Central Administrative Tribunal - Ranchi
S.N. Lal Das vs Union Of India (Uoi) And Ors. on 8 May, 2000
JUDGMENT
S. Narayan, Vice-Chairman
1. This is an application praying to quash an order dated, 14th June, 1990 [Annexure-2], of the respondent No. 3, whereby, the respondent No. 4, Mehdi Hassan, has been promoted to the post of Accountant, said to be by way of superseding the claim of the applicant. It was further prayed to quash the order dated, 13th February, 1996 [Annexure-7], of the respondent No. 3, whereby, the applicant's second representation was rejected. Be it pointed out here that an earlier representation in this regard made by the applicant on 27th August, 1990, also was rejected by an earlier order dated 12th March, 1991 [Annexure-4].
2. The brief facts of the case are that the applicant was appointed to the post of Lower Division Clerk in the office of the respondent No. 3 on 16th March, 1954, and was confirmed to the post as such on 1 st January, 1969, whereas, the respondent No. 4, Mehdi Hassan was appointed on the post of Lower Division Clerk on 15th April, 1986, and was confirmed to the post on 1st May, 1969. Admittedly, the applicant ranked senior to the respondent No. 4 on the post of Lower Division Clerk. In the year 1989 one post of Accountant became vacant on the basis of chain vacancy and, accordingly, a meeting of the Departmental Promotion Committee was held on 5th June, 1990, to promote a suitable candidate among the Lower Division Clerk, Cashier and Store Keeper of the department. The applicant and the respondent No. 4 were candidates under consideration in the meeting and they were included in the merit list prepared by the Departmental Promotion Committee. The respondent No. 4 figured at Sl. No. 1 of the merit list and the applicant at Sl. No. 4. There was another Departmental Promotion Committee held on 13th June, 1990, to review the earlier list with an additional candidate in the zone of consideration, namely, Mohd. Nooruddin. In the review meeting of the Departmental Promotion Committee, a merit list of as many as, six candidates (as compared to five in the earlier one) was prepared. The respondent No. 4 was again listed at the top in the merit list. This time, the applicant was at Sl. No. 5 of the merit list, obviously, because Mohd. Nooruddin was listed at Sl. No. 2.
3. There was no controversy on the hard facts, as narrated above. The applicant, however, pleaded, inter-alia, that consequent upon promotion of the respondent No. 4 by an order dated, 14th June, 1990 (Annexure-2), he filed a representation dated, 27th August, 1990 (Annexure-3), before the respondents authority on the plea that he had a better claim of promotion against a junior one, namely, respondent No. 4, who had been appointed. The representation as such, was, however, rejected by an order dated, 12th March, 1991 (Annexure-4), of the respondents authority on the plea that the post of Accountant was 100% selection post which had been filled-up on the recommendation of the Departmental Promotion Committee after examining the service records and ACRs of all the eligible candidates. The applicant, thereupon, filed another representation dated, 4th April, 1991, as at Annexure-5, and yet another representation on 1st April, 1995. The representation dated, 1st April, 1995, was replied by the respondents authority by memo dated 13th February, 1996 (Annexure-7), informing the applicant again that the promotion to Mehdi Hassan was given on the basis of resolution of the Departmental Promotion Committee on the post of Accountant being a selection post,
4. As against the above plea of the applicant, the official respondents, as also the private respondent No. 4 have filed their separate written statements. Besides raising the plea of limitation, it was contended in both the written statements that the post of Accountant was a selection post required to be filled-in on the basis of merit-cum-seniority and, accordingly, in the light of evaluation made by the duly constituted Departmental Promotion Committee, the respondent No. 4 was promoted to the post irrespectively of the fact that the applicant ranked senior to the respondent No. 4 on the post of the Lower Division Clerk.
5. First, we would take-up the point of limitation which was very much staring on the pleading of the parties. There is no doubt about it that the grievance of the applicant centres around the order dated, 14th June, 1990, of the respondent No. 3, whereby, the respondent No. 4 was given promotion to the post of Accountant on regular basis. The whole tenor of the applicant's case was that he being senior to respondent No. 4, the promotion should have been instead given to him. Admittedly, the applicant filed a representation against the order of promotion which was disposed of by an order dated, 12th March, 1991, of the respondents authority, vide Annexure-4. That being as such, in normal course, the limitation would start running from that very date i. e., 12th March, 1991. It is true that the applicant filed subsequent representations and, ultimately, by an order dated 13th February, 1996, of the respondents authority he was again communicated the same decision as earlier communicated to him while refusing his first representation by an order dated 12th March, 1991. Therefore, in our opinion, the subsequent one i.e., 13th February, 1996, was just a mere repetition of the earlier decision against the representation of the applicant and that was of no importance. We would like to add here that this was not a case where the respondents authority had to re-consider the representation of the applicant on revelation of certain fresh material so as to have another substantive decision in the matter. For this reason also the refusal of the representation for the second time was quite insignificant so as not to give any sort of benefit of counting the period of limitation from the date of refusal for the second time.
6. Learned Counsel appearing on behalf of the applicant has, however, urged that the point of limitation ought to have been raised at the time of admission and it was not entertainable at the stage of final hearing. It is true that the applicant's case was admitted by an order dated 29th April, 1998, upon hearing only the applicant's side (i.e. in absence of the respondents), but the order of admission was obviously, passed without application of mind on the point of limitation. We would confidently say that the point of limitation, being a vital legal point, could be raised any time and merely because this OA was admitted, it would not debar the respondents raising the point of limitation. The point could not be, therefore, ignored, and it did deserve our consideration.
7. On the point of limitation we have already noticed on factual score above, that it would start running from the date the applicant's representation was rejected for the first time i.e., by an order dated 12th March, 1991 (Annexure-4), and tbat being as such, this OA having been filed on 12th February, 1997, was hopelessly time barred. It would not be out of place to mention here that the applicant's side simply asserted in his OA that the application was within time and there was no application made for condonation of the delay.
8. While taking a decision on the point of limitation, as above, we have preferred to place reliance on the recent decision of the Supreme Court in the case of Ramesh Chandra Sharma v. Uttam Singh Kamaal, 2000 SCC (L&S) 53. It was held therein by the Supreme Court that the application, being beyond limitation, could not be considered on merit. It was reiterated by the Supreme Court in this case that the law in this behalf was now settled as per its earlier decision in the case of Secretary to the Government of India v. Shivram Mahadu Gaekwad, 1995 (Supp.) (3) SCC 231, wherein also a principle was laid down that if an application before the CAT was clearly barred by limitation, it can not be entertained unless an application condoning the delay was made and duly considered.
9. For the reasons, aforesaid, we find the instant OA to be barred by limitation and, accordingly, it was bound to be dismissed on this score.
10. On merits, we find that the whole tenor of the applicant's case in the OA was that the respondent No. 4, being junior to the applicant, could not have been promoted to the post of Accountant superseding his (applicant's) rights and claim to the post. In this context, it was abundantly demonstrated on the records by the respondents that the promotional post of Accountant was a selection post and not a non-selection post, meaning thereby, that one, amongst the eligible candidates, who is found comparatively meritorious was to be selected and the point of seniority was the criterion only when eventually two candidates are found to be of equal merit. To put it in other words, the criterion for selection was merit-cum-seniority. The official respondents have furnished on the record the statement showing the method of recruitment and promotion to Class-Ill post on Central Institute of Psychiatry, Ranchi, vide Annexure-R/4A, which depicts that out of two posts, one was to be filled-in by selection i.e., on the basis of seniority-cum-fitness and the other by transfer. The chain of vacancy, against which the promotion was given, was to be filled-in by selection, that being so, the applicant's plea, as raised in the OA, had no leg to stand and, accordingly, this plea was actually abandoned at the time of argument.
11. Having tested the merit of the case on the above line, the applicant's side shifted pressure on the plea that there was a colourable exercise of power by the Departmental Promotion Committee in preparing the merit list arbitrarily, without giving weightage to the applicant's seniority and without a selection test. In this context, there was, however, no specific allegation of malafide or/motive attributed to any Member of the Departmental Promotion Committee. Mere raising suspicion through vague allegations was hardly enough to cast shadow on the recommendation of the Departmental Promotion Committee which has been duly constituted and which is supposed to have acted bonafide in due course of discharge of duties.
12. With regard to the applicant's plea, as above, we would say, that it was a well established rule that promotion to selection grades or selection posts is to be based primarily on merit and not on seniority alone. The principle is that when the claims of officers to selection posts is under consideration, seniority should not be regarded except where the merit of the officers is judged to be equal and no other criterion is, therefore, available. This was what specifically held by the Supreme Court in the case of Ram Sharma v. State of Rajasthan, AIR 1967 SC 1910, which was followed in the case of Chandra Gupta, IFS v. Secretary, Government of India, AIR 1995 SC 44=1994(3) SLJ 69 (SC).
13. As to the authority vested on the Departmental Promotion Committee, we would like to place reliance on the verdict of the Supreme Court in the case of State Bank of India and Ors. v. Mohd. Mynuddin, AIR 1989 SC 1889=1987(3) SLJ 161 (SC). It was held therein that "The method of evaluation of the abilities or the competence of persons to be selected for such posts have also become now-a-days very much refined and sophisticated and such evaluation should, therefore, in the public interest ordinarily be left to be done by the individual or a committee consisting of persons who have the knowledge of the requirements of a given post to be nominated by the employer." Of course, the process of selection adopted by them should always be honest and fair. In the instant case, while testing the decision of the Departmental Promotion Committee on the above line, we do not find anything wrong which should vitiate the decision of the Departmental Promotion Committee. Much emphasis was given by the learned Counsel appearing on behalf of the applicant on the point that for the promotion to the post of Accountant in question, the Departmental Promotion Committee held meeting twice i.e., on 5th June, 1990, for the first time and again on 13th June, 1990. In this context, we have taken note that since one candidate within the consideration zone, namely, Mohd. Nooruddin, was left out of consideration in the first meeting, there was a need for the review. In the meeting held on 5th June, 1990, the Departmental Promotion Committee prepared merit list of five persons, whereas, in the review meeting held on 13th June, 1990, a list of six persons was prepared. It was, however, significant to note that the name of respondent No. 4 remained the same i.e., at Sl. No. 1 of the merit list both the times. Therefore, we find sufficient ground for holding the review by the Departmental Promotion Committee which was down shortly after the first one with the ultimate result that the position of respondent No. 4 remained the same and he was selected to the promotional post of the Accountant.
14. In the result, this OA is dismissed as time barred. Even on merits, the case was hound to fall. There shall be, however, no order as to costs.