V.R.K. Nair vs Uoi And Others
2018 Latest Caselaw 2140 Del

        IN THE HIGH COURT OF DELHI AT NEW DELHI


                                            Judgment Reserved on: 12.02.2018
                                          Judgment Pronounced on: 06.04.2018
W.P. (C) 3288/2003
V.R.K. NAIR                                                             ..... Petitioner

                              versus

UOI AND OTHERS                                                        ..... Respondents
Advocates who appeared in this case:
For the Petitioner           : Mr. Pankaj Kumar, Advocate.
For the Respondents          : Mr. R.V. Sinha and Mr. A.S. Singh, Advocates.



CORAM:
HON'BLE MR. JUSTICE SIDDHARTH MRIDUL
HON'BLE MS. JUSTICE DEEPA SHARMA


                                  JUDGMENT

SIDDHARTH MRIDUL, J.

1. The present petition seeks quashing of order dated 30.01.2002 passed by the learned Central Administrative Tribunal (hereinafter referred to as 'CAT') in OA No. 277/2001, whereby, the original application filed by the petitioner, seeking proforma promotion under 'NBR' w.e.f. 17.08.1992 (i.e. the date of promotion of his junior S.P. Jindal as EAD/AE), or alternatively to fix his basic pay in the grade of EAD/AE in the scale of Rs.6,500-10,500/-, at par with his juniors who were promoted along with him; came to be dismissed.

2. The facts, as are necessary for the adjudication of the present petition, are briefly adumbrated as follows:-

i) On 18.01.1972, the petitioner was appointed as Junior Engineer in the Central Water Commission-Respondent No.2.

ii) On 31.07.1992, the petitioner who was working as Junior Engineer (JE) in Bhutan, was promoted and posted as EAD/AE under Chief Engineer, North Eastern Region, Shillong. However, pursuant thereto the petitioner did not join as EAD/AE in Shillong.

iii) Subsequently, vide order dated 04.09.1992, the petitioner was posted to N.E. Investigation Division-II, under N.E. Investigation Circle, Shillong. However, the petitioner of his own volition did not join thereat as well, because meanwhile he was selected for deputation under National Water Development Agency (for short 'N.W.D.A.') at Trivandrum i.e. his home town, and his services were placed thereunder vide office order dated 31.07.1992.

iv) Pursuant thereto, the petitioner handed over charge to proceed to Trivandrum on 05.09.1992, in compliance of an order dated 01.09.1982 relieving him from his earlier duties.

v) It is the case of the petitioner that he made repeated representations to respondent No.2, resting with a representation dated 06.10.1999, which also did not yield the desired result. Eventually, upon rejection of his said representation dated

06.10.1999 vide memo dated 03.02.2000, the petitioner assailed the latter memo by instituting the aforesaid O.A. No.277/2001. The learned CAT by way of the impugned order observed as follows:-

"Applicant seeks proforma promotion under NBR w.e.f. 17.8.92 i.e. that date of promotion of his junior Shri S.P. Jindal, EAD/AE, or alternatively to fix his basic pay in the grade of EAD/AE in the scale of Rs. 6500-10500 at par with his juniors who were promoted along with him.

2. Heard both sides.

3. By order dated 31.7.92 (Annexure III) applicant who was working as J.E. in Bhutan was promoted and posted EAD/AE under Chief Engineer, North Eastern Region, Shillong. Respondents' letter dated 17.11.93 (Annexure R-III) reveals that aforesaid order dated 31.7.92 was passed on to applicant on 25.8.92 on proper receipt, but applicant himself avers in para 1(iii) of his O.A. that he did not join as EAD/AE in Shillong pursuant to the aforesaid order dated 31.7.92. Subsequently he was further posted to N.E. Investigation Division II under N.E. Investigation Circle, Shillong vide order dated 4.9.92. Meanwhile he had earlier applied for the post of A.E. in N.W.D.A. Trivandrum and consequent to his selection, orders for relieving him from CWC issued on 31.7.92 upon which he relinquished charge on 5.9.92 and proceeded on deputation to Trivandrum. Meanwhile Shri S.P. Jindal, whose name featured below applicant's name in order dated 31.7.92 and was also promoted and posted by the same order in C.E., N.E. Region, Shillong, presumably joined his post pursuant to that order soon after.

5. Government of India order No.29 below FR 22 in Swamy's Compilation of FRs and SRs 13th Edition 1997 lays down that N.B.R. is attracted where an officer in a post (whether within the cadre of his service or not) is prevented from officiating in his turn in a post in the higher scale. In the present O.A. there is no averment by applicant that he was prevented from joining as EAD/A.E. at Shillong. Indeed applicant did not join at Shillong of his own volition because meantime he had been selected for deputation under N.W.D.A. at Trivandrum and made over charge to proceed to Trivandrum on 5.9.92.

6. In the light of the above, neither the benefit of NBR nor of pay fixation vis-a-vis Shri S.P. Jindal is admissible to applicant. The O.A. is dismissed. No costs."

3. It is the petitioner's case before us that he was prevented from officiating in his turn in a post in the higher scale, on account of the circumstance that the said order dated 04.09.1992 was never served on him.

4. Before examining the submission made on behalf of the petitioner, it would be relevant to point out that the subject promotion order dated 31.07.1992 has been subsequently withdrawn in pursuance to orders in collateral proceedings that ensued between the Association of Junior Engineers of CWC, relating to quota system of graduate and diploma holders. Consequently, the other junior colleagues of the petitioner have been reverted from the post of EAD/AE to that of JE w.e.f. 04.04.1995, vide office order dated 05.04.1995; in compliance of the judgment dated 28.07.1994 of the Hon'ble Supreme Court in the said collateral proceedings. In other words, the said promotion order dated 31.07.1992, of which the petitioner today seeks implementation, does not exist.

5. Also, it would be relevant to note that the petitioner filed the said O.A. No.277/200 before the CAT in February, 2001. Upon a specific query from the Court, seeking an explanation in relation to the delay in instituting the proceedings in accordance with law, the solitary submission made on behalf of the petitioner is to the effect that he had been agitating his claim before the concerned Department, and the rejection of his said representation dated 06.10.1999 furnished him with a cause of action to seek the relief prayed for in the present proceedings.

6. In this behalf, reference may be made to a decision rendered by us on 20.11.2017 in Ziauddin Hassan vs. University of Delhi & Ors being LPA No.737/2017, where we were pleased to observe that "the plea urged on behalf of the appellant that the delay was occasioned on behalf of the repeated representations made by him to the respondents is not tenable, inasmuch as, repeated representations cannot entitle a party to agitate a dead and stale claim. It is trite to state that equity does not aid those who slumber over their rights."

7. Reference may also be made to the decision in C. Jacob vs. Director of Geology and Mining and Anr. reported as (2008) 10 SCC 1115, wherein, the Hon'ble Supreme Court whilst considering the issue of modus of representation adopted by petitioners to get over the bar of limitation/delay and laches, observed as follows:-

"8. Let us take the hypothetical case of an employee who is terminated from service in 1980. He does not challenge the termination. But nearly two decades later, say in the year 2000, he decides to challenge the termination. He is aware that any such challenge would be rejected at the threshold on the ground of delay (if the application is made before Tribunal) or

on the ground of delay and laches (if a writ petition is filed before a High Court). Therefore, instead of challenging the termination, he gives a representation requesting that he may be taken back to service. Normally, there will be considerable delay in replying such representations relating to old matters. Taking advantage of this position, the ex-employee files an application/writ petition before the Tribunal/High Court seeking a direction to the employer to consider and dispose of his representation. The Tribunals/High Courts routinely allow or dispose of such applications/petitions (many a time even without notice to the other side), without examining the matter on merits, with a direction to consider and dispose of the representation.

9. The courts/tribunals proceed on the assumption, that every citizen deserves a reply to his representation. Secondly they assume that a mere direction to consider and dispose of the representation does not involve any "decision" on rights and obligations of parties. Little do they realize the consequences of such a direction to "consider". If the representation is considered and accepted, the ex-employee gets a relief, which he would not have got on account of the long delay, all by reason of the direction to "consider". If the representation is considered and rejected, the ex-employee files an application/writ petition, not with reference to the original cause of action of 1982, but by treating the rejection of the representation given in 2000, as the cause of action. A prayer is made for quashing the rejection of representation and for grant of the relief claimed in the representation. The Tribunals/High Courts routinely entertain such applications/petitions ignoring the huge delay preceding the representation, and proceed to examine the claim on merits and grant relief. In this manner, the bar of limitation or the laches gets obliterated or ignored.

10. Every representation to the Government for relief, may not be replied on merits. Representations relating to matters which

have become stale or barred by limitation, can be rejected on that ground alone, without examining the merits of the claim. In regard to representations unrelated to the department, the reply may be only to inform that the matter did not concern the department or to inform the appropriate Department. Representations with incomplete particulars may be replied by seeking relevant particulars. The replies to such representations, cannot furnish a fresh cause of action or revive a stale or dead claim."

8. In this behalf, it would also be relevant to note that the petitioner at no stage challenged either the subsequent Office Memorandum dated 17.08.1994, on the subject of seniority list of officers on the grade of EAD/AE (Civil/Mechanical) in CWC as on 01.03.1994, wherein, it was specifically mentioned that the petitioner "Instead of joining as EAD/AE in CWC proceeded on deputation as AE to NWDA wef 31.7.92"; or the Office Order dated 05.04.1995, whereby, certain officers, including Shri S.P. Jindal, who were reverted to the post of JE as a result of the said collateral proceedings, were given adhoc promotion as Assistant Engineer.

9. In view of the foregoing, it must be observed in relation to the delay in institution of the proceedings before the learned CAT, that the petitioner has been unable to offer any cogent explanation for the same, save and except, to urge that he was making repeated representations to the official respondent.

10. On the merits of the case, our attention has been drawn to a decision of a Division Bench of this Court in Sher Singh vs. Union of India thr. Defence Secretary & Ors. being Civil Writ No.8840 of 2003, decided on 07.03.2006, wherein, it was observed in paragraphs 18 and 21 as follows:-

"18. Secondly, the petitioner has also prayed for stepping up pay on the basis that his immediate junior was drawing a

higher pay as Civilian Staff Officer. The respondents have admitted that the immediate junior to the petitioner namely, one Mr. Ram Prasad was drawing a higher pay than the petitioner as Civilian Staff Officer but this was on account of the fact that the said officer had earned increments during the period 15th May, 1997 till 10th August, 2001, while officiating as Civilian Staff Officer. The petitioner's pay and allowances of Civilian Staff Officer have been calculated treating him to have been promoted on 9th August, 2001.

22. The Fundamental Rule 22 and the principle of stepping up of pay has been examined and considered by the Supreme Court in several cases. In the case of Union of India and Anr. v. Sushil Kumar Paul and Ors. reported in (1998) 5 SCC 268 almost an identical question had arisen. It was held that principle of stepping up of pay was not applicable when a junior was getting higher pay scale because he had benefit of working on ad hoc officiating post before regular promotion. It was held that the OM dated 4.11.93 did not permit stepping up in such cases and there was no anomaly as such. Therefore, a junior at times can draw higher pay than a senior because of advance increments and on other accounts but such cases cannot always be regarded as an anomaly on the basis of which a senior can claim stepping up of pay at par with his junior. In this case, the Supreme Court had relied upon its earlier decision in the case of Union of India v. O.P. Saxena reported in (1997) 6 SCC 360. This was a case relating to Railway employees and Rules 1316 and 1313, which are/were equivalent to Fundamental Rule 22 had come up for consideration. In another case Union of India and Anr. v. R. Swaminathan and Ors., (1997) 7 SCC a question arose whether a senior employee who should get regular promotion earlier than his junior, was entitled to get his pay stepped up because his juniors pay had been fixed at a higher stage as he

had worked on local ad hoc promotion, while the senior did not get any such opportunity. Reference was made to Fundamental Rule 22(1) and Fundamental Rule 26(8). The said Rules recognise that service rendered on ad hoc promotion would be counted for pay fixation/increment on regular promotion though such period cannot be counted for seniority on promotion post. It was further held that the difference in pay of a junior and a senior was not a case as a result of application of FR 22(I)(a)(1). It was opined that difference in pay does not result any anomaly requiring stepping up of pay of the senior. Reference in this judgment was specifically made to the Office Memorandum dated 4.11.93 in which it has been clarified that higher pay drawn by a junior either due to ad hoc officiating service rendered in higher post for periods earlier than the senior, cannot, therefore, be considered to be an anomaly in the strict sense of the term."

(Emphasis supplied)

11. Therefore, the proposition that every time a junior employee is drawing a higher salary than his senior, the latter can claim stepping up of pay at par with the former, cannot be accepted. In the facts and circumstances of a case, there may be a situation resulting in a junior employee drawing a higher salary than his senior and it cannot be always termed as an anomaly.

12. In this view of the matter, we are of the considered view that the relief prayed for by the petitioner, seeking proforma promotion under N.B.R. w.e.f. 17.08.1992 (i.e. the date of promotion of his junior S.P. Jindal as EAD/AE), or alternative plea to fix his basic pay in the grade of EAD/AE in the scale of Rs.6,500-10,500/-, at par with his juniors who were promoted along with him is

not permissible since the petitioner was not prevented in any manner from officiating in the higher grade.

13. Even otherwise, the petitioner has been unable to demonstrate any perversity in the impugned judgment dated 30.01.2002, so as warrant interference by this Court in the present petition under Articles 226 and 227 of the Constitution of India. In fact, the decision relied upon heavily on behalf of the petitioner in Shamshad Ahmad and Ors. vs. Tilak Raj Bajaj (Deceased) Through Lrs. and Ors. reported as (2008) 9 SCC 1, and in particular paragraph 38 thereof, which was strenuously canvassed before us, negates the interference that the petitioner prays for whilst assailing the impugned order. The relevant portion of the said report reads as follows:-

"38. Though powers of a High Court under Articles 226 and 227 are very wide and extensive over all Courts and Tribunals throughout the territories in relation to which it exercises jurisdiction, such powers must be exercised within the limits of law. The power is supervisory in nature. The High Court does not act as a Court of Appeal or a Court of Error. It can neither review nor reappreciate, nor reweigh the evidence upon which determination of a subordinate court or inferior Tribunal purports to be based or to correct errors of fact or even of law and to substitute its own decision for that of the inferior court or tribunal. The powers are required to be exercised most sparingly and only in appropriate cases in order to keep the subordinate courts and inferior tribunals within the limits of law."

14. In view of the foregoing, it is trite to state that this Court whilst considering the merits of an order passed by an inferior Tribunal, cannot substitute its own decision for that of the inferior Tribunal; and, further, that the powers vested in

this Court under Article 226 and 227 of the Constitution of India are required to be exercised most sparingly and only in appropriate cases, in order to keep the subordinate Courts and inferior Tribunals within the limits of the law. In other words, the power vested in this Court is supervisory in nature and this Court cannot act as a Court of Appeal by reviewing, re-appreciating or reweighing the evidence upon which an inferior Tribunal has arrived at a conclusion, bar on the consideration that the same is patently perverse.

15. In view of the foregoing discussion, there appears to be no circumstance which warrants an intereference of this Court with the impugned judgment under Article 226 and 227 of the Constitution of India.

16. The petition is devoid of merit and is dismissed accordingly.

17. No order as to costs.

SIDDHARTH MRIDUL, J

DEEPA SHARMA, J

APRIL 06, 2018 ap/rs/ns