Delhi High Court
Union Of India vs Dr. (Mrs.) Vasudha Gupta & Ors. on 18 September, 2015
$~12
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C).4689 /2014
% Judgment dated 18th September, 2015
UNION OF INDIA ..... Petitioner
Through : Mr. Sameer Agrawal, Adv.
versus
DR. (MRS.) VASUDHA GUPTA & ORS. ..... Respondents
Through : Dr.Santokh Singh with Mr.R.K.Pandey
Advocates for respondent no.1.
Mr.G.Natarajan & Mr.S.Raja Gopalan
Advocates for respondent no.2.
Mr.Naresh Kaushik with Mr.Vardhman
Kaushik, Advocates for respondent no.3.
CORAM:
HON'BLE MR. JUSTICE G.S.SISTANI
HON'BLE MS. JUSTICE SANGITA DHINGRA SEHGAL
G.S.SISTANI, J (ORAL)
1. By the present petition, petitioner/UOI has challenged the judgment
dated 16.1.2014 passed by the Central Administrative Tribunal, Principal
Bench, New Delhi (hereinafter referred to as `The Tribunal) in O.A.
No.2202/2013 whereby the Tribunal has allowed the aforesaid O.A. filed
by respondent no.1 herein.
2. Mr.Sameer Aggarwal, learned counsel for the petitioner submits that the
learned Tribunal has failed to take into consideration the preliminary
objection raised by the petitioner in the counter affidavit filed before the
Tribunal that the OA filed by respondent no.1 herein is patently barred by
limitation as the cause of action had arisen in favour of respondent no.1 at
the time of promotion of her junior i.e., respondent no.2 herein in the
senior time scale grade of IIS Group À' against the vacancies for the year
1994-95 on 29.1.1997. Counsel reiterated that the Tribunal has failed to
decide the preliminary objection of the petitioner as the respondent no.1
had approached the Tribunal after a gap of 17 years. Elaborating his
arguments further, counsel submits that even after 1997, seniority lists
were prepared in the years 1999, 2004 as also in 2009 but respondent no.1
did not deem it appropriate to challenge the same. On the merits of the
matter, learned counsel for the petitioner submits that the learned Tribunal
has misread the judgment relied upon by respondent no.1 in the case of
M.Nagaraj and others vs. Union of India and others, reported at 2006
(8) SCC 212 and accepted the same. Counsel submits that the case of
M.Nagaraj (supra) would not be applicable to the facts of the present
case. Learned counsel for the petitioner submits that the first seniority
list was prepared in the year 1997, as per which the name of respondent
no.2 was shown at sr.no.27 and the name of respondent no.1 is shown at
sr.no.37. Copy of the list dated 29.1.1997 has been placed on record. It
is contended that respondent no.2 was given promotion based on the
Recruitment Rules which have been filed at pages 99 to 104 of the paper
book, as per Schedule III Sr.No.6 reads as under:-
6. Senior Grade By promotion on the basis Officers in the
of seniority-cum-fitness Junior Grade with
4 years regular
service in the
grade.
3. Counsel submits that respondent no.2, a SC candidate was promoted
based on the Recruitment Rules. Copy of extract from Swamy's -
Reservations & Concessions in Govt.Services has been placed on record,
which reads as under:-
"C. Promotions on the basis of seniority subject to fitness:
There will be reservation at 15 per cent for Scheduled
Castes and 7 ½ per cent for Scheduled Tribes in promotions
made on the basis of seniority subject to fitness, in
appointment to all Class I Class II, Class III and Class IV posts
in grades or services in which the element of direct
recruitment, if any, does not exceed 75 per cent."
4. Counsel further submits that the Tribunal has failed to consider the
judgment in the case of Indra Sawhney and others vs.Union of India
and others: 1992 Supp (3) SCC 217, which is applicable to the facts of
the present case. Para 7 reads as under:-
"7. Article 16(4) does not permit provision for
reservations in the matter of promotion. This rule shall
however have only prospective option and shall not affect
the promotions already made, whether made on regular
basis or on any other basis. We direct that our decision
on this question shall operate only prospectively and shall
not affect promotions already made, whether on
temporary, officiating or regular/permanent basis. It is
further directed that wherever reservations are already
provided in the matter of promotion-be it Central Services
or State Services, or for that matter services under any
State in Article 12- such reservations may continue in
operation for a period of five years from this day.
Within this period, it would be open to the appropriate
authorities to revise, modify or re-issue the relevant rules
to ensure the achievement of the objective of Article
16(4). If any authority thinks that for ensuring adequate
representations of `backward class of citizens'in any
service, class or category, it is necessary to provide for
direct recruitment therein, it shall be open to it to do so.
(Ahmadi, J expresses no opinion on this question
upholding the preliminary objection of Union of India).
It would not be impermissible for the State to extend
concessions and relaxations to members of reserved
categories in the matter of promotion without
compromising the efficiency of the administration. "
5. The sum and substance of the arguments of learned counsel for the
petitioner on the merits of the matter is that respondent no.2 was
promoted based on the Recruitment Rules and being a reserved
candidate. He further submits that para 7 in the case of Indira Sawhney
And Others (supra), which has been reproduced above, would show that
the decision was to apply prospectively and further reservations were
allowed to be continued for a period of five years and thereafter
reservations in the matter of promotions were to be discontinued. It is
contended that the judgment was passed in the year 1992 whereas
respondent no.2 was promoted on 29.1.1997 within a period of 5 years.
Strong reliance is placed on the observations of the Supreme Court
wherein it has been directed that decision would operate only
prospectively and would not affect promotions already made, whether on
temporary, officiating or regular/permanent basis. Any promotions made
be it Central Services or State Services or for that matter services under
any Corporation, authority or body falling under the definition of `State'in
Article 12, such reservations were to continue in operation for a period of
five years from the date of judgment.
6. The stand taken by learned counsel for the petitioner has been supported
by learned counsel appearing for respondent no.2. Respondent no.2 has
also relied on various judgments more particularly in the case of P&T
SC/Tribe Employees Welfare Association vs. UOI: 1989 AIR 139 and
Kamal Kanti Dutt & Ors Vs. UOI: 1980(3) SCR 811 and also following
judgments with respect to delay in approaching the court.
1. H.S.Vankani vs. State of Gujarat: AIR 2010 SC 1714;
2. Shiba Shankar Mohapatra & Ors Vs. State of Orissa: 2010 AIR
706;
3. P.S.Sadasivaswamy vs. State of Tamilnadu: AIR 1975 SC 2271
4. State of Uttaranchal & Anr Vs. Shri Shiv Charan Singh
Bhandari: 2013(9) SCR 609.
7. Learned counsel appearing for respondent no.1 submits that it is not in
dispute that respondent no.1 is of 1989 batch while respondent no.2 is of
1990 batch and thus the seniority of respondent no.1 could not have been
unsettled by the petitioner. It is contended that seniority list prepared on
21.9.1993 shows the name of respondent no.1 at sr.no.6 while the persons
are sr.nos.6 & 7 were junior to her but shown as senior to her in the
seniority list prepared in 1997 and also senior to respondent no.2.
Counsel also relies on the counter affidavit filed by the petitioner before
the Tribunal to show that grounds sought to be urged before this court
were not raised before the Tribunal. Additionally, it is contended that as
per explanatory memorandum, respondent no.2 could not have been
granted the benefit of reservation. As far as grounds urged with regard to
limitation, counsel submits that respondent no.1 had made many
representations to the petitioner but the petitioner did not respond to the
representations and respondent no.1 was reluctant to take legal remedy.
Counsel also submits that in the case of promotion, the petitioner could
not have recourse to reservation especially when there were no rules as
despite an application made under RTI Act, the petitioner did not inform
respondent no.1 the basis of promotion to respondent no.2.
8. We have heard learned counsel for the parties and also examined the order
passed by the Tribunal. As far as plea of limitation is concerned, we find
that petitioner has raised a preliminary objection but the Tribunal has
failed to return any finding in this regard. Seniority list has been placed
on record which would show that the lists were prepared in 1997, 1999,
2004 and 2009. There is no cogent explanation as to why respondent no.1
did not take any recourse to legal remedies when repeatedly her name was
shown at serial number below respondent no.2 despite the fact that she
was of 1989 batch and respondent no.2 was of 1990 batch.
9. Based on the law laid down by the Apex Court, in our view the petitioner
had rightly raised a preliminary objection with regard to the
maintainability of the Original Application on the grounds of limitation,
delay and laches. We are of the view that delay has not been satisfactorily
explained. To say that the petitioner was reluctant to approach the Court
or that respondent no.1 had made representations, which were not decide,
cannot be a satisfactory explanation for the delay. It is well settled law
that making representations does not explain the period of limitation.
10. In the case of Brijesh Kumar & Ors. Vs. State of Haryana & Ors.,
reported at AIR 2014 SC 1612, the Apex Court has held as under:
"11. The courts should not adopt an injustice-oriented approach
in rejecting the application for condonation of delay. However the
court while allowing such application has to draw a distinction
between delay and inordinate delay for want of bona fides of an
inaction or negligence would deprive a party of the protection of
Section 5 of the Limitation Act, 1963. Sufficient cause is a condition
precedent for exercise of discretion by the Court for condoning the
delay. This Court has time and again held that when mandatory
provision is not complied with and that delay is not properly,
satisfactorily and convincingly explained, the court cannot condone
the delay on sympathetic grounds alone.
12. It is also a well settled principle of law that if some person has
taken a relief approaching the Court just or immediately after the
cause of action had arisen, other persons cannot take benefit
thereof approaching the court at a belated stage for the reason that
they cannot be permitted to take the impetus of the order passed at
the behest of some diligent person.
13. In State of Karnataka & Ors. v. S.M. Kotrayya & Ors., (1996)
6 SCC 267, this Court rejected the contention that a petition should
be considered ignoring the delay and laches on the ground that he
filed the petition just after coming to know of the relief granted by
the Court in a similar case as the same cannot furnish a
proper explanation for delay and laches. The Court observed that
such a plea is wholly unjustified and cannot furnish any ground for
ignoring delay and laches.
14. Same view has been reiterated by this Court in Jagdish Lal
& Ors. v. State of Haryana & Ors., AIR 1997 SC 2366,
observing as under:-
"Suffice it to state that appellants kept sleeping over their
rights for long and elected to wake-up when they had the
impetus from Vir Pal Chauhan and Ajit Singh's
ratios...Therefore desperate attempts of the appellants to re-
do the seniority, held by them in various cadre.... are not
amenable to the judicial review at this belated stage. The
High Court, therefore, has rightly dismissed the writ petition
on the ground of delay as well."
11. We have also examined the matter on merits. The short question which
arises for consideration is whether respondent no.2 could have been
promoted in the year 1997 as a reserved candidate. No doubt even in the
case of Indra Sawhney and ors (supra), it has been held that there can be
no reservations in the case of promotions and also the fact that the
petitioner has subsequently in its own O.Ms and the Recruitment Rules
given affect to the dictates of the Supreme Court in the case of Indra
Sawhney and ors (supra), However, at the time when respondent no.2
was promoted and was given the benefit, the same were in terms of the
Recruitment Rules, copy of which has been placed on record and has been
extracted in the paras foregoing. Para 7 in the case of Indra Sawhney
(supra) also makes it abundantly clear that the aforesaid judgment was to
apply prospectively and in fact five years time was granted to continue
with the old Recruitment Rules. Respondent no.2 was appointed within
the window of 5 years provided by the Supreme Court in Indra Sawhney
case (supra). Since respondent no.2 was appointed as per Recruitment
Rules and promotion of respondent no.2 was not challenged from 1997 till
2012 when respondent no.1 had filed O.A., we are of the view that
judgment in the case of Indra Sawhney (supra) was not brought to the
notice of the Tribunal. In our view, the judgments relied upon by the
Tribunal do not apply to the facts of the present case.
12. Resultantly, writ petition is allowed. The judgment passed by the
Tribunal is set aside. Rule is made absolute.
13. Petition stands disposed of. No costs.
G.S.SISTANI, J
SANGITA DHINGRA SEHGAL, J
SEPTEMBER 18, 2015
ssb
