Central Administrative Tribunal - Chandigarh
Shiv Kumar vs Union Of India Through The Secretary on 23 March, 2012
CENTRAL ADMINISTRATIVE TRIBUNAL
CHANDIGARH BENCH
(reserved on 12.3.2012).
O.A. 882/PB/2009 Date of order:- March 23, 2012.
Coram: Honble Mr. Justice S.D.Anand, Member (J).
Honble Mr. Khushiram, Member (A)
Shiv Kumar, Junior Engineer (Quality Surveying & Contract) s/o Sh. Ram Dass, working in the office of Assistant Garrison Engineer (Independent), Counter Insurgency Force (Romeo) Pin 934756 c/o 56 APO.
Applicant
(By Advocate: Dr.Balram Gupta, Sr. Advocate with Mr. Rohit
Seth)
Versus
1. Union of India through the Secretary, Ministry of Defence, New Delhi.
2. Engineer-in-Chief, Arm headquarters, DHQ Post Office, New Delhi.
3. MES No.314245, Jasbir Singh working as Junior Engineer (Quantity Surveying & Contracts), O/o Chief Engineer (Chandigarh Zone) N Area, Airport Road, Chandigarh.
Respondents
(By Advocate: Mr.Sanjiv Sharma for respondents No.1 & 2
Mr. N.P.Mittal, for respondent No.3).
O R D E R.
Honble Mr Khushiram, Member (A):
Applicant Shiv Kumar has filed the present Original Application under Section 19 of the Administrative Tribunals Act, 1985, praying for the following reliefs :-
a) Issue direction to the respondents to consider the case of the applicant for promotion to the grade/post of Surveyor Assistant Grade I and further promotion as JSW from due date by extending the applicant benefit of the judgment in O.A.No.296-PB-2005 titled Bal Krishan Sharma & Others vs. Union of India & Others, decided on 6.7.2006 in which it was held that persons like applicant have valid grievance that from1995-96 onwards no person from the category of Superintendent Grade II Surveyor Assistant Grade II is also part of the same cadre i.e. Superintendent grade II E&M,B&R) has been either considered or promoted to Grade I which has resulted in double loss to them as they have been denied their promotion to Gr.I and they cannot be considered as Gr.I till notification of new Rules and respondents may consider holding of DPCs in accordance with rules and the law for considering persons who were Supdt. Gr.II and grant them promotions with retrospective date from the date such promotion would have become due to them considering their seniority and availability of vacancies of Gr.I from time to time upto April, 2001, which would help in re-fixation of seniority after placement in Gr.I. These directions were modified in Union of India & Others vs.Vijender Kumar & Others, CWP No.6728 of 2007 decided on 5.9.2008 in which it was directed to conduct DPC from Superintendent Grade II to Superintendent Grade I for the period 1995 to 1999.
(b) For issuance of direction to the respondents to consider the case of the applicant for promotion from Surveyor Asstt. Gde.II to Surveyor Asstt. Gde.II to Surveyor Asstt. Gde I and JSW keeping in view of the reservation policy and the fact that there category has been marginalized toless than 50% of the total vacancy authorized for them. The total vacancy of SA-I as on 1996 was 531 whereas the strength of SC/ST candidates was 57 against sanctioned strength of 120 as per 22-1/2% quota reserved by the Govt. of India by further holding that dereserved vacancies need to be filled up by reserved category candidates as per the policy of reservation made by Government of India under the constitutional provisions to safeguard the interest of reserved category candidates like applicant.
2. Brief facts of the case are that the applicant joined the service of the respondent department on 28.12.1989 as Surveyor Assistant Grade II under the scheduled caste category, which was later on re-designated as Junior Engineer ( Quality Surveying & Contract ) on 9.7.1999. He has stated that in terms of instructions dated 25.4.1989 issued by the Government, there will be reservation at 15% and 7-1/2% of the vacancies for Scheduled castes and Scheduled tribes in promotions made by selection, in grades or services in which the element of direct recruitment, if any, does not exceed 75%. Select Lists of SC/ST officers should be drawn up separately to fill the reserved vacancies; officers belonging to these classes will be adjudged separately and not along with other officers and if they are fit for promotion, they should be included in the list irrespective of their merit as compared to other officers. Promotions against reserved vacancies will continue subject to the candidates satisfying the prescribed minimum standards. The applicant has further pleaded that in pursuance of Constitution ( Eighty fifth) Amendment Act, 2001, a SC/ST government servant shall, on their promotion by virtue of rule of reservation/roster, be entitled to consequential seniority also.
3. The applicant has contended that in view of judgment dated 31.3.1995 passed by the Bangalore Bench in the case of B.N.Kadapati & Ors. Versus Union of India & Ors, the respondents were directed to grant the applicants therein time bound higher scale of pay as was being paid to Junior Engineers in CPWD in the scale of Superintendent G/R Superintendent E/M and Surveyor Assistants i.e. Rs.1640-2900 to the persons in Supdt. Gr.II as and when they complete five years of service in the grade from 1.1.1986 and Rs.2000-3500 when they complete 15 years of service in that grade from 1991. In pursuance of the judgment dated 31.3.1995, the respondents have decided that Superintendent (B/R)/(E/M)/SAs who could not be promoted to the posts of Assistant Engineer/Junior Surveyor of Works in the pay scale of Rs.2000-3500 due to non-availability of vacancies in the grade of Assistant Engineer/JSW will be allowed the pay scale of Rs.2000-3500 on personal basis after completion of 15 years of total service as Supdt. B/R and E/M/S.A. on fitness basis, further providing that as and when regular vacancies in the grade of Assistant Engineer/JSW arise, such officers would get adjusted against these vacancies subject to observance of normal procedure. The applicant was granted the first financial up-gradation under the time bound promotion w.e.f. 28.12.1994.
4. The applicant has further averred that due to some dispute in the seniority between Gr.I & Gr.II, some of the employees filed O.A.No.296/PB/2005 (Bal Krishan Sharma & Ors. versus Union of India & Ors.) which was decided vide judgment dated 6.7.2006 wherein it was held that the applicants and similarly placed other persons have a valid grievance from 1995-96 onwards no person from the category of Supdt. Gr.II has been either considered or promoted to Gr.I which has resulted in double loss to them as they have been denied their promotion to Gr.I and they cannot be considered as Gr.I till notification of new rules in 2011. The Tribunal has further held that such a case is not before us but we put on record that it will be desirable that the respondents consider holding of DPCs in accordance with the rules and the law for considering persons who were Supdts.Gr.II and grant them promotions with retrospective dates i.e. from the date such a promotion would have become due to them considering their seniority and availability of vacancies of Gr.I from time to time upto April, 2001.
5. The department has challenged the said order by filing C.W.P.NO.6728 of 2007 before the Punjab & Haryana High Court and the High Court vide order dated 5.9.2009 has observed as under :-
Mere grant of higher scale of pay after a specific period, as in the present case, does not amount to promotion, unless a promotion is actually made in accordance with the rules. Denial of their claim to grant them due place in the seniority list would result in denial of their right to further promotion to the next higher post in accordance with their due seniority. The denial would perpetuate a wrong already done to them. Even otherwise, the impugned directions by Tribunal clearly stipulate that holding of proforma DPC as directed, would help in refixation of their seniority after their placement in Grade I. Thus, this observation of the Tribunal clearly disclose the judicial intent behind the direction namely that the eligible Superintendent Grade II would have to be put at their rightful place in the seniority list vis-`-vis those recruited as against the 12.5% quota for the direct recruits under the erstwhile 1983 Rules then in force. Thus, it is absolutely wrong to now contend that the directions of the Tribunal means to order promotion to a non-existent post. It is, thus, in adjudication of this dispute raised by these persons that Tribunal for the purposes of restoring their correct place in the seniority, has rightly made directions to the petitioners to hold proforma DPCs for these years so that these eligible Superintendent Grade II are placed at their rightful place in the seniority list which was the prayer before the Tribunal.
We may also note that the present petitioner has also very fairly proposed vide A-1 to administratively issue promotion panels for the post of Grade I from the year 1995 to 1999 while admitting that an anomalous situation had occurred on account of non-promotion of Superintendent Grade II to Grade I during the period 1995 to 2001, causing discrimination vis-`-vis direct recruits.
Accordingly, the writ petitions are dismissed with the modification that the DPC from Superintendent Grade II to Superintendent Grade I shall now be done for the period1995 to 1999, instead of upto April, 2001, for re-fixation of their seniority after their placement in Superintendent Grade I, keeping in mind the seniority and availability of vacancy of Grade I. The applicant had submitted a representation on 22.2.2008 (Annexure A-5) to respondent No.2 to the effect that proper representation to reserved candidates has not been given in promotion which took place in the previous year. The applicant has further alleged that now the respondent department is under process of proforma DPC only in cases of Superintendents Gr.II/II i.e. Junior Engineer E/M & B/R by not extending the benefit of reservation to SC/ST upto 22 1/2 % quota.
6 On notice, the respondents No.1 & 2 have filed their written statement. They have stated that the assertion of the applicant that all three cadre i.e. B/R, E/M & Surveyor are similar is miscalculation and misinterpretation just to take the benefit by confusing the matter as the Recruitment Rules for Surveyor cadre are different. The decision rendered in CWP No.6728 of 2007 relate to Superintendent B/R Gr.II and E/M Gr.II and their promotion as Superintendent B/R Gr.I and E/M Gr.I. They have further stated that in Surveyor cadre, there was no direct entry of Superintendent SA Gr.I either of the holder or on reemployment after last DPC of SA Gr.II to SA Gr.I in the year 1993, as such, the case conditions are different and not similar as averred by the applicant in his O.A and all India seniority list of SA Gr.II and Gr.I was a settled seniority list without any objections. They have further averred that the applicant or any Surveyor Cadre Officer was not part from any side in the said case as this is a different cadre having different Recruitment Rules and all India seniority. The respondents have further stated that three categories i.e. B/R, E/M & Surveyor are having different Recruitment Rules and their seniority lists are maintained differently. Therefore, proforma DPC in the case of JE & B/R cadres is being done in compliance with the order passed by the Honble High Court in C.W.P.NO.6728 of 2007 and is not applicable in case of Surveyor cadre which is a separate cadre for which separate seniority list is being maintained. There was no direct entry to SA Gr.I after last DPC of SA Gr.II to Gr.I in the year 1993. Therefore, conditions are different and not similar as stated by the applicant.
7. They have also stated that from 1996 to 1999 neither direct recruitment to the post of SA Gr.I was done nor promotion to the post of SA Gr.I was planned as all the SA Gr.II were already getting the pay scale of SA Gr.I. Hence, the number of vacancies during the period from 1996 to 1999 was not required to be finalized and are not available on record. As per AAISL(QS&C) available on record issued on 25.10.2001, the seniority position of the applicant is 785 and as per the Military Engineer Services ( Surveyor Assistants) Recruitment Rules, 1983, the post of Surveyor Assistant Gr.I is to be filled by promotion failing which by direct recruitment. These rules were further amended by Military Engineer Services (Surveyor Assistants) Recruitment (Amendment) Rules, 1991 and these Rule further provide that the existing Surveyor Assistant Gr.II having no technical qualification and who have minimum 15 years of regular service in the grade may also be considered for promotion. Besides the one holding diploma in Civil Engineering and passed Intermediate examination of Building & Quantity surveying ( Sub Division II ) of Institution of Surveyors India with 3 years service in the grade or who had passed Intermediate examination of Building & Quantity Surveying (Sub Division II) of Institution of Surveyors (India) with minimum of 5 years service in the grade or Surveyor Assistant Gr.II holding diploma in Civil Engineering with minimum 7 years service in the grade or Surveyor Assistant Gr.II having passed the degree in Engineering or equivalent with 3 years service in the grade are to be considered eligible for promotion.
8. Mr. N.P.Mittal, learned counsel for the respondent No.3 has stated that he does not wish to file any independent counter and that he adopts the counter filed on behalf of respondents No.1 & 2.
9. We have heard the learned counsel for the parties and perused the material placed on record.
10. The learned counsel for the applicant strenuously argued that before 2001 had DPC been conducted, the applicant would have been promoted as Surveyor Gr.I and on coming into force of the new Recruitment Rules, he would have been entitled to further promotion to the post of Assistant Engineer, but since no DPC was held from 1995 to 1999, the applicant did not get promotion as Assistant Surveyor Gr.II or Gr.I. By way of accelerated promotions available, his service career prospectus would have been much better as is being today. Since no vacancy for SC/ST quota was assessed, the applicant has to suffer an irreparable loss.
11. On the other hand, the learned counsel for the respondents has argued that the applicant was not a party in the case of Bal Krishan Sharma ( O.A.No.296/PB/2005 ), therefore, he was not entitled to the benefit of the order. The applicant was promoted w.e.f. 24.1.2012 and from 2000 onwards, the post has been given new nomenclature known as J.E. (Quality Surveying & Contracts), therefore, the applicant is not entitled to any relief as the post of Superintendent Gr.I or Assistant Surveyor Gr.I no longer exist from 2001 onwards.
12. The learned counsel for the respondents invited our attention to the case of MES NO.314245 Jasbir Singh working as Junior Engineer ( Quantity Surveying & Contracts) who sought to be impleaded as a party, but the applicant has contested his claim by stating that the controversy can be completely adjudicated and settled without presence of intervener. The applicant is the Dominus litus i.e. the master of this case and he cannot be compelled to fight against the person with whom he does not want to fight nor is he claiming any relief against that person.
13. Without going into the merits of the claim of the applicant, it is apparent that the applicant is seeking relief for a period prior to 2001 when the new Rules came into existence. He has neither filed any representation nor any OA before 2008 nor he had filed any explanation for the inexplicable delay of almost two decades before approaching this Tribunal. Since the seniority of the applicant has been settled long back, it is difficult to unsettle the settled position after such a long period of time as per Section 21 of the Administrative Tribunals Act, 1985. The Tribunal cannot admit an application in respect of the grievance unless the application is made within one year and six months in case the order has been appealed against. The applicant by accepting that situation as it is for over a decade has no reason to rake up the issue after more than 15 years.
14. In the case of State of Karnataka & Ors. Versus S.M.Kotrayya & Ors. ( 1996 S.L.R. S.C. 664 ) the Honble Apex Court has held as under :-
8. Thus considered, we hold that it is not necessary that the respondents should give an explanation for the delay which occasioned for the period mentioned in sub-sections (1) or (2) of Section 21, but they should give explanation for the delay which occasioned after the expiry of the aforesaid respective period applicable to the appropriate case and the Tribunal should be required to satisfy itself whether the explanation offered was proper explanation. In this case, the explanation offered was that they came to know of the relief granted by the Tribunal in August 1989 and that they filed the petition immediately thereafter. That is not a proper explanation at all. What was required of them to explain under sub-sections (1) and (2) was as to why they could not avail of the remedy of redressal of their grievances before the expiry of the period prescribed under sub-section (1) or (2). That was not the explanation given. Therefore, the Tribunal is wholly unjustified in condoning the delay.
15. In the case of P.K. Ramachandran versus State of Kerala & Another ( J.T.1997(8) S.C. 189 ), the Honble Supreme Court has held that the law of limitation may harshly affect a particular party but it has to be applied with all its rigor when the statute so prescribes and the Courts have no power to extend the period of limitation on equitable grounds. The discretion exercised by the High Court was, thus, neither proper nor judicious. The order condoning the delay, therefore, cannot be sustained.
16. Similarly, the Honble Supreme Court in the case of Karnataka Power Corporation Limited through its Chairman & Another versus K.Thangappan & Another (2006(4) S.C.C. Page 322) has held that mere making of representations cannot justify delay.
17. In the case of U.P.Jal Nigam & Another versus Jaswant Singh & Another (2007(1) S.C.T. Page 225 ), the Honble Supreme Court has held that the litigant who is guilty of long delay and latches is deemed to have acquiesced or waived of his claim or right. Those who initiated action in time got the relief from the court. Similar orders cannot be claimed ignoring the long unexplained delay by others also who were not vigilant enough. If such claims result into some financial burden upon the establishment, it will or may not be possible for the employer to meet with such additional liability after a long time.
18. In another decision rendered by the Honble Apex Court in SLP (C) No.7956 of 2011 decided on 7.3.2011 ( D.S.Negi versus Union of India ) has held that it is the duty of the Tribunal to first consider whether the application is within limitation. An application can be admitted only if the same is found to have been made within the prescribed period or sufficient cause is shown for not doing so within the prescribed period an order is passed under section 21(3) of the A.T. Act. Accordingly, the above narration of facts shows that the applicant was not vigilant about his rights and thus not entitled to any relief.
14. Again the Honble Apex Court in the case of Union of India & Ors. Versus A.Durairaj ( J.T. 2011 (3) S.C. Page 254 ) has held as under:-
Re: Question(i)
12. Section 21 of the Administrative Tribunals Act, 1985 prescribes the limitation for approaching the Tribunal. In this case the medical examination of the Respondent and the non-promotion as ad hoc ASTE were in the year 1976. The Respondent accepted the diagnosis that he was colour blind and did not make any grievance in regard to his non-promotion. On the other hand, he attempted to get treatment or correction contact lenses from USA (to aid the colour blind to distinguish colours correctly). On account of the non challenge, the issue relating to his non-selection in 1976 attained finality and the same issue could not have been reopened in the year 1999-2000, on the ground that medical tests conducted in 1998 and 2000 showed him to be not colour blind.
13. It is well settled that anyone who feels aggrieved by non-promotion or non-selection should approach the Court/Tribunal as early as possible. If a person having a justifiable grievance allows the matter to become stale and approaches the Court/Tribunal belatedly grant of any relief on the basis of such belated application would lead to serious administrative complications to the employer and difficulties to the other employees as it will upset the settled position regarding seniority and promotions which has been granted to others over the years. Further, where a claim is raised beyond a decade or two from the date of cause of action, the employer will be at a great disadvantage of effectively contest or counter the claim, as the officers who dealt with the matter and/or the relevant records relating to the matter may no longer be available. Therefore, even if no period of limitation is prescribed, any belated challenge would be liable to be dismissed on the ground of delay and laches.
14. This is a typical case where an employee gives a representation in a matter which is stale and old, after two decades and gets a direction of the Tribunal to consider and dispose of the same, and thereafter again approaches the Tribunal alleging that there is delay in disposal of the representation (or if there is an order rejecting the representation, then file an application to challenge the rejection, treating the date of rejection of the representation as the date of cause of action). This Court had occasion to examine such situations in Union of India v. M.K. Sarkar (JT 2009 (15) SC 70: 2010(2) SCC 58) and held as follows:-
The order of the Tribunal allowing the first application of respondent without examining the merits, and directing appellants to consider his representation has given rise to unnecessary litigation and avoidable complications. Xxxxx When a belated representation in regard to a stale or dead issue dispute is considered and decided, in compliance with a direction by the Court/Tribunal to do so, the date of such decision cannot be considered as furnishing a fresh cause of action for reviewing the dead issue or time-barred dispute. The issue of limitation or delay and laches should be considered with reference to the original cause of action and not with reference to the date on which an order is passed in compliance with a courts direction. Neither a courts direction to consider a representation issued without examining the merits, nor a decision given in compliance with such direction, will extended the limitation, or erase the delay and laches.
A Court or Tribunal, before directing consideration of a claim or representation should examine whether the claim or representation is with reference to a live issue or whether it is with reference to a dead or stale issue, if it is with reference to a `dead or `stale issue or dispute, the Court/Tribunal should put an end to the matter and should not direct consideration or reconsideration. If the court or Tribunal deciding to direct consideration without itself examining of the merits, it should make it clear that such consideration will be without prejudice to any contention relating to limitation or delay and laches. Even if the Court does not expressly say so, that would be the legal position and effect. 14.1 We are therefore of the view that the High Court ought to have affirmed the order of the Tribunal dismissing the application of the respondent for retrospective promotion from 1976, on the ground of delay and laches.
19. For the reasoning given in the foregoing paras of this order, we do not feel to call upon to go into the merits of the case as we find that the case is hopelessly barred by the law of limitation and entertainment of the application cannot be allowed because it would unsettle the settled position which has existed for the last more than 15 years. The O.A. shall stand dismissed as time barred. No costs.
(KHUSHIRAM) MEMBER (A) (JUSTICE S.D.ANAND) MEMBER (J) Dated: March , 2012.
Kks 14 ( O.A.No. 882/PB/2009 ) (O.A.No.882/PB/2009) 1