JUDGMENT
S. Radhakrishnan, J.
1. By the above petition, the petitioner is challenging the orders of Central Administrative Tribunal, Mumbai Branch, whereby the petitioner’s Original Application was dismissed on 7th November, 2001 and even the review was declined by the Central Administrative Tribunal by its order dated 29th May, 2002. The petitioner by the aforesaid proceedings had prayed for appropriate seniority and the year of allotment in the Indian Police Service.
2. The brief facts are that the petitioner was directly recruited as a Deputy Superintendent of Police under the Maharashtra State Police Services on 1st May, 1979. On 1st February, 1982, he was declared to have completed the probation period successfully. He was later promoted as Superintendent of Police with effect from 10th May, 1985 and was posted as Dy. Commissioner of Police at Pune City and was carrying out duties and having responsibilities like an Indian Police Service Officer.
3. On 13th April, 1989 the Government of Maharashtra confirmed the petitioner in the post of Dy. Superintendent of Police/Asst. Commissioner of Police w.e.f. 31-12-1987. The petitioner contends that as per the 1975 resolution of Government of Maharashtra, he ought to have been confirmed on completion of three years service, i.e. in the year 1982 itself, however he was confirmed with effect from 31-12-1987. The petitioner contends that in view of an inordinate delay on the part of respondent-State of Maharashtra, the petitioner was not considered against 1988 vacancies.
4. Regulation 5 of the provisions of the Indian Police Service (Appointment by Promotion), Regulations, 1955 provides that the Committee of Selection must consider all confirmed members of State Police Service as first January of the year in which the meeting is held, of such persons who had completed not less than 8 years of continuous service, whether officiating or substantive, in the post of Deputy Superintendent of Police.
5. It is the case of the petitioner as he had joined the Police Service as Dy. Superintendent of Police on 1-5-1979 he was eligible for being considered in the vacancy occurring in 1988, as he was confirmed with effect from 31st December, 1987. It appears that the Selection Committee of respondent-State of Maharashtra met only on 22-2-1990 and considered the vacancies of 1988 and 1989, wherein the petitioner was also one of them selected in the Indian Police Service. However the letter was issued only on 8th March, 1991 i.e. after about thirteen months. The petitioner was confirmed in Indian Police Service with effect from 8th March, 1992, however the letter was issued after a year on 9th February, 1993. The petitioner received a communication dated 26th May, 1994 from Government of India informing him that his year of allotment would be 1987, for the purpose of seniority, however, he will be placed below the junior most-Direct Recruit IPS Officers of 1987 year of allotment.
6. Aggrieved thereby, the petitioner by his detailed representation dated 27th July, 1994 to the Government of India, pointed out that as per Indian Police Service (Appointment by Promotion) Regulations, 1955, especially Regulation 5, wherein there is an obligation that each committee shall ordinarily meet at intervals not exceeding one year and prepare select list. The petitioner pointed out that right from 1st January, 1988, he was eligible for being considered. Unfortunately, as the Committee did not meet in the year 1988 and 1989, and met only on 22-2-1990, the petitioner was deprived his seniority for no fault of his. It may be also recalled that the year of allotment of the petitioner is shown as 1987 even as per the abovementioned communication dated 26th May, 1994 from Government of India addressed to the petitioner.
7. The petitioner also has pointed out that the Indian Police Service (Regulation of Seniority) Rules came to be amended by a notification dated 27th July, 1988 and as per Rule 3(3), the said rules have been specifically made prospective in their application, hence the same will not apply in petitioner’s case.
8. Mr. Jahagirdar, the learned Senior Counsel for the petitioner emphasised that as far as the petitioner is concerned, he will be governed by the rules as they stood prior to 27th July, 1988, as the amendment has been expressly made to have prospective operation.
9. Mr. Jahagirdar, the learned Senior Counsel for the petitioner very strongly relied on two Supreme Court Judgments with regard to the necessity of preparation of the selected list on a year to year basis, which was construed to be mandatory and also the methodology followed in determining the year of allotment. The first one is Union of India and Ors. v. Vipinchandra Hiralal Shah, (1997) SCC (L and S) 41, wherein paragraphs 10 and 11 read as under :–
“10. In Syed Khalid Rizvi v. Union of India, , this Court was construing the provisions of Regulation 5 of the Indian Police Service (Appointment by Promotion) Regulations, 1955 which is in pari materia with clause (1) of Regulation 5 and contained the word ‘ordinarily’. It was observed; (SCC pp. 586-605, paras 9-34)
“…… since preparation of the select list is the foundation for promotion and its omission impinges upon the legitimate expectation of promotee officers for consideration of their claim for promotion as IPS officers, the preparation of the select list must be construed to be mandatory. The Committee should, therefore, meet every year and prepare the select list and be reviewed and revised from time to time as exigencies demand.
Unless the select list is made annually and reviewed and revised from time to time, the promotee officers would stand to lose their chances of consideration for promotion which would be a legitimate expectation. This Court in Mohan Lal Capoor case held that the Committee shall prepare every year the select list and the list must be submitted to the UPSC by the State Government for approval and thereafter appointment shall be made in accordance with the rules. We have, therefore, no hesitation to hold that preparation of the select list every year is mandatory. It would subserve the object of the Act and the rules and afford an equal opportunity to the promotee officers to reach higher echelons of the service.”
“11. It must, therefore, be held that in view of the provisions contained in Regulation 5, unless there is a good reason for not doing so, the Selection Committee is required to meet every year for the purpose of making the selection from amongst the State Civil Service officers who fulfil the conditions regarding eligibility on the first day of January of the year in which the Committee meets and fall within the zone of consideration as prescribed in Clause (2) of Regulation 5. The failure on the part of the Selection Committee to meet during a particular year would not dispense with the requirement of preparing the Select List for that year. If for any reason the Selection Committee is not able to meet during a particular year, the Committee when it meets next, should, while making the selection, prepare a separate list for each year keeping in view the number of vacancies in that year after considering the State Civil Service officers who were eligible and fell within the zone of consideration for selection in that year.”
The second judgment referred to is Devendra Narayan Singh and Ors. v. State of Bihar and Ors., reads as under:–
“6. Having given our anxious consideration to the relevant Provisions, Rules and Regulations for appointment and for determination of the year of allotment and the earlier directions of the Patna High Court as well as of this Court, we find sufficient force in the contentions of Mr. P. P. Rao, the learned senior counsel appearing for the appellants and we come to the conclusion that the Union Government has committed error in treating the appellants to have been included in the Select List only from the year 1986 which is the factual year of their inclusion in the list and thereby determining the year of allotment. We also come to the conclusion that the Tribunal committed error in ignoring the fact of the earlier direction of this Court and the legal fiction by which it must be held that the appellants were included in the Select List of the year 1983. It is not disputed that the Patna High Court as well as this Court had issued directions to consider the question of inclusion of appellants name in the Select List for the year 1983 and pursuant to such directions the State Government having re-considered the matter included the names of the appellants in the Select List. Though the list in question was made in the year 1985 pursuant to the direction of this Court and was approved by the Union Public Service Commission in 1986 but in the eye of law it must be deemed to be a list for the year 1983. When the appropriate authorities committed error in not preparing the Select List for the year 1983 and the appellants being aggrieved assailed the same and ultimately this Court directed to reconsider the matter, thereafter, the appropriate authority reconsidered the matter and included the appellants name in the Select List for the year, 1986, in the eye of law the said Select List can be held to be the Select List for the year 1983. Consequently the year of allotment of those who were included in the said list has to be determined on the basis that they were in the Select List of the year 1983 though factually the list was prepared in the year 1985 and was approved by the Union Public Service Commission in February, 1986. The Union Government, therefore, in our considered opinion committed serious error in determining the year of allotment of the appellants on the basis that they were in the Select List from the date of approval of the list by the Union Public Service Commission i.e. February, 1986. The impugned order of the Tribunal as well as the order of the Union Government determined the year of allotment of the appellants are hereby set aside and the Union Government is directed to re-determine the year of allotment of the appellants on the premise that they were included in the Select List of 1983. Further the appellants are entitled for consequential benefits and the same may be given to them, This may be done within three months from the date of receipt of this order. The appeal is accordingly allowed but in the circumstances without any order as to costs.”
10. As far as the alleged ground of delay in filing the proceedings before the Central Administrative Tribunal is concerned, Mr. Jahagirdar, relied on the judgment of the Supreme Court in N. Balakrishnan v. M. Krishnamurthy, read as under :–
“8. The appellant’s conduct does not on the whole warrant to castigate him as an irresponsible not very much far from what a litigant would broadly do. Of course, it may be said that he should have been more vigilant by visiting his advocate at short intervals to check up the progress of the litigation. But during these days when everybody is fully occupied with his own avocation of life an omission to adopt such extra vigilance need not be used as a ground to depict him as a litigant not aware of his responsibilities, and to visit him with drastic consequences.”
“9. It is axiomatic that condonation of delay is a matter of discretion of the Court. Section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within a certain limit. Length of delay is no matter, acceptability of the explanation is the only criterion. Sometimes delay of the shortest range may be uncondonable due to a want of acceptable explanation whereas in certain other cases, delay of a very long range can be condoned as the explanation thereof is satisfactory. Once the court accepts the explanation as sufficient, it is the result of positive exercise of discretion and normally the superior court should not disturb such finding, much less in revisional jurisdiction, unless the exercise of discretion was on wholly untenable grounds or arbitrary or perverse. But it is a different matter when the first court refuses to condone the delay. In such cases, the superior court would be free to consider the cause shown for the delay afresh and it is open to such superior court to come to its own finding even untrammelled by the conclusion of the lower court.”
“10. The reason for such a different stance is thus:
The primary function of a court is to adjudicate the dispute between the parties and to advance substantial justice. The time-limit fixed for approaching the court in different situations is not because on the expiry of such time a bad cause would transform into a good cause.”
“11. Rules of limitation are not meant to destroy the rights of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. The law of limitation fixes a lifespan for such legal remedy for the redress of the legal injury so suffered. Time is precious and wasted time would never revisit. During the efflux of time, newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the courts. So a lifespan must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. The law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae up sit finis litium (it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the rights of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time.”
“12. A court knows that refusal to condone delay would result in foreclosing a suitor from putting forth his cause. There is no presumption that delay in approaching the court is always deliberate. This Court has held that the words “sufficient cause” under Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice vide Shakuntala Devi Jain v. Kuntal Kumari, and State of W. B. v. Administrator, Howrah Municipality, .”
“13. It must be remembered that in every case of delay, there can be some lapse on the part of the litigant concerned. That alone is not enough to turn down his plea and to shut the door against him. If the explanation does not smack of mala fides or it is not put forth as part of a dilatory strategy, the court must show utmost consideration to the suitor. But when there is reasonable ground to think that the delay was occasioned by the party deliberately to gain time, then the court should lean against acceptance of the explanation. While condoning the delay, the court should not forget the opposite party altogether. It must be borne in mind that he is a loser and he too would have incurred quite large litigation expenses. It would be a salutary guideline that when courts condone the delay due to laches on the part of the applicant, the court shall compensate the opposite party for his loss.”
11. In the light of the above Supreme Court judgment, and especially for the detailed reasons set out in paragraphs 17 to 20 of the petition, we are clearly of the view that the Central Administrative Tribunal had clearly erred in not exercising its jurisdiction to condone the delay and clearly this is not a case of inaction, negligence or mala fides on the part of the petitioner. The approach in such condonation of delay ought to be justice oriented and not to have a hyper-technical approach. Hence we do not find any substance in rejection of the application on the ground of delay.
12. Both the learned Counsel for the respondents could not effectively repel the above submissions of the learned Counsel for the petitioner with regard to necessity of preparing select list on a year to year basis and regarding the year of allotment, especially in the light of the above two Supreme Court judgments. In fact, Mr. Belosey, the learned Asst. Government Pleader for the respondent no. 3 – State of Maharashtra could not give any legitimate reasons or excuse for not preparing such select list on a year to year basis excepting to say due to administrative reasons. Even the affidavit – reply does not give any genuine and acceptable explanation for not preparing such select lists on a year to year basis, excepting to make a bald statement as due to administrative reasons.
13. Under the aforesaid facts and circumstances, especially in the light of the above two Supreme Court Judgments in Union of India, and Ors. v. Vipinchandra Hiralal Shah, (1997) SCC (L and S) 41, and Devendra Narayan Singh and Ors. v. State of Bihar and Ors., , we set aside both the aforesaid orders of Central Administrative Tribunal and we hold that in the case of the petitioner, the year of allotment would be 1987 and he is eligible for being considered for promotion in the vacancies occurring in the year 1988. Our view that in the case of the petitioner, the year of allotment would be 1987 is reiterated by the Government of India’s communication to the petitioner dated 26th May, 1994. In the light of the above, the respondents shall determine the petitioner’s seniority treating his year of allotment as 1987 and that the petitioner was entitled to be promoted in the vacancies occurring in the year 1988 itself. Rule is accordingly made absolute with costs’.
14. After pronouncement of judgment, the learned Assistant Government Pleader prays for stay of the order. By our order we have only directed the respondents to determine the seniority. In view thereof, there is no question of granting any stay. Application for stay is therefore rejected.
15. Parties to act on an ordinary copy of this order duly authenticated by the Personal Secretary or the Associate.