Union of India & others v. P. Balakrishnan

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS & THE HONOURABLE MR.JUSTICE VIJU ABRAHAM FRIDAY, THE 22[ND] DAY OF OCTOBER 2021 / 30TH ASWINA, 1943 OP (CAT) NO. 85 OF 2017 AGAINST THE ORDER DATED 20.06.2016 IN OA NO.297/2013 OF CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH, ERNAKULAM ## PETITIONERS/RESPONDENTS: 1 UNION OF INDIA,REPRESENTED BY THE SECRETARY, GOVERNMENT OF INDIA, MINISTRY OF DEFENCE NEW DELHI 110 001. 2 THE ENGINEER-IN-CHIEF,ARMY HEADQUARTERS, DEFENCE HEADQUARTERS POST OFFICE,NEW DELHI 11 3 THE CHIEF ENGINEER SOUTHERN COMMAND, PUNE 400 001. 4 THE CHIEF ENGINEER (AIR FORCE)NO.2, DC AREA, BANGALORE. BY ADV SRI.T.V.VINU, CGC ## RESPONDENT/APPLICANT: P.BALAKRISHNAN (ADMINISTRATIVE OFFICER GRADE I (RETIRED) COMMANDER WORKS ENGINEER,TIRUMALA P.O., NOW RESIDING AT KAMALA BHAVAN,KALLODE, PERAMBRA P O 673525. ## OTHER PRESENT: SRI.V.V.NANDAGOPAL NAMBIAR THIS OP (CAT) HAVING BEEN FINALLY HEARD ON 22.10.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP (CAT) No.85 of 2017 2 **ALEXANDER THOMAS & VIJU ABRAHAM, JJ. ................................................................. O.P.(C.A.T.) No.85 of 2017** _(Arising out of the impugned final order dated 20.06.2016 in O.A.No.297 of 2013 on the file of the CAT, EKM Bench)_ **................................................................. Dated this the 22[nd] day of October, 2021** ## **JUDGMENT** ## **Alexander Thomas, J.** The sole respondent herein/original applicant had filed the instant Ext.P1 Original Application, O.A.No.297 of 2013 before the Central Administrative Tribunal, Ernakulam Bench on 26.03.2013 with the following prayers _[see page No.17 of the paper book of the O.P.]_ : _“i) to call for records relating to Annr-6 order and quash the same._ _ii) to declare that the applicant is entitled for promotion to the post of Senior Administrative Officer Grade I with effect from the date on which his immediate junior was promoted._ _iii) to grant all consequential service benefits including arrears of pay allowances terminal benefits along with interest on delayed payment from the date in which the applicant is qualified to be promoted to the post of Senior Administrative Officer Grade-I_ _iv) to pass such other orders which this Hon'ble Tribunal may deem fit and proper in the circumstances of the case._ ## _AND_ v) _to award the cost of the proceedings.”_ ## 2. The Tribunal after hearing both sides has rendered the impugned Ext.P5 final order on 02.06.2017 allowing the main pleas of OP (CAT) No.85 of 2017 3 the applicant and disposing of O.A with a direction that the applicant is entitled for grant of notional promotion to the post of Senior Administrative Officer (SAO) with effect from the date on which one Sri. Mahadevan, the immediate junior of the applicant was granted promotion to the said post and that the pay of the applicant should be refixed accordingly and that arrears of pension will be limited to three years prior to the date of filing of the O.A. It is this final verdict of the Tribunal at Ext.P5 that has been challenged in this original petition filed under Articles 226 & 227 of the Constitution of India at the instance of the Union of India and the departmental officers concerned. The prayer in the Instant O.P.(CAT) is as follows _[see page No. 6 of the paper book of the O.P.]:_ _“For these and other reasons to be submitted at the time of hearing, it is most respectfully prayed that this Hon'ble Court may be pleased to set aside Exhibit P5 Order in OA No.297/2013 dated 20.06.2016 of the Central Administrative Tribunal, Ernakulam Bench, in the interest of justice, equity and good conscience.”_ 3. Heard Sri.T.V.Vinu, the learned Central Government Counsel (CGC) appearing for the petitioners in the O.P./respondents in the O.A and Sri.V.V.Nandagopal, the learned counsel appearing for the sole respondent in the O.P./sole applicant in the O.A before the Tribunal. OP (CAT) No.85 of 2017 4 4. A detailed reference to the factual aspects in this case is necessary. The respondent herein/original applicant has retired from service on 31.07.1995 on attaining the then prescribed superannuation age. Earlier, while holding the post of Administrative Officer Grade-II (AO-II), he was aggrieved by the action of the respondents in the O.A in denying him promotion with effect from the date on which one Sri.R.Sivathanu who was admittedly his junior, was promoted. Sri.R.Sivathanu was in fact granted promotion to the post of Administrative Officer Grade-I (AO-I), on the basis of the final order of the Bombay Bench of the Central Administrative Tribunal rendered on 24.08.1991 in O.A.No.736 of 1988. As a matter of fact, the abovesaid Sri.Mahadevan was junior to both the applicant and Sri.R.Sivathanu. Since the admitted junior Sri.N.Mahadevan was promoted to the post of AO-I, the Bombay Bench of the Tribunal held in the final order dated 24.08.1991 in O.A.No.736 of 1988 that, the said O.A is allowed by declaring that in case, the abovesaid Sri.Mahadevan, who was junior to the applicant therein (Sri.R.Sivathanu) and he was not in the zone of consideration in the year 1975 and was also not promoted in the year 1980, but was promoted thereafter when the applicant therein (Sri.R.Sivathanu) shall also be promoted in the same manner as given in favour of Sri.N.Mahadevan and that the seniority of the applicant OP (CAT) No.85 of 2017 5 therein may be fixed appropriately in that manner. Further, it was made clear that in case the seniority of the applicant therein is refixed and he also gets promotion with retrospective effect, then the applicant therein (Sri.R.Sivathanu) would be entitled to all other consequential benefits as well. Citing the abovesaid promotions given in favour of Sri.R.Sivathanu on the basis of the verdict of the Bombay Bench of the Tribunal as well as the promotion given to Sri.N.Mahadevan, the applicant herein had approached the Central Administrative Tribunal by filing O.A.No.1565 of 1994. The Tribunal, after hearing both sides, has rendered Annexure-A1 final order dated 07.07.1995 disposing of O.A.No.1565 of 1994, and categorically holding that since Sri.R.Sivathanu and Sri.N.Mahadevan are both admittedly juniors to the applicant, the applicant is also entitled for the same benefit, as has been given by the Bombay Bench of the Tribunal in favour of one such junior. On this premise, the Tribunal disposed of the O.A as per Annexure-A1 by further directing that the applicant is to file appropriate representation before the competent authority of the respondents therein and who shall then advert to the decisions rendered by the Bombay Bench as well as the Madras Bench of the Tribunal referred to in Annexure-A1 and that, the 2[nd] respondent therein shall consider such representation and pass appropriate orders OP (CAT) No.85 of 2017 6 within three months taking into account the abovesaid findings and observations made by the Tribunal in Annexure-A1, etc. 5. The respondents in Annexure-A1 did not make any challenge as against the final order at Annexure-A1 and on the other hand, they had complied with the directions of the Tribunal at Annexure-A1 by issuing Annexure-A2 proceedings dated 19.05.1997, wherein it has been specifically ordered that the applicant herein Sri.P.Balakrishnan will stand promoted notionally as AO-II with effect from 16.06.1984 in the prescribed pay scale and the said promotion will be from the date of promotion of his immediate junior, Sri.N.Mahadevan. Further, it has also ordered in Annexure-A2 that the applicant will also stand promoted to the next higher category post of AO-I notionally with effect from 07.08.1987 in the prescribed pay scale with the condition that the said date of promotion will be akin to the promotion granted to his immediate junior Sri.N.Mahadevan. Thereafter, the applicant has retired from service on 31.07.1995 on attainment of the then prescribed superannuation age. On coming to know that, his immediate juniors like Sri.N.Mahadevan and Sri.R.Sivathanu were also given promotion to the next higher category post of Senior Administrative Officer (SAO) from the feeder category post of AO-I, the applicant had repeatedly approached the authorities OP (CAT) No.85 of 2017 7 concerned that he should also be given the same benefit and he should be promoted from the date on which his forthwith immediate juniors have been promoted to the post of SAO. It appears that the said representations had fallen on deaf years. Later, the applicant had filed O.A.No.233 of 2012 before the Central Administrative Tribunal, Ernakulam Bench, seeking for directions of the Tribunal to the respondents therein for grant of promotion to the applicant, to the post of SAO from the date on which such promotion has been given to his immediate junior Sri.N.Mahadevan. The Tribunal as per Annexure-A4 final order dated 03.09.2012 had finally disposed of O.A.No.233 of 2012 by directing that on a representation making the abovesaid claim for promotion to the post of SAO, been made by the applicant before the 1[st] respondent, then the 2[nd] respondent will consider the same and pass orders thereon within four months, etc. 6. In purported compliance of the directions issued by the Tribunal as per Annexure-A4 final order dated 03.09.2012 in O.A.No.233 of 2012, the respondents in the O.A has passed the impugned Annexure-A6 order dated 10.12.2012 rejecting the claim of the applicant for promotion to the post of SAO on the ground that, subsequently the seniority lists in the categories of AO-I and AO-II have been revised on 12.5.2000 and that Sri.N.Mahadevan has been OP (CAT) No.85 of 2017 8 placed as senior to the applicant in the seniority list of AO-I as per proceedings dated 12.05.2000 and further that a review DPC was conducted to review all the promotions earlier made and it was found that the dates that could be assigned to the senior claimants like Sri.N.Mahadevan could be only the same as the date 12.07.1996 given in favour of one Sri.J.Premsagar. On this basis it is stated in Annexure-A6 that since the date assigned to Sri.N.Mahadevan, Sri.R.Sivathanu, etc. for promotion to the post of SAO has been revised as 12.07.1996 and as the applicant was not in service as on 12.07.1996 in as much as he has retired from service on 31.07.1995, the claim of the applicant will stand rejected. The abovesaid order at Annexure-A6 has been sought to be quashed as one of the prayers in the present O.A. 7. We have heard both sides _in extenso_ and have perused the pleadings in the materials on record and have given our anxious consideration to the rival pleas. 8. After hearing both sides, we are of the firm view that we cannot countenance the main grounds advanced by the petitioners in the O.P/respondents in the O.A. At the outset, it has been stated that the applicant is an elderly senior citizen who is aged more than 84 years. So also, it has been noted that Annexure-A1 final order dated 07.07.1995 rendered by the Tribunal in O.A.No.1565 of 1994, has OP (CAT) No.85 of 2017 9 become final and conclusive. No challenge has been made as against Annexure-A1 order. On the other hand, the respondents in the O.A themselves have complied with the directions in Annexure-A1 and have issued Annexure-A2 order dated 19.05.1997, granting notional promotion to the applicant to the posts of AO-II and AO-I with effect from the dates on which his immediate junior Sri.N.Mahadevan was promoted to those posts. The notional date assigned to the applicant in the post of AO-I as per Annexure-A2 is 07.08.1987. The norms stipulated that an officer in the grade of AO-I is eligible to be considered for promotion to the next higher category post of SAO on completion of five years in the post of AO-I and subject to other conditions. The said five years had been duly completed by the original applicant as early as on 07.08.1992. 9. It appears that the case of the petitioners herein/respondents in O.A is to the effect that subsequent to the retirement of the applicant, the seniority list in the categories of AO-I and AO-II had been revised and review DPC was also conducted to review all the past promotions made, etc. Though there are no pleadings either in Ext.P2 reply statement dated 14.03.2014 filed by the respondents in the O.A before the Tribunal as well as in the present memorandum of original petition, as regards the details that has OP (CAT) No.85 of 2017 10 constrained them to conduct the review DPC, it has been submitted by Sri.T.V.Vinu, the learned Central Government Counsel appearing for the petitioners, on the basis of the instructions, that after the retirement of the petitioner an O.M. was issued by the Union Government as O.M. No.22011/5/91-Estt (D), dated 27.03.1997 wherein it has been ordered that for such promotions, incumbents having ACR gradation as outstanding should be preferred for promotion, etc. It appears that on the basis of this subsequent O.M issued on 27.03.1997, seniority lists were revised and review DPC were conducted. It is also to be borne in mind that the norms as per the abovesaid O.M. dated 27.03.1997 were later discontinued as per O.M.No.35034/7/97-Estt(D), dated 08.02.2002. Though these details are not contained in the pleadings before the Tribunal as well as in the memorandum of the O.P, an additional affidavit dated 14.06.2017 has been filed and para 3 thereof reads as follows: _“3. I submit that this affidavit is filed to clarify that in the assessment roll of the review DPC the name of Shri.P.Balakrishnan, the applicant was at Serial No.59, with ACR assessment - “Very Good” and the name of Shri.N.Mahadevan was at Serial No.62 with ACR assessment - “Outstanding”. Since the ACR assessment of Shri.N.Mahadevan was “Outstanding”, he superseded many officers including the applicant based on the Office Memorandum No.22011/5/91-Estt.(D) dated 27.3.1997 issued by the DoPT, clause III(iv) of which read as follows: “(iv) Notwithstanding the provisions mentioned above, in the case of promotions_ OP (CAT) No.85 of 2017 11 _made for induction to Group A posts/services from lower groups, while the bench mark would continue to be “Good”, then we shall grade the officers as “Outstanding”, “Very Good”, “Good”, “Average” and “Unfit” as the case may be and the officers will be arranged according to the grading obtained, placing the “outstanding” officers on top followed by those grade as “Very Good” and so on in the select panel up to the number of vacancies, with the officers having the same grading maintaining their interse-seniority in the feeder grade” (underline supplied)_ _This practice of supersession was subsequently discontinued as per O.M.No.35034/7/97-Estt (D) dated 08.02.2002. Thus when seniority list of AO Gr.II and AO Gr.I were revised through review DPC and panels were published on 12.05.2000 as per Ann.R1, the applicant's seniority as AO Gr.I was fixed as Sl.No.50 and Shri.N.Mahadevan is placed as Sl.No.10 (Ann R2 seniority list). Since the applicant had retired from service on 31.07.1995, well before 18.07.1996 when Shri.Premsagar was promoted as SAO, the applicant could not have been considered for promotion as per extant rules.”_ 10. The further case of the respondents in the O.A. is to the effect that consequent to such revision of the seniority lists, AnnexureR2 seniority list dated 12.05.2000 was issued in the category of AO-II and Annexure-R1 seniority list dated 12.05.2000 was issued in the category of AO-I. It is pointed out that in Annexure-R2 seniority list in the category of AO-II, the applicant P.Balakrishnan and the aforesaid Sri.R.Sivathanu and Sri.N.Mahadevan have been placed as Sl.Nos.63, 64 and 66 respectively. So, it is seen that both Sri.Sivathanu and Sri.N.Mahadevan have been placed as juniors to the applicant as far as Annexure-R2 altered seniority list in the category of AO-II, but in Annexure-R1 altered seniority list of AO-I, Sri.N.Mahadevan has been OP (CAT) No.85 of 2017 12 placed as Sl.No.10 thereof and the applicant has been placed as Sl.No.50 thereof and Sri.Sivathanu has been placed as Sl.No.51 thereof and one Sri.Premsagar has been placed as Sl.No.63 thereof. The specific case of the original applicant is that the abovesaid new norms as per O.M. dated 27.03.1997 and, cannot affect him in as much as his substantive vested and accrued rights as per Annexure-A4 verdict and Annexure-A5 order cannot be taken away subsequently on the basis of an executive order without the prescription of a statutory rule which has retrospective effect. This, the applicant would also contend on the basis that he has already retired from service on 31.07.1995 and therefore the new norm issued on 27.03.1997, drastically altering the service conditions, cannot retrospectively affect his service conditions and that the employer-employee relationship had by then snapped in as much as he had retired much prior to coming into force of the new norm. Further, it is stated by the applicant that both Annexures-R1 & R2 are not binding on the applicant for the simple reason that the applicant was never given any reasonable opportunity or notice before finalization of the altered seniority list as per Annexures-R1 & R2 and that too, which has been done much after his retirement. We specifically queried the petitioners in the O.P as to the factual correctness of the said submissions made by the original applicant and OP (CAT) No.85 of 2017 13 we are apprised that the original applicant was not put to notice before the issuance of the altered seniority lists as per Annexures-R1 & R2. So, at the outset we have to hold that Annexures-R1 & R2 altered seniority lists had been issued behind the back of the original applicant and that too much after his retirement cannot detrimentally affect his service conditions are concerned. Further, it is also trite that substantive vested and accrued rights cannot be taken away subsequently on the basis of an executive order in the absence of any statutory prescription having retrospective effect. The new norm as per the O.M. dated 27.03.1997, obviously is a engrafting norm which alters the service conditions and places higher standards for promotion and that too on retrospective basis and therefore, it cannot detrimentally affect the claims in the case of the present applicant. We are only confining our observations regarding the binding effect of Annexures-R1 & R2 as well as the above O.M. dated 27.03.1997 only in the case of the present applicant. We have been told that most of the other incumbents have accepted the abovesaid alterations in the seniority lists and review DPC decisions and that, nobody has challenged it in the manner known to law at the appropriate time, etc. If that be so, any such claim made by any such persons belatedly, will be barred by delay and laches. Hence, we would reiterate that the abovesaid findings are having made by us, OP (CAT) No.85 of 2017 14 should be confined only in the case of the present original applicant. 11. The further case of the respondents in the O.A. is to the effect that based on Annexures-R1 & R2 seniority lists, review DPC was conducted to review the entire promotions made previously and Annexure-A3 is the revised consolidated panel in the grade of SAO on account of the review DPC against vacancies for the years 1992-93, 1993-94, 1994-95 and 1995-96, etc. Wherein, Sri.N.Mahadevan has been shown as Sl.No.1 for selection as SAO against vacancies for 199293. The abovesaid Sri.Sivathanu has been shown as Sl.No.30 and that too on in respect of selection for SAO against 1995-96 vacancies. Sri.Premsagar has been shown as Sl.No.36 of Annexure-A3 for 1995-96 vacancies. The specific case of the respondents is to the effect that as pleaded by them in Ext.P2 reply statement dated 14.03.2014 filed by them before the Tribunal is to the effect that earlier, prior to the revision of the seniority lists, etc., the abovesaid Sri.Premsagar was already promoted to the rank of SAO vide proceedings No.A/41060/92-93 to 95-96/SAP/E1R(O) dated 12.07.1996 based on the then seniority list of AO-I in compliance of the various Court orders, etc. It is pointed out that based on the said earlier proceedings dated 12.07.1996, the abovesaid Sri.Premsagar was then assigned promotion as SAO with effect from 18.07.1996. After such pleadings it OP (CAT) No.85 of 2017 15 is thereafter stated that the revision of seniority lists and review DPC was conducted and then it was decided that the same date given earlier to Sri.Premsagar as SAO (18.07.1996) will have to be given to all his seniors in the category of SAO (presumably on the basis of AnnexureA3), in view of another O.M. viz. O.M.dated 10.04.1989. The contents of the said para 18.4.3 of DoP&T O.M.No.22001/5/86 Estt-D dated 10.04.1989 reads as follows _[see para 5 of Ext.P2 reply statement on page 36 of the paper book of the O.P.]_ _“18.4.3 If the officers panel junior to the officer concerned have been promoted he should be promoted immediately and if there is no vacancy the junior most person officiating in the higher grade should be reverted to accommodate him. On promotion he (sic) pay should be fixed under F.R 27 at the stage it would have reached, had he been promoted from the date the officer immediately below him was promoted but no arrears would be admissible. The seniority of the officer would be determined in order in which his name, on review has been placed in the select list by DPC. If in any such case minimum period of qualifying service is prescribed for promotion to higher grade the period from which as (sic) officer placed below the officer concerned in the select list was promoted to the higher grade should be reckoned towards the qualifying period of service for the purpose of determining his eligibility for the promotion to the next higher grade.”_ A perusal of the said contents of O.M dated 10.04.1989 would make it clear that the said O.M by itself will not have any application in the case of the present nature projected by the respondents in the O.A regarding subsequent alteration and revision of the seniority and conduct of consequential review DPC based on a new norm, etc. The OP (CAT) No.85 of 2017 16 justification for excluding the applicant is that all the persons, included in Annexure-A3 promotion list of SAO, have been granted the date of promotion as SAO as 18.07.1996 (as was given earlier in the case of Sri.Premsagar) and that since the applicant had retired from service on 31.07.1995, he cannot be granted promotion as SAO with effect from 18.07.1996, etc. 12. After hearing both sides, we are not in a position to countenance the abovesaid pleas made at the instance of the petitioners in the O.P for reasons more than one. Assuming that alterations and revision of seniority lists as per Annexures-R1 & R2 has been done validly on the basis of the subsequent O.M and assuming that Annexure-A3 review DPC list for SAO has also been validly done, then the review DPC process should have been carried to a logical consequences. Even going by the case set by the petitioners in the O.P, what has been now endeavoured to be done by them is conduct of review DPC consequent to the new norm and if that be so, matters should have been taken to a logical conclusion and each of the incumbents who is otherwise eligible for promotion to the post of SAO for the various select lists years mentioned in Annexure-A3 should have been considered subject to their qualifications, as against the date of occurrence of the vacancies concerned and subject to other norms OP (CAT) No.85 of 2017 17 and each such eligible candidate should have been assigned a specific date going by the date of occurrence of vacancy. On the other hand, a very strange method has been adopted in the instant case. It appears that since a decision has been taken that a common date (18.07.1996) should be given to all the seniors of Sri.Premsagar (who is the juniormost person included in Annexure-A3), all the other 35 incumbents in Annexure-A3 have also been assigned the date 18.07.1996 as their promotion to the post of SAO is concerned, as has been given in the case of Sl.No.3 (Premsagar). A reading of AnnexureA3 will not disclose these facts. These facts are apprised to us by the learned Central Government Counsel, based on instructions. Though such a pleading is made without much precision in Ext.P2 reply statement, no materials have been produced in any of the pleadings either before the Tribunal or before this Court to show that any such proceedings have been issued by the competent authority taking such a decision to assign a uniform date of 18.07.1996 in respect of all the 36 incumbents covered by Annexure-A3. However, we proceed on the premise that, such a common date has been assigned in the case of all the 36 incumbents covered by Annexure-A3. For the reasons stated by us hereinabove, such a procedure may not have been legally tenable one. Further, it appears that it is on the basis this particular procedure OP (CAT) No.85 of 2017 18 of adopting a common notional date of 18.07.1996 that, all persons including the applicant who were not in service as on 18.07.1996 have been excluded from the process. It has to be borne in mind that Annexure-A3 is a composite review DPC panel list for not one year but for several vacancy years, that is 1992-93, 1993-94, 1994-95 and 199596. The applicant was admittedly in service till 31.07.1995. The person who was earlier junior to him prior to his retirement (Sri.N.Mahadevan) as well as Sri.Sivathanu has been included in Annexure-A3. So, on the basis of these aspects, it appears that as a result of the abovesaid unusual procedure adopted, incumbents like the applicant who may have been otherwise eligible for consideration for promotion to the post of SAO on the basis of notional DPC selection process has been totally excluded from consideration only on the specious ground that they were not in service on a date arbitrarily picked and chosen by the authorities concerned. Firstly, such a common date ought not have been adopted at all. Vacancies should have been assigned to each of the incumbents and based on the date of occurrence of vacancy, the appropriate date should have been assigned to each of such incumbent. More crucial thing, which has to be borne in mind that the abovesaid proceedings dated 12.07.1996 referred to in Ext.P2 reply statement is a proceedings issued in the case of OP (CAT) No.85 of 2017 19 Sri.Premsagar much prior to the revision of the seniority lists as well as the review DPC process and much prior to the issuance of O.M dated 27.03.1997. Therefore, if the review DPC process has been taken to its logical conclusion then, adoption of the date 18.07.1996, assignment of a common date as 18.07.1996 on the basis of the proceedings dated 12.07.1996 which has been issued prior to the revision of the seniority list, was totally inappropriate and untenable. If once assuming that the alteration and revision of seniority lists and consequential review DPC process were legally imperative, then, entire process should have been reviewed and anything done prior to the revision should have been given a go by and what should have done was _de novo_ consideration, but on notional basis. Hence, we have no hesitation to hold that the procedure adopted for excluding the applicant for consideration for promotion post of SAO as per Annexure-A3, is unreasonable and arbitrary for reasons more than one. Here also, we would make it clear that the benefit of the abovesaid observations should be confined only in the case of original applicant, as he has litigated in time. We are told by the learned Central Government Counsel based on instructions, that most of the incumbents covered by Annexure-A3 have not challenged these aspects borne out from Annexures-R1, R2 and Annexure-A3, etc. and if that be so, any belated claim would certainly be barred by delay OP (CAT) No.85 of 2017 20 and laches. Hence, we make it clear that the abovesaid observations made by us in the case of the present applicant cannot be the basis for resurrecting any time barred claims of any other incumbents. It has also to be borne in mind that since the applicant is not bound by Annexures-R1 & R2 altered seniority lists, both Sri.Mahadevan and Sri.Sivathanu should be treated as juniors to the applicant as far as implementation of Annexure-A1 verdict of the Tribunal and Ext.P5 verdict of the Tribunal in the case of the original applicant. This also, we would make it clear, is an observation made by us which would stand confined only in the case of the original applicant and not in the case of any other person. Further, it has to be noted that the findings and directions issued by the Tribunal in the previous round of litigation at Annexure-A1 have become final and conclusive. No appeal or review has been filed against the same and on the other hand, the same has been implemented as per Annexure-A2. Annexure-A2 order issued in favour of the applicant cannot be in any manner disturbed or diluted on the basis of subsequent events narrated herein above. Therefore, in the light of these aspects, we have no hesitation to hold that the applicant has to be considered for promotion to the post of SAO at least on the date on which his immediate junior Sri.N.Mahadevan has been promoted as per Annexure-A3. True that, OP (CAT) No.85 of 2017 21 confusion has been created only on account of the arbitrary date of 18.07.1996 assigned in favour of all the 36 incumbents covered by Annexure-A3. The Tribunal has ordered as per Ext.P5 order that the applicant should be promoted from the date on which Sri.N.Mahadevan was promoted. If 18.07.1996 is taken as the date, then certainly there is an obstacle and the said obstacle is based on arbitrary and unreasonable basis. Each of the incumbents should have been assigned specific dates of notional promotion for each of the selection list years mentioned in Annexure-A3. That being so, Sri.N.Mahadevan and two others have been promoted and selected as SAOs as against 1992-93 vacancies. The said vacancy period 1992-93 is for the period from 01.04.1992 to 31.03.1993. Only for the purpose of effectuating a modality for implementing the directions of the Tribunal in Ext.P5, we would order that the date that is to be assigned in the case of the original applicant for promotion as SAO will be 07.08.1992 (ie. one day after the applicant had completed 5 years as AO-I on 06.08.1992 pursuant to Annexure-A2). On the basis of Annexures-A1 & A2, the applicant had completed seven years as AO-I on 08.07.1992. Hence there is no impediment for promoting the applicant as SAO, with effect from 07.08.1992. Hence, the direction of the Tribunal as per Ext.P5 is to be modified only to that limited extent. OP (CAT) No.85 of 2017 22 13. Sri.T.V.Vinu, the learned Central Government Counsel has raised certain technical objections that there has been inordinate delay and laches on the part of the original applicant in prosecuting the present matter. It is pointed out that the applicant had retired from service on 31.07.1995 and he has litigated his claim for retrospective promotion to the post of SAO only by filing Annexure-A4 O.A. dated 02.03.2012, in which verdict was rendered on 03.09.2012. It appears that after Annexure-A4 verdict of the Tribunal rendered on 03.09.2012, there may not be any delay at the instance of the original applicant. However, the learned Central Government Counsel would point out that there has been inordinate delay for the period from 31.07.1995 upto the date of institution of Annexure-A4 O.A in the year 2012. 14. Sri. V.V.Nandagopal, the learned counsel appearing for the respondent herein/original applicant would point out that the applicant is having recurring cause of action and what the Tribunal has ordered is only notional promotional benefits and the actual monetary benefits is only in the case of the arrears of the refixed pensionary benefits and nothing more and very guardedly the Tribunal has ordered that the arrears of revised pensionary benefits is to be given only for a period of three years prior to the date of institution of OP (CAT) No.85 of 2017 23 the present Ext.P5 O.A. No.297 of 2013, which was filed on 04.04.2013. In that regard, since the main relief that has been moulded by the Tribunal is only for grant of arrears of revised pensionary benefits and that too for a limited period of three years prior to the date of the filing of the present Ext.P5 O.A, we are of the view that the issue of delay will not in any manner detrimentally affect the pleas of the petitioners, especially if it is confined in terms of the reliefs actually granted to him as per Ext.P5. In that regard, it may also be pertinent to refer to certain decisions of the Apex Court regarding delay in the context of recurring cause of action. In **M.R.Gupta v. Union of India** [ _(1995) 5 SCC 628]_ in para No.5, it has been held as follows: _“5. Having heard both sides, we are satisfied that the Tribunal has missed the real point and overlooked the crux of the matter. The appellant’s grievance that his pay fixation was not in accordance with the rules, was the assertion of a continuing wrong against him which gave rise to a recurring cause of action each time he was paid a salary which was not computed in accordance with the rules. So long as the appellant is in service, a fresh cause of action arises every month when he is paid his monthly salary on the basis of a wrong computation made contrary to rules. It is no doubt true that if the appellant’s claim is found correct on merits, he would be entitled to be paid according to the properly fixed pay scale in the future and the question of limitation would arise for recovery of the arrears for the past period. In other words, the appellant’s claim, if any, for recovery of arrears calculated on the basis of difference in the pay which has become time barred would not be recoverable, but he would be entitled to proper fixation of his pay in accordance with rules and to cessation of a continuing wrong if on merits his claim is_ OP (CAT) No.85 of 2017 24 _justified. Similarly, any other consequential relief claimed by him, such as, promotion etc, would also be subject to the defence of laches etc. to disentitle him to those reliefs. The pay fixation can be made only on the basis of the situation existing on 1-8-1978 without taking into account any other consequential relief which may be barred by his laches and the bar of limitation. It is to this limited extent of proper pay fixation the application cannot be treated as time barred since it is based on a recurring cause of action.”_ ## Further, in _**S.R.Bhanrale v. Union of India and others** [(1996)_ ## _10 SCC 172],_ it has been held at para No.4 thereof as follows: _“4. The amounts now paid to the appellant admittedly fell due to him much before his retirement. The same was wrongfully withheld. It was, to say the least, improper on the part of the Union of India to plead the bar of limitation against such claims of its employees, when it had defaulted in making the payments promptly when the same fell due. It is not as if the appellant had woken up after a decade to claim his dues. He had been asking the Department to pay him his dues both while in service and after superannuation also but to no avail. In these circumstances it ill behoved the Union of India to plead bar of limitation against the dues of the appellant. We need say no more about it because better sense has prevailed and claim of the appellant has now been settled and payment made to him. The appellant who had served the Department for almost 40 years before his superannuation was made to run from pillar to post to get his legitimate dues. It is a sad commentary of affairs. He has undoubtedly suffered a lot. Had the amount which has now been found due and paid, been paid to him at the appropriate time at least in 1984 when he retired, the appellant would have been saved from a lot of unnecessary harassment; besides he would have earned interest on that amount also. He could have utilised that amount for other purposes. He was denied the same on account of the default of the Department. The appellant in his reply to the statement of account filed by Shri Arya in this Court has claimed almost 18 lakhs of rupees from the Department out of which more than Rs 16 lakhs has been claimed towards interest and compensation etc.”_ Further, the Apex Court has held in para 7 of the decision in _**Union of**_ OP (CAT) No.85 of 2017 25 ## _**India and others v. Tarsem Singh (2008) 8 SCC 648)**_ as ## follows: _“7. To summarise, normally, a belated service related claim will be rejected on the ground of delay and laches (where remedy is sought by filing a writ petition) or limitation (where remedy is sought by an application to the Administrative Tribunal). One of the exceptions to the said rule is cases relating to a continuing wrong. Where a service related claim is based on a continuing wrong, relief can be granted even if there is a long delay in seeking remedy, with reference to the date on which the continuing wrong commenced, if such continuing wrong creates a continuing source of injury. But there is an exception to the exception. If the grievance is in respect of any order or administrative decision which related to or affected several others also, and if the reopening of the issue would affect the settled rights of third parties, then the claim will not be entertained. For example, if the issue relates to payment or refixation of pay or pension, relief may be granted in spite of delay as it does not affect the rights of third parties. But if the claim involved issues relating to seniority or promotion, etc., affecting others, delay would render the claim stale and doctrine of laches/limitation will be applied. Insofar as the consequential relief of recovery of arrears for a past period is concerned, the principles relating to recurring/successive wrongs will apply. As a consequence, the High Courts will restrict the consequential relief relating to arrears normally to a period of three years prior to the date of filing of the writ petition.”_ 15. In the instant case, it has to be borne in mind that the applicant is essentially only contending that his seniority position prior to his retirement, as recognized in Annexure-A1 verdict of the Tribunal and Annexure-A2 order, shall not be disturbed by subsequent events after his retirement and that too without notice. The Tribunal has already recognized his right vis-à-vis, his junior for promotion in Annexure-A1 verdict. Therefore, in the instant case, we are of the view OP (CAT) No.85 of 2017 26 that the delay will not in any manner detrimentally affect the claims of the applicant especially in the light of the limited reliefs granted by the Tribunal as above. Hence, to sum up, it is ordered as follows: i) It is ordered that the applicant is entitled for notional promotion to the post of Senior Administrative Officer (SAO) with effect from 07.08.1992. ii) No monetary benefits by way of actual arrears of pay and allowances need be paid to the applicant for the period from 07.08.1992 upto his date of retirement on 31.07.1995. However, the notional benefits on the basis of the said notional promotion should be granted to the applicant in as much as the pay of the applicant should be refixed in the category of SAO and the last pay of the applicant in the post of SAO as on 31.07.1995 should also be correctly refixed, so that the pensionary benefits could be revised. iii) Based on the said notional refixation process, the revised pensionary benefits, both pension and gratuity should be computed on the basis of the abovesaid last pay of the applicant as on 31.07.1995 in the post of SAO and arrears of revised pensionary benefits should be paid which is limited to three years prior to the filing of the present O.A, that is from 01.04.2010 onwards, in as much as Ext.P5 O.A was filed on 04.04.2013. OP (CAT) No.85 of 2017 27 iv) Orders in that regard shall be passed by the competent authority among the petitioners herein/respondents in the O.A, more particularly, the 2[nd] petitioner/R2 in the O.A will pass orders on the abovesaid aspects and disburse the arrears of the revised pension as above, without any further delay at any rate, within an outer time limit of three months from the date of production of a certified copy of this judgment. Further, it is ordered that if there is any delay to comply with the abovesaid direction and to disburse the arrears of revised pension as above within the abovesaid time limit then, such arrears of revised pension will carry interest at the rate of 8% _per annum_ from the date of expiry of the said three months upto the date of actual payment, etc. v) Needless to say, the monthly pension to be paid to the applicant, should also be paid at the revised rates as above in view of the abovesaid direction. vi) Further, it is also reiterated that all the abovesaid observations and findings made by us as regards assignment of dates for all the 36 incumbents covered by Annexure-A3, etc. are confined only in the context of the lis advanced before us at the instance of the original applicant/respondent herein and the benefit of any of these directions given in favour of the applicant herein cannot be claimed by OP (CAT) No.85 of 2017 28 any of the other incumbents covered by Annexure-A3, etc. or any one, if they have not ventilated their grievances within a reasonable period and the abovesaid observations cannot be the basis for resurrecting any time barred claims. The orders and directions of the Tribunal at Ext.P5 will stand modified to the limited extent as above. 16. Further, before parting with this case, we would again note that the applicant is an elderly citizen who has already completed the age of 84 years and is in the evening of his life and we hope and trust that the petitioners in the O.P/respondents in the O.A will take proactive steps to ensure the immediate compliance of the abovesaid directions, without any further delay, as this is almost the fourth round of litigation, thrice before the Tribunal and once before this Court. With these observations and directions, the above Original Petition, will stand disposed of. Sd/- ## **ALEXANDER THOMAS JUDGE** Sd/- **VIJU ABRAHAM JUDGE** cks OP (CAT) No.85 of 2017 29 ## **APPENDIX OF OP (CAT) 85/2017** PETITIONERS' EXHIBITS - EXT.P1 TRUE COPY OF THE OA NO.297/2013 DATED 26/3/2013 FILED BY THE RESPONDENT BEFORE THE CAT, ERNAKULAM BENCH - EXT.P2 TRUE COPY OF THE REPLY STATEMENT DATED 14/3/2014, FILED BY THE PETITIONERS - EXT.P3 TRUE COPY OF THE REJOINDER DATED 27/5/2014 FILED BY THE APPLICANT - EXT.P4 TRUE COPY OF THE ADDITIONAL REPLY STATEMENT DATED 11/9/2014, FILED BY THE PETITIONERS. - EXT.P5 TRUE COPY OF THE ORDER IN OA NO.297/2013 DATED 20/6/2016 OF THE CENTRAL ADMINSTRATIVE TRIBUNAL, ERNAKULAM BENCH. - ANNEXURE A6 TRUE COPY OF THE ORDER NO. 41002/ADM/COURT CASE E1.DPC(PP, SUB) DATED 10.12.2012 - ANNEXURE A1 TRUE COPY OF THE ORDER DATED 07.07.1995 IN OA NO. 1565/1994 OF THE HONOURABLE TRIBUNAL - ANNEXURE A2 TRUE COPY OF THE ORDER DATED 19.05.2017 ANNEXURE A3 TRUE COPY OF THE LETTER NO. A/41106/SAO/E1R(O) DATED 08.05.2001 - ANNEXURE A4 TRUE COPY OF THE ORDER IN OA NO.233/2012 DATED 03.09.2012 OF THE HONOURABLE TRIBUNAL - ANNEXURE A5 TRUE COPY OF THE REPRESENTATION DATED 12.09.2012 ISSUED TO THE 1ST RESPONDENT - ANNEXURE R1 TRUE COPY OF THE PANEL LIST DATED 12.05.2000 - ANNEXURE R2 TRUE COPY OF THE SENIORITY LIST