Smt. Smit Rekha Vishnoi vs Union Of India (Uoi) And Anr.
2008 Latest Caselaw 502 Del

JUDGMENT

A.K. Sikri, J.

1. In this petition, the petitioner impugns the order dated 2.1.1998 passed by the Central Administrative Tribunal (in short the 'Tribunal') in her application refusing her to grant the relief of giving her seniority at serial No. 432-A in the seniority list issued on 1.1.1982 wherein her name figures at serial No. 550. Before we advert to the basis on which the petitioner laid her claim in the application under Section 9 of the Administrative Tribunal Act (in short the 'Act'), it would be necessary to recapitulate some basis facts.

2. The petitioner joined as an Income-Tax Officer (Group A) on 6.8.1977 on the basis of Combined Competitive Examination held by the Union Public Service Commission (UPSC). There were various persons who joined the said service along with the petitioner. Merit list was prepared by the UPSC in respect of all those selected and the petitioner was assigned the place at serial No. 21-A in the said Group.

3. Next promotion is to the post of Assistant Commissioner of Income-Tax. She was considered for this post along with her batch mates of the year 1977 by the Departmental Promotion Committee (DPC). After considering the eligible candidates and on the recommendations of the DPC, the Promotion Order dated 26.12.1986 was issued promoting certain Income-Tax (Group A) Senior Scale Officers to the post of Assistant Commissioner of Income-Tax on officiating basis with effect from the date (as they take over charge until further orders). The name of the petitioner was, however, missing from this list, though some persons junior to her in her batch were given promotion. Aggrieved by this omission, she submitted a representation dated 27.1.1987 seeking review of the decision of the DPC and also praying for promotion to the said post with her seniority intact. This representation was, however, rejected on 3.3.1987 stating that her case was considered by the DPC and her name could not be included in the select panel on overall assessment of her record and decision in this behalf was final. The petitioner filed OA No. 1797/1987 before the Tribunal claiming that as per her seniority, her rightful place is between serial No. 21 and 22. This OA was, however, withdrawn by her on 9.12.1991. Subsequently, Civil List of the year 1991 was issued wherein she was shown at serial No. 550 with 1979 batch. Claiming that she belonged to original batch of 1977 and as a consequence thereof her name should have figured at serial No. 432-A in respect of serial No. 550, she filed OA No. 1753/1993, which has been dismissed by the impugned judgment and order dated 2.1.1998 by the Tribunal.

4. There is a background because of which the petitioner was ignored for promotion in the year 1986 when her batch mates were promoted to the post of Assistant Commissioner of Income-Tax. During the year 1981-82 when the petitioner was holding the post of Assistant Director of Investigation (Special Investigation), the Reporting Officer was the Deputy Director of Investigation (Special Investigation) and Reviewing Officer was the Director of Investigation (Special Investigation).

5. The Initiating Officer, i.e. the Reporting Officer gave her the grading of 'Very Good' in that year, i.e. the year 1981-82 in her Annual Confidential Report (ACR). However, the reviewing authority, i.e. the Director gave the final grading as 'Good'. The petitioner alleges that she came to know of this fact much subsequently as she was not communicated the aforesaid confidential report. Her submission before the Tribunal was that the report of the petitioner, as recorded by the Initiating Officer, i.e. 'Very Good' was not reviewed by the reviewing authority in accordance with the instructions laid down for the purpose in the DOPT OM dated 22.5.1975. Precise submission in this behalf is that as per the said OM, the Reporting/Reviewing and Endorsing Officer should have been acquainted with the work of the official/official reported upon for at least three months during the period covered by the confidential reports, which requirement the reviewing officer did not specify as he was posted as the Director of Inspection for less than three months in the relevant period and had, therefore, not been the reviewing officer for at least three months.

6. Likewise, during the year 1983-84 when the petitioner was posted at Meerut as Income-Tax Officer, while recording her ACR for the year 1983-84, she was given the remarks 'Not as yet' (fit for promotion) against the column 'Fitness of the Officer for Promotion'. These, according to the petitioner, were the remarks which should have been communicated to her in view of the aforesaid OM dated 22.5.1975. However, no such remarks were communicated to her.

7. Thus, the case of the petitioner before the Tribunal was that the exercise undertaken by the DPC, while considering her case for promotion, was erroneous inasmuch as, neither the ACR in the year 1981-82 with the grading 'Good' nor the remarks in her ACR in the year 1983-84 to the effect that she was not fit for promotion could be taken into consideration. That was the raison d' etre for claiming review DPC, which was not done. Order of the Tribunal:

8. When we go through the order of the Tribunal to find out as to in what manner the aforesaid contentions of the petitioner were bestowed considered by it, we notice that there was a preliminary objection raised by the respondent, namely, the OA filed by the petitioner was barred by limitation. This objection was premised on the submission that the petitioner had earlier filed OA No. 1797/1987, which was withdrawn by her by filing MP No. 2665/1991 on the ground that she wanted to implead some more parties as the respondents. This prayer was granted by the Tribunal vide order dated 9.12.1991. However, thereafter she filed another MP No. 1765/92, which was dismissed on merits on 10.8.1992. Contention of the respondent was that even the first OA No. 1797/87, which was subsequently withdrawn, was barred by limitation and thereafter filing the first OA does not extend the period of limitation if the original cause of action itself was barred by limitation. It was also contended that even the second OA, i.e. OA in question was barred by limitation. Even in the present OA, although the petitioner has challenged the Civil List of 1991 whereby her seniority has been shown with the 1979 batch instead of her original batch of 1977, the relief sought for by her is that she may be placed at serial No. 21-A of the order dated 26.12.1986 and she may be considered for grant of selection grade in the post of DCIT along with 1977 batch officers. She has further sought relief that entry in her ACR for the year 1981-82 as well as the entry in the year 1983-84 may be deleted. The petitioner has been raising the issues which are more than a decade old in the garb of attacking the Civil List of 1991. It was further submitted that in the seniority list of 1988, her name was shown below Sh. O.G. Rao and above Sh. R.P. Srivastava, i.e., at the same place where it has been shown in the Civil List of 1991. Her name was at the same position in the Civil List as on 1.5.1990 also. Hence, she should have challenged the Civil List published in 1988. There is no fresh cause of faction by virtue of the publication of the Civil List of 1991. The respondents have contended that in view of the above submissions, the OA is barred by limitation and deserves to be summarily dismissed. We may note that when the second OA, i.e. OA No. 1753/93 was filed in which the impugned order is passed, certain objections were raised inasmuch as the OA was filed on 8.12.1992, which was returned to her counsel on 10.12.1992 with office objection and after removing the objections completely, the OA was ultimately filed only on 23.8.1993. However, those objections were not removed with the stipulated period and therefore, the petitioner had filed MP No. 2534/93 seeking condensation of delay in removing the objections stating that the delay occurred due to bone fide error on the part of the clerk and the briefing Advocate in the office of the counsel for the petitioner. The Tribunal dismissed the OA as time barred primarily on the ground that though the first OA was dismissed as withdrawn with liberty to file fresh one, if so advised, vide order dated 9.12.1991, no fresh OA impleading some more parties had been filed with reference to the cause of action which arose in 1986 on the basis of which the first OA was filed. It may be noted that the first OA was filed in the year 1987 against her supersession in the matter of promotion by the respondents vide their letter dated 26.12.1986. The Tribunal, therefore, opined that if this OA was withdrawn only on the ground that the petitioner wanted to implead some more parties, fresh OA should have been filed on the same cause of action. However, in the second OA, the applicant challenged the Civil List of 1991. In the interregnum, Civil Lists of 1988 and 1990 were also issued, which were never challenged. The Tribunal, thus, opined that the petitioner ought to have filed a fresh OA, if she so desired, within the period of limitation prescribed under the Act. However, this was not done and impugning the Civil List of 1991 alone, OA was filed in the year 1993. The petitioner had also taken the plea of continuous cause of action, which was rejected by the Tribunal. The Tribunal also dismissed the MP seeking condontation of delay in re-filing the OA.

9. We are of the opinion that the approach of the Tribunal in this behalf is not entirely correct as certain issues are mixed up. First issue is as to whether the OA was filed within limitation or not and the second issue is as to whether the application for condensation of delay in re-filing the OA after removing the objection could be allowed or not. In so far as filing of the first OA is concerned, the Tribunal has itself stated that after taking liberty to file fresh OA, when the first OA was dismissed as withdrawn, second OA should have been filed within a period of one year, which is the limitation prescribed under Section 21 of the Act. First OA was dismissed as withdrawn on 9.12.1991. Second OA was filed on 8.12.1992. It was, thus, filed within one year. Of course, when the office had put objection, the petitioner after removing the objection had re-filed it several times but did not remove the objections in entirely and therefore, the registry of the CAT had returned the OA with objections only on 23.8.1993. The Tribunal took this date of re-filing as the date of filing of the OA and thus, treated it as time barred. This could not have been done without first considering the MP for condensation of delay in re-filing. Of course, if there was no sufficient cause to condone the delay in re-filing, the OA could have been treated as filed only in the year 2003. However, the Tribunal pre-supposed that the OA was filed in the year 2003 without first dealing with the MP for condensation of delay in removing the objection and re-filing the OA.

10. In so far as the dismissal of the MP for condensation of delay in re-filing the OA is concerned, while dismissing the same, the Tribunal took note of two judgment of the Supreme Court, namely, Ratam Chandra Sammenta and Ors. v. Union of India and Ors. and L. Chandra Kumar v. Union of India and Ors. , which dealt with the limitation period in filing the OA under Section 21 of the Act and the principle laid down is that as per Section 21, the limitation period of one year is to be strictly construed and if an aggrieved person sleeps over the right without approaching a judicial forum within the prescribed time, he loses his remedy as well as his rights under the law. Noting these two judgments in paras 15 and 16, the Tribunal while dismissing the MP recorded as under:

In view of the foregoing discussion and the well settled legal position, we are of the opinion that the aforesaid MP No. 2354/93 for condensation of delay in removing the objections and refilling the present OA, is absolutely devoid of any merit or jurisdiction as per the decisions of the Apex Court in Rathore's case (supra) and other cases, and deserves to be dismissed. We find that the present OA is clearly barred by limitation and can be dismissed on this ground itself.

11. This approach is again erroneous. It is stated at the cost of repetition that the aforesaid two judgments dealt with limitation period in filing the OA and not with the condensation of delay in re-filing the OA after removing the objection, though the OA originally filed was within the period of limitation. The Tribunal should have considered as to whether the delay caused in removing the objection was satisfactorily explained, i.e. the reason given, namely, the delay occurred because of bona fide error on the part of the clerk and the briefing Advocate in the office of the counsel for the petitioner, was sufficient or not. However, we find that the Tribunal has also observed that the MP for condensation of delay in removing the objection is not accompanied by any affidavit of the briefing counsel or the counsel's clerk. The application should have been dismissed on this ground in any case and therefore, we are of the opinion that the MP was rightly dismissed. If on that basis the conclusion is that there is sufficient ground to condone the delay, the OA should have been treated as filed on 8.12.2002, the day on which it was originally filed. Only if the Tribunal after considering the application in right perspective concluded that application was liable to be dismissed, that OA should have been treated as filed on 23.8.1993 and could have been dismissed as time barred.

12. Be that as it may, we are of the opinion that ultimately the OA is to be treated as time barred for other reasons. The Tribunal is right to the extent it has commented that when the first OA was dismissed as withdrawn with liberty to file fresh OA only because while seeking withdrawal of the first OA the reason given was that the petitioner wanted to implead more parties in the OA, the proper course was to file the second OA on the same cause of action on which first OA was filed but impleading private respondents as well. The petitioner did not do so. In the second OA, Civil List of 1991 is impugned. The Tribunal, in these circumstances, rightly concluded that the Civil List of 1991 was merely a repetition of Civil List of 1990 and 1988. Furthermore, these lists were prepared on the basis of promotions given to the officers in the year 1986 wherein the petitioner could not get the promotion. At this stage, we may reproduce the reliefs sought in the second OA:

(a) Order and direct the respondents to the petitioner at Serial No. 21A of the order dated 26.12.86 and they be further ordered and directed to consider the petitioner for grant of selection grade in the post of Deputy Commissioner Income Tax along with 1977 batch officers to be considered in January 1993 in accordance with the rules and they be further ordered and restrained from giving selection grade to the officers junior to the petitioner on the basis of the list of December, 1991, without considering the petitioner in the first place;

(b) It is also further prayed that this Hon'ble Tribunal may be pleased to order and direct that the entry in the confidential report of the petitioner for the year 1981-82 made by the Director be deleted and the petitioner be considered with the entry made in the confidential record by the Deputy Director Income-Tax;

(c) Further the Hon'ble Tribunal may be pleased to order and direct that any adverse entry/entries specially the entry 'not as yet' against the column fitness for promotion in the year 1983-84 be deleted and the petitioner be considered and given her seniority.

(d) Any other or further orders/directions as this Hon'ble Tribunal may deem fit and proper in the facts and circumstances of the case may also be passed.

13. In so far as relief (a) is concerned, the petitioner is seeking her placement at serial No. 21A in the order of initial appointment, which was issued on 26.12.1986. Such a relief was admittedly time barred even when the first OA was filed. In so far as reliefs (b) and (c) are concerned, the petitioner, no doubt, sought correction in ACRs of the years 1981-82 and 1983-84. But there is no relief claimed that there should be review DPC for promotion to the post of Assistant Commissioner of Income-Tax as of 1986.

14. The Tribunal is also right in holding that it was not a continuous cause of action. On merits:

15. As pointed out above, the ACR of 1981-82 as written by the Reviewing officer is challenged on the ground that he was not posted there for at least three months in the relevant period. No doubt, the period was not three months but 86 days, which was short by about 4 days. In these circumstances, the Tribunal negative the contention of the petitioner in the following words:

21. On a careful consideration of the matter, we are of the view that the said instructions under para 4(i) above, no doubt specify a minimum period of three months acquaintance with the work of the official reported upon. However, on the overall view of the matter, we are of the opinion that the tenor of those instructions do not indicate that they are absolutely mandatory. The reason, perhaps, could be that if too technical a view is taken, even a few days short fall in the aforesaid minimum period for reporting/reviewing/endorsing would result in the actual period of work done by the official being ignored for assessment. For instance, in the present case itself, if the period of 86 days of work under the reviewing officer is to be ignored, the concerned officer reported upon will have the assessment of the reporting officer alone without any review by the reviewing officer which would not be desirable either from the official's point of view or from the angle of administrative efficiency in the Government or for the purpose of consideration by the Departmental Promotion Committee.

16. We are of the view that the aforesaid opinion of the Tribunal, in the facts and circumstances of this case, does not call for any interference. The instructions on the subject, namely, OM dated 22.5.1975, no doubt, laid down that Reporting/Reviewing and Endorsing Officers should have been acquainted with the work of the official reported upon for at least three months during the period covered by the confidential reports. The purpose is obvious, there should be sufficient time with these officers to acquaint themselves with the work of the official in respect of which ACR is written. With this objective in mind, three months' period is prescribed. This prescription is not in any statute or statutory rules or regulations. This is mentioned in administrative instructions which have no statutory force. In such a circumstance where in a given case it is found that the Reviewing Officer had opportunity to know the work of the petitioner for almost three months, as the period was short by four days, it cannot be said that the limitation of three months is so sacrosanct that even if it is missing by the mark few days, one is to hold that said Reviewing Officer was incompetent to write the ACR. In case of Chief Commercial Manager, South Central Railway, Secunderabad and Ors. v. G. Ratnam and Ors. , the Supreme Court in respect of such non statutory administrative instructions had this say:

19. We have carefully gone through the contents of various chapters of the Vigilance Manual. Chapters II, III, VIII, IX and Chapter XIII deal with Railway Vigilance Organisation and its role. Central Vigilance Commission, Central Bureau of Investigation, investigation of complaints by Railway Vigilance, processing of vigilance cases in Railway Board, suspension and relevant aspects of Railway Servants (Discipline and Appeal) Rules, 1968 as relevant to vigilance work, etc. Paras 704 and 705, as noticed earlier, cover the procedures and guidelines to be followed by the investigating officers, who are entrusted with the task of investigation of trap cases and departmental trap cases against the railway officials. Broadly speaking, the administrative rules, regulations and instructions, which have no statutory force, do not give rise to any legal right in favor of the aggrieved party and cannot be enforced in a court of law against the administration. The executive orders appropriately so-called do not confer any legally enforceable rights on any persons and impose no legal obligation on the subordinate authorities for whose guidance they are issued. Such an order would confer no legal and enforceable rights on the delinquent even if any of the directions is ignored, no right would lie. Their breach may expose the subordinate authorities to disciplinary or other appropriate action, but they cannot be said to be in the nature of statutory rules having the force of law, subject to the jurisdiction of certiorari.

20. It is well settled that the Central Government or the State Government can give administrative instructions to its servants how to act in certain circumstances; but that will not make such instructions statutory rules which are justiciable in certain circumstances. In order that such executive instructions have the force of statutory rules, it must be shown that they have been issued either under the authority conferred on the Central Government or the State Government by some statute or under some provision of the Constitution providing therefore. Therefore, even if there has been any breach of such executive instructions that does not confer any right on any member of the public to ask for a writ against the Government by a petition under Article 226 of the Constitution of India.

21. In State Bank of Patiala v. S.K. Sharma 1996(3) SCC 364, this Court held that in a case of a procedural provision which is not of a mandatory character, the complaint of violation has to be examined from the standpoint of substantial compliance. The order passed in violation of such a provision can be set aside only where such violation has occasioned prejudice to the delinquent employee.

The Court or the Tribunal should inquire whether

(a) The provision violated is of a substantive nature or

(b) whether it is procedural in character?" [SCC p. 389, para 33(1)]

17. With this, we proceed with the ACR for the year 1983-84. Contention of the petitioner was that a remark to the effect "not yet fit" for promotion is to be treated as adverse remark and should have been communicated. The respondents, on the other hand, had contended that it was not an adverse remark as if the petitioner was treated as not yet fit for the year 1983-84, it will have no consequence as that was only for the year 1983-84 in which year she was not even considered for promotion. According to the respondents, the remark did not rule the petitioner as 'unfit' which would have been adverse. It was further pointed out that the aforesaid column in the ACR form itself was deleted in the subsequent instructions dated 24.9.1989. Moreover, the DPC assesses the fitness of officer for promotion by taking into account various other aspects of performance. The Tribunal accepted the plea of the respondents with the following remarks:

26. No doubt, the above provisions indicate that any 'adverse' remarks have to be communicated. However, with reference to the respondents contention as noted above regarding the remark in question not being adverse, the applicant has not been able to refute the same with any supporting material. She has also not produced any model form of ACR for the officers of her grade at the relevant time, i.e. 1983-94. This would have been relevant since it appears that there is no column relating to 'fitness for promotion' in the model form of ACR for officers of the level of Section Officer and above up to the level of Director (vide Department of Personnel and Administrative Reforms OM No. 35014/2/83-Estt(A) dated the 18th of May, 1985) as mentioned in Swamy's compilation regarding Confidential Reports of Central Government employees - 1995 (IVth Edition) at page 31.

18. We are of the opinion that this view of the Tribunal in the facts and circumstances of this case does not call for any interference.

19. We may note that the petitioner even now has not imp leaded private parties, though the first OA was withdrawn subsequently for this purpose. We, therefore, dismiss the petition as devoid of merit but with no orders as to costs.