Allowed

Union of India, v. Sri Bhupati Singh

Telangana HC3 Dec 2018WP/23274/2018

Case brief

AI extract

What is this about?

This court allowed the writ petition filed by railway authorities. It set aside the Central Administrative Tribunal's order granting retrospective confirmation to an employee. The court held that the delay was inexcusable (laches) as the employee knew of his non-empanelment since 2008 and had failed to seek timely relief, and also that granting the relief would unfairly unsettle the seniority of i

What did the court decide?

The Tribunal's order dated 22.03.2018 setting aside the impugned OA was set aside, and the OA was dismissed on grounds of delay and laches.

Union of India, Vs Sri Bhupati Singh — Pension and Retirement Benefits | Telangana HC (2018)

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THE HON’BLE SRI JUSTI CE SANJAY KUMAR AND THE HON’BLE SRI JUSTI CE M.GANGA RAO

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WRI T PETI TI ON NO.23274 OF 2018

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O R D E R

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(Per Sri Justice Sanjay Kumar)

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By order dated 22.03.2018, the Central Administrative Tribunal, Hyderabad Bench, Hyderabad (for brevity, ‘the Tribunal’), allowed O.A.No.020/00077/2015 and directed the respondents therein to convene a Review DPC for reconsidering the case of the applicant therein, the respondent in this writ petition, for empanelment in Junior Administrative Grade (JAG) on par with other officers considered for empanelment in JAG on 13.08.2008, ignoring all uncommunicated below-benchmark gradings. The Tribunal further held that in the event the applicant was empanelled, he would be entitled to the consequential benefit of seniority and notional pay fixation from the date of empanelment of his immediate junior. The Union of India; the Chairman, Ministry of Railways, New Delhi; and the General Manager, South Central Railway, Secunderabad; the respondents in the O.A., filed the present writ petition aggrieved by these directions.

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Heard Sri C.V.Rajeeva Reddy, learned counsel for the petitioners, and Sri K.Sudhakar Reddy, learned counsel on caveat for the respondent.

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The respondent-applicant belongs to the 1998 batch of Indian Railway Service of Signal Engineers (IRSSE). He joined the service of the Railways on 27.12.1999 as an Assistant Signal and Telecommunications Engineer at Guwahati. He was promoted from Junior scale to Senior scale on 08.04.2004. He was further promoted from Senior scale to JAG on ad hoc basis on 26.06.2006 on par with his 1998 IRSSE batchmates. It is an admitted fact that he was not confirmed in JAG in October, 2008, on par with his 1998 batchmates. His confirmation in JAG was only with effect

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from 27.03.2014. The reason for this dissimilar treatment was the fact that he was found unfit for promotion along with his 1998 batchmates and even with later batches. He however seems to have raised a grievance only with regard to his promotion to selection grade, under his letter dated 03.07.2014, wherein he stated that his batchmates were already promoted and he wanted to know to what extent his promotion had come as it was pending with the Railway Board since long. In response to this communication, the Railway Board, Ministry of Railways, Government of India, addressed letter dated 09.09.2014 to the General Manager, South Central Railway, Secunderabad, stating that the request of the respondent-applicant for placement in selection grade was examined and the General Manager was requested to advise him that he was found unfit in the JAG/IRSSE panels approved on 26.09.2008 and 06.07.2009 and thus lost seniority, whereby he was promoted to JAG only with the 2003 batch and in consequence, his case would be considered for placement in the selection grade along with the 2003 batch.

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It appears that the respondent-applicant also submitted a complaint on the Portal for Public Grievances, which was received on 30.09.2014 by the Ministry of Railways (Railway Board). His grievance therein was with regard to his promotion to selection grade as his batchmates got promotion to the said grade long ago but the Establishment Section was unwilling to see his last five years APARs/ACRs and process his case. By the Grievance Status put up online on 29.12.2014, the respondent-applicant was informed that his case was considered for promotion to JAG along with his 1998 batchmates, but his performance did not merit his inclusion in the panel and he was accordingly considered unfit for promotion to JAG. It was further stated

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that he was considered along with the 1999, 2000, 2001 and 2002 batches but on the basis of his performance, the DPC did not recommend his case for promotion to JAG. It was finally stated that he was considered along with the 2003 batch and got promoted to JAG with effect from 27.03.2014 and as he got such promotion only with that batch, he lost seniority on par with the 1998 batch and would be considered for placement in selection grade as and when officers of the 2003 batch were considered.

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It is against the communication dated 09.09.2014 that the respondent-applicant filed O.A.No.020/00077/2015 before the Tribunal. His prayer therein reads as under:

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‘ MAI N RELI EF : Hence, in the interest of justice, the applicant herein prays that this Hon’ble Tribunal may be pleased to Quash and set aside the impugned order No. E (O) III-2014/AE/307 dated 09.09.2014 issued by R-2 as illegal, arbitrary, discriminatory, against the principles of natural justice and violative of DOP & T instructions, and Consequently direct the Railway board to consider applicant empanelment for promotion to JAG in October 2008 with all consequential benefits and pass such other and further order or orders as this Hon’ble Tribunal may deem fit and proper in the circumstances of the case.’

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In their counter filed before the Tribunal, the authorities stated as follows: The candidature of the respondent-applicant was considered and he was found unfit for promotion in the JAG panels approved on 24.09.2008 (1998 batch), 06.07.2009 (1999 batch), 29.07.2011 (2000 batch), 01.03.2013 (2001 batch) and 27.12.2013 (2002 batch). He made a representation with regard to upgradation of his gradings in the Annual Performance Appraisal Reports/Annual Confidential Reports (APARs/ACRs) for the years ending 2007, 2008 and 2009, vide representation dated

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07.10.2010. His representation was disposed of by the General Manager, Northeast Frontier Railway, stating to the effect that the Competent Authority had decided against upgrading/modifying the APARs of the respondent-applicant for the periods ending 31.03.2007, 31.03.2008 and 31.03.2009. The authorities also pointed out that respondent-applicant had made representation dated 22.12.2008 in relation to his confirmation in JAG along with his 1998 batchmates but, having failed to take any steps thereafter, he filed the subject OA six years later. They also pointed out that the APARs of the relevant period had been communicated to the respondent-applicant and he very well knew of his gradings therein. They therefore asserted that there was delay and laches on the part of the respondent-applicant in approaching the Tribunal and that the O.A. warranted dismissal in limini on this ground.

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Perusal of the order under challenge reflects that the Tribunal was initially willing to accept the argument of the authorities as to the delay and laches on the part of the respondent-applicant. However, the Tribunal observed that when it went deeper into the matter, it found that the respondent-applicant had been the victim of injustice. Pointing out that there was no material to show that the authorities had responded to the representations made by the respondent-applicant in 2008 and 2009, the Tribunal opined that he was informed of the reasons for his non-empanelment only on 09.09.2014 and thereafter, on 29.12.2014, as he learnt from the Portal for Public Grievances that his performance did not merit inclusion in the JAG panel and that he was considered unfit for promotion along with the 1998 to 2002 batches. The Tribunal therefore concluded that as the respondent-applicant was informed of the reasons

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for his non-empanelment only on 09.09.2014 and 29.12.2014, the filing of the O.A. on 20.01.2015 could not be said to be barred by limitation. On merits, the Tribunal opined that the adverse remarks in the APARs/ACRs of the respondent-applicant had not been communicated to him and could not have been acted upon to deny him empanelment. On this basis, the Tribunal granted him relief, as set out supra.

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Sri C.V.Rajeeva Reddy, learned counsel, would contend that the Tribunal erred in holding that the relief claimed by respondent-applicant was not hit by delay and laches and that his O.A. was not barred by limitation. Learned counsel would point out that no application had been filed by the respondent-applicant to condone the delay in his seeking relief dating back to 2008 and therefore, the very entertainment of the O.A. was vitiated.

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Per contra, Sri K.Sudhakar Reddy, learned counsel, would contend that the respondent-applicant was not aware of why he was denied empanelment until he received the communication dated 09.09.2014 and examined the response on the portal on 29.12.2014. Therefore, per the learned counsel, his approaching the Tribunal immediately thereafter could not be said to be tainted by any delay or laches.

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The essential issue that we have to consider is as to whether the O.A. was vitiated by delay and laches on the part of the respondent-applicant in seeking relief.

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In this regard, it is relevant to note that as long back as on 22.12.2008, the respondent-applicant addressed a letter with regard to his non-confirmation in JAG. Therein, he stated as under:

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‘Sir,

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I was promoted to JAG (adhoc) in the month of June’2006. I belong to IRSSE’98 Exam batch. The confirmation of JAG to my

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batch was done in the month of Oct’2008 in which my name has not figured out. Hence I request you to consider my plea and take appropriate action for the same please’

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He again issued a reminder on 11.05.2009, which reads as follows:

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‘Sir,

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With due respect, I would like to bring your kind notice that I have not got confirmation in JAG with my batch mates of 1998/IRSSE exam. The reason is not known to me. The confirmation of my batch came in October, 2008. May kindly look in the case please.’

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Thereafter, by communication dated 05.10.2010, the General Manager of the South Central Railway, Secunderabad, informed the respondent-applicant that when his case was considered for promotion to JAG, he had earned below the benchmark grading in the ACRs for the years 2005, 2007, 2008 and 2009. Photocopies of the ACRs were also sent to him with the advice that he could make a representation against the remarks or seek upgradation of the final gradings within a time frame. The respondent-applicant acknowledged receipt of the ACRs for the years 2005, 2007, 2008 and 2009 under his communication dated 07.10.2010, whereby he also sought upgradation in his ACRs for the relevant years.

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However, by communication dated 14.12.2010, the General Manager, Northeast Frontier Railway, Guwahati, informed the respondent-applicant that the competent authority, having gone through his representation dated 07.10.2010 in relation to the period ending 31.03.2005, found as follows:

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‘There is no substance in the representation and considering the performance of Shri N Bhupathi Singh, his grading for the period in question stands good.’

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The same was communicated to the respondent-applicant. Subsequently, by letter dated 03.03.2011, the General Manager, Northeast Frontier Railway, Guwahati, informed the respondent-applicant that the competent authority had considered his representation dated 07.10.2010 in relation to the below-benchmark gradings in his APARs for the periods ending 31.03.2007, 31.03.2008 and 31.03.2009 and had not upgraded or modified any of the said APARs.

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Being fully aware of all these developments, respondent-applicant submitted representation dated 03.07.2014 stating that his promotion to selection grade was pending with the Railway Board since long and he would like to know to what extent it had come as his batchmates were already promoted to the said grade. It is in response to this communication that the impugned letter dated 09.09.2014 was issued by the Director, Railway Board, Ministry of Railways, Government of India.

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The aforestated facts and record put it beyond the pale of doubt that the respondent-applicant was well aware of the fact that he was not treated on par with his 1998 IRSSE batchmates in December, 2008 itself. His knowledge of this fact is clear from his letter dated 22.12.2008 followed by the reminder dated 11.05.2009. He was also aware of the fact that his grading in the APARs/ACRs for the years 2005, 2007, 2008 and 2009 were below the benchmark as he received a communication to this effect on 05.10.2010 and he made a representation on 07.10.2010 seeking upgradation of the said entries. He was also aware of the fact that his request in this regard was turned down, in terms of the communications dated 14.12.2010 and 03.03.2011 addressed to him by the General Manager, Northeast Frontier Railway, Guwahati.

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Being fully aware of these facts, he blithely made a representation on 03.07.2014 seeking promotion to selection grade on par with his 1998 batchmates. It is not possible that the respondent-applicant would be unaware of the due procedure to be followed for promotion to the selection grade and when he was fully cognizant of the fact that he was not treated on par with his batchmates of the 1998 IRSSE batch, who were confirmed in JAG in the year 2008 itself, while he had to wait till 2014 for the said benefit, the purported ignorance now sought to be projected cannot be countenanced. In the event the respondent-applicant had a grievance with regard to his confirmation in JAG not being made in the year 2008 on par with his 1998 IRSSE batchmates, he had a cause of action at that point of time itself. He however kept quiet, being satisfied with being continued in JAG on ad hoc basis till the year 2014. He could not have been unaware of the fact that by the time he was confirmed in JAG on 27.03.2014, those belonging to the 1999, 2000, 2001 and 2002 batches had already been confirmed in JAG. His silence all through, despite these developments, clearly speaks against him and the delay and laches on his part in not seeking timely relief if he had a grievance in relation to his confirmation in JAG on par with his 1998 batchmates, is fatal.

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The reasoning of the Tribunal that as there was no response to his communications of 2008 and 2009, the respondent-applicant can be stated to have been informed of the facts only on 09.09.2014 belies comprehension. It is not as if the respondent-applicant, being a member of the service, would have been unaware of the developments in relation to his own batchmates and the succeeding batches of the years 1999, 2000, 2001 and 2002. Despite the same, he kept quiet and coolly raised

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the issue of his promotion to selection grade on par with his 1998 batchmates as if he was unaware of all that had happened since 2008 and the due procedure that required to be followed for promotion to the selection grade. The delay on his part is therefore writ large.

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Reference in this regard may be made to THE STATE OF PUNJAB V/ s. BHAGAT RAM¹ , wherein the Supreme Court observed that a person aggrieved by an order should approach the Court at least within six months or at the most a year. It was further observed that though there is no period of limitation for exercise of power under Article 226, it would be a sound and wise exercise of discretion for the Court to refuse to exercise the extraordinary power under Article 226 in the case of persons who do not approach it expeditiously for relief and who stand by and allow things to happen and then approach the Court to put forward stale claims and try to unsettle settled matters. The same principle would be equally applicable to the Tribunal.

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Similar were the views expressed by the Supreme Court in UNI ON OF I NDI A V/ s. M.K.SARKAR² . It was observed therein that 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 and 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.

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More recently, in UNI ON OF I NDI A V/ s. CHAMAN RANA³ , the Supreme Court was dealing with a case where the cause of action accrued

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1 (1975) 1 SCC 152

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2 (2010) 2 SCC 59

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3 (2018) 5 SCC 798

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in the year 1997 but the respondent kept making representation after representation without seeking redressal. Holding that mere repeated filing of representations could not be sufficient explanation for the delay in approaching a Court for grant of relief, the Supreme Court held that the observations made in C.JACOB V/ s. DI RECTOR OF GEOLOGY AND MI NI NG⁴ , with regard to the modus operandi of the ‘representations syndrome’ to revive what was clearly a dead and stale claim and the caution to be exercised by the Court, were apposite.

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Closer home, in B.KI SHORE KUMAR V/ s. GOVERNMENT OF

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I NDI A REP. BY I TS CHAI RMAN, RAI LWAY BOARD, NEW DELHI⁵ , a Division Bench of this Court observed as under:

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‘8. Section 21 of the Administrative Tribunals Act, 1985, clearly stipulates a period of limitation. The Tribunal is no doubt conferred with a power to condone the delay. But it is too long in the day to advise any one that unless an application for condonation of delay is filed and an order of condonation is passed, no one can claim that mere entertainment of the application, however erroneously by the Tribunal, would tantamount to automatic condonation of the delay. It is also too late in the day to point out that merely because the representation given after a long time by the persons, who woke up from their slumber, got rejected on merits, the question of delay was waived by the respondents. Therefore, we are of the considered view that the Tribunal committed a serious error in first entertaining the applications without any petitions for condoning the delay and later not considering the issue of limitation at all, despite having been raised. Even on this score, the order of the Tribunal is liable to be set aside.’

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Given the inescapable fact that the respondent-applicant chose to silently suffer the confirmation of his 1998 IRSSE batchmates in October,

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4 (2008) 10 SCC 115

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5 2017 (2) ALT 787 (D.B.)

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2008 and also his successor batches of 1999, 2000, 2001 and 2002 before his own confirmation in the year 2014 and the admitted fact that he was aware of the refusal by the competent authority to upgrade/modify his performance ratings in his APARs/ACRs of the relevant years, the respondent-applicant cannot baldly brush aside the delay on his part in seeking parity with his 1998 batchmates with effect from 2008. His claim that he came to know of the alleged injustice done to him only on 09.09.2014 and 29.12.2014 is unworthy of acceptance and is therefore rejected.

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It may also be noted that the Portal for Public Grievances was introduced, in so far as the Railways is concerned, as long back as in August, 2010. However, the respondent-applicant admittedly raised a grievance on the said portal only in September, 2014.

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Be it viewed from any angle, the delay and laches on the part of the respondent-applicant in seeking redressal of his grievance with not being confirmed in JAG on par with his 1998 batchmates in October, 2008 would be fatal and he could not have sought such relief in the guise of having made a representation in relation to his further promotion to selection grade. Losing sight of these aspects, the Tribunal granted him the relief of retrospective confirmation in JAG with effect from 2008 on par with his 1998 batchmates, overlooking the vital fact that the 1999, 2000, 2001 and 2002 batches had already stolen a march over him and in their absence in this lis, no direction could have been given whereby he could be restored in seniority on par with his 1998 batchmates, thereby depriving them of their own seniority owing to their earlier confirmation in JAG. The Tribunal therefore ought not to have entertained the O.A., much less granted relief to the respondent-applicant.

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The writ petition is accordingly allowed setting aside the order dated 22.03.2018 passed by the Tribunal in O.A.No.020/00077/2015. In consequence, the O.A. shall stand dismissed on the ground of delay and laches.

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Pending miscellaneous petitions, if any, shall stand closed in the light of this final order. No order as to costs.

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____________________

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SANJAY KUMAR,J

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____________________
M.GANGA RAO,J
3 rd DECEMBER, 2018
PGS

Union of India, v. Sri Bhupati Singh

Case brief

What is this about?

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Union of India, v. Sri Bhupati Singh

Case brief

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