R.A. No. 171/2013 in OA No. 2639/2008. Case: The Commissioner of Police Vs Krishna Kumari. Central Administrative Tribunal
| Case Number | R.A. No. 171/2013 in OA No. 2639/2008 |
| Counsel | For Appellant: Rashmi Chopra, Advocate and For Respondents: Yogesh Sharma, Advocate |
| Judges | G. George Paracken, Member (J) and Shekhar Agarwal, Member (A) |
| Issue | Administrative Tribunals Act, 1985 - Sections 19, 21, 22(3)(f); Code of Civil Procedure, 1908 (CPC) - Order XLVII Rule 1, Order XLVII Rule XLVII, Section 114; Limitation Act, 1963 - Section 3 |
| Judgement Date | August 12, 2014 |
| Court | Central Administrative Tribunal |
Order:
G. George Paracken, Member (J), (Principal Bench, New Delhi)
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This Review Application has been filed by the Respondent in OA No. 2639/2008. The said OA was allowed by this Tribunal vide order dated 19.05.2010. In the said OA, the Applicant had sought a direction to consider her for promotion in List A against her own quota of SC for promotion as Head Constable from the dates juniors and colleagues have been promoted with all consequential benefits pertaining to the year 1999. While disposing of the aforesaid OA, this Tribunal directed the Respondents to consider her case for promotion in promotion List A against SC quota on the basis of the selection of the year 1999 and in the event she is otherwise qualified, she shall be promoted from the date her juniors have been promoted as such, from the year 1999 with all consequences, as admissible in law within a period of three months. The operative part of the said order reads as under:-
5 We have carefully considered the rival contentions of the parties and perused the material on record. In our considered view the respondents have misapplied the instructions to fill up the quota of SC/ST from the candidates belonging to that respective category even if they have achieved the merit at par with general category candidates. As such, after the decision in R.K. Sabharwals case (supra), which has transformed into an OM dated 2.7.1997, has to be applied for reservation to SC/ST category candidates who achieve merit of general category have to be deemed as general category candidates and this quota would not be counted towards reservation. If it is so, because of non-following of the aforesaid the fundamental right of applicant to be considered as a SC category candidate fairly and equitably for promotion has been violated. The action of the respondents cannot be countenanced.
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As regards liberty accorded to the applicant, we find that applicant has described in his OA the quota etc. and as well demonstrated through RTI information that she was at the 8th position and was within the zone of consideration against 15 vacancies earmarked for SC category in which the candidates have been adjusted but secured merit of general standards.
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The decision of the Apex Court and OM hold the field and accordingly OA is allowed to the extent that now the case of the applicant for promotion in promotion list A against SC quota on the basis of the selection of the year 1999 shall be considered and in the event she is otherwise qualified, consideration for promotion shall be accorded to her from the date juniors have been promoted as such, from the year 1999 with all consequences, as admissible in law, within a period of three months from the date of receipt of a copy of this order. No costs.
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The Respondents challenged the aforesaid order before Hon'ble High Court of Delhi in Writ Petition (C) No. 7027/2010 and the same was disposed of vide order dated 11.08.2011. In the said order, the High Court observed that the petitioner therein, on instructions, sought withdrawal of the Writ Petition with liberty to seek review of the aforesaid order dated 19.05.2011 in accordance with law on the ground that Original Application of the Respondent (Applicant in OA) was barred by limitation. The High Court has, therefore, dismissed the Writ Petition as withdrawn with the aforesaid liberty, without prejudice to other contentions and grounds raised by the Petitioner in the Writ Petition. The said order being a short one is reproduced as under:-
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After some arguments, learned counsel for the petitioner on instructions seeks to withdraw the writ petition with liberty to approach the Tribunal to seek review of the impugned order dated 19.05.2010 in accordance with law on the ground that the Original Application of the respondent was barred by limitation.
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The writ petition is dismissed as withdrawn with the liberty as prayed for, without prejudice to other grounds and contentions raised by the petitioner in the writ petition which will be open for challenge.
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The interim order staying the operation of the impugned order dated 19.05.2010 shall, however, continue for another four weeks and the petitioner shall be at liberty to take interim order for further period after 4 weeks from the Tribunal in accordance with law, as may be deemed fit and appropriate in the facts and circumstances of the case.
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Thereafter, the Respondent filed Review Application No. 337/2011 in OA No. 2639/2008 (supra). However, the same was dismissed vide order dated 07.02.2013. The relevant part of the said order reads as under:-
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We have heard Mrs. Rashmi Chopra, learned counsel for the Review Applicant and Mr. Yogesh Sharma, learned counsel for the respondents. It was on detailed consideration of the matter, this Tribunal vide its order dated 19.5.2010 allowed the OA and held that the respondents have misapplied the instructions to fill up quota of SC/ST from the candidates belonging to that respective category, even if they have achieved the merit at par with general category candidates. As such, after the decision in R.K. Sabharwal s case (supra) followed by OM dated 2.7.1997 has to be applied for reservation to SC/ST category candidates who achieve merit of general category has to be deemed as general category candidates and the said quota would not be counted towards reservation. Accordingly, it was held that because of non-following of the aforesaid fundamental right of applicant to be considered as a SC category candidate fairly and equitably for promotion had been violated. This Tribunal has also observed that as per information made available to the Applicant under RTI Act, she secured the 8th position and came within the zone of consideration against 15 vacancies earmarked for SC category in which she has been adjusted but secured merit of general category candidate. Accordingly, the OA was allowed to the extent of considering the applicant for promotion to list A against SC quota on the basis of the selection of the year 1999 and in the event she was otherwise qualified, to consider her for promotion from the date her juniors have been promoted as such, from the year 1999 with all consequences, as admissible in law.
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The respondent-Commissioner of Police challenged the aforesaid order of this Tribunal before the Hon'ble High Court of Delhi in Writ Petition (Civil) No. 7027/2010. According to the judgment dated 11.8.2011 therein after some arguments, on instructions from the Petitioner, their counsel sought permission to withdraw the Writ Petition with liberty to approach this Tribunal to seek review of the order dated 19.5.2010 in accordance with law on the ground that the Original Application of the respondent was barred by limitation. On the aforesaid submission, the High Court of Delhi dismissed the Writ Petition as withdrawn with liberty as prayed for, without prejudice to the other grounds and contentions raised by the petitioner in the Writ Petition which would be open to challenge.
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According to the Review Applicant, the order dated 19.5.2010 directing consideration and grant of promotion to the respondent is contrary to law. The Review Applicant has also stated that the respondent did not qualify for selection process for the year 1999. He has also stated that the aforesaid OA was hit by principles of res judicata. The very same claim was raised by the respondents in OA No. 2462/2006 wherein selection for the year 1999 and 2005 was considered and rejected.
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Further, the Review Applicant has submitted that the claim of the respondent for selection in the list of 1999 was barred by limitation under Section 21 of the Administrative Tribunals Act, 1985, and could not have been entertained by the learned Tribunal and that too in the section litigation on the same issue. The learned counsel for the Review Applicant has also relied upon the instructions contained in Section 3 of the Limitation Act and argued that it is incumbent on the court to decide the plea of limitation irrespective of the fact whether the same is raised or not. The liberty granted by the Tribunal on the issue of non-filling of SC posts cannot be misused by the respondent to agitate the plea of promotion which stood concluded. In fact, the liberty was granted only in the case of non-filling up of cadre strength for the year 2005 and cannot ipso facto extend to the selection for the year 1999.
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The Review Applicant has further submitted...
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