Central Administrative Tribunal - Delhi
Dr Bishwanath Giri vs Employees State Insurance Corporation on 6 March, 2023
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Item No. 17(C-3) O.A. No. 525/2016
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH: NEW DELHI
O.A. No.525/2016
This the 06th day of March, 2023
Hon'ble Mr. Ashish Kalia, Member (J)
Hon'ble Dr. Anand S. Khati, Member (A)
Dr. Bishwanath Giri,
IMO SAG (Retd.),
S/o Late Sh. JC Giri,
R/o 222, Hari Nagar,
Ghukha Ghaziabad-201003.
...Applicant
(By Advocate: Mr. Narinder Safaya)
Versus
Employees State Insurance Corporation,
Through the Director General,
PanchdeepBhawan,
Comrade Inderjeet Gupta (CIG) Marg,
New Delhi-110002.
...Respondent
(By Advocate: Mr. Murari Kumar)
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Item No. 17(C-3) O.A. No. 525/2016
ORDER (ORAL)
Hon'ble Mr. Ashish Kalia, Member (J) The applicant in the present Original Application has prayed for the following reliefs:-
"In view of the above it is most respectfully prayed that this Hon'ble Tribunal be pleased to call for the records of the case and order of grant him promotion to the Applicant w.e.f. 30.11.2008 to SAG, PB-4. & costs to the applicant."
2. Brief facts of the present case are that the applicant is a doctor and worked as an Insurance Medical Officer with the Employees State Insurance Corporation (ESIC). He became entitled to the post of Senior Administrative Grade in PB-4 from 30.11.2008 but was granted the said grade w.e.f. 01.04.2010. The main contention of the applicant is that he has been entitled to the grade of SAG on completion of 20 years as was granted to all others.
3. Heard both the parties and perused the material available on record.
4. Learned counsel for the applicant submits that throughout his tenure, the applicant had been getting "very 3 Item No. 17(C-3) O.A. No. 525/2016 good" grading/remark in his ACR except for the three years i.e. 2003-04, 2004-05 & 2005-06, for which he had been given the grading/remark in his ACR as "good". Consequent upon the same, he made representation for review of his ACR to be upgraded from good to very good. During the grant of promotion, his performance had been assessed as "good" in the ACR for 2 years, to which, he represented as directed by the ESIC and accordingly, the ACR was upgraded to "very good". He was thereby granted promotion w.e.f. 01.04.2010. Consequently, he made representation to the ESIC for granting him promotion w.e.f. 30.11.2008.
5. Per contra, learned counsel for the respondent submits that DPC held on 18.02.2009 considered the ACRs of the applicant for the years 2002-03 to 2006-07 and they were not meeting the prescribed bench mark for promotion to the post of SAG grade, hence, he was denied promotion at first. Subsequently, in the next two DPCs also, the applicant was denied promotion on the same ground. Later on, the applicant submitted a representation dated 4 Item No. 17(C-3) O.A. No. 525/2016 25.07.2011 and the ACR was upgraded to very good and as the below bench mark ACRs for 2004-05 to 2005-06 were upgraded, the Review DPC declared the applicant fit for promotion to the post of SAG w.e.f. 01.04.2010, as per prevailing rules and regulations. It is also submitted that the applicant has failed to interpret the relevant rules and regulations governing promotion under DACP Scheme. Hence, as the respondent has followed all rules as applicable, the OA is liable to be dismissed.
6. The short question raised before this Tribunal is whether the applicant is entitled to be promoted on the post of SAG with effect from the year 2008 or not?
7. In the matter of Union of India vs. Tarsem Singh, (2008) 8 SCC 648, the Apex Court has held as under:-
"To summarise, normally, a belated service related claim will be rejected on the ground of delay and laches (where remedy is sought by filing a writ petition) or limitation (where remedy is sought by an application to the Administrative Tribunal). One of the exceptions to the said rule is cases relating to a continuing wrong. Where a service related claim is based on a continuing wrong, relief can be granted even if there is a long delay in seeking remedy, with reference to the date on which the continuing wrong commenced, if such continuing wrong creates a continuing source of injury. But there is an exception to the exception. If the grievance is in respect of any 5 Item No. 17(C-3) O.A. No. 525/2016 order or administrative decision which related to or affected several others also, and if the re-opening of the issue would affect the settled rights of third parties, then the claim will not be entertained. For example, if the issue relates to payment or re-fixation of pay or pension, relief may be granted in spite of delay as it does not affect the rights of third parties. But if the claim involved issues relating to seniority or promotion etc., affecting others, delay would render the claim stale and doctrine of laches/limitation will be applied. In so far as the consequential relief of recovery of arrears for a past period, the principles relating to recurring/successive wrongs will apply. As a consequence, High Courts will restrict the consequential relief relating to arrears normally to a period of three years prior to the date of filing of the writ petition."
8. Keeping in view the facts and circumstances of the case, we find merit in the OA as the respondent itself admitted in its counter affidavit that the ACRs were upgraded on his request and he was granted promotion w.e.f. 2010. Once his request is considered, it has to be considered from the date for which he has requested. Thus, the respondents are directed to consider the case of the applicant and grant him promotion to the post of SAG PB-4 from 3 years preceding from the date of filing of this O.A, in light of the aforesaid judgment passed by the Apex Court in the matter of Union of India vs. Tarsem Singh, (2008) 8 SCC 648 (supra). This exercise shall be completed within a 6 Item No. 17(C-3) O.A. No. 525/2016 period of 90 days from the date of receipt of a certified copy of this Order.
9. Accordingly, the OA stands allowed. No costs.
(Dr. Anand S. Khati) (Ashish Kalia)
Member (A) Member (J)
/yaksh/