RAJIV TANDON Vs. GOVERNMENT OF INDIA

JUDGEMENT

(1.) Rajiv Tandon and others, belonging to the Indian Police Service (IPS), filed seven separate Original Applications, questioning the constitutionality/legality of notification dated 20/29.01.1994 amending/substituting proviso to rule 3(3)(i) of the IPS (Regulation of Seniority) Rules, 1988 (hereinafter to be referred as the Rules of 1988), with retrospective effect from 1988. This Tribunal in OA No.632/1996 in the matter of Ashok Kumar v Union of India, decided on 16.03.2000, had already upheld the said notification. The Division Bench seized of this matter was of the opinion that some of the relevant issues involved in the matter were not considered by the Tribunal in Ashok Kumars case, and, therefore, the matter was referred to a larger Bench. The larger Bench of this Tribunal vide order dated 18.03.2010 held that the decision in Ashok Kumar (supra) did not lay correct law, and over -ruled it. The matter was not finally disposed of, as the question of limitation raised by the respondents was left to be decided by the Division Bench. The procedure as adopted by this Tribunal has been held by the High Court, in a writ petition filed against the order of the Full Bench, to be flawed, as limitation was an issue to be determined, and it ought to have been decided first, as it is only then that the Tribunal could enter into the merits of the controversy. This is indeed so, as has also been held recently by the Honble Supreme Court in D. C. S. Negi v Union of India [SLP(C) No.7956/2011, CC 3709/2011], decided on 7.3.2011. All that we may like to mention is that the Full Bench to which the matter came to be referred, it appears, was keen to settle the law, particularly when it appeared to it that the law laid down by the Tribunal earlier may not be correct. That anxiety, it appears, became a factor to deal with the controversy on merits, irrespective of the final fate of the OAs, which, if found to be barred by time, could have been dismissed. Be that as it may, once the procedure adopted by this Tribunal has not been approved by the Honble High Court, and it is indeed the law as well, as even held by the Honble Supreme Court, nothing more requires to be mentioned. Vide order dated 13.12.2010, the Tribunal has been requested by the Honble High Court to decide the issue of limitation, preferably within a period of two months. Before we may deal with the issue of limitation, we may mention at the outset that the Tribunal regrets that the matter could not be disposed of within two months. It has rather taken this Tribunal to decide the matter more than a year. A direction issued by a higher judicial forum has to be complied with, but when it is a request, it is taken more than a direction, and with respect. However, there were reasons, some of which would be reflected from our order while dealing with the issue of limitation, for which finalization of the issue got delayed.

(2.) Rajiv Tandon, applicant in OA No.412/2005, a 1988 batch IPS officer, as mentioned above, has questioned the notification dated 20/29.01.1994 issued by the Government of India, Department of Personnel & Training, amending the proviso to clause (1) of sub -rule (3) of rule 3 of the Rules of 1988 with retrospective effect, being ultra vires. His prayer is also to set aside the order dated 17.09.2004 of the Director (Police), Ministry of Home Affairs, Government of India, whereby his representation dated 09.01.1995 against the notification as mentioned above has been rejected. In consequence thereof, the applicant also seeks quashing of the tentative inter se seniority list of 1988 batch IPS probationers circulated vide letter dated 25.10.1994 by the first respondent, with a direction to the said respondent to revise and re -fix the inter se seniority of the IPS officers of 1988 batch in accordance with clause (1) of sub -rule (3) of rule 3 of the Rules of 1988, as it was prevailing at the time of selection and appointment of the applicant in IPS of 1988 batch. His prayer is also to direct the first respondent to place the IPS officers of 1988 batch at the bottom of the seniority list en bloc who were exempted probationers or who did not report for probation in the Academy on the specified date, i.e., 24.08.1988.

(3.) One of the objections in resisting the claim of the applicant by the respondents is that the present OA would be barred by limitation. The interim orders passed by this Tribunal after the order of the Honble High Court, as mentioned above, would show that the arguments in this case were heard on 28.01.2011, but the same remained inconclusive. On 09.02.2011 arguments were heard at sufficient length, but the same could not be concluded. In addition to the plea of bar of limitation, the plea that the OA would suffer from unexplained delay and laches, was also pressed. In that regard, it was submitted that when all this while till such time the OA came to be filed, the respondents were issuing seniority lists continuously from 1995, irrespective of pendency of the representation of the applicant, the applicant ought to have approached an appropriate forum for redressal of his grievances. This objection has been raised by the private respondents, but there was no specific plea taken on that behalf by the Union of India in their counter reply. That being so, on 23.03.2011, we recorded the following order: Even though there are some pleadings made on behalf of the private respondents that seniority lists are being issued ever since 1995 continuously, but there are no specific pleadings on that count made by the Government in their counter reply filed on their behalf. So as to decide the controversy in issue, at this stage, we require a responsible officer of respondent No.1 to file an affidavit as to whether seniority lists were being issued from 1994/95 and whether such lists are final seniority lists or only civil lists. The respondents may also apprise this Tribunal as to whether by seniority list or civil list promotions are being made, and further as to any one from whom applicants claim seniority was promoted, and if so, when. List on 28.4.2011. Official as well as private respondents have filed additional affidavits in tune with the order dated 23.03.2011. During pendency of the matter, the private respondents would raise yet another issue that the applicant in OA No.412/2005, Mr. Rajiv Tandon, had never filed a representation, and the same was a made -up affair. When thus the matter came up for hearing before us on 08.09.2011, after hearing the arguments at substantial length, we directed the first respondent to produce the original records as regards the representation made by the applicant. Meanwhile, the applicant obtained some information under the Right to Information Act, and on the basis thereof, it was stated that his representation dated19.01.1995 was routed through Police Headquarters to the Principal Secretary, Government of Madhya Pradesh on 24.01.1995, which in turn was forwarded to the Government of India. As would be reflected from order dated 28.09.2011, we required the documents obtained by the applicant under RTI to be translated as the same were in Hindi. Learned counsel representing the parties were ad idem that in the context of the controversy as added by another dimension as regards non -filing of representation by the applicant Rajiv Tandon, the State of Madhya Pradesh should be served again. The said respondent had since accordingly been served, but nobody chose to appear on its behalf. That being so, we issued fresh notice to the State of Madhya Pradesh returnable on 24.10.2011. Copy of the order was directed to be sent to the Principal Secretary, Government of Madhya Pradesh forthwith, who was to ensure presence on its behalf with the information as required. The said respondent was also to ascertain whether the documents would be available with the fourth respondent, and if so, the same were to be brought before the Tribunal for its perusal in original. On 24.10.2011, Shri Naveen Sharma entered appearance on behalf of the third respondent, State of Madhya Pradesh, and sought adjournment to furnish the information asked for. We recorded order dated 24.11.2010 that we were sanguine that considering the delay that had been caused in the matter, counsel representing the said respondent would not seek any further adjournment. On 05.01.2012, Shri Naveen Sharma, appearing for the State of Madhya Pradesh, stated that all relevant original records were available. Arguments in the matter were concluded on 23.01.2012, when order was reserved. The parties required written arguments to be also placed on records. Insofar as the respondents are concerned, they had placed on records the written arguments on the day when arguments were concluded. Learned counsel representing the applicant, however, submitted his written arguments on 02.02.2012. Perusal thereof would show that the plea only as regards limitation was covered. The respondents, as mentioned above, had also advanced arguments with regard to delay and laches. A message was sent to the counsel representing the applicant to submit further arguments if he wanted, and particularly, as regards delay and laches. When no written arguments from the learned counsel were received, considering the importance of the matter, showing indulgence, we again listed the same on 22.02.2012. On that date counsel was told that if he may not like to submit written arguments on delay and laches, the court may proceed to decide the case. The learned counsel, however, on the adjourned date, i.e., 27.02.2012, submitted written arguments.