Central Administrative Tribunal - Delhi
P. S. Behl S/O S. K. Behl vs Government Of Nct Of Delhi Through on 23 September, 2011
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH NEW DELHI Review Application No.279 of 2011 Misc. Application Nos.2253, 2254/2011 in Original Application No.364 of 2010 This the 23rd day of September, 2011 HONBLE SHRI JUSTICE V. K. BALI, CHAIRMAN HONBLE DR. VEENA CHHOTRAY, MEMBER (A) P. S. Behl S/o S. K. Behl, R/o 21/39-B, Tilak Nagar, New Delhi-110018. Applicant ( By Shri K. K. Sharma, Sr. Advocate and with him Shri Rajiv Bakshi and Shri Rajeev Kumar, Advocates ) Versus 1. Government of NCT of Delhi through its Chief Secretary, 5th Floor, A Wing, Delhi Govt. Secretariat, IP Estate, New Delhi-110002. 2. Secretary-cum-Commissioner, Transport Department, Government of NCT of Delhi, 5/9 Underhill Road, Delhi-110054. 3. Joint Commissioner (Admn.), Transport Department, Government of NCT of Delhi, 5/9 Underhill Road, Delhi-110054. 4. Commissioner of Police, Delhi Police Hqrs., IP Estate, New Delhi-110002. 5. Kuljit Singh S/o Chatter Singh, Enforcement Officer, Government of NCT of Delhi, 5/9 Underhill Road, Delhi-110054 R/o 452, Sangam Apartment, Pitampura, Delhi. Respondents ( By Ms. Renu George for Official Respondents and Shri M. L. Sharma for Respondent No.5, Advocates ) O R D E R Justice V. K. Bali, Chairman:
OA No.364/2010 was allowed by us vide order dated 1.12.2010, operative part whereof reads, thus:
7. In the instant case also, although the fifth Respondent could have claimed the seniority of the year 1994, yet he would be eligible for promotion only from 1996 after completing four years in the grade of Inspector (Enforcement), as per the recruitment rules. It is clear that which ever is the year of seniority of the fifth Respondent, he would be eligible for promotion only from the year 1996, subject to the availability of vacancies in that year. The promotion of the fifth Respondent with effect from 18.08.1994 is against the rules as he was not eligible for promotion in the year. In the result the seniority of the fifth Respondent above the Applicant, which is a consequence of the order dated 20.06.2004, by which the fifth Respondent has been promoted from the above date, also cannot be sustained. The impugned seniority list of 12.01.2010 is quashed to the extent that the fifth Respondent has been shown above the Applicant. The second Respondent is directed to redraw the seniority list of the Enforcement Officers of the Transport Department, wherein the Applicant would be shown senior to the fifth Respondent. These directions would be complied with within eight weeks of receipt of certified copy of this order. No costs. Against the order aforesaid, P. S. Behl, the fifth respondent arrayed in the OA, filed WP(C) No.8314/2010 in the High Court of Delhi, which was disposed of on 11.8.2011 by recording the following order:
1. After some arguments, learned counsel for the petitioner on instructions from the petitioner, who is present, seeks to withdraw the petition with liberty to approach the Tribunal to seek review of impugned order dated 1st December, 2010 with regard to his plea that the original application of the respondent No.5 was barred by time, as the said plea was taken as preliminary objection and was also canvassed before the Tribunal. However, the Tribunal had not decided the same.
2. The writ petition is dismissed as withdrawn with the liberty as prayed for, without prejudice to the other grounds and contentions raised by the petitioner in the writ petition which will be open for challenge.
3. The interim order granted by this Court by order dated 14th December, 2010, and any relief availed by the petitioner on account of interim order, however, shall continue for another four weeks. For period after four weeks, it will be open to the petitioner to approach the Tribunal for continuation of interim order and any relief availed by him, in accordance with law.
4. Dasti. In hand is thus an application seeking review of our order dated 1.12.2010. We may not go into the question as to whether the point as regards limitation was canvassed by the counsel who appeared for the fifth respondent in the OA, as by now in view of the recent decision of the Honble Supreme Court in D. C. S. Negi v Union of India & others, decided on 7.3.2011, it is not at all relevant whether an objection as regards limitation has been raised or not, and the Tribunal has to deal with limitation, and, therefore, there would be no need to go into the question as to whether the counsel for the applicant during the course of arguments raised the point of limitation or not. The observations of the Honble Supreme Court are 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). .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.
2. Even though, facts in all their relevant details have since been given in our order dated 1.12.2010 sought to be reviewed, we may still make a mention of the basic facts culminating into filing of the OA. Kuljit Singh, the original applicant, was re-deployed in the Transport Department as Enforcement Officer from 7.8.1996 after having been declared surplus in the Delhi State Mineral Development Corporation Limited. P. S. Bahal, arrayed as 5th respondent in the OA, and applicant in the review application, joined the said Department on deputation from Delhi Police, where he was working as Sub Inspector, on 22.6.1992, and posted as Inspector (Enforcement). He was absorbed in the Transport Department on 18.5.1994, maintaining lien for two years up to 18.5.1996. He was promoted as Enforcement Officer on 15.10.1999, a post on which the applicant came to be re-deployed on 7.8.1996. On the intervention of the Tribunal, P. S. Bahal, the 5th respondent, was promoted to the post of Enforcement Officer from 2.7.1997. He filed a writ petition bearing WP(C) No.567/2001 with the limited grievance that the post of Enforcement Officer available in 1996 for promotion was to be treated as general category post, but the respondents had treated it as a reserved category post, and the Tribunal had not been able to deal with this because of non-availability of relevant records. This is what the High Court has mentioned in the order passed in WP(C) No.567/2001, by further observing that it remained to be seen whether the matter could be remanded to the Tribunal for reconsideration of the issue. The matter was ordered to be listed for hearing on 15.10.2001. The said writ was pending when we decided the OA, and is even now stated to be pending. Meanwhile, the parent department of P. S. Bahal promoted him as Inspector from 18.8.1994 under the Next Below Rule vide order dated 31.5.2004. In terms of that order, the Transport Department gave him the benefit of notional seniority in the grade of Enforcement Officer from 18.8.1994 vide order dated 22.6.2004, as a consequence whereof he came to be placed above the original applicant in the seniority list of Enforcement Officers as on 1.1.2010. Even though, the applicant may not have, in the prayer clause, asked for setting aside the order of promotion of the 5th respondent and the objection as regards the same was raised by the Senior Advocate appearing for the 5th respondent, the same was repelled by observing that in the pleadings in the OA, promotion of the 5th respondent had been challenged explicitly in paragraphs 4.6, 4.7, 4.9. 4.11, 4.16, 5.(A) and 5.(K), as well as in the representations given to the competent authority, which had been placed on records. We further observed, Only in the relief clause this aspect regarding the challenge to the promotion of the fifth Respondent has not been explicitly mentioned. However, in the light of what has been stated above regarding the pleadings challenging the promotion of the fifth Respondent explicitly, we can mould the relief in such a way as to give the Applicant relief in this regard also. The operative portion of the order has since already been reproduced hereinbefore. We may reiterate that what primarily prevailed with this Tribunal in granting relief to the original applicant was that the 5th respondent could not have claimed seniority from the year 1994, as he would be eligible for promotion only from the year 1996 after completion of four years in the grade of Inspector (Enforcement) as per recruitment rules. We also observed that whichever might be the year of seniority of the 5th respondent, he would be eligible for promotion only from the year 1996, subject to availability of vacancies in that year, and that the promotion of the said respondent with effect from 18.8.1994 was against the rules as he was not eligible for promotion in that year. It was not in dispute nor is it in dispute even now that the eligibility for promotion to the post of Enforcement Officer was four years service in the grade of Inspector (Enforcement), which the 5th respondent had completed only in 1996. Primarily thus, for the reason that the 5th respondent would attain the eligibility for promotion only in 1996 as per recruitment rules, his promotion to the post of Enforcement Officer earlier than that was held not to be in order.
3. Insofar as the official respondents are concerned, no plea as regards the OA being barred by limitation was raised. Such a plea came to be raised only by the 5th respondent. In that regard, it was inter alia pleaded that the OA would be barred by time in view of the fact that the question of seniority position of the respondent vis-`-vis the applicant as shown in the impugned seniority list dated 12.1.2010 would be nothing but a follow-up of the orders dated 31.5.2004 issued by Delhi Police and affirmed by order dated 22.6.2004 issued by Transport Department, granting notional promotion to the 5th respondent with effect from 18.5.1994, and further that the fact that as early as 30th June, 2004, the applicant had preferred a representation to the competent authority challenging therein the fixation of Next Below Rule seniority of the 5th respondent, which had been determined finally vide orders dated 22.6.2004. It was further pleaded that mere publication of seniority list of Enforcement Officers vide circular dated 12.1.2010 would not give rise to fresh cause of action, thus entailing a fresh period of limitation, conferring any kind of vested right on the applicant.
4. In the OA, the applicant after referring to the order dated 22.6.2004 whereby the 5th respondent was granted benefit of notional seniority as Enforcement Officer with effect from the date of his promotion as Inspector in Delhi Police, i.e., 18.8.1994, averred that since the said order had adversely affected the rights of the applicant, he submitted a representation to the 2nd respondent providing therein complete appraisal of necessary and relevant facts, and requesting to recall and set-aside the order dated 22.6.2004 without any legal consequences affecting the right of seniority of the applicant in the Transport Department qua the 5th respondent. Copy of the said representation was placed on records as Annexure P-9. Subsequent to filing of the representation aforesaid and upon its consideration, the 2nd respondent sought advice from the Services Department of Government of NCT of Delhi. The Services Department examined the matter extensively and exhaustively regarding all aspects of the case and the orders passed by the 2nd and 4th respondents in that behalf, and submitted its opinion on 29.9.2004, which reads as under:
As the promotion of Sh. Behl as stated as (V) above was not justified, action of Transport Department based on the order of Police Department to grant notional seniority to Sh. Behl on the post of Enforcement Officer with effect from 18.08.1994 is also unjustified. Keeping in view the above, the Department may take an appropriate administrative decision in the matter accordingly. The advice in its entirety as given by the Services Department was annexed with the OA as Annexure P-10. It was then the case of the applicant so pleaded in para 4.9 that in the year 2006 the 2nd respondent issued a memorandum dated 10.4.2006 to the 5th respondent directing him to explain as to why the order dated 22.6.2004 be not withdrawn. Copy of the said memorandum was placed on records as Annexure P-11. Two more memoranda dated 11.10.2006 and 16.10.2006 came to be issued to the 5th respondent directing him to appear before the 2nd respondent for personal hearing in the case of benefit of notional promotion granted to him. It was then the positive case of the applicant that the matter remained under consideration with the 1st and 2nd respondents, and it was in the month of February, 2007 that the 2nd respondent after examining the matter thoroughly, wrote a letter dated 15.2.2007 to the 4th respondent, relevant part whereof reads as follows:
On his promotion a representation was received. The representation was examined in consultation with Services Deptt. The Services Deptt. opined that the said Shri P.S. Behl was permanently absorbed in the Transport Department against a permanent post of Inspector (Enf.) and consequently his lien stands terminated on absorption in the Transport Department under the provisions of FR-14-A(d). Consequently, the granting of pro forma promotion by the Delhi Police to the Rank of Inspector in the pay scale of Rs.2000-3200 (Pre-revised) and requesting the Transport Deptt. to accommodate him against the post equivalent to the status fo Inspector in the pay scale of Rs.2000-3200 (Pre-revised) w.e.f. 18.08.1994 was not in accordance with the rules as the Delhi Police could consider such request only when an official held a valid lien on his post in the parent cadre. In any case pro forma promotion and its consequences are applicable only in the parent cadre when the officer report back in his parent Deptt. either from deputation/training etc. and could not be made applicable to the official who was already permanently absorbed in another deptt. outside his parent cadre before his turn came in parent cadre.
In view of the above, it is quite evident that while dealing with the case of Sh. P.S. Behl, the Transport Deptt. as well as Delhi Police have not correctly interpreted the relevant provisions of lien, absorptions and pro forma promotion under the Next Below Rule and as a result erroneous orders have been issued which has caused administrative complications and anomalies in the cadre of Enforcement officials and which is required to be rectified in terms of advice of Services Deptt., Govt. of NCT of Delhi. Therefore, either the order No.33679-710/CB-1 dated 31.05.2004 issued by the Delhi Police at an appropriate level giving parity with his batch mates. In response to the letter aforesaid, the 4th respondent addressed a letter dated 14.6.2007 to the Principal Secretary-cum-Commissioner (Transport), i.e., 2nd respondent, stating therein, The lien allowed by the Transport Department became the sole base for grant of pro forma promotion under Next Below Rule. Therefore, before withdrawing this Hdqrs. Notification No.33677-710/CB-1 dated 31.05.2004, the Transport Departments order whereby Sh. P.S. Behl was allowed lien for reverting back to Delhi Police is required to be withdrawn/ modified. Besides, there is no rule which provides taking back of Shri P.S. Behl in Delhi Police at this stage. It was then the case of the applicant that the matter still remained under consideration with the 2nd respondent till the month of March, 2009. A circular dated 20.3.2009 came to be issued by the 2nd respondent, which contained the tentative seniority list of Enforcement Officers of Transport Department as on 13.3.2009. Objections were required to be furnished to the administrative branch within thirty days. It was on receipt of the said circular that the applicant furnished his objections/ representation to the 2nd respondent within stipulated period. The objections/representation was on the same lines as that of the earlier objections/representation. Para 4.15 of the OA reads as follows:
4.15 That after submitting the objections/ representation dated 15.04.2009 (Annexure P-17) to the circular dated 20.03.2009 (Annexure P-16), the matter remained under consideration by the respondent No.2/competent authorities. However, resultant appraisal of the latest was never given to the applicant and as such the applicant awaited the response with the hope that the erroneous orders passed earlier in this behalf stand rectified accordingly. Contrary to the hopes of the applicant; the applicant was stunned and shocked when he was served with a copy of order/circular bearing reference No.F.No.1(29)/2006/Admn./Tpt,/Part-IV/238- 48 dated 12.01.2010 issued by the respondent No.2 with the subject: Final Seniority List of Enforcement Officer (EO) of Transport Department as on 01.01.2010 (Annexure P-1). [ Pleadings as mentioned above are contained in paras 4.7 to 4.15 of the OA.
5. Insofar as the official respondents are concerned, they pleaded in reply to paras 4.6 to 4.11 that the representation of the applicant against granting the benefit of notional seniority to the 5th respondent with effect from 18.8.1994 was referred to the Services Department and the Secretary Services opined that the officiating promotion given by the Delhi Police to the 5th respondent after 18.5.1994 was not justified, and that the Transport Department also sought advice of the Services Department. In reference to the advice aforesaid, the Transport Department issued memorandum dated 10.4.2006 to the 5th respondent directing him to explain as to why the order dated 22.6.2004 be not withdrawn, being in violation of the rules. He was given opportunity of personal hearing by the Commissioner (Transport), which could not, however, materialize, as the said Commissioner was busy in official meetings, and in between the 5th respondent approached the Chief Secretary of GNCTD and submitted before him his representation. On the advice of Services Department, the Transport Department requested the Delhi Police vide letter dated 15.2.2007 to review their order dated 31.5.2004. In response to the letter aforesaid, the Delhi Police informed that the lien allowed by the Transport Department became the sole base for granting pro forma promotion under NBR and also that there was no rule which provided taking back the 5th respondent at that stage. The other averments made by the applicant in the paras referred to above are also not in dispute. In reply to para 4.15 it was pleaded that the representation/objection raised in reference to issuance of tentative seniority list of Enforcement Officers dated 15.4.2009, had been minutely examined and as no gravity was found for placement of the name of the applicant before that of the 5th respondent, the facts were placed before the competent authority in the Transport Department and final seniority list of Enforcement Officers was issued accordingly.
6. Insofar as the 5th respondent is concerned, the averment of the applicant that the matter remained under consideration of the Transport Department till March, 2009, had been denied. As regards orders dated 31.5.2004 and 22.6.2004, it was pleaded that the applicant had himself preferred representation dated 30.6.2004 against the said orders, and that in the event he had not received any response to the said representation, he ought to have assailed the orders aforesaid in the year 2004 itself, instead of approaching the Tribunal at a belated stage.
7. What clearly emerges from the factual scenario as mentioned above is that the applicant in very close vicinity of the orders dated 31.5.2004 and 22.6.2004, had made representation. It is not a case where representation of the applicant might have evoked no interest with the official respondents. The same was considered and found to have merit. We have given in details the way and manner the representation of the applicant came to be considered, and the orders passed thereon from time to time. Present is a case where not only that the respondents were actively considering the representation of the applicant, but all through favourable orders were being passed. So much so, the 5th respondent was issued memoranda as to why the orders giving him promotion from the dates as mentioned above should not be recalled. The fact that the matter was under consideration with all kinds of favourable comments, advices and orders, as mentioned above, is not in dispute. We are of the considered opinion that a citizen who may have been assured by positive orders having been passed from time to time that justice is likely to be done to him, could well await the final outcome of the matter, and in these circumstances, the terminus a quo for limitation would not commence. To test what we have observed above, we may mention that if perhaps, at a stage when the 5th respondent was being issued memoranda for recalling earlier orders, the OA was filed, would a court or tribunal not dismiss the original lis being premature? In our view, such would be the order passed, or, at the most, a direction could be issued to the respondents to take a final call in the matter as expeditiously as possible. We may refer to a decision dated 22.11.2008 that we recorded in OA No.2456/2008 in the matter of Arun Kumar Srivastava v Union of India & others, which was dismissed being barred by time. The facts of the case aforesaid reveal that the applicant before us and petitioner before the High Court in WP(C) No.502/2009 had made representation against the seniority list for the first time in the year 1998, which was rejected on 25.8.1998. He did not approach the court at that time, but represented again and approached the court in the year 2004. The respondents acted upon the second representation made by him on 21.1.2004 and processed his case. So much so, the respondents sent his representation to Under Secretary, Ministry of Culture on 5.10.2007 to obtain the advice of DOP&T in that regard. The High Court summoned the original records and recorded that perusal thereof would show that after receiving the aforesaid clarification, there was noting made in the file that further necessary action in accordance with the advice of DOP&T be taken. However, there was further noting dated 21.10.2008 seeking comments of UPSC through Ministry of Culture, and that too for making further submissions. On the facts as mentioned above, the Honble High Court observed, It appears that the issue according seniority to the petitioner, which was under consideration, was derailed and file proceeded on different aspects thereafter. However, it is on record that after receiving clarifications dated 24.07.2007, noting was made in the file to give effect thereto. The points on which clarification was to be given have been mentioned in the order of the High Court, and it is then observed, As per clarification to (i) above, it was clearly opined that the seniority of a direct recruit employee is to be reckoned, accordingly, with reference to the year of availability, and that would be the actual year of the appointment. It was also observed that the petitioner was appointed to the post of Archivist in the year 1989, and he was seeking seniority above the 4th respondent, who was appointed to the said post on 25.10.1990, and that the 4th respondent had applied against a post which arose much after the appointment of the petitioner, and that the said respondent was appointed also more than one year after appointment of the petitioner. It was further observed that had the aforesaid clarifications been accepted, the petitioner would have a prima facie case on merits. In consideration of the facts as mentioned above, the order passed by the Tribunal was set aside and the matter was remitted to it to adjudicate upon the dispute after obtaining replies from the official respondents as well as the 4th respondents, and the issue of limitation, it was observed, needed to be decided only thereafter on the basis of facts coming on record. Surely, the order of this Tribunal was set aside on the ground that the matter as regards representation of the applicant, which was second in series thereof, made after six years of rejection of the first representation and was considered, would not entail, even though prima facie, dismissal of the lis being barred by time. Surely, if favourable consideration of the cause of an employee would be irrelevant, there was no question of the order of the Tribunal being set aside and its remittance for decision afresh. What can clearly be gathered from the orders of the High Court is that when a citizen is made to believe by some positive action or orders passed by the authorities that his case is under consideration, and when favourable advice, comments or orders are also passed, the terminus a quo for limitation would not commence. The present case is on far better footings. All through, the respondents had found merit in the plea raised by the applicant in his representation. The advice, comments and orders were also in favour of the applicant. As mentioned above, the 5th respondent was even issued memoranda to show cause as to why the orders passed in his favour be not recalled. In these circumstances, when the respondents had themselves kindled hope in the mind of the applicant that justice would be met to him, irrespective of expiry of time provided in Section 21 of the Administrative Tribunals Act, 1985, after which the OA would be barred by time, his case had to be considered on merits. As mentioned above, it has been the positive case of the applicant, not denied by the official respondents at least, that his representation was under active consideration all through, and it is only when the tentative seniority list came about that he was surprised to see that the 5th respondent had been shown senior to him. Immediately, he filed a representation and when the same was rejected, he approached this Tribunal. That apart, representations talked of in Sections 20 and 21 of the Act of 1985 are such representations which are permissible under service rules. Relevant parts of Sections 20 and 21 read as follows:
20. Application not to be admitted unless other remedies exhausted (1) A Tribunal shall not ordinarily admit an application unless it is satisfied that the applicant had availed of all the remedies available to him under the relevant service rules as to redressal of grievances.
(2) For the purposes of sub-section (1), a person shall be deemed to have availed of all the remedies available to him under the relevant service rules as to redressal of grievances, -
(a) if a final order has been made by the Government or other authority or officer or other person competent to pass such order under such rules, rejecting any appeal preferred or representation made by such person in connection with the grievance; or
(b) where no final order has been made by the Government or other authority or officer or other person competent to pass such order with regard to the appeal preferred or representation made by such person, if a period of six months from the date on which such appeal was preferred or representation was made has expired. 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. [ Perusal of the provisions contained in Sections 20 and 21 of the Act of 1985 would manifest that terminus a quo for limitation would commence in case of representations only when there is a provision in the rules to do so. If, therefore, service rules may be silent as regards provisions to make representation, provisions of Section 21 shall not be attracted. Reference in Section 21 is to representation such as is mentioned in clause (b) of sub-section (2) of section 20, and the said provision clearly talks of remedies available to an employee under the relevant service rules. This precise question for determination came before us in Mahaveer Singhvi v Union of India & Others (OA No.1228/2006 decided on 23.4.2007) wherein, we held as follows:
The words all the remedies available mentioned in Section 20 would imply a representation, or an appeal provided under the Service Rules. In the present case, it is admitted position that the representation made by the applicant in the year 2004 was not such which may have been provided under the rules. The limitation would thus not commence from filing of the representation. The applicant, in an ordinary representation not provided under rules, would be governed by general law, and the plea of limitation, if at all, would commence only from rejection of the representation. In the present case, however, as mentioned above, far from rejecting the representation of the applicant, it was given a serious thought and orders from time to time were passed supporting the view of the applicant, which resulted into issue of memoranda to the 5th respondent to show cause as to why orders passed in his favour be not withdrawn. It is only when tentative seniority came to be framed that the applicant came to know that even though no orders rejecting his representation had been passed, nor the orders passed by the respondents on the legal advice sought from time to time had been set at naught, and despite the development as mentioned above, the respondents were bent upon giving effect to their orders as regards promotion of the 5th respondent, that he made representation and thereafter filed the present OA. Admittedly, if the period of limitation is reckoned from that, present OA would be well within limitation.
8. In all fairness to the counsel representing the review applicant, we may state that on the basis of the plea raised in the review application, it has been urged that in response to an RTI query, the review applicant was informed by the Transport Department that the applicant in the OA was furnished all the relevant information under RTI Act on 2.11.2007, and that despite that the original applicant did not take any action to assail the orders dated 31.5.2004 and 22.6.2004. We may only state that this argument may run counter to the cause of the review applicant (5th respondent in the OA). If the original applicant would not know as to what had happened to his representation, it could well be a reason for him to agitate the matter in a court of competent jurisdiction, but once he knew that his representations were being considered favourably, it would instill hope in him that justice would be done to him and, therefore, he could well await the decision of the authorities in the matter.
9. Before we may part with this order, we may mention that limitation bars the remedy and not the right, and, therefore, if on facts, two views may be possible, the court always leans in favour of determining the question of limitation in favour of the party whose right may have been thwarted. Even if, therefore, there may be two possible views, it would be more appropriate to take the view that may favour dispensation of justice on merits and protecting the rights of the affected party.
10. In view of the discussion made above, we are of the view that the Original Application filed by Kuljit Singh was within time. That being so, present review application would need dismissal. So ordered.
( Dr. Veena Chhotray ) ( V. K. Bali )
Member (A) Chairman
/as/