Suresh Kumar D v Union of India and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **&** **THE HONOURABLE MR.JUSTICE V.G.ARUN** # **THURSDAY, THE 21ST DAY OF NOVEMBER 2019 / 30TH KARTHIKA, 1941** ## **OP (CAT).No.49 OF 2014(Z)** **AGAINST THE ORDER IN OA 1030/2013 OF CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH** ## **PETITIONER/S:** **SURESH KUMAR D RETIRED DEPUTY DIRECTOR OF ADMINISTRATION, PRASAR BHARATI(BROADCASTING CORPORATION OF INDIA)R/A.SAI DHAM, KARAPARAMBA, KOZHIKODE-673010** **BY ADVS. DR.K.P.SATHEESAN (SR.) SRI.ANOOP.V.NAIR SRI.M.R.JAYAPRASAD SRI.P.MOHANDAS (ERNAKULAM) SRI.S.VIBHEESHANAN** ## **RESPONDENT/S:** - **1 UNION OF INDIA REP BY THE SECRETARY, MINISTRY OF INFORMATION & BROADCASTING, SASTRI BHAVAN, NEW DELHI-110001** - **2 PRASAR BHARATIBROADCASTING CORPORATION OF INDIA REP BY ITS CHIEF EXECUTIVE OFFICER, PRASAR BHARATI BOARD, PTI BUILDING, PARLIAMENT STREET, NEW DELHI-110001** - **3 THE DIRECTOR GENERAL ALL INDIA RADIO, AKASHAVANI BHAVAN, PARLIAMENT STREET, NEW DELHI-110001** O.P.(CAT) No.49 of 2014 2 - **4 THE UNION PUBLIC SERVICE COMMISSION REP BY ITS SECRETARY, DHOLPUR HOUSE, SHAJAHAN ROAD, NEW DELHI-110069** **R1 BY ASSISTANT SOLICITOR GENERAL** **R1-4 BY ADV. SHRI.P.VIJAYAKUMAR, ASG OF INDIA R1-3 BY SRI.T.SANJAY, CGC R4 BY ADV. SRI.THOMAS MATHEW NELLIMOOTTIL,SC UPSC** **THIS OP (CAT) HAVING BEEN FINALLY HEARD ON 21.11.2019,** **THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** O.P.(CAT) No.49 of 2014 3 ## **JUDGMENT** Dated this the 21[st] day of November, 2019 ## **V.G.Arun, J.** The petitioner is aggrieved by Ext.P1 order by which the Central Administrative Tribunal, Ernakulam Bench, dismissed ## his original application with the following prayers:- _“(i) to set aside Annexure A1 Order dated 23.08.2013 issued by the 3[rd] respondent._ _(ii) to direct the respondents to convene the meeting of the review DPC to consider the applicant for promotion to the post of Inspector of Accounts in the vacancy year 2003-2004 and, if found 'fit' grant him regular promotion to the post of Inspector of Accounts retrospectively with effect from the date of relevant vacancy became available in 2003-2004 with all consequential benefits [including the benefit of pay fixation under FR-22 (1) (a) (1)]._ _(iii) To direct the respondents to promote the applicant to the post of Deputy Director of Administration on regular basis from retrospective effect from 01-05-2005 instead of 27-05-2008 with all consequential benefits [including the benefit of pay fixation under FR - 22 (1) (a) (1)] since he had already been considered/approved for promotion as DDA against the vacancy year 2005-2006 by the DPC which met on 27-05-2008._ _(iv) To direct the respondents to fix the pension and_ O.P.(CAT) No.49 of 2014 4 _pensionary benefits based on the revised pay due to the applicant with interest @ 18% per annum from the date on which they are due till the date of actual payment.”_ 2. The facts in brief, as narrated in the original application, with reference to the documents therein, are as follows:- The petitioner had joined as Clerk Grade-II in All India Radio on 11.7.1975. He was promoted as Accountant, Administrative Officer and Senior Administrative Officer. The next posts in the line of promotion were, Inspector of Accounts (IA) and Deputy Director of Administration (DDA). Without promoting the petitioner as IA, he along with two other similarly situated officers were directly promoted as DDA on _ad hoc_ basis by order dated 27.5.2005. The petitioner was promoted as DDA on regular basis with effect from 27.5.2008 and retired from service from that post on 30.4.2011. After retirement, the petitioner raised a claim for O.P.(CAT) No.49 of 2014 5 retrospective promotion as IA and DDA, alleging that he was denied timely promotions to those posts despite availability of vacancies and entitlement. According to the petitioner, he ought to have been promoted as IA and DDA with effect from 1.10.2003 and 1.5.2005 respectively. The claim was raised on the premise that, Sri.G.S.Bedi, a similarly situated officer, was granted retrospective promotion as IA and DDA in compliance of the direction in O.A.No.1376 of 2009, of the Principal Bench of the Central Administrative Tribunal. After submitting representations dated 2.6.2012 and 7.11.2012, the petitioner approached the Tribunal in O.A.No.472 of 2013, which was disposed of under Annexure A16 order of the Tribunal with the following directions:- _“3. In view of the foregoing, the respondents are directed to consider the representation of the applicant for promotion to the post of Inspector of Accounts and Deputy Director, Administration from the year the vacancy arose and if the applicant is included in the panel for promotion for the above mentioned posts by the DPC as claimed by him, he will be granted notional promotion to_ O.P.(CAT) No.49 of 2014 6 _the concerned posts in accordance with the directions given by the Tribunal in O.A 1376/09. In case, he was not considered by the DPC due to his name not being included in the zone of consideration, the respondents will initiate action to hold review DPC, for both the posts, if his name was left out due to any administrative lapse and his juniors were recommended for promotion by DPC and were promoted. If he is found fit by promotion by review DPC, his case is to be treated as covered by the order of the Principal Bench and he shall be given the same benefits as were given to the applicants therein. In case, it is not so, the respondents shall intimate the applicant the reasons by way of a reasoned and speaking order within a time line of two months from the date of receipt of a copy of this order. No costs.”_ Accordingly, the petitioner's claim was considered by the respondents and rejected under Annexure A1 order dated 23.8.2013, which was the subject matter of challenge in the original application. 3. The thrust of the contention before the Tribunal was that, because of the failure of the Department to hold the DPC meeting for promotion to the posts of IA and DDA, in spite of availability of vacancy, the petitioner had been denied promotion with effect from 1.10.2003 and 1.5.2005 respectively, resulting in financial loss in relation to pay and O.P.(CAT) No.49 of 2014 7 allowances, as well as in retirement benefits. The petitioner sought similar treatment, as extended to G.S.Bedi, who belonged to the same cadre. 4. The respondents opposed the prayer for retrospective promotion mainly on the ground of delay and laches in raising the claim and contended that the petitioner's case could not be equated with that of G.S.Bedi, inasmuch as G.S.Bedi had raised his claim while he was still in service and had followed it up by approaching the Tribunal without delay. 5. The Tribunal found gross delay on the part of the petitioner in agitating his grievance. Reliance was placed on the decisions in _**C.Jacob v. Director of Geology and Mining and another [(2008) 10 SCC 115]**_ and _**Union of India and others v. M.K.Sarkar [(2010) 1 SCC (L&S) 1126]**_ to hold that, if a belated representation is directed to be considered or dealt with by Court/Tribunal and rejected on the ground of O.P.(CAT) No.49 of 2014 8 delay, that will not result in reviving the stale claim or amount to acknowledgement of a jural relationship, giving rise to a fresh cause of action. The Tribunal also found that cogent reasons had been stated in Annexure A1 for rejecting the petitioner's claim. After careful scrutiny of Annexure A2 order passed in G.S.Bedi's case, the Tribunal found the facts therein to be distinct from the petitioner's case. Based on the such findings, the original application was dismissed. 6. Heard. 7. It is an undisputed fact that the claim for retrospective promotion was raised by the petitioner for the first time through Annexure A14 representation dated 2.6.2012. The petitioner having retired from service on 30.4.2011, his rights emanating from his service had crystallised on the date of his retirement and it was not open for him to thereafter rake up a claim, not raised while in O.P.(CAT) No.49 of 2014 9 service. As rightly observed by the Tribunal, the petitioner had accepted his _ad hoc_ promotion as DDA with effect from 27.5.2005 and regular promotion with effect from 27.5.2008, without demur. The petitioner thought of staking his claim for retrospective promotion to the post of I A and DDA only when retrospective promotions were granted to G.S.Bedi. Unlike the petitioner, G.S.Bedi did not sleep over his rights and had approached the Department and the Tribunal on time. The Tribunal painstakingly compared the grounds on which the claim of G.S.Bedi was allowed by the Tribunal, with the grounds raised by the petitioner and found substantial difference between the two cases. As held by the Tribunal, the fact that under Annnexure A2, petitioner's claim, based on his belated representations, was directed to be considered and culminated in Annexure A1, did not give rise to a fresh cause of action. We have no hesitation to hold that the respondents O.P.(CAT) No.49 of 2014 10 were justified in rejecting the petitioner's claim as per Annexure A1. Therefore, we find no reason to interfere with the order of the Tribunal rejecting the challenge against Annexure A1. In the result, the original petition is dismissed. No order as to costs. **Sd/K.VINOD CHANDRAN JUDGE** **Sd/-** **V.G.ARUN** **JUDGE** Scl/21.11x O.P.(CAT) No.49 of 2014 11 ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 P1:-TRUE COPY OF THE ORDER DTD 8/11/2013 IN OA NO 1030/2013** - **EXHIBIT P2 P2:-TRUE COPY OF THE OA NO 10330/2013** - **ANNEXURE A1 TRUE COPY OF THE ORDER NO.C-18013/19/13 SII DATED 23.08.2013 OF THE 3RD RESPONDENT.** - **ANNEXURE A2 TRUE COPY OF THE ORDER DATED 12.3.2011 IN O.A NO. 1376/2009 OF THE PRINCIPAL BENCH OF THE CENTRAL ADMINISTRATIVE TRIBUNAL.** - **ANNEXURE A3 TRUE COPY OF THE ORDER NO. 32/2005-S.II DATED 27.5.2005 OF THE 3RD RESPONDENT.** - **ANNEXURE A4 TRUE COPY OF THE ORDER NO.A22013/2/2/007-SII DATED 17.10.2008 17.10.2008 OF THE 3RD RESPONDENT.** - **ANNEXURE A5 TRUE COPY OF THE ORDER NO.C18013/14/2009-SII DATED 13.10.2011 OF THE 3RD RESPONDENT.** - **ANNEXURE A6 TRUE COPY OF THE ORDER NO. 18013/14/2009-SII DATED 2.7.2012 OF THE 3RD RESPONDENT.** **ANNEXURE A7 TRUE COPY OF THE STATEMENT SHOWING THE REGULAR VACANCIES OF IA OCCURRED N AIR & DOORDARSHAN FROM 1999-2000 TO 20042005.** **ANNEXURE A8 TRUE COPY OF THE LIST OF ELIGIBLE SR.A.OS. TO BE CONSIDERED BY TH DPC FOR REGULAR PROMOTION AS IA AGAINST** O.P.(CAT) No.49 of 2014 12 ## **VACANCIES FOR 1999-2000 TO 2004-2005.** **ANNEXURE A9** **TRUE COPY OF THE STATEMENT SHOWING THE MANNER IN WHICH THE OFFICERS WERE TO BE PROMOTED AS IA ON REGULAR BASIS, IF THE DPC MEETING WERE HELD EVERY YEAR.** - **ANNEXURE A10** **TRUE COPY OF THE MINUTES OF THE MEETING OF THE DPC HELD ON 13.12.2002 FOR PROMOTION TO TH POST OF IAS.** - **ANNEXURE A11** **TRUE COPY OF THE ORDER NO. 36/2003-S.II DATED 28.7.2003 OF THE 3RD RESPONDENT.** - **ANNEXURE A12 TRUE COPY OF THE MINUTES OF THE MEETING OF THE DPC HELD ON 27.5.2008.** - **ANNEXURE A13 TRUE COPY OF THE LETTER NO. C- 18013/14/2009-S-II DATED 24.4.2012 OF THE 3RD RESPONDENT.** - **ANNEXURE A14 TRUE COPY OF THE REPRESENTATION DATED 2.6.2012 OF THE APPLICANT TO THE 3RD RESPONDENT.** - **ANNEXURE A15 TRUE COPY OF THE REPRESENTATION DATED 7.11.2012 OF THE APPLICANT TO THE RESPONDENTS.** - **ANNEXURE A16 TRUE COPY OF THE ORDER DATED 24.5.2013 OF THE HON'BLE CENTRAL ADMINISTRATIVE TRIBUNAL IN O.A NO. 472/2013.** - **ANNEXURE A17 TRUE COPY OF THE STATEMENT SHOWING THE MANNER IN WHICH THE OFFICERS SHOWN AT SI.NO.1 TO 9 IN THE SELECT LIST OF 1312-2002 WERE PROMOTED AS IA ON REGULAR AND ADHOC BASIS.** ## **EXHIBIT P3** **P3:-TRUE COPY OF THE MA NO 1199/2013 IN OA NO 1030/2013. TRUE COPY OF THE JUDGMENT DATED 13.05.2014 IN O.A NO. 1646/2014 OF THE HON'BLE CENTRAL** O.P.(CAT) No.49 of 2014 13 |||**ADMINISTRATIVE TRIBUNAL, PRINCIPAL**| |---|---|---| |||**BENCH, NEW DELHI.**| |**ANNEXURE**|**18**|**TRUE COPY OF THE ORDER NO.4/2003-S.II**| |||**DATED 17.01.2003 ISSUED BY THE 2ND**| |||**RESPONDENT.**| |**ANNEXURE**|**19**|**TRUE COPY OF THE ORDER NO. 10/2003-S.II**| |||**DATED 29.01.2003 ISSUED BY THE 2ND**| |||**RESPONDENT.**| |**ANNEXURE**|**20**|**TRUE COPY OF THE ORDER NO. 21/2003-S.II**| |||**DATED 08.5.2003.**| |**ANNEXURE**|**21**|**TRUE COPY OF THE PROMOTION ORDER NO.**| |||**23/2003-S.II DATED 29.5.2003 OF THE 2ND**| |||**RESPONDENT.**|