Central Administrative Tribunal - Delhi
S. K. Srivastava vs Union Of India & Ors on 8 September, 2014
Central Administrative Tribunal
Principal Bench
MA NO.1768/2014 in
OA NO. 1523/2014
Order Reserved on: 4.09.2014
Pronounced on: 08.09.2014
Honble Mr V. Ajay Kumar, Member (J)
Honble Mr V. N. Gaur, Member (A)
S. K. Srivastava - Applicant
(Applicant in person)
Vs.
Union of India & ors. - Respondents
(By Advocate: Sh. Rajesh Katyal for respondents no.1 & 2
Sh. Amit Yadav for
Sh. Ravinder Agarwal for respondent no.3)
ORDER
Honble Shri V.N.Gaur, Member (A) The applicant has filed the present MA-1768/2014 in OA-1523/2014 with the following prayer:
1. To grant ad-interim ex-parte stay of operation against the DPC held on 01.04.2014 (sic.) and to further restrain Respondent from acting upon recommendations of the said DPC during the pendency of the instant O.A. before this Honble Court.
2. To pass any other orders as may be deem fit and proper.
2. The main OA has been filed with a prayer to set aside and quash deliberations and recommendations of the DPC held on 01.05.2014 at Chennai to promote the Commissioners of Income Tax as the Principal Commissioners of Income Tax and to direct official respondents to consider the case of applicant at par with the case of one Sh. B. K. Jha (IRS 83004) and grant vigilance clearance to applicant at par with Sh. B. K. Jha (IRS) and thereafter reconvene the DPC for promotion as Principal Commissioner of Income Tax. When the OA-1523/2014 along with 6 MAs filed in that OA including the present one was taken up for hearing on 04.09.2014, this Court suggested that the main OA itself can be heard and disposed of. The applicant insisted on consideration of this MA first. Accordingly, the submissions from both sides were confined on the prayer made in the MA-1768/2014.
3. The applicant who argued in person submitted that the proceeding of the DPC held on 01.05.2014 was vitiated as one of the Members, i.e., Chairman, CBDT participated in the selection process despite the fact that one of the candidates being considered was Ms. Anjali Tiwari (IRS 85032) CIT, Delhi, wife of the Member. Even though, as stated in the counter filed by the respondents Sh. R.K.Tiwari, Chairman, CBDT recused himself when the case of Ms. Anjali Tiwari was considered, that did not cure illegality as the whole DPC was one single process and if a close relation of the Member of the DPC was under consideration, he should not have participated in the DPC at all. The applicant referred to the DOP&T OM dated 03.06.1989 and 23.05.1989 that provide for mandatory submission of certificate by the Chairman/Members of the DPC well in advance that none of his close relative was being considered by the DPC and otherwise also he/she was not interested in any particular candidate going to be considered by the DPC. The applicant further argued that there were no recruitment rules for the post of Principal Commissioner and the feeder cadre for the post has also not been decided. Further, the DPC could not have done its job properly because within the duration of the meeting of the DPC it would not be practically feasible for them to have scrutinized ACRs of nearly 300 officers. Probably the ACR dossiers of all the 300 officers were never carried to Chennai by the respondents. If the interim relief was granted, no public interest would suffer the newly promoted as Principal Commissioners were going to perform the same work as being done by the Commissioners at present. The officers will not suffer at personal level also because they will get their promotion and all consequential benefits with retrospective effect. The applicant drew attention of this Tribunal to the order passed by the learned MM in a complaint case filed by the applicant wherein the learned MM had taken cognizance of the charges against Sh. B. K. Jha. It was therefore a fit case for following the sealed cover procedure in respect of Sh. Jha, as laid down in the DoPT OM dated 14.09.1992.
4. Sh. Rajesh Katyal, learned counsel for respondents no.1 & 2 submitted that the scope of the prayer and submissions in the MA have to be restricted to that of the OA. The applicant has sought quashing of the minutes of the DPC held on 1.05.2014 by staying the operation of that DPC till the disposal of the OA. The OA itself was premature as there was no cause of action for the applicant to approach this Tribunal at this stage because the DPC minutes have not been acted upon and there was no impugned order. Secondly the applicant has not exhausted all the remedies available to him before approaching the judicial forum. He referred to certain adverse remarks made against the applicant in the order passed by the learned Court of MM and also the Honble High Court of Delhi in CWP no.4326/2011. The learned counsel vehemently opposed granting of any interim stay at this stage which may delay the promotion of a large number of senior officers in the department without any justifiable reason. With regard to the cognizance taken by the Court of learned MM in respect of complaint case against Sh. B.K. Jha the learned counsel stated that it was only a pre-evidence cognizance, which cannot be treated as a case where prosecution is pending for a criminal charge in terms of DoPT Office Memorandum No.22011/4/91 Estt (A) dated 14.09.1992 that would necessitate following of sealed cover procedure.
5. We have considered the submissions made by the applicant and the learned counsel for the respondents. Here we will confine ourselves to the question of interim relief. This Tribunal has power to grant interim relief under Section 24 of the Administrative Tribunals Act, 1985. However, the conditions under which this discretionary power of the Court has to be exercised has been defined in various judgments of Honble Supreme Court. In Zenit Mataplast P.Ltd vs State Of Maharashtra & Ors SLP (Civil) No. 18934 of 2008 these conditions were discussed in detail by the Honble Supreme Court. The relevant portion of the judgement is extracted below:
23. Interim order is passed on the basis of prima facie findings, which are tentative. Such order is passed as a temporary arrangement to preserve the status quo till the matter is decided finally, to ensure that the matter does not become either infructuous or a fait accompli before the final hearing. The object of the interlocutory injunction is, to protect the plaintiff against injury by violation of his right for which he could not be adequately compensated in damages recoverable in the action if the uncertainty were resolved in his favour at the trial. (vide Anand Prasad Agarwalla v. State of Assam vs. Tarkeshwar Prasad & Ors. AIR 2001 SC 2367; and Barak Upatyaka D.U. Karmachari Sanstha (2009) 5 SCC 694)
24. Grant of an interim relief in regard to the nature and extent thereof depends upon the facts and circumstances of each case as no strait-jacket formula can be laid down. There may be a situation wherein the defendant/respondent may use the suit property in such a manner that the situation becomes irretrievable. In such a fact situation, interim relief should be granted (vide M. Gurudas & Ors. Vs. Rasaranjan & Ors. AIR 2006 SC 3275; and Shridevi & Anr. vs. Muralidhar & Anr. (2007) 14 SCC 721.
25. Grant of temporary injunction, is governed by three basic principles, i.e. prima facie case; balance of convenience; and irreparable injury, which are required to be considered in a proper perspective in the facts and circumstances of a particular case. But it may not be appropriate for any court to hold a mini trial at the stage of grant of temporary injunction (Vide S.M. Dyechem Ltd. Vs. M/s. Cadbury (India) Ltd., AIR 2000 SC 2114; and Anand Prasad Agarwalla (supra).
26. In Colgate Palmolive (India) Ltd. Vs. Hindustan Lever Ltd., AIR 1999 SC 3105, this court observed that the other considerations which ought to weigh with the Court hearing the application or petition for the grant of injunctions are as below :
(i) Extent of damages being an adequate remedy;
(ii) Protect the plaintiff's interest for violation of his rights though however having regard to the injury that may be suffered by the defendants by reason therefor ;
(iii) The court while dealing with the matter ought not to ignore the factum of strength of one party's case being stronger than the others;
(iv) No fixed rules or notions ought to be had in the matter of grant of injunction but on the facts and circumstances of each case- the relief being kept flexible;
(v) The issue is to be looked from the point of view as to whether on refusal of the injunction the plaintiff would suffer irreparable loss and injury keeping in view the strength of the parties' case;
(vi) Balance of convenience or inconvenience ought to be considered as an important requirement even if there is a serious question or prima facie case in support of the grant;
(vii) Whether the grant or refusal of injunction will adversely affect the interest of general public which can or cannot be compensated otherwise."
27. In Dalpat Kumar & Anr. Vs. Prahlad Singh & Ors., AIR 1993 SC 276, the Supreme Court explained the scope of aforesaid material circumstances, but observed as under:-
"The phrases `prima facie case', `balance of convenience' and ` irreparable loss' are not rhetoric phrases for incantation, but words of width and elasticity, to meet myriad situations presented by man's ingenuity in given facts and circumstances, but always is hedged with sound exercise of judicial discretion to meet the ends of justice. The facts rest eloquent and speak for themselves. It is well nigh impossible to find from facts prima facie case and balance of convenience."
X X X X
31. In Bombay Dyeing & Manufacturing Co. Ltd. Vs. Bombay Environmental Action Group & Ors. (2005) 5 SCC 61, this Court observed as under:-
"The courts, however, have to strike a balance between two extreme positions viz. whether the writ petition would itself become infructuous if interim order is refused, on the one hand, and the enormity of losses and hardships which may be suffered by others if an interim order is granted, particularly having regard to the fact that in such an event, the losses sustained by the affected parties thereby may not be possible to be redeemed."
32. Thus, the law on the issue emerges to the effect that interim injunction should be granted by the Court after considering all the pros and cons of the case in a given set of facts involved therein on the risk and responsibility of the party or, in case he looses the case, he cannot take any advantage of the same. The order can be passed on settled principles taking into account the three basic grounds i.e. prima facie case, balance of convenience and irreparable loss. The delay in approaching the Court is of course a good ground for refusal of interim relief, but in exceptional circumstances, where the case of a party is based on fundamental rights guaranteed under the Constitution and there is an apprehension that suit property may be developed in a manner that it acquires irretrievable situation, the Court may grant relief even at a belated stage provided the court is satisfied that the applicant has not been negligent in pursuing the case. [emphasis supplied]
6. Though it is admitted by the respondents UPSC that there was a DPC held on 01.05.2014 and that the minutes of the DPC were being sent to the respondent no.1, we find that the same have not been acted upon as of now and the applicant does not have any cause of action or any document that he can impugn in this OA/MA. His other contentions that the DPC proceedings were vitiated; there is no RR of the post; it was not possible for the DPC to have peruse all the ACRs, are the arguments that have to be considered at the time of deliberation on the prayer in the main OA.
7. In the context of the interim relief, we note that on 04.09.2014 when this matter came up for hearing after completion of pleadings, this Court had suggested final hearing of the case itself instead of limiting it to the interim relief, which was not acceptable to the applicant. As observed by the Honble Supreme Court in the Zenit Mataplast (supra) an interim order is passed as a temporary arrangement to preserve the status quo till the matter is decided finally. As the applicant himself has not agreed to the final hearing at this stage, his simultaneous prayer for interim relief does not carry much justification.
8. The prayer for interim relief has to be examined on the criteria of (i) prima facie case, (ii) balance of convenience, (iii) irreparable loss or injury and (iv) interest of general public. The applicant has not been able to establish a prima facie case in the absence of any document on record to show the likelihood of any irretrievable damage going to be caused to him if the IR as prayed by him is not granted. It is an admitted fact that the DPC minutes are yet to be acted upon by the respondents no.1 and 2 and the contents of the same are not known. The applicant has also stated during oral arguments that the stay will not affect public interest as the Principal Commissioners are going to perform the same functions that are being performed by the Commissioners at present. Another contention of the applicant is that he should also be considered for promotion by the respondents after granting vigilance clearance as in the case of Sh. B. K. Jha and that he does not want to block the promotion of all of about 300 officers. It has also been stated that those officers will not be adversely affected by the stay order of this Tribunal, if granted, as they will get their promotion with retrospective effect with all financial benefits. To our mind, the same logic will apply in reverse to the applicant also as he will be able to get promotion and all the benefits with retrospective effect in the case his OA succeeds. Thus there does not appear to be any urgency to stay the operation of the DPC minutes of 01.05.2014 and thereby delay the promotion of about 300 officers who are not before us. It is more preferable not to interfere in the promotion process at this juncture and compensate one individual (applicant) with promotion and consequential benefits later if the OA succeeds, rather than put the promotion of a large number of officers on hold. Therefore we do not find the balance of convenience in the favour of the applicant and find no reason to stay the operation of the minutes of DPC held on 01.05.2014.
9. In this background and for the above mentioned reasons, we do not find any merit in the MA and the same is dismissed.
(V.N. Gaur) (V. Ajay Kumar) Member (A) Member (J) sd