Central Administrative Tribunal - Delhi
Rajeev Tandon vs Union Of India & Others on 23 December, 2008
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH NEW DELHI O.A. NO.412/2005 with O.A. NO.2889/2005, O.A. NO.2890/2005 O.A. NO.2891/2005, O.A. NO.2892/2005 O.A. NO.2893/2005, O.A. NO.1525/2006 This the 23rd day of December, 2008 HONBLE SHRI JUSTICE V. K. BALI, CHAIRMAN HONBLE SHRI L. K. JOSHI, VICE-CHAIRMAN (A) O.A. NO.412/2005 Rajeev Tandon Applicant Versus Union of India & Others Respondents O.A. NO.2889/2005 N. K. Mishra Applicant Versus Union of India & Others Respondents O.A. NO.2890/2005 Prabodh Kumar & Others Applicants Versus Union of India & Others Respondents O.A. NO.2891/2005 Tapan Kumar Deka & Others Applicants Versus Union of India & Others Respondents O.A. NO.2892/2005 Y. Anil Kumar Applicant Versus Union of India & Others Respondents O.A. NO.2893/2005 Surendra Kumar Pandey & Others Applicants Versus Union of India & Others Respondents O.A. NO.1525/2006 Praveen Kumar Sinha Applicants Versus Union of India & Others Respondents By Advocates : Shri Amitesh Kumar for Applicants. Shri Rajesh Katyal, Shri B. S. Jain, Shri G.D.Gupta, Sr. Advocate & with him Shri S.K.Gupta, for respondents. O R D E R Justice V. K. Bali, Chairman:
Listed before us are seven Original Applications bearing OA Nos. 412/2005, 2889/2005, 2890/2005, 2891/2005, 2892/2005, 2893/2005 and 1525/2006, involving common questions of law and fact. Inasmuch as, after hearing arguments at some length, we are of the view that the matter needs to be referred to a larger Bench, there would be no need to give facts in detail at this stage. While referring to the case of Shri Rajeev Tandon, a 1987 batch Indian Police Service (IPS) officer, applicant in OA No.412/2005, we may, however, mention that he has filed this Original Application under Section 19 of the Administrative Tribunals Act, 1985 challenging the notification dated 20/29.1.1994 issued by the Government of India, Ministry of Personnel (Department of Personnel & Training), whereby the proviso to clause (i) of sub-rule (3) of rule 3 of the Indian Police Service (Regulation of Seniority) Rules, 1988 has been amended with retrospective effect declaring that the impugned amendment would be deemed to have come into force on 27.7.1988. He has also challenged order dated 17.9.2004 of the Ministry of Home Affairs, whereby his representation dated 9.1.1995 regarding revision of his inter se seniority amongst IPS officers of 1988 batch has been rejected.
2. Brief facts as may need mention at this stage reveal that the applicant appeared in the Civil Services Examination (CSE) held in the year 1987-88. He was declared successful and was considered for appointment to IPS on the basis of results of CSE (Main) 1987. While informing the applicant about his selection, the DOP&T vide letter dated 19.8.1988 also informed him that if he was willing to be considered for appointment to IPS, he may proceed to Mussoorie and report to the Director, Lal Bahadur Shastri National Academy of Administration on 24.8.1988, and further his attention was drawn to rule 4 of the CSE, 1987, which provided that if a candidate intended to appear in CSE (Main), 1988, he would not be allowed to join the probationary training then and would be allowed to join the training only along with the candidates who may qualify on the basis of CSE, 1988, and further, in the matter of seniority the candidate would be placed below all the candidates who were to join the training on the basis of CSE 1987. The applicant was also informed that if he had qualified in the CSE (Preliminary) held on 12.6.1988 and if he intended to appear in the CSE (Main) to be held later in the year and if he was to accept the offer, he should not proceed to the Academy, and should intimate this fact by telegram immediately to the Department as also to the director of the Academy. The applicant on completion of training was allotted the then undivided Madhya Pradesh Cadre. The date of confirmation of the applicant is 25.8.1990, whereas the date of confirmation of Mr. Sanjay Kumar Pillay is 28.8.1992, and that of Mr. Arvind Kumar is 29.9.1991.
3. At this stage, we may make a mention of the proviso to clause (i) of sub-rule (3) of rule 3 of the IPS (Regulation of Seniority) Rules, 1988, which, as mentioned above, was inserted vide notification dated 20/29.1.1994, and made effective retrospectively from 27.7.1988. The same reads as follows:
Provided that if a direct recruit officer, other than an exempted probationer within the meaning of clause (ee) of Rule 2 of the Indian Police Service (Probation) Rules, 1954, who is permitted to join probationary training under sub-rule (1) of Rule 5 of the Indian Police Service (Probation) Rules, 1954 with the direct recruit officers of subsequent year of allotment, then he shall be assigned that subsequent year as the year of allotment. Primarily, it is the case of the applicant that the Government would be well within its right to make amendment in the Rules, which may be prospective or retrospective, however, in case, the rules are changed retrospectively, the same should not affect the vested right of a citizen, and inasmuch as, seniority, if determined as per existing rule 3, the applicant would rank senior to those who even though, might have qualified with the applicant, chose not to join on probation and rather elected to take a subsequent examination, and that by virtue of the proviso reproduced above, they have been made senior to the applicant, and further that the seniority that came to be assigned to the applicant by virtue of unamended provision has thus been changed by a legislation made effective retrospectively.
4. Shri Amitesh Kumar, learned counsel representing the applicant, in all fairness, at the very outset, brings to our notice an order passed by this Tribunal in OA No.632/1996 in the matter of Ashok Kumar v Union of India, decided on 16.3.2000, wherein challenge to the very proviso in question before us, was repelled. The learned counsel, however, states that the Honble Division Bench had not taken a correct view in law, and, therefore, same would need re-consideration.
5. We have heard the learned counsel representing the parties and have gone through the judgment of this Tribunal in Ashok Kumar (supra). We need not give reasons at this stage, as that may appear to be a final expression of opinion, nor in fact any such final opinion has been formed by us, but prima facie it appears that the judgment of this Tribunal in Ashok Kumar may need reconsideration. It will be an exercise in futility to hear elaborate arguments and then refer the matter to a larger Bench, if we may find that the view taken by this Tribunal in Ashok Kumar is not correct. Thus, by observing prima facie, that the law laid down in Ashok Kumar may not be correct and the same requires reconsideration, we refer this matter to a larger Bench.
6. Before we may part with this order, we may mention that Shri G. D. Gupta, Sr. Advocate, representing private respondents, urged that the present Applications are barred by time, and, therefore, the same should be dismissed as such. While referring the matter to the larger Bench, we are not proceeding to decide the matter as such. We only want to ascertain, at this stage, the correct position in law. In case, we may follow the decision in Ashok Kumar (supra), these Applications, in any case, shall have to be dismissed. In case, however, the law as laid down in Ashok Kumar is not found to be correct, surely, the matter has to go before a Division Bench, wherein the respondents represented by Shri Gupta would be well within their right to seek dismissal of the Applications on the plea of bar of limitation.
( L. K. Joshi ) ( V. K. Bali ) Vice-Chairman (A) Chairman /as/