Union of India and others v. P.V. Mathew

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE BABU MATHEW P.JOSEPH WEDNESDAY, THE 31ST DAY OF JULY 2013/9TH SRAVANA, 1935 OP (CAT).No. 2635 of 2013 (Z) ------------------------------ AGAINST THE ORDER/JUDGMENT IN OA 149/2010 of CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH DATED 12-12-2011 PETITIONER(S): - ------------------ 1. UNION OF INDIA, REPRESENTED BY ITS SECRETARY MINISTRY OF EXTERNAL AFFAIRS, NEW DELHI-110001. 2. THE JOINT SECRETARY (CPV) AND CHIEF PASSPORT OFFICER, MINISTRY OF EXTERNAL AFFAIRS, NEW DELHI-110001. 3. THE REGIONAL PASSPORT OFFICER, PASSPORT OFFICE, THIRUVANANTHAPURAM-695024. BY ADV. SRI.P.PARAMESWARAN NAIR,ASG OF INDIA RESPONDENT: ----------------- P.V. MATHEW, ASSISTANT PASSPORT OFFICER, PASSPORT OFFICE THIRUVANANTHNAPURAM-695024. ## BY SRI.P.RAMAKRISHNAN THIS OP (CAT) HAVING COME UP FOR ADMISSION ON 31-07-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP (CAT).No. 2635 of 2013 (Z) ------------------------------ ## APPENDIX ## PETITIONER(S)' EXHIBITS ----------------------------- - EXT.P1 TRUE COPY OF THE ORIGINAL APPLICATION NO.419 OF 2010 FILED BY THE RESPONDENT - EXT.P2 TRUE COPY OF THE REPLY STATEMENT FILED BY THE PETITIONERS IN ORIGINAL APPLICATION NO.149 OF 2010. - EXT.P3 TRUE COPY OF THE REJOINDER FILED BY THE RESPONDENT IN O.A.149 OF 2010. - EXT.P4: TRUE COPY OF THE ORDER DATED 12.12.2011 IN O.A.419/2010 OF THE CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM. - EXT.P5: TRUE COPY OF THE GAZETTE NOTIFICATION NO.G.S.R.806(E)DATED 31.10.2012. ## RESPONDENT(S)' EXHIBITS: ------------------------------- /TRUE COPY/ P.A. TO JUDGE ## **THOTTATHIL B.RADHAKRISHNAN & BABU MATHEW P.JOSEPH, JJ. -------------------------** O.P. (CAT) No. 2635 of 2013 -------------------------Dated this the 31[st] day of July, 2013 ## **J U D G M E N T** ## _Thottathil B.Radhakrishnan,J._ Union of India and officers under it have filed this original petition on 30.07.2013 invoking the jurisdiction under Article 227 of the Constitution of India, challenging Ext.P4 order of the Central Administrative Tribunal rendered on 29.11.2011. We see that the Tribunal had issued the certified copy of that order on 15.12.2011. By any relevant parameter, this original petition is grossly out of time. While it may be true that the Limitation Act, 1963 and the Kerala High Court Act, 1958, does not prescribe, statutorily, any period of limitation for filing original petition under Articles 226 and 227 of the Constitution, the accepted principle, practice and procedure, as recognised by statutory precedents rendered by this Court, enjoin that, even in the absence of any such statutory prescription, writ and supervisory jurisdiction should be normally invoked **2** O.P. (CAT)No. 2635 of 2013 within a time frame of 90 days from the date of issuance of the impugned order. This is well settled, see, **Narayanan v. Rent Controller [1988(2) KLT 74]** and **Thomas v. Mukunda Menon [1992 (2) KLT 9]** . In that view of the matter, we do not find any expression of reason, on the face of the original petition, explaining the enormous delay. 2. The learned Central Government Standing Counsel attempted to say that the delay is attributable to administrative reasons and requested that an opportunity be afforded to file an affidavit disclosing them. We are not inclined to grant any adjournment for that, because, proceeding to look into whether there is any reason why we should ultimately visit the impugned order in exercise of authority under Article 227 of the Constitution, we see that the chances in that regard are bleak. 3. Respondent was promoted to the post of Superintendent in the Passport Office coming under the Ministry of External Affairs with effect from 1.11.1999. His plea is against the fixation of pay scales, including upgradation, which, according to him, has been done **3** O.P. (CAT)No. 2635 of 2013 erroneously. The order impugned before the Tribunal is Annexure-A9 in Ext.P1. Among other things, applicant claims revised scale. Tribunal considered the matter on merits and said that it is a case where orders will have to be issued after considering the case of the applicant in the light of what has been stated by the Tribunal in the order impugned before us. 4. In paragraph 5 of Annexure A-9 in Ext.P1, the establishment has _inter alia_ said that the up-gradation of 50 posts of Superintendents were recommended by V[th] Central Pay Commission; out of which, 50% (i.e., 25 posts) were to be for direct recruits, and, 50% (i.e.,25 posts) were to be upgraded in the feeder cadre. But, the fact of the matter remains that the Government did not approve or accept the recommendation of the V[th] Central Pay Commission. As such, in so far as it related to the group of persons like the respondent, what we see in Annexure A7 in Ext.P1 issued by the Ministry of Finance, Department of Expenditure, print dated 27.8.2001, is that, for different reasons enumerated at serial numbers (i) to (iv) therein, it O.P. (CAT)No. 2635 of 2013 **4** was not found possible to upgrade the pay scale of Superintendents from Rs.5,500-9,000 to Rs.6500-10,500. In paragraph No.(iii) of that document, it is clearly stated as follows: “(iii) In terms of the present arrangements, direct recruitment in Central Passport Offices takes place only to posts of Lower Division Clerk and Stenographer Grade III, all other posts in the hierarchy in CPOs being filled largely by promotion of incumbents of these posts”. 5. Now, reverting to clause (iii) in the preceding paragraph of Annexure A7 in Ext.P1, it can be seen that under the then existing arrangements, direct recruitment in Central Passport Offices was only to posts of Lower Division Clerk and Stenographer Grade III. All other posts in the hierarchy in CPOs were being filled up, largely by promotion. This obviously cuts at the root of the contents of paragraph 5 of the impugned order that 50% was meant for direct recruits and 50% was meant to be in the upgraded feeder cadre. Such classification between the direct recruits and feeder cadre as sought to be made by the V Central Pay **5** O.P. (CAT)No. 2635 of 2013 Commission could not be given effect to, because there was no question of any direct recruitment. Appointment to that category was only by promotion. Therefore, 50% of the existing posts of Superintendents referred to in paragraph No.(iii) in Annexure-A7 of Ext.P1, approved by the Finance Minister for upgrading the pay scale of Rs.6,500-10,500 w.e.f. 1.10.1997 applied to those persons who are in the category of Superintendents without reference to whether they were direct recruits or appointees by promotion. The identification of 50% posts who will be preferentially eligible to that higher grade is for the Government to decide or for the Department concerned to come out with an answer. It is not something that can be taken out from an employee who comes to Court or Tribunal seeking a relief. We are not, therefore, prepared to take the submission on behalf of the Union of India that the respondent herein, who was the applicant before the Tribunal, has not established as to whether he belongs to, and, holds one among the 50% of the existing posts, as were available as on 1.10.1997. O.P. (CAT)No. 2635 of 2013 **6** 5. In the aforesaid context of facts as emanating from records, we are clear in our mind that the direction of the Tribunal requiring the establishment to re-work on the representation of the applicant, calls no interference under Article 227 of the Constitution of India even if the aforesaid would not have been the pointed approach adopted by the Tribunal in its reasoning process. For the aforesaid reasons, this original petition fails and the same is accordingly dismissed. We clarify that in the light of this judgment, the establishment could move the Tribunal for enlargement of time, if so required. ## **(Sd/-Thottathil B.Radhakrishnan, Judge)** **(Sd/-Babu Mathew P.Joseph, Judge)** ma /True copy/ P.A to Judge