Central Administrative Tribunal - Delhi
Shri Arun Kumar Srivastava vs Union Of India Through on 22 November, 2008
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH OA No. 2456/2008 New Delhi, this the 22nd day of November, 2008 HONBLE MR. JUSTICE V.K. BALI, CHAIRMAN HONBLE MR. L.K.JOSHI, VICE CHAIRMAN (A) Shri Arun Kumar Srivastava, Age 53 years, S/o Late Shri R.K. Srivastava, R/o B-8, Pocket-VI, Kendriya Vihar-II, Sector-82, Noida-201304 Applicant (By Advocate: Shri S.K. Gupta) Versus 1. Union of India through The Secretary, Department of Culture, Shastri Bhawan, New Delhi 2. Director General, National Archives of India, Janpath, New Delhi 3. Secretary, Union Public Service Commission, Dholpur House, Shahjahan Road, New Delhi-11 4. Shri Syed Farid Ahmad, Presently working as Archivist (General), (service to Respondent be effected through Director General, National Archives of India, Janpath, New Delhi) Respondents ORDER
Mr. L.K.Joshi, Vice Chairman (A) Shri Arun Kumar Srivastava, the Applicant in this OA is aggrieved by the fact that the fourth Respondent herein, Shri Syed Farid Ahmad has wrongly been shown above him (the Applicant) in the seniority list. Both the Applicant as well as the fourth Respondent are working in the post of Archivist (General) in the National Archives of India (NAI). Five posts of Assistant Director in the NAI have fallen vacant, which would be filled up by promotion shortly. The Applicant also takes exception to the fact that the posts are going to be filled up without finalizing the seniority list of Archivists. The following reliefs have been sought :
i) to declare the action of the respondents illegal by which the respondent No. 4 has been placed over and above the applicant in the seniority list in the grade of Archivist (General) and same may kindly be set aside.
ii) to set aside the action of the respondent No. 2 by which, without finalizing the seniority list of feeder grade i.e. the grade of Archivist (General), the process of promotion has been initiated.
iii) to direct the respondents to place the applicant over and above the respondent No. 4 in the grade of Archivist (General) and consider the case of the applicant for promotion to the post of Assistant Director and too after finalization of the seniority list.
iv) to pass such other and further orders which this Honble deem fit and proper.
2. The facts, as narrated in the OA, are that the second Respondent sent a requisition to the Union Public Service Commission (UPSC), the third Respondent on 23.02.1989 for filling up three posts of Archivists (General). The posts were advertised and the Applicant applied for these posts. On 16.11.1989, the second Respondent again sent a requisition for one post of Archivist (General) to the third Respondent. The third Respondent sent the recommendation regarding the fourth Respondent to the NAI on 31.08.1990. The recommendation in regard to the Applicant and two other persons was sent by the third Respondent to the second Respondent on 10.12.1990. From the recommendation in respect of the fourth Respondent, which was sent on 31.08.1990, it is seen that he was interviewed on 22.08.1990. The batch in which the Applicant and two other persons were recommended, included 20 candidates who were interviewed on two dates 23.08.1989 and 25.10.1990. The Applicant has stated that he was interviewed on 23.08.1989. On 9.01.1998, the second Respondent issued a provisional seniority list in which the Applicant was placed at serial number 15 and the fourth Respondent at serial number 14. The Applicant submitted his representation on 2.02.1998 to the second Respondent. He stated, inter alia, in this representation that he joined the NAI on 6.03.1991 and was selected for the aforesaid post in an interview which was held in August, 1989. He claimed that his name should, therefore, be at serial number 10 of the seniority list, instead of at serial number 15. On 25.08.1998, the second Respondent rejected the representation of the Applicant stating that the seniority list circulated on 9.01.1998 had been prepared in accordance with the instructions of the Government of India in this regard and owing to that, his request could not be acceded to. Thereafter the Applicant made another representation on 21.01.2004, this time claiming that he should have been at serial number 14 of the seniority list instead of serial number 15. He also stated in this representation that the person, who is shown senior to him (the fourth Respondent) was recommended by UPSC later on 31.08.1990, from which it could be clearly seen that requisition for the post over which the Applicant had been selected had been sent earlier than the requisition for the post over which the fourth Respondent was selected. The Applicant sent another reminder on 6.09.2004 about the decision of the competent authority regarding his representation of 21.01.2004. On 29.12.2004, the second Respondent sent a letter to the third Respondent (UPSC) seeking clarification as follows :
The seniority of the officer has been fixed on the basis of dates of receipt of the nomination from the UPSC and not on the basis of requisition sent to UPSC by this Department. Therefore, this case is of different nature as the dossier for the requisition sent to UPSC later on 16.11.89 was received earlier on 31.8.90 and the dossiers for the requisition sent earlier on 23.2.89 were received later on 10.12.90 by this Department.
In view of the above, UPSC is requested to kindly clarify the position with regard to the seniority of the persons referred to above fixed by this Department is in order or the same is required to be fixed on the basis of requisition sent to you by this Department. Thereafter, the applicant made a representation on 5.05.2008 reminding that his representation of 21.01.2004 has been pending. On 6.06.2008, the third Respondent informed him that the Applicants representation had been sent to the Under Secretary, Ministry of Culture on 5.10.2007 to obtain the advice of the DoP&T in this regard. Meanwhile, on 2.09.2008, the Applicant received a letter from the second Respondent in response to his application under the Right to Information Act, 2005, which is as follows :
(i) The concept of antedated seniority with reference to the year of vacancy has been done away with vide DOPT OM No.35014/2/80-Estt. (D) dated 7th Feb. 1986 and OM No.22011/7/86-Estt.(D) dated 3rd July 1986. This has further been clarified vide this departments OM No.22011/1/2006-Estt.(D) dated 03.03.08. The seniority of a direct recruit employee is to reckon, accordingly, with reference to the year of availability, which would be the actual year of appointment after declaration of results/ selection and completion of pre-appointment formalities, as prescribed.
Further, the general principles of determining seniority specifically provides that the persons appointed as a result of earlier selection stand senior to the persons appointed as a result of subsequent selection.
3. The learned counsel for the Applicant would argue that the Applicant has been making representations to the second Respondent about his seniority in the seniority list of Archivists (General), yet the second Respondent has not yet finalized the seniority list. The second Respondent had issued a tentative seniority list in the year 1998, which was not finalized and, therefore, no cause of action arose for the Applicant. He would contend that the cause of action had arisen now for the Applicant because the second Respondent was going to convene a meeting of the DPC for the post of Assistant Director. It is contended that the Applicant was selected on the basis of the requisition dated 23.02.1989, whereas the fourth Respondent was selected on the basis of a later requisition dated 23.08.1989. It was only because of administrative lapse on the part of the Respondents that the recommendation in regard to the Applicant was received later by the Respondents and the recommendation in regard to the fourth Respondent was received earlier. The Applicant cannot be faulted for this.
4. We have given anxious consideration to the arguments of the learned counsel for the Applicant and have gone through the records of the case with his assistance.
5. The Applicant had made a representation against the provisional seniority list of Archivists (General) on 2.02.1998. This was rejected on 25.08.1998. We are of the considered opinion that the cause of action arose for the Applicant on 25.08.1998, when he took no action to challenge it in an appropriate forum. It is held by the Honourable Supreme Court that by repeated representations, limitation would not abate. In Karnataka Power Corpn. Ltd. through Its Chairman & Managing Director and another v. K. Thangappan and another, (2006) 4 SCC 322, the Honourable Supreme Court has held as follows :
6. Delay or laches is one of the factors which is to be borne in mind by the High Court when they exercise their discretionary powers under Article 226 of the Constitution. In an appropriate case the High Court may refuse to invoke its extraordinary powers if there is such negligence or omission on the part of the applicant to assert his right as taken in conjunction with the lapse of time and other circumstances, causes prejudice to the opposite party. Even where fundamental right is involved the matter is still within the discretion of the Court as pointed out in Durga Prasad v. Chief Controller of Imports and Exports (AIR 1970 SC 769). Of course, the discretion has to be exercised judicially and reasonably. The Honourable Supreme Court has further held as follows :
9. It was stated in State of M.P. v. Nandlal Jaiswal (AIR 1987 SC 251), that the High Court in exercise of its discretion does not ordinarily assist the tardy and the indolent or the acquiescent and the lethargic. If there is inordinate delay on the part of the petitioner and such delay is not satisfactorily explained, the High Court may decline to intervene and grant relief in exercise of its writ jurisdiction. It was stated that this rule is premised on a number of factors. The High Court does not ordinarily permit a belated resort to the extraordinary remedy because it is likely to cause confusion and public inconvenience and bring, in its train new injustices, and if writ jurisdiction is exercised after unreasonable delay, it may have the effect of inflicting not only 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.
10. It has been pointed out by this Court in a number of cases that representations would not be adequate explanation to take care of delay. This was first stated in K.V. Raja Lakshmiah Setty v. State of Mysore (AIR 1967 SC 993). This was reiterated in Rabindra Nath Bose case (AIR 1970 SC 470) by stating that there is a limit to the time which can be considered reasonable for making representations and if the Government had turned down one representation the making of another representation on similar lines will not explain the delay. In State of Orissa v. Pyarimohan Samantaray (AIR 1976 SC 2617) making of repeated representations was not regarded as satisfactory explanation of the delay. In that case the petition had been dismissed for delay alone. (See State of Orissa v. Arun Kumar Patnaik (AIR 1976 SC 1639) also. (emphasis added)
6. The limitation under the Administrative Tribunals Act, 1985 is governed by Section 21, which is extracted below :
21. Limitation (1) A Tribunal shall not admit an application, -
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.
7. The final order in respect of the Applicants representation had been made on 25.09.1998, when his representation regarding his position in the seniority list issued on 9.01.1998 had been rejected. The Applicant has not made any representation within one year from such date. He has not even sought condonation of delay by giving any application for delay of more than a decade in approaching the Tribunal. Unless such an explanation is given, the Tribunal cannot condone the delay. Reliance is placed on State of Karnataka and others vs. S.M. Kotrayya and others, 1996 (6) SCC 267 in which the Honourable Supreme Court held thus :
8. Thus considered, we hold that it is not necessary that the respondents should give an explanation for the delay which occasioned for the period mentioned in sub-sections (1) or (2) of Section 21, but they should give explanation for the delay which occasioned after the expiry of the aforesaid respective period applicable to the appropriate case and the Tribunal should be required to satisfy itself whether the explanation offered was proper explanation. In this case, the explanation offered was that they came to know of the relief granted by the Tribunal in August 1989 and that they filed the petition immediately thereafter. That is not a proper explanation at all. What was required of them to explain under sub-sections (1) and (2) was as to why they could not avail of the remedy of redressal of their grievances before the expiry of the period prescribed under sub-section (1) or (2). That was not the explanation given. Therefore, the Tribunal is wholly unjustified in condoning the delay.
8. It is further the case of the Applicant that he is within the zone of consideration for five posts of Assistant Director for which selection has to be made. Under these circumstances, there is no prejudice caused to the Applicant even if the seniority list of Archivist (General) has not been finalized by the Respondents. Further, it is merely on the basis of surmise that the Applicant has stated that selection for five posts of Assistant Director in NAI (second Respondent) would be made. It is stated in paragraph 4.15 of the OA that [I]t is reliably understood that, the office of respondent No. 2 has sent the case of the various individuals including applicant and respondent No. 4 for the purposes of filling up five posts of Assistant Director. Merely on the basis of this statement, we cannot consider the prayer of the Applicant to set aside the process of promotion, which is, at the moment, imaginary.
9. On the basis of above considerations, we find the OA to be devoid of merit. The OA is dismissed in limine.
( L.K. Joshi ) ( V.K. Bali )
Vice Chairman (A) Chairman
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