Central Administrative Tribunal - Hyderabad
D. Ravi Kumar vs State Of Tamil Nadu Reported In Air 1974 ... on 31 July, 2008
IN THE CENTRAL ADMINISTRATIVE TRIBUNAL HYDERABAD BENCH HYDERABAD O.A. 606/2007 Date of order : 31 -07-2008 Between: D. Ravi Kumar, Occ: Junior Engineer-II, O/o. Senior Divisional Personnel Officer, South Central Railway, Vijayawada Division, South Central Railway, Vijayawada. ... Applicant A N D 1. The General Manager, South Central Railway, Rail Nilayam, Secunderabad. 2. The Chief Personnel Officer, South Central Railway, Rail Nilayam, Secunderabad. 3. The Senior Divisional Personnel Officer, Vijayawada Division, South Central Railway, Vijayawada. 4. Senior Divisional Mechanical Engineer, Vijayawada Division, South Central Railway, Vijayawada. ... Respondents Counsel for the applicant : Mr. K.R.K.V. Prasad Counsel for the respondents: Mr. M.C. Jacob C O R A M : THE HON'BLE MRS.BHARATI RAY, MEMBER (J) THE HON'BLE MR. R. SANTHANAM, MEMBER(A) O R D E R
(Per Hon'ble Mrs. Bharati Ray, Member (J) This application has been filed by the applicant seeking for the following relief :
To call for the records pertaining to Office Order No. P/49/R&M/ DSL/96 issued under letter No. P/535/R&M/DSL/Chg.'A' dated 16.7.96 by the Chief Personnel Officer; office order No. MECH/Diesel/61/96 issued under letter No. B/P.535/III/DSL/Vol.I dated 14.08.96 by Senior Divisional Personnel Officer/ Vijayawada and CPO/SC's letter No. P.446/Mech/R&M/DSL/Misc dated 22.5.07 and set aside them as arbitrary to the extent of the case of the applicant and direct the respondents to promote the applicant to the post of Junior Engineer/ Grade-I with effect from the date of adhoc promotion, i.e. 30.11.1988 and also promote him to the post of Section Engineer and Senior Section Engineer in the pay scales Rs.6500-10500 and Rs.7450-11500 respectively on par with his juniors and allow all other consequential benefits including suitable alternative appointment to the post equivalent to the grade of Senior Section Engineer.
2. The applicant was appointed on 7.1.1982 as Telecom Maintainer Grade-III in the Vijayawada Division of South Central Railway and worked as such upto 1.5.1984. The applicant applied for the post of Apprentice Mechanic/ Diesel/Electrical, notified by the Railway Service Commission, Secunderabad (hereinafter referred to as RSC, Secunderabad). On being selected as Apprentice/ Mechanic/Electrical he was directed to report for training on 4.5.84 at Vijayawada. On completion of the training the applicant was posted as Chargeman 'B' (redesignated as Junior Engineer grade-II) on 7.8.1986. The applicant possessed a Diploma in Electrical Engineering (DEE) which was a requisite qualification for selection as Apprentice Mechanic notified by RSC, Secunderabad. The applicant was promoted as adhoc Chargeman 'A' (Junior Engineer Grade-I) in grade Rs.1600-2660/5500-9000 by the 3rd respondent on 30.11.1988 and the applicant was performing his duties in the said post diligently and to the best satisfaction of the authority concerned.
3. When the matter stood thus, the applicant received a communication vide impugned letter No. B/P.535/III/DSL/Vol.I dated 14.08.96 issued by the 3rd respondent reverting him to the post of Chargeman 'B' on the basis of impugned letter No. P/535/R&M/DSL/Chg. 'A' dated 16.7.96 issued by the 2nd respondent. The applicant has enclosed copy of the letter dated 14.08.96 and 16.7.96 as Annexure A-2 and A-1 respectively to the OA. It is the contention of the applicant that his junior D.V. Subbaraju who was appointed as Chargeman 'B' through departmental selection on 8.7.1993 and Mohd. Rizwan Ahmed who was also appointed as Chargeman 'B' through departmental selection i.e. about 7 years later to the applicant entering into that grade, has been promoted as Junior Engineer Grade-I on 14.8.1986 and 23.1.1998 respectively. The said D.V. Subbaraju (since expired) was promoted as Chargeman'A' reverting the applicant from the post of Chargeman 'A' to Chargeman 'B'. The applicant has further stated that Mohd. Rizwan Ahmed who was promoted as Junior Engineer/Grade-I on 23.1.1998 on regular basis was further promoted as Section Engineer (Electrical)/Vijayawada in scale Rs.6500-10500 w.e.f. 1.11.03. It is, therefore, the contention of the applicant that, but for the irregular reversion of the applicant from the post of Chargeman 'A' to Chargeman 'B' the applicant could have progressed to the post of Senior Section Engineer/Electrical in grade Rs. 7450-11500. The impugned order dated 16.07.1996 of the 2nd respondent is only suggestive in regard to the reversion of the applicant whereas the 3rd respondent vide impugned order dated 14.08.1996 had reverted the applicant from the post of Chargeman-A to Chargeman-B. He, therefore, submits that the order of reversion issued by the 3rd respondent is improper. The applicant submitted a representation on 24.11.1995 while he was working as Chargeman 'A' on adhoc basis which was forwarded to the 2nd respondent on 14.03.1996 by the 3rd respondent for regularisation justifying the claim. Instead of considering the said representation the applicant had been reverted to the post of Chargeman 'B'. The applicant submitted various representations dated 14.08.96, 08.06.2005, 13.01.2007 and 19.02.2007 to the 2nd respondent and also the Head of the Department concerned through his controlling officers for which the 3rd respondent given a reply vide letter dated 4.4.2007 inter alia mentioning that the adhoc promotion does not confer on the employee any prospective right for continuance etc. The applicant has also impugned the communication dated 22.05.07 issued by the 2nd respondent whereby the applicant has been informed that the competent authority after verifying his attendance particulars and reviewing his CRs at the time of regular promotion during the year 1996 had considered the applicant as not suitable for promotion. The applicant has submitted that the Railway Board has laid down guidelines in their letter dated 10.05.1993 in regard to adverse comments in CRs which have not been communicated and effect thereof on consideration for promotion. In terms of the guidelines, un-communicated adverse remarks pertaining to the three year period preceding selection is of a grave nature, the DPC should direct the communication of the same to the employee calling for representation if any within one month. Since the applicant had not been communicated anything as such, while considering his case for regular promotion as Chargeman 'A' or any time during his service, it is clear that there is nothing adverse against the applicant compelling the competent authority not to consider him for empanelment. He, therefore submits that the impugned letter dated 22.05.2007 is not correct.
4. The applicant is at present working as Junior Engineer/Grade-II on a supernumerary post since medically de-categorised whereas his juniors who are departmental promotees and promoted as Junior Engineer/Grade II much later to the appointment of the applicant, has progressed as Junior Engineer/ Grade-I on 23.01.1998 and Section Engineer on 01.11.2003. It is the case of the applicant that but for the irregular reversion of the applicant from the post of Chargeman 'A' to Chargeman 'B' the applicant would have progressed much ahead of his juniors. He further submitted that as per para 1306(2) of IREM Vol.I the medically decategorised staff should be offered an alternative appointment to a post with the same scale of pay as was attached to the post he was holding on regular basis before being declared medically unfit. It is the contention of the applicant that keeping in view with the above provisions of the IREM, the 3rd respondent is in the process of offering a suitable alternative post equivalent to Junior Engineer/Grade-II to the applicant whereas the applicant is entitled for alternative appointment in Grade Rs.7450-11500 as held by his junior in the substantive cadre of the applicant. Therefore, the illegal reversion of the applicant after so many years of adhoc service is without any basis and is violative of article 14 and 16 of the Constitution. Therefore, he has sought for the relief as mentioned above.
5. Respondents have contested the application by filing a counter reply. Respondents have taken the objection in regard to the maintainability of the OA on the ground that the OA is barred by limitation. It is the submission of the learned counsel for the respondents that the reversion of the applicant was ordered long back in 1996 and also his juniors were promoted. Since the applicant has not questioned the orders of reversion as well order of promotion of his junior he cannot question the orders now simply on the ground that the reasons for not considering him has been disclosed through impugned letter dated 22.05.07. While raising the objection of limitation, learned counsel for the respondents has placed reliance on the judgments of Hon'ble Supreme Court in the case of P.S. Sadasivaswamy vs. State of Tamil Nadu reported in AIR 1974 SC 2271 and the decision in the case of S.S. Rathore vs. State of Madhya Pradesh reported in AIR 1990 SC 10. Learned counsel for the respondents also placed reliance on the decision in the case of Amarjit Singh vs. State of Punjab and Anr. reported in 2005(2) ATJ 68.
6. The learned counsel for the applicant has argued strenuously that since the respondents did not reply to his several representations submitted by him from time to time and it is only when the CPO vide his letter dated 22.5.07 informed the applicant that his representations dated 13.01.2007 and 19.02.2007 have been examined in detail and found that he was promoted on adhoc basis during 1988 pending filling up of vacancies on regular basis, the competent authority on verifying the attendance particulars and reviewing his CRs at the time of promotion during 1996 has considered him and found not suitable for promotion and as such he was reverted as Chargeman 'B'. It is, therefore, the contention of the learned counsel for the applicant since the applicant has been informed by the respondents only on 22.05.2007 and the applicant has approached this Tribunal in 2007 itself the same cannot be barred by limitation. He has also placed reliance on the judgment of CAT New Delhi Bench in the case of Dr. Ranjan Chandra vs. The Secretary to the Govt. of India, Ministry of Health and Family Welfare etc. (OA No. 2068/2005 decided on 07.09.2006). He has also placed reliance on the judgment of the Hon'ble Supreme Court in the case of M.R. Gupta vs. UOI and Ors. (1995)5 SCC 628 and The General Manager, South Central Railway, Secunderabad and another vs. AVR Siddhantti and ors. (1974)4 SCC 335.
7. We have heard Mr. KRKV Prasad, learned counsel for the applicant and Mr. M.C. Jacob learned counsel for the respondents. We have gone through the facts of the case and material papers placed before us. We have also gone through the judgments relied upon by the learned counsel for the parties.
8. Before going into the merit of the case, since the point of limitation has been taken by the learned counsel for the respondents, we will decide the question of limitation.
9. After hearing the counsel and going through the material papers we find that it is not in dispute that applicant was considered for regular promotion to the post of Chargeman'A' but the competent authority after considering his case found him unsuitable for promotion to the said post. Accordingly, he was reverted to the post of Chargeman'B' in the scale of Rs.1400-2300 with immediate effect vide order dated 16.7.1996. The 3rd respondent issued consequential order dated 14.08.1996. Applicant submitted representation on 14.08.1996 itself to the 2nd respondent stating therein that his juniors were considered for promotion but he was not considered. Subsequently after a gap of nine years the applicant submitted representations on 13.01.2007 requesting to restore him as Junior Engineer Grade-I on regular basis. The said representation was followed by another representation dated 19.02.2007. The said representations were, however, considered by the competent authority and vide impugned proceedings dated 22.05.2007 authority concerned intimated the applicant that he was promoted on adhoc basis during 1988 pending filling up of vacancies on regular basis and subsequently he was considered for promotion in 1996 but was not found suitable for promotion and as such he was reverted to the post of Chargeman 'B'.
10. From the service record produced by the learned counsel for the respondents we find that thereafter the applicant was considered for promotion in the year 1997, 1998 and 2003 but was not found fit by the competent authority on the basis of his ACR. The applicant was medically de-categorised in the year 2005 and has been provided with alternative post in a equivalent scale. The applicant has never approached this Tribunal questioning the action of the respondent at any point of time between 1997 to 2003 although he was very much aware of the fact that he was considered between 1997 and 2003 but was not promoted. It is the contention of the applicant that his juniors were promoted in 1996. The applicant was also considered along with his juniors and was not given promotion as he was not found fit on the basis of his ACR which he has never questioned at the relevant point of time. He submitted representations and reminders to the respondents. It is undisputed that the respondents did not answer any of the representations made in 1996. After expiry of six months from the date he submitted his representation, instead of approaching the Tribunal, he kept on waiting for the reply from the respondents. It is the contention of the learned counsel for the applicant that since he has been medically de-categorised and adjusted against the equivalent post and has not been communicated with any adverse ACRs, if he is considered for promotion with effect from the date his junior has been given promotion, no one will be affected. We find no force in such submission made by the applicant's counsel. His medical de-categorisation does not give rise to any new fresh cause of action. The fact remains that the applicant was duly considered for promotion along with his juniors in 1996 but was not found fit for promotion. That being the position, only because the reason for not giving him promotion has been communicated only in 2007, does not save the applicant from limitation. The cause of action arose in 1996 when his juniors were promoted. The applicant was considered thereafter also till 2003 but was not found fit. But, he did not question the same during the period from 1996 to 2003. The applicant approached this Tribunal by filing the instant OA in 2007 only. He has chosen to wait for the reply to his representation and came before the Tribunal when he has been informed about the reasons for not giving him promotion. Therefore, the claim of the applicant to consider and give promotion with effect from the date his juniors promoted in 1996, in our view, cannot be entertained at this belated stage.
11. The Hon'ble Supreme Court in the case of P.S. Sadasivaswamy vs. State of Tamil Nadu (supra) held that the writ petition is not entertainable for the delay of 14 years in coming to the court. In the said case the Apex Court has observed as under:
"A person aggrieved by an order of promoting a junior over his head should approach the Court at least within six months or at the most a year of such promotion. It is not that there is any period of limitation for the Courts to exercise their powers under Article 226 nor is it that there can never be a case where the Courts cannot interfere in a matter after the passage of a certain length of time. But it would be a sound and wise exercise of discretion for the Courts to refuse to exercise their extra-ordinary powers under Article 226 in the case of persons who do not approach it expeditiously for relief and who stand by and allow things to happen and then approach the Court to put forward stale claims and try to unsettle settled matters. The petitioner's petition should, therefore, have been dismissed in limine. Entertaining such petitions is a waste of time of the Court. It clogs the work of the Court and impedes the work of the Court in considering legitimate grievances as also its normal work. We consider that the High Court was right in dismissing the appellant's petition as well as the appeal. "
12. In the case of S.S. Rathore vs. State of Madhya Pradesh, the Apex court inter-alia has held as under :
"19. The question for consideration is whether it should be disposal of one appeal or the entire hierarchy of reliefs as may have been provided. Statutory guidance is available from the provisions of sub-ss.(2) and (3) of S.20 of the Administrative Tribunals Act. There, it has been laid down:
"20.(2) For the purpose 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 persons, 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 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."
20. .................
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 Court's 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 rise 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."
13. The judgment of the Hon'ble Supreme Court relied upon by the learned counsel for the applicant in the case of The General Manager, South Central Railway, Secunderabad and Another vs. A.V.R. Siddhantti and Ors. we find the objection was on the point of limitation and therefore the Apex Court has said that the "objection which had been abandoned in the High Court cannot be permitted to be raised in the Supreme Court." But in the case in hand the OA has not yet been admitted. Therefore, the objection raised by the respondents can be entertained at this stage. Therefore, the decision of the Hon'ble Supreme Court (supra) is not applicable in this case.
14. In the case of M.R. Gupta vs. U.O.I and ors., as relied upon by the learned counsel for the applicant, we find that it is a case of fixation of pay and the Apex Court has held that it is a continuous cause of action an therefore it is not barred by limitation. Undisputedly, the issue involved in this case is in regard to promotion which is not a continuous cause of action. Therefore, the above judgment is also not applicable in this case.
15. In view of the above legal position as discussed above and in view of the fact that the applicant did not approach this tribunal in 1996, when he was considered along with his juniors but was not found fit, and submitted representations and kept waiting for the reply and has also not questioned the decision of the competent authority in 1997, 1998 and 2003 when he was considered for promotion but was not promoted, we are of the view that this application is barred by limitation and cannot be entertained at this belated stage. The OA is accordingly dismissed on the ground of delay. There shall be no order as to costs.
(R. SANTHANAM) (BHARATI RAY)
MEMBER (A) MEMBER (J)