Subhash Chander vs Union Of India & Ors

Ashish Kalia, Member (J)

The applicant has filed this OA seeking the following main reliefs :-

“8(i) Direct the respondents to consider and promote the Petitioner on notional basis to the post of Accounts Officer, Senior Accounts Officer, Assistant Controller of Accounts, Deputy Controller of Accounts from the dates his juniors were promoted to these posts.

(ii) To Fix his pay on each occasion as was fixed in case of his juniors and pay the arrears of pay so calculated.

(iii) Revise all his retirement benefits on the basis of revised pay and pay arrears on such recalculation of retirement benefits.

(iv) Cost of suit may be awarded in favour of petitioner ; and or pass such further/other orders as may be deemed fit in the circumstances of the case.”

Brief facts of the case are that the applicant who is appearing in person has joined under the Ministry of Information and Broadcasting as Junior Accountant (JA) w.e.f. 07.07.1979. On 06.02.1987, he got appointment to the post of Junior Accounts Officer (JAO) and was further promoted on 05.03.1992 to the post of Assistant Accounts Officer (AAO). Sometime between 10.01.1996 to 29.11.1996, one of his juniors Mr. Kanhiya Lal and other Assistant Accounts Officers, who were also junior to the applicant, who qualified JAO (Civil) 1987 examination were promoted to the post of AO. They were further promoted to the post of Senior Accounts Officer (Sr. AO) sometime in December, 1999. The applicant was promoted to the post of AO in 2005 and in 2008 further promoted to the post of Sr. AO. Similarly, another person Mr. D. K. Haldar along with other officers junior to the applicant, have been promoted as Assistant Controller of Accounts between 27.04.2009 to 13.04.2017. The applicant superannuated in 2016. He submits that the Hon’ble High Court vide Writ Petition No 3490/2010 has held that preferential promotion to ‘Scheduled Caste/Scheduled Tribe Candidates’ with consequential seniority was un constitutional vis-à-vis general category candidates who were granted liberty to avail administrative or judicial remedy in case they were otherwise fit for promotion. Thus, the applicant filed the present OA claiming promotion with effect from the date his juniors were promoted.

Notices were issued to the respondents. They filed their reply and submitted therein that the applicant is claiming retrospective promotion as Pay and Accounts Officer and Sr. AO and further promoted as Assistant Controller of Accounts and the argument of the applicant that against the reserved category a candidate should get the promotion is hopelessly barred by limitation. Learned counsel for the respondents pressed paras 2 and 3 which are reproduced below :-

“2. That the application as filed by the applicant is liable to be dismissed as the applicant, Assistant Controller of Accounts (retired on superannuation w.e.f. 30.04.2016) has sought relief to promote him to the post of Accounts Officer, Senior Accounts Officer, Assistant Controller of Accounts, Deputy Controller of Accounts and Controller of Accounts from the dates SC/ST candidates junior to him were promoted to these post. For this purpose, he has relied upon the judgment dated 23.08.2017 in WP(C) 3490/2010. It is however, seen from para 17 (reproduced below) of this Judgment that the Hon’ble High Court of Delhi has not acceded to the prayer of the petitioners for promoting them retrospectively :

The further prayer, forming the latter part of prayer (b) in the writ petition, that ―the employees of general category be given benefit of promotion retrospectively from the date reserved category employees were promoted illegally‖ cannot, however, be granted, for the simple reason that promotion may be dependent on a variety of factors, including seniority, eligibility, qualifying service, availability of vacancies, application of the quota-rota principle, and the like, and, in the absence of any specific prayer qua any specific post, an omnibus direction, to promote all “employees of general category”, retrospectively, “from the date reserved category employees were promoted illegally”, cannot possibly be issued.

That the OA is also barred by limitation, delay and laches inasmuch as the applicant was promoted to various posts on the following dates :-

Sl. No.

Name of the post

Date of promotion

1.

Accounts Officer

11.07.2005

2.

Sr. Accounts Officer

01.04.2008

3.

Assistant Controller of Accounts

31.12.2014

If at all the applicant had any grievance relating to dates of promotion, he ought to have raised grievance at the relevant. He cannot claim ante-dating of his promotion on the basis of judgment pronounced on 23.08.2017.”

As applicant is claiming retrospective promotion it will affect the seniority of others without making them party and hearing them such order cannot be passed.

Heard applicant in person and respondents’ counsel.

Short issue raised in this OA is whether promotion from a retrospective date can be given to the applicant or not. The applicant has relied upon paras 19, 20, 21 and 22 of the judgment of the Hon’ble Apex Court in S. S. Rathore vs. State of Madhya Pradesh, AIR 1990 SC 10. The said paras are reproduced below :-

“The question for consideration is whether it should be disposal of one appeal or ’the entire hierarchy of reliefs as may have been provided. Statutory guidance is available from the provisions of sub-ss. (2) and (3) of s. 20 of the Administrative Tribunals Act. There, it has been laid down:

"20(2). For the purposes of sub-section (1), a person shall be deemed to have availed of all the remedies available to him under the relevant service rules as to redressal of grievances,

(a) if a final order has been made by the Government or other authority or officer or other person competent to pass such order under such rules, rejecting any appeal preferred or representation made by such person in connection with the grievances; or

(b) where no final order has been made by tee Government or other authority or officer or other person competent to pass such order with regard to the appeal preferred or representation made by such person, if a period of six months from the date on which such appeal was preferred or representation was made has expired.

(3) For the purposes of sub-sections (1) and (2), any remedy available to an applicant by way of submission of a memorial to the President or the Governor of a State or to any other functionary shall not be deemed to be one of the remedies which are available unless the applicant had elected to submit such memorial."

We are of the view that the cause of action shall be taken to arise not from the date of the original adverse order but on the date when the order of the higher authority where a statutory remedy is provided entertaining the appeal or representation is made and where no such order is made, though the remedy has been availed of, a six months’ period from the date of preferring of the appeal or making of the representation shall be taken to be the date when cause of action shall be taken to have first arisen. We, however, make it clear that this principle may not be applicable when the remedy availed of has not been provided by law. Repeated unsuccessful representations not provided by law are not governed by this principle.

It is appropriate to notice the provision regarding limitation under s. 21 of the Administrative Tribunals Act. Sub-section (1) has prescribed a period of one year for making of the application and power of condonation of delay of a total period of six months has been vested under sub-section (3). The Civil Court’s jurisdiction has been taken away by the Act and, therefore, as far as Government servants are concerned, Article’ 58 may not be invocable in view of the special limitation. Yet, suits outside the purview of the Administrative Tribunals Act shall continue to be governed by Article 58.

It is proper that the position in such cases should be uniform. Therefore, in every such case only when the appeal or representation provided by law is disposed of, cause of action shall first accrue and where such order is not made, on the expiry of six months from the date when the appeal was-filed or representation was made, the right to sue shall first accrue. Submission of just a memorial or representation to the Head of the establishment shall not be taken into consideration in the matter of fixing limitation.

The applicant submits that he has got cause of action from the date of representation he has made actually by referring the above judgment wherein it has been made clear that if representation is made when the cause of action arose and if it is not decided within one year, the applicant has to approach the Tribunal. This is a land mark judgment where the Hon’ble Apex Court has held that limitation of Tribunal has been defined under Section 21 which is as under :-

“21. Limitation.—(1) A Tribunal shall not admit an application,—

(a) in a case where a final order such as is mentioned in clause (a) of sub-section (2) of section 20 has been made in connection with the grievance unless the application is made, within one year from the date on which such final order has been made;

(b) in a case where an appeal or representation such as is mentioned in clause (b) of sub-section (2) of section 20 has been made and a period of six months had expired thereafter without such final order having been made, within one year from the date of expiry of the said period of six months.

(2) Notwithstanding anything contained in sub-section (1), where—

(a) the grievance in respect of which an application is made had arisen by reason of any order made at any time during the period of three years immediately preceding the date on which the jurisdiction, powers and authority of the Tribunal becomes exercisable under this Act in respect of the matter to which such order relates; and

(b) no proceedings for the redressal of such grievance had been commenced before the said date before any High Court, the application shall be entertained by the Tribunal if it is made within the period referred to in clause (a), or, as the case may be, clause (b), of sub-section (1) or within a period of six months from the said date, whichever period expires later.

(3) Notwithstanding anything contained in sub-section (1) or sub-section (2), an application may be admitted after the period of one year specified in clause (a) or clause (b) of sub-section (1) or, as the case may be, the period of six months specified in sub-section (2), if the applicant satisfies the Tribunal that he had sufficient cause for not making the application within such period.”

Even otherwise, a belated claim cannot be entertained by any Court of Law.

The Hon’ble Apex Court in the matter of Chennai Metropolitan Water Supply Sewage Board vs. T.T. Murali Bapo (2014) 4 SCC 108 has held as under:

“Thus, the doctrine of delay and laches should not be lightly brushed aside. A writ court is required to weigh the explanation offered and the acceptability of the same. The court should bear in mind that it is exercising an extraordinary and equitable jurisdiction. As a constitutional court it has a duty to protect the rights of the citizens but simultaneously it is to keep itself alive to the primary principle that when an aggrieved person, without adequate reason, approaches the court at his own leisure or pleasure, the Court would be under legal obligation to scrutinize whether the lis at a belated stage should be entertained or not. Be it noted, delay comes in the way of equity. In certain circumstances delay and laches may not be fatal but in most circumstances inordinate delay would only invite disaster for the litigant who knocks at the doors of the Court. Delay reflects inactivity and inaction on the part of a litigant – a litigant who has forgotten the basic norms, namely, ―procrastination is the greatest thief of time‖ and second, law does not permit one to sleep and rise like a phoenix. Delay does bring in hazard and causes injury to the lis.”

In D.C.S. Negi vs. Union of India and Ors. decided on 07.03.2011 in S.L.P. (C) no. 7566/2011 (CC no. 3709/2011), the Hon’ble Supreme Court analysed the provisions of section 21 of the Administrative Tribunals Act, 1985, and held as under:

“A reading of the plain language of the above reproduced section makes it clear that the Tribunal cannot admit on application unless the same is made within the time specified in Clause (a) and (b) of section 21(1) or section 21(2) or an order is passed in term of Sub-section (3) for entertaining the application after the prescribed period. Since section found to have been made within the prescribed period or sufficient cause is shown for not doing so within the prescribed period and an order is passed under section 21(3).”

In Lanka Venkateswarlu (D) by LRs vs State of A.P. and Ors (2011) 4 SCC 363, the Hon’ble Supreme Court held as under:

“28. ………. The concepts such as “liberal approach”, “Justice oriented approach”, “substantial justice” cannot be employed to jettison the substantial law of limitation. Especially, in cases where the court concludes that there is no justification for the delay……..”

In Balwant Singh vs Jagdish Singh and Ors (2010) 8 SCC 685, the Hon’ble Supreme Court of India held on the law of limitation as under:

“26. The law of limitation is a substantive law and has definite consequences on the right and obligation of a party to arise. These principles should be adhered to and applied appropriately depending on the facts and circumstances of a given case. Once a valuable right has accrued in favour of one party as a result of the failure of the other party to explain the delay by showing sufficient cause and its own party. Justice must be done to both parties equally. Then alone the ends of justice can be achieved. If a party has been thoroughly negligent in implementing its rights and remedies, it will be equally unfair to deprive the other party of a valuable right that has accrued to it in law as a result of his action vigilantly.”

The applicant who is now retired from service is claiming retrospective promotion from the date of promotion of juniors who was initially promoted with effect from 1999 onwards to 2017 which cannot be entertained at this stage without hearing others who got promotions during these years. They have not been made party in this OA also. Thus, the present OA lacks merit and deserves to be rejected even on merits. The same is dismissed with no order as to costs.