Central Administrative Tribunal - Delhi
Shri N.Sivakumar vs Union Of India Through on 24 February, 2011
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH OA 1435/2010 New Delhi this the 24th day of February, 2011 Honble Mr. Justice V.K.Bali, Chairman Honble Mr. L.K. Joshi, Vice Chairman (A) Shri N.Sivakumar, S/o Shri M. Natrajan,Age 48 years, R/o D-607, MS Apartments, KG Marg, New Delhi. Applicant (By Advocate Shri Sachin Chauhan ) VERSUS 1. Union of India through The Secretary to Government of India, Ministry of Water Resources, Shram Shakti Bhavan, Rafi Marg, New Delhi-110001 2. The Director, Central Soil and Materials Research Station, Ministry of Water Resources, Olof Palme Marg, Hauz Khas, New Delhi-110016 3. The Secretary, DOPT, Ministry of Personnel, Pension & Public Services, North Block, New Delhi. 4. The Chairman, U.P.S.C., Dholpur House, Shahjahan Road, New Delhi. Respondents (By Advocates Shri R.V.Sinha with Shri R.N. Singh ) O R D E R Mr. L.K.Joshi, Vice Chairman (A):
The Applicant is seeking directions to the Respondents to promote him to the grade of Chief Research Officer (CRO) under the Flexible Complementing Scheme (FCS) with effect from June 1995, when he completed five years in the grade of Senior Research Officer (SRO) and became eligible for promotion to the higher grade and not from 11.10.2006 when he was actually promoted. He is seeking the benefit of the judgement dated 9.07.2009 in OA number 1810/2007, in which the similarly placed applicants were given the relief, which the Applicant herein is seeking in this OA. His representation in this regard has been rejected by the Respondents by the impugned order dated 04.03.2010 on the ground that benefit of the aforesaid judgement in OA number 1810/2007 cannot be given to him because he was not a party in that OA.
2. The facts of the case are that the Applicant initially joined as Research Officer (RO) under the Central Soil and Materials Research Station (CSMRS), the second Respondent, with effect from 27.06.1985 on direct recruitment to the post. The post is governed by the Central Soil and Materials Research Station, New Delhi (Group A) Posts Recruitment Rules, 1983 (the Recruitment Rules, 1983). The higher posts in the hierarchy are Senior Research Officer (SRO) and Chief Research Officer (CRO). The posts of SRO and CRO are filled up by promotion from RO and SRO respectively, with five years of regular service in the respective grades. Rule 5 (2) of the Recruitment Rules, 1983 also provides that FCS of in situ promotion will be adopted for promotion in the grade of RO to SRO and CRO. Rule 5 (4) provides that departmental officers, who have rendered regular service of not less than five years in the respective grades, may be recommended by the Board of Assessment for promotion to the next higher grade on the basis of assessment of the record of service and interview for evaluating their scientific contributions and achievements. The FCS is applicable to the Respondent-CSMRS by virtue of its being declared a scientific institution.
3. The Applicant completed five years of service in the grade of RO in June 1990 and became eligible for promotion to the grade of SRO from June 1990. However, the Applicant was promoted to the post of SRO from 10.01.1994. The Applicant and some similarly situated scientists of the Respondent- CSMRS approached this Tribunal in OAs number 1715/1995 (Hasan Abdullah and another V. Union of India and another) and 1716/1995 (Nakul Dev and others V. Union of India and another). The Applicant was the party as applicant in OA number 1716/1995. The OA number 1715 of 1995 was decided in favour of the applicants therein on 14.10.1999, directing the respondents therein to promote the applicants retrospectively with effect from the date when they completed five years of regular service in the grade of RO and became eligible for promotion and grant all consequential benefits. OA number 1716/1995, in which the Applicant was also a party, was decided on 18.01.2000, being covered by the judgement in OA number 1715/1995, in the same terms. The respondents approached the Honourable Delhi High Court in Writ Petition (C) number 2456/2000, challenging the order of this Tribunal in OAs number 1715 and 1716 of 1995. The Writ Petition was dismissed in limine. The SLP filed against the judgement of the Honourable Delhi High Court was dismissed by the Honourable Supreme Court. It was only after further directions in CP number 681/2001 to comply with the judgement of the Tribunal in OAs number 1715/1995 and 1716/1996 that the directions were complied with by order dated 15.04.2002 of the first Respondent, Ministry of Water Resources, promoting the applicants in the aforesaid OAs to the grade of SRO. The Applicant was also promoted with effect from 27.06.1990. The arrears of pay were also given by a subsequent order.
4. The Applicant and other similarly situated persons were asked by the Respondents by an Office Memorandum dated 14.06.1999 to submit their bio-data for consideration for promotion to the next higher grade of CRO. Another similar communication was sent to the concerned scientists on 13.09.2000. Again in January 2003 the Respondent-CSMRS asked the Applicant to send his bio-data in the prescribed form up to 31.12.1995 and bio-data supplement for each subsequent year up to 2002. The Applicant submitted his bio-data on 15.01.2003, but the assessment did not take place. In May 2006 the CSMRS again directed the Applicant to submit his bio-data up to 1995 and thereafter for each subsequent year up to 31.12.2005. At last the selection for the post of the CRO was held on 27.09.2006. Following the assessment, the Applicant was promoted to the grade of CRO from 11.10.2006 and not from the due date, that is, June 1995, although his bio-data had been taken up to December 1995 and thereafter for subsequent years. He gave a representation for promoting him as CRO from June 1995. The representation was rejected by an order dated 16.05.2007 on the ground that promotion can only be prospective and cannot be given with retrospective effect.
5. Meanwhile, similarly placed scientists, who were also the applicants in OAs number 1715/1995 and 1716/1995, namely, Hasan Abdullah, Nakul Dev, M L Soni et cetera approached this Tribunal in OA number 1810/2007 seeking ante-dating of their promotion to the grade of CRO to 1995, by virtue of the fact that their promotion to the grade of SRO had been antedated to June 1990 on the directions of this Tribunal and upheld by the Honourable Delhi High Court and Honourable Supreme Court. The Tribunal by its judgement dated 09.07.2009 directed that the applicants in OA number 1810/2007 should be promoted with effect from the date they became eligible for promotion to the grade of CRO in 1995. The Respondents complied with this direction by order dated 17.02.2010, whereby the applicants therein were promoted to the grade of CRO from 1995. By a representation dated 24.02.2010 the Applicant sought the benefit of the judgement in OA number 1810/2007, praying that he should also be promoted to the grade of CRO from 1995, as similarly placed scientists had been given the benefit of retrospective promotion. It was also stated in his representation that there were vacancies available for his promotion in 1995. The representation was rejected by the impugned order dated 04.03.2010 on the ground that the Applicant was not a party to the OA number 1810 of 2007. The first Respondent, Ministry of Water Resources, has, on the contrary, held in case of the scientists of National Institute of Hydrology (NIH), another institution under the Respondent, that the benefit of antedating of seniority should also be given to the scientists, who were not parties to the Original Applications, whereby the benefit of retrospective promotion was given to five scientists of the NIH. The Applicant has placed on record, in the rejoinder affidavit, the order dated 04.02.2010, by which five scientists of the NIH were given antedated promotion from their respective anniversary dates, that is, the date of completing the qualifying service, on the directions of this Tribunal in OA number 2321/2008 with two other related OAs decided on 18.08.2009. By order dated 13.09.2010, in continuation of the office order dated 04.02.2010, adverted to above, the effective date of promotion of the 12 remaining scientists, who were not parties to any litigation, was also antedated to the date of completion of their qualifying service. The fact that they were not parties to any litigation has been specifically mentioned in the said order.
6. There cannot be any dispute that the case of the Applicant is squarely covered by the judgement dated 09.07.2009 in OA number 1810 of 2007.
7. The learned counsel for the Respondent, however, opposed the cause of the Applicant by stating that the OA was barred by limitation as the original representation of the Applicant for ante-dating his promotion had been rejected in the year 2007 and he did not challenge that order. In the counter affidavit the plea of limitation had been raised on the ground that the OA was barred by limitation because promotion for the year 1995 had been sought by the OA filed in the year 2010. The other contention raised by the learned counsel for the Respondents was that it was not always necessary to give the benefit of the judgement in a case to other similarly placed persons. The Respondents have placed reliance on Col. B J Akkara (Retd.) V. Government of India and others, (2006) 11 SCC 709; State of Karnataka and others V. S M Kotrayya and others, (1996) 6 SCC 267; Union of India V. Central Administrative Tribunal, Chandigarh, 2003 (2) SCT 863 (Punjab and Haryana High Court); Baij Nath Sharma V. Honourable Rajasthan High Court at Jodhpur and another, (1998) 7 SCC 44; Nirmal Chandra Sinha V. Union of India and others, (2008) 14 SCC 29; Suresh Kumar V. Government of NCT of Delhi and others, OA number 133/2008, decided on 03.02.2011; and Dr. Rajbal Singh V. Union of India and others, OA number 143/2008, decided on 19.12.2010.
8. In Col. B J Akkara (supra) the appellant belonged to Army Medical Corps and was seeking the benefit of the decision of the Delhi High Court in respect of civilian medical officers. The Ministry of Defence had issued a circular dated 11.09.2001, whereby it was clarified that Non-Practising Allowance for doctors was not to be taken into account after re-fixation of pay on notional basis as on January first, 1986 and it was not to be added to the revised scale of pay on notional basis on January first, 1996, in cases where the pension was to be stepped up to 50 per cent in terms of earlier circular of June 1999. In the light of this circular pension of the retired doctors, like the appellant before the Honourable Supreme Court, was revised and recovery of excess payment was ordered. The Delhi High Court had struck down a similar circular dated 19.10.1999 relating to Civilian Medical Officers, akin to the circular of 11.09.2001, by judgement dated 18.05.2002 in K C Garg (Dr.) V. Union of India. The decision had been implemented by the Government of India. One of the question framed by the Honourable Supreme Court was that:
"(iii) Whether the respondents having accepted and implemented the decision of the Delhi High Court on a similar issue, are required to extend a similar treatment to Defence Service Medical Officers also, by concealing the circular dated 11-9-2001."
The respondents before the Honourable Supreme Court contended that the circular dated 29.10.1999 in respect of the Civilian Medical Officers only had been withdrawn in respect of all such officers, but it should not come in the way of the respondents to resist similar petitions filed by the doctors of the Army Medical Corps. The Honourable Supreme Court held thus:
25. A similar contention was considered by this Court in State of Maharashtra v. Digambar. This Court held : (SCC p.691, para 16) "Sometimes, as it was stated on behalf of the State, the State Government may not choose to file appeals against certain judgments of the High Court rendered in writ petitions when they are considered as stray cases and not worthwhile invoking the discretionary jurisdiction of this Court under Article 136 of the Constitution, for seeking redressal therefor. At other times, it is also possible for the State, not to file appeals before this Court in some matters on account of improper advice or negligence or improper conduct of officers concerned. It is further possible, that even where SLPs are filed by the State against judgments of the High Court, such SLPs may not be entertained by this Court in exercise of its discretionary jurisdiction under Article 136 of the Constitution either because they are considered as individual cases or because they are considered as cases not involving stakes which may adversely affect the interest of the State. Therefore, the circumstance of the non-filing of the appeals by the State in some similar matters or the rejection of some SLPs in limine by this Court in some other similar matters by itself, in our view, cannot be held as a bar against the State in filing an SLP or SLPs in other similar matters where it is considered on behalf of the State that non-filing of such SLP or SLPs and pursuing them is likely to seriously jeopardize the interest of the State or public interest."
26. The said observations apply to this case. A particular judgment of the High Court may not be challenged by the State where the financial repercussions are negligible or where the appeal is barred by limitation. It may also not be challenged due to negligence or oversight of the dealing officers or on account of wrong legal advice, or on account of the non-comprehension of the seriousness or magnitude of the issue involved. However, when similar matters subsequently crop up and the magnitude of the financial implications is realized, the State is not prevented or barred from challenging the subsequent decisions or resisting subsequent writ petitions, even though judgment in a case involving similar issue was allowed to reach finality in the case of others. Of course, the position would be viewed differently, if petitioners plead and prove that the State had adopted a pick-and-choose method only to exclude petitioners on account of malafides or ulterior motives. Be that as it may. On the facts and circumstances, neither the principle of res judicata nor the principle of estoppel is attracted. The administrative law principles of legitimate expectation or fairness in action are also not attracted. Therefore, the fact that in some cases the validity of the circular dated 29-10-1999 (corresponding to the Defence Ministry circular dated 11-9-2001) has been upheld and that decision has attained finality will not come in the way of State defending or enforcing its circular dated 11-9-2001. The instant case is distinguishable on facts and circumstances. The Applicant belongs to the same cadre of scientists and the same grade of SRO as the applicants in OA number 1810/2007. The Applicant had been a party in OAs number 1716/2007 along with Hasan Abdullah, Nakul Dev and M L Soni, who later got the benefit of the judgement in OA number 1810/2007. This is also certainly not a case in which huge financial implications are involved in case the benefit of the aforesaid judgement in OA number 1810/2007 is given to the Applicant. It was also not a case in which the aforesaid judgement was not challenged before higher judicial forum because of improper advice or negligence or improper conduct of some officer. It is a case in which the decision in case of the applicants in OA number 1810/2007 should have been implemented in case of all similarly placed scientists and Government being a model employer should have refrained from resisting the claim of the Applicant. The above cited judgement has no application in the facts and circumstances of the instant case.
9. In State of Karnataka V. S M Kotarayya and others (supra) the facts were that recovery was made from some teachers in 1981-86 for illegally availing of the benefit of Leave Travel Concession facility. Some persons in similar cases challenged the recovery in 1986 before this Tribunal, which was allowed in 1989. The aforementioned teachers approached the Tribunal for similar relief, with an application for condoning the delay on the ground that they came to know about the judgement of the Tribunal in similar cases in 1989. The Tribunal condoned the delay. The Honourable Supreme Court set aside the order of the Tribunal on the ground that the applicants before it had not satisfactorily explained the delay in approaching it three years after the recovery was made and the ground that they had come to know about the judgement in 1989 was not satisfactory explanation for delay. The delay had to be explained with reference to the Section 21 of the Administrative Tribunals Act, 1985, which provides that the Application has to be filed within one year of the date of the final order, as mentioned in Section 20 ibid. This case has no application to the instant OA. The Applicant is challenging the order dated 04.03.2010 by which his representation for giving him the benefit of the judgement in OA number 1810/2007 has been rejected only on the ground that he was not a party to the aforesaid OA. The earlier representation of the Applicant for antedating his promotion to 1995 had been rejected by order dated 16.05.2007. In the same year some other similarly situated persons, namely, Hasan Abdullah, Nakul Dev and M L Soni approached this Tribunal for similar relief of antedating their date of promotion from 2006 to 1995. The Applicant waited for the decision in this OA and when it was favourably decided in favour of the scientists mentioned above, he approached the Respondents for similar relief, being exactly similarly placed person in all respects. He was a party in OA number 1716/1995, along with Nakul Dev and M L Soni. The OA number 1716/1995 was decided on the basis of the judgement in an identical OA number 1715/1995, in which Hasan Abdullah was a party. The relief claimed in the above said two OAs was antedating of their promotion to the grade of SRO from 1994 to 1995. The Applicant and the above mentioned persons were given the relief of antedating of their promotion to the grade of SRO by the common order dated 15.04.2002. It was, therefore, but natural for the Applicant to await the judgement in OA number 1810/2007. He filed the OA soon after the decision in the OA number 1810/2007. In the facts and circumstances we are of the considered view that a fresh cause of action had arisen for the Applicant after the decision in the above mentioned OA. In view of this there will be no need to discuss the judgements in Union of India V. Central Administrative Tribunal, Chandigarh (supra) and Suresh Kumar (supra) as these also deal with limitation under the Administrative Tribunals Act, 1985. In K C Sharma and others V. Union of India and others, 1998 (1) AISLJ 55, a five judge Bench of the Honourable Supreme Court held thus:
Delay in filing of the Special Leave Petition is condoned.
Special Leave granted.
This appeal is directed against the judgment of the Principal Bench of the Central Administrative Tribunal (hereinafter referred to as the Tribunal) dated July 25, 1994 in O.A. No. 774 of 1994. The appellants were employed as guards in the Northern Railway and they retired as guards during the period between 1980 and 1988. They felt aggrieved by the notifications dated December 5, 1988 whereby Rule 2544 of the Indian Railway Establishment Code was amended and for the purpose of calculation of average emoluments the maximum limit in respect of Running Allowances was reduced from 75% to 45% in respect of period from January 1, 1973 to March 31, 1979 and to 55% for the period from April 1, 1979 onwards.
2. The validity of the retrospective amendments introduced by the impugned notification dated December 5, 1988 had been considered by the Full Bench of the Tribunal in its judgment dated December 16, 1993 in O.A. No. 395-403 of 1993 and connected matters and the said notifications in so far as they gave retrospective effect to the amendments were held to be invalid as being violative of Articles 14 and 16 of the Constitution. Since the appellants were adversely affected by the impugned amendments they sought the benefit of the said decision of the Full Bench of the Tribunal by filing representations before the Railway Administration. Since they failed to obtain redress, they filed the application (O.A. No. 774 of 1994) seeking relief before the Tribunal in April, 1994. The said application of the appellants was dismissed by the Tribunal by the impugned judgment on the view that the application was barred by limitation. The Tribunal refused to condone the delay in the filing of the said applications.
3. The correctness of the decision of the Full Bench of the Tribunal has been affirmed by this Court in Chairman, Railway Board & Ors v. C.R. Rangadhamaiah and Ors, Civil Appeals Nos. 4174-4182 of 1995 and connected matters decided today.
4. Having regard to the facts and circumstances of the case, we are of the view that this was a fit case in which the Tribunal should have condoned the delay in the filing of the application and the appellants should have been given relief in the same terms as was granted by the Full Bench of the Tribunal. The appeal is, therefore, allowed, the impugned judgment of the Tribunal is set aside, the delay in filing of O.A. No. 774 of 1994 is condoned and the said application is allowed. The appellants would be entitled to the same relief in the matter of pension as had been granted by the Full Bench of the Tribunal in its judgment dated December 16, 1993 in O.A. Nos. 395-403 of 1993 and connected matters. No order as to costs. In G C Ghosh and others V. Union of India and others, (1992) 19 ATC 94, the Honourable Supreme Court observed that:
Reliance has been placed by the petitioners on the decision of the Allahabad High Court in Union of India v. Smt, Afsar Jahan Begum rendered in Special Appeal No.9 of 1975 on March 12, 1979. The aforesaid decision has been accepted by the Railway Administration in the sense that no special leave petition was preferred in this Court and the matter finally rested there. The petitioners who are employees of Eastern Railway have contended that they are entitled to the same treatment as is being accorded to their counterparts in the Northern Railway in pursuance to the aforesaid decision rendered by the Allahabad High Court which has become final as between the Railway Administration on the one hand and the employees of the Northern Railway on the other. In the light of the command of Articles 14 and 16 of the Constitution of India the same treatment is required to be accorded to the petitioners regardless of the fact that they are serving in Eastern Railway unless it is shown that there is some distinguishing feature, for according a different treatment. Learned Additional Solicitor General appearing for the Railway Administration is not in a position to contend that there is any such special distinguishing feature to justify denying of uniformity in treatment. The prayer of the writ petitioners must accordingly be granted to the aforesaid extent. It is therefore directed that the petitioners should be accorded the same treatment as their counterparts are being accorded in the Northern Railway in regard to treating the running allowance granted to the running staff as part of the pay when they are transferred or promoted to a stationary post during the period they hold the officiating in the stationary post to the same extent and in the same manner as enjoined by the Allahabad High Court pursuant to the aforesaid judgment. Writ petitions are disposed of accordingly. There will be no order as to costs. The judgement in Baij Nath Sharma (supra) has no relevance to this case because the ratio laid down in that case is that a retired person would be eligible for retrospective promotion if a person junior to him had been promoted from the date when he was in service. Similarly Nirmal Chandra Sinha (supra) is also irrelevant insofar as this case is concerned because it is held in the cited judgement that promotions are prospective and do not take effect from the date of occurrence of vacancies. In the instant case the benefit of promotion has been granted to other similarly placed persons from retrospective date on the principles followed in OAs number 1715/1995 and 1716/1995, upheld by the Honourable Supreme Court. The case of Dr. Rajbal Singh (supra) cited by the Respondents supports more the case of the Applicant than the Respondents. Said Dr. Rajbal Singh was promoted as Joint Director under the FCS in 2007 and he approached this Tribunal for antedating his promotion to the year 1999, when he became eligible. It was urged before the Tribunal that no vacancies were available as per the provisions of Rule 5 (3) of the Recruitment Rules of 1983 for promotion under the FCS from 1999 to 2003 and hence Dr. Rajbal Singh could not be promoted during that period. It was further argued that the delay took place in convening the meeting of the Board of Assessment due to administrative reasons. The Tribunal held that the reason of non-availability of vacancies from 1999 to the year 2003 was a valid reason. However, the administrative reasons for delay thereafter were not accepted. Directions were given to the respondents therein to consider Dr. Rajbal Singh for promotion from 2003, when vacancies became available. It is not the case of the Respondents in the instant OA that vacancies were not available in the grade of CRO in the year 1995. On the other hand, the Applicant had mentioned in his representation dated 24.02.2010 that vacancies were available in the grade of CRO, against which he could be promoted. His representation was rejected on the sole ground that he was not a party to the OA number 1810/2007 and not on the ground that vacancies were not available in the grade of CRO in 1995. This ground has also not been pleaded by the Respondents in their counter affidavit and during submissions by the learned counsel before us.
10. The Respondents had delayed the promotion of the Applicant and similarly situated person to the grade of SRO also because of their lethargy. The Applicant and others were dragged in litigation up to the Honourable Supreme Court. Even after that they had to file contempt petition to get their dues. Again the Respondents delayed the implementation of the FCS for unconscionably long time of 11 years. The Applicant and other similarly situated persons were again dragged into litigation. The Ministry of Water Resources has been following different yardsticks for different institutions under it as would become clear from the example of the NIH in whose case the 12 scientists were given the benefit of antedating of their promotion on the basis of the promotion granted to the five scientists on the basis of the directions of this Tribunal. It was clearly mentioned in the order promoting the 12 scientists that they were not party to any litigation and they were being promoted retrospectively on the basis of the decision of this Tribunal in the OAs filed by the five scientists. NIH is also a scientific institution like the Respondent- CSMRS and FCS is applicable to NIH also. The order rejecting the representation of the Applicant on the ground that he was not a party to the litigation was passed on 04.03.2010 and the order promoting the 12 scientists of NIH, who were also not parties to the litigation, was passed on 13.09.2010. This, to say the least, is not reasonable attitude on the part of the Ministry of Water Resources.
11. On the basis of the above discussion the OA is allowed in the same terms as OA number 1810/2007. The Respondents are directed to promote the Applicant from the date of eligibility in the year 1995 to the grade of CRO as expeditiously as possible, but not later than one month from the receipt of a certified copy of this order. The Applicant would be eligible for all consequential benefits, which may accrue to him according to the rules. There will be no orders as to costs.
( L.K.Joshi ) ( V.K.Bali ) Vice Chairman (A) Chairman sk