R.K.Kapoor vs Union Of India
2012 Latest Caselaw 2631 Del

       *       IN THE HIGH COURT OF DELHI AT NEW DELHI
%                               Judgment reserved on:   13.4.2012
                                Judgment pronounced on: 23.04.2012
+      W.P.(C) 3992/2011

       R.K.Kapoor                                                           ..... Petitioner

                            versus

       Union of India                                                       ..... Respondent

Advocates who appeared in this case:
For the Petitioner   : Mr. Jayant Nath, Sr. Advocate with Mr. B.C.Pandey & Mr. S.P.Kamrah
For the Respondent   : Mr. R.V.Sinha & Ms. Sangita Rai

CORAM:
HON'BLE MR. JUSTICE BADAR DURREZ AHMED
HON'BLE MR. JUSTICE V.K.JAIN

V.K. JAIN, J.

This writ petition is directed against the order dated 5.4.2010 passed by the

Central Administrative Tribunal, Principal Bench, New Delhi (hereinafter referred

to as the Tribunal) whereby OA No. 994/2010 filed by the petitioner was

dismissed. The facts giving rise to the filing of this writ petition can be

summarized as under:

The petitioner joined as Appraiser of Customs, in the Customs and Excise Service,

in the year 1964. In the year 1976, he was promoted as Assistant Collector on ad-

hoc basis and his services as Assistant Collector were regularized in August, 1978.

On 23.5.1991, he was promoted as Deputy Collector on ad-hoc basis. The

petitioner superannuated from service of the Government on 31.3.1995. The issue

of seniority of promotees vis-à-vis direct recruits had been a matter of litigation and

was finally resolved by the Supreme Court vide judgment dated 8.5.1996, inter

alia, directing that a fresh All India Combined List of Appraisers be prepared on

the basis of continuous officiation of the incumbent in the post of Appraiser

appointed on and from the date of Customs Appraisers Service, Class II

Recruitment Rules 1961. By another judgment delivered in November, 1996, the

Supreme Court directed review of the ad-hoc appointments made in the grade of

Assistant Collector and also directed preparation of a joint seniority list of

promotees and direct-recruits to the post of Assistant Commissioner.

Consequently, 16 Deputy Collectors were promoted to the Non-Functional

Selection Grade (NFSG) vide order dated 1.4.1997. 52 more Deputy Collectors

were promoted vide order dated 27.8.1997 w.e.f. 1.7.1995 onwards. The revised

seniority lists of Appraisers and Assistant Collectors were issued on 12.11.1997

and 30.11.2000 respectively. Consequently, vide order dated 3.5.2002, the

petitioner was promoted to the post of Deputy Collector on a regular basis w.e.f.

1.1.1990.

The Customs and Excise Service Rules inter alia provided that on stagnating

at the maximum scale of pay of Grade IV for two years the officer was entitled to

grant of Grade-III i.e. Non Functional Selection Grade (NFSG). Vide GSR 794(E)

dated 17.9.1987, it was prescribed that appointment to Grade-III shall be by

promotion on the basis of seniority, subject to rejection on unfitness. The

petitioner made a representation seeking promotion to the Non-Functional

Selection Grade (NFSG) on the ground that he, having been regularly promoted

w.e.f. 1.1.1990, was entitled to grant of the said scale on his stagnating at the

maximum of pay scale of Grade-IV. He also claimed that the notification whereby

he was regularized w.e.f. 1.1.1990 was never communicated to him and therefore

he was not aware of the same. He claimed that this fact came to his knowledge

only on receipt of a letter dated 1.1.2009 received from his junior colleague Mr.

R.S.Rajan. The respondent vide letter dated 5.1.2010 rejected the representations

of the petitioner on the ground that NFSG to his juniors was granted w.e.f. 1.1.1998

and after his retirement from service. Being aggrieved by the rejection of his

representations the petitioner filed OA No. 994/2010 which came to be dismissed

by the impugned order dated 5.4.2010. The OA was dismissed for two reasons.

The first reason given by the Tribunal for dismissing the OA was that the juniors of

the petitioner got NFSG w.e.f. 1.1.1998 and the OA having been filed in the year

2010 was barred by limitation. The second reason given by the Tribunal for

dismissing the OA was that the petitioner had retired from service on 31.3.1995

whereas his juniors were given NFSG w.e.f. 1.1.1998 more than after two years

after his retirement and therefore, he was not entitled to NFSG.

2. It is an admitted position before us that the petitioner had stagnated for more

than two years at the maximum of the pay-scale of Grade-IV, before he

superannuated on 31.3.1995. It is also an admitted case that the petitioner was

promoted on regular basis w.e.f. 1.1.1990. It is also not in dispute that those who

were junior to the petitioner in the cadre, in which he was working at the time of

his retirement, were granted NFSG, though after he had retired from service. The

very fact that the respondents granted regular promotion to the petitioner w.e.f.

1.1.1990 clearly shows that the respondents were in the wrong in not promoting

him before his superannuation on 31.3.1995. Had the petitioner been promoted

w.e.f. 1.1.1990, before he retired from service on 31.3.1995, indisputably, he would

have been entitled to be considered for grant of NFSG, on stagnating for two years

at the maximum of the pay scale applicable to Grade-IV, in which he was working

at the time of his superannuation. The respondents cannot be allowed to take

advantage of their own mistake, by denying NFSG to the petitioner solely on the

ground that he had superannuated from service before this benefit was extended to

his juniors. No rule providing that a person granted retrospective promotion would

not be considered for grant of NFSG, merely on account of his superannuation, in

the meanwhile, has been brought to our notice. Therefore, we cannot accept the

contention that the respondents cannot consider the petitioner for grant of NFSG

despite his otherwise being entitled to such consideration, merely because he has

since retired from service.

3. As regards limitation, the learned Counsel for the petitioner has contended

that the petitioner was subjected to a continuous wrong on account of the actions of

the respondents in denying NFSG to him despite his being otherwise entitled to be

considered for the same and therefore, the period of limitation prescribed in Section

21 of the Administrative Tribunals Act would not apply. In this regard he has

placed reliance upon Union of India And Others v. Tarsem Singh: (2008) 8 SCC

648.

In M.R.Gupta v. Union of India: (1995) 5 SCC 628, M.R.Gupta, the

appellant before the Supreme Court had approached the High Court in the year

1989 with a grievance with respect to his initial pay fixation w.e.f. 1.8.1978. His

claim was rejected on the ground that it had been raised after 11 years. Setting

aside the decision of the High Court, Supreme Court inter alia held as under:

"The appellant's grievance that his pay fixation was not in accordance with the rules, was the assertion of a continuing wrong against him which gave rise to a recurring cause of action each time he was paid a salary which was not computed in accordance with the rules. So long as the appellant is in service, a fresh cause of action arises every month when he is paid his monthly salary on the basis of a wrong computation made contrary to rules. It is no doubt true that if the appellant's claim is found correct on merits, he would be entitled to be paid according to the properly fixed pay scale in the future and the question of limitation would arise for recovery of

the arrears for the past period. In other words, the appellant's claim, if any, for recovery of arrears calculated on the basis of difference in the pay which has become time barred would not be recoverable, but he would be entitled to proper fixation of his pay in accordance with rules and to cessation of a continuing wrong if on merits his claim is justified. Similarly, any other consequential relief claimed by him, such as, promotion etc., would also be subject to the defence of laches etc. to disentitle him to those reliefs. The pay fixation can be made only on the basis of the situation existing on 1.8.1978 without taking into account any other consequential relief which may be barred by his laches and the bar of limitation. It is to this limited extent of proper pay fixation, the application cannot be treated as time barred...."

In Tarsem Singh (supra), the respondent was declared invalid from army

service on 13.11.1983. He approached the High Court in the year 1999 for grant of

disability pension. The learned Single Judge allowed the writ petition but restricted

arrears to a period of three years and two months prior to filing of the writ petition.

The Division Bench, however, allowed the arrears w.e.f. 31.11.1983 itself.

Referring to M.R.Gupta (supra) and other decisions, the legal position with respect

to applicability of limitation in case of continuous/recurring wrongs was

summarized by the Supreme Court as under:

"To summarise, normally, a belated service related claim will be rejected on the ground of delay and laches (where remedy is sought by filing a writ petition) or limitation (where remedy is sought by an application to the Administrative Tribunal). One of the exceptions to the said rule is cases relating to a continuing wrong. Where a service related claim is based on a continuing wrong,

relief can be granted even if there is a long delay in seeking remedy, with reference to the date on which the continuing wrong commenced, if such continuing wrong creates a continuing source of injury. But there is an exception to the exception. If the grievance is in respect of any order or administrative decision which related to or affected several others also, and if the re- opening of the issue would affect the settled rights of third parties, then the claim will not be entertained. For example, if the issue relates to payment or re-fixation of pay or pension, relief may be granted in spite of delay as it does not affect the rights of third parties. But if the claim involved issues relating to seniority or promotion etc., affecting others, delay would render the claim stale and doctrine of laches/limitation will be applied. In so far as the consequential relief of recovery of arrears for a past period, the principles relating to recurring/successive wrongs will apply. As a consequence, High Courts will restrict the consequential relief relating to arrears normally to a period of three years prior to the date of filing of the writ petition."

4. The proposition of law which emerges from these decisions is that

ordinarily, the limitation prescribed in Section 21 of the Administrative Tribunals

Act needs to be applied wherever the remedy sought by the applicant before the

Tribunal is barred by limitation. If, however, a continuous/recurring wrong has

been caused to the applicant, and he is otherwise found entitled to the relief

claimed by him, the relief should not be denied to him only on account of delay in

approaching the Court/Tribunal. If the relief sought by the applicant before the

Court/Tribunal, if granted, is related to or likely to affect other persons, the

Court/Tribunal would not be justified in granting such a relief, even if the applicant

is otherwise entitled to it on merits, the logic behind the approach being that the

rights having implications on third parties, cannot be enforced when the applicant

approaches the Court/Tribunal after expiry of the prescribed period of limitation.

If, on account of the relief claimed by the applicant, a settled seniority is likely to

be disturbed or someone is likely to lose the promotion or the promotional grade

already granted to him, the Court would apply the law of limitation and deny relief

to a person who has not been vigilant in seeking enforcement of his rights. But,

where the wrong caused to a person is a recurring/continuous wrong and no other

person is likely to be prejudicially affected on account of grant of relief sought by

him, the Court/Tribunal would not be justified in denying the relief to which the

applicant is otherwise entitled on merits, merely on ground of limitation.

5. In the case before us, it is nowhere the case of the respondents in the counter

affidavit filed by them, that if NFSG is granted to the petitioner it would result in

withdrawal of such a benefit from some other person to whom it has already been

granted. Therefore, it cannot be said that the relief sought by the petitioner, if

granted, would affect any third party interest created in the meanwhile.

6. In our view, grant of NFSG though termed as a promotion, cannot be treated

at par with promotion from one rank/position to another in the hierarchy of

ranks/positions. Grant of such a non-functional benefit which is granted to an

employee on account of his stagnating at the maximum of pay-scale, in which he is

placed, is only a sort of monetary compensation to him on account of his stagnating

at the maximum of the pay scale applicable to him.

7. Section 20 of the Administrative Tribunals Act, 1985, to the extent it is

relevant, provides that a Tribunal shall ordinarily admit an application unless it is

satisfied that the applicant had availed of all the remedies available to him under

the relevant service rules as to redressal of grievance. For this purpose, a person

shall be deemed to have availed of all the remedies available to him under the

service rules as to redressal of grievance, if a final order has been made rejecting

any appeal preferred or representation made by such a person in connection with

his grievance. It further provides that where no such final order is made, the

applicant shall be deemed to have availed all the remedies available to him, if a

period of 06 months from the date of his appeal/representation has expired.

Section 21 of the Administrative Tribunals Act, to the extent it is relevant, provides

that the Tribunal shall not admit an application, in a case where a final order such

as is mentioned in Clause (a) of Sub-Section 2 of Section 20 has been made, in

connection with grievance, unless the application is made within one year from the

date such final order is made. In the case before us, admittedly, the order was

passed by the respondents on 5.1.2010 rejecting the representation of the applicant

regarding his promotion. Having been filed on 5.4.2010, the OA, therefore, cannot

said to be barred by limitation prescribed under Section 21 of the Administrative

Tribunals Act. It also appears from the petition that the first representation was

allegedly made by the petitioner on 5.3.2009 though according to the respondents,

it was made in April, 2009. Even if the period of limitation is considered from the

date of making the first representation, it would expire only on 4.9.2010 and the

OA would not be barred by limitation. It was contended by the learned Counsel for

the respondents that since the petitioner was promoted as Deputy Collector on a

regular basis on 3.5.2002, he ought to have made representation soon thereafter, in

case he was aggrieved on account of the NFSG not being granted to him. The case

of the petitioner in this regard, as disclosed in para 14 of the writ petition, is that he

came to know of his retrospective promotion only when the VIth Pay Commission

Report was implemented in September, 2008 and further confirmation was made

when a junior colleague Mr. R.S.Rajan vide a letter dated 1.1.12009 informed him

that he had been granted Selection Grade by an August, 1997 order. A copy of that

letter has been annexed as Annexure P-7 to the writ petition. In the counter

affidavit, this averment made by the petitioner has not been specifically

controverted by the respondents and in any case this is not the case of the

respondents that the order whereby retrospective promotion on regular basis was

granted to the petitioner, vide order dated 3.5.2002, was served upon the petitioner

at any time prior to September, 2008. Hence, it cannot be said that making of the

representation was unduly delayed by the petitioner.

8. For the reasons given in the preceding paragraphs, we direct the respondents

to consider the petitioner for grant of Non-Functional Selection Grade, on the date

he stagnated for two years at the maximum of pay scale in which he was placed at

the time he superannuated, subject to a vacancy in the said Non-Functional

Selection Grade being available on that date and the petitioner being eligible to

grant of Non-Functional Selection Grade against that vacancy. If the vacancy,

against which Non-Functional Selection Grade could be granted to the petitioner,

was not available on the date he completed two years of stagnation at the maximum

of the pay scale but became available later at any time prior to his superannuation

on 31.3.1995, the respondents would consider the petitioner for grant of the said

Non-Functional Selection Grade with effect from that date. We also make it clear

that while considering the petitioner for grant of Non-Functional Selection Grade in

terms of this order, the respondent would apply those rules, which were in force at

the time the vacancy against which the petitioner is considered, arose.

The writ petition stands disposed of in terms of this order. There shall be no

order as to costs.

V.K.JAIN, J

BADAR DURREZ AHMED, J APRIL 23, 2012 vn