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2014 DIGILAW 331 (GAU)

UNION OF INDIA v. BIPROJIT DUTTA

2014-03-19

A.K.GOSWAMI, A.M.SAPRE

body2014
ORDER A.K. Goswami, J. 1. By filing this application under Article 226 of the Constitution of India, the petitioners, Union of India and other, questions the legality and validity of the order dated 11.06.2013 passed by the learned Central Administrative Tribunal, Guwahati Bench in O.A. No. 219 of 2011. 2. We have heard Mr. U.K. Nair, learned counsel for the petitioners and Mr. M. Chanda, learned counsel for the respondent/applicant. 3. The original application was filed by the respondent/applicant before the learned Tribunal seeking the following reliefs: (i) Setting aside and quashing of letter No. E/RTI Act’ 05/Con dated 08.08.2011. (ii) Declaration that selection and promotion of Sri K.C. Agarwal, who was arrayed as respondent No. 7 in the original application, to the post of Assistant Engineer on the basis of panel prepared under L/No. E/254/21/Con Pt-III dated 21.03.1990 is void ab initio. (iii) To promote the applicant to the post of Assistant Engineer, Gr. ‘B’ during 1988 as per panel recommended by DPC on 02.09.1988 on the basis of DPC proceeding held on 25.07.1988 and 22.08.1988, with all consequential benefit including seniority and arrear monetary benefit. (iv) Costs of application. (v) Any other reliefs to which the applicant is entitled to. 4. The broad facts giving rise to the filing of the Original Application before the tribunal are that while the respondent/applicant was working as Inspector of Works, Construction, in the Silchar - Jirbam project in the N.F. Railway, a notification dated 25.02.1986 was issued calling for volunteers to appear in 25% Limited Departmental Competitive Examination, for short, LDCE, for promotion to the Gr. ‘B’ post of Assistant Engineer. Another notification dated 09.12.1987 was also issued calling for volunteers afresh for the said LDCE. Pursuant to the said notifications, the respondent/applicant appeared in the selection test and 8 (eight) candidates were empanelled pursuant to Departmental Promotion Committee (DPC) proceeding held on 25.07.1988 and 22.08.1988 and the name of the applicant appeared at Sl. No. 8 in order of merit. Sri K.C.Agarwal, the respondent No. 7 before the Tribunal did not appear in the selection test. He, however, was given an opportunity to appear in the supplementary written test held on 12.09.1988 and 13.09.1988 followed by viva voce held on 04.10.1988 as a sole absentee candidate on the ground that he was not intimated regarding the selection test of LDCE. Sri K.C.Agarwal, the respondent No. 7 before the Tribunal did not appear in the selection test. He, however, was given an opportunity to appear in the supplementary written test held on 12.09.1988 and 13.09.1988 followed by viva voce held on 04.10.1988 as a sole absentee candidate on the ground that he was not intimated regarding the selection test of LDCE. Subsequent to such supplementary examination, another DPC was held on 04.10.1988 and as he had supposedly secured higher marks than the earlier qualified empanelled candidates, DPC recommended his name for inclusion in the panel for promotion to Assistant Engineer, Gr. ‘B’. The final panel was published after de-reservation of 1 (one) SC post on 21.03.1990. With the inclusion of the name of the respondent No. 7 in the panel of 8 (eight) names published on 21.03.1990, in consequence thereof the name of the respondent/applicant, who was earlier placed at Sl. No. 8 of the panel in order of merit came to be dropped. 5. The wife of the applicant submitted one application dated 18.12.2006 under the Right to Information Act, 2005, for short, RTI Act, seeking documents of viva voce test for filling up of 8 (eight) posts of Assistant Engineers against 25% LDCE held on 22.08.1988. To obtain the materials, she had to approach the Central Information Commission and only after direction was issued by the Central Information Commission, dated 21.11.2007, the wife of the applicant was furnished the proceeding of the DPC. The applicant had also submitted one application on 25.03.2008 under RTI Act, seeking certain documents and information relating to the LDCE held in 1988. 6. In the Original Application, it is averred that the DPC recommendations were kept confidential and the respondent/applicant was unaware of the recommendation made by the DPC. The applicant had also submitted one application on 25.03.2008 under RTI Act, seeking certain documents and information relating to the LDCE held in 1988. 6. In the Original Application, it is averred that the DPC recommendations were kept confidential and the respondent/applicant was unaware of the recommendation made by the DPC. Subsequent to enactment of RTI Act, his wife as well as he himself had taken recourse to the provisions of the RTI Act and obtained documents and information relating to LDCE held in 1988 and after receiving such documents on piece-meal basis, last of which was forwarded by letter dated 7.7.2008 issued by the Senior Divisional Engineer/Co-ordinator, N.F.Railway, the respondent/applicant submitted one application dated 23.10.2008 to the Chairman, Railway Board under Para 208.3 of Indian Railway Establishment Manual contending that he was illegally deprived of promotion in 25% LDCE held in 1988 and Sri K.C.Agarwal was allowed to take the selection test violating statutory rules and guidelines of Railway Board and the DPC held on 4.10.1988 illegally recommended inclusion of name of Sri K.C.Agarwal in the panel for promotion to Assistant Engineer, Group ‘B’ against rules and guidelines. As no suitable action was taken on his representation dated 23.10.2008, the respondent/applicant submitted another representation on 7.3.2011 addressed to the General Manager, N.F.Railway for inclusion of his name in the 25% LDCE panel of Assistant Engineer, Group ‘B’ for the year 1988. By the impugned order dated 8.8.2011, the prayer made by the respondent/applicant through his representation dated 7.3.2011 having been rejected, the respondent/applicant approached the learned Tribunal. 7. The learned Tribunal rejected the plea taken by the petitioners that the application was barred by limitation inasmuch as letter dated 8.8.2011 rejecting the representation of the respondent/applicant dated 7.3.2011 would not revive cause of action which had arisen in the year 1988, on the ground that the application before the Tribunal was filed within a period of two months from the date of rejection of the representation on 8.8.2011. The Tribunal also took note of the communication dated 19.11.2010 issued by the Deputy Director Estd.(GP)-II, Railway Board directing the General Manager, N.F.Railway to examine the request of the respondent/ applicant and to dispose of the same representation. The learned Tribunal observed that the decision in Union of India and Ors. –Vs- M.K.Sarkar, reported in (2010) 2 SCC 59, was not applicable to the case. The learned Tribunal observed that the decision in Union of India and Ors. –Vs- M.K.Sarkar, reported in (2010) 2 SCC 59, was not applicable to the case. Holding the application not to be time-barred, the learned Tribunal proceeded to examine the matter on merits and recorded a finding that Sri K.C.Agarwal was illegally selected on the basis of a supplementary examination though the Circular dated 2.3.1979 issued by the Government of India/Bharat Sarkar, Ministry of Railway, Railway Mantralaya, Railway Board on the subject of LDCE for filling 25% vacancies in Class-II service had categorically laid down that there will be no supplementary examination for absentee etc. for filling 25% vacancies in Class-II service. Accordingly, the learned Tribunal made the following directions: “20. That being the position, we are of the view that there was a definite violation of the instruction dated 02.03.1979 by which supplementary examination was held in which ultimately precluded the applicant for recommendation for empanelment by the selection committee. We therefore, direct the respondent authority to consider the case of the applicant by giving effect the promotion in the post of Assistant Engineer, Group ‘B’ in view of finding his place in the panel list against sl no.8 of Selection Proceeding in pursuance of examination held on 25th/26th Jun 1988. The said exercise shall be carried out within four months from the date of receipt of the order.” 8. Mr. U.K.Nair, learned counsel for the petitioners has submitted that the learned Tribunal totally misdirected itself in holding that the application filed by the respondent/applicant, which sought to raise a grievance relating to DPC proceedings held in the year 1988, was not barred by limitation. It is submitted by him that the plea taken by the respondent/applicant that he came to learn about the illegalities committed in making recommendation of Sri K.C.Agarwal only after materials were obtained by him in the year 2008 after taking recourse to provision of RTI Act is not tenable in the facts of the case. 9. The learned counsel submits that the impugned direction of the learned Tribunal to promote the respondent/applicant w.e.f. 1988 is clearly unsustainable in law and the same will unsettle the settled position. He submits that the application being time-barred, the impugned judgment of the learned Tribunal deserves to be quashed. 10. 9. The learned counsel submits that the impugned direction of the learned Tribunal to promote the respondent/applicant w.e.f. 1988 is clearly unsustainable in law and the same will unsettle the settled position. He submits that the application being time-barred, the impugned judgment of the learned Tribunal deserves to be quashed. 10. Learned counsel, in support of his submissions, has placed reliance in the case of (i) C.Jacob-vs-Director of Geology & Mining, reported in (2008)10 SCC 115 and (ii)Union of India and Ors.–vs- M K Sarkar, reported in (2010) 2 SCC 59. 11. Mr. Chanda, learned counsel for the respondent/applicant, on the other hand, submits that the Tribunal was wholly justified in passing the impugned order. According to him, Sri K C Agarwal, respondent No.7 before the learned Tribunal, was included in the panel dated 2.9.1988 in a fraudulent manner with the help of a vested circle and the fraud came to light only when he received materials by filing applications was under RTI Act, 2005, and immediately after materials were obtained, he had submitted a representation and after the representation was rejected had approached the learned Tribunal without any delay. Materials on record having clearly demonstrated that the respondent/applicant was denied promotion illegally, the direction of the learned Tribunal to promote him in pursuance of the examination held in the year 1988 cannot be faulted. He submits that in the facts and circumstances of the case, there was no delay at all. The learned counsel places reliance in the case of S.Ramanathan –vs- Union of India and Ors, reported in (2001) 2 SCC 118 , to emphasise that the Court will not be justified in accepting apprehension of administrative chaos or unsettling the settled position in absence of any material on record, a point canvassed by Mr. Nair. Reliance is also placed in the case of Addl. General Manager- Human Resource, Bharat Heavy Electricals Ltd-vs- Suresh Ramkrishna Burde, reported in (2007) 5 SCC 336 . 12. We have heard the learned counsel for the parties and have perused the materials on record. 13. It is to be noted that the respondent/applicant qualified the LDCE in the year 1993 and was promoted to the post of Assistant Engineer, Grade ‘B’ on 14.6.1993. The respondent/applicant had earned two promotions based on his seniority position before approaching the learned Tribunal and presently he is a Grade-A officer. 13. It is to be noted that the respondent/applicant qualified the LDCE in the year 1993 and was promoted to the post of Assistant Engineer, Grade ‘B’ on 14.6.1993. The respondent/applicant had earned two promotions based on his seniority position before approaching the learned Tribunal and presently he is a Grade-A officer. Sri K. C. Agarwal had gone on voluntary retirement in the year 2003 and he is no more. 14. The entire case of the respondent/applicant is that he was not aware of the illegalities committed till he obtained documents by taking recourse to RTI Act and therefore, there is no delay in approaching the learned Tribunal. However, nowhere it has been indicated what prompted him to take recourse to RTI Act. His application for furnishing information under RTI Act primarily revolved around the candidature of Sri K.C.Agarwal. The respondent/applicant had not laid any material before the learned Tribunal as to when he could sense that empanelment of Sri K.C.Agarwal was illegal and not in accordance with law. If he was harbouring any doubt with regard to the LDCE in 1988, why he did not file any representation earlier questioning the legitimacy of the selection process held in the year 1988. These are issues which will naturally arise in view of long intervening period of more than 20 years from the time when the cause of action had arisen. Only after Sri K.C.Agarwal had taken voluntary retirement, the respondent/applicant initiated a process, first, through his wife, who filed an application under RTI Act on 18.12.06, to lay the basis for questioning the selection process held in the year 1988. We are of the opinion that the claim made by the respondent/applicant, in the circumstances, is clearly a stale claim, which is barred by limitation. 15. In C.Jacob (supra), the Supreme Court laid down as follows: “9. The courts/tribunals proceed on the assumption, that every citizen deserves a reply to his representation. Secondly, they assume that a mere direction to consider and dispose of the representation does not involve any “decision” on rights and obligations of parties. Little do they realise the consequences of such a direction to “consider”. If the representation is considered and accepted, the ex-employee gets a relief, which he would not have got on account of the long delay, all by reason of the direction to “consider”. Little do they realise the consequences of such a direction to “consider”. If the representation is considered and accepted, the ex-employee gets a relief, which he would not have got on account of the long delay, all by reason of the direction to “consider”. If the representation is considered and rejected, the ex-employee files an application/writ petition, not with reference to the original cause of action of 1982, but by treating the rejection of the representation given in 2000, as the cause of action. A prayer is made for quashing the rejection of representation and for grant of the relief claimed in the representation. The tribunals/High Courts routinely entertain such applications/petitions ignoring the huge delay preceding the representation, and proceed to examine the claim on merits and grant relief. In this manner, the bar of limitation or the laches gets obliterated or ignored.” 11. When a direction is issued by a court/tribunal to consider or deal with the representation, usually the directee (person directed) examines the matter on merits, being under the impression that failure to do so may amount to disobedience. When an order is passed considering and rejecting the claim or representation, in compliance with direction of the court or tribunal, such an order does not revive the stale claim, nor amount to some kind of “acknowledgment of a jural relationship” to give rise to a fresh cause of action.” 16. In M K Sarkar (supra), the Apex Court laid down as follows: “15. When a belated representation in regard to a “stale” or “dead” issue/dispute is considered and decided, in compliance with a direction by the court/tribunal to do so, the date of such decision cannot be considered as furnishing a fresh cause of action for reviving the “dead” issue or time-barred dispute. The issue of limitation or delay and laches should be considered with reference to the original cause of action and not with reference to the date on which an order is passed in compliance with a court’s direction. Neither a court’s direction to consider a representation issued without examining the merits, nor a decision given in compliance with such direction, will extend the limitation, or erase the delay and laches. 16. Neither a court’s direction to consider a representation issued without examining the merits, nor a decision given in compliance with such direction, will extend the limitation, or erase the delay and laches. 16. A court or tribunal, before directing “consideration” of a claim or representation should examine whether the claim or representation is with reference to a “live” issue or whether it is with reference to a “dead” or “stale” issue. If it is with reference to a “dead” or “stale” issue or dispute, the court/tribunal should put an end to the matter and should not direct consideration or reconsideration. If the court or tribunal deciding to direct “consideration” without itself examining the merits, it should make it clear that such consideration will be without prejudice to any contention relating to limitation or delay and laches. Even if the court does not expressly say so, that would be the legal position and effect.” 17. Reliance placed by Mr. Chanda in Suresh Ramkrishna Burde (supra) is not at all applicable in the facts and circumstances of the case inasmuch as it was a case where the Supreme Court had upheld termination of service of an employee who had secured appointment in a post reserved for ST by producing false caste certificate, which was detected after 9 years of appointment, though 13 years were spent in enquiry and litigation. 18. In view of our discussions above, we are of the opinion that the impugned judgment of the learned Tribunal is not sustainable in law. Accordingly, we set aside the judgment dated 11.06.2013, passed by the learned Central Administrative Tribunal, Guwahati Bench in O.A. No.219 of 2011. 19. In the result, the Writ Petition is allowed. No costs.