 10.07.2000 for premature repatriation to the parent Cadre for taking up the in situ promotion. Despite reminders on 09.11.2000, 17.11.2000 and 01.03.2001, your willingness was not received.
3. On expiry of deputation tenure, you ultimately came back to the Cadre on 01.07.2002 and was granted benefit of in situ promotion from that date only. Therefore, your service in the pay structure of Jt. Director was reckoned w.e.f. 01.07.2002 and you were entitled for grant of financial upgradation to the Grade Pay of Rs.8,700/- under the MACPS w.e.f. 01.07.2012 on completing 10 years service in Jt. Directors pay.The said financial upgradation is not due to you since you have proceeded on voluntary retirement w.e.f. 15.04.2011.
4. The case of applicant in OA No.2673/2008 (P.S.Rathore Vs. UOI) is distinct from your case. Shri P.S.Rathore, the applicant in the said OA belongs to the group of Dy.Directors who were given in situ promotion to the Jt.Director grade retrospectively from 03.07.2000.He was on deputation on 03.07.2000. But, unlike you, he did not have the opportunity to revert to the parent cadre on the crucial date due to the retrospective application of in situ promotion in his case. Appreciating that situation, Honble CAT (PB), New Delhi allowed to grant him the benefit of in situ promotion notionally w.e.f. 03.07.2000 with actual benefits from the date of repatriation from deputation.
5. Hence, your case is not similar to that of Shri P.S.Rathore and, thus, cannot be treated on the same lines. Further, in situ promotion as well as financial upgradation under the MACPS, both are granted to a Govt. servant on personal basis on fulfillment of laid down criteria. Inter se seniority is not a criterion for grant of such benefits.
6. This is for your information, please. Hence, the present O.A. has been filed by the applicant.
3. Resisting the claims of the applicant, the respondents have filed a counter in which they have raised a preliminary objection of limitation. It is stated by the respondents that the purported cause of action arose on 1.7.2002 when, on completion of the deputation tenure, the applicant reported to the parent cadre and was given the benefit of in situ promotion to the grade of Joint Director, vide order dated 2.7.2002. The applicant did not prefer to raise the issue at that time. The office order dated 29.5.2012 issued by the respondents would not give new lease of life to the cause of action. In support of their contention that the O.A. is barred by limitation, the respondents have relied on the decisions of the Honble Supreme Court in (i) S.S.Rathore v. State of MP, AIR 1990 SC 10; (ii) State of Punjab v. Gurdev Singh, (1991) 4 SCC 1; (iii) Union of India v. Ratan Chandra Samanta, JT 1993(3) SC 418; (iv) Harish Uppal v. Union of India, JT 1994(3) SC 126; (v)State of Haryana and others v. Miss Ajaya Walla, JT 1997(6) SC 592; and (vi) D.C.S.Negi v. Union of India and others SLP(CC 3709/2011), decided on 7.3.2011.
3.1 It is stated by the respondents that at the time of issuance of the order dated 3.7.2000, 21 of the 166 CSOs, including the applicant, were outside the cadre on deputation. A formal letter dated 10.7.2000 was issued to all the borrowing Departments concerned to ask the concerned officers to give their willingness, or otherwise, for premature repatriation to the parent cadre to accept the benefit of in-situ promotion. The officers who came back to the cadre from deputation were granted the benefit of in situ promotion to the grade of Joint Director on personal basis. As no reply was received either from the DRT, Delhi, or from the applicant, respondent no.2 again wrote to them in this regard, vide letter dated 9.11.2000, requesting again to obtain and convey by 17.11.2000 the willingness of the applicant for premature repatriation for taking up in situ promotion in the parent cadre. It was clearly stipulated therein that if no response was received by the due date, it would be presumed that the officer was not interested in premature repatriation to the parent cadre. The applicant, vide his letter dated 10.1.2001 addressed to the Joint Director, Pers-I of the office of respondent no.2, replied as follows:
In response to your letter No.A/05563/ACP/99/CAO/P-1 dated 10.07.2000, I have by D.O.No.1/46/99-DRTD dated nil requested you to inform me regarding my basic pay to be fixed after my repatriation to my parent office after completion of tenure of deputation on 30.06.2002, as this will help me in conveying my willingness for premature repatriation. Till date I have not received any information from you.
Honble Presiding Officer, Debts Recovery Tribunal, Delhi, has received your letter No.A/05563/ACP/99/CAO/P-1 dated 09.11.2000. He has directed me to inform you regarding my willingness for premature repatriation as per my request.
Delay in reply is regretted, as this letter got mixed up with judicial files. In turn, respondent no.2, vide letter dated 1.3.2001, informed that his DO letter dated 10.8.2000 was sent to the Air HQ/PC and that he might approach the said office for the required information. It was further intimated thereby that since no willingness was received from him, it was presumed that he was not willing to repatriate to the cadre.
3.2 It is stated that in compliance with the orders of the Tribunal in OA No.484 of 2005 and RA No.41 of 2006, orders were issued on 30.10.2006 for extending the benefit of in-situ promotion to the applicant in OA No.484 of 2005 and other similarly placed Dy.Directors with effect from 3.7.2000 on the same terms and conditions it was granted to 166 Dy.Directors, vide order dated 3.7.2000. Like officers who were given in situ promotion vide order dated 3.7.2000, the said officers, numbering 46, were also granted in situ promotion with effect from 3.7.2000, except the 05 officers who were on deputation. These 05 officers were granted the said benefit w.e.f. the date of their reporting to the parent cadre from deputation, as was done in the case of other deputationists, like the applicant, who figured in the original order dated 3.7.2000. Shri P.S.Rathore was one of the 5 deputationists amongst the 46 officers, who were given the benefit of in-situ promotion from a retrospective date, vide order dated 30.10.2006 issued by the respondent-Department. Shri Rathore filed OA No.2673 of 2008 before the Tribunal seeking condonation of the requirement for repatriation to the cadre on 3.7.2000 on the ground that since the order granting in situ promotion was issued in October 2006, it was not possible for him to repatriate to the cadre on 03.07.2000 for taking up the benefit of in situ promotion. The Tribunal, vide order dated 22.5.2009 passed in OA No.2673 of 2008 (P.S.Rathore vs. UOI & others), inter alia, noted that the condition of repatriation was an impossible condition as he had been disabled from getting repatriated to his parent department in view of the benefit having been granted retrospectively. Accordingly, the Tribunal observed that the case of Shri Rathore was a fit case for reconsideration to accord in situ promotion notionally w.e.f. 3.7.2000, with the actual benefit being made payable only from the actual date of his repatriation. The respondents have stated that the distinction between the case of Shri Rathore and that of the applicant in the present case is that while option for repatriation to the parent cadre for taking up the in situ promotion was given to the applicant, it was not available for Shri Rathore as grant of in situ promotion in his case was from a retrospective date. Since Shri K.Vijayan was similarly placed as Shri Rathore, the Tribunal allowed OA No.4082 of 2011 (K.Vijayan vs. UOI & others) and in compliance with the direction of the Tribunal, Shri Vijayan was granted the same benefit as was granted to Shri Rathore. As regards the claim of the applicant for 3rd financial upgradation under the MACPS in PB 4 &Grade Pay of Rs.8,700 w.e.f. 3.7.2010, it is stated by the respondents that the applicant having been granted in situ promotion w.e.f. 1.7.2002, which he had accepted, cannot be said to have completed 10 years continuous service in the grade of SCSO on 3.7.2010 and therefore, he is not entitled to the said financial upgradation. It is also stated by the respondents that 01.07.2012 would have been the date for grant of 3rd financial upgradation under the MACPS in the case of the applicant. However, since the applicant proceeded on voluntary retirement w.e.f. 15.4.2011, i.e., prior to 1.7.2012, he could not get the benefit of 3rd financial upgradation under the MACPS in PB 4 & Grade Pay Rs.8700/-. As regards the issue raised by the applicant that his juniors were given the benefit of in situ promotion with effect from 3.7.2000 and that of the 3rd financial upgradation under the MACPS w.e.f. 3.7.2010, the respondents have stated that inter se seniority is not the criterion for grant of in situ promotion and 3rd financial upgradation under the MACPS. The said benefits were given to the officers on personal basis after rendering certain period of total Government service/service in a grade, on fulfillment of other attendant conditions, like repatriation from deputation in the case of in situ promotion. In such a case, a senior officer cannot have a claim for parity of benefit. In view of the above, the respondents have stated that the claims raised by the applicant are baseless and liable to be rejected on the ground of delay as well as on merit.
4. Refuting the stand taken by the respondents in their counter reply, the applicant has filed a rejoinder reply wherein it is, inter alia, stated that in the case of one Shri T.S.Arasu, Under Secretary of CSS Cadre of the Ministry of Information & Broadcasting, the benefit has been given to him with effect from 09.08.1999,vide notification dated 09.09.2003. It is also stated that case of one Shri K.L.Vohra, CSO, like the applicant, was approved for in situ promotion to the grade of SCSO, vide letter dated 27.6.2000. Shri Vohra was on deputation as Registrar, Appellate Tribunal for Forfeited Property, Ministry of Finance, Government of India, with effect from 16.11.1994 to 05.06.2003. Initially he was denied notional in situ promotion w.e.f. from 3.7.2000. In the recent past the respondents granted him notional in situ promotion to the grade of SCSO w.e.f. 3.7.2000 on notional basis and counted his service from 3.7.2000 for grant of benefit of 3rd financial upgradation under the MACPS w.e.f. 3.7.2010, vide order dated 13.3.2013. It is further stated by the applicant that since he was sent on deputation in public interest, like the said S/Shri Vohra and Arasu, and the respondents having not called him back to the parent cadre, the denial of in situ promotion to him with effect from 3.7.2000 notionally and counting his service from the said date for giving him 3rd financial upgradation under the MACPS being discriminatory is illegal and hence unsustainable in the eye of law.
5. In reply to the applicants rejoinder reply, the respondents have filed an additional affidavit. As regards the case of Shri T.S.Arasu, referred to by the applicant in the rejoinder reply, the respondents have stated that at the time of issuance of the order dated 12.9.2001 promoting 95 officers to the grade of Deputy Secretary on in situ basis with effect from 9.8.1999, Shri Arasu was on deputation and therefore, on his return from deputation, the Ministry of Information & Broadcasting appointed him as Deputy Secretary on in situ notionally with effect from 9.8.1999 and granted him actual benefits of pay and allowances from 14.7.2003, i.e., the date when he joined the Ministry of Information & Broadcasting. Therefore, it is submitted by the respondents that the case of the applicant is different from that of Shri T.S.Arasu. As regards the case of Shri K.L.Vohra, the respondents have stated that Shri Vohra could not avail of the in situ promotion to the grade of SCSO w.e.f. 3.7.2000 since he was retained in the deputation post by the borrowing Department in public interest against his wishes. In view of this, the respondents have stated that no parity can be drawn between the case of Shri K.L.Vohra and that of the applicant.
6. Along with MA No.2135 of 2014, the applicant has placed on records a number of documents in support of his claims. These documents are copies of the order dated 13.3.2013 issued by the respondents granting 3rd financial upgradation to Shri K.L.Vohra in the Grade Pay of Rs.8,700/- with Pay Band 4 with effect from 3.7.2010; the minutes of DSC containing recommendation for grant of the said benefit under MACPS; the notes of the Ministry of Defene recommending the case of Shri Vohra for grant of in situ promotion to the SCSO grade w.e.f. 3.7.200; the notes of the DoP&T dated 20.11.2012; the letter dated 1.3.2001 of Sr.A.O.(Pers.I), Ministry of Defence; the letter dated 10.1.2001 addressed by the applicant to the Sr.A.O.(Pers.I), Ministry of Defence; the letter dated 9.11.2000 of the Sr.A.O., Minsitry of Defence, to the Chairman, DRT, New Delh; and the letter dated 10.7.2000.
7. We have heard Shri Padma Kumar S, learned counsel appearing for the applicant, and Shri Satish Kumar, learned counsel appearing for the respondents.
8. From the pleadings, the following issues arise for consideration of this Tribunal:
(1) Whether the O.A. as laid by the applicant is barred by limitation;
(2) Whether the applicant had given his willingness for premature repatriation within the stipulated period, but had been retained by the borrowing Department in public interest and prevented from prematurely repatriating to his parent cadre to avail of the benefit of in situ promotion to the grade of SCSO w.e.f. 3.7.2000;
(3) Whether the applicant is similarly placed as S/Shri P.S.Rathore, K.Vijayan and K.L.Vohra who were granted in situ promotion with effect from 3.7.2000 although they were on deputation in other Departments;
(4) Whether the applicant is similarly placed as Shri T.S.Arasu (referred to by the applicant in the rejoinder); and (5) Whether the applicant could claim 3rd financial upgradation under the MACPS on the ground of his batch mates and juniors being granted the same in the year 2010 by reckoning their in situ promotion to the grade of SCSO w.e.f. 3.7.2000.
Issue No.1:
9. In support of their contention that the Original Application is liable to be rejected as being barred by limitation, the respondents in their counter and the learned counsel appearing for them during the course of hearing, have relied on the following decisions:
9.1 In S.S.Rathores case (supra), the Honble Supreme Court held that application should be made to the Tribunal by a person aggrieved by an order within one year from the date of the order when the cause of action shall be taken to arise. It was also held by the Honble Apex Court 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, but this principle may not be applicable when the remedy availed of has not been provided by law.
9.2 In Gurdev Singhs case (supra), CA Nos.1852 of 1989 and 4772 of 1989 were filed by the State of Punjab and others. The respondent in CA No.1852 of 1989 was appointed as an ad hoc Sub Inspector in the District Food and Supply Department of Punjab State. He absented himself from duty with effect from September 29,1975. On January 27,1977, his services were terminated. On April 18, 1984, he instituted the suit for declaration that the termination order was against the principles of natural justice, terms and conditions of employment, void and inoperative and he continues to be in service. The question was whether the suit was barred by limitation. The Honble High Court of Punjab & Haryana held that the suit for such relief was not governed by the Limitation Act and allowed the appeal. The said Civil Appeal was filed against the judgment of the Honble High Court. The Honble Supreme Court held that if an act is void or ultra vires, it is enough for the court to declare it so and it collapses automatically. It need not be set aside. The aggrieved party can simply seek a declaration that it is void and not binding upon him. A declaration merely declares the existing state of affairs and does not quash so as to produce a new state of affairs. Therefore, the party aggrieved by the invalidity of the order has to approach the court for relief of declaration that the order against him is inoperative and not binding upon him. He must approach the court within the prescribed period of limitation. If the statutory time limit expires, the court cannot give the declaration sought for. The view that if the dismissal, discharge or termination of services of an employee is illegal, unconstitutional or against the principles of natural justice, the employee can approach the court at any time seeking declaration that he remains in service, cannot be accepted.
9.3 In Ratan Chandra Sammantas case, the Honble Supreme Court held thus:
6. Two questions arise, one, if the petitioners are entitled as a matter of law for re-employment and other if they have lost their right, if any, due to delay. Right of casual labourer employed in projects to be re-employed in railways has become recognized both by the Railways and this Court. But unfortunately the petitioners did not take any step to enforce their claim before the Railways except sending vague representation nor did they even care to produce any material to satisfy this Court that they were covered in the scheme framed by the Railways. It was urged by the learned Counsel for the petitioners that they may be permitted to produce their identity cards etc., before the opposite parties who may accept or reject the same after verification. We are afraid it would be too dangerous to permit this exercise. A writ is issued by this Court in favour a person who has some right and for sake of roving enquiry leaving scope for manoeuvring. Delay itself deprives a person of his remedy available in law. In absence of any fresh cause of action or any legislation a person who has lost his remedy by lapse of time loses his right as well. From the date of retrenchment, if it is assumed to be correct a period of more than 15 years has expired and in case we accept the prayer of petitioner we would be depriving a host of others who in the meantime have become eligible and are entitled to claim to be employed. We would have been persuaded to take a sympathetic view but in absence of any positive material to establish that these petitioners were in fact appointed and working as alleged by them it would not be proper exercise of discretion to direct opposite parties to verify the correctness of the statement made by the petitioners that they were employed between 1964 and 1969 and retrenched between 1975 to 1979. 9.4 In Miss Ajay Wallas case(supra), the Civil Appeal was filed by the State of Haryana and others against the judgment passed by the Honble High Court of Punjab directing the appellants to appoint the respondent forthwith on the post of Sub Divisional Clerk in any Department of the State of Haryana. The Honble Apex Court in paragraph 6 of the judgment held as follows:
6. The facts reveal that requisition was made for recruitment only four candidates. The service election Board had no power and jurisdiction to select as many as 28 candidates and to recommend their names to various Departments for appointment. In the circumstances, when the Superintending Engineer, Hathnikund Circle had not requisitioned appointment of 8 candidates including the respondent, he rightly not acceded to and returned the list to the Board stating that he could not make any appointment as the ad hoc Sub Divisional Clerks already working had obtained stay from the High Court against their termination. In these circumstances, the direction asking the Superintending Engineer to appoint the respondent, issued by the High Court is obviously illegal. Moreover, the selection was made in 1982 i.e. after an inordinate delay. Representation repeatedly given to various authorities do not furnish her fresh cause of action to file writ petition. The High Court is wholly unjustified to have entertained and allowed the writ application. 9.5 In Harish Uppals case (supra), the petitioner was commissioned in the Indian Army (Artillery Regiment) in June 1965. He was in the unit which was sent to Bangladesh in connection with Military operations there in December 1971. In respect of certain irregularities committed by the petitioner, a court-martial was held against him at which he was found guilty and he was awarded the punishment of (a) dismissal and (b) two years rigorous imprisonment. This punishment was imposed after giving the petitioner an opportunity of pre-confirmation hearing as provided by Section 164(1) of the Army Act, 1950. The final orders imposing the said punishment were passed on 14.8.1972 and communicated to the petitioner on 3.9.1972. While the petitioner was in prison, his advocate sent a post-confirmation petition under Section 164(2) of the Army Act to the Government of India. The petitioner said that he received the Government of Indias reply on the said representation only on 11.11.1983 (i.e. about 11 years later), whereas respondents case is that the order rejecting the said post-confirmation petition was duly communicated to his advocate on 18.9.1973. The petitioners elder brother had filed Writ Petition No.456 of 1972 for issuance of a writ of habeas corpus in the Honble Supreme Court seeking the release of the petitioner. The said writ petition was dismissed by the Honble Supreme Court on 27.11.1972. In 1983 the petitioner had approached the Honble Supreme Court by way of another writ petition being W.P.No.12590 of 1983 which was dismissed in limine directing the Government of India to communicate its orders upon the petitioners post-confirmation petition, if not already communicated. The petitioner said that it was only thereafter that he received the orders of the Government upon his post-confirmation petition. He then approached the Honble High Court in C.W.P. No.827 of 1984 challenging the rejection of his pre-confirmation petition. The Honble High Court dismissed the petitioners writ petition summarily on two grounds, viz., (1) that the petitioner had approached the Honble Supreme Court but his petition was dismissed by the Supreme Court on 27.11.1972, and (2) that his petition was highly belated. On the findings that the petitioner was duly communicated the rejection orders on his pre-confirmation petition in 1973 and that the petitioner was guilty of laches, the Honble Supreme Court dismissed the SLP and observed in paragraph 8 of the judgment as follows:
.It is a well settled policy of law that the parties should pursue their rights and remedies promptly and not sleep over their rights. That is the whole policy behind the limitation Act and other rules of limitation. If they choose to sleep over their rights and remedies for an inordinately long time, the court may well choose to decline to interfere in its discretionary jurisdiction under Article 226 of the Constitution of India and that is what precisely the Delhi High Court has done. 9.6 In D.C.S.Negis case (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 in the DPC 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 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 observe 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. 9.7 A careful perusal of the above decisions reveals that the Honble Supreme Court has laid down the law that delay itself deprives a person of his remedy available in law and that in the absence of any fresh cause of action or any legislation a person who has lost his remedy by lapse of time loses his right as well.
9.7.1 In D.C.S.Negis case (supra) the Honble Supreme Court observed that it is the duty of the Tribunal to first consider whether the application made to it is within limitation in terms of Section 21 of the Administrative Tribunals Act, 1985 even if an objection of limitation is not raised by the respondent.
10. The learned counsel for the applicant, on the other hand, submitted that
(i) Sualal Yadav v. The State of Rajasthan and others, (1976) 4 SCC 853; and
(ii) K.K.Dhir v. Union of India and others, 135(2006) DLT 300 (DB).
10.1 In Sualal Yadavs case(supra), the appellant was an SI of Police. He was dismissed from service by an order passed by the I.G. of Police on or about July 13, 1964 after holding a departmental enquiry in which, it appeared, he was not present. The appellant appealed to the appropriate authority on October 12, 1964, and the appeal was dismissed on June 25, 1966. After that, the appellant made a review application under Rule 34 of the Rajasthan Civil Services (Classification, Control & Appeal) Rules, 1958 on June 1, 1968. The review application was entertained by the Governor, and an order was passed holding that the matter was not fit for review. Therefore, within about two or three months, a writ application was filed before the High Court, which was dismissed by the order impugned in the appeal before the Honble Supreme Court. Allowing the appeal, the Honble Supreme Court in paragraph 2 of the judgment held as follows:
2. A preliminary objection was taken by the State in the High Court that the application merited dismissal because of undue laches and delay on the part of the appellant. The High Court found that the review application was made to the Governor after a lapse of about two years which was unreasonable delay according to the High Court. That is the main reason why the High Court accepted the preliminary objection and dismissed the writ application. We are unable to hold that the High Courts approach in this matter was correct. Since the Governor had not dismissed the review application on the ground of delay and having entertained the same held it to be a case not fit for review, we take the view that the Governor dismissed the review application on merits. That being the position, it was not open to the High Court to resurrect the ground of delay in the review application at a remote stage and make it a ground for dismissing the writ application. We, therefore, allow the appeal, set aside the order of the High Court and remit the writ application for disposal in accordance with law. It is hoped the High Court will be able to dispose of the same expeditiously. There will be no order as to costs. 10.2 In In K.K.Dhirs case (supra), the petitioner requested the respondent for grant of prorate pensionary benefits on 15.10.1996 as he had rendered more than 10 years of qualifying service with the respondents. However, his claim was rejected, vide respondents letter dated 30.6.1997. He made another representation which was also rejected on 8.6.1999. The Tribunal dismissed the Original Application filed by him on merits. Being aggrieved thereby, the petitioner filed a writ petition before the Honble High Court. The Honble Court, following the decision in Sualal Yadavs case (supra), rejected the preliminary objection of limitation raised by the respondents and also observed that the right to claim pension gives a recurring cause of action.
11. Keeping in mind the law laid down by the Honble Supreme Court in the aforesaid decisions, relied on by the learned counsel appearing for the parties, we proceed to consider as to whether, or not, the O.A. is barred by limitation.
12. The Ministry of Finances order dated 3.7.2000 (Annexure A/3) for appointment of 163 officers of CSO to the level of SCSO with effect from 3.7.2000, which included the applicant, stipulated in paragraph 6 as follows:
6. The Officers who are on deputation shall be required to be repatriated back to the cadre to get the benefit of in situ appointment as SCSO. Such officers may exercise an option for premature repatriation from deputation or otherwise within one month of issue of this order. In case an officer opts for premature repatriation, he shall be allowed to come back to the cadre in order of seniority on availability of suitable vacancy. The officer shall await prior clearance of Cadre Controlling Authority before actually reverting to the cadre. Under no circumstances will these officers be prematurely repatriated without obtaining prior cadre clearance. Admittedly, on completion of his deputation tenure in the DRT, Delhi, the applicant came back and reported to his parent Department on 1.7.2002. Accordingly, he was given in situ appointment to the grade of SCSO with effect from 1.7.2002, which he accepted without any grumble. At that time, the applicant did not claim in situ appointment to the grade of SCSO with effect from 3.7.2000. He continued as such for about nine years. Only on 7.3.2011 (Annexure A/7), he made a representation claiming in situ appointment to the grade of SCSO on notional basis with effect from 3.7.2000 and on actual basis from 1.7.2002 when he had accepted the in situ appointment to the grade of SCSO on his joining the parent cadre from deputation, and also claiming 3rd financial upgradation under the MACPS in Pay Band 4 and Grade Pay Rs.8700/- from July 2010 when his batch mates and juniors were granted such benefit by counting their continuous service in the grade of SCSO with effect from 3.7.2010. The said representation of the applicant dated 7.3.2011 (Annexure A/7) was considered and rejected by the respondents, vide order dated 29.5.2012. Thus, it is the claim of the applicant that cause of action for filing the present O.A. arose on 29.5.2012 and the O.A being filed 30.8.2012 is within the period of limitation prescribed under Section 21 of the Administrative Tribunals Act, 1985.
12.1 In support of his contention, the applicant has placed reliance on the decision of the Honble Supreme Court in Sualal Yadavs case (supra) and the decision of the Honble High Court of Delhi in K.K.Dhirs case (supra). After going through the said decisions, we find that the same can be of no help to the case of the applicant.
12.2 In Sualal Yadavs case (supra), there was delay of about two years in availing of the remedy of review prescribed under the statutory rules, and the writ petition was dismissed by the Honble High Court solely on the ground that the appellant had preferred the review application to the Governor after a lapse of about two years from the date of rejection of his statutory appeal. In this backdrop, the Honble Supreme Court held that High Courts approach in the matter was incorrect and that when the statutory review application was rejected by the Governor on merits, the High Court should have decided the writ petition on merits. In the present case, the applicant had accepted the in situ appointment to the grade of SCSO w.e.f. 1.7.2002 and waited for about nine years and then filed the representation dated 7.3.2011 which was rejected by the respondents, vide order dated 29.5.2012. The representation as made by the applicant was not prescribed in any rule. The applicant has not produced before us any rule or Government of Indias decisions under which he could make such a representation claiming redressal of a grievance in respect of which cause of action, if any, arose on a date preceding nine years of the date of representation. Therefore, we are of the considered view that the date of the order, i.e., 29.5.2012 when the respondent-authority rejected his representation dated 7.3.2011 cannot be the starting point of limitation for filing the present O.A., and that if at all the applicant was aggrieved by the order of the respondent-authority granting him in situ appointment to the grade of SCSO with effect from 1.7.2002, instead of 3.7.2000, he should have approached the Tribunal within a period of one year from 1.7.2002. This view of ours is fortified by the decision of the Honble Supreme Court in State of Tripura & others vs. Arabinda Chakraborty & others, 2014 (3) SLJ 65, wherein their Lordships held as follows:
13. It is a settled legal position that the period of limitation would commence from the date on which the cause of action takes place. Had there been any statute giving right of appeal to the respondent and if the respondent had filed such a statutory appeal, the period of limitation would have commenced from the date when the statutory appeal was decided. In the instant case, there was no provision with regard to any statutory appeal. The respondent kept on making representations one after another and all the representations had been rejected. Submission of the respondent to the effect that the period of limitation would commence from the date on which his last representation was rejected cannot be accepted. If accepted, it would be nothing but travesty of the law of limitation. One can go on making representations for 25 years and in that event one cannot say that the period of limitation would commence when the last representation was decided. On this legal issue, we feel that Courts below committed an error by considering the date of rejection of the last representation as the date on which the cause of action had arisen. This could not have been done. 12.3 In K.K.Dhirs case (supra), the petitioner claimed pensionary benefits. After rejection of his first representation on 30.6.1997, the petitioner made another representation on 8.6.1999. The Department rejected the second representation not on the ground that his previous representation was rejected but on the ground that since he had resigned from service, his case was covered by Rule 26 of the Pension Rules. In view of the fact that in the said case the petitioner was trying to establish his right to be admitted to pensionary benefits which has been denied to him and further in view of the settled proposition of law that the right to claim pension gives a recurring cause of action, the Honble Court rejected the plea of limitation as raised by the respondents. The facts and circumstances of K.K.Dhirs case (supra) are totally different from those of the present case. On the facts and and in the circumstances of the present case, we are not inclined to accept the applicants contention on the basis of the decision of the Honble High Court in K.K.Dhirs case (supra).
12.4 In the light of the above discussions, we hold that the present O.A. is barred by limitation. Accordingly, issue no.1 is decided against the applicant.
Issue Nos.2 & 3:
13. Both these issues being intertwined are taken up together. It is the claim of the applicant that he is similarly placed as S/Shri P.S.Rathore, K.Vijayan and K.L.Vohra. This claim of the applicant has been resisted by the respondents.
13.1 Admittedly, in compliance with the orders passed by the Tribunal in OA No.484 of 2005 and RA No.41 of 2006, the respondent-Department issued order on 30.10.2006 for extending the benefit of in situ promotion to 46 CSOs, i.e., the applicant in OA No.484 of 2005 and other similarly placed CSOs, with retrospective effect from 3.7.2000. Shri P.S.Rathore was one of the 5 deputationists amongst the 46 CSOs who were extended the in situ promotion with effect from 3.7.2000. Shri Rathore was not available in the cadre on 3.7.2000. He was given in situ promotion on 19.6.2006 when he joined the parent Department on repatriation from deputation. His representation for giving him in situ promotion with effect from 3.7.2000 having been rejected by the respondent-Department, vide order dated 21.11.2008, Shri Rathore approached the Tribunal in OA No.2673 of 2008. Accepting the submission of the counsel appearing for Shri Rathore that the condition of repatriation was an impossible condition inasmuch as Shri Rathore had already joined the parent cadre on 19.6.2006 whereas order extending in situ promotion with effect from 3.7.2000 was issued by the respondent-Department on 30.10.2006, the Tribunal set aside the order issued by the respondent-Department denying him the benefit of in situ promotion with effect from 3.7.2000 and also directed the respondents to reconsider his claim for grant of in situ promotion retrospectively from the date the other similarly situated persons were given the in situ promotion, i.e., 03.07.2000 on notional basis and on actual basis from the date of his repatriation, i.e., 19.6.2006. Unlike the applicant, Shri Rathore did not have an opportunity to give his willingness for premature repatriation to his parent Department to avail of the benefit of in situ appointment to the grade of SCSO because the order was issued only on 30.10.2006 extending the benefit of in situ promotion with retrospective effect, i.e., from 3.7.2000 whereas he had already joined the parent cadre on 19.6.2006. In view of this, we are not inclined to accept the contention of the applicant that he is similarly placed as Shri Rathore.
13.2 As Shri K.Vijayan was similarly placed as Shri P.S.Rathore, the O.A. No.4082 of 2011 filed by Shri Vijayan was allowed by the Tribunal, and accordingly, the respondent-Department granted him benefit of in situ promotion to the grade of SCSO with retrospective effect from 3.7.2000 on notional basis.
13.3 As regards the case of Shri K.L.Vohra, we find that Shri Vohra was working on deputation as Registrar in the Appellate Tribunal for Forfeited Property (ATFP, for short) with effect from 16.11.1994. Consequent upon issuance of the order dated 3.7.2000 for appointment of 163 CSOs to the grade of SCSO, the respondent-Department asked for his willingness for premature repatriation to the parent cadre to avail of the benefit of the said in situ appointment with effect from 3.7.2000. But the ATFP upgraded the post held by Shri Vohra on deputation to the grade of SCSO and retained Shri Vohra in public interest against his wishes for premature repatriation to avail of the benefit of in situ appointment with effect from 3.7.2000. In consideration of this fact, the respondent-Department moved the DoP&T for according relaxation of the condition of premature repatriation to avail of the benefit of in situ appointment to the grade of SCSO. Accordingly, after receipt of the approval from the DoP&T, the respondent-Department, vide order dated 13.3.2013, granted Shri Vohra in situ appointment to the grade of SCSO with retrospective effect from 3.7.2000.
13.4 Thus, the question that arises for consideration is as to whether the applicant had given his willingness for premature repatriation, but he had been retained by the borrowing Department, i.e., DRT, Delhi, in public interest against his wishes and/or prevented by the DRT, Delhi, from prematurely repatriating to his parent cadre for the purpose of availing of the in situ appointment with effect from 3.7.2000. It is not in dispute that the respondent-Department, vide letter dated 10.7.2000, communicated the order dated 3.7.2000 whereby the benefit of in situ appointment to the grade of SCSO was extended to the applicant, along with others, subject to the conditions enumerated therein. By the said letter, the DRT, Delhi, was required to ask the applicant to give his willingness, or otherwise, for premature repatriation to the parent cadre to accept the benefit of in situ appointment in terms of Para 6 of the office order dated 3.7.2000 within one month of issue of the same. The applicant has filed a copy of the letter dated 9.11.2000 of the Sr.A.O., office of Joint Secretary (Trg) & CAO, Ministry of Defence, once again requesting the Chairman, DRT, Delhi, to obtain the willingness of the applicant for premature repatriation or continuing on deputation and forward the same. It was clearly indicated in the said letter dated 9.11.2000 that if no response was received by due date, it would be presumed that the applicant was not interested in premature repatriation to the cadre. The applicant has also filed a copy of the letter dated 10.1.2001 written by him to the said Sr.A.O., office of Joint Secretary (Trg) & CAO, Ministry of Defence. The said letter dated 10.1.2001 reads thus:
Sub: AFHQ Civil Service In Situ appointment of 163 Civilian Staff Officers of AFHQ Civil Service to the level of Senior Civilian Staff Officer as personal to the incumbents.
Sir, In response to your letter No.A/05563/ACP/99-CAO(P) dated 10.7.2000, I have by D.O.No.1/46/99-DRTD dated nil requested you to inform me regarding my basic pay to be fixed after my repatriation to my parent office after completion of tenure of deputation on 30.06.2002, as this will help me in conveying my willingness for premature repatriation. Till date I have not received any information from you.
Honble Presiding Officer, Debts Recovery Tribunal, Delhi has received your letter No.A/05563/ACP/99-CAO/P-I dated 09.11.2000. He has directed me to inform you regarding my willingness for premature repatriation as per my request.
Delay in reply is regretted, as this letter got mixed up with judicial files.
Yours faithfully, Sd/ (K.M.VARMA) Registrar In reply thereto, the Sr.A.O.(Pers-I), office of Joint Secretary (Trg) & CAO, Ministry of Defence, in his letter dated 1.3.2001, stated as follows:
Sir, Reference your letter no.1/46/99-DRTD dated 10 Jan 2001 on the aforesaid subject.
2. Your letter no.1/46/99-DRTD dated 10 Aug 2000 was forwarded to Air HQ/PC-I for sending necessary information to you vide this office note no.PC-I/A/05563/ACP/99/CAO/P-I dated 28 Aug 2000. You may approach Air HQ/PC for the required information.
3. Since no willingness has been received from you till date, it is presumed that you are not willing to repatriate to the cadre prematurely and it is clarified that you will not repeat not be prematurely repatriated without prior concurrence of this office. On a perusal of the above noted letters, we find that the applicant did not give his willingness for premature repatriation to the parent cadre to accept the benefit of in situ appointment to the grade of SCSO either in response to the respondent-Departments letter dated 10.7.2000 or in response to 9.11.2000 within the period stipulated therein. Though the applicant, vide his letter dated 10.1.2001, indicated his willingness for premature repatriation, yet such willingness was conveyed by him only after 17.11.2000, i.e., the date fixed by the respondent-Department in letter dated 9.11.2000. Furthermore, it transpires from his letter dated 10.1.2001 that only after the DRT, Delhi, directed the applicant to inform his willingness, he indicated his willingness for premature repatriation after expiry of the deadline fixed by the respondent-Department. Thus, it is clear that the applicant had never given his willingness within the time limit fixed by the respondent-Department, nor had he been retained by the DRT, Delhi, in public interest against his wishes and/or prevented by the DRT, Delhi, from prematurely repatriating to his parent cadre to accept the benefit of in situ appointment to the grade of SCSO with effect from 3.7.2000. That is why, on his repatriation from deputation and joining the parent cadre on 1.7.2002, the applicant was given the benefit of in situ promotion with effect from 1.7.2002 which he accepted and did not object to the same, nor did he claim for granting him in situ appointment on notional basis with retrospective effect, till 7.3.2011 when he for the first time made a representation claiming benefit of in situ promotion notionally from 3.7.2000 and actually from 1.7.2002. Therefore, we find that the applicant is not similarly placed as Shri K.L.Vora. Accordingly, issue nos. 2 and 3 are decided against the applicant.
Issue No.4:
14. It is not in dispute that Shri T.S.Arasu was an officer of CSS and not an officer of the AFHQ Civil Service cadre to which the applicant belongs. As per DoP&Ts OM dated 12.9.2001, the in situ promotion of 95 officers was to be effective from 9.8.1999 when admittedly Shri Arasu was on deputation. Shri Arasu came back from deputation and joined the Ministry of Information & Broadcasting on 14.7.2003. After obtaining vigilance clearance, the Ministry of Information & Broadcasting appointed him as Deputy Secretary on in situ notionally with effect from 9.8.1999 and with actual benefits of pay and allowances from 14.7.2003 in pursuance of the DoP&Ts OM dated 12.9.2001. The copy of DoP&Ts O.M. dated 12.9.2001 has not been produced by the applicant. No material has been placed before the Tribunal showing that though his parent Department asked Shri Arasu to give his willingness for premature repatriation to the parent cadre to accept the benefit of in situ promotion to the grade of Deputy Secretary and though Shri Arasu did not give his willingness within the stipulated period for premature repatriation to the parent cadre to accept the benefit of the said in situ promotion with effect from 9.8.1999, yet he was given in situ promotion to the grade of Deputy Secretary on notional basis with effect from 9.8.1999 and on actual basis with effect from 14.7.2003. Thus, the applicant has not been able to establish his plea that he is similarly placed as Shri Arasu. Accordingly, issue no.4 is decided against the applicant.
Issue No.5:
15. In terms of the Ministry of Defences order dated 3.7.2000, the in situ appointment CSOs to the grade of SCSO would be personal to the incumbents, and their such in situ appointments would not entitle the incumbents to any claim for regular appointment as SCSO or seniority in the grade of SCSO. As per paragraph 1 of the MACP Scheme, there shall be three financial upgradations under the MACPS, counted from the direct entry grade on completion of 10, 20 and 30 years of service respectively and financial upgradation under the Scheme will be admissible whenever a person has spent 10 years continuously in the same grade pay. As per paragraph 20 of the MACP Scheme, financial upgradation under the MACPS shall be purely personal to the employee and shall have no relevance to his seniority position and as such there shall be no additional financial upgradation for the senior employees on the ground that the junior employee in the grade has got higher pay/grade pay under the MACPS. Therefore, the grant of 3rd financial upgradation under the MACP in Pay Band 4 and Grade Pay Rs.8700/- to the applicants batch mates and juniors with effect from 3.10.2010 on account of their spending 10 years continuously in the grade of SCSO with effect from 3.7.2000 cannot be a ground for the applicant to claim such 3rd financial upgradation under the MACP with effect from 3.10.2010 inasmuch as he having accepted his in situ appointment to the grade of SCSO with effect from 1.7.2002 did not complete 10 years continuous service in the grade of SCSO on 2.10.2010. As has been found above, the applicant, being not similarly placed as S/Shri P.S.Rathore, K.Vijayan, K.L.Vohra and T.S.Arasu, is not entitled to in situ appointment to the grade of SCSO notionally with effect from 3.7.2000. Therefore, the applicant cannot claim 3rd financial upgradation under the MACP in PB 4 and GP Rs.8700/- with effect from 3.10.2010. Accordingly, issue no.5 is decided against the applicant.
16. In view of our findings on all the issues, we hold that the O.A. filed by the applicant, besides being barred by limitation, is devoid of merit, and that the applicant is not entitled to any of the reliefs claimed in the O.A. Accordingly, the O.A is dismissed. No costs.
(RAJ VIR SHARMA) (ASHOK KUMAR) JUDICIAL MEMBER ADMINISTRATIVE MEMBER AN