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2007 DIGILAW 296 (CAL)

PRAKASH MURLIDHAR TEJALE v. UNION OF INDIA

2007-04-18

BHASKAR BHATTACHARYA, KISHORE KUMAR PRASAD

body2007
BHASKAR BHATTACHARYA, J. ( 1 ) THIS application under Article 226/227 of the Constitution of India is at the instance of one of the respondents in an application under section 19 of the Administrative Tribunals Act ("act") and is directed against order dated January 2, 2007 passed by the Central administrative Tribunal, Calcutta Bench, in O. A. No. 73 of 2006 heard analogously with O. A. No. 164 of 2006, thereby allowing those original applications and setting aside the promotion of the present writ petitioner to the post of the Senior Deputy Director General (Scientific and Technical support Service) of the Geological Survey of India ("g. S.. " ). Consequently, the order dated 29th November, 2004 and other order dated 30th December, 2005 were also quashed. The employer was directed to act strictly according to the Rules prevalent at the time when the vacancy arose by convening a new D. P. C. with further direction that such exercise should be completed within a period of ninety days from the date of communication of the said order. ( 2 ) BEING dissatisfied, the respondent No. 5 before the Tribunal, whose appointment was set aside, has come up with the present writ application. ( 3 ) THE facts giving rise to filing of the present writ application may be summarized thus: (a) One Dr. Mrinal Kanti Mukhopadhyay, the respondent No. 5 herein, working as Senior Deputy Director General (Operations) G. S. I, filed o. A. No. 73 of 2006 before the Tribunal thereby challenging the action of the employer to consider Shri Prakash Murlidhar Tejale (hereinafter called Tejale), the petitioner before us, for the post of director General, G. S. I by holding a D. P. C. in 2005 and showing him to be the only eligible officer for promotion to the said post. His allegation was that Tejale was not at all eligible to be considered for the said post in terms of the Recruitment Rules as he originally belonged to the Geophysics Instrumentation Cadre and was last holding the post of the Deputy Director General (Geo-Physics instrument) wherefrom there could be no promotion to the post of senior Deputy Director General (Scientific and Technical Support service ). According to the applicant, he was holding the post of Senior deputy Director General (Operations) and being a member of the mainstream of Geological Cadre, he had the eligibility for consideration of promotion to the post of Director General. He alleged that he was not considered to the post of Director General, G. S. I, on the ground that Tejale was promoted to the grade of Senior Deputy Director general at an earlier point of time though in fact the latter could not have been considered for promotion to the grade of Senior Deputy director General (Scientific and Technical Support Services ). (b) In the past, the respondent No. 5 had filed another application under section 19 of the Act being O. A. No. 1069 of 2005 which was disposed of by the Tribunal by its order dated September 30, 2005 by directing the employer to complete the D. P. C. proceeding for filling up the post of Director General, G. S. I, and the connected process within a period of three months from the date of communication of that order in accordance with law, keeping in view, the various Government orders and instructions including that of DOPT contained in the letter dated october 25, 2004. The Tribunal further directed the employer not to disturb the interim arrangement made for looking after the duties to the post of D. G. , G. S. I, by the respondent No. 5. The Tribunal, however, did not' decide the question of seniority in dispute and left it to the Government to decide in a fair and just manner. (c) By filing the subsequent application before the Tribunal, out of which the present writ application arises, the respondent No. 5 contended that the promotion of Tejale to the grade of Senior Deputy Director general was illegal as the post of Deputy Director General (Geo- physics Instrumentation) is not a feeder post for promotion as would appear from the relevant Recruitment Rules which were amended by the Government vide notification dated 24th May, 2004. He, therefore, prayed for quashing of the order of promotion dated October 11, 2004 by which Tejale was granted promotion to the post of Senior Deputy director General (Scientific and Technical Support Service ). He also prayed for a direction upon the employer to confer on him, the additional charge to the post of D. G. , G. S.. He, therefore, prayed for quashing of the order of promotion dated October 11, 2004 by which Tejale was granted promotion to the post of Senior Deputy director General (Scientific and Technical Support Service ). He also prayed for a direction upon the employer to confer on him, the additional charge to the post of D. G. , G. S.. (d) The employer and the present writ petitioner had opposed the application by filing separate reply wherein they took the point of limitation by pointing out that Tejale having been promoted on 11th october, 2004 to the post of Senior Deputy Director (Scientific and technical Support Service), the application under section 19 of the act was filed long after the period of one year as prescribed under section 21 of the Act and as such, the same should be dismissed as barred by limitation. It was further contended that the applicant without availing all the departmental remedies available to him could not approach the Tribunal. (e) On the merit of the case, the employer as well as the present writ petitioner contended that the stream of Geo-Physics and Engineering in the G. S. I, had been merged on the basis of recommendation of the fifth Central Pay Commission and in paragraph 76. 9 of the said report, the Commission had recommended the merged of the disciplines of the Geo-Physics Instrumentation and Mineral Physics cadre to only one discipline. e. General Physic and similarly, the Discipline of electrical Engineering and the Mechanical Engineering were advised to be merged to one discipline. e. Engineering. They further contended that such concept had been taken into consideration for the promotion to the post of Senior Deputy Director General (Scientific and Technical support Service) and had also been notified in the Recruitment Rules for the post of Senior Deputy Director General (Scientific and Technical support Service) along with existing Rules for promotion to the post of Director General by making Senior Deputy Director General (Operations) and Senior Deputy Director General (Scientific and technical Support Service) as feeder cadres. They also contended that as Tejale had more than five years combined service in the Senior deputy Director General (Scientific and Technical Support Service) and Deputy Director General (Gee-Physics ). They also contended that as Tejale had more than five years combined service in the Senior deputy Director General (Scientific and Technical Support Service) and Deputy Director General (Gee-Physics ). e. the merged discipline of Geo-Physics Instrumentation and Mineral Physics as on 1st January, 2005, the crucial date, being the 1st January, of the year of vacancy, he had satisfied the eligibility condition of the Recruitment Rules. (f) It appears from the record that the respondent No. 5 retired with effect from 31st March, 2006 and few days earlier, one Bijan Kumar sana, the respondent No. 6 herein, filed a separate application thereby praying for the self-same relief claimed by Dr. Mukhopadhyay and the said application gave rise to Original Application No. 164 of 2006. ( 4 ) BOTH the previously mentioned original application, one filed by the respondent No. 5 and the other, by the respondent No. 6, were taken up together for hearing and as pointed out earlier, the Tribunal by a common order has allowed those applications. ( 5 ) BEING dissatisfied, Tejale has come up with the present application under Article 226/227 of the Constitution of India. ( 6 ) MR. Basu, the learned Senior Advocate appearing on behalf of the writ petitioner, before entering into the merit of the matter, has taken three preliminary objections regarding maintainability of the applications before the Tribunal. First, according to Mr. Basu, the learned Tribunal totally overlooked the fact that the applications were patently barred by limitation, inasmuch as, the appointment of the writ petitioner as Senior Deputy Director general (Scientific and Technical Support Service) dated 11th October, 2004 was challenged by filing the first application before the Tribunal in the month of January, 2006, and the second one in the month of March 2006, long after the period of limitation fixed by the Act. Secondly, Mr. Basu contends that the Tribunal below totally overlooked the fact that neither Dr. Mukhopadhyay nor Sri Saha had the locus standi to challenge the order appointing his client as Director General, G. S.. Secondly, Mr. Basu contends that the Tribunal below totally overlooked the fact that neither Dr. Mukhopadhyay nor Sri Saha had the locus standi to challenge the order appointing his client as Director General, G. S.. , inasmuch as, they had not the requisite qualification of becoming the Director General which requires that one must be holding the post of Senior Deputy Director General (Operation) or the senior Deputy Director General (Scientific and Technical Support Service) for two years as on January 1, of the year in which the post falls vacant or five years combined service in the grade of Deputy Director General and senior Deputy Director General in any of the branches. Thirdly, Mr. Basu contends that the respondent No. 5, at any rate, could not proceed with the application before the Tribunal any further after his retirement. Similarly, mr. Basu contends that there was no justification of entertaining the second application filed by the respondent No. 6 in the month of March, 2006 as the same was liable to be dismissed on all the aforesaid grounds. Mr. Basu points out that even the respondent No. 6 had also retired on 30th November, 2006 during the pendency of the application before the Tribunal and thus, after the retirement of the applicants, both the applications, became infructuous. ( 7 ) ON merit, Mr. Basu contends that the learned Tribunal failed to appreciate that the vacancy in the grade of Senior Deputy Director General (Scientific and Technical Support Service) occurred on 1st March, 2004 which was after the amendment of Recruitment Rule and the promotion of the writ petitioner to the grade of Senior Deputy Director General (Scientific and Technical Support Service) took place according to the amendment of recruitment Rules on 11th October, 2004. According to Mr. Basu, there was merger of the disciplines as soon as the amendment of the Recruitment rules was notified for the post of Senior Deputy Director General and Director general in Geological Survey of India on the basis of merged scenario. Mr. Basu, therefore, contends that even according to the amended Rules, his client was entitled to get promotion not only as the Senior Deputy Director general (Scientific and Technical Support Service) but the same was also a feeder post of promotion to the post of Director General. Mr. Mr. Basu, therefore, contends that even according to the amended Rules, his client was entitled to get promotion not only as the Senior Deputy Director general (Scientific and Technical Support Service) but the same was also a feeder post of promotion to the post of Director General. Mr. Basu further draws attention of this Court to the fact that his client has during the pendency of the application before the Tribunal been regularly appointed as the Director General of the G. S. I, on November 7, 2006 and the said order passed by the appropriate authority remained unchallenged. Mr. Basu, therefore, prays for setting aside the order passed by the Tribunal. ( 8 ) MR. Samanta, the learned Advocate appearing on behalf of the private respondents, however, supported the order passed by the Tribunal and contended that after the amendment of Rules, there was no scope of giving promotion to Tejale for the post of the Director General as he could not lawfully hold the post of the Senior Deputy Director General (Scientific and technical Support Service ). ( 9 ) AS regards the question of limitation, Mr. Samanta contends that his client, on November 8, 2005, had filed a representation before the employer challenging the eligibility of Tejale for the post of D. G. and the said representation not having been disposed of within six months his client filed the application before the Tribunal within the period of limitation. As regards the question of locus standi raised by Mr. Basu, Mr. Samanta contends that his client may not have the requisite qualification of becoming the Director General of G. S. I, but could legitimately contend that being the senior most Deputy Director General holding the feeder post was entitled to continue as the Acting Director General, Mr. Samanta further contends that even if his client had no locus standi, the Tribunal was entitled to pass an order of quo warranto as the writ petitioner was unauthorizedly holding a civil post in the Government and in that case, the question of locus standi becomes inconsequential. Mr. Samanta, therefore, prays for dismissal of the present writ application. ( 10 ) MR. Panda, the learned Advocate appearing on behalf of the Union of india, the employer, has adopted the argument advanced by Mr. Basu and has supported the writ petitioner. Mr. Samanta, therefore, prays for dismissal of the present writ application. ( 10 ) MR. Panda, the learned Advocate appearing on behalf of the Union of india, the employer, has adopted the argument advanced by Mr. Basu and has supported the writ petitioner. ( 11 ) THEREFORE, the first question that arises for determination in this application is whether the two separate applications, filed by the respondent nos. 5 and 6 respectively, were barred by limitation. By those applications, the respondent Nos. 5 and 6 challenged the appointment of Tejale to the post of Senior Deputy Director General (Scientific and Technical Support service) and his consequent eligibility to become the D. G. The appointment to the said post was made in 11th October, 2004 whereas the application under section 19 of the Act was filed by the respondent No. 5 in the month of January, 2006 without any prayer for condonation of delay. According to section 21 of the Act, the period of limitation is one year from the date of passing of the order. Similarly, the other application filed by the respondent no. 6 claiming the selfsame relief was filed in the month of March, 2006. Both the applications, therefore, were filed beyond the period of limitation fixed by the statute. In this connection, Mr. Samanta tried to impress upon us that his client, the respondent No. 5, gave a representation on November 8, 2005, but such representation was not disposed of, and as such, the period of limitation should start after expiry of six months from the date of filing of the representation. After going through the said representation, we find that in the said representation, the respondent No. 5 never prayed for reversion of Tejale from the post of Senior Deputy Director General (Scientific and Technical Support Service); moreover, the promotion to the post of senior Deputy Director General (Scientific and Technical Support Service) to Tejale was given on October 11, 2004 and the so-called representation was given on November 8, 2005 after the period of limitation for filing the application before the Tribunal and already expired. Therefore, by merely giving a representation, the period of limitation for filing the application challenging the promotion of Tejale to the post of Senior Deputy Director general cannot be extended. The respondent No. 6 even did not claim to have made any such representation. Therefore, by merely giving a representation, the period of limitation for filing the application challenging the promotion of Tejale to the post of Senior Deputy Director general cannot be extended. The respondent No. 6 even did not claim to have made any such representation. Therefore, both the application are liable to be dismissed on the ground of limitation. It is now a settled law that if an application is filed beyond the period of limitation fixed by law and is not accompanied by any application for condonation of delay, the Tribunal is left with no other alternative but to dismiss the application as barred by limitation without entering into the merit of the matter. So long the delay was not condoned the main application was non est in the eye of law. In the case before us, we are surprised to find that although the point of limitation was very much taken by the writ-petitioner before the Tribunal and the tribunal recorded such objection in the order impugned itself, yet, did not feel the necessity of answering that question and proceeded to enter into the merit of the matter. Therefore, the order passed by the Tribunal is liable to be dismissed on that ground alone. ( 12 ) THE second question is whether the respondent Nos. 5 and 6 had even the locus standi to challenge the appointment of Tejale to the post of senior Deputy Director General (Scientific and Technical Support Service ). It appears from record that both the respondent Nos. 5 and 6 were Deputy director General (Geology) and they had no right to be promoted to the post of Senior Deputy Director General (Scientific and Technical Support Service), the post previously held by Tejale. Therefore, they are in no way aggrieved by the said order and consequently, cannot lawfully challenge the said promotion of Tejale. Even if we accept the submission of Mr. Therefore, they are in no way aggrieved by the said order and consequently, cannot lawfully challenge the said promotion of Tejale. Even if we accept the submission of Mr. Samanta that the promotion to the post of Senior Deputy Director General (Scientific and technical Support Service) being a stepping-stone for the post of Director general, his clients are entitled to challenge the appointment of Tejale to such post, we are of the view that for the purpose of becoming the Director general, the incumbent must hold the post of the Deputy Director General and Senior Deputy Director General of any category at least for a combined period of five years or must hold the post of Senior Deputy Director for a period of two years as on January 1, 2005 in the facts of the present case when the respondent employer started the process of selection of the D. G. The respondent Nos. 5 and 6 were appointed to the post of Deputy Director general on January 1, 2004 and were appointed to the post of Senior Deputy director General on August 18, 2005 and January 1, 2006 respectively whereas they crossed the normal age of superannuation on March 31, 2006 and November 30, 2006 respectively. Therefore, the respondent Nos. 5 and 6, could not, at any rate, become eligible for the post of Director General and as such, even could not remotely get the locus standi to challenge the appointment of Tejale to the post of Senior Deputy Director General (Scientific and Technical Support Service ). ( 13 ) MR. Samanta, in this connection drew our attention to the prayer portion of the application under section 19 of the Act filed by the respondent no. 6 and submitted that he having prayed for issue of a writ in the nature of quo marranto, the concept of locus standi its significance. According to mr. Samanta, for the purpose of getting a relief for a writ in the nature of quo marranto, all that is necessary is that it should be proved that a person having no qualification is holding a civil post under the Government and it is not necessary to show that by virtue of such appointment, any of the legal or fundamental rights of the applicant has been infringed. ( 14 ) THE answer to the aforesaid question advanced by Mr. Samanta is simple. ( 14 ) THE answer to the aforesaid question advanced by Mr. Samanta is simple. As pointed out by the Apex Court in the case of B. Srinivasa Reddy vs. K. U. Water Supply and Drainage Board Employees Association, reported in AIR 2006 SC 3106 , the writ of quo warranto being one in the nature of a public interest litigation cannot be maintained by a person having personal interest in the litigation. In this connection, the following observations of the Court are relevant: "a petition praying for a writ of quo warranto being in the nature of public interest litigation, it is not maintainable at the instance of a person who is not unbiased. The second respondent is the President of the first respondent-Union. He has chosen this forum to settle personal scores against his erstwhile superior officer after his retirement. The proceedings, in our view, is not meant to settle personal scores by an employee of the department. The High Court, in our view, ought to have dismissed the writ petition filed by respondent No. 1 at the threshold. " ( 15 ) IN the case before us, the specific claim of the respondent Nos. 5 and 6 is that they should be appointed to the post of D. G. as the writ petitioner could not under the law hold the feeder post. Therefore, at their instance no writ in the nature of quo warranto can be issued. ( 16 ) MOREOVER, the fact that the Tribunal constituted under the Act cannot entertain a public interest litigation has already been held by the Apex court in the case of Duryodhan Shau and Ors. vs. Jitendra Kumar Misra and ors. , reported in AIR 1999 SC 114 . It will not be out of place to refer to the following observation of the Supreme Court in the aforesaid case: "the constitution of Administrative Tribunals was necessitated because of large pendency of cases relating to service matters in various Courts in the country. vs. Jitendra Kumar Misra and ors. , reported in AIR 1999 SC 114 . It will not be out of place to refer to the following observation of the Supreme Court in the aforesaid case: "the constitution of Administrative Tribunals was necessitated because of large pendency of cases relating to service matters in various Courts in the country. It was expected that the setting up of Administrative tribunals to deal exclusively in service matters would go a long way in not only reducing the burden of the Courts but also provide to the persons covered by the Tribunals speedy relief in respect of their grievances.- the basic idea as evident from the various provisions of the Act is that the Tribunal should quickly redress the grievances in relation to service matters. The definition of 'service matters' found in section 3 (q) shows that in relation to a person the expression means all service matters relating to the conditions of his service. The significance of the word 'his' cannot be ignored. Section 3 (b) defines the word 'application' as an application made under section 19. The latter section refers to 'person aggrieved'. In order to bring a matter before the Tribunal, an application has to be made and the same can be made only by a person aggrieved by any order pertaining to any matter within the jurisdiction of the Tribunal. We have already seen that the word 'order' has been defined in the explanation to sub-section (1) of section 19 so that all matters referred to in section 3 (q) as service matters could be brought before the Tribunal. If in that context, sections 14 and 15 are read, there is no doubt that a total stranger to the concerned service cannot make an application before the Tribunal. If public interest litigations at the instance of strangers are allowed to be entertained by the Tribunal the very object of speedy disposal of service matters would get defeated. " ( 17 ) THEREFORE, in order to succeed in an application under section 19 of the Act, it must be shown that unless the order impugned is set aside, the right of the applicant will be infringed. In the case before us, the respondent nos. " ( 17 ) THEREFORE, in order to succeed in an application under section 19 of the Act, it must be shown that unless the order impugned is set aside, the right of the applicant will be infringed. In the case before us, the respondent nos. 5 and 6 having failed to attain the qualification of becoming the Director general even at the time of their retirement from the service, the application under section 19 of the Act was not maintainable at their instance. We, therefore, find no substance in the aforesaid contention of Mr. Samanta. ( 18 ) THE next point that arises for consideration is whether after the retirement of the respondent Nos. 5 and 6 during the pendency of their applications before the Tribunal, the applications filed by them under section 19 of the Act could continue any further even if we assume for the sake of argument that the applicants had the locus standi to present those applications and that those applications were not barred by limitation. ( 19 ) IN order to maintain an application under section 19 of the Act, the applicant must be an aggrieved person by the decision of the employer relating to his service matter. Even if we accept the contention of Mr. Samanta that at the time of presentation of the application, they had the locus standi to maintain the application, the moment they crossed the age of superannuation, they ceased to be an aggrieved person and at their instance, the application was no more maintainable. A Tribunal vested with the authority to entertain an application under section 19 of the Act involving a dispute as regards the eligibility of a person to hold a post in the Government service on the ground that the person selected is less qualified than the applicant cannot proceed with the application if the applicant retires in due course in the meantime for the simple reason that even if the applicant had a good case at the beginning, the ultimate relief claiming the post cannot be given to him any more. It is now a settled law that the right to challenge the alleged illegal order must not only exist at the time of presentation of the application but should also subsist till the disposal of the application if the dispute relates to a better claim of a civil post on the basis of qualification fixed by law. Moreover, none of the respondent Nos. 5 and 6 challenged the subsequent regular appointment of the petitioner passed on. November 7, 2006 in the post of the Director General of the Geological Survey of India pursuant to an order passed by this Court in a different writ-application being COCT No. 1 of 2006 by filing any application under section 19 of the act. Therefore, the applications before the Tribunal filed by the respondent nos. 5 and 6 were liable to be dismissed on those preliminary grounds. ( 20 ) HAVING found that the two applications filed by the respondent Nos. 5 and 6 before the Tribunal are not only barred by limitation but were also not maintainable on the ground of absence of locus standi and at the same time, those applications could not even continue after the retirement of those respondents, we find no reason to enter into the merit of the claim of the respondents Nos. 5 and 6 particularly when the employer has by an order dated November 7, 2006 appointed the petitioner as D. G. pursuant to the direction given by this Court in COCT No. 1 of 2006. ( 21 ) WE, accordingly, set aside the order passed by the Tribunal on the aforementioned three grounds. The two applications filed under section 19 of the Act by the respondent Nos. 5 and 6 are dismissed. The writ application, therefore, succeeds with costs which we assess at Rs. 20,000/- (twenty thousand) to be borne equally by the respondent Nos. 5 and 6 and to be paid to the petitioner within a month from today. ( 22 ) AS regards the application for addition of party at the instance of a person who has not yet been promoted to the post of Senior Deputy Director general (CAN No. 1270 of 2007), we are of the view that for effective disposal of the present writ application, he was neither a necessary nor a proper party. We, accordingly, dismiss that application. We, accordingly, dismiss that application. We, however, make it clear that we have not gone into the merit of his claim and the rejection of this application will not stand in the way of the Tribunal in proceeding with his application stated to be pending there in accordance with law. ( 23 ) THE other application for addition of parties being CAN No. 1269 of 2007 is also dismissed on the ground that the presence of the applicant therein is not necessary for the effective disposal of the present writ application.