JUDGMENT
D.C. Verma, Member (J)
1. All the three O. As involve common question of facts and law, hence they have been heard together and are being decided by a common order.
2. The facts are that for the post of Typist cum Clerk in the Geological Survey of India (in short G.S.I.) an advertisement was issued. The applicant O.N. Katiyar submitted application. With his application, the applicant filed certificate issued by the District Magistrate Bareilly to the effect that the applicant was ‘Tamoli’ by caste and belongs to backward class (Scheduled Caste). The applicant was given offer of appointment dated 21.3.61 and was finally appointed vide order dated 20th April, 61. The applicant O.N. Katiyar was confirmed as L.D.C. on 15.9.64 and was promoted as U.D.C. on 25.11.64, promoted as Assistant on 1.1.76, confirmed as Assistant in October, 79 and was finally promoted as Superintendent in March, 85. The applicant was allowed to cross E.B. w.e.f. 1.3.86. Subsequently vide Memo dated 24th May, 89 the applicant was served with a charge sheet under Rule 14 of C.C.S. (C.C.A.) Rules, 1965 (in short Rules of 1965) (Annexure A-10 to the O.A. No. 415/98) on the alleged misconduct that the applicant O.N. Katiyar submitted a caste certificate dated 8.8.1960 issued by Shri N.S. Sirohi, District Magistrate Bareilly in support of his claim to be a member of backward class (S.T.) and managed his appointment to the post of Typist/Clerk against reserved post for S.T. community. It was alleged that the applicant suppressed the material fact that he does not belong to the S.T. community and as such he took benefit of promotion as U.D.C., Assistant and Superintendent against the post reserved for S.T. After reply to the Memo was received enquiry was made. The enquiry officer submitted his report dated 11.8.92 (Copy Annexure A-12 to O.A. 415/98) held that “charge brought out in Article I against the official Shri O.N. Katiyar that he did not maintain absolute integrity and acted in a manner unbecoming of a Government servant has not been proved from the facts produced before the committee.” The disciplinary authority passed an order on 18.6.93 (Annexure – 13 to O.A. No. 415/98) impugned in the case and passed the following order :
“Now, therefore, the undersigned being the appointing authority and disciplinary authority orders that Shri O.N. Katiyar Superintendent N.R. G.S.I. Lucknow will be treated as not belonging to Scheduled Tribe community w.e.f. 1.11.1989 and impose the penalty of censure upon him under sub Clause 1 of Rule 11 of C.C.S. (C.C.A.) Rules, 1965.”
Subsequently, the revisional authority vide order dated 7th Octobtr, 97 concluded that “the certificate produced by Shri O.N. Katiyar at the time of his appointment was false and misleading and therefore, penalty imposed upon him was not on false and fake grounds.” The revisional authority further concluded that the penalty of censure imposed by the disciplinary authority be enhanced. Finally, the revisional authority set aside the penalty of censure and enhanced the penalty to ‘compulsory retirement from service w.e.f. the date of receipt of order by Shri O.N. Katiyar.’ O.N. Katiyar challenged the order of the disciplinary authority dated 18.6.93 (Annexure-13) and order of revisional authority dated 7.10.97 (Annexure – 16) by filing O.A. No. 415/98.
3. After order dated 7th October, 97 (Annexure 16) impugned in O.A. 415/98
compulsorily retiring the applicant from service was passed, the respondents, vide order dated 9th February, 98 reverted the applicant O.N. Katiyar to the post of Assistant w.e.f. 1.3.1985. The reversion order dated 9th Feb. 98 was challenged by applicant O.N. Katiyar by filing O.A. No. 37/99.
4. S.P. Gautam a general category candidate filed O.A. No. 239/96 for direction and quashing of the order dated 18.6.93 to the extent the order provides: “Shri O.N. Katiyar Superintendent N.R. G.S.I. Lucknow will be treated as not belonging to Scheduled Tribe community w.e.f. 1.11.1989.” The main ground on behalf of S.P. Gautam is that O.N. Katiyar who was a general category candidate got appointment as a S.T. candidate and was promoted to various posts on the basis of reservation quota which hindered the pace of promotion of the applicant. In O.A. 239/96 O.N. Katiyar has been impleaded as respondent No. 5.
O.A. No. 239/96
5. This being the earliest case, has been considered first and Counsel for parties have been heard at length. The submission of the learned Counsel for the applicant is that the applicant was initially appointed as Steno on 20.4.62. The post of Steno is equivalent to the post of U.D.C. The respondent No. 5 O.N. Katiyar was initially appointed as L.D.C. on 3.4.61 but was promoted as U.D.C. on 25.11.64. The applicant S.P. Gautam was promoted as Assistant on 30.5.74 whereas respondent No. 5 (O.N. Katiyar) was promoted as Assistant on 1.1.76. On the post of Superintendent applicant S.P. Gautam was promoted on 30.12.86 but respondent No. 5 O.N. Katiyar was promoted as Superintendent on 1.3.85. The date of promotions are not in dispute. The submission of the learned Counsel for the applicant S.P. Gautam is that respondent No. 5 O.N. Katiyar was junior to applicant S.P. Gautam but was promoted on the post of Superintendent earlier because O.N. Katiyar was being taken as a S.T. candidate. The submission is that in case O.N. Katiyar had not misrepresented about his caste, O.N. Katiyar could not have been promoted earlier to S.P. Gautam and thus, the promotion of O.N. Katiyar to the post of Superintendent earlier in time has caused grievance to S.P. Gautam. With this view in mind it has been prayed that the order of punishment awarded vide order dated 18.6.93 impugned in the O.A. No. 239/ 96 which provides that O.N. Katiyar “be treated as not belonging to S.T. community w.e.f 1.11.89” be quashed. The submission is that O.N. Katiyar be treated as a general candidate from the date of initial appointment and not w.e.f. 1.11.1989 as per the impugned order dated 18.6.93.
6. Learned Counsel for the respondents, has on the other hand submitted that S.P. Gautam has no locus standi to file the present O.A. and to challenge the punishment order dated 18.6.93 passed against the respondent No. 5 O.N. Katiyar. Further submission is that O.A. No. 239/96 filed in May, 96 to challenge the order dated 18.6.93 is highly barred by limitation. Further submission is that as per para 3 of the petition, the applicant has claimed the O.A. within limitation period prescribed under Section 21 of the A.T. Act, 1985 and no application for condonation of delay has been moved. The submission on behalf of the respondents is that the O.A. 239/96 is therefore, not maintainable and be dismissed on the aforesaid grounds.
7. As per Section 19 of the Administrative Tribunals Act, 1985 (in short the Act of 1985) “a person aggrieved may make an application to the Tribunal for redressal of his grievance”. The question, therefore, which arises is whether the applicant S.P. Gautam can Be “a person aggrieved” to challenge the punishment order passed against respondent No.
5.
8. The submission of the learned Counsel for the applicant S.P. Gautam has been considered. Admittedly, the applicant S.P. Gautam was promoted as Assistant in May, 1974 whereas respondent No. 5 O.N. Katiyar was promoted as Assistant subsequently on 1.1.76. Thus, till promotion upto the post of Assistant there was no dispute of seniority between S.P. Gautam and O.N. Katiyar. O.N. Katiyar was promoted as Superintendent on 1.3.85 against a post reserved for S.T. candidate as till then O.N. Katiyar was being treated by the department as a S.T. employee. The applicant S.P. Gautam was promoted Superintendent on 30.12.86 against a post of general category. Even if the plea of the learned Counsel for S.P. Gautam be accepted that the respondent No. 5 got accelerated promotion to the post of Superintendent earlier, that would not affect the promotion of S.P. Gautam. The post of Superintendent against which O.N. Katiyar was promoted was admittedly reserved for S.T. candidate. S.P. Gautam being a general category candidate could not have been promoted to the post. In view of this, though O.N. Katiyar got accelerated promotion, that has not affected or hindered the pace of promotion of S.P. Gautam. Consequently, the applicant S.P. Gautam cannot be an aggrieved person on that account.
9. The order impugned vide O.M. dated 18.6.93 was a punishment order against O.N. Katiyar. Thus, O.N. Katiyar was the person aggrieved by the said order. By any stretch of imagination, the applicant S.P. Gautam cannot be treated as person aggrieved by the punishment order passed against O.N. Katiyar. In this view of the matter also, applicant S.P. Gautam is not an aggrieved person to challenge the order dated 18.6.92.
10. The order dated 18.6.93 has been challenged by S.P. Gautam by filing this O.A. 239/96 in May, 96. Thus, on the face of it, it is beyond the period of limitation prescribed under Section 21 of the AT. Act and is time barred.
11. In view of the above, the O.A. 239/96/ is time barred and also has no merit and is to be dismissed.
O.A. 415/98
O.N. Katiyar is the applicant of this O.A. and has challenged the order dated 18.6.93 (Annexure 13) and the order dated 7th October, 97 (Annexure 16 to the O.A.). While considering the facts of O.A. 239/96 where the order dated 18.6.93 has been held barred by limitation, on the same ground order dated 18.6.93 cannot be challenged in the present O.A. In this O.A. (415/98) also it has been claimed by O.N. Katiyar that the application is within the limitation prescribed under Section 21 of the A.T. Act. No application for condonation of delay has been filed in this case also. No appeal against the punishment order dated 18.6.93 was filed by O.N. Katiyar. Thus, the order dated 18.6.93 became final. Thus, such an order cannot be challenged after more than 1 year. The relief in the O.A. so far it is against the impugned order dated 18.6.93 is barred by limitation under Section 21 of the A.T. Act.
12. After the punishment order dated 18.6.93 became final, the Director General G.S.I, under the powers vested in him as the revisional authority under Rule 29(iv) of C.C.S. (C.C.A.) Rules, 1965 (in short Rules of 1965) on the basis of a representation, suo motu called for records of enquiry and passed the order dated 7th October, 97 by which the penalty of ‘censure’ imposed upon O.N. Katiyar vide order dated 18.6.93 (Annexure 13) was enhanced and the penalty of ‘compulsory retirement from service’ w.e.f. the date of receipt of the order was passed. The submission of the learned Counsel for O.N. Katiyar is that after the order dated 18.6.93 became final, the Director General had no authority to revise the punishment order after more than 4 years and to pass the order dated 7th October,
97. Further submission is that the order dated 18.6.93 (Annexure -13) was passed by Dy. Director General as disciplinary authority and the Director General G.S.I. was the appellate authority. Under Rule 14(v) of Rules, 1965 the appellate authority can revise the order within a period of six months only. Therefore, it is submitted the order dated 7th October, 96, passed after more than 4 years, by Director General who was the appellate authority also, is not valid.
13. The learned Counsel for the respondents submitted that Director General, G.S.I. has a dual authority. He is an appellate authority and also Head of Department under Rule 29(1)(iv) of Rules of 1965. Further submission is that Rule 29 of Rules of 1965 provides revision by Head of Department “at any time either on his or at his own motion or otherwise…..” It has been thus, submitted that no time limit is prescribed for Head of Department to revise the order.
14. Part III of Rules of 1965 deals with revision and review. Rule 29 provides for revision. The relevant portion or which is as below:
“29. Revision
(1) Notwithstanding anything contained in these rules-
(i) …….
(ii) …….
(iii) …….
(iv) The Head of a Department directly under the Central Government, in the case of a Government servant in a department or office (not being the Secretariat or the Post and Telegraphs Board), under the control of such Head of a Department; or (v) the appellate authority, within six months of the date of the order proposed to be revised- or (vi) any other authority specified in this behalf by the President by a general or special order and within such time as may be prescribed in such general or special order. may at any time either on his or its own motion or otherwise call for the records of any enquiry and revise any order .... provided..... provided further that no power of revision shall be exercised by the Comptroller and Auditor General, Member (Personnel), Postal Service Board Adviser (Human resources Department), Department of Telecommunications or the Head of Department as the case may be, unless (i) the authority which made the order in appeal or (ii) the authority to which an appeal would lie, where no appeal has been preferred, is subordinate to him. 2. No proceeding for revision shall be commenced until after- (i) the expiry of the period of limitation for appeal, or (ii) the disposal of the appeal, where any such appeal has been preferred. (3) An application for revision shall be dealt with in the same manner as if it were an appeal under these rules." (emphasis made by us)
15. A reading of the provisions, relevant portion of which has been reproduced above, shows that the appellate authority can revise the order within a period of six months from the date of the order proposed to be revised. However, for Head of Department no time limit is prescribed under Rule 29(i)(iv). The word ‘may at any time’ given below various authorities who can revise the order shows that for Head of Department no time limit is provided. The submission of the learned Counsel for the respondents is that as no time limit is provided for Head of Department, the order of revision impugned in the present case (Annexure-16) dated 7.10.97 would be within time though passed more than 4 years after the order of punishment. The learned Counsel for O.N. Katiyar, however, on the other hand submitted that ‘may at any time’ cannot provide unlimited period. Only a reasonable time would be permissible. Further submission is that under Rule 29(i)(v) the period provided for appellate authority is six months and as in the present case, the appellate authority and the Head of Department is the same person, the six months period provided for appellate authority would be applicable in the case of Head of Department also.
16. After Counsel for parties have been heard on the point, we are of the view that the submission of the learned Counsel for the respondents that the word “may at any time” can be stretched to unlimited period even upto 41/2 years, cannot be accepted. The word ‘may at any time’ can be stretched only upto a reasonable time. If the appellate authority under Rule 29(i)(v) has been given six months period on the same anology, the period of six months may be applicable under Rule 29(i) (v). In any case, the power exercised after more than 4 years in the present case, is not within a reasonable time and so the order dated 7.10.97 has to be quashed. A reading of Rule 29 further shows that as per proviso to Rule 29(i) no power of revision shall be exercised by the Head of Department unless the authority to which the appeal would lie where no appeal has been preferred is subordinate to him. This shows that power of revision can be exercised by Head of Department only if the appellate authority is subordinate to Head of Department. In the present case, as has been mentioned in the preceding paragraphs, the Director General, G.S.I, is the appellate authority and also the Head of Department. Thus, in the present case the appellate authority is not subordinate to Head of Department. Consequently, in view of second proviso to Rule 29(i) the power of revision could not have been exercised by Director General, G.S.I. In view of this the impugned order dated 7.10.97 (Annexure 16 to the O.A.) is invalid and has to be quashed.
17. The learned Counsel for the respondents submitted that in the present case O.N. Katiyar knowingly concealed the fact that he was not notified S.T. for purposes of public service, Still, the applicant used the certificate issued by the District Magistrate Bareilly, for purposes of public services. In our view, the argument raised on behalf of the respondents are not required to be considered after the applicant O.N. Katiyar was charge sheeted and punished for the said misconduct vide order dated 18.6.93. In view of the discussions made above, the validity of the order dated 18.6.93 cannot be examined at this belated stage.
O.A. 37/99
18. In this O.A., the applicant O.N. Katiyar has challenged Annexure 6 dated 9th February, 98 by which the applicant has been reverted from the post of Superintendent to the post of assistant w.e.f. 1.3.85, the date on which O.N. Katiyar had been promoted to the post Of Superintendent. The submission is that from his own action the respondents
compulsorily retired the applicant by order dated 7.10.97, therefore, the order of reversion passed after retirement is not valid. Further ground is that the order impugned in this O.A. dated 9.2.98 was passed in pursuance of the Dy. Director General letter dated 2.5.97 referred to in the impugned order. The letter dated 2.5.97 referred to in Annexure 6 is Annexure 5 to the O.A. Annexure 5 dated 2.5.97 is on the subject of re-fixation of seniority in respect of O.N. Katiyar, Superintendent. It was with reference to promotion of O.N. Katiyar to the post of Administrative Officer. Annexure 5 shows that the Director General ordered that the promotion of O.N. Katiyar be kept in abeyance till his seniority position is examined and therefore, directed that the seniority position be examined and comments be sent with full facts to enable the Director Genera! who is the appellate authority to finalise the case. It appear, that after 2.5.97, (Annexure 5) order, the Director General revised the punishment order dated 18.6.93 and passed the order of compulsory retirement of O.N. Katiyar on 7.10.97. After the order of compulsory retirement was passed, the order impugned in the present case dated 9.2.98 was passed to revert the applicant to the post of Assistant and by the other impugned order Annexure-8 dated 25.5.98, an order was passed to release the gratuity less an amount purported overdrawn pay and allowances w.e.f. 1.3.95. The main ground of challenge is that no opportunity of hearing was given before the order Annexure-6 and Annexure 8 were passed. There is nothing on record to show that any show cause was given or any reasonable opportunity of being heard was provided before the impugned orders dated 9.2.98 and the order dated 25.5.98 was passed against the applicant. Both these orders are therefore, against the principles of natural justice and are to be quashed. It may further be noticed that as per their own record the respondents had compulsorily retired the applicant vide order dated 7.10.97. Consequently, the department could not have passed an order of recovery from the gratuity amount except after following the procedure laid down under the C.C.S. Pension Rules, 1972. The department had no power to pass order of recovery from gratuity as has been done vide Annexure-8 dated 25.5.98. No doubt, in the preceding paragraph, this Bench has quashed the order of compulsory retirement dated 7th of October, 97, Still the two orders impugned in the present O.A. Annexure-6 and Annexure-8 cannot stand as they were not passed after giving show cause. In view thereof, the O.A. No. 37/99 is to be allowed and both the orders Annexure A-6 and A-8 are to be quashed.
19. In view of the discussion made above, the punishment order dated 18.6.93 (Annexure-13 of O.A. 415/98) is not disturbed and Annexure 16 dated 7.10.97 to retire the applicant compulsorily is quashed, hence the applicant shall be deemed to have continued in service even after 7th of October, 97 till the date of superannuation with all consequential benefits, which may acrue to him in the light of the order Annexure-13 dated 18.6.93. Further, as the orders dated 9th February, 98, (Annexure-6) and order dated 25th May, 98 (Annexure 8 of O.A. 37/99) have been found invalid, any recovery made in pursuance of the said orders shall be paid back to the applicant within a period of three months from the date of this order.
20. In the light of the directions given in para 19 above, the O.A. 239/96 is dismissed. O.A. 415/98 is partly allowed, while the O.A. is dismissed so far it is for quashing of the order dated 18.6.93 Annexure 13 to the O.A., but is allowed so far it is in respect of Annexure 16 dated 7.10.97. The O.A. 37/99 is allowed and both the orders impugned in the O.A. Annexure-6 dated 9.2.98 and Annexure-8 dated 25.5.98 are quashed. The directions given in para 19 above shall be complied by the respondents within a period of
three months from the date of communication of this order.
No costs.