Central Administrative Tribunal - Delhi
Shri Sukomal Das vs Union Of India & Ors Through on 8 October, 2010
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
OA 1074/2009
New Delhi this the 8th day of October, 2010.
Honble Mr. Justice V.K.Bali, Chairman
Honble Mr. L.K. Joshi, Vice Chairman (A)
Shri Sukomal Das,
S/o Late Shri M.M. Das,
R/o Flat No. 7, Sector-10,
Raj Nagar, GDA Shopping Complex,
Ghaziabad-201002. Applicant
(By Advocate Shri M.K. Bhardwaj)
VERSUS
1. Union of India & ors through :
The Secretary,
Govt. of India,
Ministry of Health & Family Welfare,
Nirman Bhawan, New Delhi
2. The Director General,
DGHS, Nirman Bhawan,
New Delhi
3. The Drug Controller General (I)
DGHS, Nirman Bhawan,
New Delhi
4. The Director/Secretary-cum-Scientific Director (IPC)
Central Indian Pharmacopoeia Lab.,
Raj Nagar, Ghaziabad
5. Chariman,
U.P.S.C., Shahjahan Road,
New Delhi Respondents
(By Advocate Shri R.N.Singh, for respondents 1-3
Shri Naresh Kaushik with Ms. Manisha, for respondent 4)
O R D E R
Mr. L.K. Joshi, Vice Chairman (A) :
The grievance projected by the Applicant in the present OA is that in spite of being eligible for promotion to the Grade of Scientist-IV since 2002, in the hierarchy of posts he was occupying, he was not promoted in the years 2004 and 2007, when the Departmental Assessment Board (DAB) met to consider the cases of promotion of similarly situated scientists. He is seeking the following relief:
i) to direct the respondents to grant In-situ promotion to S-IV level in the Grade of Rs. 14300-18500/- to the applicant wef April 2002 with all arrears and 12% interest.
2. The facts of the case are that the Applicant was working as Senior Scientific Officer Grade II (Chemistry) in the scale of pay of Rs. 8000-13500 (pre-revised) in the Central Indian Pharmacopoeia Laboratory (CIPL), the fourth Respondent, under the Directorate General of Health Services, the second Respondent. The Ministry of Health and Family Welfare, the first Respondent, notified Department of Health (Group A Gazetted Non-Medical Scientific and Technical Post) in situ Promotion Rules, 1990 (hereafter ISP Rules). In terms of these Rules a non-Medical Scientist became eligible for in situ promotion to the next grade after completion of five years of regular service in the previous grade. The Applicant got in situ promotions to the Scientist II and Scientist-III levels in his turn. The Applicant became eligible for in situ promotion to Scientist IV in 2002. He was considered for promotion in the meeting of the DAB which met on 30.11.2004 but the Applicant was not found Fit for promotion. As per the provisions of Sub-Rule 2 of Rule 7 of the ISP Rules a candidate not found Fit by the DAB would not be considered eligible for promotion in the next meeting of the DAB, until one year had elapsed after the first consideration. However, the next meeting of DAB could be held only on 24.09.2008, but again the Applicant was found Unfit by the DAB.
3. It is stated that the Applicant made representations on 4.05.2006, 30.05.2006, 12.02.2007 and on 17.02.2009 for in situ promotion from the year 2002 but did not receive any reply. It is averred that the Applicant was unaware about the meeting of DAB in 2004 and the fact that he had been overlooked.
4. The learned counsel for the Applicant would contend that the applicant was overlooked for promotion in the year 2002 without any justification. Similarly placed persons were granted in situ promotion by order dated 21.03.2003 from the date of eligibility, whereas the Applicant was overlooked. Meantime, the Applicant was given charge of very important posts such as the Government Analyst for the whole of the country and was also given the current duty charge of the post of Director of Central Drug Testing Laboratory at Mumbai but he performed full fledged duties of the said post. The learned counsel would contend that the Applicant performed all the duties assigned to the Director of the aforesaid laboratory. It was contended that granting of the above mentioned charges to the Applicant would show his outstanding calibre. It is submitted that in such view of the matter the Applicant could not have been denied the benefit of promotion to the grade of Scientist-IV. Thereafter the Applicant submitted several representations, advertence to which has been made above, yet to no avail. It is urged that there has been hostile discrimination against the Applicant in view of the fact that similarly situated persons like him have been promoted and the Applicant with his outstanding record of service has been overlooked. It was also contended that the claim of the Applicant for promotion had been virtually conceded by appointing him Director of the Central Drug Testing Laboratory, which was in the same scale as the Scientist-IV. The learned counsel would also contend that the Respondents have violated the rules, which provides for in situ promotion after five years of service in the previous grade. The Applicant had become eligible in the year 2002 and there was no reason why he should not have been promoted. The Respondents ignored the Applicant without any reason. It was also contended that the Applicant had never received any adverse remarks in his annual confidential reports.
5. The learned counsel for the Applicant also contended that his claim for promotion in the year 2002 was not barred by limitation. He has placed reliance on Uma Shankar Prasad Vs. State of Bihar and others, LPA number 202 of 2009 decided on 14.09.2009 (High Court of Bihar); Union of India and others Vs. Tarsem Singh, (2008) 2 SCC(L&S) 765; and M R Gupta Vs. Union of India and others, (1995) 5 SCC 628.
6. The Respondents, on the other hand, have contended that the Applicant was considered in the year 2004 and by the review DAB in the year 2008. The DAB found him 'Unfit'. It is contended that the Applicant cannot have any grudge as he was considered for in situ promotion twice in the past and had got promoted to the grades of Scientist II and III. He was not found 'Fit' by the DAB for the grade of Scientist-IV.
7. In so far as the promotion in the year 2002 is concerned, the relief in our considered opinion is barred by limitation. It is difficult to accept that the Applicant was unaware that similarly situated persons like him had been promoted. In any case, he was aware that he was due for promotion from the year 2002, for which he had been making representations also. Cause of action arose when promotions were made by the order dated 21.03.2003. The limitation under the Administrative Tribunals Act, 1985 is covered by Section 21, which is extracted below:
21. Limitation 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.
(2) Notwithstanding anything contained in sub-section (1), where-
the grievance in respect of which an application is made had arisen by reason of any order made at any time during the period of three years immediately preceding the date on which the jurisdiction, powers and authority of the Tribunal becomes exercisable under this Act in respect of the matter to which such order relates; and
(b) no proceedings for the redressal of such grievance had been commenced before the said date before any High Court, the application shall be entertained by the Tribunal if it is made within the period referred to in Clause (a), or, as the case may be, Clause (b), of sub-section (1) or within a period of six months from the said date, whichever period expires later.
(3) Notwithstanding anything contained in sub-section (1) or sub-section (2), an application may be admitted after the period of one year specified in Clause (a) or Clause (b) of sub-section (1) or, as the case may be, the period of six months specified in sub-section (2), if the applicant satisfies the Tribunal that he had sufficient cause for not making the application within such period. The Applicants reliance on the judgements cited by him would not advance his cause. The facts in Uma Shankar Prasad (supra) were that the appellant was working as peon in the office of the Assistant Engineer. He went to his village for treatment during the Durga Puja vacations in 1995 and could rejoin service only on 2.04.1996. He was allowed to join and started working on that post again. However, when a report was sent to the Superintending Engineer, the latter asked for the appellants explanation. The appellant filed his reply to the show cause notice on 31.09.1996. There was no further correspondence from the Government. The writ petition was filed before the Honourable High Court for directions to the respondents for accepting the appellants joining report, passing orders on his reply to the show cause notice and payment of salary. The learned Single Judge dismissed the writ petition on the grounds of laches. The appellant thereafter filed the LPA. The learned DB noted that the matter has remained pending in the High Court for nearly seven years and since the matter was only between the appellant and the State and no one else was getting affected, the writ petition should not have been dismissed on the grounds of laches. This case is distinguishable first, because the facts are totally different and second, because the Tribunal is bound by Section 21 of the Administrative Tribunal Act, 1985 and not by the Limitation Act or considerations of delays and laches. In M R Gupta (supra), the Honourable Supreme Court introduced the concept of recurring cause of action. In M R Gupta (supra) the appellant had approached this Tribunal in 1989 for correct fixation of his salary in 1978. The Tribunal rejected his plea on the ground that the cause of action arose in 1978 and, therefore, the Application was time barred. The Honourable Supreme Court, while allowing the appeal observed thus:
5. Having heard both sides, we are satisfied that the Tribunal has missed the real point and overlooked the crux of the matter. The appellants grievance that his pay fixation was not in accordance with the rules, was the assertion of a continuing wrong against him which gave rise to a recurring cause of action each time he was paid a salary which was not computed in accordance with the rules. So long as the appellant is in service, a fresh cause of action arises every month when he is paid his monthly salary on the basis of a wrong computation made contrary to rules. It is no doubt true that if the appellants claim is found correct on merits, he would be entitled to be paid according to the properly fixed pay scale in the future and the question of limitation would arise for recovery of the arrears for the past period. In other words, the appellants claim, if any, for recovery of arrears calculated on the basis of difference in the pay which has become time barred would not be recoverable, but he would be entitled to proper fixation of his pay in accordance with rules and to cessation of a continuing wrong if on merits his claim is justified. Similarly, any other consequential relief claimed by him, such as, promotion etc. would also be subject to the defence of laches etc. to disentitle him to those reliefs. The pay fixation can be made only on the basis of the situation existing on 1-8-1978 without taking into account any other consequential relief which may be barred by his laches and the bar of limitation. It is to this limited extent of proper pay fixation the application cannot be treated as time barred since it is based on a recurring cause of action. In Tarsem Singh (supra) the Honourable Supreme Court explained the difference between continuing wrong and recurring/successive wrongs. Tarsem Singh, the respondent before the Supreme Court, was invalidated out of army service on 13.11.1983. He approached the High Court in 1999 seeking the payment of disability pension. The learned Single Judge allowed the writ petition, but restricted the payment of arrears to 38 months prior to filing of the writ petition. The respondent was not satisfied and approached the Division Bench in LPA. The Division Bench allowed the appeal and granted disability pension from 13.11.1983 with interest. The matter came up before the Honourable Supreme Court in appeal. Allowing the appeal, the Honourable Court observed thus:
4. The principles underlying continuing wrongs and recurring/ successive wrongs have been applied to service law disputes. A continuing wrong refers to a single wrongful act which causes a continuing injury. Recurring/ successive wrongs are those which occur periodically, each wrong giving rise to a distinct and separate cause of action. This Court in Balakrishna Savalram Pujari Waghmare v. Shree Dhyaneshwar Maharaj Sansthan, AIR 1959 SC 798 explained the concept of continuing wrong (in the context of Section 23 of the Limitation Act, 1908 corresponding to Section 22 of the Limitation Act, 1963):
31.....It is the very essence of a continuing wrong that it is an act which creates a continuing source of injury and renders the doer of the act responsible and liable for the continuance of the said injury. If the wrongful act causes an injury which is complete, there is no continuing wrong even though the damage resulting from the act may continue. If, however, a wrongful act is of such a character that the injury caused by it itself continues, then the act constitutes a continuing wrong. In this connection, it is necessary to draw a distinction between the injury caused by the wrongful act and what may be described as the effect of the said injury. .... .... ....
7. To summarise, normally, a belated service related claim will be rejected on the ground of delay and laches (where remedy is sought by filing a writ petition) or limitation (where remedy is sought by an application to the Administrative Tribunal). One of the exceptions to the said rule is cases relating to a continuing wrong. Where a service related claim is based on a continuing wrong, relief can be granted even if there is a long delay in seeking remedy, with reference to the date on which the continuing wrong commenced, if such continuing wrong creates a continuing source of injury. But there is an exception to the exception. If the grievance is in respect of any order or administrative decision which related to or affected several others also, and if the reopening of the issue would affect the settled rights of third parties, then the claim will not be entertained. For example, if the issue relates to payment or refixation of pay or pension, relief may be granted in spite of delay as it does not affect the rights of third parties. But if the claim involved issues relating to seniority or promotion, etc., affecting others, delay would render the claim stale and doctrine of laches/ limitation will be applied. Insofar as the consequential relief of recovery of arrears for a past period is concerned, the principles relating to recurring/ successive wrongs will apply. As a consequence, the High Courts will restrict the consequential relief relating to arrears normally to a period of three years prior to the date of filing of the writ petition. The claim of the Applicant, tested on the above principles, is not a continuing wrong but is in the category of successive wrongs. Thus the claim of the Applicant, as regards the DAB of 2004, recommendation of which led to in situ promotions from the year 2002, is barred by limitation.
8. However, the Applicant was again not considered by the DAB, which met on 24.09.2008. The Applicant made a representation on 17.02.2009, which was not considered. The Applicant approached this Tribunal on 1.04.2009 through the instant OA, within the period of limitation.
9. It is not disputed that the Respondents have not communicated any adverse remarks to the Applicant in his career. As a result of the judgement of the Honourable Supreme Court in Dev Dutt Vs. Union of India and Others, (2008) 8 SCC 725, any remark below the prescribed bench mark would also be considered adverse remark. Therefore, the Respondents were bound to communicate the remarks to the Applicant, if there were any remarks/ grading below the bench mark in his annual confidential reports, considered by the DAB.
10. We, therefore direct the Respondents to communicate the below benchmark remarks to the Applicant enabling him to give his representation, which may be considered and if it is upgraded to the prescribed benchmark, a review DPC should be convened to consider his case for in situ promotion from the date when other scientists considered in the review were promoted. Following the judgement of this Tribunal in V.K. Singhal Vs. Commissioner of Income Tax, OA number 3524/2009 and the judgement of the Honourable Delhi High Court in Ranjana Kale Vs. Chief Economic Adviser and anr., W.P. (c) No.13488/2009, we direct that the annual confidential reports containing below benchmark remarks, in which both the reporting and reviewing officers have retired, should be ignored and earlier ACRs should be considered. The communicable ACRs should be communicated within one month from the date of receipt of a copy of this order. The Applicant should give his representation within one month of receipt of the copy/ copies of ACRs. The representation should be considered within one month thereafter. If the ACRs are decided to be upgraded, a review meeting of DAB should be convened within one month. The whole exercise shall be completed within four months. No costs.
( L.K. Joshi ) ( V.K. Bali ) Vice Chairman (A) Chairman /dkm/