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2003 DIGILAW 907 (KAR)

M. F. PASHA v. UNION OF INDIA

2003-10-30

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RAVEENDRAN, J. ( 1 ) PETITIONER joined the services in the year 1977 as a Deputy Superintendent of Police. He was promoted to Superintendent of Police in the year 1984. ( 2 ) THE Selection Committee to prepare the select list of 1986 for promotion of IPS (Karnataka Cadre) under the IPS (Appointment by promotion) Regulation 1955) met on 5-12-1986. In view of certain adverse remarks in the ACRs for the year 1981-82, the petitioner was not included in the select list for 1986. In view of a direction of Central Administrative Tribunal, the recommendations of the Selection Committee was reviewed by a Review Selection Committee on 2-9-1989. The Review Selection Committee considered the case of petitioner who was at Sl. No. 3 of the eligibility list for inclusion in select list for 1986. On an overall relative assessment, the Review Selection Committee assessed the petitioner as unfit and did not include his name in the select list of 1986. ( 3 ) THE representation for expunction of adverse remarks for 1981-82, had been rejected by the State Government on 22-9-1984. However subsequently on considering petitioners application dated 8-2-1988 for review, the State Government by orders dated 27-11-1989 and 8-12-1989, held that the adverse remarks for 1981-82 were only advisory and not adverse and that the remarks in regard to 1982-83, were also advisory. ( 4 ) THE Selection Committee to prepare the Selection List of 1990, met on 16-2-1990 and considered the case of petitioner and selected him, as per Notification dated 28-12-1990, and he was confirmed in the IPS as per Government of India Notification dated 13-12-1991. ( 5 ) THE Grievance of the petitioner is that his name was not included in the select list of 1986 in view of the adverse remarks entered for the years 1981-82; and as the said adverse remarks were subsequently held to be only advisory, his case should be reviewed for inclusion in the select list of 1986. He therefore gave representations dated 18-11-1998, 21-9-1999 and 10-8-2000 whereby he requested that a Review Selection Committee be constituted for review of his case in regard to the selections made on 5-12-1986 and re-done on 2-9-1989 and promote him with retrospective effect from the date on which his junior Khaleel Ur-Rehman and three others were promoted with all consequential benefits, including restoration of seniority and grant of monetary benefits. The said representation given to the State Government was forwarded to the UPSC. UPSC by communication dated 14-11-2000 rejected the request to review the selection list of 1986. The decision of UPSC was communicated by the State Government to the appellant by letter dated 30-11-2000. Feeling aggrieved, petitioner approached the Central Administrative Tribunal, Bangalore Bench in O. A,no. 526/2001 for quashing the order of UPSC dated 14. 11-2000 and seeking a direction to respondents to consider his case to promote him to IPS as per IPS (Appointment by Promotion) Regulations, 1955 by including his name in the selection list of 1986 by reconstituting the Review Selection Committee with all consequential benefits. ( 6 ) THE Tribunal by order dated 3-12-2001 dismissed the application, on the ground that it is barred by limitation. The Tribunal also held that the application filed without impleading necessary and proper parties, was not maintainable. The said order of the Tribunal is challenged by the petitioner in this petition. ( 7 ) THE petitioner contends that the application was filed within one year from the date of communication of the order dated 14-11-2000 passed by Second Respondent (UPSC) and therefore the application could not have been dismissed as barred by limitation. Relying on Section 21 (1) read with Section 20 (2) of the Administrative Tribunals Act, 1985 (Act for short), the petitioner put forth the following contention: (i) The period of limitation of one year should be reckoned with reference to the availment of the remedy of appeal/representation provided as redressal for the grievance (that is, from the date of order rejecting the appeal/representation where an order is made, or from the date of expiry of six months from the date on which the appeal was preferred or representation is made, where no final order is passed) and not with reference to the date of the order or cause for the grievance. Alternatively (ii) The limitation of one year is prescribed under Section 21 (1) only in regard matters where the Rules prescribe a remedy by way of an appeal or representation, in respect of the grievance. If the Rules do not provide for an appeal or representation as remedy, then the limitation prescribed under Section 21 will be inapplicable and as there is no other provision in the Act prescribing any period of limitation there will be no limitation for approaching the Tribunal. If the Rules do not provide for an appeal or representation as remedy, then the limitation prescribed under Section 21 will be inapplicable and as there is no other provision in the Act prescribing any period of limitation there will be no limitation for approaching the Tribunal. It is therefore contented that the application filed by the petitioner before the Tribunal, within one year from the date of the order dated 1-11-2000 (the date of rejection of the representation for review of rejection list of 1986) could not have been dismissed as barred by time. ( 8 ) SUB-SECTION (1) of Section 21 of the Act, dealing with Limitation reads thus:" (1) A Tribunal shall not admit an application, (a) in a case where a final order such as is mentioned in cause (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 the said period of six months. Sub-Sections (1) and (2) of Section 20 which are relevant in the context are extracted below: (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. Sub-Sections (1) and (2) of Section 20 which are relevant in the context are extracted below: (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 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 grievance,- (a) if a final order has been made by 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. "it is no doubt true that, a combined reading of Section 21 (1) lead with Section 20 (1) and (2) of the Act, makes it clear that where a remedy by way of preferring an appeal or by making a representation is provided under the Rules, the cause of action is deemed to arise for the purpose of reckoning the period of limitation of one year, not from the date of the original adverse order, or grievance, but on the date when the competent authority (to whom the appeal or representation is made under the Rules) makes an adverse final order on the appeal or representation. Where no final order is passed by such authority, within six months, the one year period is reckoned from the date of expiry of six months, that is eighteen months from the date of preferring such appeal or making such representation. But what is relevant and important is that such appeal or representation to the competent authority provided under the Rules, should have been preferred within the Period prescribed. But what is relevant and important is that such appeal or representation to the competent authority provided under the Rules, should have been preferred within the Period prescribed. For example if the Rules provide that the appeal or representation should be made within three months, an aggrieved employee cannot file the appeal or representation after two years and then contend that the period of limitation of one year should be reckoned from the date of rejection of such belated appeal or representation. ( 9 ) BUT what is the position where the Rules do not provide for the remedy of an appeal or representation against the adverse order or grievance? This in turn gives rise to two questions: (i) When does the cause of action arise in such cases? (ii) Whether the provision for limitation apply to such cases. ?"9. 1) Where the Rules do not provide for filing of an appeal or making of a representation to a higher authority the cause of action would be the date of adverse order (or occurrence of the cause for grievance) itself. The Supreme Court has pointed out that where the Rules do not provide for filing an appeal or making a representation to a higher authority, submission of a representation or repeated unsuccessful representations will not furnish or extend the cause of action (vide S. S. RATHORE vs STATE OF MADHYA PRADESH, AIR 1990 SC 10 ). Representations not contemplated or provided for in law cannot obviously furnish a cause of action. 9. 2) Section 21 refers only to cases where the Rules provide for an appeal or representation. There is no specific reference to grievances or orders in regard to which the Rules do not provide for a remedy by way of appeal or representation. The scheme of the Act is to ensure that the aggrieved person exhausts the remedy invariably provided under the Service Rules (either by way of appeal or representation to a Competent Authority), before he approaches the Tribunal. It is in that context that the period of limitation is reckoned with reference to availing of such remedy provided under the Rules. But it does not mean that the Legislature did not intend to prescribe any period of limitation in regard to applications filed before the Tribunal relating to orders against which the Rules did not provide a remedy by way of appeal or representation. But it does not mean that the Legislature did not intend to prescribe any period of limitation in regard to applications filed before the Tribunal relating to orders against which the Rules did not provide a remedy by way of appeal or representation. The legislative intent is to prescribe a limitation of one year from the date of cause of action to approach the Tribunal. Section 21 only enables the aggrieved person to treat the date of rejection of appeal/representation (or date of expiry of six months from the date of filing, where such appeal/representation is not disposed of by any final order) as the date of cause of action for reckoning the period of limitation. If the Service Rules do not provide for any remedy by way of appeal or representation then there win be no postponing of the date of cause of action and the period of one year shall have to be reckoned in the normal manner, that is, from the date of the adverse order. 9. 3) Even assuming that on a strict or narrow construction of Section 21, the provision for limitation is restricted only to orders or grievances for which the Service Rules provide a remedy by way of appeal or representation, and not to other grievances, the position will not be much different, as in that event, the principle of delay and laches will apply. Applications seeking relief in respect of grievances will have be rejected on the ground of delay or laches, if the aggrieved person does not approach within a reasonable time. Having regard to the legislative indication in Section 21, such reasonable time, can be taken as one year from the date of the cause for the grievance. 9. 4) We are also conscious of the fact that there may be categories of cases where Section 21 may not apply. One is where the application challenges the vires of any Rules, The second is where applicant may approach a Tribunal not being aggrieved by any adverse order of action, but being aggrieved by the inaction on the part of the employer, in which case Section 21 may not apply and the principle of delay and laches will apply. " ( 10 ) IN this context we may refer to three decisions of the Supreme Court which deal with limitation, delay and laches. "10. " ( 10 ) IN this context we may refer to three decisions of the Supreme Court which deal with limitation, delay and laches. "10. 1) In BHOOP SINGH vs. UNION OF INDIA, ( AIR 1992 SC. 1414 ) the Supreme Court observed thus: it is expected of a Government servant who has a legitimate claim to approach the Court for the relief he seeks within a reasonable period assuming no fixed period of limitation applies. This is necessary to avoid dislocating the administrative set-up after it has been functioning on a certain basis for years. During the interregnum those who have been working gain more experience and acquire rights which cannot be defeated casually by collateral entry of a person at a higher point without the benefit of actual experience during the period of his absence when he chose to remain silent for years before making the claim. There is another aspect of the matter. In ordinate and unexplained delay or laches is by itself a ground to refuse relief to the petitioner irrespective of the merit of his claim. If a person entitled to a relief chooses to remain silent for long he thereby gives rise to a reasonable belief in the mind of others that he is not interested in claiming that relief. 10. 2) Dealing with a matter where seniority dispute was raised after more than a decade, the Supreme Court is B S BAJWA vs STATE OF PUNJAB, (1998[2] SCC 523) held thus: the undisputed facts appearing from the record are alone sufficient to dismiss the writ petition on the ground of laches because the grievance was made by B S Bajwa and B D Gupta only in 1984 which was long after they had entered the department in 1971-72. During this entire period of more than a decade they were as long treated as junior to the other aforesaid persons and the rights inter se had crystallised which ought not to have been reopened after the lapse of such a long period. At every stage others were promoted before B S Bajwa and B D Gupta and this position was known to B S Bajwa and B D Gupta right from the beginning as found by the Division Bench itself. At every stage others were promoted before B S Bajwa and B D Gupta and this position was known to B S Bajwa and B D Gupta right from the beginning as found by the Division Bench itself. It is well settled that in service matters the question of seniority should not be reopened in such situations after the lapse of a reasonable period because that results in disturbing the settled position which is not justifiable. There was inordinate delay in the present case for making such a grievance. This alone was sufficient to decline interference under Article 226 and to reject the writ petition. 10. 3) Dealing with a matter relating wrong fixation of pay, the Supreme Court in M. R. GUPTA VS UNION OF INDIA, ( AIR 1996 SC 669 ) observed thus: the appellants grievance that his pay fixation was not in accordance with the rules, was the assertion of a continuing wrong against him which gave rise to a recurring cause of action each time he was paid a salary which was not computed in accordance with the roles. So long as the appellant is in service, a fresh cause of action arises every month when he is paid his monthly salary on the basis of a wrong computation made contrary to rules. It is not doubt true that if the appellants claim is found correct on merits, he would be entitled to be paid according to the properly fixed pay scale in the future and the question of limitation would arise for recovery of the arrears for the past period. In other words, the appellants claim, if any, for recovery of arrears calculated On the basis of difference in the pay which has become time barred would not be recoverable, but he would be entitled to proper fixation of his pay in accordance with rules and to cessation of a continuing wrong if on merits his claim is justified. Similarly, any other consequential relief claimed by him, such as promotion etc. , would also be subject to the defence of laches etc. to disentitle him to those reliefs. Similarly, any other consequential relief claimed by him, such as promotion etc. , would also be subject to the defence of laches etc. to disentitle him to those reliefs. "the Supreme Court also made a distinction between causes like termination from service or imposition of punishment which furnish a one time cause of action and causes like wrong pay fixation which is a continuous wrong which subsists during the entire tenure of service furnishing a recurring cause of action every month when the salary is incorrectly computed. ( 11 ) THE position may be summarized thus: a) Where the Service Rules provide for a remedy by way of an appeal or a representation to a competent authority, then, the period of limitation will be one year from the date of final order rejecting the appeal/representation. Where the appeal representation is not disposed of by a final order within six months from the date of presentation of such appeal or representation, the period of limitation with be one year from the date of expiry of such six months, that is, 18 months from the date of filing of appeal/representation. b) Where the Service Rules do not provide any remedy by way of an appeal or a representation against a final order, the period of limitation for approaching the Tribunal will be one year from the date of such a final order. c) Where the grievance is in regard to inaction on the part of the employer or failure on the part of the employer to give a relief or benefit to the employee which is alleged to be due to the employee, though there is no limitation, the doctrine of delay and laches will apply and applicants who are not diligent will be refused relief. ( 12 ) COMING to the facts of this case, the Selection Committee which met on 16-2-1990 considered the case of the petitioner and promoted him to IPS considering him for selection list of 1990. That was notified on 28-12-1990. By then the State Government had passed the orders dated 27-11-1989 and 8-12-1989 holding that adverse remarks for the years 1981-82 and 1982. 83 were only advisory. Therefore, the cause of action for the petitioners claim that he should be considered against the selection list of 1986 arose in the year 1990. For eight long years petitioner did not do anything. 83 were only advisory. Therefore, the cause of action for the petitioners claim that he should be considered against the selection list of 1986 arose in the year 1990. For eight long years petitioner did not do anything. The fact that the petitioner gave a representation in 1998, 1999 and 2000 or that the representations were rejected in 2000, will not therefore mean that cause of action arose in the year 2000 and that an application before the Tribunal could be filed in 2001. ( 13 ) IF the belated claim of the petitioner has to be entertained it will upset promotions already made over a number of years and settled administrative position. The Tribunal has rightly held that giving representations in the year 1998 will not entitle him to relief, in regard to a matter which attained finality in 1990. We find no reason to interfere with the order of the Tribunal Petition is therefore rejected at the stage of Preliminary hearing. --- *** --- .