Central Administrative Tribunal - Delhi
Kuldeep Kumar Sharma vs Union Of India Through The Secretary on 31 August, 2010
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH OA No. 2949/2009 New Delhi this the 31st day of August, 2010. Honble Mr. Justice V.K. Bali, Chairman Honble Mr. L.K. Joshi, Vice Chairman (A) Kuldeep Kumar Sharma, R/0 D-37, Anand Niketan, New Delhi. Applicant (By Advocate Shri Yogesh Sharma) VERSUS 1. Union of India through the Secretary, Ministry of Home Affairs, Govt. of India, New Delhi. 2. The Director General, BSF, BSF Head Quarter, CGO Complex, New Delhi. 3. The I.G. (Pers.), BSF, BSF Head Quarter, CGO Complex, New Delhi. 4. The Asstt. Director (Accounts), Pay & Accounts Division, BSF Head Quarter, CGO Complex, New Delhi. Respondents (By Advocate Shri R.N. Singh ) O R D E R Mr. L.K. Joshi, Vice Chairman (A):
The Applicant is aggrieved because of non-consideration of his representation to give him the benefit of the judgement of this Tribunal in OA number 560/2007, P.B. Mishra Vs. Union of India and others, decided on 18.07.2008 and placed at Annex A-2. Following the decision in the aforesaid OA, the Applicant made a representation to the Director General, BSF, the second Respondent herein, on 7.08.2009 to give him the benefit of the aforesaid judgement. There has been no response from the Respondent Director General, BSF. It may be mentioned that the directions given in the judgement dated 18.07.2008 have been complied with by the Respondents by order dated 28th July 2009, placed at page 21 of the paper book.
2. The Applicant in the instant OA is similarly situated in all respects as P.B. Mishra, the applicant in OA number 560/2007. The facts are identical. In an earlier OA No.2158/1993, which had direct bearing with the OA No.560/2007, Sh. K.K. Sharma was also an applicant along with Sh. P.B. Mishra. In order to contextualize the judgement in OA No. 2158/1993, the following facts as noted in OA No.560/2007 are reproduced below:
2.The Applicant herein along with other staff working in EDP Cell approached this Tribunal in OA No. 2158/1993 for seeking the implementation of the scheme of rationalization of pay scales and designation of EDP posts of BSF as approved by the Ministry of Finance in its OM dated 11.09.1989. The Tribunal in its judgment dated 16.07.1999 directed the Respondents to review the designations, pay scales and recruitment qualifications for the posts held by the Applicants in the aforesaid OA in EDP Centre of the headquarters of BSF on the basis of OM dated 11.09.1989. When the Respondents did not implement the judgments, the Contempt of Court petition No. 179/2000 came to be filed before the Tribunal. The Ministry of Home Affairs (MHA), Respondent in the aforesaid OA gave certain directions to the BSF, another Respondent in the aforesaid OA on the basis of which the Contempt Petition was closed. Following the directions of the MHA, the Respondents issued an order dated 10.09.2001 for transfer of the Applicant to the PAD of the BSF in view of the advice of the MHA dated 23.06.2000 that the posts of Auditor and Assistant Superintendent should be treated as part of the PAD of the BSF headquarters. The order dated 10.09.2001 of the Staff Section of the Directorate General of BSF also directed that the inter-se-seniority of the Applicant in PAD should be fixed and consequential benefits be granted. When the Applicant was not granted the consequential benefits, he filed an MA No. 2860/2000 for issuing appropriate directions for implementation of the judgment of the Tribunal in OA No. 2158/1993. During the pendency of the aforesaid MA, the Respondents passed an order dated 10.09.2001 by which the Applicants were posted in PAD and the Director (Accounts), PAD of BSF was, inter alia, asked to fix the Applicant in the post of Junior Accounts Officer (JAO). On the basis of the above orders, the Tribunal disposed off the MA by order dated 18.09.2001 with the following directions:
In the light of the Respondents order dated 10.09.2001 (copy of which is taken on record), the MA No. 1128/2000 is disposed of with a direction to respondents to ensure that the consequential benefits flowing from their order dt.10.9.2001 are made available to applicants within six week from the date of receipt of a copy of this order with particular reference to re-fixation of seniority in respective grades.
3. The Applicant again approached the Tribunal in C.P. No.51/2002 when the above directions were not complied with. This was closed when the Respondents issued a seniority list on 11.01.2002 showing the Applicant in the grade of Programme Assistant in PAD of BSF. The Applicant made a representation to the Respondents to fix his seniority in the post in PAD, not as Programme Assistant because such a post did not exist in PAD. The PAD of the DG, BSF directed the Applicant by its letter dated 28.11.2002 to furnish information regarding the copy of his appointment order in PAD, copy of promotion order in the past in PAD and the seniority list of various ranks in PAD and his representation, if any, against such seniority list. The Applicant submitted a reply to these queries by his letter dated 20.01.2003 and again by another letter dated 30.05.2003. The Applicant again made a representation on 3.08.2006 for finalization of his seniority before his retirement on 31.12.2006. The Respondents finally rejected the representation of the Applicant by the impugned letter dated 9.01.2007. It was observed thus in paragraph 11 of the judgement in OA No.560/2007:
11. The Applicant has been working in the Accounts before moving to EDP Cell. The posts of Auditor and Assistant Superintendent in the EDP Cell were also created by the PAD. He was working as Assistant Superintendent in the EDP Cell. It was only the Government in the Ministry of Finance and the MHA, which decided that the posts of Auditor and Assistant Superintendent did not fall in the category of EDP posts. It was entirely the decision of Government conveyed to the DG, BSF by letter dated 23.06.2000 that the posts of Auditor and Assistant Superintendent should be treated as part of the PAD, BSF headquarters. Clear instructions had been given by the DG, BSF (Staff Section) to the Director (Accounts) to fix the inter-se-seniority of the Applicant in the PAD, BSF. Further clear instructions were given by order of the same date that Assistant Superintendent was to be treated as JAO. A commitment was given to this Tribunal by the compliance affidavit dated 27.06.2000, adverted to above, that all consequential benefits as a result of the order dated 23.06.2000 are being worked out. It is, therefore, difficult to understand how the Respondents can renege on their commitment made to the Applicant and to this Tribunal. The argument that the Applicant has not passed various examinations for coming to the post of JAO is not acceptable because he came as JAO before such provision was made in the recruitment rules. The Respondents have produced a copy of the recruitment rules notified on 3.12.2001, which has been taken on record. Since the Applicant was directed to be equated with JAO by order dated 10.09.2001, whereas the recruitment rules are dated 3.12.2001, the argument of the Respondent falls. The reasoning given in the impugned order that the PAD and EDP Cell are two different Directorates under DG, BSF and governed by the different recruitment rules for the posts in both the Directorates for rejecting the representations of the Applicant also cannot be accepted. This has been reiterated in paragraph 2 of the counter affidavit also. At the cost of repetition, it is reiterated that it was not the Applicant who by some sleight of hand moved into PAD from the EDP Cell of DG, BSF. This is a result of decision taken by the Ministry of Finance, MHA and NIC. This decision has been accepted by the BSF. There cannot be any going back on a decision already taken and a commitment already made to the Applicant and to the Tribunal.
3. The argument pressed before us by the learned counsel for the Respondents during his submissions, however, is that the OA is barred by limitation. It was urged that plea of limitation had not been taken in OA No.560/2007 and, therefore, the Respondents complied with the directions given in that OA. However, it is contended that the benefit of the judgement in P.B. Mishras case (supra) cannot be given, as the Applicant in the instant OA has not filed even an M.A. for condonation of delay. Reliance has been placed on State of Karnataka and others Vs. S.M. Kotrayya and others, 1996 SCC (L&S) 1488.
4. The facts in the cited judgement of the Honourable Supreme Court were that S.M. Kotrayya and others, who were teachers, availed of Leave Travel Concession (LTC) in 1981-82. However, when it came to be known that they had not actually availed of the LTC, recovery came to be made from them in 1984-86. In case of some of the employees, the Karnataka Administrative Tribunal allowed the claims of some of the similarly situated teachers that the Government could not make any recovery from them. S.M. Kotrayya and other teachers made an application before the Tribunal in 1989 for the same relief, with an application for condonation of delay. The Tribunal condoned the delay. The order was challenged in appeal before the Honourable Supreme Court. The Honourable Supreme Court considered the provisions of the Section 21 of the Administrative Tribunals Act, 1985. The Section 21 ibid dealing with limitation, is reproduced below:
21. Limitation - (1) A Tribunal shall not admit an application,-
(a) in a case where a final order such as is mentioned in clause (a) of sub-section (2) of section 20 has been made in connection with the grievance unless the application is made, within one year from the date on which such final order has been made;
(b) in a case where an appeal or representation such as is mentioned in clause (b) of sub-section (2) of section 20 has been made and a period of six months had expired thereafter without such final order having been made, within one year from the date of expiry of the said period of six months.
(2) Notwithstanding anything contained in sub-section (1), where -
(a) 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. It was held thus in the aforecited case:
9. 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.
5. We have pondered deeply about the issue. We are unable to agree with the argument of the learned counsel for the Respondents that the present OA is barred by limitation and that the judgement of the Honourable Supreme Court in S.M. Kotrayya (surpa) would advance the proposition of the Respondents. The facts of the instant OA are distinguishable from the facts of S.M. Kotrayya (supra). The Applicant herein was also an applicant in OA 2158/1993. P.B. Mishra was also an applicant in the same OA, i.e., OA 2158/1993. The Respondents had given an undertaking in CP-51/2002 in OA-2158/1993 that objections to the seniority list dated 11.01.2002 would be considered. However, the Respondents reneged on their undertaking as this Tribunal had held in the decision in OA 560/2007. In OA 560/2007, directions were given to the respondents to fix the seniority of the applicant in the aforesaid OA, i.e., P.B. Mishra in the cadre of PAD, in the grade of JAO at the appropriate place with effect from the date the said P.B. Mishra was holding the post of Assistant Superintendent, with all consequential benefits. The directions given were complied with by the Respondents by order dated 8.07.2009, placed at page 21 of the paper book. The case of the Applicant is identical to that of P.B. Mishra in OA 560/2007. In case of the said P.B. Mishra, the respondents did not raise any objection regarding the said OA being barred by limitation. In our considered opinion, it would absolutely be iniquitous and discriminatory action on the part of the Respondents to raise the plea of limitation in case of the Applicant in the instant OA, who is similarly placed as P.B. Mishra and who was an applicant in OA number 2158/1993. In this view of the matter, the judgement in S.M. Kotrayya (supra) would not apply to this case. The Respondents would not be justified in acting in derogation of their action in implementing the judgement in case of P.B. Mishra in OA number 560/2007.
6. On the basis of above consideration and for parity of reasons, the OA is allowed in the same terms as in OA 560/2007, P.B. Mishra Vs. Union of India and others (supra). The directions be complied with within a period of two months from the receipt of a certified copy of this order. No costs.
( L.K. Joshi ) (V.K. Bali) Vice Chairman (A) Chairman /dkm/