Central Administrative Tribunal - Delhi
Shri N.K.Sharma vs Union Of India on 28 March, 2011
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH OA No. 591/2009 MA 393/2009 MA 801/2009 With OA 2981/2009 MA 2048/2009 New Delhi this the 28th day of March, 2011 Honble Mr. Justice V.K.Bali, Chairman Honble Mr. L.K.Joshi, Vice Chairman (A) OA 591/2009 1. Shri N.K.Sharma, Age 48 years, Working as Joint Director (Vigilance), Ministry of Railways (Railway Board), Rail Bhavan, Raisina Road, New Delhi-110001 R/o 9/715, Lodi Colony, New Delhi-110003. 2. Shri Parvez, Age 48 years Working as Joint Director Finance (BC)-II Ministry of Railways (Railway Board), Rail Bhawan, Raisina Road, New Delhi-110001. R/0 A-31 Pandara Road, New Delhi-110003 3. Shri S.Kameshwar, Age 52 years Working as Under Secretary, Ministry of Railways (Railway Board), Rail Bhawan, Raisina Road, New Delhi-110001 R/0 275- Laxmi Bai Nagar, New Delhi-23 4. Smt. Vaidehi Gopal, Age 52 years Working as Dy. Director (on deputation), Ministry of Railways (Railway Board), R/o A-207, Fakhruddin Memorial Society, Plot No. 18, Sector 10, Dwarka, New Delhi-110075 5. Shri Prabir Roy, Age 44 years Working as Dy. Director, Ministry of Railways (Railway Board), Rail Bhawan, Raisina Road, New Delhi-110001. R/o DG-996, Sarojini Nagar, New Delhi-110023. Applicants (By Advocate Shri A.N. Das ) VERSUS 1. Union of India, through Secretary, Railway Board, Ministry of Railways, (Railway Board), Rail Bhawan, Raisina Road, New Delhi-110001 2. Joint Secretary (G), Ministry of Railways, Railway Board, Rail Bhavan, Raisina Road, New Delhi- 110001. 3. Chairman, UPSC Dholpur House, Shahjehan Road, New Delhi-110001 4. Sh. Sunil Kumar, Deputy Secretary, Ministry of Railways, Railway Board, Rail Bhawan, New Delhi. 5. Shri M S Mehra, Joint Secretary, Ministry of Railways, Railway Board, Rail Bhawan, New Delhi. 6. Sh. Shiv Dan Singh Ex. Director ( On training) Ministry of Railways, Railway Board, Rail Bhawan, New Delhi. 7. Shri B. Majumdar Director (On training) Ministry of Railways, Railway Board, Rail Bhawan, New Delhi. 8. Shri M. Moharana, Joint Director (Training), Ministry of Railways, Railway Board, Rail Bhawan, New Delhi. 9. Shri S.K. Aggarwal, Deputy Secretary E (O) 1, Ministry of Railways, Railway Board, Rail Bhawan, New Delhi. 10. Sh. Sudhir Kumar, Deputy Director (On deputation) Ministry of Railways, Railway Board, Rail Bhawan, New Delhi. 11. Shri T.Srinivas, Section Officer Track III Ministry of Railways, Railway Board, Rail Bhawan, New Delhi. 12. Ms. G Priya Sudarsini, Deputy Director, Ministry of Railways, Railway Board, Rail Bhawan, New Delhi. 13. Sh Manoj Kumar, Under Secretary, Ministry of Railways, Railway Board, Rail Bhawan, New Delhi. Respondents (By Advocate Shri Shailendra Tiwary, counsel for official respondents and Ms. Alka Sharma, counsel for respondent (UPSC) and Shri Sanjeev Kumar, counsel for pvt. Respondents No. 7 and 11 to 13.) OA 2981/2009 1. Shri Manoj Kumar, Under Secretary [E (O)-II], Railway Board, Ministry of Railways, Rail Bhavan, Raisina Road, New Delhi-110001 2. Shri Sunil Kumar, Deputy Secretary (D&A), Railway Board, Ministry of Railways, Rail Bhawan, Raisina Road, New Delhi-110001 3. Shri B. Majumdar, Director (Estt. /G), Railway Board, Ministry of Railways, Rail Bhawan, Raisina Road, New Delhi-110001 4. Shri H. Moharana, Joint Director (Trg.), Railway Board, Ministry of Railways, Rail Bhawan, Raisina Road, New Delhi-110001 5. Shri S.K.Agrawal, Deputy Secretary [ E (O)-I] Railway Board, Ministry of Railways, Rail Bhavan, Raisina Road, New Delhi-110001 6. Shri Sudhir Kumar, Asstt. Commissioner [ On Deputation] M.C.D. Karol Bagh Zone, Anand Parvat, New Delhi. 7. Shri T. Srinivas, Deputy Director [ Track-II] Railway Board, Ministry of Railways, Rail Bhavan, Raisina Road, New Delhi-110001. Applicants ( By Advocate Shri Sanjeev Kumar ) VERSUS 1. Union of India, Through the Chairman, Railway Board, Ministry of Railways, Rail Bhavan, Raisina Road, New Delhi-110001 2. The Member (Staff), Railway Board, Ministry of Railways, Rail Bhavan, Raisina Road, New Delhi-110001 3. The Secretary, Railway Board, Ministry of Railways, Rail Bhawan, Raisina Road, New Delhu-110001 4. The Union Public Service Commission Through the Secretary, Dholpur House, Shahjahan Road, New Delhi-110001 5. Shri N.K.Sharma, Joint Director [Vigilance (s)], Railway Board, Ministry of Railways, Rail Bhawan, Raisina Road, New Delhi-110001 6. Shri Parvez, Joint Director Finance (BC)-II Railway Board, Ministry of Railways, Rail Bhawan, Raisina Road, New Delhi-110003. 7. Shri S. Kameshwar, Under Secretary (Stationery), Railway Board, Ministry of Railways, Rail Bhawan, Raisina Road, New Delhi-110001 8. Smt. Vaidehi Gopal, Deputy Director ( on deputation), Railway Board, Ministry of Railways, Rail Bhawan, Raisina Road, New Delhi-110001 9. Shri Prabir Roy, Deputy Director [ Estt. (GP ], Railway Board, Ministry of Railways, Rail Bhawan, Raisina Road, Respondents (By Advocate Shri Shailendra Tiwary for official respondents, Ms. Alka Sharma for UPSC and Shri A.N.Das counsel for pvt. Respondents) O R D E R Mr. L.K.Joshi, Vice Chairman (A) :
We are dealing with both the OAs in this common order as the facts are identical and common questions of law are involved.
2. Challenge in OA number 591/2009 is to the consolidated seniority list of the Section Officers' Grade in The Railway Board Secretariat Service (RBSS) and the order dated 22.12.2008 passed by the Secretary, Railway Board, the first Respondent herein, in pursuance of the directions given in the order dated 01.05.2008 in OA number 2370/2006 by this Tribunal. The main prayer of the Applicants is that:
i. Set aside the impugned seniority list dated 21-4-2008 and Speaking Order issued vide Memorandum dated 22-12-2008 as illegal, arbitrary and contrary to law.
ii. Direct the Respondents to revise the impugned seniority list dated 21.4.2008 by according placements to DR SOs with reference to their date of joining in terms of Honble Supreme Courts judgment dated 19.2.2008 in the case of AFHQ (Supra) as also in catena of cases including Shri H.V.Paradasani & ors Vs. UOI, AIR 1985 SC 791, and A Janardhana Vs U O I & ors 1983 (2) SLR 113 and DOP&T vide Notification dated 29.12.1984 which was circulated to all Ministries/Deptts. including the Ministry of Railways (Railway Board).
iii. To review the panels for the posts of Under Secretaries/Deputy Directors from the year 1984/1986 onwards on the basis of the revised seniority list so prepared.
3. The Applicants began their career in the Railway Board as Assistants/Personal Assistants and were promoted to the grade of Section Officer through Limited Departmental Competitive Examination (LDCE) on different dates. As per the extant rules the Section Officers are eligible for promotion to the grade of Under Secretary after eight years of approved service in the grade of Section Officer. The grievance of the Applicants is that while the directly recruited Section Officers have been promoted to the higher grade after completing the eligibility service for promotion, the Applicants have either been promoted with considerable delay or not promoted at all till now. An illustrative statement showing the date of eligibility for promotion and actual date of promotion in case of the departmental promotees and direct recruits has been placed at Annex A-4. The table has been reproduced below:
Illustrative Statement showing how wrong enforcement of failed Rota-Quota System has jeopardized the career progression of the Applicants.
S.No. Name S/Shri DR/ Promotee Date from which approved Service Counts as Section Officer Date from which Eligible for empanelment as Under Secy./Deputy Director Date from which Actually empanelled as Under Secy/Dy.Dir 1 Parvez Promotee 1.7.1986 1.7.1994 1.7.1997
2. NK Sharma Promotee 1.7.1986 1.7.1994 1.7.1997
3. Maneesh Kumar DR 1.7.1986 1.7.1994 1.7.1994
4. Anuj Dayal DR 1.7.1986 1.7.1994 1.7.1994
5. B.Mazumdar (SC) DR 1.7.1988 1.7.1996 1.7.1992
6. R.K.Meena (ST) DR 1.7.1988 1.7.1996 1.7.1992
7. H.Moharana DR 1.7.1988 1.7.1996 1.7.1996
8. SK Agarwal DR 1.7.1989 1.7.1997 1.7.1997
9. DV Rao (SC) DR 1.7.1991 1.7.1999 1.7.1995
10. Ms.Sukhender Kaur Promotee 1.7.1990 1.7.1998 Yet to be empanelled
11. S.Kameshwar Promotee 1.7.1991 1.7.1999 Yet to be empanelled
12. Vaidehi Gopal Promotee 1.7.1991 1.7.1999 Yet to be empanelled
13.
Manoj Kumar DR 1.7.1997 1.7.2005 21.4.2006 (to be empanelled from 1.7.2005)
14. Prabir Roy Promotee 1.7.1995 1.7.2003 Yet to be empanelled Since the above table does not include the names of all the private Respondents, we elicited the information regarding their promotion from the learned counsel for the Applicants. From the information given by the learned counsel it would appear that Shri M S Mehra, the fifth Respondent was promoted to the grade of Under Secretary on 01.07.1986 and has since then been promoted to the grade of Deputy Secretary from 1992. The fourth Respondent, Shri Sunil Kumar, was promoted to the grade of Under Secretary on 01.07.1998. The sixth Respondent, Shri Shiv Dan Singh, was promoted to the grade of Under Secretary on 01.07.1987 and since then promoted as Deputy Secretary in 1993. The eighth and the ninth Respondents have also been promoted to the grade of Deputy Secretary in 2005 and 2006 respectively.
4. While going through the lucid, well reasoned and speaking order dated 22.12.2008 of the first Respondent, passed pursuant to the directions given in the OA number 2370/2006, the following observations made regarding belated nature of the grievance of the Applicants have been made:
I am also constrained to observe that the issue of seniority raised by the DPs in their aforesaid OA is highly belated. Raising a grievance alleged to have occurred in the year 1986 after a passage of 20 years itself dilutes the merits of the same. I am advised that there are judicial pronouncements which lay down that if a person feels that he is entitled to a relief and chooses to remain silent for long, he thereby gives rise to a reasonable belief in the mind of others that he is not interested in claiming that relief. During this long period of two decades, the officers concerned have reached such a position that it is extremely difficult, if not impossible, to recast the same without reverting them with retrospective effect. Moreover, by now, a large number of officers have got further promotions to the higher grades based on the existing seniority and a large number of them have even retired. At this stage, it is administratively impossible to re-determine their promotions on the basis of revised seniority. I also find that a large number of officers belonging to SC/ST communities, who have already got further promotions, will be adversely affected through this exercise.
Even if the methodology laid down by the Apex Court for fixing seniority of DRs and DPs (1: 5 followed by 1: 4) is applied in the RBSS, I find that neither of the parties stand to gain anything. While the seniority of the DRs gets slightly depressed by assigning them seniority on the basis of their dates of entry into service, the seniority of a majority of the DPs suffers a precipitate fall. At this stage, when a large number of DPs have already got promotions to the higher grades, it would bring unmitigated hardship and embarrassment to the DPs if they are reverted to lower grades on the basis of downward seniority. The problem will be all the more complicated in the case of those promoted from the PAs cadre as it will have a ripple effect down the line in that cadre. Certainly, revision of seniority cannot be undertaken in a scenario where it brings such adverse results to the entire cadre and damages the morale of the officers.
Today, in the total number of RBSS officers, there are only 20 DRs. The rest are all DPs. Moreover, the recruitment of DRs has stopped from the year 2004. Therefore, the source of disgruntlement for the DPs has already got plugged. In fact, none of the Applicants and Private Respondents are working as Section Officers on date as they already stand promoted to the higher grades. That being the case, I find no justification in undertaking the exercise of revising the seniority list of Section Officers of RBSS at this stage as it would lead to complete administrative mayhem. The existing seniority position has withstood the test of time and to question the same after 20 years is, I may reiterate, hopelessly time-barred. I have been advised that there are judicial pronouncements which lay down that settled matters cannot be unsettled at a very distant date. Therefore, the revision of seniority, even if undertaken at this stage, will be a futile and unwarranted exercise.
I, therefore, dispose of the aforesaid representations of the DPs and DRs and conclude by borrowing words from the Order dtd. 01.05.2008 of the Honble Tribunal that the factual position as existed shall not be disturbed. This, according to me, is the best course of action from the overall point of view and should be acceptable to both the parties in their own interests. Consequently, further empanelment/promotions in RBSS cadre can continue to be made on the basis of the existing position, i.e., the position that existed prior to filing of the O.A.
5. The official Respondents have also urged that the OA is highly belated and barred by limitation in paragraph 9 of the counter affidavit.
6. The learned counsel for the Applicants would, however, contend that the OA is not barred by limitation as the Seniority List was published for the first time in 2008 and the order passed by the first Respondent is also of the same year.
7. We cannot accept the arguments of the Applicants. The Seniority List of 2008 is a reflection of the situation which has developed since 1986 and the Applicants have never challenged the promotion of the Respondents since then. Some of the Respondents have been even promoted to the next grade of Deputy Secretary from 1992 to 2006, which has also not been challenged. We agree with the Respondents that any interference with the Seniority List at this stage will be a sure recipe for administrative chaos, as it would unsettle the position settled more than two decades back. This situation cannot be countenanced. The Applicants have not controverted any of the observations made by the first Respondent in his speaking order regarding limitation in their averments.
8. We are of the convinced opinion that the OA is hopelessly barred by limitation under Section 21 of the Administrative Tribunals Act, 1985, which is extracted 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. The Applicants should have challenged the promotion of the private Respondents to the grade of Under Secretary in 1986, 1987, 1998 et cetra, when these were given. Having silently acquiesced in these promotion and subsequently promotions to even higher grade as Deputy Secretary, they cannot challenge these at this late stage.
Challenge to the seniority list would be tantamount to a challenge to these promotions in the past.
9. We, therefore, dismiss the OA as barred by limitation, without going into the merits of the case.
10. OA number 2981/2009 has been filed by the direct recruit officers. The relief sought is as follows:
(a) quash and set aside the impugned Speaking Order contained in Memorandum No.ERB-1/2006/14/32 dated 22.12.2008 issued by the Respondent No.1 to 3 to the extent that it seeks to protect the unlawful and unconstitutional benefits accorded to DPs promoted in excess of the prescribed quota and thereby denying the rightful claims of further promotions and attendant consequential benefits to the DR Applicants, in contravention and derogation of not only the RBSS Rules, 1969 framed under article 309 of the Constitution of India but also of the law laid down by the Apex Court in Constitution Bench judgments of S.G.Jaisinghania Vs. Union of India & Ors [ AIR 1967 SC 1427], State of Punjab Vs. Jagdip Singh & Ors [ 1964 (4) SCR 964] and Secretary, State of Karnataka & Ors Vs. Uma Devi & ors [ 2006 (4) SCC 1] etc. as well as the full bench judgment in AFHQ Officers Association Vs. Union of India & ors. [ OA No.1384/2008 decided on 19.02.2008] in the light of which earlier OA No. 2370/2006 was adjudicated as stands disposed of by this Honble Tribunal. For the same reasons as in OA number 591/2009, this OA is also barred by limitation and is, therefore, dismissed.
11. There will be no orders as to costs.
12. A copy of this order may be placed in both the OAs.
( L.K.Joshi ) ( V.K.Bali ) Vice Chairman (A) Chairman sk