T.R. Mehta vs Chandigarh Administration, Chandigarh

G.S. Singhvi, J.—The petitioner has invoked jurisdiction of this Court under Article 226 of the Constitution of India with prayer that the letter dated March 2, 1989 issued by the Principal Medical Officer, Chandigarh rejecting his prayer for retrospective promotion on the post of Assistant and orders dated September 1, 1997 and November 4, 1997, passed by the Central Administrative Tribunal, Chandigarh Bench (for short, ''the Tribunal''), dismissing O.A. No. 948-CH-90 and R. A. No. 86 of 1997 filed by him may be declared illegal and quashed. He has also prayed for issue of a mandamus to the official respondents to promote him as Assistant with effect from January, 1977.

The facts necessary for deciding the writ petition are that after being discharged from military service on 22.6.1971, the petitioner was appointed as Clerk-cum-Typist in the services of Union Territory, Chandigarh. After joining the service, he made representations for counting of military service in accordance with the Punjab Government National Emergency (Concession) Rules, 1965 for grant of various service benefits. By an order dated 25.5. ] 987, he was given the benefit of military service from April 29, 1963 to January 10, 1968 for the purpose of deemed appointment, seniority and pay fixation. Accordingly, his appointment on the post or Clerk-cum-Typist was ante-dated and he was deemed to have been appointed with effect from July 29, 1967. Thereafter, he was promoted as Assistant. However, his prayer for being promoted on that post from January, 1977 i.e. the date on which his alleged junior Shri D.P. Gupta had been promoted was rejected.

The petitioner challenged the rejection of his claim for retrospective promotion by filing an application u/s 19 of the Administrative Tribunals Act, 1985 (for short, ''the Act''). He averred that decision contained in the letter dated 2.3.1989 was wholly arbitrary and violative of his fundamental right to equality.

In the written statement filed on behalf of the official respondents before the Tribunal, it was averred that the application filed by the petitioner was barred by limitation. They also contested the petitioner''s claim on merits on the ground that he and Shri D.P. Gupta were in different cadres and, therefore, the promotion accorded to the latter in January 1977 cannot entitle him to claim retrospective promotion on the post of Assistant.

After hearing the counsel for the parties, the Tribunal dismissed the application as time-barred on the premise that the cause of action for claiming promo-lion with effect from the date his so-called juniors were promoted had accrued to the applicant in January, 1977 and the rejection of his representation by the Principal Medical Officer in March, 1989 or pendency of representation dated 8.3.1989 made to the Health-cum-Finance Secretary cannot be made basis for overlooking the limitation prescribed u/s 21 of the Act.

Shri P.S, Patwalia argued that the view taken by the Tribunal on the issue of limitation is per se erroneous and contrary to the scheme of Sections 20 and 21 of the Act and, therefore, the impugned orders be quashed and respondent Nos. 1 to 3 may be directed to promote the petitioner as Assistant with effect from January, 1977. He submitted that the representation dated March 8, 1989, submitted by the petitioner to Health and Finance Secretary, Union Territory Administration, Chandigarh, had not been decided by the concerned authority and, therefore, the application filed by the petitioner on September 5, 1990 should have been treated within limitation by giving him the benefit of longer period of limitation prescribed u/s 21(1)(b) of the Act. Learned counsel also assailed the finding recorded by the Tribunal that Shri D.P. Gupta was not junior to the petitioner so as to entitle him to claim promotion as Assistant with effect from 19.1.1977. He submitted that all employees holding ministerial posts belonged to a common cadre till 1980 and the bifurcation of the cadre brought about in 1980 cannot adversely affect the petitioner''s right to be promoted from the date of promotion of his juniors.

Shri Ajay Tewari supported the impugned orders and submitted that the petitioner cannot take the benefit of longer period of limitation prescribed u/s 21(1)(b) of the Act on the basis of rejection of his representation by the Principal Medical Officer or pendency of the representation dated March 8, 1989. Learned counsel further submitted that the rules and instructions issued by the Chandigarh Administration for regulating the recruitment and conditions of service do not provide for filing of representations in matters relating to seniority, promotion etc. and, therefore, a representation submitted de hors such rules and instructions cannot entitle the petitioner to seek redressal of his grievance by filing an application after the expiry of the prescribed period of limitation.

We have given serious thought to the respective arguments/submissions. In our opinion, the impugned orders do not suffer from any jurisdictionat infirmity or any error of law apparent on the face of the record warranting issue of a writ of certiorari. The parameters for exercise of jurisdiction by the High Court to issue a direction, order or writ in the nature of certiorari are clearly delineated. A writ of certiorari can be issued for correcting an error of jurisdiction or an error of law apparent on the face of the record. An order passed by a quasi-judicial authority, Tribunal or Court will be regarded as vitiated by an error of law if it is contrary to the procedure established by law or the principles of natural justice or the finding of fact recorded by such quashi-judicial authority, Tribunal or the Court is perverse on the ground of non-consideration of material facts or consideration of irrelevant and extraneous factors. However, the mere possibility of the superior Court forming an opinion different than the one formed by the quasi- judicial authority, Tribunal or Court, cannot be regarded as an error of law for the purpose of entertaining a writ of certiorari.

A perusal of the order September 1, 1997 shows that after taking cognizance of the averments made in the application, written statements and other relevant facts, the Tribunal held that the claim made by the petitioner for directing the respondents to promote him as Assistant with retrospective effect was time-barred. The Tribunal also rejected his plea for giving the benefit of extended period of limitation by observing that the rejection of his representation by the Principal Medical Officer or pendency of the representation dated 8.3.1989 submitted to the Health-cum-Finance Secretary was not sufficient to invoke the limitation prescribed u/s 21(1)(b) of the Act. We entirely agree with the Tribunal and hold that the rejection of the petitioner''s representation by the Principal Medical Officer and pendency of the representation submitted by him to the Health-cum-Finance Secretary, Chandigarh Administration, did not give him a cause to seek the benefit of the longer period of limitation, prescribed u/s 21(1)(b) of the Act. Sections 20 and 21 of the Act read as under:-"20. Applications not to be admitted unless other remedies exhausted.

(1) A Tribunal shall not ordinarily admit an application unless it is satisfied that the applicant had availed of all the remedies available to him under the relevant service rules as to redressal of grievances.

(2) For the purpose 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 grievance; or

(b) where no final order has been made by the 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), and remedy available to an applicant by way of submission of a memorial to the President or to the Government of a State or to any other functionary shall not be deemed to be one of the remedies which was available unless the applicant had elected to submit such memorial.

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; ana

(b) no proceedings for the redressed 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) 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." 10. A perusal of the provisions quoted above shows that ordinarily the Tribunal cannot admit an application filed u/s 19 unless it is satisfied that the applicant had availed of all the remedies available to him under the relevant service rules as to redressal of grievances [Section 20(1)]. The expression "service rules as to redressal of grievances" has been defined in Section 2(r) to mean rules, regulations, order or other instruments or arrangements as in force for the time being with respect to redressal of grievances in relation to any of the service matters defined in Section 3(q). Clause (a) of sub-section (2) of Section 20 lays down that for the purpose of sub-sect ion (1), a person shall be deemed to have availed of all the remedies available to him under the relevant service rules 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 the aggrieved person. Clause (b) of sub-section (2) of Section 20 deals with the cases in which no final order has been made by the government or other competent authority. It lays down that if final order is passed by the government or other authority or officer or any other person competent to pass such order on the appeal preferred or representation made by the employee within six months from the date on which such appeal was preferred or representation made, then the employee will be deemed to have exhausted the alternative remedies available to him under the relevant service rules etc. Section 21 of the Act prescribes the period of limitation for filing of an application. It is couched in negative language. Clause (a) of sub-section (1) of Section 21 lays down that the Tribunal shall not admit an application unless the same is filed within one year from the date of passing of final order in terms of clause (a) of sub-section (2) of Section 20. Clause (b) of Section 21(1) prescribes the longer period of limitation for cases covered by clause (b) of Section 20(2). Sub-section (3) of Section 21 empowers the Tribunal to condone the delay if the applicant satisfies it that he had sufficient cause for not filing the application within the stipulated period.

In view of the above analysis of relevant statutory provisions, we have no hesitation to hold that an employee aggrieved by the action or decision of the government or the competent authority, affecting any of his service matters, can take advantage of the longer period of limitation prescribed under clause (b) of Section 21(1) only if it is shown that he had filed an appeal or made a representation in accordance with the service ruics framed for redressal of grievance and such appeal or representation has not been decided within six months. In other words, an appeal filed or representation made de hors the rules, regulations, orders or other instruments which provide for redressal of grievance cannot entitle the employee to claim the benefit of limitation in terms of clause (b) of Section 21(1).

In the present case, it has not been shown that the representation dated March 8, 1989 was made by the petitioner under the relevant service rules etc. Therefore, he cannot take advantage of the period of limitation prescribed u/s 21(l)(b) of the Act.

We are further of the view that even if the petitioner is given benefit of the time consumed in the decision of representation dated November 25, 1988, the application filed by him on September 5, 1999, i.e., after more than one year of the rejection of the said representation was clearly time-barred and the Tribunal did not commit any legal error by refusing to entertain the same.

For the reasons mentioned above, the writ petition is dismissed.

Petition dismissed.