Central Administrative Tribunal - Delhi
Ram Nath Yadav vs Secretary on 15 January, 2015
Central Administrative Tribunal
Principal Bench: New Delhi
OA No. 3315/2012
OA No._3318/2012
OA No. 3330/2012
OA No.3331/2012
Reserved on:23.12.2014
Pronounced on:15.01.2015
Honble Mr. Justice Syed Rafat Alam, Chairman
Honble Dr. B.K. Sinha, Member (A)
OA No. 3315/2012
1. Syed Mohammad Shad
Presently posted as Deputy Director
Central Water Commission
Ministry of Water Resources
Sewa Bhawan, R.K.Puram
New Delhi.-110001.
2. Brij Bihari Pandey
Presently posted as Deputy Director
Central Water Commission
Ministry of Water Resources
Sewa Bhawan, R.K.Puram
New Delhi.-110001.
3. Shri Rishi Kumar Aggarwal
Presently posted as Deputy Director
Central Water Commission
Ministry of Water Resources
Sewa Bhawan, R.K.Puram
New Delhi.-110001.
4. Satyendra Kumar Chaturvedi
Presently posted as Deputy Director
Central Water Commission
Ministry of Water Resources
Sewa Bhawan, R.K.Puram
New Delhi.-110001.
5. Bashishtha Rai
Presently posted as Deputy Director
Central Water Commission
Ministry of Water Resources
Sewa Bhawan, R.K.Puram
New Delhi.-110001.
6. Satish Chandra
Presently posted as Deputy Director
Central Water Commission
Ministry of Water Resources
Sewa Bhawan, R.K.Puram
New Delhi.-110001.
7. P.C.K.Singh
Presently posted as Deputy Director
Central Water Commission
Ministry of Water Resources
Sewa Bhawan, R.K.Puram
New Delhi.-110001.
8. R.P.Singh,
Presently posted as Deputy Director
Central Water Commission
Ministry of Water Resources
Sewa Bhawan, R.K.Puram
New Delhi.-110001.
9. Mahender Kumar
Presently posted as Deputy Director
Central Water Commission
Ministry of Water Resources
Sewa Bhawan, R.K.Puram
New Delhi.-110001.
10. H.K. Haldar
Presently posted as Deputy Director
Central Water Commission
Ministry of Water Resources
Sewa Bhawan, R.K.Puram
New Delhi.-110001.
11. Girish Kumar
Presently posted as Deputy Director
Central Water Commission
Ministry of Water Resources
Sewa Bhawan, R.K.Puram
New Delhi.-110001.
12. Ramesh Kumar
Presently posted as Deputy Director
Central Water Commission
Ministry of Water Resources
Sewa Bhawan, R.K.Puram
New Delhi.-110001.
13. Rakesh Verma
Presently posted as Deputy Director
Central Water Commission
Ministry of Water Resources
Sewa Bhawan, R.K.Puram
New Delhi.-110001.
14. Amal Kumar Sinha
Presently posted as Deputy Director
Central Water Commission
Ministry of Water Resources
Sewa Bhawan, R.K.Puram
New Delhi.-110001.
15. Santosh Dhar Diwan
Presently posted as Deputy Director
Central Water Commission
Ministry of Water Resources
Sewa Bhawan, R.K.Puram
New Delhi.-110001.
16. Subash Prasad Singh
Presently posted as Deputy Director
Central Water Commission
Ministry of Water Resources
Sewa Bhawan, R.K.Puram
New Delhi.-110001.
17. Vijoy Prakash Pathak
Presently posted as Deputy Director
Central Water Commission
Ministry of Water Resources
Sewa Bhawan, R.K.Puram
New Delhi.-110001.
18. T.Sukumar Singh
Presently posted as Deputy Director
Central Water Commission
Ministry of Water Resources
Sewa Bhawan, R.K.Puram
New Delhi.-110001.
19. Raj Narayan Singh
Presently posted as Deputy Director
Central Water Commission
Ministry of Water Resources
Sewa Bhawan, R.K.Puram
New Delhi.-110001.
20. Vijay Kumar
Presently posted as Deputy Director
Central Water Commission
Ministry of Water Resources
Sewa Bhawan, R.K.Puram
New Delhi.-110001.
21. Ravinder Kumar Vijh
Presently posted as Deputy Director
Central Water Commission
Ministry of Water Resources
Sewa Bhawan, R.K.Puram
New Delhi.-110001.
22. Dr. Saleem Ahmed
Presently posted as Deputy Director
Central Water Commission
Ministry of Water Resources
Sewa Bhawan, R.K.Puram
New Delhi.-110001.
23. R.K. Misra
Presently posted as Deputy Director
Central Water Commission
Ministry of Water Resources
Sewa Bhawan, R.K.Puram
New Delhi.-110001.
24. Birendra Singh
Presently posted as Deputy Director
Central Water Commission
Ministry of Water Resources
Sewa Bhawan, R.K.Puram
New Delhi.-110001.
25. Rajeshwar Sah
Presently posted as Deputy Director
Central Water Commission
Ministry of Water Resources
Sewa Bhawan, R.K.Puram
New Delhi.-110001.
26. Bhagwat Yadav
Presently posted as Deputy Director
Central Water Commission
Ministry of Water Resources
Sewa Bhawan, R.K.Puram
New Delhi.-110001.
(By Advocates:- Sh. Mahabir Singh, Senior Advocate with
S/Sh. Satpal Singh, R.N. Roy and Nikhil Jain)
Versus
1. Secretary,
Ministry of Water Resources,
Shramshakti Bhawan,
Rafi Marg,
New Delhi 110 001.
2. Chairman,
Central Water Commission,
Sewa Bhawan, R.K. Puram,
New Delhi 110 066. Respondents
(By Advocate: Shri R.N. Singh)
OA No._3318/2012
1. Ram Nath Yadav
Presently posted as Executive Engineer,
Damodar Division,
Central Water Commission,
Ministry of Water Resources,
West Bengal 713 305.
2. Balkishan,
Presently posted at Lower Ganga Division
As Executive Engineer, Behrampur,
Central Water Commission,
Ministry of Water Resources,
Behrampur Murshidabad,
West Bengal.
3. Suresh Prasad Singh
Presently posted as Executive Engineer at
Farakka Barrage Project,
Central Water Commission,
Ministry of Water Resources,
Farakka, West Bengal. Applicants
(By Advocates:- Sh. Mahabir Singh, Senior Advocate with
S/Sh. Satpal Singh, R.N. Roy and Nikhil Jain)
Versus
1. Secretary,
Ministry of Water Resources,
Shramshakti Bhawan,
Rafi Marg,
New Delhi 110 001.
2. Chairman,
Central Water Commission,
Sewa Bhawan, R.K. Puram,
New Delhi 110 066. Respondents
(By Advocate: Shri R.N. Singh)
OA No. 3330/2012
1. Umesh Kumar Sharma
Posted at Ganga Flood Control Commission,
Sinchai Bhawan,
Patna (Bihar).
2. Bharat Singh
Posted at Ganga Flood Control Commission,
Sinchai Bhawan,
Patna (Bihar).
3. Lalan Singh
Posted at Ganga Flood Control Commission,
Sinchai Bhawan,
Patna (Bihar).
4. Nagendra Prasad Singh
Posted at Ganga Flood Control Commission,
Sinchai Bhawan,
Patna (Bihar).
5. Shyam Narain Singh
Posted at Ganga Flood Control Commission,
Sinchai Bhawan,
Patna (Bihar). Applicants
(By Advocates:- Sh. Mahabir Singh, Senior Advocate with
S/Sh. Satpal Singh, R.N. Roy and Nikhil Jain)
Versus
1. Secretary,
Ministry of Water Resources,
Shramshakti Bhawan,
Rafi Marg,
New Delhi 110 001.
2. Chairman,
Central Water Commission,
Sewa Bhawan, R.K. Puram,
New Delhi 110 066. Respondents
(By Advocate: Shri R.N. Singh)
OA No.3331/2012
1. Arjun Singh,
Presently posted as Deputy Director,
Central Water Commission,
Guwahati, Assam
2. Rajendra Prasad,
Presently posted as Executive Engineer,
Central Water Commission,
Varanasi, UP
3. R.P. Shukla,
Presently posted as Executive Engineer,
Central Water Commission,
Burla, Odisha. Applicants
(By Advocates:- Sh. Mahabir Singh, Senior Advocate with
S/Sh. Satpal Singh, R.N. Roy and Nihil Jain)
Versus
1. Secretary,
Ministry of Water Resources,
Shramshakti Bhawan,
Rafi Marg,
New Delhi 110 001.
2. Chairman,
Central Water Commission,
Sewa Bhawan, R.K. Puram,
New Delhi 110 066. Respondents
(By Advocate: Shri R.N. Singh)
O R D E R
By Dr. B.K. Sinha, Member (A):
All these four Original Applications filed by the applicants under Section 19 of the Administrative Tribunals Act, 1985 have been heard together and are being disposed of by this common order as the facts and the law points involved in these cases happen to be identical and similar. However, OA No.3315/2012 (Syed Mohammad Shad & Others versus Union of India & Others) has been made the lead case on account of being the earliest to have been filed.
2. While drafting the order it was felt by the Bench that certain issues need to be additionally clarified relating to seniority. The parties were accordingly noticed and were heard on 23.12.2014.
3. Sh. Satpal Singh, learned counsel for the applicants while making his submissions, stated that he had chosen to forego the reliefs in para 8(i) & 8(ii) of the OA (page 24 of the paper book). Instead, he made a prayer in the alternative that the case of NFU promotion should be considered and granted from the date of ad hoc promotion to the applicants, i.e., from 16.11.1997 till the date of their regular promotion in the year 2002-04. Amongst the grounds that the applicants have adopted, one of the grounds is that 61 EADs/AEs had been promoted to the grade of AD/AEE vide respondents order dated 06.11.1997 on ad hoc basis for a period of one year or until further order whichever be earlier and 40 vide order dated 08.09.1999 on similar terms. These 101 persons continued to work as AD/AEE till 84 of them were regularized in the year 2003 while other 17 had retired in the interregnum. If the ad hoc services of the applicants were ordered to be regularized by the Tribunal, they would become eligible for grant of NFU and would thereby stand benefited. A prayer to this effect had been made in para (i) of the OA (page 2 of the paper book).
4. The learned counsel for the applicants submitted that 101 clear vacancies had existed from 1997 onwards and continued to exist till 2003-04 against which the applicants could have been regularized. Further, even after the DPC had taken place, it took almost a period of one year to submit the proceedings to the UPSC. This unexplained failure on part of the respondents has led to affect the rights of the applicants for promotion to the post of Deputy Director and also their legal rights to get NFSG as per the recruitment rules for CWES Group-A Services for which four years regular service as Assistant Director/Assistant Executive Engineer is pre-requisite condition for eligibility for upgradation to the post of Deputy Director Executive Engineer and five years for Deputy Director. The learned counsel further relied upon the case of Union of India & Others versus Shanti Ranjan Sarkar [1999 (3) SCC 90] wherein the Honble Supreme Court held that Union of India being a benevolent litigant could not be permitted to take advantage of its own wrong and that condonation of delay under Section 21(3) of Administrative Tribunals Act in filing original application could not be allowed to act as a bar to grant equitable relief. The learned counsel further relied upon the decision in B. Balram Raju versus Subramanium Same [2011(13) SCC 774] wherein seniority published in 2005 had been challenged in 2008 but representation dated 10.10.2005 had been rejected on 06.11.2007. The applicants are seeking equitable relief from the year 1997 to 2003 and have further relied upon the decision in M.R. Gupta versus Union of India [1995 SC (L&S) 1273] stating that the loss of promotion is a continuing loss instead of being one time loss. The applicants have further cited the decision in Haryana Electricity Board versus State of Punjab [1974(3) SCC 96] to contend that the delay in challenge could be overlooked where the petitioners had kept on filing representations for amelioration of their grievances.
5. This prayer was vehemently opposed by Sh. R.N. Singh, learned counsel for the respondents on the ground that the cause of action was available to the applicants to approach this Tribunal as early as in 1998 when no steps for regularization were taken expanding upto 2004-05 against delayed regularization. Instead, the applicants have approached this Tribunal in 2012. The respondents have relied upon the decisions in the cases of S.S. Rathore versus State of Madhya Pradesh [AIR 1990 SC 10], Union of India & Ors. Vs. M.K. Sarkar, [2010 (2) SCC 59] and D.C.S. Negi versus Union of India & Others [Civil Appeal No. 7956 of 2011 decided on 07.03.2011], which provide that repeated representations do not bestow a lease for life to a dead or stale issue; even if some orders were to be passed on some representations, still these would not be sufficient to transgress the law of limitation, and that the courts are duty bound to look into the limitation before considering the merits of the case.
6. The respondents have stated that there is no limitation provided under Article 226 but it has been specifically provided under Section 21 of the A.T. Act, 1985 only for the purpose that the Tribunal being a Forum to provide quick and inexpensive results of dispute should not be bogged down in carrying the burden of dead litigation. On the issue of merit, the learned counsel for the respondents submitted that the general rule is that promotions are always prospective, the exceptions being in such cases where juniors have been promoted earlier. Any financial upgradation made under the NFU Scheme shall also have to pass the test of limitation and cannot be made to circumspect that. He relied upon Adarsh Choudhary versus Union of India [LAWS (DLH) 2002-7-35], Union of India Versus Avinash Mishra [LAWS (DLH) 2008-6-3] and Dr. Ranjan Chandra Versus Ministry of Health and Family Welfare [WP(C) No.1662/2007 decided by Delhi High Court on 12.09.2013]. The attention of this Tribunal was also drawn to the fact that in Chief Secretary, State of Karnataka & Others versus Uma Devi & Others [2006 (4) SCC 1], the Honble Supreme court clearly held that there could be no regularization of such persons who have been appointed on ad hoc basis as the same would be against Articles 14 & 16 of the Constitution of India.
7. The lead case bearing OA No.3315/2012 has been filed jointly by 26 applicants, who are aggrieved by the inaction of the respondent department in not granting them regular promotion to the post of Junior Assistant Director/Assistant Executive Engineer (Civil/Mechanical) from the date of their ad hoc promotion or from the date of occurrence of the vacancies. They have sought the following relief(s):-
(i) Pass an order and direction to the respondents to accord /grant the regular promotion to the applicants to the post of junior Assistant Director/Assistant Executive Engineer (Civil/Mechanical) from the date of adhoc promotion or from the date of the occurrence of the vacancies;
(ii) Pass further order and direction to the respondent to consider this period of regular promotion so granted to the applicant in terms of prayer (i) as a Assistant Director/Assistant Executive Engineer (Civil/Mechanical) for acquiring eligibilities for regular promotion to the post of Deputy Director/Executive Engineer (Civil/ Mechanical) ;
(iii) Pass such any other and further orders as this Honble Tribunal may deem fit and proper in the facts and circumstances of the case;
8. The facts of the case, in brief, are that pursuant to the recommendations of the Departmental Promotion Committee (hereinafter referred to as DPC), the applicants were appointed to the post of Extra Assistant Director/Assistant Engineer (Civil/Mechanical) on regular basis during the year 1985-1989. It is the contention of the applicants that Extra Assistant Director/Assistant Engineer (Civil/Mechanical), who have four years regular service in the grade with Good benchmark, are promoted to the post of Junior Time Scale (hereinafter referred to as JTS) Assistant Director/Assistant Executive Engineer (Civil/Mechanical). As per the Recruitment Rules notified vide notification dated 02.11.1995, JTS Assistant Director/Assistant Executive Engineer (Civil/Mechanical) are filled up in the ratio of 60:40 i.e. 60% of the posts are filled up by direct recruitment through competitive examination to be conducted by the Union Public Service Commission and the remaining 40% are filled up through promotion amongst the eligible extra Assistant Director/Assistant Engineer (Civil/Mechanical). Admittedly, the applicants were promoted/appointed on ad hoc basis to the post of Assistant Director/Assistant Executive Engineer (Civil/Mechanical) against the existing vacancies under 40% promotional quota with all benefits during the year 1997-1999. It is the case of the applicants that after having been regularly appointed as Extra Assistant Director/Assistant Engineer (Civil/Mechanical) in the year 1985 and having completed requisite four years service, they became eligible to be promoted to the post of Assistant Director/Assistant Engineer (Civil/Mechanical) on regular basis. However, the applicants could be promoted only on ad hoc basis as the respondent organization did not convene/conduct a DPC in time despite availability of vacancies.
9. The applicants submitted a detailed representation on 25.08.2005 and the same was disposed of through a cryptic and un-reasoned order. The applicants learnt from an RTI application that 105 posts were available in the cadre between the year 1997 and 2002 which could not be filled up. The respondent-department provided year-wise vacancy position on 27.04.2007. The applicants thereupon submitted another representation dated 17.07.2012 which was disposed of vide the impugned order dated 09.08.2012 stating therein that the DPC for promotion to the JAG grade from the year 1994-95 onwards could not be held on account of pending litigation. This had a cascading effect on downstream. Further, major structural changes brought about by the report of the 5th CPC also did not leave any scope for conducting DPC for promotion to the post of JTS every year. As per the relevant instructions promotion of officers included in the panel shall be regular from the date of validity of the panel or the date of their actual promotion, whichever is later. In case where the DPC is prisided over by the Member of the UPSC, promotions do not require any approval of the Commission and the date of forwarding the minutes duly signed by the Chairman of the DPC should be reckoned as the date for regular promotion of the officer. In cases where the Commissions approval is mandatory, the date of UPSCs letter communicating its approval of the date of actual promotion of the officer, whichever is later, will be relevant. In case of officers who have been promoted on ad hoc basis to the grade of AD/AEE in 1997 and 1999 while the DPC for regular promotion was held in 2003 and orders were issued on 28.02.2003, the date of promotion of those officers could be 28.02.2003. The impugned order dated 09.08.2012 further states that there is no provision under any rule for making ad hoc service regular from the date of the ad hoc promotion [page 52 of the paper book].
10. The applicants have assailed the action of the respondents in not granting promotion from the date of ad hoc promotion or from the date of existence of vacancies primarily on the ground that the vacancies were available during the period from which the promotion is claimed. The chart depicting the vacancy position as gleaned from the RTI application is as follows:-
Year Vacancies available Total SC ST UR 1995-96 15 05 02 08 1996-97 08 00 04 04 1997-98 10 00 05 05 1998-99 07 00 03 04 1999-00 03 00 01 02 2000-01 08 00 04 04 2001-02 54 00 06 48 Total 105 05 25 75
11. The applicants have submitted that the DPCs held in the year 2003 clubbed the vacancies together for the period from 1997 to 2002 and recommended all the applicants for regular promotion without reference to the year-wise vacancies and its panel. The second ground which has been adopted by the applicants is that the DOP&T instructions as contained in the OM dated 27.03.1997 provides for year-wise holding of the DPC. If these instructions were to follow there would be no clubbing of vacancies as has been done in the instant case. The third argument of the applicants, as already stated, is that they had been put to jeopardy by not giving them regular promotions from the date of ad hoc promotion from the date of vacancies so arising and has relied upon the decision of the Honble Supreme Court in the case of Union of India versus N.R. Banerjee [1997 (9) SCC 287]. The prospects of being granted NFSG under the Scheme of the Government of India declared vide OM dated 25.04.2009 also stands to be denied to them. Thus, they have put to double jeopardy. In the fourth place, the applicants would contend that by not giving them the regular promotion from the date of vacancies so arising, structural imbalance has been created by the respondents within the cadre whereby the direct recruits stand to gain. In the fifth place, in respect of grant of similar relief to similarly situated persons, the applicants have relied upon a decision of this Tribunal in the case of P.K. Udgata & Others versus Union of India & Others [OA No. 1563/2011 and other connected OAs decided vide a common order dated 01.03.2012].
12. A counter has been filed on behalf of the respondents wherein they submit that the 5th CPC recommendations had resulted in major structural changes in the CWES (Group-A) which were required to be incorporated in Service Rules for taking up promotion process at various grades. The respondents contend that though the DPCs are normally held regularly within the respondent-organization, the vacancies for the year 1995-96 to 2001-02 had to be clubbed as decided by the DPC held in 2003 while the vacancies prior to this period had been considered by the DPC held in 1997. The respondents have submitted that the promotion of officers included in the panel would be regular from the date of validity of the panel or from the date of actual promotion whichever may be later. Since the DPC for promotion to Grade of AD/AEE of CWEC (Group-A) is presided over by a Member of the UPSC, formal sanction of UPSC is not required in such cases. Thus, the regular promotion stands to be reckoned from the date the officers assume charge of the higher post. In the second place, the respondents have relied upon the decisions of the Honble High Court of Delhi in the cases of Union of India versus Rajender Roy [WP(C) No.20812/2005 decided on 12.01.2007] and Union of India versus Vijendra Singh [2011 (1) 76 DLT 247]. These decisions clearly uphold the principle that promotions will be prospectively and not from the date of occurrence of the vacancies or from the date of eligibility of candidates. The respondents have also submitted that this case is hopelessly barred by limitation as provided under Section 21 of the Administrative Tribunals Act, 1985. The representation dated 25.08.2005 received through the President of the Central Water Commission Graduate Engineers Association was disposed of by the Ministry of Water Resources vide its letter No.19/54/2005-Estt.I dated nil. The applicants thereafter submitted another representation on 17.07.2012 which has been disposed of by the order dated 09.08.2012 which is under challenge (Annexure A-1 to the OA). The learned counsel for the respondents has also questioned the assertion of the applicants that the OA was within the period of limitation as being false and misleading as the representation dated 17.07.2012 had been filed after a gap of seven years. In the fourth place, the respondents have questioned the claim of the applicants that all the vacancies for the years 1997 to 2002 were clubbed together. The DPC convened in 2003 prepared year-wise panel for each vacancy year from 1995-96 to 2001-02 separately as per the relevant instructions on the subject. The promotion of the officers included in the panel would be regular from the date of validity of the panel or from the date of their actual promotion, whichever is later. Thus, irrespective of the year to which a vacancy pertains, the effective date of regular promotion is from the date on which an official assumes charge of the higher post after orders of his regular promotion to the higher grade are issued. The respondents have further submitted that the applicants have failed to indicate any rule/provision under which they were required to mention vacancies available for the particular years in the order of promotion.
13. The applicants have filed a rejoinder application wherein they have submitted that the period of limitation would not act as a bar since the representation dated 17.07.2012 was decided only on 09.08.2012 and, therefore, their OA is very much within time. Nevertheless, on the safe side they have also filed an MA seeking condonation of delay. It has been stated that the applicants are seeking regularization of their ad hoc period for the purpose of eligibility for regular promotion to be counted from the date of vacancy as there is no fault of the applicants in not holding the DPC. The applicants have also submitted a note explaining the reasons of delay in holding the DPC for the post of AD/AEE which is largely ascribed to pending litigation.
14. The learned counsel for the applicants has submitted that since the recommendations of the DPC have been made year-wise, it is just and proper that the same should be given effect and the promotion should also be as per the recommendations of the DPC i.e. date of the vacancies so arising.
15. We have carefully heard the learned counsel for the parties and have also gone through the pleadings of either side. We are of the view that the following issues emerge for our consideration to determine the controversy involved in this case:-
(i) Whether the OA is barred by limitation?
(ii) Whether the regularization should be effective from the date of ad hoc promotion?
(iii) What relief, if any, could be granted to the applicants?
16. Insofar as the first of the issues is concerned, it is necessary to establish that OA is not barred by limitation before we take up the next substantive issues for analysis. It is an admitted fact that the Section 21 of the A.T. Act, 1985 prescribes the period of limitation, which reads as under:-
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.
17. Here, it is also an admitted fact that a representation had been filed in the year 2005, which was rejected vide order No.19/54/2005-Estt.I dated nil. Thereafter, the next representation has been filed on the same subject on 17.07.2012 which has been rejected again vide order dated 09.08.2012. Thus, there is a clear gap of 7 years within two representations. The applicants had become entitled to avail the remedy of the court in the year 2006. It is thereafter the remedy did not extend beyond 2006 under the terms of Section 21 of the AT Act. Here, we find that the applicants have sought to revive a right which had lapsed in the year 2006, by filing another representation in the year 2012. Admittedly, there are judicial pronouncements on both the sides. While in some of the decisions, the Honble Supreme Court have taken the position that when the period of limitation has been prescribed it must be adhered to. When it is transgressed, the delay has to be adequately explained even in terms of each day delay. The other view that has been taken is that where substantive issues of justice are involved, the court should not be hindered by limitation but the substantive issues of justice need to be addressed squarely. In the case of M.R. Gupta versus Union of India & Others [AIR 1996 (SC) 669], the Honble Supreme Court had taken the position that where it is a case of continuing wrong and not of one time action, the right to seek legal review is not un-hindered by the law of limitation. However, in the case of Shiv Dass versus Union of India & Others [2007 (2) SCC (L&S) 395] , the Honble Supreme Court has held :-
8. It was stated in the case of State of MP vrs Nandlal Jaiswal (1986)4 SCC566 that High Court in exercise of its jurisdiction does not ordinarily assist the tardy and indolent or the acquiescent and the lethargic. If there is inordinate delay on part of the petitioner and such delay is not satisfactorily explained, the High Court may decline to intervene and grant relief in exercise of its writ jurisdiction. It was stated that this rule is premised on a number of factors. The High Court normally does not permit a belated resort to extraordinary remedy because it is likely to cause confusion and public inconvenience and bring in its train new injustices, and if writ jurisdiction is exercised after unreasonable delay it may have the effect of inflicting not only hardship and inconvenience but also injustice on the third parties. It was pointed out that when writ jurisdiction is invoked, unexplained delay coupled with creation of third party rights in the meantime is an important factor which also weighs with the High Court in deciding whether or not to exercise such jurisdiction.
9. It has been pointed out by this in a number of cases that representations would not be adequate explanation to take care of the delay. This was first stated in KV Rajalakshmiah v State of Mysore AIR 1967 SC 993. There is a limit to the time which can be considered reasonable for making representations and if the Government had turned down one representation the making of another representation on similar lines will not explain the delay. In the State of Orissa vrs Pyarimohan Samantray (1977) 3 SCC 396 making of repeated representations was not regarded as satisfactory explanation of the delay. In that case the petition had been dismissed for delay alone. [See also the State of Orissa vrs Arun Kumar Patnaik 1976 SCC (L&S) 468].
10. In the case of pension the cause of action actually continues from month to month. That, however, cannot be a ground to overlook delay in filing the petition. It would depend upon the fact in each case. If petition is filed beyond a reasonable period say three years normally the court would reject the same or restrict the relief which could be granted to a reasonable period of three years. The High Court did not examine whether on merit the applicant had a case. If not merits it would have found that there was no scope for interference it would have dismissed the writ petition on that scope alone. In the case of Office of the Chief Postmaster General and others vs. Living Media India Limited and another [2012 (3) SCC 563], the Honble Supreme Court has taken the position that a litigant does not stand to be benefitted by resorting to delay. To the contrary, he runs a serious risk. Refusing to condone the delay can result in meritorious matter throughout, therefore, the Honble Supreme Court has held:-
1) Ordinarily a litigant does not stand to benefit by lodging an appeal late.
2) Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condone the highest that can happen is that a cause would be decided on merits after hearing the parties.
3) Every days delay must be explained does not mean that a pedantic approach should be made. Why not every hours delay, every seconds delay? The doctrine must be applied in a rational common sense pragmatic manner
4) When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of non-deliberate delay.
5) There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk. In case of State of UP vs. Harish Chandra [1996 (9) SCC 309], the Apex Court condoned the delay of 480 days in filing SLP, relevant paragraph whereof are extracted below:
28. Though we are conscious of the fact that in a matter of condonation of delay when there was no gross negligence or deliberate inaction or lack of bona fides, a liberal concession has to be adopted to advance substantial justice, we are of the view that in the facts and circumstances, the Department cannot take advantage of various earlier decisions. The claim on making several notes cannot be accepted in view of the modern technologies being used and available. The law of limitation undoubtedly binds everybody, including the Government.
29. In our view, it is the right time to inform all the government bodies, their agencies and instrumentalities that unless they have reasonable and acceptable explanation for the delay and there was bona fide effort, there is no need to accept the usual explanation that the file was kept pending for several months/years due to considerable degree of procedural red tape in the process. The government departments are under a special obligation to ensure that they perform their duties with diligence and commitment. Condonation of delay is an exception and should not be used as an anticipated benefit for the government departments. The law shelters everyone under the same light and should not be swirled for the benefit of few.
30. Considering the fact that there was no proper explanation offered by the Department for the delay except mentioning of various dates, according to us, the Department has miserably failed to give any acceptable and cogent reasons sufficient to condone such a huge delay. Accordingly, the appeals are liable to be dismissed on the ground of delay. However, the Court declined to accept the view of the Government Agencies that a file was pending at several places due to procedural hurdles in the process. In the cases of Ram Lal Dapur and Sons (P) Ltd. Vs. Ram Nath, reported in AIR SC 1060 and Commissioner of Customs v. Rangi International, reported in (2003) 11 SCC 366; British Medical Stores v. Bhagirath Mal, Civil Appear Nos. 172-186 of 1958, the Honble Supreme Court has held as under:-
19. The contention advanced on behalf of the applicant that the writ petition was filed by respondent 1 on 10-11-1990 i.e. seven years after he had superannuated from service, and therefore, the writ petition should have been dismissed on the ground of delay and laches, cannot be accepted. The impugned judgment nowhere shows that such a point was argued by the appellant before the High Court. No grievance is made in the memorandum of SLP that point regarding delay and latches was argued before the High Court but the same was not dealt with by the High Court when impugned judgment was delivered.
20. Further, from the facts noticed, it becomes evident that by order dated 09.11.1989, passed in CWJC NO.4862 of 1987, the High Court had directed Respondent 1 to submit representation to the High Court on its administrative side claiming benefits which were given to his juniors but were denied to him, pursuant to which Respondent 1 had filed last representation on 23-6-1990 which was rejected by the High Court on 17-9-1990. The question of delay and laches will have to be considered from the communication dated 17-9-1990 by which claim made by Respondent 1 to give him benefits which were given to his juniors was rejected and not from the date of superannuation. Thus, Respondent 1 is not liable to be non-suited on the ground of delay and laches in filing writ petition after his superannuation from service.
18. In the matter of B Madhuri Goud vs B Damodar Reddy 2012(7) SCALE 230, the Honble Court refused to condone the delay of 1236 days on the ground of documents being misplaced by the bank.
19. In the instant case, we find that the applicants have filed an MA for condonation of delay wherein they have submitted the following paragraphs as the ground of delay, which read as under:
3. That the respondent department has not given any reasons denying the rights of the applicants for regular promotion to the said post, thereafter, the applicants further submitted a detailed representation on 25.08.2005, however, this was responded by the respondent department but, in the said order, the respondent department has not given any reasons and very cryptic order was passed. The applicants through their association sought some information through RTI and it was disclosed in the RTI that there were 105 posts available in the cadre since 1997 to 2002 and which could not be filled up by the respondent department. The respondent department in the RTI on 27.04.2007 has given the detail of year-wise vacancies available. It is submitted that the present applicants through their association further submitted a detailed representation in 17th July, 2012, requesting the respondent department to grant regular promotion to all the applicants as per the availability of the vacancies under Departmental Promotee quota (DP) for the post of Assistant Director/Assistant Executive Engineer against 40% total vacancies.
4. That it is respectfully submitted that the Respondent department finally vide impugned order dated 09.08.2012 denied the claim of the applicants and department has taken unfounded, unlogical, false and misleading plea which are not tenable in the eyes of law and denied the claim of the applicants on the basis of the reason given in the said impugned order. The respondents in its impugned order dated 09.08.2012 stated that the respondent department is justified in not holding the DPC in its schedule and the respondent department has mentioned certain reason on account of which DPC could not be convened for approving and recommending the applicants for regular promotion to the post of Assistant Director/Assistant Executive Engineer.
20. We find the above explanation unsatisfactory. If the respondents had defaulted in their duty and have passed a wrong order, there was all the more ground to avail judicial remedy available to them by way of approaching this Tribunal. What we find is that between 2005-2012, there was no activity on the part of the applicants. In the case of Union of India versus M.K. Sarkar, [(2010) 1 SCC (L&S) 1126], the matter has been dealt with comprehensively. The Honble Court while observing that repeated representations with regard to stale or dead subjects do not bring the subject back to life, has held as under:-
15. 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 can not be considered as furnishing a fresh cause of action for reviving 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 court's direction. Neither a court's direction to consider a representation issued without examining the merits, nor a decision given in compliance with such direction, will extend the limitation, or erase the delay and laches.
16. 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 `state' 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.
21. The matter boils down to the fact that much would depend upon the facts of each case as it is not possible to lay down any mathematically oriented rules as to how much will be within or beyond limitation. This rule has been laid down under Section 21(2) of the AT Act, 1985, which has to be basically accepted. In the instant OA, we find that since the applicants have slept over the matter for a period of 7 years between 2005-2012, the case is barred by limitation and there would be no justification in condoning the same. This issue is accordingly decided against the applicants.
22. Before we proceed to dismiss the instant OA, we feel that the job of the Bench is to see the proverbial grain of justice does not get lost in the sand of limitation. The matter should be examined on merits also if the law of limitation is allowed to stymie the case of the applicants. Therefore, we have proceeded to examine the other two issues relating to delay in holding DPC and whether we could order regularization of the same.
23. The learned counsel for the applicants repeatedly emphasized that no justifiable reasons have been given for the DPC not being held between the year 1997 and 2003-04 despite the fact that in respect of earlier batches, the DPC had been held in time.
24. Coming to the issue of no reason being given, it is to be noted that the impugned order dated 09.08.2012 clearly states that direct recruitment vacancies are reported to the UPSC almost two years in advance for examination in anticipation of vacancies likely to occur, and as such, direct recruitment is being done every year. However, the DPC had been delayed due to circumstances beyond control. There were seniority disputes galore in JAG grade resulting in several court cases. It was on account of these pending litigations the DPC for promotion to the JAG grade from 1994-95 onwards could not be held initially and this had a cascading effect. Thus, the chain vacancies available on account of promotion to higher grades were not available in JTS, resulting in delay in convening the DPCs. Besides, implementation of the 5th CPC recommendations resulted in major structural changes in the CWES (Group-A) thereby necessitating review of recruitment rules. It was on account of these factors that the DPC for promotion to the JTS could not be held every year for the vacancies from 1995-96 to 2001-02. The order further states that in such cases of promotion where the DPC is presided over by a Member of the UPSC, the recommendations of the same do not require to be approved by the Commission. The date of Commissions letter forwarding fair copies of the minutes duly signed by the Chairman of the DPC or the date of actual promotion of officers, whichever be later, is reckoned as the date of promotion. Where the DPC is not presided over by a Member of the Commission, approval of the Commission is required. Since the DPC for promotion to the grade of AD/AEE of CWES (Group-A) is presided over by a Member of UPSC, the above instructions are applicable. For regular promotion, the DPC in respect of the applicants was held in 2003 and orders were issued on 28.02.2003. Therefore, they have denied the delay on account of any other factor except the court cases.
25. This argument also finds mention in para 6 (page 164 of the paper book) of the counter reply. We, in this regard, would like to state from experience that litigation and cross litigation often becomes a stumbling block in the way of smooth promotions. There are instances where a large number of litigations are filed and often by orders of the Court/Tribunal, have to be reconciled before the promotion is granted.
26. We take note of the fact that this is a real possibility and had been the reason as to why the DPC could not be held. Of course, we do not find any detail of such orders or such litigation having been provided to us, yet it has come in the form of affidavit. We see no reason as to why it should be disbelieved. We also take note of the issue as to from which date promotions are to be treated as regular and the same has been dealt with in Swamys Seniority and Promotion (page 173 of the paper book). This is also in concurrence of the arguments of the respondents.
27. As regards the date of promotion, the general rule has already been stated that it cannot be retrospective except where it is a matter of exception. This issue has been dealt with in a number of cases including that of Adarsh Choudhary versus Union of India (supra), Union of India Versus Avinash Mishra (supra), Dr. Ranjan Chandra Versus Ministry of Health and Family Welfare (supra), Union of India versus and Others versus Rajender Roy (supra) and Union of India versus Vijendra Singh [2011 (1) 76 DLT 247]. Besides, we also take note of the fact that the period of service rendered should be on regular basis. Here, the service rendered is ad hoc and we do not see any reason why it should be termed as regular service for the reason that the respondents had not exactly been sleeping over the matter, but their hands had been tied on account of claims and counter claims pending adjudication before the courts of competent jurisdiction. Therefore, when NFU has not been pleaded except for oblong reference into the introductory part of the OA and the regularization of service of the ad hoc period not being a possibility, the question of considering NFU does not arise at all.
28. In conclusion, as has already been discussed above, we hold that the instant case is barred by limitation. Once the law of limitation has been enshrined in the enactment, it is meant to be respected. Even if power of discretion is there, the same cannot be exercised in an arbitrary manner but only through a reasoned process. We have not been able to find any reason whatsoever as to why the general rule of limitation should be disregarded. However, yet to satisfy the judicial conscience of the Bench, we find that the rule of promotion being prospective in nature has not been set aside by any court and continues to hold the field. There is also no reason as to why an exception should be made out of it as no junior has been promoted over the head of the applicants.
29. Coming to the issue of NFU, it also requires regularization of ad hoc service following which there is nothing to prevent their claim for regular promotion, though the same does not arise in the instant OA. Moreover, we have already held that regularization of ad hoc services is ruled out. The cumulative effect of our discussion over the issues is that the instant OA is devoid of merit and is thus dismissed with no order as to costs.
(Dr. B.K. Sinha) (Syed Rafat Alam) Member (A) Chairman /naresh/