Jharkhand High Court
Binod Kumar Jha vs The Union Of India Through The Secretary ... on 11 November, 2024
Bench: Sujit Narayan Prasad, Navneet Kumar
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P(S) No. 4994 of 2022
Binod Kumar Jha, aged about 41 years, S/o Divakar Jha, at present
Stenographer Grade-I CGST & Central Excise, Ranchi Zone, Patna R/o Qtr.
No. Type-2/8, Central Excise Colony, Sector 5/B, PO + PS- Bokaro Steel
City, Dist.- Bokaro, Jharkhand ......... Petitioner
Versus
1. The Union of India through the Secretary Deptt. of Revenue, Ministry of
Finance, North Block, PO+PS+Dist.-New Delhi
2. The Chief Commissioner CGST and Central Excise, Ranchi Zone, Bir
Chand Patel Path, PO+PS+Dist.- Patna-800001
3. The Joint Commissioner (CCA), CCO, CGST & Central Excise, Ranchi
Zone, Bir Chand Patel Path, PO+PS+Dist.- Patna-800001
4. The Assistant Commissioner, (CCO) CGST & Central Excise, Ranchi
Zone, Bir Chand Patel Path, PO+PS+Dist.- Patna-800001
5. Sanjay Kumar, Inspector, CGST & Central Excise, Appeals
Commissionerate, Bir Chand Patel Path, PO+PS+Dist.- Patna-800001
6. Rinki Kumari, Private Secretary, CGST & Central Excise, Appeals
Commissionerate, Bir Chand Patel Path, PO+PS+Dist.- Patna-800001
7. Jitendra Kumar, Stenographer Grade-I, Audit Commissionerate, Bir
Chand Patel Path, PO+PS+Dist.- Patna-800001
8. Amit Kumar Tiwari, Stenographer Grade-I, Audit Commissionerate, Bir
Chand Patel Path, PO+PS+Dist.- Patna-800001
9. Rajesh Kumar Singh, Stenographer Grade-I, CGST & Central Excise,
Appeals Commissionerate, Ranchi 2nd & 3rd Floor, Grand Emerald Building,
Between Road No 1 & 2, Kadru, PO+PS- Argora, Ashok Nagar, Ranchi-
834002 .......... ... Respondents
CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE NAVNEET KUMAR
-------
For the Petitioner : Mr. Rahul Kumar, Advocate
For the Respondents : Mr. Amit Kumar, Sr. SC, CGST
Mr. Anurag Vijay, Jr. SC, CGST
For the Respondent No.9 : Mr. Nitin Kumr Pasari, Advocate
Mrs. Sidhi Jalan, Advocate
Mr. Gaurav Kaushalesh, Advocate
---------
th
Order No.21, Dated:11 November 2024
Per, Sujit Narayan Prasad, J.
This writ petition under Article 226 of the Constitution of India
wherein the order dated 24.08.2022 passed by the learned Central
Administrative Tribunal, Circuit Bench, Ranchi (hereinafter referred as to
the learned Tribunal) has been assailed by which the Original Application
being O.A No.051/00438/2020 filed by the writ petitioner has been rejected
by the learned Tribunal on the ground of delay and laches as also barred by
limitation.
Factual Matrix
2. The brief facts of the case as per the pleadings made in the writ
petition is required to be enumerated which reads as under:
That petitioner is a general candidate who joined the CGST and Central
Excise, Ahmedabad Zone on 29.06.2009 on the post of Stenographer Grade-
III. It is pleaded that the petitioner along with other candidates of Grade-II
which was later designated as Grade-II joined at Ranchi Zone, Patna on
Inter-Commissionerate transfer basis vide select list dated 17.06.2013,
approved by the Chief Commissioner, Central Excise and Service Tax. It
was made clear vide order dated 20.06.2013 that transfer will be affected
from the date of joining of duty.
It is pleaded that as per order dated 20.06.2013 it was specified that
all the candidates were being transferred on Inter-Commissionerate transfer
basis will be placed below all the officers appointed regularly in terms of
the paragraph 3.5 of the DOP&T's OM dated 03.07.1986. It is pleaded that
two of the other candidates got promoted on 23.01.2014 and 12.05.2014,
since both had joined before the petitioner so he was under the impression
that seniority was being calculated on the basis of joining under the Inter-
Commissionerate transfer basis.
It is further pleaded that the seniority list for Stenographer Grade-I as
on 01.01.2019 was forwarded by the Assistant Commissioner (CCO), CGST
and Central Excise, Ranchi Zone, Patna vide letter dated 03.06.2019.
It is pleaded that the Assistant Commissioner, CCO, CGST and
Central Excise, Ranchi Zone, Patna was pleased to inform vide letter no.
10349 dated 20.08.2019 that for the purpose of Inter-Commissionerate
transfer, first in first out (FIFO) Criteria is followed for preparing the list of
pending applications, based on the date of the receipt of the applications and
in cases, where the dates of the receipt are same for multiple applications
then, date of filing of such applications to the present zone is to be
considered.
The petitioner, therefore, rendered a representation dated 23.09.2019
before the Principal Chief Commissioner, CGST and Central Excise, Ranchi
Zone, Patna requesting therein to restore his seniority of Stenographer
Grade-II and conducting review DPC of Stenographer Grade- II to
Stenographer Grade-I along with Inspector Grade. The writ petitioner in the
said representation shed light as to how an erroneous fixation of seniority
amongst the transferred candidates joining the Ranchi Zone, Patna on Inter-
Commissionerate transfer basis vide order dated 20.06.2013 had let many of
his juniors to go above him and get promotions to Stenographer Grade-I
and, subsequently, to Inspector Grade which legitimately should have been
extended to the petitioner in the first place.
It is pleaded that the petitioner received no reply to his first
representation after which he rendered two more representations dated
28.10.2019 and dated 03.12.2019 again seeking the same prayer for
restoring his seniority and reviewing the DPC's that were conducted after
the erroneous fixation of seniority amongst the Inter-Commissionerate
transfer candidates had been done right from the very beginning. Even after
representing so many times he received no reply from the respondent
authorities. He had submitted a fourth representation dated 08.01.2020
reiterating his grievance.
In reply to the representation, the respondents stated that no statutory
provision has ever been made obligatory with regard to following any
mechanism for accepting application of Inter-Commissionerate transfer for
determining seniority in future. It was further informed that a clarification
was being sought from the Board with regard to the corrected seniority list
which was forwarded vide letter dated 03.06.2019.
Thus, it is apparent from this response that even the respondent
authorities have no idea as to what principle is being followed in order to
ascertain the seniority amongst the Inter-Commissionerate transfer
candidates. It is pleaded that in the meantime, respondent no.6, namely,
Rinki Kumari was again promoted to the grade of Private Secretary while
the petitioner himself was promoted to the post of Stenographer Grade-I
vide Estt. Order No.48/2019 dated 26.12.2019.
It is further pleaded that the respondents have admitted in the OA that
due to fault of their own, benefits, as claimed by the petitioner, has alluded
the petitioner because of the respondent authorities. It is pleaded that the
petitioner filed the Original Application being O.A being 051/000438/2020
before the Central Administrative Tribunal which was dismissed on
24.08.2022 on the ground that "O.A suffers from acquiescence and laches
on the part of the petitioner and is barred by limitations. Hence, O.A
deserves to be dismissed accordingly."
Being aggrieved, the writ petitioner has approached this Court by
filing the present writ petition.
3. It is evident from the factual aspect of the writ petition that the
petitioner on the basis of Inter-Commissionerate transfer has been posted at
Ranchi on the basis of the request and he has been placed in the seniority
list down below the transferee. The grievance of the petitioner is that on the
basis of the Government Circular the seniority is to be reckoned even on the
basis of the request transfer from one Commissionerate to another on the
basis of the date of request so made.
4. The petitioner has made a request earlier to the other transferee, but
the authority concerned ignoring the date of request so made has placed the
writ petitioner below the transferee who have made their request transfer
subsequent to the request made by the writ petitioner. The seniority list was
prepared on the basis of the Inter-Commissionerate transfer vide Circular,
1986 and a seniority list was prepared on 20.06.2013. Subsequently, a
provisional list was prepared on 03.06.2019.
5. The writ petitioner has made representation raising grievance by
placing the writ petitioner below the transferee who have been transferred
on the basis of the request so made subsequent to request made by the writ
petitioner. The said representation was rejected by the authority on
13.01.2020, but the writ petitioner being aggrieved by the said rejection has
approached to the learned Tribunal vide Original Application being O.A
No.051/000438/2020.
6. The respondent-authority as well as the private respondents have
appeared and taken the ground of delay and laches as also the limitation.
Such ground has been taken on the basis of the fact that the seniority list
was prepared on 20.06.2013, as such, approaching the Court of Law after
lapse of six years has been laid to be barred by the principle of delay and
laches as also the limitation.
7. Original Application being O.A No.051/000438/2020 has been
dismissed by the Central Administrative Tribunal vide order dated
24.08.2022 on the ground that "O.A suffers from acquiescence and laches
on the part of the petitioner and is barred by limitations. Hence, O.A
deserves to be dismissed accordingly."
8. Being aggrieved, the writ petitioner has approached this Court by
filing the present writ petition.
Argument by the learned counsel for the petitioner:
9. Mr. Rahul Kumar, the learned counsel appearing for the writ
petitioner while assailing the impugned order has submitted that the learned
Tribunal has passed the order by rejecting the Original Application on the
ground of delay and laches as also on the ground of limitation. But the said
ground cannot be said to be proper because the delay and laches at all or
even the principle of limitation as referred in the Administrative Tribunal
Act, 1985 is applicable reason being that the writ petitioner has given an
occasion to make an objection against the provisional seniority list which
was published on 03.06.2019 and the said representation has been rejected
on 13.01.2020 and immediately within a period of one year, the learned
Tribunal has been approached by filing OA No.051/000438/2020.
10. Hence, the learned Tribunal has been approached within a period of
one year as per the limitation prescribed under the Administrative Tribunal
Act, 1985. As such, the reason which has been assigned by the learned
Tribunal while rejecting the Original Application on the ground of delay and
laches as also the limitation, cannot be said to be proper by reckoning the
cause of action either from the date of issuance of the provisional gradation
list or the rejection of the representation raising objection against the said
provisional gradation list from which within a period of one year the
learned Tribunal has been approached.
11. Mr. Rahul Kumar, the learned counsel appearing for the petitioner,
based upon the aforesaid grounds, has submitted that since the issue has not
been adjudicated with respect to the propriety of the rejection of the said
order making objection against the provisional seniority list, rather the
application has been rejected only on the ground of delay and laches as also
on the ground of limitation, hence, the impugned order needs to be
interfered with.
Argument by the learned counsel for the respondents:
12. On the other hand, Mr. Amit Kumar, the learned Sr. SC appearing for
the respondent-CGST while defending the impugned order has submitted
that the order impugned cannot be said to suffer from any error as the
provisional seniority list is only the reiteration of the list prepared on
20.06.2013 and, as such, the cause of action is required to be considered
from the day when the seniority list was prepared on 20.06.2013.
13. The learned Tribunal, by taking note of the said aspect of the matter
based upon the objection so raised by the respondent concerned before the
learned Tribunal, has come to the conclusion with respect to the
applicability of the principle of delay and laches as also the limitation in
view of the fact that the Tribunal has been approached after lapse of six
years from the date of issuance of seniority list, i.e., on 20.06.2013,
therefore, the impugned order cannot be said to suffer from any error.
14. Mrs. Sidhi Jalan, the learned counsel, who put her appearance on
behalf of the respondent no.9, on being noticed, has also defended the
impugned order. She has adopted the arguments advanced on behalf of the
respondent-CGST while defending the impugned order.
Analysis
15. We have heard the learned counsels for the parties and gone across
the findings recorded by the learned Tribunal in the impugned order.
16. This Court before entering into the legality and propriety of
impugned order, would like to refer herein that this Court vide order dated
05.03.2024 has issued notice to the private respondent nos. 5 to 9. In
pursuant thereto, the respondent no.9 has appeared, the notices upon the
respondents nos.5 to 9 have been shown to be validly served.
17. It appears from the order dated 08.07.2024 that the service upon the
respondent nos.5 to 9 is complete through their Controlling Authority and,
hence, this Court has taken up the matter for final hearing and, accordingly,
the learned counsel for the parties have advanced their arguments.
18. On the basis of the aforesaid facts the issues which require
consideration in this case is -
I. As to whether the ground taken by the learned Tribunal in
rejecting the Original Application on the ground of delay and laches
and the limitation is applicable or not?
II. Whether in the facts and circumstances of the case taking the
decision of the authority by issuance of the provisional gradation list
and the objection so rejected on 13.01.2020 can be said that the
grievance of the writ petitioner is held to be not maintainable on the
ground of principle of delay and laches as also the limitation?
19. Since both the issues are interlinked and, as such, are being answered
together.
20. This Court in order to answer the said issues deem it proper to first
refer the motion of delay and laches as also the issue of limitation so far as
the Administrative Tribunal Act, 1985 is concerned. The principle of delay
and laches is to be applicable in a case where the principle of limitation is
made out. The same is strictly applicable in a proceeding under Article 226
of the Constitution of India or any other litigation where the principle of
limitation is not applicable. If the principle of limitation is applicable then,
the case is to be considered on the basis of applicability of principle of
limitation by giving go-bye to the principle of delay and laches.
21. The position of law is very settled that under Article 226 of the
Constitution of India the principle of delay and laches is held to be
applicable, however, the period of limitation is not applicable, reference in
this regard be made to the judgment rendered by the Hon'ble Apex Court in
the case of P.S. Sadasivaswamy v. State of Tamil Nadu, (1975) 1 SCC
152 wherein at paragraph-2, their Lordship have held as under:
"2. The main grievance of the appellant is that the second respondent
who was junior to him as Assistant Engineer was promoted as
Divisional Engineer in 1957 by relaxing the relevant rules regarding
the length of service necessary for promotion as Divisional Engineer
and that his claim for a similar relaxation was not considered at that
time. The learned Judge of the Madras High Court who heard the writ
petition was of the view that the relaxation of the rules in favour of the
second respondent without considering the appellant's case was
arbitrary. In view of the statement on behalf of the Government that
such relaxation was given only in the case of overseas scholars, which
statement was not controverted, it is not possible to agree with the
view of the learned Judge. Be that as it may, if the appellant was
aggrieved by it he should have approached the Court even in the year
1957, after the two representations made by him had failed to produce
any result. One cannot sleep over the matter and come to the Court
questioning that relaxation in the year 1971. There is the further fact
that even after Respondents 3 and 4 were promoted as Divisional
Engineers over the head of the appellant he did not come to the Court
questioning it. There was a third opportunity for him to have come to
the Court when Respondents 2 to 4 were again promoted as
Superintending Engineers over the head of the appellant. After
fourteen long years because of the tempting prospect of the Chief
Engineership he has come to the Court. In effect he wants to
unscramble a scrambled egg. It is very difficult for the Government to
consider whether any relaxation of the rules should have been made in
favour of the appellant in the year 1957. The conditions that were
prevalent in 1957, cannot be reproduced now. In any case as the
Government had decided as a matter of policy, as they were entitled to
do, not to relax the rules in favour of any except overseas scholars it
will be wholly pointless to direct them to consider the appellant's case
as if nothing had happened after 1957. Not only Respondent 2 but also
Respondents 3 and 4 who were the appellant's juniors became
Divisional Engineers in 1957, apparently on the ground that their
merits deserved their promotion over the head of the appellant. He did
not question it. Nor did he question the promotion of his juniors as
Superintending Engineers over his head. He could have come to the
Court on every one of these three occasions. A person aggrieved by an
order of promoting a junior over his head should approach the Court
at least within six months or at the most a year of such promotion. It is
not that there is any period of limitation for the Courts to exercise
their powers under Article 226 nor is it that there can never be a case
where the Courts cannot interfere in a matter after the passage of a
certain length of time. But it would be a sound and wise exercise of
discretion for the Courts to refuse to exercise their extraordinary
powers under Article 226 in the case of persons who do not approach
it expeditiously for relief and who stand by and allow things to happen
and then approach the Court to put forward stale claims and try to
unsettle settled matters. The petitioner's petition should, therefore,
have been dismissed in limine. Entertaining such petitions is a waste
of time of the Court. It clogs the work of the Court and impedes the
work of the Court in considering legitimate grievances as also its
normal work. We consider that the High Court was right in dismissing
the appellant's petition as well as the appeal."
22. In State of M.P. v. Nandlal Jaiswal reported in (1986) 4 SCC
566 : AIR 1987 SC 251, the Hon'ble Apex Court has observed that the
power of the High Court to issue an appropriate writ under Article 226 of
the Constitution is discretionary and if there is inordinate delay on the part
of the petitioner in filing the writ petitioner and such delay is not
satisfactorily explained, the High Court may decline to interfere and grant
relief in exercise of its writ jurisdiction. Emphasis was laid down on the
principle of delay and laches stating that the High Court does not ordinarily
permit a belated resort to the extraordinary remedy under the writ
jurisdiction because it is likely to cause confusion and inconvenience in
bringing the justice.
23. Further, the Hon'ble Apex Court in the case of New Delhi Municipal
Council v. Pan Singh, (2007) 9 SCC 278 by referring to the judgment
rendered in the case of Lipton India Ltd. v. Union of India, (1994) 6 SCC
524 has observed which reads as under:
"17. Although, there is no period of limitation provided for filing a
writ petition under Article 226 of the Constitution of India, ordinarily,
writ petition should be filed within a reasonable time.
(See Lipton India Ltd. v. Union of India [(1994) 6 SCC 524] and M.R.
Gupta v. Union of India [(1995) 5 SCC 628 : 1995 SCC (L&S)
1273 : (1995) 31 ATC 186]."
24. Such law has been laid down in view of the principle that under
Article 226 of the Constitution of India, there is no period of limitation
having been prescribed to approach the High Court. The question which
requires consideration herein is the power of the learned Tribunal which has
been created by way of an amendment incorporated in the Constitution by
insertion of a new Article under Article 323A of the Constitution of India.
25. The Central Administrative Tribunal has been given the Constitutional
status and in order to carry out the judicial proceeding a statute has been
formulated known as the Administrative Tribunal Act, 1985. The Tribunal
has been conferred with a power under section 14 of the Administrative
Tribunal Act, 1985.
26. Further, the Tribunal has been conferred with the power to condone
the delay as per the provision made under sub-section (3) of Section 21 of
the Act, 1985 whereby and whereunder, it has been laid down in view of the
principle as contained under Section 5 of the Limitation Act, 1963 to
condone the delay if the sufficient cause will be shown. For ready reference,
the provision of Section 21 is being referred as under:
"21. Limitation.--(1) A Tribunal shall not admit an application,--
(a) 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 the
grievance unless the application is made, within one year from the
date on which such final order has been made;
(b) in a case where an appeal or representation such as is mentioned
in clause (b) of sub-section (2) of section 20 has been made and a
period of six months had expired thereafter without such final order
having been made, within one year from the date of expiry of the said
period of six months.
(2) Notwithstanding anything contained in sub-section (1), where--
(a) the grievance in respect of which an application is made had
arisen by reason of any order made at any time during the period of
three years immediately preceding the date on which the jurisdiction,
powers and authority of the Tribunal becomes exercisable under this
Act in respect of the matter to which such order relates; and
(b) no proceedings for the redressal of such grievance had been
commenced before the said date before any High Court, the
application shall be entertained by the Tribunal if it is made within the
period referred to in clause (a), or, as the case may be, clause (b), of
sub-section (1) or within a period of six months from the said date,
whichever period expires later.
(3) Notwithstanding anything contained in sub-section (1) or
subsection (2), an application may be admitted after the period of one
year specified in clause (a) or clause (b) of sub-section (1) or, as the
case may be, the period of six months specified in sub-section (2), if
the applicant satisfies the Tribunal that he had sufficient cause for not
making the application within such period."
27. Therefore, it is evident that the Administrative Tribunal Act, 1985
wherein the Tribunal is to apply the principle of limitation for the purpose
of acceptance of the original application subject to the power to condone
the delay, meaning thereby, the whatever power has been conferred to the
High Court under Article 226 of the Constitution of India, the same is little
bit different, even though the Tribunal is having the Constitutional status to
the effect that under Article 226 of the Constitution of India, there is non-
applicability of principle of limitation and, as such, by virtue of the judicial
pronouncement the principle of delay and laches has been held to be
applicable on the principle that inordinate delay cannot be allowed to
approach the Court of equity after lapse of a reasonable delay, subject to
sufficient cause.
28. While on the other hand, the Tribunal is to proceed on the premise of
the applicability of principle of limitation. However, the Limitation Act,
1963 has not been referred in the Administrative Tribunal Act, 1985, but in
sum and substance, the principle as laid down under section 5 of the
Limitation Act, 1963 has also been referred if the provision of Section 21(3)
of Administrative Tribunal Act, 1985 will be taken in to consideration.
29. It also requires to refer herein that what is the meaning of 'sufficient
cause'. The consideration of meaning of 'sufficient cause' has been made in
Basawaraj & Anr. Vrs. Spl. Land Acquisition Officer, [(2013) 14 SCC 81],
wherein, it has been held by the Hon'ble Apex Court at paragraphs 9 to 15
hereunder:-
"9. Sufficient cause is the cause for which the defendant could not be
blamed for his absence. The meaning of the word "sufficient" is
"adequate" or "enough", inasmuch as may be necessary to answer the
purpose intended. Therefore, the word "sufficient" embraces no more
than that which provides a platitude, which when the act done suffices
to accomplish the purpose intended in the facts and circumstances
existing in a case, duly examined from the viewpoint of a reasonable
standard of a cautious man. In this context, "sufficient cause" means
that the party should not have acted in a negligent manner or there was
a want of bona fide on its part in view of the facts and circumstances
of a case or it cannot be alleged that the party has "not acted
diligently" or "remained inactive". However, the facts and
circumstances of each case must afford sufficient ground to enable the
court concerned to exercise discretion for the reason that whenever the
court exercises discretion, it has to be exercised judiciously. The
applicant must satisfy the court that he was prevented by any
"sufficient cause" from prosecuting his case, and unless a satisfactory
explanation is furnished, the court should not allow the application for
condonation of delay. The court has to examine whether the mistake is
bona fide or was merely a device to cover an ulterior purpose. (See
Manindra Land and Building Corpn. Ltd. v. Bhutnath Banerjee [AIR
1964 SC 1336] , Mata Din v. A. Narayanan [(1969) 2 SCC 770 : AIR
1970 SC 1953] , Parimal v. Veena [(2011) 3 SCC 545 : (2011) 2 SCC
(Civ) 1 : AIR 2011 SC 1150] and Maniben Devraj Shah v. Municipal
Corpn. of Brihan Mumbai [(2012) 5 SCC 157 : (2012) 3 SCC (Civ) 24
: AIR 2012 SC 1629] .)
10. In Arjun Singh v. Mohindra Kumar [AIR 1964 SC 993] this Court
explained the difference between a "good cause" and a "sufficient
cause" and observed that every "sufficient cause" is a good cause and
vice versa. However, if any difference exists it can only be that the
requirement of good cause is complied with on a lesser degree of
proof than that of "sufficient cause".
11. The expression "sufficient cause" should be given a liberal
interpretation to ensure that substantial justice is done, but only so
long as negligence, inaction or lack of bona fides cannot be imputed to
the party concerned, whether or not sufficient cause has been
furnished, can be decided on the facts of a particular case and no
straitjacket formula is possible. (Vide Madanlal v. Shyamlal [(2002) 1
SCC 535 : AIR 2002 SC 100] and Ram Nath Sao v. Gobardhan Sao
[(2002) 3 SCC 195 : AIR 2002 SC 1201] .)
12. It is a settled legal proposition that law of limitation may harshly
affect a particular party but it has to be applied with all its rigour when
the statute so prescribes. The court has no power to extend the period
of limitation on equitable grounds. "A result flowing from a statutory
provision is never an evil. A court has no power to ignore that
provision to relieve what it considers a distress resulting from its
operation." The statutory provision may cause hardship or
inconvenience to a particular party but the court has no choice but to
enforce it giving full effect to the same. The legal maxim dura lex sed
lex which means "the law is hard but it is the law", stands attracted in
such a situation. It has consistently been held that, "inconvenience is
not" a decisive factor to be considered while interpreting a statute.
13. The statute of limitation is founded on public policy, its aim being
to secure peace in the community, to suppress fraud and perjury, to
quicken diligence and to prevent oppression. It seeks to bury all acts
of the past which have not been agitated unexplainably and have from
lapse of time become stale. According to Halsbury's Laws of England,
Vol. 28, p. 266:
"605. Policy of the Limitation Acts.--The courts have expressed at
least three differing reasons supporting the existence of statutes of
limitations namely, (1) that long dormant claims have more of cruelty
than justice in them, (2) that a defendant might have lost the evidence
to disprove a stale claim, and (3) that persons with good causes of
actions should pursue them with reasonable diligence." An unlimited
limitation would lead to a sense of insecurity and uncertainty, and
therefore, limitation prevents disturbance or deprivation of what may
have been acquired in equity and justice by long enjoyment or what
may have been lost by a party's own inaction, negligence or laches.
(See Popat and Kotecha Property v. SBI Staff Assn. [(2005) 7 SCC
510] , Rajender Singh v. Santa Singh [(1973) 2 SCC 705 : AIR 1973
SC 2537] and Pundlik Jalam Patil v. Jalgaon Medium Project [(2008)
17 SCC 448]
14. In P. Ramachandra Rao v. State of Karnataka [(2002) 4 SCC 578 ]
this Court held that judicially engrafting principles of limitation
amounts to legislating and would fly in the face of law laid down by
the Constitution Bench in Abdul Rehman Antulay v. R.S. Nayak
[(1992) 1 SCC 225].
15. The law on the issue can be summarised to the effect that where a
case has been presented in the court beyond limitation, the applicant
has to explain the court as to what was the "sufficient cause" which
means an adequate and enough reason which prevented him to
approach the court within limitation. In case a party is found to be
negligent, or for want of bona fide on his part in the facts and
circumstances of the case, or found to have not acted diligently or
remained inactive, there cannot be a justified ground to condone the
delay. No court could be justified in condoning such an inordinate
delay by imposing any condition whatsoever. The application is to be
decided only within the parameters laid down by this Court in regard
to the condonation of delay. In case there was no sufficient cause to
prevent a litigant to approach the court on time condoning the delay
without any justification, putting any condition whatsoever, amounts
to passing an order in violation of the statutory provisions and it
tantamounts to showing utter disregard to the legislature."
30. Thus, it is evident that the sufficient cause means that the party
should not have acted in a negligent manner or there was a want of bona
fide on its part in view of the facts and circumstances of a case or it cannot
be alleged that the party has "not acted deliberately" or "remained inactive".
However, the facts and circumstances of each case must afford sufficient
ground to enable the Court concerned to exercise discretion for the reason
that whenever the Court exercises discretion, it has to be exercised
judiciously. The applicant must satisfy the Court that he was prevented by
any "sufficient cause" from prosecuting his case, and unless a satisfactory
explanation is furnished, the Court should not allow the application for
condonation of delay.
31. This Court, after having discussed the aforesaid aspect of the matter
is now adverting to the factual aspect in order to assess the propriety of the
reason assigned by the learned Tribunal in rejecting the Original
Application on the ground of delay and laches and limitation.
32. However, it needs to refer herein that the Tribunal has not appreciated
properly the reason of rejection while assigning delay and laches as also the
limitation reason being that if the principle of laches and delay is there,
there is no question of applicability of Limitation Act and, as such, there is
no reason for the rejection of Original Application on the ground of delay
and laches.
33. Herein, the admitted fact as has been admitted by the learned
counsel appearing for the respondent-CGST is that the seniority list
although was prepared on 31.12.2013 but subsequent to the same a
provisional list has also been prepared on 03.06.2019. The same is the
provisional list as would be evident from the page no. 38 of the paper book
which document is a part of Annexure-4 wherein the content of the said
letter is the revised provisional seniority list of Stenographer Grade-I
working in the CGST and Central Excise, Ranchi as on 01.01.2019.
34. It is further evident from the covering letter dated 03.06.2019 that the
objection has been invited within a period of 15 days of receipt of the letter
for rectification, failing which, the impugned revised provisional seniority
list will be treated as final from the year 2019, for ready reference, the
content of the covering letter is being quoted hereunder:
GOVERNMENT OF INDIA
OFFICE OF THE CHIEF COMMISSIONER
CENTRAL GOODS & SERVICES TAX & CX. RANCHI ZONE
1ST Floor, Central Revenue Building (Annexe., Bir Chand Patel Path, Patna-1
C.No. II (34,03/PSI/CCO/CONF/RZP/2019 Dated: 05.2019
To,
The Add/Joint Commissioner,
The CGST & CX, Patna-I/Fatna-II/Patna (Appeal)/ Patria (Audit)/
Ranchi/Ranchi (Appeal)/Ranchi (Audit)/Customs (P) Patna/
Jamshedpur.
Madam/Sir,
Sub: Forwarding of Revised Provisional Seniority List of Stenographer Grade -
and Stenographer Grade-ll as on 01.01.2019 (Corrected up-to 15.05.19)- reg.
In continuation to this office letter of even C.No. 3814-22 dated 19.03.2019,
please find enclosed herewith Revised Provisional Seniority List of
Stenographer Grade -I and Stenographer Grade-II, working in this Zone as on
01.01.2019 (Corrected up-to 15.05.2019) for circulation and needful at your
end.
The Revised Provisional Seniority List of Stenographer Grade-I and
Stenographer Grade-Il as on 01.01.2019 (Corrected upto 15.05.2019) has been
prepared in the following manner:
a. The relative seniority among the officers appointed through ICT has been
determined in accordance with their respective order of selection for such
transfer as per para 3.1 of DOPT 0.M: No: 22011/7/86-Estt(D) dated 03.07.86.
b. Further, the seniority of ICT officers has been fixed by placing them below
all officers appointed regularly to the grade on the date of absorption as per
Para 3.5 of DoPT O.M. No. 03.07.86.
In this connection, it is requested to please get all the columns of the revised
provisional seniority list verified from service book of the concerned officers
posted under your jurisdiction and inform if any anomaly found in the said list,
along with documentary evidence, within 15 days of receipt of this letter for
rectification, failing which the impugned revised provisional seniority list will
be treated as finalized for the year 2019.
The revised Provisional Seniority list is subject to the outcome of any case
pending within any judicial forum relating to seniority of Stenographer Grade-I
and Stenographer Grade-II or any other related issue.
Encl:- As above Yours faithfully,
Sd/-
( Anant Vajpai)
Assistant Commissioner (CCO)
Central GST & Central Excise
Ranchi Zone, Patna
35. The writ petitioner has made objection to the aforesaid letter vide
representations dated 23.09.2019, dated 28.10.2019 and dated 03.12.2019
which have been rejected on 13.01.2020.
36. The writ petitioner being aggrieved with the rejection order dated
13.01.2020 has approached the learned Tribunal.
37. It is, thus, evident that the cause of action has been said to be accrued
in favour of the writ petitioner that when the objection so invited on behalf
of the respondent vide covering letter dated 03.06.2019. The petitioner has
made due objection vide representations dated 23.09.2019, dated
28.10.2019 and dated 03.12.2019, but the same have been rejected vide
order dated 13.01.2020. Therefore, the cause of action will be said to be
accrued from the day when the decision has been taken by the authority
while rejecting the representation dated 23.09.2019, dated 28.10.2019 and
dated 03.12.2019 on the objection being sought for as per Annexure-4 dated
3.6.2019.
38. The contention which has been raised on behalf of the learned
counsel appearing for the respondents that the cause of action will be said to
be accrued in the year 2013 cannot be said to be an acceptable argument in
view of the issuance of the communication dated 03.06.2019 appended as
Annexure-4 to the instant petition, seeking objection, from one or the other,
for the purpose of rectification and the moment is objection has been sought
for the purpose of rectification which means that the authority is to take into
consideration of the objection if made by one or the other said to suffer
from issuance of the said seniority list which is provisional in nature.
39. As such, the cause of action is said to be accrued from the day when
the decision, if will be taken by the authority concerned, on the basis of the
objection so raised by the authority and not on the basis of the seniority list
published on earlier occasion.
40. This Court, therefore, is of the view that the objection has been dealt
with by the authority on 13.01.2020 and immediately within a period of one
year the Tribunal has been approached by the petitioner and, as such, it is
not even a case to satisfy the learned Tribunal for the purpose of condoning
the delay, since, the Tribunal has been approached within a period of one
year from the date when the objection of the writ petitioner has been
rejected , i.e., on 13.01.2020.
41. This Court is conscious with the power which is to be exercised by
the High Court as conferred under Article 226 of the Constitution of India
wherein and while dealing with the said power, the Constitution Bench of
the Hon'ble Apex Court in the case of L. Chandra Kumar v. Union of
India reported in (1997) 3 SCC 261 while conferring the power to the
learned Tribunal of the Court of first instance has also conferred power to
the High Court to exercise the power of judicial review against the order
passed by the learned Tribunal, for ready reference, paragraph no.99 of the
said judgment is being referred hereinbelow:
"99. In view of the reasoning adopted by us, we hold that clause 2(d)
of Article 323-A and clause 3(d) of Article 323-B, to the extent they
exclude the jurisdiction of the High Courts and the Supreme Court
under Articles 226/227 and 32 of the Constitution,are unconstitutional.
Section 28 of the Act and the "exclusion of jurisdiction" clauses in all
other legislations enacted under the aegis of Articles 323-A and 323-B
would, to the same extent, be unconstitutional. The jurisdiction
conferred upon the High Courts under Articles 226/227 and upon the
Supreme Court under Article 32 of the Constitution is a part of the
inviolable basic structure of our Constitution. While this jurisdiction
cannot be ousted, other courts and Tribunals may perform a
supplemental role in discharging the powers conferred by
Articles 226/227 and 32 of the Constitution. The Tribunals created
under Article 323-A and Article 323- B of the Constitution are
possessed of the competence to test the constitutional validity of
statutory provisions and rules. All decisions of these Tribunals will,
however, be subject to scrutiny before a Division Bench of the High
Court within whose jurisdiction the Tribunal concerned falls. The
Tribunals will, nevertheless, continue to act like courts of first instance
in respect of the areas of law for which they have been constituted. It
will not, therefore, be open for litigants to directly approach the High
Courts even in cases where they question the vires of statutory
legislations (except where the legislation which creates the particular
Tribunal is challenged) by overlooking the jurisdiction of the Tribunal
concerned. Section 5(6) of the Act is valid and constitutional and is to
be interpreted in the manner we have indicated."
42. This Court is exercising the power of judicial review as conferred
under Article 226 of the Constitution of India in the light of the observation
made by the Hon'ble Apex Court in L. Chandra Kumar v. Union of
India (supra) at paragraph-99 as quoted and referred above and the power of
judicial review is only to be exercised if there is any error apparent on the
face of order.
43. The error apparent on the face of the order means that if the order
appears on its face having with error, then only the power of judicial review
is to be exercised. The scope of judicial review conferred to the High Court
under Article 226 of the Constitution of India in sowing interference with
the award passed by the adjudicator/Tribunal as has been held by the
Hon'ble Apex Court in the case of Syed Yakoob v. Radhakrishnan, AIR
1964 SC 477. Paragraph no. 7 of the said judgment is being reproduced as
under:
"The question about the limits of the jurisdiction of High Courts in
issuing a writ of certiorari under Art. 226 has been frequently
considered by this Court and the true legal position in that behalf is
no longer in doubt. A writ of certiorari can be issued for correcting
errors of jurisdiction committed by inferior courts or tribunals : these
are cases where orders are passed by inferior courts or tribunals
without jurisdiction, or is in excess of it, or as a result of failure to
exercise jurisdiction. A writ can similarly be issued where in exercise
of jurisdiction conferred on it, the Court or Tribunal Acts illegally or
improperly, as for instance, it decides a question without giving an
opportunity to be heard to the party affected by the order, or where the
procedure adopted in dealing with the dispute is opposed to principles
of natural justice. There is, however, no doubt that the jurisdiction to
issue a writ of certiorari is a supervisory jurisdiction and the Court
exercising it is not entitled to act as an appellate Court. This
limitation necessarily means that findings of fact reached by the
inferior Court or Tribunal as result of the appreciation of evidence
cannot be reopened or questioned in writ proceedings. An error of law
which is apparent on the face of the record can be corrected by a writ,
but not an error of fact, however grave it may appear to be. In regard
to a finding of fact recorded by the Tribunal, a writ of certiorari can
be issued if it is shown that in recording the said finding, the tribunal
had erroneously refused to admit admissible and material evidence, or
had erroneously admitted inadmissible evidence which has influenced
the impugned finding. Similarly, if a finding of fact is based on no
evidence, that would be regarded as an error of law which can be
corrected by a writ of certiorari. In dealing with this category of
cases, however, we must always bear in mind that a finding of fact
recorded by the Tribunal cannot be challenged in proceedings for a
writ of certiorari on the ground that the relevant and material
evidence adduced before the Tribunal was insufficient or inadequate
to sustain the impugned finding. The adequacy or sufficiency of
evidence led on a point and the inference of fact to be drawn from the
said finding are within the exclusive jurisdiction of the Tribunal, and
the said points cannot be agitated before a writ Court. It is within
these limits that the jurisdiction conferred on the High Courts under
Art. 226 to issue a writ of certiorari can be legitimately exercised
(vide Hari Vishnu Kamath v. Ahmad Ishaque, (1955) 1 SCR 1104 :
((S) (1954) 2 SCC 881 : AIR 1955 SC 233); Nagendra Nath v. Commr.
of Hills Division, 1958 SCR 1240 : (AIR 1958 SC 398) and Kaushalya
Devi v. Bachittar Singh, AIR 1960 SC 1168.
44. In Hari Vishnu Kamath v. Ahmad Ishaque, (1954) 2 SCC 881 : AIR
1955 SC 233, the Hon'ble Supreme Court has held in paragraph no. 21 as
under:
"With regard to the character and scope of the writ of certiorari and
the conditions under which it can be issued, the following propositions
may be taken as established:
(1) Certiorari will be issued for correcting errors of jurisdiction, as
when an inferior Court or Tribunal acts without jurisdiction or in
excess of it, or fails to exercise it.
(2) Writ of certiorari will also be issued when the Court or Tribunal
acts illegally in the exercise of its undoubted jurisdiction, as when it
decides without giving an opportunity to the parties to be heard, or
violates the principles of natural justice.
(3) The Court issuing a writ of certiorari acts in exercise of a
supervisory and not appellate jurisdiction. One consequence of this is
that the Court will not review findings of fact reached by the inferior
Court or Tribunal even if they be erroneous. This is on the principle
that a Court which has jurisdiction over a subject-matter has
jurisdiction to decide wrong as well as right, and when the Legislature
does not choose to confer a right of appeal against that decision, it
would be defeating its purpose and policy, if a superior Court were to
rehear the case on the evidence and substitute its own findings in
certiorari."
45. In Sawarn Singh v. State of Punjab, (1976) 2 SCC 868 their
Lordships, while discussing the power of writ under Article 226 of
the Constitution of India for issuance of writ of certiorari, has been pleased
to hold at paragraph nos. 12 and 13 as hereunder:
"12. Before dealing with the contentions canvassed, it will be useful to
notice the general principles indicating the limits of the jurisdiction of
the certiorari jurisdiction can be exercised only for correcting errors
of jurisdiction committed by inferior courts or tribunals. A writ of
certiorari can be issued only in the exercise of supervisory jurisdiction
which is different from appellate jurisdiction. The Court exercising
special jurisdiction under Article 226 is not entitled to act as an
appellate Court. As was pointed out by this Court in Syed Yakoob's
case (supra)
13. In regard to a finding of fact recorded by an inferior tribunal, a
writ of certiorari can be issued only if in recording such a finding, the
tribunal has acted on evidence which is legally inadmissible, or has
refused to admit admissible evidence, or if the finding is not supported
by any evidence at all, because in such cases the error amounts to an
error of law. The writ jurisdiction extends only to cases where orders
are passed by inferior courts or tribunals in excess of their
jurisdiction or as a result of their refusal to exercise jurisdiction
vested in them or they act illegally or improperly in the exercise of
their jurisdiction causing grave miscarriage of justice."
46. In Heinz India (P) Ltd. v. State of U.P., (2012) 5 SCC 443 their
Lordships have been pleased to hold at paragraph nos. 66 and 67 as
hereunder:
67. In Dharangadhara Chemical Works Ltd. v. State of Saurashtra this
Court held that decision of a tribunal on a question of fact which it
has jurisdiction to determine is not liable to be questioned in
proceedings under Article 226 of the Constitution unless it is shown to
be totally unsupported by any evidence. To the same effect is the view
taken by this Court in Thansingh Nathmal case where this Court held
that the High Court does not generally determine questions which
require an elaborate examination of evidence to establish the right to
enforce for which the writ is claimed."
47. In the case of West Bengal Central School Service
Commission v. Abdul Halim, (2019) 18 SCC 39, their Lordships have been
pleased to hold at paragraph-30 that the power of judicial review must be
exercised by the Court after determining that the impugned order is vitiated
by an error apparent on the face of the record and not the same has been
established by a process of reasoning. Paragraph-30 of the aforesaid
judgment is being referred as under:
"30. In exercise of its power of judicial review, the Court is to see
whether the decision impugned is vitiated by an apparent error of law.
The test to determine whether a decision is vitiated by error apparent
on the face of the record is whether the error is self-evident on the face
of the record or whether the error requires examination or argument
to establish it. If an error has to be established by a process of
reasoning, on points where there may reasonably be two opinions, it
cannot be said to be an error on the face of the record, as held by this
Court in Satyanarayan Laxminarayan Hegde v. Millikarjun
Bhavanappa Tirumale [Satyanarayan Laxminarayan
Hegde v. Millikarjun Bhavanappa Tirumale, AIR 1960 SC 137]. If the
provision of a statutory rule is reasonably capable of two or more
constructions and one construction has been adopted, the decision
would not be open to interference by the writ court. It is only an
obvious misinterpretation of a relevant statutory provision, or
ignorance or disregard thereof, or a decision founded on reasons
which are clearly wrong in law, which can be corrected by the writ
court by issuance of writ of certiorari."
48. Further, In the case of T.C. Basappa v. T. Nagappa, (1954) 1 SCC
905 : (1955) 1 SCR 250, their Lordship have held that the patent error in a
decision can be corrected by writ of certiorari, when it is manifested by the
error apparent on the face of the proceedings. The relevant portion of the
aforesaid judgment is quoted hereunder:
"11. ... An error in the decision or determination itself may also be
amenable to a writ of certiorari but it must be a manifest error
apparent on the face of the proceedings e.g. when it is based on clear
ignorance or disregard of the provisions of law. In other words, it is a
patent error which can be corrected by certiorari but not a mere
wrong decision....."
49. Thus, on the basis of the aforesaid settled legal position it is evident
that the power of judicial review can be exercised, if error on the face of the
order impugned, challenged under the Article 226 of Constitution of India,
appears to be there.
50. This Court in the premise of the power conferred to exercise the
power of judicial review is now proceeding to examine the propriety of the
impugned order wherefrom it is evident that the Original Application of the
writ petitioner has been rejected on the ground of applicability of principle
of delay and laches and limitation.
51. It is evident that while dealing with the issue of limitation, the learned
Tribunal has not dealt with that as to from which date either the limitation
will count or from which date the principle of delay and laches would be
applicable. Since we have already discussed hereinabove that the cause of
action will be said to be accrued in favour of the writ petitioner the day
when the claim of the writ petitioner has been rejected on the basis of the
objection so invited by virtue of Annexure-4 which is dated 03.06.2019 and
immediately thereafter within a period of one year the Tribunal has been
approached.
52. Hence, this Court is of the view that the learned Tribunal has not
appreciated the factual aspect before coming to the conclusion about the
applicability either of the principle of delay and laches or the principle of
limitation.
53. Both the issues are answered accordingly.
54. In view of the aforesaid and exercising the power of judicial review,
this Court is of the view that the impugned order dated 24.08.2022 passed
by the learned Tribunal suffers from error apparent on the face of order. As
such, the said order needs to be interfered with.
55. Accordingly, the impugned order dated 24.08.2022 passed in Original
Application being OA No.051/000438/2020 by the learned Tribunal is
hereby set aside.
56. The matter is remitted to the learned Tribunal to pass order afresh
after affording opportunity of hearing to the parties concerned in accordance
with law.
57. Accordingly, the instant writ petition is hereby disposed of with
aforesaid direction and observation.
(Sujit Narayan Prasad, J.)
(Navneet Kumar, J.)
Sudhir/
NAFR
