Union Of India & Anr. vs Sompal
2011 Latest Caselaw 3900 Del

                                                               R-22/11.08.2011

*             THE HIGH COURT OF DELHI AT NEW DELHI

+                         W.P.(C) 7625/2000

                             Date of Decision : 11th August, 2011

UNION OF INDIA & ANR.                               ...... Petitioners

                          Through:      Mr. J.P. Sharma, Advocate

                                Versus

SOMPAL                                             ...... Respondent

                          Through:      Mr. Pradeep Kumar, Advocate


CORAM :
HON'BLE MR. JUSTICE A.K. SIKRI
HON'BLE MR. JUSTICE M.L. MEHTA

1.     Whether Reporters of local papers may be
       allowed to see the judgment?                      No
2.     To be referred to the Reporter or not ?           No
3.     Whether the judgment should be reported
       in the Digest ?                                   No

A.K. SIKRI, J. (Oral)

1. This petition is preferred against the orders dated

11.07.2000 passed by the learned Central Administrative

Tribunal in OA No. 1692/1997 filed by the respondent herein.

The respondent was appointed as Accountant on 12.04.1982

with the petitioner/Controller General of Accountants,

Department of Revenue, Ministry of Finance. Thereafter he

was promoted as Junior Accounts Officer with effect from

01.04.1991. In next promotion he was to hold the post of

Assistant Accounts Officer („AAO‟ for short). As per the

recruitment rules, for promotion to the post of Assistant

Accounts Officer, the incumbent is to render three years

service as Junior Accounts Officer, Grade-C. Assistant

Accounts Officer is non selection post. After the respondent

had put in 3 years in service and became eligible, he along

with others was considered by the Departmental Promotion

Committee (DPC) meeting held on 06.06.1995. Promotion

orders, pursuant to the said DPC were issued on 09.06.1995.

In this order, name of the respondent did not find place. He

made representation against his non promotion which was

rejected on 28.08.1995 on the ground that the respondent

was having one ACR with "average" remarks because of

which he was not found fit for promotion, having regard to

office memorandum dated 10.04.1989 as per which

"average" performance is to be regarded as routine and

undistinguished. This OM further stipulates that it is only

performance that is above „average‟ that is really noteworthy

which could entitle an officer to recognition and suitable

rewards in the matter of promotion.

2. After the rejection of the representation, the respondent

did not take any immediate steps for challenging the action of

the petitioner herein for not promoting the respondent to the

aforesaid post. In the mean time, another DPC was held. This

time the respondent was found fit for promotion and

promotion orders in his case was passed on 17.04.1996.

3. After getting the promotion, respondent made another

representation requesting for ante dating his promotion i.e.

with effect from 09.06.95 when earlier DPC had met and had

found him not fit for promotion. This representation was

again rejected on the same ground on which earlier

representation was rejected on 28.08.1995 namely the

respondent did not fulfill requisite benchmark. Challenging

the non promotion as well as the rejection, the respondent

filed the aforesaid OA on 25.07.1997.

4. In the reply filed by the petitioner herein to the said OA,

a preliminary objection was taken that the OA was time

barred as it was not filed within one year of the rejection of

the representation. The claim of the respondent for

promotion to the post of AAO w.e.f. 06.07.1995 was also

contested on merits. The Tribunal vide impugned order dated

11.07.2000, has allowed the OA of the respondent herein.

Plea of the petitioner herein, challenging the maintainability of

the OA as time barred, has been rejected. On merits, the

Tribunal has held that mere „average‟ grading could not be a

reason to deny the promotion when it was a non selection

post and the criteria were "seniority subject to fitness". Since

the post of AAO was an upgraded post, OM dated 10.04.1989

would not be permissible for consideration for selection to

such upgraded post.

5. After hearing the counsel for the parties, we are of the

opinion that the Tribunal wrongly held that the OA preferred

by the respondent herein was within the period of limitation.

We may note that for arriving at this conclusion, the Tribunal

has taken into consideration the date of 17.04.1996, on which

date promotion orders in respect of the respondent to the

post of AAO were issued, and further holding that the

respondent in these circumstances had made a request for

antedating of the promotion. This approach is clearly

erroneous. As pointed out above, on the earlier occasion

when the first DPC was held on 06.06.95 respondent was not

promoted as he was not found fit for promotion by the DPC.

Promotion orders of others including juniors of the respondent

were issued on 09.06.1995. Cause of action accrued on that

date to the respondent as respondent was aggrieved by this

non-promotion. In fact, as pointed out above, the respondent

had even made a representation immediately thereafter

which was, however, turned down on 28.08.1995. As per the

provisions of Section 21 of the Administrative Tribunals Act

once a representation is filed and not decided within six

months, the aggrieved party can approach the Tribunal by

filing an application under Section 19 of the Act within one

year from the expiry of 6 months. That would mean that in

case application is preferred which has not been decided

within the period of limitation for the applicant would get 18

months time to move the Tribunal. On the other hand in case

representation is rejected, then the limitation of one year

from the date of rejection is provided by Section 21 of the Act.

In the instant case since the representation was specifically

rejected on 28.08.95, the respondent could file the

application under Section 19 of the Administrative Tribunals

Act within one year thereafter i.e. by 27.8.1996. However, OA

was filed only on 25.07.1997 which was clearly time barred.

The Tribunal has calculated the period from 17.4.1996 when

the promotion orders of the respondent to the post of AAO

were issued. This was, as already noted above, on the basis

of second DPC held and had no correlation with non

promotion as a result of first DPC held on 6.6.95. The

promotion order of the respondent passed in altogether

different DPC could not provide a fresh cause of action to the

respondent who was denied promotion in the first instance on

the basis of DPC held on 6.6.95. In view of the aforesaid when

we find that OA filed by the respondent was itself time barred,

it is not necessary to go into the merits of the case. We, thus,

allow the present writ petition and set aside the order of the

Tribunal on the aforesaid ground.

6. At the same time, the facts of this case and the

subsequent events which have taken place after the filing of

the writ petition, prompt us to make certain observations

regarding non recovery of amount already paid to the

respondent herein.

7. We find from the record that the writ petition filed by the

petitioner was first listed on December 18, 2000, however, at

request made by the petitioner, it was adjourned. Thereafter

also on various occasions adjournments were sought. For the

first time the petitioner argued the matter on November 22,

2001 when notice was issued. Rule D.B. was thereafter issued

on October 15, 2003. Number of hearings took place in

between, but, there was no order staying the impugned

decision of the Tribunal. When the matter came up on 3rd

November, 2009, counsel for the respondent stated that the

review DPC had already been held which had granted

promotion to the respondent from the date his juniors were

promoted and on this ground the petition was dismissed.

However, thereafter on CM preferred by the petitioner, the

writ petition was revived. Since the review DPC was held by

the petitioner themselves and the monatory benefits have

been given to the petitioner and the period was not

substantial, even when the OA is dismissed it would be in the

in the fitness of things that the amount already paid would not

be recovered from the respondent. We hope that the

competent authority will give due diligence of these

observations of ours and pass appropriate orders. There shall,

however, be not orders as to cost.

8. The petition stands disposed of.

(A.K. SIKRI) JUDGE

(M.L.MEHTA) JUDGE August 11, 2011 awanish