Central Administrative Tribunal - Delhi
Rajiv Tandon vs The Government Of India on 7 March, 2012
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
NEW DELHI
Original Application (OA) No. 412/2005
with
OA 2889/2005, OA 2890/2005,
OA 2891/2005, OA 2892/2005,
OA 2893/2005 and OA 1525/2006
Judgment reserved on : 27th February, 2012
Pronounced on : 7th March, 2012
HONBLE SHRI JUSTICE V. K. BALI, CHAIRMAN
HONBLE DR. RAMESH CHANDRA PANDA, MEMBER (A)
OA 412/2005
Rajiv Tandon, IPS S/o Shri Ratan Lal Tandon,
R/o E-61, Nivedita Kunj,
Sector-10, R.K. Puram,
New Delhi. Applicant
VERSUS
1. The Government of India,
through its Secretary,
Ministry of Home Affairs,
New Delhi.
2. The Government of India,
Ministry of Personnel,
(Department of Personnel & Training),
New Delhi,
Through its Secretary.
3. The Principal Secretary (Home),
Government of Madhya Pradesh,
Bhopal, Mantralaya, Bhopal.
4. The Director General of Police,
Bhopal, Madhya Pradesh.
5. The Director,
Lal Bahdur Shastri National Academy
of Administration, Mussorie,
Uttaranchal.
6. Mr. Manoj Yadava, IPS
C/o Director, Intelligence Bureau,
S.P. Marg, New Delhi.
7. Mr. Anish Dayal Singh, IPS
C/o Director, Intelligence Bureau,
S.P. Marg, New Delhi.
8. Mr. H.R. Dasondi, IPS
C/o Director General of Police,
Maharashtra, Mumbai.
9. Mr. S.N. Pradhan, IPS
C/o D.G.P. Jharkhand,
Ranchi.
10. Sanjay Kumar Pillay, IPS
C/o D.G.P. Chhattisgarh, Rajpur,
11. Mr. Manoj Kumar Lall, IPS
C/o Commissioner of Police,
Police Headquarter, New Delhi
Also at D-1/75, Ravinder Nagar,
New Delhi.
12. Mr. Balaji Srivastava, IPS
20/67 Maxmullar Marg,
Lodhi Colony, New Delhi.
13. Mr. U.R. Sahoo, IPS
C/o D.G.P. Rajasthan, Jaipur.
14. Mr. Arvind Kumar, IPS
C/o D.G.P. Madhya Pradesh, Bhopal
also C/o Secretary, Ministry of External Affairs,
South Block,
New Delhi. Respondents
OA 2889/2005
Shri N.K. Mishra
S/o Shri Vijay Kant Mishra,
Deputy Director, Intelligence Bureau,
M/o Home Affairs, 35, S.P.Marg,
New Delhi. Applicant
VERSUS
1. The Government of India,
through its Secretary,
Ministry of Home Affairs,
New Delhi.
2. The Government of India,
Ministry of Personnel,
(Department of Personnel & Training),
New Delhi, Through its Secretary.
3. The Director,
Lal Bahadur Shastri National Academy
of Administration, Mussorie,
Uttaranchal.
4. Mr. Manoj Yadave, IPS
C/o Director, Intelligence Bureau,
S.P. Marg, New Delhi.
5. Mr. Anish Dayal Singh, IPS
C/o Director, Intelligence Bureau,
S.P.Marg, New Delhi.
6. Mr. H.R. Dasondi, IPS
C/o Director General of Police,
Maharashtra, Mumbai.
7. Mr. S.N. Pradhan, IPS
C/o D.G.P. Jharkhand, Ranchi.
8. Sanjay Kumar Pillay, IPS
C/o D.G.P. Chhattisgarh, Raipur
9. Mr. Manoj Kumar Lall, IPS
C/o Commissioner of Police,
Police Headquarter, New Delhi
Also at D-1/75, Ravinder Nagar,
New Delhi.
10. Mr. Balaji Srivastava, IPS
20/67 Maxmullar Marg,
Lodhi Colony, New Delhi.
11. Mr. U.R. Sahoo, IPS
C/o D.G.P. Rajasthan, Jaipur
12. Mr. Arvind Kumar, IPS
C/o D.G.P. Madhya Pradesh,
Bhopal
Also C/o Secretary, Ministry of External Affairs,
South Block, New Delhi.
13. Sudhir Kumar Shahi,
C/o Secretary, RAW, CGO Complex,
New Delhi.
14. Amitabh Ranjan,
C/o Director, Intelligence Bureau,
S.P. Marg, New Delhi. Respondents
OA 2890/2005
1. Shri Probodh Kumar,
S/o Shri G.D. Prakash,
DIG, Vigilance Bureau,
Punjab, Chandigarh.
2. S. Sundari Nanda,
W/o Pranab Nanda,
Dy. Inspector General of Police,
C.B.I./AC.III, New Delhi.
3. B.L. Soni S/o Late J.R. Soni,
DIG, CBI, ACR, Chandigarh.
4. Pankaj Kumar Singh,
S/o Prakash Singh,
DIG, Central Bureau of Investigation,
CGO Complex, Block-IV, Lodhi Road,
New Delhi-110003. Applicants
VERSUS
1. The Government of India,
through its Secretary,
Ministry of Home Affairs,
New Delhi.
2. The Government of India,
Ministry of Personnel
(Department of Personnel & Training),
New Delhi through its Secretary.
3. The Director,
Lal Bahadur Shastri National Academy
of Administration, Mussorie,
Uttaranchal.
4. Mr. Manoj Yadava, IPS
C/o Director, Intelligence Bureau,
S.P. Marg, New Delhi.
5. Mr. Anish Dayal Singh, IPS
C/o Director, Intelligence Bureau,
S.P. Marg, New Delhi.
6. Mr. H.R. Dasondi, IPS
C/o Director General of Police,
Maharashtra, Mumbai.
7. Mr. S.N. Pradhan, IPS
C/o D.G.P. Jharkhand, Ranchi.
8. Sanjay Kumar Pillay, IPS
C/o D.G.P. Chhattisgarh, Raipur.
9. Mr. Manoj Kumar Lall, IPS
C/o Commissioner of Police,
Police Headquarter, New Delhi
Also at D-1/75, Ravinder Nagar,
New Delhi.
10. Mr. Balaji Srivastava, IPS
20/67 Maxmullar Marg,
Lodhi Colony, New Delhi.
11. Mr. U.R. Sahoo, IPS
C/o D.G.P. Rajashtan, Jaipur
12. Mr. Arvind Kumar, IPS
C/o D. G.P. Madhya Pradesh, Bhopal
Also C/o Secretary,
Ministry of External Affairs,
South Block, New Delhi.
13. Sudhir Kumar Shahi,
C/o Secretary, RAW, CGO Complex,
New Delhi.
14. Amitabh Ranjan,
C/o Director, Intelligence Bureau,
S. P. Marg, New Delhi.
15. Ramesh Chandra Singh,
C/o Home Secretary,
Ministry of Home Affairs,
Government of India, New Delhi.
16. Anand Kumar, IPS
Director Security, Indian Airlines Ltd.,
Safdarjung Airport, Vigilance Department,
2nd Floor, Reservation Building,
New Delhi-1100 003. Respondents
OA 2891/2005
1. Shri Tapan Kumar Deka,
S/o Late Nabin Chandra Deka,
Deputy Director, Intelligence Bureau,
M/o Home Affairs, 35, S.P. Marg,
New Delhi.
2. Shri Manmohan Singh,
S/o Shri Gurmukh Singh,
Deputy Director, Intelligence Bureau,
M/o Home Affairs, 35, S.P. Marg,
New Delhi.
3. Pranab Nanda r/o Late Dr. Kishori Mohan Nanda,
Deputy Director, Intelligence Bureau,
35, Akbar Road, New Delhi-1 Applicants
VERSUS
1. The Government of India,
through its Secretary,
Ministry of Home Affairs,
New Delhi.
2. The Government of India,
Ministry of Personnel,
(Department of Personnel & Training),
New Delhi, through its Secretary.
3. The Director,
Lal Bahadur Shastri National Academy
of Administration, Mussorie,
Uttaranchal.
4. Mr. Manoj Yadava, IPS
C/o Director, Intelligence Bureau,
S.P. Marg, New Delhi.
5. Mr. Anish Dayal Singh, IPS
C/o Director, Intelligence Bureau,
S.P. Marg, New Delhi.
6. Mr. H.R. Dasondi, IPS
C/o Director General of Police,
Maharashtra, Mumbai.
7. Mr. S.N. Pradhan, IPS
C/o D.G.P. Jharkhand, Ranchi.
8. Sanjay Kumar Pillay, IPS
C/o D.G.P. Chhattisgarh, Raipur
9. Mr. Manoj Kumar Lall, IPS
C/o Commissioner of Police,
Police Headquarter, New Delhi
Also at D-1/75, Ravinder Nagar, New Delhi.
10. Mr. Balaji Srivastava, IPS
20/67 Maxmullar Marg,
Lodhi Colony, New Delhi.
11. Mr. U.R. Sahoo, IPS
C/o D.G.P. Rajasthan, Jaipur.
12. Mr. Arvind Kumar, IPS
C/o D.G.P. Madhya Pradesh, Bhopal
Also C/o Secretary, Ministry of External
Affairs, South Block, New Delhi.
13. Sudhir Kumar Shahi,
C/o Secretary, RAW, CGO Complex,
New Delhi.
14. Amitab Ranjan, C/o Director, Intelligence Bureau,
S.P. Marg, New Delhi.
15. Ramesh Chandra Singh
C/o Home Secretary, Ministry of Home Affairs,
Government of India, New Delhi.
16. Anand Kumar, IPS
Director (Security), Indian Airlines Ltd.,
Safdar Jung Airport, Vigilance Department,
2nd Floor, Reservation Building,
New Delhi- 110 003.
17. Sudhir Chaudhry, IPS
DIG (Investigation), NHRC,
C/o Security, National Human Rights Commission,
New Delhi.
18. Ravi Sinha,
DIG, C/o Secretary, RAW
New Delhi.
19. A.K. Ray,
DIG, CISF, Kolkata,
C/o Director General of Police,
CISF, Kolkata (West Bengal).
20. Sunil Kumar Singh,
DIG, Railway, Chennai,
Tamil Nadu.
C/o DGP, Tamilnadu.
21. Ravi Pathapu,
DIG, CID (Special),
Kolkata, West Bengal,
C/o DGP, West Bengal.
22. Upendra Baghel,
International Criminal Tribunal for Rwanda,
C/o Secretary, Ministry of External Affairs,
New Delhi.
23. Kailash C. Meena,
C/o Director, Intelligence Bureau,
New Delhi.
24. K. Narasimha Rao,
Director General of Police,
Andhra Pradesh. Respondents
OA 2892/2005
Shri Y. Anil Kumar
S/o Shri Y. CH, Venkat Rao,
Dy. Inspector General of Police (Admn.)
Police Headquarters,
Thiruvananthapuram (Kerala) Applicant
(By Advocate Shri Amitesh Kumar )
VERSUS
1. The Government of India,
through its Secretary,
Ministry of Home Affairs, New Delhi.
2. The Government of India,
Ministry of Personnel,
(Department of Personnel & Training )
New Delhi, through its Secretary.
3. The Director,
Lal Bahadur Shastri National Academy
of Administration, Mussorie, Uttranchal.
4. Mr. Manoj Yadava, IPS
C/o Director, Intelligence Bureau,
S.P. Marg, New Delhi.
5. Mr. Anish Dayal Singh, IPS
C/o Director, Intelligence Bureau,
S.P. Marg, New Delhi.
6. Mr. H.R. Dasondi, IPS
C/o Director General of Police,
Maharashtra, Mumbai.
7. Mr. S.N. Pradhan, IPS
C/o D.G.P. Jharkhand, Ranchi.
8. Sanjay Kumar Pillay, IPS
C/o D.G.P. Chhattisgarh, Raipur.
9. Mr. Manoj Kumar Lall, IPS
C/o Commissioner of Police,
Police Headquarter, New Delhi
Also at D-1/75, Ravinder Nagar,
New Delhi.
10. Mr. Balaji Srivastava, IPS
20/67, Maxmullar Marg, Lodhi Colony,
New Delhi.
11. Mr. U.R. Sahoo, IPS
C/o D.G.P. Rajasthan, Jaipur.
12. Mr. Arvind Kumar, IPS
C/o D.G.P. Madhya Pradesh,
Bhopal
Also C/o Secretary, Ministry of External Affairs,
South Block, New Delhi.
13. Sudhir Kumar Shahi,
C/o Secretary, RAW, CGO Complex,
New Delhi.
14. Amitabh Ranjan,
C/o Director, Intelligence Bureau,
S.P. Marg, New Delhi.
15. Ramesh Chandra Singh,
C/o Home Secretary,
Ministry of Home Affairs,
Government of India, New Delhi.
16. Anand Kumar, IPS
Director Security, Indian Airlines Ltd.,
Safdar Jung Airport, Vigilance Department,
2nd Floor, Reservation Building,
New Delhi-110 003. Respondents
OA 2893/2005
1. Shri Surendra Kumar Pandey,
S/o Late Shri R.P. Pandey,
DIG. S.P. G., 9, Race Course Road,
New Delhi-110011
2. Sujoy Lal Thaosen,
S/o Late Shri J.L. Thaosen,
DIG, S.P.G. 9, Race Course Road,
New Delhi.
3. Ram Phal Pawar S/o Shri Jai Lal Pawar,
DIG, S.P.G (Cabinet Secretariat)
9, Race Course Road,
New Delhi-110011 ... Applicants
VERSUS
1. The Government of India,
through its Secretary,
Ministry of Home Affairs, New Delhi.
2. The Government of India,
Ministry of Personnel,
(Department of Personnel & Training )
New Delhi, through its Secretary.
3. The Director,
Lal Bahadur Shastri National Academy
of Administration, Mussorie, Uttranchal.
4. Mr. Manoj Yadava, IPS
C/o Director, Intelligence Bureau,
S.P. Marg, New Delhi.
5. Mr. Anish Dayal Singh, IPS
C/o Director, Intelligence Bureau,
S.P. Marg, New Delhi.
6. Mr. H.R. Dasondi, IPS
C/o Director General of Police,
Maharashtra, Mumbai.
7. Mr. S.N. Pradhan, IPS
C/o D.G.P. Jharkhand, Ranchi.
8. Sanjay Kumar Pillay, IPS
C/o D.G.P. Chhattisgarh, Raipur.
9. Mr. Manoj Kumar Lall, IPS
C/o Commissioner of Police,
Police Headquarter, New Delhi
Also at D-1/75, Ravinder Nagar,
New Delhi.
10. Mr. Balaji Srivastava, IPS
20/67, Maxmullar Marg, Lodi Colony,
New Delhi.
11. Mr. U.R. Sahoo, IPS
C/o D.G.P. Rajasthan, Jaipur.
12. Mr. Arvind Kumar, IPS
C/o D.G.P. Madhya Pradesh, Bhopal (MP)
Also C/o Secretary, Ministry of External Affairs,
South Block, New Delhi.
13. Sudhir Kumar Shahi
C/o Secretary, RAW, CGO Complex,
New Delhi.
14. Amitab Ranjan
C/o Director, Intelligence Bureau,
S.P. Marg, New Delhi.
15. Ramesh Chandra Singh,
C/o Home Secretary,
Ministry of Home Affairs,
Government of India, New Delhi.
16. Anand Kumar, IPS
Director Security, Indian Airlines Ltd.,
Safdar Jung Airport, Vigilance Department,
2nd Floor, Reservation Building,
New Delhi-110 003.
17. Sudhir Chaudhary, IPS
DIG (Investigation), NHRC,
C/o Secretary,
National Human Rights Commission,
New Delhi.
18. Ravi Sinha, DIG,
C/o Secretary, RAW, New Delhi.
19. A.K. Ray,
DIG, CISF, Kolkata,
C/o Director General of Police, CISF,
Kolkata (West Bengal) Respondents
OA 1525/2006
Shri Praveen Kumar Sinha,
S/o Late Dr. Purnendu Narayan Sinha,
DIG, C.B.Z., Patna (Bihar). Applicant
VERSUS
1. The Government of India,
through its Secretary,
Ministry of Home Affairs, New Delhi.
2. The Government of India,
Ministry of Personnel,
(Department of Personnel & Training )
New Delhi, through its Secretary.
3. The Director,
Lal Bahadur Shastri National Academy
of Administration, Mussorie, Uttaranchal.
4. Mr. Manoj Yadava, IPS
C/o Director, Intelligence Bureau,
S.P. Marg, New Delhi.
5. Mr. Anish Dayal Singh, IPS
C/o Director, Intelligence Bureau,
S.P. Marg, New Delhi.
6. Mr. H.R. Dasondi, IPS
C/o Director General of Police,
Maharashtra, Mumbai.
7. Mr. S.N. Pradhan, IPS
C/o D.G.P. Jharkhand, Ranchi.
8. Sanjay Kumar Pillay, IPS
C/o D.G.P. Chhattisgarh, Raipur.
9. Mr. Manoj Kumar Lall, IPS
C/o Commissioner of Police,
Police Headquarter, New Delhi
Also at D-1/75, Ravinder Nagar,
New Delhi.
10. Mr. Balaji Srivastava, IPS
20/67, Maxmullar Marg, Lodi Colony,
New Delhi.
11. Mr. U.R. Sahoo, IPS
C/o D.G.P., Rajasthan, Jaipur.
12. Mr. Arvind Kumar, IPS
C/o D.G.P. Madhya Pradesh, Bhopal (MP)
Also C/o Secretary, Ministry of External Affairs,
South Block, New Delhi.
13. Sudhir Kumar Shahi
C/o Secretary, RAW, CGO Complex,
New Delhi.
14. Amitab Ranjan
C/o Director, Intelligence Bureau,
S.P. Marg, New Delhi.
15. Ramesh Chandra Singh C/o Home Secretary,
Ministry of Home Affairs,
Government of India, New Delhi.
16. Anand Kumar, IPS
Director Security, Indian Airlines Ltd.,
Safdar Jung Airport, Vigilance Department,
2nd Floor, Reservation Building,
New Delhi-110 003. Respondents
By Shri Amitesh Kumar, Advocate for the Applicants;
Shri B.S. Jain, Shri Rajesh Katyal, Shri R. N. Singh, and Shri Naveen Sharma and Shri S. K. Gupta, Advocates for Respondents.
O R D E R
Justice V. K. Bali, Chairman:
Rajiv Tandon and others, belonging to the Indian Police Service (IPS), filed seven separate Original Applications, questioning the constitutionality/legality of notification dated 20/29.01.1994 amending/substituting proviso to rule 3(3)(i) of the IPS (Regulation of Seniority) Rules, 1988 (hereinafter to be referred as the Rules of 1988), with retrospective effect from 1988. This Tribunal in OA No.632/1996 in the matter of Ashok Kumar v Union of India, decided on 16.03.2000, had already upheld the said notification. The Division Bench seized of this matter was of the opinion that some of the relevant issues involved in the matter were not considered by the Tribunal in Ashok Kumars case, and, therefore, the matter was referred to a larger Bench. The larger Bench of this Tribunal vide order dated 18.03.2010 held that the decision in Ashok Kumar (supra) did not lay correct law, and over-ruled it. The matter was not finally disposed of, as the question of limitation raised by the respondents was left to be decided by the Division Bench. The procedure as adopted by this Tribunal has been held by the High Court, in a writ petition filed against the order of the Full Bench, to be flawed, as limitation was an issue to be determined, and it ought to have been decided first, as it is only then that the Tribunal could enter into the merits of the controversy. This is indeed so, as has also been held recently by the Honble Supreme Court in D. C. S. Negi v Union of India [SLP(C) No.7956/2011, CC 3709/2011], decided on 7.3.2011. All that we may like to mention is that the Full Bench to which the matter came to be referred, it appears, was keen to settle the law, particularly when it appeared to it that the law laid down by the Tribunal earlier may not be correct. That anxiety, it appears, became a factor to deal with the controversy on merits, irrespective of the final fate of the OAs, which, if found to be barred by time, could have been dismissed. Be that as it may, once the procedure adopted by this Tribunal has not been approved by the Honble High Court, and it is indeed the law as well, as even held by the Honble Supreme Court, nothing more requires to be mentioned. Vide order dated 13.12.2010, the Tribunal has been requested by the Honble High Court to decide the issue of limitation, preferably within a period of two months. Before we may deal with the issue of limitation, we may mention at the outset that the Tribunal regrets that the matter could not be disposed of within two months. It has rather taken this Tribunal to decide the matter more than a year. A direction issued by a higher judicial forum has to be complied with, but when it is a request, it is taken more than a direction, and with respect. However, there were reasons, some of which would be reflected from our order while dealing with the issue of limitation, for which finalization of the issue got delayed.
2. Rajiv Tandon, applicant in OA No.412/2005, a 1988 batch IPS officer, as mentioned above, has questioned the notification dated 20/29.01.1994 issued by the Government of India, Department of Personnel & Training, amending the proviso to clause (1) of sub-rule (3) of rule 3 of the Rules of 1988 with retrospective effect, being ultra vires. His prayer is also to set aside the order dated 17.09.2004 of the Director (Police), Ministry of Home Affairs, Government of India, whereby his representation dated 09.01.1995 against the notification as mentioned above has been rejected. In consequence thereof, the applicant also seeks quashing of the tentative inter se seniority list of 1988 batch IPS probationers circulated vide letter dated 25.10.1994 by the first respondent, with a direction to the said respondent to revise and re-fix the inter se seniority of the IPS officers of 1988 batch in accordance with clause (1) of sub-rule (3) of rule 3 of the Rules of 1988, as it was prevailing at the time of selection and appointment of the applicant in IPS of 1988 batch. His prayer is also to direct the first respondent to place the IPS officers of 1988 batch at the bottom of the seniority list en bloc who were exempted probationers or who did not report for probation in the Academy on the specified date, i.e., 24.08.1988.
3. One of the objections in resisting the claim of the applicant by the respondents is that the present OA would be barred by limitation. The interim orders passed by this Tribunal after the order of the Honble High Court, as mentioned above, would show that the arguments in this case were heard on 28.01.2011, but the same remained inconclusive. On 09.02.2011 arguments were heard at sufficient length, but the same could not be concluded. In addition to the plea of bar of limitation, the plea that the OA would suffer from unexplained delay and laches, was also pressed. In that regard, it was submitted that when all this while till such time the OA came to be filed, the respondents were issuing seniority lists continuously from 1995, irrespective of pendency of the representation of the applicant, the applicant ought to have approached an appropriate forum for redressal of his grievances. This objection has been raised by the private respondents, but there was no specific plea taken on that behalf by the Union of India in their counter reply. That being so, on 23.03.2011, we recorded the following order:
Even though there are some pleadings made on behalf of the private respondents that seniority lists are being issued ever since 1995 continuously, but there are no specific pleadings on that count made by the Government in their counter reply filed on their behalf. So as to decide the controversy in issue, at this stage, we require a responsible officer of respondent No.1 to file an affidavit as to whether seniority lists were being issued from 1994/95 and whether such lists are final seniority lists or only civil lists. The respondents may also apprise this Tribunal as to whether by seniority list or civil list promotions are being made, and further as to any one from whom applicants claim seniority was promoted, and if so, when. List on 28.4.2011. Official as well as private respondents have filed additional affidavits in tune with the order dated 23.03.2011. During pendency of the matter, the private respondents would raise yet another issue that the applicant in OA No.412/2005, Mr. Rajiv Tandon, had never filed a representation, and the same was a made-up affair. When thus the matter came up for hearing before us on 08.09.2011, after hearing the arguments at substantial length, we directed the first respondent to produce the original records as regards the representation made by the applicant. Meanwhile, the applicant obtained some information under the Right to Information Act, and on the basis thereof, it was stated that his representation dated19.01.1995 was routed through Police Headquarters to the Principal Secretary, Government of Madhya Pradesh on 24.01.1995, which in turn was forwarded to the Government of India. As would be reflected from order dated 28.09.2011, we required the documents obtained by the applicant under RTI to be translated as the same were in Hindi. Learned counsel representing the parties were ad idem that in the context of the controversy as added by another dimension as regards non-filing of representation by the applicant Rajiv Tandon, the State of Madhya Pradesh should be served again. The said respondent had since accordingly been served, but nobody chose to appear on its behalf. That being so, we issued fresh notice to the State of Madhya Pradesh returnable on 24.10.2011. Copy of the order was directed to be sent to the Principal Secretary, Government of Madhya Pradesh forthwith, who was to ensure presence on its behalf with the information as required. The said respondent was also to ascertain whether the documents would be available with the fourth respondent, and if so, the same were to be brought before the Tribunal for its perusal in original. On 24.10.2011, Shri Naveen Sharma entered appearance on behalf of the third respondent, State of Madhya Pradesh, and sought adjournment to furnish the information asked for. We recorded order dated 24.11.2010 that we were sanguine that considering the delay that had been caused in the matter, counsel representing the said respondent would not seek any further adjournment. On 05.01.2012, Shri Naveen Sharma, appearing for the State of Madhya Pradesh, stated that all relevant original records were available. Arguments in the matter were concluded on 23.01.2012, when order was reserved. The parties required written arguments to be also placed on records. Insofar as the respondents are concerned, they had placed on records the written arguments on the day when arguments were concluded. Learned counsel representing the applicant, however, submitted his written arguments on 02.02.2012. Perusal thereof would show that the plea only as regards limitation was covered. The respondents, as mentioned above, had also advanced arguments with regard to delay and laches. A message was sent to the counsel representing the applicant to submit further arguments if he wanted, and particularly, as regards delay and laches. When no written arguments from the learned counsel were received, considering the importance of the matter, showing indulgence, we again listed the same on 22.02.2012. On that date counsel was told that if he may not like to submit written arguments on delay and laches, the court may proceed to decide the case. The learned counsel, however, on the adjourned date, i.e., 27.02.2012, submitted written arguments.
4. The facts, which need pertinent notice for determining the plea raised by the respondents as regards bar of limitation, are that challenge is to the notification dated 20/29.01.1994. Before approaching the Tribunal for the reliefs as indicated above, it is now admitted that the applicant indeed filed representation dated 09.01.1995. We may mention at this stage that on production of original records, and on admission of the counsel representing the State of Madhya Pradesh, it is not in dispute that the applicant Rajiv Tandon had indeed filed a representation, and further that it was received also by the concerned respondent. Therefore, there would be no need to refer to the documents produced before the Tribunal. The representation aforesaid was admittedly rejected vide order dated 17.09.2004, whereas the OA by Rajiv Tandon came to be filed in this Tribunal on 21.02.2005. The primary plea raised by the respondents is that when the representation was made by the applicant in 1995, the applicant could, at the most, wait for six months for its disposal, and if there was no response on behalf of the respondents to the representation of the applicant, he could wait only for a year more to approach the Tribunal, and once he has approached the Tribunal far later in point of time, irrespective of the pendency of his representation, the OA would be barred by limitation. The plea raised by the counsel representing the applicant is that the representation made by the applicant is not covered by the rules governing the service of the applicant, to which, we may mention at this stage itself, there is no dispute, and, therefore, the period of limitation as envisaged under Section 21 of the Administrative Tribunals Act, 1985 (hereinafter to be referred as the Act of 1985) would not be attracted. Terminus a quo for limitation and the period of limitation provided under Section 21 of the Act of 1985, it is the case of the applicant, would apply only if the representation is governed by the relevant service rules. In the context of the rival contentions of the learned counsel representing the parties, the issue to be determined would be as to whether terminus a quo for limitation and the period prescribed under the statute, which, as mentioned above, is one and a half year from the date of making the representation, would be applicable in the context of the admitted position that the representation made by the applicant was not governed by the relevant service rules. If terminus a quo for limitation is not to be governed by Section 21 of the Act of 1985, would the period of limitation shall have to be reckoned in the context of the provisions contained in the Limitation Act. The third question that may also arise in the present case would be if the limitation is not to be governed even by the Limitation Act, what should be the reasonable time for an employee to approach a judicial forum as to redressal of his grievances.
5. We have heard the learned counsel representing the parties at sufficient length on different occasions and have also gone through the written arguments submitted by them. With a view to appreciate the controversy in its correct perspective, it would be useful to advert to the relevant provisions of the Act of 1985. Service rules as to redressal of grievances in relation to any matter, as defined in Section 3(r), means the rules, regulations, orders or other instruments or arrangements as in force for the time being with respect to redressal, otherwise than under the Act, of any grievances in relation to such matters. Section 21 prescribes the period of limitation. Sections 20 and 21 read as follows:
20. Application not to be admitted unless other remedies exhausted (1) A Tribunal shall not ordinarily admit an application unless it is satisfied that the applicant had availed of all the remedies available to him under the relevant service rules as to redressal of grievances.
(2) For the purposes of sub-section (1), a person shall be deemed to have availed of all the remedies available to him under the relevant service rules as to redressal of grievances, -
(a) if a final order has been made by the Government or other authority or officer or other person competent to pass such order under such rules, rejecting any appeal preferred or representation made by such person in connection with the grievance; or
(b) where no final order has been made by the Government or other authority or officer or other person competent to pass such order with regard to the appeal preferred or representation made by such person, if a period of six months from the date on which such appeal was preferred or representation was made has expired.
(3) For the purposes of sub-sections (1) and (2), any remedy available to an applicant by way of submission of a memorial to the President or to the Governor of a State or to any other functionary shall not be deemed to be one of the remedies which are available unless the applicant had elected to submit such memorial. 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. By virtue of provisions contained in Section 21, limitation of one year has been prescribed to approach the Tribunal in connection with the grievances of an employee from the date when a final order, as mentioned in clause (a) of sub-section (2) of Section 20, has been made. The period of limitation would be one and a half year in a case where appeal or representation such as mentioned in clause (a) of sub-section (2) of Section 20 has been made, and there is no final order passed thereon. The period of limitation and terminus a quo for the same, as provided under Section 21 would be attracted only when an employee resorts to representation or appeal provided to him under the relevant service rules.
6. If the representation is non-statutory, the period of limitation as prescribed under Section 21 of the Act of 1985, and terminus a quo therefor would not be attracted. We would have further delved into the matter, but we find that the issue is no more res integra and rather stands clinched by an authoritative pronouncement of the Constitution Bench of seven Judges of the Honble Supreme Court in S. S. Rathore v State of Madhya Pradesh [(1989) 4 SCC 582]. Even though, the matter before the Apex Court was related to a civil suit and the limitation provided to file the same under the Limitation Act and provision thereof were under consideration, an elaborate mention of provisions of the Act of 1985 also came to be made, discussed and adjudicated upon. The Honble Supreme Court after reproducing Section 20 of the Act of 1985, in paragraphs 20, 21 and 22 observed as follows:
20. We are of the view that the cause of action shall be taken to arise not from the date of the original adverse order but on the date when the order of the higher authority where a statutory remedy is provided entertaining the appeal or representation is made and where no such order is made, though the remedy has been availed of, a six months, period from the date of preferring of the appeal or making of the representation shall be taken to be the date when cause of action shall be taken to have first arisen. We, however, make it clear that this principle may not be applicable when the remedy availed of has not been provided by law. Repeated unsuccessful representations not provided by law are not governed by this principle (emphasis supplied).
21. It is appropriate to notice the provision regarding limitation under S. 21 of the Administrative Tribunals Act. Sub-section (1) has prescribed a period of one year for making of the application and power of condonation of delay of a total period of six months has been vested under sub-section (3). The Civil Courts jurisdiction has been taken away by the Act and, therefore, as far as Government servants are concerned, Article 58 may not be invocable in view of the special limitation. Yet, suits outside the purview of the Administrative Tribunals Act shall continue to be governed by Article 58.
22. It is proper that the position in such cases should be uniform. Therefore, in every such case until the appeal or representation provided by a law is disposed of, accrual of cause of action for cause of action shall first arise only when the higher authority makes its order on appeal or representation and where such order is not made on the expiry of six months from the date when the appeal was filed or representation was made. Submission of just a memorial or representation to the Head of the establishment shall not be taken into consideration in the matter of fixing limitation. Perusal of the observations of the Honble Supreme Court would manifest that only when appeal or representation as may be provided under the rules, is decided or not decided, as the case may be, the limitation envisaged under Section 21 of the Act of 1985 would apply, be it a year from the date of the decision, or a year and half if no decision is made. This is the view which we too have taken in the Tribunal. We may, however, make a mention of only two such judgments. In OA No.1228 of 2006 in the matter of Mahaveer Singhvi v Union of India & others, decided on 23.04.2007, we observed as follows:
Before we may make a reference to the same, we may mention that the reference of representation in Section 20 of the Act of 1985, is of such representation which may be available to an employee under the relevant service rules as to redressal of his grievances After reproducing sub-section (2) of Section 20 of the Act of 1985, we further observed as follows:
The words all the remedies available mentioned in Section 20 would imply a representation, or an appeal provided under the Service Rules. It may be mentioned that the applicant has not brought to our notice any rule which may provide making of representation for redressal of a grievance such as change of allocation of Service. It is no doubt true that the OA aforesaid was dismissed being barred by time as the facts of the case revealed that the first representation of the applicant therein was rejected on 02.06.2000, whereas the OA came to be filed in 2006. Even though, not specifically mentioned, but it is obvious that the limitation was construed from the date of rejection of the representation, i.e., 02.06.2000 by calculating the same under the general law of limitation. It is no doubt true that it has not been specifically mentioned that it would be barred as per Article 137 of the Limitation Act. Such an observation has been made in the other matter decided by us, which we will advert to hereinafter. Even though, it is quite clear, the author being one of us (V. K. Bali, Chairman in both the cases) that it was held barred by limitation taking the general law of limitation providing a period of three years for limitation, there would be no need to refer this matter to larger Bench for that reason only, as the Honble Supreme Court in The Kerala State Electricity Board, Trivandrum v T. P. Kunhaliumma [(1976) 4 SCC 634] has held that the residuary Article 137 of the Limitation Act, 1963 would be applicable when an application may not be in a court. This judgment was not referred to before us while deciding the case of Mahaveer Singhvi (supra). We shall hereinafter deal with the judgment aforesaid, as also that the Tribunal constituted under the provisions of the Act of 1985 is not a civil court.
7. In Review Application No.279 of 2011 in the matter of P. S. Behl v Government of NCT of Delhi & others, decided on 23.09.2011, we observed that That apart, representations talked of in Sections 20 and 21 of the Act of 1985 are such representations which are permissible under service rules. After reproducing Sections 20 and 21 of the Act of 1985, we further observed as follows:
Perusal of the provisions contained in Sections 20 and 21 of the Act of 1985 would manifest that terminus a quo for limitation would commence in case of representations only when there is a provision in the rules to do so. If, therefore, service rules may be silent as regards provisions to make representation, provisions of Section 21 shall not be attracted. Reference in Section 21 is to representation such as is mentioned in clause (b) of sub-section (2) of section 20, and the said provision clearly talks of remedies available to an employee under the relevant service rules... After referring to the observations made by us in Mahaveer Singhvis case (supra), we further observed as follows:
In the present case, it is admitted position that the representation made by the applicant in the year 2004 was not such which may have been provided under the rules. The limitation would thus not commence from filing of the representation. The applicant, in an ordinary representation not provided under rules, would be governed by general law, and the period of limitation, if at all, would commence only from rejection of the representation The reproduced portion of the judgment would demonstrative that it is the general law of limitation that was taken into consideration in construing the period of limitation. It is interesting to note that the respondents, for their plea that the OA would be barred by limitation, would also rely upon the same very judgments, and in particular that of the Honble Supreme Court in S. S. Rathore (supra) and Mahaveer Singhvi (supra). On proper analysis of the judgments as referred to above, we have absolutely no doubt in our mind that limitation talked of in Section 21 is relatable to statutory remedies, and not ordinary remedies of representations etc. What we have said above may be demonstrated in a fact situation where an ordinary representation made by an employee may have been rejected, but his subsequent representations may have evoked interest with the department, wherein some favourable orders might have been passed. In that context, we may refer to an order dated 22.11.2008 passed by this Tribunal in OA No.2456/2006 in the matter of Arun Kumar Srivastava v Union of India, which was dismissed by us on ground of limitation. Brief facts of the case aforesaid reveal that the applicant therein had made representation against the seniority list for the first time in the year 1988, which was rejected on 25.08.1998. He would not approach the court at that time, but would make further representation to the department, and would file the OA in the Tribunal only in 2004. In the writ filed against the order dismissing the OA being barred by time, what came to the notice of the High Court on summoning of records is that further representation of the applicant had evoked interest with the respondents, and favourable notings were being made in file to give effect to the same. The pertinent noting received after clarification dated 24.07.2007, reads as follows:
(i) The concept of antedated seniority with reference to the year of vacancy has been done away with vide DOPT OM No. 35014/2/80-Estt.(D) dated 7th Feb., 1986 and OM No. 22011/7/86-Estt.(D) dated 3rd July, 1986. This has further been clarified vide this departments OM No. 22011/1/2006-Estt.(D) dated 03.03.08. The seniority of a direct recruit employee is to reckon, accordingly, with reference to the year of availability, which would be the actual year of appointment after declaration of results/selection and completion of pre-appointment formalities, as prescribed.
(ii) Further, the general principles of determining seniority specifically provides that the persons appointed as a result of earlier selection stand senior to the persons appointed as a result of subsequent selection. The Honble High Court observed that when the representation of the applicant was pending active consideration with the department and the clarification given also went in favour of the applicant, it was of the opinion that the OA should not have been dismissed in limine. The order passed by this Tribunal was set aside and the matter was remitted to it to adjudicate upon the dispute after obtaining replies from the official respondents as well as the 4th respondent, and the issue of limitation was to be decided only thereafter on the basis of facts coming on record. Even though, there may not have been any definite opinion given by the High Court, but we are certain that if the case of the applicant was under consideration, even though his earlier representation had been rejected, and it would be no ground at all to state that limitation shall not be involved, there was no question that orders may have been set aside and the matter remitted. This is what we precisely observed while deciding the review application in the case of P. S. Behl (supra), wherein we observed as follows:
Surely, the order of this Tribunal was set aside on the ground that the matter as regards representation of the applicant, which was second in series thereof, made after six years of rejection of the first representation and was considered, would not entail, even though prima facie, dismissal of the lis being barred by time. Surely, if favourable consideration of the cause of an employee would be irrelevant, there was no question of the order of the Tribunal being set aside and its remittance for decision afresh. What can clearly be gathered from the orders of the High Court is that when a citizen is made to believe by some positive action or orders passed by the authorities that his case is under consideration, and when favourable advice, comments or orders are also passed, the terminus a quo for limitation would not commence. The present case is on far better footings. All through, the respondents had found merit in the plea raised by the applicant in his representation. The advice, comments and orders were also in favour of the applicant. As mentioned above, the 5th respondent was even issued memoranda to show cause as to why the orders passed in his favour be not recalled. In these circumstances, when the respondents had themselves kindled hope in the mind of the applicant that justice would be met to him, irrespective of expiry of time provided in Section 21 of the Administrative Tribunals Act, 1985, after which the OA would be barred by time, his case had to be considered on merits. As mentioned above, it has been the positive case of the applicant, not denied by the official respondents at least, that his representation was under active consideration all through, and it is only when the tentative seniority list came about that he was surprised to see that the 5th respondent had been shown senior to him. Immediately, he filed a representation and when the same was rejected, he approached this Tribunal
8. The decision adverted to above would manifest that when it be a case of ordinary representations, the limitation talked of and terminus a quo therefor as provided under Section 21 of the Act of 1985 would not be attracted, as otherwise, there would be no question of treating an application within limitation when such ordinary representation has been rejected, and on filing of yet another for the same purpose, the matter being looked into favourably by the respondents, kindling hope in a citizen that justice may be done to him at the level of the Government or the department, as the case may be. We do not find any merit in the contention of the respondents that limitation under the Act of 1985 is prescribed for all cases. The contention is that irrespective of the facts and circumstances, the representation or appeal being statutory or non-statutory, in every eventuality, limitation is prescribed under the Act of 1985, and the same would be only from the provisions contained in Section 21 thereof. This argument is sought to be supported from the fact that in paragraph 3 of the format of the application, it is required to be stated whether the application filed is within the period of limitation prescribed under Section 21 of the Act of 1985, and, therefore, Section 21 would govern all applications submitted under the said Act. Format as regards mentioning of the application being within limitation is so specifically stated to be as per Section 21, and we have already observed and held that Section 21 would not apply to non-statutory representations or appeals. We are conscious, and the respondents have also cited some judgments, wherein representations not provided under the statute/rules were rejected and the lis may have been filed after number of years, and wherein we have held that the same would be barred by time, but the respondents have not brought to our notice any judgment where the issue as regards distinction between the statutory or ordinary representations may have been discussed and it might have been held that even such representations which may not be provided under rules, would entail limitation and terminus a quo therefor as mentioned in Section 21 of the Act of 1985.
9. Before we may part with the aspect of limitation, we may mention that limitation bars the remedy and not the right. In denying remedy to a citizen based upon limitation, when pitted against the same is his substantive right, the courts and tribunals always lean towards interpreting the provisions in such a way that may advance the cause of justice. If, therefore, two views are possible, the one which leans in favour of advancing substantial justice needs to be accepted. We may refer to a Division Bench judgment of the High Court of Delhi in that regard in Sumitra Devi v Lt. Governor, Delhi & others [(2007) 99 DRJ 99 DB] for the proposition that when substantial justice is pitted against the procedural exigencies, it must be substantive justice which shall have precedence over the procedural requirements. There may be plethora of judgments on this issue, but since this is a settled proposition of law, we may not further refer to the case law, which will unnecessarily burden the judgment. In view of the discussion made above, we are of the considered view that present OA is not barred by limitation as provided under Section 21 of the Act of 1985.
10. The other question that needs determination is as to whether when as regards non-statutory representations or appeals, not provided under rules, Section 21 of the Act of 1985 would not be applicable, would limitation be governed by the provisions of the Limitation Act, 1963. This matter is also no more res integra. In that regard, we have already referred to the judgment of the constitutional Bench of the Apex Court in S. S. Rathores case (supra). We may also make a mention of the judgment of the Supreme Court in The Kerala State Electricity Board, Trivandrum (supra). Brief facts of the said case reveal that Kerala State Electricity Board cut and removed some trees standing on the property of T. P. Kunhaliumma, the respondent before the Supreme Court, for the purpose of laying electric line from Calicut to Cannanore. The appellant Board assessed the compensation at Rs.1619.90. The respondent filed a petition before the District Judge under Section 16(3) of the Indian Telegraph Act, 1885 claiming an enhanced compensation of Rs.19367.60. One of the objections raised by the Board in contesting the petition was that the same would be barred by time under Article 137 of the Limitation Act, 1963. It was urged that the notice intimating the fixing of the compensation was served on March 4, 1969 and, therefore, the petition was barred by time, having been filed on March 10, 1972. The respondent contended that Article 137 of the Limitation Act would not apply to applications to the District Judge under the Indian Telegraph Act. The district judge held that the application was governed by Article 137 of the Limitation Act, and, therefore, the same was barred by time having been filed beyond three years. A revision was filed before the High Court, which while setting aside the order of the District Judge, remitted the matter to the court for disposal in accordance with law. It is against this order that an appeal came to be filed before the Supreme Court. The Kerala High Court had taken the view that Article 137 of the Limitation Act, 1963 would have the same meaning as Article 181 of the Limitation Act, 1908. While dealing with the question of limitation and applicability of Article 137 of the Limitation Act, which is a residuary Article, covering such cases not specifically covered by any of the provisions of the Limitation Act, providing three years period of limitation, it was held as follows:
18. The words any other application under Article 137 cannot be said on the principle of ejusdem generis to be applications under the Civil Procedure Code other than those mentioned in Part I of the third division. Any other application under Article 137 would be petition or any application under any Act. But it has to be an application to a court for the reason that Sections 4 and 5 of the 1963 Limitation Act speak of expiry of prescribed period when Court is closed and extension of prescribed period if applicant or the appellant satisfies the court that he had sufficient cause for not preferring the appeal or making the application during such period. 22. The conclusion we reach is that Article 137 of the 1963 Limitation Act will apply to any petition or application filed under any Act to a civil court. With respect we differ from the view taken by the two Judge Bench of this Court in Athani Municipal Council case (AIR 1969 SC 1335) (supra) and hold that Article 137 of the 1963 Limitation Act is not confined to applications contemplated by or under the Code of Civil Procedure. The petition in the present case was to the District Judge as a court. The petition was one contemplated by the Telegraph Act for judicial decision. The petition is an application falling within the scope of Article 137 of the 1963 Limitation Act. Before arriving at the conclusion aforesaid, it came to be held that the District Judge dealing with the matter before him under the Indian Telegraph Act was a court. It would not be necessary to mention the reasons why the District Judge was held to be a court as that may not be relevant. Suffice it thus, to say that while holding the District Judge as a court, Article 137 of the Limitation Act, 1963, it was said, would be applicable. Surely, if the Tribunal may not be a court or a civil court, there would be no applicability of Article 137 of the Act of 1963.
11. The Central Administrative Tribunal has been defined in Section 3(f) of the Act of 1985 to be the Administrative Tribunal established under sub-section (1) of Section 4. In view of the provisions contained in Section 4, the Central Government is to establish an Administrative Tribunal by virtue of a notification, and it would be known as Central Administrative Tribunal, to exercise jurisdiction, powers and authority conferred on the Tribunal by or under the Act. In view of the provisions contained in Section 22, the Tribunal is not to be bound by the procedure laid down in the Code of Civil Procedure, 1908. It is to be rather guided by principles of natural justice, and subject to other provisions of the Act and of any rules having been made by the Central Government, the Tribunal shall have power to regulate its own procedure including the fixing of places and times of its inquiry and deciding whether to sit in public or in private. It is only for the limited purposes as envisaged in sub-section (3) of Section 22 that the Tribunal may have same powers as are vested in a civil court under the Code of Civil Procedure, 1908. What clearly emerges from the provisions as referred to above is that the Tribunal is a creation of the statute, which has come into existence by virtue of provisions contained in Article 323-A of the Constitution of India. It is not a civil court or a court, as the case may be, and, therefore, provisions contained in Article 137 of the Limitation Act, 1963 would not be applicable. The period of limitation and terminus a quo therefor, as held above, as referred to under Section 21 of the Act of 1985, relates only to statutory appeals or representations, and not ordinary appeals or representations, not provided under the rules. For such ordinary appeals or representations, as also held above, Article 137 of the Act of 1963 would not apply. Where there is no period of limitation provided under the statute, the lis cannot be dismissed on bar of limitation. This is what has been held by the Honble Supreme Court in Uttam Namdeo Mahale v Vithal Deo and others [(1997) 6 SCC 73]. Brief facts of the case aforesaid reveal that the appellant before had lost the matter of eviction of the premises up to the Supreme Court. The execution application, however, came to be filed after 12 years, wherein an objection came to be raised that the same would be barred by limitation. As there was no period of limitation prescribed for filing an application for execution, the same was held to be maintainable and not to be barred by limitation. Even argument to the extent that the same should have been filed within a reasonable time, it appears, was repelled.
12. The respondents, as mentioned above, have opposed the cause of the applicant by canvassing before us that the present OA, even if not barred by limitation, having been filed after a long time since when the notification came into being in 1994, and even when the order rejecting the representation of the applicant came to be passed, should be dismissed because of unexplained delay and laches. Before we may take this question in hand, we may mention that in the counter reply filed on behalf of the respondent-Union of India, there is no plea as regards limitation. Two sets of replies on behalf of the respondents have been filed one by respondents 2 to 5, wherein too no plea as regards limitation has been raised; the same has, however, been raised in the written statement filed on behalf of respondents 6 to 14, who also appear to have raised the plea as regards unexplained delay and laches. As mentioned above, at one time, the private respondents would even dispute the applicant Shri Rajiv Tandon even filing any representation. The said controversy engaged the attention of the Tribunal resulting into number of adjournments. It is only when on summoning the Madhya Pradesh Government to bring the complete file, which has been retained by the Tribunal for writing the judgment, that the said controversy ended, even though we may mention that even now in the written arguments some plea as regards the same has been raised. Be that as it may, the Madhya Pradesh Government has not brought only one page as the records of the case; it is a file consisting of several pages and notings. We have gone through the same. The applicant Shri Rajiv Tandon had made representation through DGP, Madhya Pradesh, Bhopal. It appears that the same was sent to the Central Government, but no orders thereon were passed. The noting dated 09.03.2004 would reveal that the representation given by the applicant had not been decided by the Central Government. The note also shows that the matter being old, at that time, may be, it was not traceable, but it appears that the applicant may have asked for information and may have sent letter in that regard, as that is why it is recorded in the note aforesaid that the application should be sent to the Government of India for its appropriate orders. There are other notings also made in the file at various stages, which may need no reference. Suffice it may, however, to mention that for nine long years, the Central Government did not act upon the representation made by the applicant, and it is only when a request was made by the Madhya Pradesh Government in 2004 that a decision ultimately came to be arrived at rejecting the representation of the applicant. It is within eight or nine months thereafter that the OA came to be filed. Before we may further proceed in the matter, we may clarify one thing at the very outset that if some developments had taken place after 2005, when the OA came to be filed, the same would not work to the disadvantage of the applicant, as surely, if this Tribunal has taken seven years in deciding the matter, the applicant cannot be blamed for the same. Events prior to 2005 thus, would be significant. We will make a mention thereof at the appropriate time, when we take the contention of the respondents that settled things cannot be unsettled at this distance of time.
13. On the first blush or prima facie, there does appear to be delay in filing the present OA, but the question that arises is that only because of that, should this OA be dismissed? It is too well settled a proposition of law that the rights of a litigants cannot be lightly dealt with, and delay to become fatal has to be unreasonable or unexplained, and that, in our view, would depend upon the facts and circumstances of each case. There cannot be any straitjacket formula in that regard, and, therefore, it cannot be said that if the OA has been filed after the specified period of years, the same has to be dismissed. In our view, there may be such facts and circumstances where even one years delay may be fatal, whereas in others, a delay of nine years, as in the present case, may not be fatal. It has been held by the Honble Supreme Court in Tridip Kumar Dingal & others v State of West Bengal and others [(2009) 1 SCC 768] that there is no upper or lower limit as to when a person can approach the court, and that the question is one of discretion and has to be decided on the basis of facts before the court, depending on and varying from case to case, and further that it will depend upon what the breach of fundamental right and the remedy claimed are, and when and how the delay arose. The delay normally comes in the way of a person if the claim is stale and meanwhile the impugned orders have attained finality, or where the rights of third party may have accrued in the meantime. The delay will also come in the way of a litigant if in the interregnum the rights of his adversaries may have been settled. The settled matters cannot be unsettled after a long distance of time. Such, as mentioned above, are not the facts of the present case, as none of the private respondents had gained in any manner whatsoever from the applicants when the present OA came to be filed, or for that matter, even thereafter till date. It may be recalled that after the contentions raised by the learned counsel representing the respondents, as regards limitation and delay and laches were being persisted, we passed an order on 23.03.2011, which has since already been reproduced hereinbefore in para 3 of the judgment, requiring the official respondents to file an affidavit. Pursuant to that, not only the official respondents, but the private respondents as well have filed additional affidavits. We may first advert to the additional affidavit filed by the Government of India. Besides contesting the matter on merits in paras 1 to 10, for which there was no necessity at all, the matter, which may be relevant, has been enumerated in paras 11 to 13 only. It has inter alia been pleaded therein that the seniority lists were revised in the year 1994 by giving retrospective effect in respect of 1988 batch, and these are the final seniority lists issued by the respondents. It is pleaded that promotions in the IPS to the various grades are made by the respective cadres based on intra-cadre seniority, and that no promotion of the IPS officers is made by the Central Government in respect of the officers working in the cadre. At Centre, the IPS officers are empanelled at various levels, i.e., DIG, IG, ADG and DG, and empanelment at these grades at Centre are done batch-wise. In other words, all India seniority has no impact on empanelment at various levels of IPS officers at Centre. IPS officers are promoted in their respective cadre as per their name in the said gradation list, and the promotion in the cadre depends upon the number of vacancies of various grades available in the cadre. An officer who is junior in all India seniority list may or may not be promoted in his cadre than the officer who is senior in all India seniority list, but working in a different cadre. It is then pleaded that the seniority lists of IPS officers were being issued from 1994 and these lists are final seniority lists. However, the names in the gradation list in each cadre are according to their seniority notified from time to time by the Ministry in respect of direct recruit officers, and that promotions within the cadre are made by the respective State Governments according to the seniority in the gradation list, which is prepared on the basis of all India seniority list. The applicants in the present case, it is further pleaded, have been promoted in their respective cadre to the grade of IG, and that no promotion of IPS officers is made in the Centre, and they are appointed according to their empanelment status, i.e., if an IPS officer is empanelled as IG, his name is considered for appointment at IG level under Government of India subject to concurrence of the State Government and his suitability for such appointment. It is significant to state that there is no mention at all that any of the private respondents might have been promoted on the basis of the seniority list issued by the Government earlier in point of time to that of any of the applicants.
14. The additional affidavit filed on behalf of the private respondents is more elaborate, but by and large the averments are the same as have been made by the official respondents. The private respondents have also mentioned that in some cases, the applicants and the respondents arrayed in respective OAs are from the same cadre. In that regard, it has been mentioned that the applicants Rajiv Tandon (applicant in OA-412/2005), Surender Kumar Pandey and Sujoy Lal Thaosen (applicants 1 & 2 in OA-2893/2005) belong to Madhya Pradesh cadre of IPS, whereas Arvind Kumar, Sanjay Kumar Pillai, Sudhir Kumar Shahi and Ravi Sinha (respondents 8, 10, 13 and 18 respectively in OA-2893/2005) are also from Madhya Pradesh cadre. What would appear from the facts as narrated above is that be it the applicants or the respondents, they are all 1988 batch officers, and as mentioned above, the respondents are such persons who come within the definition of exempted probationers and by a retrospective amendment, as mentioned above, have been arrayed in seniority over and above the applicants. All of them belong to the same batch. Insofar as, seniority at all India level is concerned, the same is determined batch-wise, and, therefore, seniority within the batch would not make any difference. Insofar as, the State seniority is concerned, some of the applicants would perhaps never have any seniority dispute with the private respondents, if they happen to be in different State cadres. Promotions within the State would depend upon availability of vacancies in the said State only, and, therefore, it is possible that officers of 1988 batch may be promoted to a higher rank in a State earlier than officers of the same batch in another State, and that, as mentioned above, would not adversely affect any one from amongst those who may be in the same State cadre. Some of the officers would, however, be adversely affected within the same State if the vacancies may be less commensurate to the officers of a particular batch, but that has, however, not happened, as it is not the case of the respondents that any of the officers of 1988 batch, because of the seniority that has been worked out now in their particular cadre, has scored over in the matter of promotion from the applicants. What thus clearly transpires is that none of the applicants had been adversely affected by the time the OA came to be filed, or for that matter, till date, be it at the State or all India level. All of them belonging to 1988 batch have got the selection grade or whatever further grade it may be, as also the promotions per their batch. It is not the case of the private respondents within the State, as the applicants in some of the cases may be, that because of lesser vacancies available on the higher posts, they came to be appointed earlier in point of time than any of the applicants. What thus clearly emerges is that be it the applicants or the respondents, they were all getting career progression at the same time.
15. In the written arguments filed on behalf of the respondents, it is mentioned that promotion to the senior scale of IPS is made after four years service, and that in the case of 1988 batch IPS officers, this promotion was made during the year 1992-93. By the time thus, the applicants and the respondents may have got promotion to senior scale of IPS, it was the same time, and by that time, it appears that the applicants were shown senior to the respondents as the retrospective notification made applicable from 1988 came into being in 1994. The promotion to Junior Administrative Grade (JAG) of IPS, it is then pleaded, comes after nine years of service, and that the officers of 1988 batch of IPS were promoted to the JAG of IPS officers during the year 1996. Once again, all the 1988 batch officers thus got promoted to the JAG at the same time. It is then pleaded that an IPS officer becomes eligible for promotion to the selection grade of IPS after thirteen years of service, and that the officers of 1988 batch were promoted to the selection grade during the years 2001 and 2002 subject to availability of vacancies in different State Cadres. It is not the case of the respondents that based upon the seniority lists being issued after retrospective amendment made applicable from 1988, any of the respondents came to be promoted to the selection grade before the applicants. It is pleaded that promotion to the rank of DIG comes after 14 years of service, and that the 1988 batch IPS officers were promoted to the rank of DIG in the year 2002. Once again, it is not the case of the respondents that they were promoted earlier to any of the applicants. It is then pleaded that IPS officers become eligible for promotion to the rank of IG after 18 years of service, and that the 1988 batch officers were promoted to the rank of IG in the year 2009. Once again, it is not the case of the respondents that any one of them, even as per seniority in the State cadre, was promoted earlier to any of the applicants. It is thus crystal clear that by the time the OA came to be filed in 2005, the applicants were not at all adversely affected, but for, of course, issuance of seniority lists, which, as mentioned above, all these years had not given any edge to the private respondents in any of the promotional grades or rank. On a deeper analysis, we further find that insofar as the all India seniority is concerned, none of the applicants or the respondents may be ever adversely affected, as the empanelment in the Centre is done batch-wise and not as per seniority of the same batch. The adverse effect of seniority within the same batch, it is further clear, would be dependent upon the number of vacancies in the higher posts in the same cadre. Normally, every batch officer would be promoted at the same time. However, if the promotional vacancies are lesser than the number of officers in a particular batch, those who are senior in the same batch may score over their other batch-mates. However, such is not the factual scenario in the present case. The difference in seniority would affect IPS officers, if there is no shortfall of vacancies on different promotional posts only at the fag end of his career, when they may have to be considered for the post of ADGP or DGP. Such situation has not arrived with regard to any of the parties, be it the applicants or the private respondents. In the fact situation as mentioned above, it was not unreasonable for the applicants to await a decision from the Central Government as regards their grievances, and that being so, in the peculiar facts and circumstances of this case, it cannot be said that the OA would suffer from unexplained delay and laches. It is also not a case where even if this Tribunal may come to a conclusion that there is indeed some delay in approaching the court of law, but the same does not deserved to be condoned. Simple delay is not a good ground to knock out a citizen to deprive him of his constitutional or civil rights. The courts in such an event, in our view, are duty bound to condone the delay, if there be any. Even though, not in the context of delay and laches, but in the matter of limitation, where it might required to be condoned, it has been so held. We may refer to a Division Bench judgment of the Honble High Court of Delhi in Sumitra Devi v Lt. Governor, Delhi & others, which has already been referred to above. The facts of the said case reveal that this Tribunal dismissed the OA of the applicant being barred by time. The applicant belonged to Bawaria community and appeared in the recruitment rest held in March, 1989. After passing the examination and other tests, she was called for medical examination for the post of Women Constable. However, her appointment and candidature was cancelled vide letter dated 26.10.1989 on the ground that her name was sponsored by the employment exchange as a Scheduled Tribe candidate, whereas on verifying the papers, it was found that Bawaria community to which she belonged, in Haryaaa State, which was enlisted as a Scheduled Caste. The OA was filed in the year 2003. It was held to be barred by time having been filed after twelve years or so, and, as mentioned above, was dismissed. This order was reversed by the High court by observing as follows:
17. We are of the opinion that the tribunal in dismissing the application of the Petitioner for quashing the cancellation of appointment order on the grounds of limitation is not justified as when substantive justice is pitted against the procedural exigencies, it must be substantive justice, which shall have precedence over the procedural requirements. The procedural law or technicalities are not masters of law but hand maid of Justice. In view of peculiar facts and circumstances of this case, the Tribunal ought to have condoned the delay and passed the orders on the merits of the case. The Tribunal, in our view, has completely failed to appreciate the controversy and dismissed the application on technicality, which could have been condoned in view of the facts of the case The ground for condonation of delay that prevailed was that the caste was subject matter of dispute in various courts and had not crystallized by the time the candidature of the applicant was cancelled, and clarity came later, and, therefore, there was reason to condone the delay. If limitation can be condoned, if there be reasons to do so, we do not understand as to why, if there be a simple delay in filing the lis, the same cannot be condoned. In the first instance, we are of the view that when the applicants were under an impression and had a hope that justice might be done to them, and were awaiting decision of the Government, and by which time they had not been adversely affected at all in their service progression, there was reason for them to await, and even if it may be found that they approached the Tribunal late in point of time, in our view, it should be condoned.
16. Insofar as, the seniority lists are concerned, whereas it is the case of the applicants that the same are civil lists, it has been the case of the respondents that the same are gradation lists, and further that the gradation lists are same as the seniority lists, for which the respondents have number of judgments to cite. In that regard, reliance has also been placed upon N. K. Modak v Sheo Shankar Pandey [(1992) Supp 2 SCC 138], and Pramod K. Pankaj v State of Bihar [(2004) 3 SCC 723]. We may not enter into this controversy as even if the gradation lists are to be seniority lists, we are of the view that because of the seniority shown therein the applicants or the respondents have not been adversely affected in the matter of their service progression. The respondents would also urge that mere submission of representation is not enough and long delay in approaching the Tribunal in itself would be sufficient for dismissing an application on the ground of delay and laches. In that regard, the respondents have placed reliance on number of judgments. In India Tourism Development Corporation v G. S. Panwar [order dated 17.11.2005 passed by the High Court in LPA No.716 of 2005], relied upon by the respondents, the High Court was dealing with a transfer order passed in October, 2001, writ regarding which was filed in 2003, which was dismissed on ground of laches, i.e., unreasonable delay, without going into the merits. The petitioner was making representations against his transfer order, and it was held that it is settled that mere filing of non-statutory representation does not condone the delay in filing the writ petition. We do not find any parity of the facts of the case aforesaid with the case in hand. Reliance is then placed upon the judgment of the Supreme Court in K. V. Rajalakshmiah Setty & another v State of Mysore & another [(1967) 2 SCR 70 : AIR 1967 SC 993]. Demand of the petitioners in the said case was that they should receive the benefits which others promoted before and after them had received. According to them, some of the persons had received such benefits before them and some had been accorded similar advantages, although they were promoted as Assistant Engineers long after the petitioners. On facts, the indulgence shown to different batches of persons was held to be ad hoc, and the Apex Court was not in a position to say what, if any, ad hoc indulgence should be meted out to the appellants before it. It was then observed that the appellants were guilty of laches, and that after passing of the order dated May 17, 1950 they should have made an application within a reasonable time thereafter. Once again, there is no parity of facts of the present case with the one decided by the Apex Court. The respondents have also placed reliance upon the judgment of this Tribunal in the case of Mahaveer Singhvi, which already been referred to above. A long list of cases has been given, and in all fairness, we would refer to all these judgments, but there would be no need to make any reference thereof, as we have already held that whether there is unexplained delay and the OA or the writ needs to be dismissed on the ground thereof, would depend upon facts and circumstances of each case, and as the Supreme Court has said in Tridip Kumar Dingal (supra), and which judgment will be binding on all courts and tribunals, there is no maximum or minimum limit for approaching a judicial forum for vindication of the rights of a citizen. We have already mentioned that there is no need to refer to the facts of the judgments relied upon by the learned counsel representing the respondents, but we may make a brief mention of the first two judgments. The list of judgments, however, given to us is as follows:
1) State of MP v Bhailal Bhai [AIR 1964 SC 1006];
2) P. S. Sadasivaswamy v State of Tamil Nadu [(1975) 1 SCC 152];
3) State of Orissa and others v Shri Arun Kumar Patnaik and others [(1976) 3 SCC 579];
4) Gian Singh Mann v High Court of Punjab & Haryana and another [(1980) 4 SCC 266];
5) G. C. Gupta and others v N. K. Pandey and others [(1988)1 SCC 316];
6) Government of Andhra Pradesh v M. A. Kareem and others [(1991) Supp 2 SCC 183];
7) Prakash K and another v State of Karnataka [(1996) 11 SCC 563];
8) S. Jaffar Sahib v Secretary, A.P.P.S.C. and others [(1996) 11 SCC 753];
9) State of Haryana and others v Ajay Walia (Ms.) [(1997) 6 SCC 255];
10) B. S. Bajwa and another v State of Punjab and others [(1998) 2 SCC 523].
In State of M.P. v Bhailal Bhai (supra), it was held that the provisions of Limitation Act do not as such apply to the granting of relief under Article 226. However, the maximum period fixed by the Legislature as the time within which the relief by a suit in a civil court must be brought may ordinarily be taken to be a reasonable standard by which delay in seeking remedy under Article 226 can be measured. The court may consider the delay unreasonable even if it is less than the period of limitation prescribed for a civil action for the remedy, but where the delay is more than this period, it will almost always be proper for the court to hold that it is unreasonable. If one has to go by this judgment, the cause of action to the applicant would accrue when his representation was dismissed, and as mentioned above, it is within about eight months or so that the OA was filed. The facts of P. S. Sadasivaswamy (supra) would reveal that the appellant therein had failed to come to the court on three opportunities when he could have. He was aggrieved of promotion of his junior over his head. It was held by the Honble Supreme Court that he should have approached the court at least within six months or at the most a year of such promotion, and that the High Court could refuse to exercise its extraordinary powers under Article 226 in the case of a person who does not approach expeditiously for the relief and put forward stale claim and try to unsettle settled matters.
17. On the basis of the analysis as mentioned above, we do not find the delay in the present case to be such which may disentitle the applicants to have their right, which stands established by virtue of the judgment of the Full Bench.
18. In view of the discussion made above, rejecting the technical objection raised by the respondents, as mentioned above, and in view of the fact that the law point has already been determined in favour of the applicants by the Full Bench, we allow these Original Applications. The seniority of the applicants would be worked out in consideration of the rules that prevailed earlier to amendment notification dated 20/29.01.1994 brought retrospectively from 1988, adversely affecting the applicant, and which has since already been quashed by the Full Bench of this Tribunal vide order dated 18.03.2010. Let the seniority now be worked out as per unamended provisions of the rules, as expeditiously as possible and preferably within a period of six weeks from receipt of this order. In the peculiar facts and circumstances of the case, the costs of the litigation are made easy.
( Dr. Ramesh Chandra Panda ) ( V. K. Bali )
Member (A) Chairman
/as/