Sumangal Narendra v. Union Of India

By Honble Mrs. Meera Chhibber, Member (J) Applicant has sought a direction to the respondents to restore her seniority by her inclusion in the suitability list of CCS Officer SGSL for the year 1994 and she he promoted as CSS regular Deputy Secretary w.e.f. 1.7.1994.

2. Further to (i) direct the respondents for restoration of the applicants seniority and promotion to the CSS Senior Selection Directors Grade for the year 19999 and to restore all her consequential seniority, promotion and monetary benefits from the due date in accordance with the CSS Rules 1962 and CSS Regulations 1964;

(ii) to direct the respondents to expunge the ACR grading of 1994-95, which was below benchmark, which was not communicated to her at all, but was considered for her selection and promotion affecting her career adversely granting appropriate assessment in line with consistent assessment and achievement of the applicant over the years since joining the service in 1980 till date; and

(iii) that if the remedy at (ii) above is not possible, to direct the respondents not to take cognizance of the ACR of 1994-95 and of any other such ACR grading of Below Bench Mark for consideration and promotion of the applicant to the next higher grade.

3. She has filed MA No. 1520/2010 for condonation of delay on the ground that she had given number of representations from time to time but no response was given by the respondents. Moreover, she had a distressed state of mind due to personal problems e.g. she had a surgery in 2004. In 2005, she was infected through a needle and declared Hepatitis-B positive. She recovered in 2007. In 2006 her daughter underwent corneal transplant and finally recovered in 2009, therefore, the delay may be condoned.

4. Respondents have opposed the OA on the ground it is hopelessly barred by limitation. Moreover, the persons whose seniority and promotions since 1994 may be adversely affected by the claim of the applicant are not made parties to the OA. Thus the OA is bad for non-joinder of necessary parties (Rajbir Singh HFS-II Vs. State of Haryana and Another reported in JT 1996 (1) page 222). By way of present OA, the applicant wants the question of seniority to be reopened after a gap of 16 years. It is stare decises that the question of seniority cannot be reopened after the lapse of reasonable period (B.S. Bajwa & Another Vs. State of Punjab reported in 1998 (1) JT page 57).

5. On merits they have explained as follows:- Prior to 2003, the highest grade in CSS was that of Deputy Secretary and appointment to the posts of Director and beyond was made under Central Staffing Scheme and it was not promotion but an appointment. The entry into the CSS was at two levels  at Assistant level through Assistants Grade Examination and at Section Officer Level through Civil Services Examination. After the year 2000, direct recruitment at Section Officer Level has been discontinued. After initial entry into CSS, further appointments to the next higher grades are/were made on promotion basis of seniority subject to eligibility. As such there is /was no concept of batch wise promotion. The seniority of Section Officers was under dispute from 1987 to 2000 and hence panels of Under Secretaries and Deputy Secretaries for these years got delayed and have been prepared in the years 2001 onwards. Till 2003, when a cadre strength of 330 fixed by the Union Cabinet, the yearly promotions to/inclusion in the select list of the grade of Deputy Secretary was being made on the basis of a fixed number of 40 per years. In 2003, a new grade of Director was introduced in CSS with cadre strength of 110. Prior to that, appointments CSS officers to the posts of Director were made under Central Staffing Scheme since highest post in CSS till that year was that of Deputy Secretary. The appointments under Central Staffing Scheme were not promotions as per DPC guidelines. As per the Central Staffing Scheme guidelines for the preparation of CSS Directors Suitability List, as approved by the ACC on 26.8.1999:- (a) Only those officers who got at least 4 very good and one good grading out of the assessment made by the five members of the Board were considered for inclusion in the suitability list. (b) If an officer got 4 very good and one average gradings, his CR dossier would be assessed by 2 Secretaries to the Government of India, nominated by Secretary (Personnel) on behalf of the CEB. If on reassessment, the officer got at least good grading from both the Secretaries, he would be considered suitable for inclusion in the Directors suitability list. ( c) If an officer got 3 very good and 2 good/average gradings, his CR dossier should be got reassessed by 2 Secretaries to the Government of India nominated by Secretary (Personnel) on behalf of CEB. If on re-assessment, the officers got at least one very good and one good grading, then only he should be considered suitable for inclusion in Directors Suitability List. (d) The aforementioned criteria was uniformly applicable to the officers of all categories and no distinction could be made between general category and SC/ST category officers. (e) The above guidelines were applicable to all cases referred to the Central Establishment Board after 26.8.1999, irrespective of the year to which the Suitability List may belong. Further, as per the Scheme, when an officer missed inclusion in the list for a year, his/her case is to be counted after he/she has earned 2 more ACRs. In the case of the applicant, she joined as a Direct Recruit Section Officer from 1978 examination. She was promoted as Under Secretary in 1987 Select List. She was in the zone of consideration for inclusion in 1994 (to 40 persons only), she could not be included in the list. However, none of her juniors were selected in the list. This list was challenged by one Shri Sahadev Ram in OA No.2098/2003 before this Honble Tribunal. On the orders of the Tribunal, the list was revised by a Review DPC in its meeting held on 16.3.2005. Even in the revised list, none of her juniors was included in the list. Having been included in the Select List of Deputy Secretary for 1995, she became eligible for inclusion in Directors Suitability List for 2000. She was duly considered for inclusion in this list. However, the CEB assessed her performance as below bench mark. She was thus not included in the Directors Select List for 2000. Having missed the Directors Select List for 2000, she was again considered for inclusion in Director Select List for 2002 and was included in this list.

6. We have heard applicant, who appeared in person. Since respondents have taken preliminary objections, applicant would first have to cross the said hurdle. Her grievance relates to the period 1994 as she is seeking promotion as regular Dy. Secretary w.e.f. 01.07.1994 and promotion to the CSS Sr. Selection Directors grade from 1999. She is also challenging her ACR for the year 1994-95 whereas O.A. has been filed on 28.05.2010.

7. As per Section 21 (3) of the Administrative Tribunals Act, 1985, period of limitation is one year from the date of cause of action. Though delay can be condoned but it is only if reasonable cause is shown by the applicant to the satisfaction of the court. It is, therefore, definitely barred by limitation. Applicant has stated that she was under mental distress from 2004 onwards due to personal problems but no explanation has been given from 1996 to 2004 which is the crucial period, therefore this period has not been explained at all. She has only stated numbers of representations were given but merely giving representation to the authority without any success cannot extend the period of limitation.

8. In S.S. Rathore Vs. State of Madhya Pradesh reported in AIR 1990 SC 10 it has been held by Honble Supreme Court as follows:-  In the case of service dispute the cause of action must be taken to arise not from the date of the original adverse order but on the date when the order of the higher authority where a statutory remedy is provided entertaining the appeal or representation is made and where no such order is made, though the remedy has been availed of, a six months period from the date of preferring of the appeal or making of the representation shall be taken to be the date of preferring of the appeal or making of the representation shall be taken to be the date when cause of action shall be taken to have fires arisen. This principle has no application when the remedy availed of has not been provided by law. Repeated unsuccessful representations not provided by law are not governed by this principle.

9. In P.K. RAMACHANDRAN Vs. STATE OF KERALA AND ANOTHER reported in JT 1997 (8) SC 189 it has been held by Honble Supreme Court that the law of limitation may harshly affect a particular party but it has to be applied with all its rigor when the statute so prescribe and the Courts have no power to extend the period of limitation on equitable grounds. The discretion exercised by the High Court was, thus, neither proper nor judicious. The order condoning the delay, therefore, cannot be sustained.

10. Similarly in State of Karnakata Vs. S.M. Kotraya 1996 (7) SCALE 179 it was again held by Honble Supreme Court that it is not necessary that the respondents should give an explanation for the delay which occasioned for the period mentioned in sub-Sections (1) and (2) of Section 21, but they should give explanation for the delay which occasioned after the expiry of the aforesaid respective period applicable to the appropriate case and the tribunal should be required to satisfy itself whether the explanation offered was proper explanation as prescribed under Section 21 of the Administrative Tribunals Act, 1985. In view of above, it is duty of the court to see whether the delay has been properly explained by the person who is approaching the court after an inordinate delay. Accordingly, filing an application does not entitle the person to claim condonation of delay.

11. In Jai Dev Gupta Vs. State of Himachal Pradesh and Another reported in 1999 (1) AISLJ SC 110 it has been held by the Honble Supreme Court that continued representations do not keep the limitation alive.

12. Even otherwise, it has repeatedly been held by the Honble Supreme Court that parties should pursue their rights and remedies promptly and not sleep over their rights. If they choose to sleep over their rights and remedies for an inordinate long time, the Court may well choose to decline to interfere in discretionary jurisdiction (Harish Uppal Vs. U.O.I. reported in JT 1994 (3) SC 126).

13. Even otherwise, it has been held by Honble Supreme Court that settled position should not be unsettled after a long lapse of time.

14. In view of above, we find no good ground to condone the delay. M.A. for condonation of delay is rejected. Since delay has not been condoned, O.A. stands dismissed as barred by limitation. No costs. (MRS. MEERA CHHIBBER) (L.K. JOSHI) Member (J) Vice Chairman (A) Rakesh