Central Administrative Tribunal - Ahmedabad
Prabhakant Ayodhya Prasad vs Union Of India (Uoi) And Ors. on 12 March, 2001
JUDGMENT A.S. Sanghvi, Member (J)
1. Heard Mr. P.H. Pathak for the applicant. Mrs. M.R. Bhatt for the respondents No. 1 and 2, Mr. Girish Patel with Mr. Shalin Mehta for respondents No. 3 to 5. Mr. M.S. Trivedi for respondents No. 6 and 7 and Mr. S.B. Vakil with Mr. A.S. Vakil for respondent No. 8.
2. The perpetual dispute of seniority between direct recruits and the promotees is once again brought to the force in this O.A. filed by some of the direct recruits Assistant Commissioners of Income Tax. Their grievance is that though the I.R.S. Rules 1988, provide for maintaining the ratio of 1:1 for fixing the seniority of direct recruits vis-a-vis promotes, the respondent No. 1 and 2 had not maintained this ratio and had given enblock promotion to 176 promotes in the year 1990 showing them senior to the direct recruits of the 1991. According to them, they had appeared in the Combined Civil Service Examination, 1990 conducted by the UPSC and on successful clearing the same, were selected and appointed as Assistant Commissioners of Income Tax (junior scale) in July, 1991. According to the applicants though they were selected and appointed in July/August 1991, the respondent Nos. 1 and 2 in the guise of relaxing the quota rule had subsequently promoted 176 Income Tax Officers as Assistant Commissioners of Income Tax and had given them enblock seniority over the applicants. Their contention is that this has been done in complete disregard of the existing rules and as such the whole exercise is arbitrary, illegal, mala fide and violative of Articles 14 and 16 of the Constitution of India. The Indian Revenue Service Association had therefore filed O.A. No. 2404 of 1991 before the Principal Bench of the CAT, New Delhi on 14.10.91 and had obtained an ad interim ex-parte order on the same day restraining the respondents from taking any further action in pursuance of the DPC meeting held on 9th instant for aperiod of 14 days. According to them though 127 candidates were available as direct recruits in August 1991, the respondents had filed an affidavit before the Principal Bench suppressing the availability of 127 direct recruits which were allotted to I.R.S. in Finance Ministry in August, 1991. In view of this suppression of the facts, the Principal Bench had modified its order on 29.10.91 by permitting the respondents to make the appointment to I.R.S. by promotion, subject to the condition that for each promotee, a slot of direct recruitee be kept in accordance with the rules. The applicants have further contended that they were waiting for the decision in the above O.A. filed before the Principal Bench by the Association on behalf of the members. When they inquired about the order passed in O.A. 2404 of 91, they came to know that the application was dismissed in default and no steps were taken by the Association to revive the O.A. by filing appropriate proceedings. They have therefore approached this Tribunal by filing the instant O.A.
3. The applicants have further contended that the respondents were bound to maintain slots for the direct recruits as per the directions of the Principal Bench and though 127 direct recruits were available for filling up, those slots, the respondents have not acted as per the directions of the Tribunal and had illegally given enblock seniority to the promotes. They have maintained that the seniority list prepared by the respondents is incomplete unconstitutional, ambiguous and void ab initio and requires to be quashed and set aside. It is further contended by them that senior scale has been given to them w.e.f. 1.12.95 subject to the final outcome in O.A. 2404 of 91 and this has resulted into the loss of two months seniority in as much as all the previous batches have been given senior scale exactly at the end of four years while the same is not followed for the succeeding batches. On all these grounds the applicants have prayed for following reliefs:-
(A) Be pleased to declare the action of the respondent Nos. 1 and 2 not following ratio of 1:1, as per rules to fill up the post of Asstt. Commissioner (Jr. Scale) of Income Tax and not fixing the seniority of the applicant as per the above ratio as arbitrary, illegal, unjust and violative of Articles 14 and 16 of the Constitution of India and direct the respondents to fix the seniority of the applicants as per the rules stated above and grant all consequential benefits with 18% interest.
(B) Be pleased to declare that respondent Nos. 1 and 2 were under obligation to implement the ratio of 1:1 between direct recruits and promotes, from the date of appointments of the applicants and further declare that the respondents No. 1 & 2 have intentionally not followed the same and favour the promotes and therefore direct the respondents to fix the seniority of the applicants as per the rule of 1:1 and grant all the consequential benefits to the applicants.
(C) Any other relief to which this Hon'ble Tribunal deems fit and proper in the interest of justice.
4. The respondent Nos. 1 and 2 and respondent Nos. 3 to 5 have resisted this O. A. by their separate replies. The respondent No. 6 and 7 have also filed their separate reply. The respondent No. 8 has however supported the case of the applicants and has not filed any reply. Though the respondent Nos. 1 to 7 have filed separate replies, their main contentions are practically same. All of them have contended that the O.A. is barred by limitation and that the same is not maintainable in view of earlier proceedings bearing O.A. No. 2404 of 91 having been dismissed in default and not restored to file. It is also contended that the O.A. is barred due to non-joinder of necessary parties as the 176 officers who were promoted to the grade of Assistant Commissioners of Income Tax and their promotion is challenged by the applicants in this O.A., are not joined as parties. According to them all the 176 promotes are directly interested in this O.A. as their promotion to the post of Assistant Commissioners would be affected by the result of this O.A. Apart from these technical contentions, it is also contended by the respondents that prior to the coming into force of IRS Recruitment Rules, 1988 - on account of the directive of the Supreme Court - the recruitment to the grade of the Assistant Commissioner of the Income Tax was made under the 1973 rules, according to which the quota of the promotes was kept at 33.1/3% while that of the direct recruits was maintained at 66.1/3%. In the case of B.S. Gupta v. Union of India, AIR 1972 SC 2627 and thereafter again in the same case of B.S. Gupta known as B.S. Gupta IInd, reported in AIR 1974 SC 1618, the Supreme Court gave certain directions to the Government to revise the Recruitment Rules of the Assistant Commissioners (junior scale) and accordingly the old rule with two years weightage to the promotes was revised by new seniority rules in which the promotes were allotted the first slot and the direct recruits were allotted the second slot in the quota of 50:50. Ultimately the weightage of two years available with the promotes was also done away with. However in the year 1990, it was found that there were 500 vacancies in the service which the department was unable to fill up unless direct recruitment was increased substantially. The department had been sending recommendations to the UPSC for recruiting 150 officers and promoting equal number of Group B officers to Group A for three years prior to 1990 and it was felt that for a service having 2800 duty posts and 460 posts of various reserves, even this intake was on the higher side. It was therefore not possible to increase the recruitment quota. The department of Personnel and Training had therefore suggested at one time that for ensuring the recruitment of 100 officers per year, the department should send a requisition for 125 every year. The detail exercise was thereafter made and it was found that even after the intake of 100 officers every year, it would not be possible to fill up the above gap and at the end of three years, the gap would come down to 332. It was also observed that more than 450 Group B officers at that time had put in more than 10 years of service as against the eligibility requirement of three years for promotion to Group A. In these circumstances, a decision was taken to fill up a part of this gap by promoting Group B officers to Group A as a one time measure in relaxation of rules. Earlier also in the year 1983-84, 258 posts of Group A were filled by promoting Group B officers in addition to the normal quota of promotion. Since Rule-15 of the IRS Rules 1988, empower the Government for the relaxation in the rules, decision was taken in consultation with the Law Ministry and UPSC to exercise this power of relaxation and on the advise of the UPSC, 176 officers from Group B were given enblock promotion in relaxation of the rules: They have contended that the proposal to make promotion of 176 officers to the grade of Assistant Commissioners of Income Tax was examined in consultation with the Department of Personnel and Training, UPSC and also approved by the Finance Ministry vide O.M. No. 2 A-1205/11/90-Ad. VI dated 5.11.90. The UPSC vide its letter dated 20th March, 1991 had agreed for diversion of 176 vacancies from direct recruitment quota in the grade of Assistant Commissioner of Income Tax (which is the actual shortfall in direct recruitment quota for the last 10 years). This relaxation was done as a one time measure and the inter se seniority of direct recruits and promotes during 1990 were regulated as per para-IV of the office memorandum dated 5.11.90. After the decision was taken, a Departmental Promotion Committee Meeting to consider promotion of eligible Income Tax officers against the aforesaid 176 posts of Assistant Commissioner of Income Tax was held on 9th/10th/11th/14th October, 91 and the DPC has recommended a panel of 180 officers and their seniority was fixed as advised by the Department of Personnel and Training below the direct recruits appointed to Assistant Commissioners of Income Tax (Group A) Junior Time Scale and also below promoters who were adjusted in roster of seniority with such direct recruits under Sub-rule (iii) of Rule 9 of IRS Rules 1988. The respondents have maintained that there was no illegality or arbitrariness involved in carrying out this exercise and the Government has exercised powers available to it under the rules. They have also pointed out that the IRS Association had challenged this recruitment vide O.A. No. 2404 of 91 but the same has come to be dismissed in default by the Principal Bench of the CAT, New Delhi vacating the interim orders granted earlier. No steps were thereafter taken by the applicants of that O.A. to restore the O.A. to file and therefore this O.A. filed by the present applicants is clearly not maintainable. They have maintained that the departmental had fixed the inter se seniority of 176 promotee officers at the bottom of the 1990 batch IRS officers in accordance with the general instructions of the department of Personnel and Training contained in their O.M. No. 35014/2/80-Estt. (D) dated 7.2.1986. They have also denied the allegation that the applicants were discriminated in granting senior scale to the 1991 batch IRS officers and have contended that these officers were given senior scale with effect from 1.12.95 as most of the officers of 1991 batch had joined the post of Assistant Commissioner of Income Tax in November/December 1991.
5. The applicants have filed rejoinder to the reply of the respondents and the respondents have also filed sur-rejoinder. We may also point out at this juncture that after the O.A. was filed the applicants had moved the M.A bearing No. 769 of 1998 for condonation of delay in filing the O.A. and this M.A is also being decided along with this O.A. The respondent NO. 1 & 2 had moved M.A 752 of 2000 on dated 14.12.2000 for vacation of the interim relief and for early hearing of the O.A. We may also mention that the interim relief granted at the time of the filing of the O.A. was later on modified on dated 4.2.2000 making it clear that the promotions to Dy. Commissioner onwards should be made strictly on the basis of the seniority list of the Assistant Commissioners maintaining the ratio 50:50 between promotes and the direct recruits and that all promotions made after filing of this O. A. shall be subject to the result of this O. A. We may also mention that Mr. P.K. Ambastha, General Secretary of IRS Association had moved M.A. bearing No. 717 of 2000 on dated 14.11.2000 for being joined as a party and as per the order dated 7.12.2000 the IRS Association was permitted to be joined as respondent No. 8. At the fag end of the arguments of both the parties, the applicants have moved M.A. 59 of 2001 for amendment to the O.A. This M.A was stoutly opposed by the respondents on the ground of limitation as well as not being bonafide and changing the nature of the O.A. The same is heard and kept for decision along with the main O.A.
6. We have heard the learned advocates of both the parties at length. The applicants as well as respondent No. 8 have given written submissions also. Mr. Girish Patel, as well as Mrs. M.R. Bhatt appearing for the respondents had at the out set raised preliminary objections to the maintainability of this O.A. According to them the O.A. is not maintainable on the following three grounds:
1. The applicants are precluded from filing the fresh O.A. in view of the earlier O.A. bearing No. 2404 of 91 having been dismissed in default by the Principal Bench, New Delhi and no steps having been taken for the restoration of the same.
2. The O.A. is barred by limitation as the cause of action of this O.A. has arisen in 1991 and the delay in filing the O.A. after the expiry of the period of limitation is not explained.
3. The O.A. is barred by non-joinder of necessary parties as all the affected 176 promotes are not joined as parties.
7. We shall first be dealing with the above preliminary objections one by one. It is an undisputed position that the four applicants of this O.A. are the direct recruits of the 1991 batch. A bare reading of the O.A. as well as the rejoinder of the applicants leaves no room for doubt that their main grievance is about the promotion given to 176 Group B officers of the Income Tax to the cadre of Assistant Commissioner (junior scale) by the respondent Nos. 1 and 2 and placing them enblock seniors over them. According to them by giving such enblock promotion to these officers the respondents had not followed the ratio of 1:1 as provided in the IRS Rules, 1988 and they have been deprived of their seniority in the cadre of the Assistant Commissioner. It is an admitted position that the orders of the enblock promotion of 176 officers to the grade of Assistant Commissioner of Income Tax (junior scale) were passed by the respondent on 8.11.91 after the DPC had selected them for such appointment. There is also no dispute that this was done by the respondents in relaxation of the rules. The relief prayed for in this O.A. are as follows:-
(A) Be pleased to declare the action of the respondent Nos. 1 and 2 not following ratio of 1:1, as per rules to fill up the post of Asstt. Commissioner (Jr. Scale) of Income Tax and not fixing the seniority of the applicant as per the above ratio as arbitrary, illegal, unjust and violative of Articles 14 and 16 of the Constitution of India and direct the respondents to fix the seniority of the applicants as per the rules stated above and grant all consequential benefits with 18% interest.
(B) Be pleased to declare that respondent Nos. 1 and 2 were under obligation to implement the ratio of 1:1 between direct recruits and promotes, from the date of appointments of the applicants and further declare that the respondent Nos. 1 & 2 have intentionally not followed the same and favour the promotes and therefore direct the respondents to fix the seniority of the applicants as per the rule of 1:1 and grant all the consequential to the applicants.
8. It is therefore quite obvious that what is challenged by the applicants in this O.A. is the action of the respondents in giving enblock promotion to 176 promotes and not following the ratio of 1:1 as per the rules to fill up the post of Assistant Commissioner of the Income Tax. In sum and substance, the challenge is only to the relaxation of the rota rules i.e., not giving the seniority as per the 1:1 rotational turn of the direct recruit applicants. According to Mr. Girish Patel, learned Advocate for the respondents, the same action of the respondents of giving promotion to 176 promotes and not following the ratio of 1:1 as per the rules was challenged by the IRS Association before the Principal Bench of the CAT at New Delhi by filing O.A. No. 2404 of 91 and the applicants themselves have relied on the interim relief granted in that O.A. He has pointed out that the applicants in para 13 of their O.A. have referred to this O.A. No. 2404 of 91 having been filed before the Principal Bench, New Delhi seeking direction of prohibiting the respondents from appointing/inducting any officer in the early stage or the IRS in violation of the quota/rota rules prescribed in the said rules and further for the issuance of the writ of certiorari or any other writ or direction quashing the minutes of the meeting of the DPC held on 9th October, 1991 onwards. He has further submitted that this O.A. bearing No. 2404 of 1991 was subsequently dismissed in default by the Principal Bench, on dated 1.9.97 and the orders (Annexure-D) suggest that the applicants therein had the knowledge of the dismissal in default of the O.A. and their counsel had even mentioned the matter before the Bench on the same day. He has further submitted that on the prayer of the restoration of the O.A. having been not allowed on that day, no further actions were taken by the applicants therein to get the O.A. restored to file. Now after a period of a year, this O.A. is sought to be moved on the same cause of action praying practically the same relief by the members of that Association. He has empathetically submitted that such an O.A. is therefore clearly not maintainable as the fresh O.A. on the same cause of action is barred.
9. On the other hand Mr. P.H. Pathak, learned Advocate for the applicants as well as Mr. S.B. Vakil, learned Advocate for the respondent No. 8 have submitted that applicants were not the members of the IRS Association who had moved the O.A. before the Principal Bench and were not aware of the proceedings of that O.A. According to them dismissal of that O.A. in default by the Principal Bench does not preclude the filing of this O.A. by the applicants and in any case the O.A. before the Principal Bench was not decided on merit. They have also tried to contend that the cause of action of both the O.A.s are different and since the parties were different the present O.A. cannot be rejected on the ground of the same being precluded. However in his written submissions Mr. Pathak, learned Advocate for the applicants has stated as under:-
1. The power exercised by the respondent No. 1 to relax the quota and rota rules is ultra virus of the Articles 14 and 16 of the Constitution of India.
2. That even in the case of relaxation in quota rules is accepted there is no approval or finalisation of the rota rule i.e. to finalise the seniority by respondent No. 1.
3. That in no circumstances the promotes, who are granted the benefits of relaxation can be given the seniority above the direct recruits i.e. applicants who were already in service on the date of consideration of the case of the promotion of the promotes.
That the applicants have filed before Hon'ble Tribunal and challenged the above action of the respondents. It is pertinent to note that use of powers by the respondents which was ex facie illegal, was challenged by the Indian Revenue Services Association before the Principal Bench of the Tribunal.
4. That the Hon'ble Tribunal has found prima facie case in favour of these applicants and directed the respondents to maintain the ratio 50:50 or 1:1 between promotes and the direct recruits.
10. This written submissions clearly suggest that the cause of action on which the earlier O.A. bearing No. 2404 of 91 was filed is the same cause of action on which the present O.A. is filed and that the relief prayed in both the O.A.s are practically identical. This becomes more clear when we examine the pleadings of the parties. In para 16 of the O.A. it is stated in categorical terms that the applicants were waiting for the decision in the above mentioned application which was filed by the Association on behalf of the members. It is further stated that it has come to the notice of the applicants recently when they inquired about the order passed in original application No. 2404 of 91 before the Principal Bench, they came to know that the application filed by the Association is dismissed in default and no steps were taken by the Association to revive the application by filing an appropriate proceedings. Therefore the applicants have to approach this Hon'ble Tribunal by way of this application. That the applicants have received the papers and the orders from the Principal Bench and found that the issues raised by the Association are not decided by the Hon'ble Tribunal and therefore the applicants have to file the application before the Tribunal.
11. Furthermore, M.A 717 of 2000 was moved by Mr. P.K. Ambagha, General Secretary, IRS Association and Ajit Kumar Singh, Member, Executive Committee of IRS Association for being joined as parties respondents in this O.A. It has been stated in unequivocal terms in para 4 of the application that the applicants of the captioned Original Application are/were the members of the local unit of the IRS Association. Prior to that in para 3 of the application it is mentioned that the local units are formed where there are 15 or more members and each of the local units may elect its own office bearers as per Article 24 and Articles of Association.
12. The applicants of this O.A. had not objected to the M.A being allowed and the third party applicants of the M.A 717 of 2000 being joined as party-respondent. They had not filed any reply to this M.A thereby not rebutting the averments of the third party applicants that they are/were the members of the local units of the IRS Association. This application on the part of the respondent No. 8 coupled with the averments of applicants in para 16 of the O.A. leave no room for doubt that the applicants are/were members of the IRS Association and they not only knew about the filing of the O.A. 2404 of 91 on their behalf but also were eager to find out the result of the same and were awaiting the decision in that O.A. No. 2404 of 91. This admission on the part of the applicants as well as respondent No. 8 clearly suggest that they were the applicants of 2404 of 91 or that the IRS was litigating on behalf of the applicants and for the interest of the applicants. It is pertinent to note that no where in this O.A., the present applicants have denied being members of IRS Association. Under the circumstances, it cannot be argued that the applicants not being party in earlier O.A. i.e. 2404 of 91, the dismissal of O.A. No. 2404 of 91 does not come in their way in filing the fresh O.A. before this Tribunal.
13. In the case of Suraj Rattan Thirani and Ors. v. Azamabad Tea Co. Ltd., and Ors., AIR 1965 SC 295, the Supreme Court has laid down that the term 'cause of action' is to be construed with reference rather to the substance than to the form of action. It is further laid down therein that the words "shall be precluded" do not create merely a personal bar against the plaintiff in the first suit. The word 'plaintiff includes his assignee and the legal representative. The Supreme Court has also laid down test for considering what should constitute cause of action and has observed in para 30 as under:-
"Order 9 Rule 9 of Civil P.C. precludes a second suit in respect of "the same cause of action" where the first suit is dismissed for default of appearance of the plaintiff. In considering whether the cause of action in the subsequent suit is the same or not, as the cause of action in the previous suit, the test to be applied is "are the causes of action in the two suits in substance and not technically identical." Thus the term "cause of action" is to be construed with reference rather to the substance than to the form of action."
14. This decision has direct application to the facts of the instant case. The O. A. bearing No. 2404 of 91 was fifed by the Associations behalf of its members and as pointed out earlier, the applicants were the members of that association. Not only they knew about the filing of the O.A. by their association, their own admission makes it abundantly clear that they were awaiting result of that O.A. and therefore had not moved any independent O.A. on their own. This clearly suggest that the earlier O.A. bearing No. 2404 of 91 was filed by the Association for the members and the applicants being the members of that Association were part and parcel of that O.A. and were very much interested in the out come of that O.A. It cannot be gain said that earlier O.A. moved by IRS Association was moved for the benefit and interest of its members and members of the Association were to derive the benefits on the conclusion of the litigation. They were therefore equally bound by the result in that O.A. They cannot subsequently be heard to say that since it was Association who was litigating, they can move fresh litigation if the Association had failed in the litigation. If Association has failed in the litigation they have also failed in the litigation. The result of the litigation started by Association is very much binding to its members.
15. There is hardly any doubt that the cause of action on which the earlier O.A. was filed is the same cause of action on which the present O.A. is filed. The earlier O.A. was also filed challenging the action of the respondents in giving enblock promotion to the 176 promotes and not following the ratio of 1:1 to fill up the post of Assistant Commissioner (junior scale) of Income Tax. In the present O.A. also the applicants are challenging the action of the respondents in promoting 176 B Group officers enblock as Assistant Commissioner and not following the 1:1 ratio. It is therefore quite apparent that the cause of action on which the earlier O.A. was based is the same cause of action on which the present O.A. is filed. Under the circumstances, the provisions of Order 9, Rule 9 of the CPC can easily be applied to the present O.A. The applicants are therefore precluded from bringing fresh O.A. in respect of the same cause of action on which the earlier O.A. bearing No. 2404 of 91 was filed.
16. In the case of Ramji Jankiji v. Mauni Baba Kale Kambalwala Jai Siyaram Dasji, AIR 1978 Patna 48, it has been laid down that if the matters substantially in controversy in the two suits and the points in issue are the same, the later suit will be barred by Order 9 Rule 9 of the CPC if the earlier suit has been dismissed in default. It has also been held that the right conferred under Order 9 Rule 9 bars the party from instituting a suit on the same cause of action and it is a substantive right and not formal right. Under the circumstances, we have no hesitation in upholding the contentions of the respondents that the applicants are precluded from bringing a fresh O.A. on the same cause of action and that this O.A. is barred under Order 9 Rule 9 of the CPC. The same therefore is not maintainable at law.
17. This takes us to the consideration of the second preliminary objection. According to the respondents the cause of action for filing this O.A. has arisen in the year 1991 and since this O.A. is filed on dated 6.7.98 the same is barred by limitation. The averments of the applicants are two fold. They say that the O.A. is not barred by limitation as the inter se seniority has yet not been fixed by the respondents and that even if there is some delay in filing this O.A., the act of the respondents which is challenged in this O.A. being unlawful, null and void, no bar of limitation comes in the way. Ultimately it is also urged that if there is any delay the same may be condoned as M.A for condonation of delay is already moved. The reason given for not filing the O.A. in time by the applicants is that they were waiting for the decision in O.A. 2404 of 91 filed before the Principal Bench and only after having come to learn that the said O.A. was dismissed in default and no steps were taken by the Association to revive the application by filing appropriate proceedings, the applicants have approached this Tribunal by way of this O.A. So far the pleadings are concerned, the applicants have not disputed that the O.A. is barred by limitation and have categorically stated that they have filed miscellaneous application for condonation of delay. However at the time of the argument it was sought to be argued that there was no bar of limitation so far the O.A. was concerned as the seniority list was not finalised and since the question of the inter se seniority is still open, this O.A. seeking fixation of the seniority of the applicants as per the rules cannot be said to be hit by the limitation. Reliance is sought to be placed by the applicants and the respondent No. 8, on the endorsement made in the Civil List of the Indian Revenue Services for the years 1996 and prior to that. If we are to believe this contention of the applicants that the inter se seniority is yet not finalised, then this O.A. obviously becomes premature. It is not the mere fixation of the inter se seniority that is being challenged by the applicants in this O.A. but the action of the respondents in giving enblock promotion to the 176 B Group officers and placing them just below the 1990 batch of the Assistant Commissioners and above the 1991 batch of the Assistant Commissioner (junior scale) is challenged by the applicants in this O.A. On one hand it is sought to be argued that the action of the respondents in giving enblock promotion to 176 promotes and placing them above the applicants in seniority list is illegal and against the provisions of the rules and since this action is null and void ab initio, the bar of limitation is not attracted while on the other hand it is also sought to be argued that the inter se seniority list of the Assistant Commissioners (junior scale) is not finalised by the respondents and therefore no question of limitation arises. It is obvious that both the arguments are self contradictory.
18. Before considering the application of the applicants in this regard, we would like to point out that so far the question of limitation is concerned, it is now well settled position by the latest Supreme Court judgments that in view of the statutory provisions contained in Section 21(1) of the Administrative Tribunals Act 1985, an O.A. filed before the Tribunal after the expiry of one year of the accruing of the cause of action should not be admitted and disposed of on merits. In the case of Secretary to Government of India v. Shivram Mahadu Gaikwad, 1995 Suppl. SCC 231 as well as in the case of Ramesh Chand Sharma v. Udham Singh Kamal, 2000 (1) ATJ 178, the Supreme Court has made it quite clear that before entering into the merit of the case the Tribunal should consider the question of limitation and if it is found that the O.A. is filed after the expiry of the period of limitation, the same should not be admitted and disposed of on merit in view of the statutory provisions contained in Section 21(1) of the Administrative Tribunals Act, 1985. So far the present O.A. is concerned, it cannot be denied that the cause of action for filing this O.A. had arisen in the year 1991 when enblock promotion to the B Group officers of the Income Tax were given by the respondents and they were given seniority above the applicants in relaxation of rules. The argument that the inter se seniority is yet not been fixed between the direct recruits and the promotes by the respondents does not bring this O.A. within limitation. The applicants have in substance challenged the action of the respondents in giving enblock promotion to the B Group officers and not fixing the seniority as per the ratio of 1:1 between direct recruits and promotes from the date of their appointment. Since the applicants were appointed in the year 1991 and they are seeking the implementation of the ratio of 1:1 for fixation of their seniority from the date of their appointment, it goes without saying that the cause of action for this O.A. has arisen in the year 1991.
19. So far the question of the fixation of the inter se seniority is concerned, we find that applicants have no evidence to substantiate their claim that the same has yet not been fixed by the respondents. They have mainly relied upon the endorsement at the end of the Civil List which reproduces the interim order passed in O.A. 2404 of 91 saying that their inter se seniority will be subject to the decision of the O.A. It is a matter of common knowledge that contents of the Civil List cannot be relied upon as an evidence and for the authenticity. The admission on the part of the applicants however suggests that the 176 promotes have been given seniority above the applicants and have been placed below the recruits of 1990 in that cadre of Assistant Commissioner (junior scale) and that this seniority list has been operated by the respondents to give further promotions to the Assistant Commissioners of 1990 as well as 1991 batch. In the O.A. itself the applicants have admitted that all 176 promotes have been given senior scale and they have been promoted as deputy Commissioner. This clearly suggests that the seniority list of the Assistant Commissioner is acted upon and the officers figuring in that seniority list have been given their promotions as per their seniority in the list. This would mean that the rights of the individual Assistant Commissioner in that seniority list have crystalised and unless it is shown that their promotion was illegal or dehorse the rules, their seniority now cannot be disturbed. We are fortified in this conclusion by the decision of the Supreme Court in the case of B.S. Bajwa v. State of Punjab, 1998(1) SLR 461=1998(3) SLJ 28 (SC). In that case the petitioner and others had challenged their seniority in the year 1984 though they had entered the department in 1971-72, the Supreme Court had observed that "during this entire period of more than a decade they were all along treated as junior to the other aforesaid persons and the rights inter se had crystalised which ought not to have been re-opened after the lapse of such a long period. It is well settled that in service matters the question of seniority cannot be re-opened in such situation after the lapse of a reasonable period because that results in disturbing the settled position which is not justifiable. There was inordinate delay in the present case for making such grievance. This alone was sufficient to decline interference under Article 226 of the Constitution of India and to reject the writ petition."
20. These observations of the Supreme Court have direct application to the facts of the instant case also. Having failed to challenge the seniority given to the 176 promotes in 1991 and having allowed a period of seven years to lapse the applicants have clearly allowed the rights of the applicants to be crystalised and hence, this delay alone is sufficient to decline the interference with the present position of the seniority.
21. The next limb of argument advanced mainly by Mr. S.B. Vakil, Counsel for the respondent No. 8 is that the action of the respondents in giving enblock promotion to the Group B officers and placing them above the respondents in the seniority list of the Assistant Commissioners is itself illegal and void as the same has been taken in disregard of the IRS Rules, 1988. According to Mr. Vakil respondents have no power to relax the rules so far the rota is concerned and since the respondents had given enblock seniority to the 176 promotes without following the ratio of 1:1 between direct recruits and the promotes, this action of the respondents was illegal and dehorse the rules and hence, it can be said to be void ab initio. According to him Rule 15 of the 1988 rules does not empower the Government to relax the rota rules though the Government can relax the quota rules. However, since under the guise of exercising power given by Rule 15 the Government sought to relax quota rule as well as rota rules, the subsequent action is vitiated on account of Government acting in excess of powers given by the rules.
22. Before we refer to the relevant rules, we would like to point out that pursuant to the exercise carried out by the various departments of the Central Government vizly, the Department of Revenue in Ministry of Finance, Ministry of Law, Department of Personnel and Training and UPSC for the relaxation of the rules in view of the proposal to fill up 250 posts of Assistant Commissioners (junior scale) an office order No. 169 of 91 dated 8.11.91 (Annexure A/3) was issued by the Department of Revenue in Ministry of Finance appointing 175 Income Tax officers by way of promotion as Assistant Commissioners of Income Tax and giving them posting. This order of the appointment and promotion of Income Tax officers to the cadre of the Assistant Commissioner of Income Tax (junior scale) has not been challenged in this O.A. and therefore the question regarding their appointment as Assistant Commissioner of Income Tax (junior scale) being valid or not does not arise. The only question therefore now is whether the rule providing 1:1 seniority between direct recruits and promotes could have been relaxed or not by the Government in exercise of the powers under Rule 15 of the IRS Rules, 1988. Rule-9 of these rules relates to the seniority of the Assistant Commissioner of the Income Tax (junior scale) and the same provides as under:-
(i) The seniority among such officers promoted from the grade of the ITOs inter se shall be determined in the order of their selection for such promotion and officers promoted on the basis of an earlier selection shall rank senior to those promoted on the basis of subsequent selection.
(ii) The seniority among the direct recruits inter se shall be determined by the order of merit in which they are selected for such appointment by the Commission and any person appointed on the basis of an earlier selection shall rank senior to all other persons appointed on the basis of any subsequent selection; and
(iii) The relative seniority among the promotes and the direct recruits shall be in the ratio of 1:1 and the same shall be so determined and regulated in accordance with a roster maintained for the purpose which shall follow the following sequence namely:
(a) promotee;
(b) direct recruit;
(c) promotee;
(d) direct recruit and so on;
23. Rule 15 which furnishes power to relax the rules to the Government reads as under:-
"Where the Government is of the opinion that it is necessary or expedient so to do it may by order, for reasons to be recorded in writing and in consultation with the Commission, relax any of the provisions of these rules with respect of any class or category of persons;"
24. The submission of Mr. Vakil was that the relaxation is permissible with respect to any class or category of persons but is not permissible so far the determination of the seniority is concerned. According to him the relaxation could have been gone into only if it was shown that their quota rule had broken down. Referring to O.M. dated 5.11.90 it is submitted that para IV of the O.M. on a correct interpretation does not provide for fixation of inter se seniority between direct recruits and the promotes as per Rule 9 (in) of the IRS Rules, 1988.
25. Mr, Pathak for the applicants on the other hand has submitted that they have challenged the decision of the respondent No. 1 regarding relaxation of quota i.e. diversion of quota in favour of the promotes and the policy decision to treat such promotes as enblock seniors to the direct recruits who have admittedly joined the service before appointment of the promotes. Insistently this is reiterated by him in his written submissions at para 27. It would therefore appear that the applicant as well as respondent No. 8 are not certain as to what they are challenging. In fact the applicants in this O.A. have not challenged the relaxation of the rules by the respondents. They have not referred to relaxation of the quota or rota rules in the O.A. We may point out that O.M. dated 5.11.90 is in the nature of the proposal and not order by the concerned department. It appears that after the exercise of relaxation of the rule was taken up the department of revenue had consulted Law Ministry as well as Ministry of Personnel and Training and subsequently consulted UPSC also. The O.M. dated 5.11.90 is the result of the consultation and summarises the action to be taken. The endorsement made below this O.M. leaves no room for doubt that this was by way of a proposal and that the copies of this proposal were forwarded to the department of Personnel and Training and also to Mr. G.B. Chopra, Joint Secretary and Additional Legal Advisor to Govt. of India, Ministry of Law with arequest to him to advise specifically about the legality of the adaptation of the procedure indicated in para 5 for the relaxation of the IRS Rules, 1988 for filing up the 250 post as also the fixation of the seniority of these promotes. Hence, it is quite obvious that this O.M. was not the office order issued by the concerned department but it was a proposal inviting comments and advise from the Law Ministry as well as other Ministries. It also appears from the subsequent correspondence and from the letter dated 20th March, 1991 of the UPSC (Annexure R/3), that this proposal was ultimately accepted in view of the circumstances explained therein and the UPSC had agreed for the diversion of the 176 vacancies for direct recruitment quota in the grade of Assistant Commissioner of Income Tax. So far the question of inter se seniority was concerned, clause IV of the O.M. dated 5.11.1990 proposed as under:- The inter se seniority of the promotes under the relaxation clause shall be on the basis of their order of selection as determined by the UPSC, Those officers will be placed and brought in the seniority list of Assistant Commissioners of Income Tax (Group A) (junior scale) below the direct recruits appointed to this grade during 1990 and also below promotes who would be adjusted in roster of seniority with such direct recruits under Sub-rule 3 of Rule 9 of the IRS Rules, 1988. Mr. Vakil has submitted that this clause had purported to relax only the quota rule and not the rota rule and hence the action of the respondents in not observing the provisions of Rule 9 while fixing inter se seniority between direct recruits and the promotes is clearly ab initio void. The argument quite attractive at first blush however is quite fallacious when we consider that there were no direct recruits available for maintaining the inter se seniority in 1990. The relaxation procedure was adopted in the year 1990 and the clause IV of the para 4 of the O.M. dated 5.11.90 clearly specified that these officers appointed in relaxation of the rules will be placed and brought in the seniority list of Assistant Commissioners of Income Tax (junior scale) below the direct recruits appointed to this grade during 1990. The applicants were not even borne in the cadre in the year 1990 and therefore cannot be heard to make a grievance that diversion before their appointment in 1991 was illegal or invalid and can be struck down. The whole exercise of relaxation of the rule was taken up by the Government in the year 1990 and that relaxation was only for the year 1990 and not for the year subsequent or for the previous year. Under the circumstances, if the 176 promotes were appointed by the respondent No. 1 in view of the decision taken for relaxation of the Rules 15, the applicants cannot be heard to make a grievance that they were wrongly appointed or that the Government had exercised the power arbitrarily or illegally. They were not borne in that cadre at that time. Merely because the appointment of the 176 promotes came later on does not give a cause of action to the applicants to make a grievance regarding the relaxation of the rules by the respondent No. 1. We are therefore unable to agree with the submissions of both Mr. Pathak as well as Mr. Vakil that the relaxation of the rules on the part of the Government was open to challenge by the applicants and it also further cannot be said that pursuant to the said relaxation of the rules by the Government the seniority given to the enblock promotes was ab initio void and therefore the bar of limitation did not operate. So far the submission of Mr. Vakil that Rule 15 of the IRS Rules, 1988 do not empower the Government to relax the rules with regard to the rota and provides the relaxation only with respect to quota, we may point out that the Rule 15 empowers the Government to relax any of the provisions of the 1988 rules with respect to any clause or category of persons. Seniority of an Assistant Commissioner of Income Tax is governed by Rule 9 of 1988 rules and this Rule 9 speaks about the seniority amongst the promotes and direct recruits. The direct recruits and promotes form different class by themselves and therefore it cannot be said that the Government had no power to relax the rules with regard to fixation of their inter se seniority. In the case of Haridas Parsedia v. Urmila Shakya, (2000) 1 SCC 81=2000(1) SLJ 212 (SC) dealing with the question of relaxation of the recruitment rules the Supreme Court has observed that "power of relaxation when available in the rules can be exercised either by a general administrative order by a special order and has also observed that even though the words "any person" are mentioned in Rule 20 nothing therein contraindicates the applicability of this general power of relaxation available to the Government to a class of persons when it is found just and equitable to do so." Under the circumstances, we negative the submissions of Mr. Pathak and Mr. Vakil that the action of the respondents in giving enblock promotions to the 176 promotes and placing them above the applicants in seniority list by relaxing the rules was void ab initio and therefore the question of limitation does not arise. We are of the opinion that the question of limitation does arise in the instant O.A. as the O.A. is filed more than seven years after the accrual of the cause of action.
26. The applicants have moved the delay condonation application being M.A. 769 of 98 for condoning the delay in filing this O.A. All the respondents have stoutly opposed the condonation of delay and have contended that this is the case wherein delay should not be condoned as there is no sufficient reason given for condoning the delay. The reasons given for condonation of delay in the delay condonation application are contained in para 2 of the application and they read as under:-
"The delay in filing of the present application only on the ground that on the same cause, seeking directions against the respondent No. 1 and 2 to implement the provisions of the rules was filed before the Principal Bench of the Tribunal. That when the seniority of 1997 published without any rectification, the applicants inquired about the pending case before Principal Bench and they came to know that the application is dismissed for default and the Association has not taken any steps to get the application restored. That the applicants are entitled to get the benefits of the rules for fixation of the seniority. I rely on the contentions raised in the original application to request the Hon'ble Tribunal to condone the delay in filing of the present application,
27. No other cause is shown for not filing the O.A. in time. It is therefore obvious that the only cause sought to be advanced for condonation of delay is that another O.A. was filed before the Principal Bench and the applicants were unaware of the facts that the same has been dismissed in default and the Association had not taken any steps to get the application restored. Obviously this cannot be said to be a cause for condoning the delay. The O.A. No. 2404 of 91 filed before the Principal Bench had come to be dismissed by the Principal Bench on dated 1.9.97. The order dismissing the O.A. also suggests that the learned Counsel of the applicants therein, was aware of the dismissal and he had mentioned before the bench for restoration of the O.A, However, since the learned Counsel for the respondents had left after the dismissal order the Bench had refused the prayer for restoration of the O.A. Hence it is quite obvious that on the date on which the O.A. No. 2404 of 91 was dismissed in default the applicants of that O.A. was having the knowledge about the dismissal of the same. Since the O.A. was filed by the Association on behalf of the members, the applicants can be attributed with the knowledge of the dismissal of that O.A. Mr. Girish Patel as well as Mrs. Bhatt for the respondents have vehemently submitted that there is no cause shown for the delay and even if it is considered that the applicants were awaiting the results of O.A. No. 2404 of 91, they were required to explain the delay in not filing this O.A. in time after the O.A. No. 2404 of 91 was dismissed in default. Mr. Patel has pointed out that this delay is not explained at all and no attempt also is made to explain this delay by the applicants. Mr. M.S. Trivedi appearing for the private respondents has relied upon a decision of Mafatlal Industries Ltd. v. Union of India, (1997) 5 SCC 536, wherein it is laid down that the pendency of the proceedings is not the sufficient cause for condoning the delay or some one else is taking care of my right is not the sufficient cause for condoning the delay. On the other hand Mr. Vakil for the respondent No. 8 as well as Mr. Pathak have relied on AIR 1987 SC 1353, and submitted that the technical objection of the delay cannot prevail over substantial justice and therefore in the interest of justice also the delay may be condoned. According to Mr. Vakil the O.A. raises serious disputes regarding the seniority and such serious disputes cannot be allowed to be side lined on the technical objections of delay.
28. The submissions that the delay should be condoned in the interest of the substantial justice is no longer a valid law. In the case of Municipal Corporation of Ahmedabad v. Voltas Ltd., 1994(2) GCD 626, the Full Bench of the Gujarat High Court has laid down that merely for doing substantial justice the delay cannot be condoned and that if no cause is shown then the delay of short duration may also not be condoned. In the case of State of Karnataka v. S.M. Kotrayya, 1996(6) SCC 267, the facts were nearly similar. In that case, some teachers had availed of LTC concession during the year 1981-82 but it was found that they had not utilised the amount and therefore recovery came to be made in the year 1984-86. Some of the teachers filed applications in the Tribunal questioning the power of the Government to recover the same. The Tribunal in 1989 allowed similar claims and had held that the appellant Government could not recover the same from the respondents. On coming to know of it, other teachers filed applications in August, 1989 before the Tribunal with an application to condone the delay. Holding that the O.A. was barred by limitation the Supreme Court observed that the mere fact that the applicants filed belated applications immediately after coming to know that in similar claims relief had been granted by the Tribunal was not a proper explanation to justify the condonation of delay. Referring to the provisions of Section 21(1) and Section 21(2) of the Administrative Tribunals Act, the Supreme Court held that it is not necessary that the respondents should give explanation for the delay which occasioned for the period mentioned in Sub-section 2 of Section 21 but they should give the 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. It was observed by the Supreme Court that in the particular 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. This is not the 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. These observations have direct application to the facts of the instant case. The applicants have failed to give any explanation as to why they could not avail of their remedy of redressal of their grievances before the expiry of the period prescribed under Sub-section (1) or (2) of Section 21. Pendency of O.A. 2404 of 91 cannot be considered to be an explanation for not filing the O.A. in this Tribunal. Further more, no explanation is forthcoming, why this O.A. was not immediately filed after O.A. 2404 of 91 was dismissed in default by the Principal Bench at New Delhi. Since no explanation is forthcoming for non filing of the O.A. within the prescribed period, there is no cause shown for condoning the delay. When there is no cause shown for condoning the delay, no question arises of construing the said cause to be a sufficient cause or not. We have therefore no hesitation in concluding that the present delay condonation, application does not show any cause for condoning the delay and hence the same cannot be allowed. We therefore reject the M.A 769 of 98. Consequently the O.A. also will have to be rejected as barred by limitation.
29. The last objection raised by the respondents is concerning the non-joinder of necessary parties. It is the contention of the respondents that this O.A. challenges the promotion of 176 promotes to the cadre of the Assistant Commissioner (junior scale) and since all the 176 promotes are directly affected by the result of this O.A. they are necessary parties to this O.A. Since they are not joined as parties, this O.A. suffers from the vice of non-joinder of necessary parties. Mr. Vakil, learned Counsel for the respondent No. 8 has however, relied on the decision in the case of 5. Prabhakar Rao v. State of Andhra Pradesh, AIR 1986 SC 210 wherein it is laid down that failure to impleade all affected employees would not make petition un maintainable. Mr. Vakil has pointed out that some of the promotes are already joined as respondents here and since they are representing the case of all other promotes, the O.A. cannot be held to be barred by non-joinder of the necessary parties. The question stands decided by the Supreme Court in the above mentioned decision and therefore we hold that O.A. is not barred by non-joinder of necessary parties.
30. During the course of arguments Mr. Pathak, learned Advocate for the applicants had moved M.A. 59 of 2001 for amendment of the O.A. and we have heard the arguments on this M.A. along with the O.A. This amendment application is opposed by the respondents on the main ground of being barred by limitation as well as not being bonafide in as much as it is moved at a belated stage and only with a view to meet with the arguments advanced at the bar. Mr. Pathak for the applicant had submitted that the amendment application is required to be moved as the respondents had produced a copy of the O.M dated 5.11.90 whereby decision was taken for relaxation of the provisions of the rules in favour of the promotes and the proposed amendment seeks to challenge the vires of the clause IV of the O.M. We find that decision of this M.A should not deter us much as we have already held that the O.A. is barred by limitation. Since this M.A is moved in this O. A., the same can easily be said to be barred by limitation also. We therefore reject the M.A. 59 of 2001.
31. As per the reasons discussed above we hold that the O.A. is not maintainable on account of being barred by limitation and also on account of the applicants being precluded from bringing a fresh O.A. on the same cause of action. The O.A. is therefore rejected with no order as to costs. The interim relief granted earlier stands vacated. All the M.As. (i.e. M.A. No. 752 of 2000, M.A.st. 685 of 2000 as well as M.A. 670 of 2000) also are rejected.