Central Administrative Tribunal - Delhi
Shyam Lal Gupta vs Union Of India Through on 20 July, 2011
Central Administrative Tribunal Principal Bench OA No.2565/2011 New Delhi this the 20th day of July, 2011. Honble Mr. M.L. Chauhan, Member (J) Honble Mr. A.K. Jain, Member (A) Shyam Lal Gupta, Ex. Section Officer, S/o Lt. Sh. Banarsi Dass Gupta, R/o House No.225, Village Mundka, Post Office Mundka, New Delhi-41. -Applicant (By Advocate Shri R.K. Sharma) -Versus- 1. Union of India through The Secretary, Ministry of Labour, Sharm Shakti Bhawan, Rafi Marg, New Delhi. 2. The Central Provident Fund Commissioner, Hudco, Vishala, 14, Bhikaji Cama Place, R.K. Puram, New Delhi-110066. 3. The Regional Provident Fund Commissioner, Headquarter, 14, Bhikaji Cama Place, New Delhi-110066. -Respondents O R D E R Mr. M.L. Chauhan, Member (J):
The applicant has filed this OA, thereby praying for the following reliefs:
1. To Quash & set aside the impugned order dated impugned order No. Adm.(S-1)/2(6)76/Vol.-II dated 12.10.2010 & Order No. Adm(S-1) 2 (6) 76/Vol.11/4480 dated 22.10.2007.
2. To direct the respondents to implement the order dated 06 March, 2003 & 04.08.2004.
3. Heavy cost for the harassment to applicant has been made to undergo in the society.
4. Any other relief or further relief, which this Honble Tribunal may deem fit and proper in the case.
2. Briefly stated, facts of the case, so far as relevant for the decision of this case, are that the applicant while working as Assistant on ad hoc basis w.e.f. 19.56.1981 was appointed as Hindi Translator Grade-II w.e.f. 22.6.1981 on ad hoc basis and subsequently regularized in the post of Hindi Translator w.e.f. 22.6.1981 on his exercising option vide letter dated 5.7.1983. However, he was regularized in the cadre of Assistant on 28.8.1982. Applicant vide his representations dated 27.4.1992, 15.7.1993, 20.9.1994, 13.7.1995 and 23.9.1996 requested to revert him to the post of Assistant but his request was not acceded to on the ground that applicant was appointed as Hindi Translator Grade-II on regular basis w.e.f. 22.6.1981 and the lien of the applicant was terminated in the cadre of Assistant/UDC. From the material placed on record it is evident that the applicant once again represented for reversion to the post of Assistant in the year 2002 and the then Assistant Commissioner approved his reversion to the post of Assistant. Accordingly, order dated 6.3.2003 (Annexure A-4) was issued which stipulates that the competent authority has been pleased to revert him to his original cadre of Assistant. This order further stipulates that his seniority in the cadre of Assistant will be determined as per the DoPT instructions in ON dated 27.04.1993. He will be eligible for all consequential benefits including promotion to higher scale in case found fit otherwise and he will not be entitled for any monetary benefit. The said order was modified vide another order dated 22.10.2007 (Annexure A-2) whereby applicant was transferred from the post of Sr. Hindi Translator to the lower post of Assistant under the provisions of FR 15, i.e., on his own request. It was further mentioned in the said order that the applicant shall stand reverted to the post of Assistant w.e.f. 04.08.2004 and he will be entitled to seniority in the cadre of seniority below Shri M.K. Gandhi who is junior-most regular Assistant on the date of reversion of reversion of applicant to Assistant cadre. Thereafter, applicant was promoted to the post of Section Officer on regular basis w.e.f. 23.12.2008. Applicant retired on superannuation on 31.07.2010. Now the applicant has filed this OA, thereby praying for the aforesaid reliefs. Applicant in para-3 of the OA has stated that this OA is within the limitation period.
3. We have heard the learned counsel of applicant on admission and gone through the material placed on record. We are of the view that the applicant has not made out any case for grant of relief and the OA deserves to be dismissed at the admission stage itself. From the material placed on record, and more particularly from page-30 of the paper-book it is evident that applicant, who was appointed as LDC, was promoted as Assistant on ad hoc basis w.e.f. 19.5.1981 and his services on the post of Assistant were regularized on 28.8.1982. From the material placed on record it is also evident that the applicant exercised his option for the post of Hindi Translator, which request of the applicant was accepted retrospectively w.e.f. 22.06.1981. Thereafter applicant continued to work on the post of Hindi Translator although he has made several representations to revert/repatriate till 23.09.1996. However, the representation of the applicant made after lapse of about 20 years of his working in the cadre of Hindi Translator was accepted by the Assistant Commissioner, which resulted into issuance of the order dated 06.03.2003 whereby reverting applicant to the post of Assistant with all consequential benefits, including promotion in the higher scale. From the material placed on record it is also evident (para (iii) at page 30 of the paper-book) that the applicant did not join pursuant to the order dated 06.03.2003 (Annexure A-4) and he has sought clarification regarding his position in the seniority list and promotion to the higher post of APFC. While the above issue was being examined, it was found that the ACC (HR) who has taken the decision, which resulted in the issuance of order dated 06.03.2003 (Annexure A-4) was not competent to take such a decision, as it was the Central Provident Fund Commissioner, who was the competent authority for transferring an employee from one post to the other. It is also evident from the same para that the applicant gave his joining to the post of Assistant vide letter dated 26.04.2003. Thereafter the matter was referred to the competent authority, i.e., Central Provident Fund Commissioner and the competent authority approved reversion of the applicant to the post of Assistant w.e.f. 04.08.2004 with a further stipulation that he shall be allowed seniority below Shri M.K. Gandhi in the cadre of Assistant. It may be stated that the applicant has not challenged the validity of this order till his retirement on superannuation on 31.07.2010. It is also evident from the material placed on record that based upon this seniority and reversion of the applicant w.e.f. 04.08.2004 applicant was promoted to the post of Office Superintendent (now Section Officer) on regular basis w.e.f. 23.12.2008. Now the applicant has filed this OA, thereby stating that the respondents may be directed to implement the order dated 6.3.2003 and quashing of order dated 22.10.2007 (Annexure A-2). The applicant has also prayed for quashing of order dated 12.10.2010, whereby representation of applicant was rejected and applicant was informed that his seniority shall be as already communicated vide office order dated 22.07.2007. Thus, from the facts as stated above, it is evident that the applicant has got no legal right to compel the respondents to implement the order dated 06.03.2003, which order was issued by the ACC (HR), who was not competent authority to issue the same. As already stated above, the applicant with his eyes open exercised option for the post of Hindi Translator while working as Assistant. His request was accepted and his services on the post of Hindi Translator were regularized w.e.f. 22.06.1981. Applicant continued in that capacity for more than two decades. His representation/request to revert him to the post of Assistant was rejected on the ground that on account of his appointment on regular basis as Hindi Translator Grade-II, his lien in the cadre of Assistant/UDC has been terminated. Thus, he cannot go back to the cadre of Assistant. However, the incompetent authority, i.e., ACC (HR) with reasons best known to him and in violation of Rules, accepted the representation of the applicant, ignoring the fact that his repeated representations made earlier stood already rejected and after a lapse of about two decades accepted the request of the applicant, which resulted in issuance of order dated 06.03.2003 (Annexure A-4), thereby extending the benefit to the applicant, including restoration of seniority and promotional avenues to the higher post. We fail to understand that when the lien of the applicant has been terminated from the post of Assistant and he was continuously working on the post of Hindi Translator for the last about 22 years how applicant could have been reverted back to the cadre of Assistant and assigning seniority to him from back date and also making him eligible for promotion to the post of Assistant to the detrimental of the persons who were already in the cadre of Assistant during the intervening period w.e.f. 22.06.1981 till 06.03.2003. Even otherwise also, this order (Annexure A-4) had never been implemented by the Department, rather the competent authority had passed another order dated 22.10.2007, whereby applicant was reverted to the post of Assistant under the provisions of FR 15 w.e.f. 04.08.2004 when the decision was taken by the competent authority, i.e., Central Provident Fund Commissioner and he was assigned seniority below Shri M.K. Gandhi, who was the junior-most Assistant in the regular cadre at that time. Thus, we see no infirmity in the order dated 22.10.2007. This order has attained finality. Based upon this order applicant was granted promotion in the year 2008 and he has subsequently retired. In view of this settled position, applicant cannot make recourse to the illegal order based upon the decision of the incompetent authority, which order already stood modified vide order dated 22.10.2007 (Annexure A-2), which order was passed on the request of the applicant itself. In case applicant was aggrieved by the order dated 22.10.2007, passed on his request, in accordance with law by the competent authority, it was open for him to challenge that order at that stage. Applicant cannot now be permitted to challenge this order by filing the present OA on 06.07.2011 after a lapse of about 4 years and that too, after his retirement. OA is hopelessly time barred.
4. The applicant has also not moved an application for condonation of delay, rather he has made a categorical statement in para-3 of the OA that this OA is filed within the period of limitation prescribed under Section 21 (3) of the Administrative Tribunals Act, 1985. This is one of the grounds why the present OA cannot be entertained.
5. The Apex Court in the case of Ramesh Chand Sharma v. Udham Singh Kamal & others, 2000 SCC (L&S) 53 has categorically held that the explanation sought to be given for condonation of delay cannot be entertained, as no foundation thereof was laid before the Tribunal. It was open to the applicant to make proper application under Section 21(3) of the Act for condonation of delay and having not done so, he cannot be permitted to take up such contention at this late stage. It was further held that in the absence of any application for condonation of delay OA cannot be entertained and admitted. Even on this ground the applicant is not entitled to any relief. The reliance placed by the learned counsel of applicant on the decision of the Chandigarh Bench of this Tribunal in Sumer Singh Sangwan & Anr. v. Central Board of Trustees through its Chairman & others (Amended OA No.296/HR/2006) decided on 27.02.2009 is not applicable in the facts and circumstances of the case. Similarly, applicant cannot draw any assistance from the recommendations made by the committee on 04.02.2009, which shows that on account of reversion from the post of Hindi Translator to that of Assistant original seniority of the post should be granted. As already stated above, applicant was never reverted from the post of Hindi Translator to the post of Assistant, rather it is the applicant himself who sought his transfer to the post of Assistant under FR 15, which request was considered by the competent authority under the provisions of FR 15. As such, it is not a case of transfer to a lower post on administrative grounds, rather it is a case where the applicant has himself sought reversion to a lower post on his own request and the competent authority has invoked the provisions of FR 15 and the applicant was transferred to a lower post in terms of Annexure A-2 order dated 22.10.2007. Even otherwise also the Apex Court in the case of K.P. Sudhakaran & Anr. v. State of Kerala & Ors., 2006 SCC (L&S) 1105 held that the employee transferred on his own request has to be assigned bottom seniority. Thus the grievance raised by the applicant that he should be assigned seniority from back date when he was appointed as Assistant in 1981 cannot be accepted.
6. Thus, viewing from any angle, the present OA is bereft of merit, which is accordingly dismissed at the admission stage itself. No costs.
(A.K. Jain) (M.L. Chauhan) Member (A) Member (J) San.