Central Administrative Tribunal - Delhi
Constable Harsh Singh No.47/Rb vs Commissioner Of Police on 16 November, 2011
Central Administrative Tribunal Principal Bench, New Delhi O.A. No.875/2011 New Delhi this the 16th day of November, 2011. Honble Mr. M.L. Chauhan, Member (J) Honble Mrs. Manjulika Gautam, Member (A) Constable Harsh Singh No.47/RB, S/o Sh. Mohan Singh, R/o F-3, Neel Kanth Apartment (Part-2), Near Govt. School, Main Road Sant Nagar, Burari, Delhi. -Applicant (By Advocate Shri Ajesh Luthra) Versus 1. Commissioner of Police, Delhi Police, MSO Building, I.P. Estate, New Delhi. 2. Joint Commissioner of Police (HQ), Delhi Police, MSO Building, I.P. Estate, New Delhi. 3. Addl. Dy. Commissioner of Police (Estt.), Delhi Police, MSO Building, I.P. Estate, New Delhi. 4. Joint Commissioner of Police, Rashtrapati Bhawan, New Delhi. ..Respondents (By Advocate Shri Amit Anand) O R D E R Honble Mr. M.L. Chauhan, Member (J):
Applicant has filed the present OA, thereby praying for the following reliefs:
(a) quash and set aside the impugned orders/actions of the Respondents with regard to late confirmation of the applicant and direct the Respondents for confirmation of the applicant from due date with effect from 9.5.1989;
(b) direct the Respondents to count seniority of the applicant from the date of initial appointment as Constable with effect from 1.8.1984 and not from the date of confirmation;
(c) direct the Respondents for consideration of applicant for promotion as Head Constable in 2007 at par with his junior Constables with all consequential benefits;
(d) award the costs of proceedings; and
(e) pass any other or further order/direction which this Honble Tribunal deem fit and proper in the facts and circumstances of the case.
2. Briefly stated, facts of the case are that the applicant was enlisted in Delhi Police as a Constable on 1.8.1984. The grievance of the applicant in this case is that persons junior to him were confirmed in the rank/post of Constable on 9.5.1989 whereas applicant was confirmed on 9.11.1989. Consequent upon confirmation of the so-called juniors to the applicant prior to the confirmation of the applicant such juniors were further promoted to the post of Head Constable on 6.11.2007 vide notification dated 6.11.2007. It is further averred that the applicant at the relevant time was on deputation in CBI and he made a representation dated 14.11.2007 to the authorities against the promotion order issued vide order dated 6.11.2007 and to grant promotion to him when persons junior to him were promoted but no reply was received. It is further averred that certain other junior persons were again promoted vide order dated 1.1.2009 but the name of the applicant was not even considered. Applicant has further averred that vide order dated 18.02.2009 applicant was informed that he was not considered for promotion by the DPC, as his name did not come in the zone of consideration, against which further representation was made on 16.04.2009 for confirming the applicant w.e.f. 9.5.1989 instead of 9.11.1989. Applicant has further stated that even certain other junior Constables were promoted vide notification dated 27.01.2010 but the applicant was not even considered and against said promotion representation was made on 9.4.2010 to correct the date of confirmation and grant promotion to the rank of Head Constable, which representation was forwarded by the Joint Commissioner of Police vide letter dated 12.4.2010. Applicant has also placed on record order dated 12.5.2010, perusal of which reveals that Constables, who were enlisted on 1.6.1986 and confirmed w.e.f. 9.5.1989, have been promoted to the rank of Head Constable (Exe.) through Promotion List C and the applicant who was confirmed on 9.8.1989 could not be promoted, as he did not come in the zone of consideration. It is on the basis of these facts applicant has filed this OA, thereby praying for the aforesaid reliefs. Applicant in para-3 of the OA has also stated that the OA is within the period of limitation.
3. Respondents have filed reply wherein the facts, as stated above, have not been disputed. In the reply respondents have stated that the Constable recruited from 9.12.1983 to 8.5.1987 were considered for confirmation w.e.f. 5.8.1989. It is further stated that the case of the applicant was also taken up for confirmation before the DPC constituted in South West District but the DPC did not find the applicant fit for confirmation due to indifferent service record. Hence, he was passed over from confirmation w.e.f. 9.5.1989 for a period of six months due to his unsatisfactory record by the DPC vide order No.3389-3440/SIP/SW dated 18.03.1990 (Annexure A). It is further stated that this order was circulated to all concerned, but the applicant has not made any representation at that time against this order. It is further stated that later on applicant was confirmed by the next DPC w.e.f. 9.11.1989 vide order dated 27.8.1991 (Annexure B). It is further stated that on 2.2.2010 applicant has submitted an application stating that his date of confirmation may be corrected as his counterparts who have been confirmed w.e.f. 9.5.1989, have since been promoted as Head Constables. It is further stated that applicant in his representation has claimed that neither he was awarded any punishment, nor having any adverse ACRs during the probation period, and he was deprived of promotion alongwith his counterparts due to late confirmation in the rank of Constable. Respondents have further stated that application of the applicant was sent to DCP, South West District by DCP, Rashtrapati Bhawan, vide letter dated 18.02.2010 for necessary clarification and intimating the reasons for which grounds the applicant was passed over for six months from confirmation. Respondents have stated that the case of applicant for ante dating confirmation in the rank of Constable was examined in South West District. The efforts were made to trace the old record of DPC vide which the applicant was passed over from confirmation for a period of 6 months, but it is found that the old record of confirmation for the period from 1982 to 1992 was reportedly destroyed vide order No.4206-10/HAR-SWD dated 03.10.2003. Hence, the reasons and circumstances for passing over from confirmation by the DPC could not be ascertained at this belated stage and the applicant has been informed in this regard vide this office endorsement No.1449-50/ASIP-DCP-RB dated 26.03.2011.
4. Applicant has filed rejoinder, thereby reiterating that the order dated 18.03.1990 whereby case of the applicant was confirmation was deferred for six months was not served upon him and as such no representation was made against this order.
5. We have heard the learned counsel of the parties and gone through the material placed on record. We are of the view that no relief can be granted to the applicant for more than one reason. From the material placed on record it is evident that the persons junior to applicant were confirmed as Constable w.e.f. 9.5.1989, whereas applicant was confirmed in the rank/post of Constable w.e.f. 9.11.1989. Respondents have also placed on record order dated 18.03.2009 as Annexure A with the reply. Perusal of this order reveals that as many as 41 persons were confirmed as Constables w.e.f. 9.5.1989 whereas cases of six persons, including applicant, were deferred for six months due to their unsatisfactory service record. The validity of this order dated 18.03.1990, whereby the case of applicant for confirmation was deferred for six months has not been challenged by the applicant in this OA. As such, validity of this order cannot be gone into. The contention raised by the applicant that the said order was not received by him, although respondents have stated that the said order was circulated to all concerned, will not revive the stale claim of applicant after a period of more than two decades. It may be stated that based upon this order of confirmation passed by the respondents persons junior to applicant have been granted promotion to the post of Head Constable on 6.11.2007, 1.1.2009 and even on 27.01.2010. Applicant has not challenged these promotion orders at the relevant time when the so-called persons junior to applicant were promoted firstly in the year 2007 and then in 2009 and 2010. It cannot be presumed that applicant was not aware of the promotion of the so-called junior persons in the year 2007 and subsequently thereafter even if the order dated 18.03.2090 was not served upon applicant. In case the relief is granted to the applicant at this stage, it will adversely affect all those persons who were granted confirmation w.e.f. 9.5.1989 vide order dated 18.03.1990 and treated seniors to applicant and further promoted to the rank of Head Constables in the year 2007, 2009 and 2010. Applicant has not impleaded those persons as party-respondents in this OA. Even on this ground no relief can be granted to the applicant. The grievance raised by the applicant that his case for confirmation has wrongly been deferred for a period of six months, as neither any punishment was awarded nor he had any adverse ACRs in his service record during the relevant period cannot be gone into at this stage, especially when the respondents have categorically stated that the old record regarding confirmation for the period from 1982-1992 was destroyed on 3.10.2003. It is only after destruction of the record that applicant is making grievances regarding his late confirmation. Had the record of the applicant been up to the mark, he would have ventilated his grievances in the year 1990 when his case for confirmation along with others was deferred for six months. Thus, it is not permissible for us to grant relief to the applicant in respect of the stale claim/dead issue. The law on this point is no more res integra. At this stage, we wish to refer to the decision of the Apex Court in the case of C. Jacob v. Director of Geology and Mining and another, (2008) 2 SCC (L&S) 961, whereby the Apex Court has held that Court should be circumspect in issuing direction regarding stale claims. That was a case where the appellant before the Apex Court kept quiet for 18 years. A stage was reached when no record was available regarding his previous service. The grievance raised by the appellant was that his services have been terminated without holding enquiry. The learned single Judge of the High Court found fault with the department for failing to prove that a termination made in 1982 was preceded by an enquiry in a proceedings initiated after 22 years, when the department in which appellant had worked had been wound up as long back as 1983 itself and the new department had no records of his service. It was further noticed by the Apex Court that appellant neither produced the order of termination, nor disclosed whether the termination was by way of dismissal, removal, compulsory retirement or whether it was a case of voluntary retirement or resignation or abandonment. He significantly and conveniently, produced only the first sheet of a show cause notice dated 8.7.1982 and failed to produce the second or subsequent sheets of the said show cause notice in spite being called upon to produce the same. There was absolutely no material to show that the termination was not preceded by an enquiry. It was in this context the Apex Court held that when a person approaches a court after two decades after termination, the burden would be on him to prove what he alleges. The learned Single Judge dealt with the matter as if the appellant had approached the court immediately after the termination. It was under these circumstances the Apex Court held that Courts should be circumspect in issuing direction on a stale claim as it ultimately leads to consideration of case on merits at subsequent stages. It was further held that the department can reject a stale claim on the ground of delay alone without examining merits and the rejection of the representation at a subsequent stage will not give rise to a fresh cause of action for acknowledgement of jural relationship. To the similar effect is the decision of the Apex Court in the case of Union of India & others v. M.K. Sarkar, (2010) 1 SCC (L&S) 1126. At this stage, it will be useful to quote paras 14-16 of the judgment, which thus read:
14. 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. The ill-effects of such directions have been considered by this Court in C. Jacob vs. Director of Geology and Mining & Anr. - 2009 (10) SCC 115 :
"The courts/tribunals proceed on the assumption, that every citizen deserves a reply to his representation. Secondly they assume that a mere direction to consider and dispose of the representation does not involve any `decision' on rights and obligations of parties. Little do they realize the consequences of such a direction to `consider'. If the representation is considered and accepted, the ex-employee gets a relief, which he would not have got on account of the long delay, all by reason of the direction to `consider'. If the representation is considered and rejected, the ex-employee files an application/writ petition, not with reference to the original cause of action of 1982, but by treating the rejection of the representation given in 2000, as the cause of action. A prayer is made for quashing the rejection of representation and for grant of the relief claimed in the representation. The Tribunals/High Courts routinely entertain such applications/petitions ignoring the huge delay preceding the representation, and proceed to examine the claim on merits and grant relief. In this manner, the bar of limitation or the laches gets obliterated or ignored."
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.
6. If the matter is viewed in the light of the law laid down by the Apex Court, as noticed above, we are of the firm view that the present OA cannot be entertained at this belated stage, as cause of action in favour of applicant had arisen in the year 1990 when his confirmation was deferred for a period of six months and again in the years 2007, 2009 and 2010 when the persons junior to applicant were promoted based upon their confirmation. Rejection of representation of applicant subsequently in the year 2011 will not extend the period of limitation, as held by the Constitution Bench of the Apex Court in S.S. Rathore v. State of Madhya Pradesh, AIR 1990 SC 10. Thus, without going into the merits of the case, we are of the view that the present OA cannot be entertained at this belated stage and also that applicant has not impleaded the persons, likely to be affected if the relief is granted to the applicant from back date, as party-respondents in this case. The contention raised by the applicant that seniority should be based from the date of initial appointment in the light of the law laid down by the Apex Court in the cases of The Direct Recruit Class-II Engineers Officers Association v. State of Maharashtra and others, 1990 (2) SLJ 40, Chief Commissioner of Incom Tax & Ors. v. V. Subba Rao & Ors., Civil Appeal No.12410-12413 of 1996 and the decision of the Full Bench of this Tribunal in OA No.814/2008, Ritambra Prakash v. Union of India & Ors., decided on 11.08.2009, and not from the date of confirmation, need not be noticed, as the OA is being dismissed solely on the ground of delay and laches and non-inclusion of the necessary parties. We order accordingly. No costs.
(Manjulika Gautam) (M.L. Chauhan) Member (A) Member (J) San.