P.K. Pandey vs Union Of India & Ors.
2011 Latest Caselaw 3099 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI
+                  W.P. (C) NO.4023 OF 2000

%                                   PRONOUNCED ON: JULY 4,2011


P.K. PANDEY                                  . . . PETITIONER
                        Through : Mr. B.N. Singhvi, Advocate with
                                  Mr. S.M. Garg, Advocate

                              VERSUS

UNION OF INDIA & ORS.                           . . .RESPONDENTS
                  Through:                Ms.     Ruchi   Sindhwani,
                                          Advocate for R-2/GNCT of
                                          Delhi.


CORAM :-

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

       1.     Whether Reporters of Local newspapers may be
              allowed to see the Judgment?
       2.     To be referred to the Reporter or not?
       3.     Whether the Judgment should be reported in the
              Digest?


A.K. SIKRI, J.

1. This writ petition is preferred by the petitioner under Article

226 of the Constitution of India impugning the orders dated 29th

February, 2000 passed by the Central Administrative Tribunal

(hereinafter referred to as „the Tribunal‟) in O.A. No. 1284/1997.

The aforesaid O.A. was preferred by the petitioner herein under

Section 19 of the Central Administrative Act seeking certain reliefs.

The Tribunal has dismissed the O.A. of the petitioner on the

ground of limitation as well as on merits. Before we spell out the

grievances which were raised by the petitioner in the said O.A., we

deem it proper to take stock of the relevant facts.

2. Respondent No.3 (Dr. Usha Yadav) joined Guru Nanak Eye

Centre on 23rd November, 1984. Office Order dated 24th

November, 1984 was issued in this respect stipulating that the

appointment was to the post of Specialist, Grade-II post of

Assistant Professor (Ophthalmology), LNJP Hospital, New Delhi in

Teaching Specialist Sub-Cadre of the Central Health Service (CHS).

We may like to point out at this stage that respondent no.3 was

appointed by the Government of NCT of Delhi and was posted at

the aforesaid hospital which is being run by the Delhi Government.

3. The petitioner was, likewise, appointed to the post of

Assistant Professor (Ophthalmology) after he was selected and

recruited as Specialist, Grade-II in Teaching Specialist Sub-Cadre of

the CHS. He was posted at Lady Hardinge Medical College w.e.f.

3rd December 1985. On 25th September, 1986 the petitioner was

transferred to Maulala Azad Medical College (MAMC) as Assistant

Professor.

4. In the O.A. filed by the petitioner, the petitioner also averred

that the respondent no.3 was given extraordinary leave w.e.f. 5th

September, 1988 to 17th December, 1988 to meet her husband in

Australia. However, respondent no.3 did not join back her duties

after the expiry of the leave period. Instead she made

representation for extension of leave by 12 months. The said

leave was ultimately granted vide orders dated 20th April, 1989.

She was given leave upto 17th July, 1989 with a caution that no

further extension would be granted to her and disciplinary action

for unauthorized absence would be taken against her on failure to

report on 18th July, 1989. The respondent no.3 did not join the

duties even on 18th July, 1989. According to the petitioner, she

remained absent un-authorisedly beyond 18th July, 1989 and even

the disciplinary action was contemplated against her. Be as it

may, the facts remains that unauthorized period beyond 18th July,

1989 was ultimately regularized and she was allowed to join the

duties sometime in the year 1992.

5. The cases of these Assistant Professors for further promotion

to the post of Professor were considered by the Department and

vide orders dated 21st May, 1993. Twelve persons were promoted

as Professors. The name of the respondent no.3 did not find

mention therein. However, thereafter, presumably on the

representation of the respondent no.3 a special Departmental

Promotion Committee was convened and the respondent no.3 was

given promotion to the post of Professor w.e.f. 23rd November,

1992 vide orders dated 26th October, 1994. The petitioner also got

promoted to the post of Professor by non-selection method (time

bound promotion after 8 years) w.e.f. 3rd December, 1993 vide

orders dated 19th June, 1995.

6. It is clear from the above that whereas the respondent no.3

was promoted to the post of Professor w.e.f. 23rd November, 1992

and order to this effect was passed on 26th October, 1994 the

petitioner was given promotion to the said post of Professor only

w.e.f. 3rd December, 1993. Thus, in so far as post of Professor is

concerned the petitioner was promoted to the said post much after

the respondent no.3.

7. The seniority list as on 1st January, 1996 for the post of

Professors was issued by the Department in which the respondent

no. 3 was shown senior to the petitioner and naturally so, as

already pointed out, the respondent no.3 was promoted as

Professor prior to the petitioner. Respondent no.3 was appointed

as Assistant Professor concerned on 23rd November, 1984 whereas

the petitioner came to be appointed to this post on 3rd December,

1985.

8. After issuance of the seniority list, for the first time, the

petitioner made representations dated 20th May, 1996 and 15th

June, 1996 questioning the seniority assigned to the respondent

no.3. In these representations, his plea was that the respondent 3

joined as Assistant Professor against a temporary vacancy

whereas the petitioner was appointed to the post of Assistant

Professor against a regular vacancy and, therefore, the petitioner

should have been treated senior to the respondent no.3. It was

further contended that since the respondent no.3 remained on

authorized absence for quite some time and was re-employed as

Assistant Professor w.e.f. 12th April, 1991 and she could not be

treated as senior to the petitioner and, therefore, the petitioner

should be shown as her senior. These representations were

rejected vide orders dated 7th April, 1997. At this stage,

challenging these orders, the petitioner filed the aforementioned

O.A. before the Tribunal with the following prayer:-

"(a) set aside and quash the impugned seniority list as on 1.1.1996 as well as the rejection order dated 7.4.1997.

(b) quash and set aside the impugned order dated 26.10.1994 promoting the respondent no.3 w.e.f. 23.11.1992.

(c) direct the respondents No.1 and 2 to refix the seniority of the applicant above respondent No.3 as she was re-employed w.e.f. 12.4.1991 as Associate Professor and eligible for promotion on or after 23.12.1995 only.

(d) Declare that the respondent No.3 cannot count her services on the post of Associate Prof. during the period of unauthorized absence and that the conversion of unauthorized absence into EOL is bad and illegal and thereby consequently quash and set aside the same."

9. This O.A. was filed on 20th April, 1998. It is clear from the

prayers extracted above that the petitioner had, inter alia,

challenged the orders dated 26th October, 1994 whereby the

respondent no.3 was given promotion to the post of Professor

w.e.f. 23rd November, 1992. Whether the petitioner was entitled to

other relief or not naturally depend upon the validity of the

aforesaid order, whereby the petitioner had questioned the

promotion given to the respondent no.3 w.e.f. 23rd November,

1992. However, when this promotion orders were issued, the

petitioner had not objected to the same. The plea taken by the

petitioner before the Tribunal was that it is only when seniority list

was issued that he came to know that he ranked below the

respondent no.3 in the said seniority list and cause of action arose

in his favour from that day, without losing any time, the

petitioner had challenged the promotion and seniority of

respondent no.3 by making representation. The Tribunal has not

accepted this plea observing that the cause of action arose when

promotion orders were issued and not when the seniority list was

circulated. On this basis, the O.A. of the petitioner was dismissed

as time barred under Section 21 of the said Act having been filed

much after the expiry of one year from the date of issuance of

orders dated 26th October, 1994.

10. It is not in dispute that as per provisions of Section 21 of the

Central Administrative Act, is provided for an aggrieved person to

challenge the impugned action on the part of the Department.

The contention of the petitioner that cause of action arose only on

the date when the seniority list was issued is totally misconceived.

Once, the promotion order is not challenged, the promotion is to

be treated as valid on that action and the seniority list was only

consequential. Therefore, cause of action arose to the petitioner

when the promotion orders were issued on 26th October, 1994 as

rightly point out by the Tribunal. From this date, the petitioner,

however, did not make any representation against this order of

promotion nor approached the Tribunal within a period of one year

from the date of such order. Such an O.A. was thus clearly time

barred and rightly dismissed on this ground. We are also of the

opinion that the Tribunal was right in observing that it cannot be

believed that the petitioner was not aware of the promotion of the

respondent no.3 as Professor. The petitioner as well as the

respondent no.3 are under the employment of same employer in

the said Department. Merely because at given point of time they

were posted in two different hospitals would not afford any proper

explanation or justification to the petitioner to claim the ignorance

about the promotion of respondent no.3 No such plea was ever

taken in the representations made by the petitioner. It was only

when the respondent took objections of O.A. being time barred in

the reply filed to the O.A, the petitioner came out with the plea

that he was unaware of the promotion of respondent no.3 as

Professor which cannot be accepted. Since the O.A. filed by the

petitioner has rightly been dismissed as hit by limitation under

Section 21 of the Act, it is not necessary to go into the merits.

This petition is dismissed on this ground alone.

(A.K. SIKRI) JUDGE

(M.L. MEHTA) JUDGE JULY 4, 2011/skb