A. S. Kaplash vs Union of India (UOI) and Another

P.D. Desai, C.J.—This judgment will be read along with the interim directions issued in the course of this proceeding on May 28, 1985 and July 30, 1985.

The Petitioner, who is a physically handicapped person suffering from lameness of one leg and who walks with the aid of a staff, is an employee in the Labour Bureau, Shimla, which is functioning under the control of the Ministry of Labour and Employment, Government of India. He was appointed as Lower Division Clerk in the Labour Bureau on and with effect from August 30, 1955. Certain temporary posts of Economic Investigator (Grade-II) borne on the joint cadre of the Ministry of Labour and Employment and the Labour Bureau were required to be filled in 1959. At the material time, there were no recruitment rules governing recruitment to the said post and the vacancies used to be filled in from amongst the Lower Division Clerks/Upper Division Clerks/Computers of the Ministry of Labour and Employment and Labour Bureau. The Departmental Promotion Committee, which was constituted to select candidates for appointment to the said temporary posts from amongst those categories of employees, held its meetings on August 27, 1958 and January 6, 1959. The minutes of the Departmental Promotion Committee, which are placed on the record of the case at Annexure R-I, show that the said Committee had laid down certain norms for the purposes of making the selection. Those norms were as follows: (1) Experience in socio-economic instructions, tabulation and report drafting, background of labour problems and labour legislation; (2) Physical fitness to undertake field instructions; and (3) Graduation with one of the prescribed subjects. The criterion for selection was seniority-cum-merit. The Departmental Promotion Committee considered five eligible candidates, including the Petitioner, from the category of temporary Lower Division Clerks and five persons from the category of quasi-permanent Lower Division Clerks and Upper Division Clerks. The Petitioner, although he appears to have been found to be otherwise eligible, was not considered suitable for appointment on the ground that he was unfit to undertake the work of field investigation in view of his physical infirmity. Two persons, one senior and one junior to the Petitioner, were recommended for appointment by the Departmental Promotion Committee from the category of temporary Lower Division Clerks. The persons selected were actually appointed on March 3, 1959, Annexure X-I.

On October 4, 1963, the Labour Bureau, Shimla (Investigator Grade-II) Recruitment Rules, 1963, were duly promulgated and notified in exercise of the power conferred by the proviso to Article 309 of the Constitution. According to those Rules, 15 per cent quota was reserved for Upper Division Clerks and Lower Division Clerks belonging to the Central Secretariat Clerical Service in the Ministry of Labour and Employment and its attached offices on deputation basis. After the enactment of those Rules, the Petitioner, along with Ors. , was once again considered for appointment to the post of Economic Investigator (Grade-II) by the Departmental Promotion Committee which met on June 13, 1967 and June 27, 1967. The said Committee recommended the name of the Petitioner for appointment to the post subject to his being considered physically fit by the Ministry of Labour and Employment. On a reference, the Ministry suggested that subject to the approval of the Director, Labour Bureau, who was the appointing authority, the Petitioner should be adjusted in the post of Economic Investigator (Grade-II) to which no touring duties were attached in the Headquarter Office. The competent authority thereafter appointed the Petitioner in the post of Economic Investigator (Grade-II) on deputation on and with effect from July J, 1967. On June 7, 1982, the Petitioner was promoted as Investigator, Grade-I.

The Petitioner was, meanwhile, making representations to different authorities against his non-appointment in one of the vacancies in the temporary posts which were filled in 1959. It appears that in pursuance of one of such representations made to the Ministry of Labour, Government of India, a reference was made by the Ministry to the Director, Labour Bureau, Shimla, on January 2, 1974. The reply sent by the Direc tor to the Ministry on February 27/28, 1974 is at Annexure- PH. The Director, in the course of the said communication, set out the history of the case and observed that had the condi tion of physical fitness in the case of the Petitioner been waived in 1959 in the same manner in which it was done in 1967, the Petitioner would have been appointed as Economic Investigator (Grade-II) along with his junior in 1959 and would have been promoted to the post of Investigator (Grade-I) earlier than his junior. The Director made the following recommendation in the ultimate paragraph of the said communication:

It is felt that Shri Kaplash''s case is fit to be reconsidered sympathetically on humanitarian grounds and absorption in the Joint Cadre of Investigators Grade-II. He has already submitted resignation from the C.S.Cs. which is pending with the Ministry. The Bureau is not aware of the exact rule or instructions under which this could be done at this belated stage. However, it appears that his case could possibly be covered under the provision of Article 26(2) of the Civil Service Regulation.

The Petitioner thereafter appears to have gone to Delhi and met certain high officers of the Ministry to represent his case in 1976. By a communication dated October 23, 1980, Annexure-3, the Petitioner was informed that his case was reconsidered but his request could not be accepted. The Petitioner thereafter made an Appeal/Memorial to the President of India on November 10, 1980, which was forwarded by the Secretary to the President to the Secretary, Ministry of Labour, Government of India, New Delhi, for appropriate action, on November 13, 1980, vide Annexure-C. On April 10, 1985, the Petitioner was informed, vide Annexurc-G, that his case was carefully examined but his request could not be considered under the Rules.

The Petitioner thereupon instituted the present petition seeking, inter alia, the following reliefs: (1) that he be promoted to the post of Economic Investigator (Grade-II), on and with effect from March 4, 1959 instead of July 1, 1967; (2) that his seniority be refixed in the joint cadre of Economic Investigators with effect from March 4, 1959; (3) that he be promoted to the post of Investigator.(Grade-I) with effect from August 3, 1968 instead of June 7, 1982, that is to say, the date from which his immediate junior in the cadre of Lower Division Clerk was promoted; and (4) that he be paid the arrears of pay and allowances etc. which would have accrued due to him had he been promoted to the post of. Economic Investigator (Grade-II) on March 4, 1959 and Investigator (Grade-I) on August 3, 1968.

The petition was listed for preliminary hearing on May 28, 1985, on which day notice pending admission was ordered to issue returnable on July 8, 1985. In the course of an interim order made on that day, the Court observed that justice required to be done to the Petitioner at the hands of the Administration and directed the Respondents to review the case of the Petitioner and to grant him such relief(s) as are admissible in accordance with law on or before the returnable date. In the course of the affidavit-in-reply dated June 28, 1985, filed by the Director, Labour Bureau, Shimla, on behalf of the Respondents, besides setting out the factual history of the case and opposing the petition on merits, the Respondents submitted that the case of the Petitioner was examined in depth in the past by the appointing authority as well as by the Union Government on the basis of his representations/appeals and that, under those circumstances, no relief was admissible to the Petitioner.

When the matter next reached hearing on July 30, 1985, the Court passed Anr. interim order after considering the material on record and hearing the learned Counsel for the parties. In the course of the said interim order, the Court recorded a finding that there was no rational basis for the decision of the Departmental Promotion Committee, which held its meetings on August 27, 1958 and January 6, 1959, not to consider the case of the Petitioner for promotion to the post of Economic Investigator (Grade-II) on the ground of his physical infirmity, especially when the physical disability of the Petitioner was found to be of no consequence, when he was later promoted to the post of Economic Investigator (Grade-II) on July 1, 1967. On the basis of the said finding, the Respondents were directed to constitute a Departmental Promotion Committee to examine afresh the case of the Petitioner for promotion to the post of Economic Investigator (Grade-II) in 1959, that is to say, when a person junior to the Petitioner was selected to fill in the said post. The Departmental Promotion Committee was directed to consider afresh the case of the Petitioner ignorin the consideration of his physical infirmity and bn the basis of his service record for the relevant period in accordance wit the then extant law/rules/regulations/instructions governing promotion to the said post.

Pursuant to the said interim order, a Departmental Promotion Committee was duly constituted and it held its meeting on September 21,1985. The minutes of the Departmental Promotion Committee are placed on the record of the case as Annexure ''A'' to the affidavit dated October 14, 1985, filed by the Joint Director/Head of Department, Labour Bureau, Shimla The relevant portion of the minutes of the Departmental Promotion Committee is extracted herein below:

The committee took note of the fact that the Hon''bk High Court of H. P. had directed that while examining the case afresh the D.P.C. is not to take into considera-tion the fact of physical infirmity of Shri Kaplash viz. his lameness, but he is to be considered on the basis of service record for the relevant period. Conse-quently the D.P.C. after carefully examining the Confidential Reports for the period upto 1958 considers that Shri Kaplash was not fit to be appointed as Investigator Grade-H in 1959.

The Petitioner in his rejoinder dated October 18, 1985, has inter alia, stated that to the best of his knowledge there was no adverse entry in his Annual Confidential Reports for the period upto 1958 and that, in any case, no adverse entry for the relevant period was ever communicated to him. Besides, on the basis of his service record for the period upto 1958, he was confirmed/declared permanent with effect from August 29, 1959 vide order dated July 1, 1961. The Petitioner prayed that his service record for the relevant period may be called for to ascertain whether the Departmental Promotion Commit tee could have reasonably arrived at the conclusion that he was not fit to be appointed to the post in question which was a non- selection post and to which he would have been appointed in 1959 but for the factor relating to his physical infirmity.

Having regard to all the circumstances of the case, the Respondents were directed to produce the Annual Confiden tial Reports of the Petitioner for the relevant period, that is, the period ending December 31, 1955 to December 31, 1958.

Pursuant to the aforesaid directions, the Annual Confidential Reports for the relevant period have been produced for the perusal of the Court.

We have carefully examined these Annual Confidential Reports and we are of the considered opinion that on the basis of the said service record it was impossible for the Departmental Promotion Committee to arrive at the conclusion that the Petitioner was not fit to be promoted to the post of Economic Investigator (Grade-II) in 1959. On an integrated view of the Annual Confidential Reports for the relevant period, it transpires that nothing therein contained could be regarded as rendering the Petitioner unfit for appointment to a post which was required to be filled in on the basis of the criterion of seniority-cum-merit as prescribed by the Departmental Promotion Committee which had originally considered his case in 1959. In para 1 of the affidavit dated June 28,1985, filed by the Director, Labour Bureau, Shimla, certain remarks in his Annual Confidential Reports which, according to the Departmental authorities, cannot be regarded as favourable to the Petitioner, have been extracted. Upon verification, those remarks are found to have been duly entered in the Annual Confidential Reports. The relevant remarks are : (1) ".... but a little better understanding will improve his performance" (1956), (2)".... however, hard work and more interest in work will improve his performance" (1957) and (3) ".... but a little improvement is required" (1958). These remarks entered in the Annual Confidential Reports of the Petitioner for the relevant periods have to be viewed in juxtaposition with the entries in the other columns which speak well about the work and performance of the Petitioner. Upon an objective view of the entire service record for the relevant period and upon an unbiased assessment of his performance based on an overall view of such record, the Petitioner could not possibly have been regarded as unfit for appointment to a post which was to be filled in on the basis of seniority-cum-merit. This is apart from the fact that, according to the Petitioner, the above-quoted remarks were never conveyed to him and that the Departmental Promotion Committee, which was convened in 1959, had not found the Petitioner unfit on the basis of his service record. In our opinion, therefore, the Petitioner could not possibly have been denied the benefit of appointment to the post of Economic Investigator (Grade-II) in 1959, when his immediate junior was promoted. Under the circumstances, the decision recorded by the Departmental Promotion Committee at its meeting held on September 21, 1985, is quashed and set aside. In the view which we are taking as aforesaid and in view of the fact that the Petitioner has suffered injustice for over a quarter of a century and having regard to the fact that the Departmental authorities have failed to do justice to him although opportunity was twice afforded to them during the pendency of the petition, we do not think it just and proper to direct that a new Departmental Promotion Committee be constituted to consider afresh the case of the Petitioner. Against the background aforesaid, the Petitioner must be held to have been illegally denied promotion to the post of Economic Investigator (Grade-II) on and with effect from March 3, 1959, that is to say, the date on and from which his immediate junior was promoted to the said post.

The question which must be next considered is as to the relief which is required to be granted to the Petitioner on the facts and in the circumstances of the case. The most important and material aspect required to be borne in mind in this connection is that the petition suffers from the vice of delay and laches. The cause of action is shown to have arisen as far back as 1959 and the Petitioner ought to have approached the Court within a reasonable time thereafter. True it is that the Petitioner was prosecuting departmental remedies and submitting representations/appeal/Memorial to different authorities and that the last communication which was received by the Petitioner in connection with those representations/appeal/ Memorial was issued as late as on April 10, 1985. It cannot be overlooked at the same time, however, that the material on record does not disclose that even in prosecuting the departmental remedies the Petitioner had manifested due despatch. Besides, if the Petitioner is granted the relief of deemed promotion from 1959, promotions and reversions might have to be effected and rights acquired by third parties may thereby be affected after a considerable lapse of time. The Petitioner himself has since earned promotion as Economic Investigator (Grade-II) since July 1, 1967, and as Investigator (Grade-I) since June 7, 1982, and so as his immediate junior in the cadre of Lower Division Clerk who was promoted to those posts on March 3, 1959 and August 3, 1968, respectively. Under the circumstances, although the Court does not propose to rigorously apply the rule relating to the denial of relief on the ground of delay and laches in the present case in view of the fact that the Petitioner has suffered injustice on account of a factor, namely, his physical infirmity, which circumstance ought really to have been considered by the departmental authorities as requiring a sympathetic consideration of his case, the Court is not inclined to disturb the existing situtation by granting to the Petitioner the relief of actual promotion way back from 1959. In the opinion of the Court, this is a case in which the ends of justice would be met by the grant of monetary compensation, to the Petitioner for the denial of promotion to him at the relevant time.

The Petitioner, as found earlier, was illegally denied promotion as Economic Investigator (Grade-II) on and with effect from March 3, 1959. However, he was subsequently promoted on and with effect from July 1, 1967. The learned Standing Counsel for the Central Government has placed on record a statement giving particulars of the difference in salary and allowances which would have been admissible to the Petitioner in the promotional post of Economic Investigator (Grade-II) had he been promoted on March 3, 1959, instead of July 1, 1967 and the salary and allowances actually drawn by him during the said period in the post actually held by him. The difference worked out accordingly is Rs. 13431.93. In our opinion, it would meet the ends of justice if the Petitioner is awarded a lump sum compensation in the sum of Rs. 8000/- in lieu of the difference of back wages for the period from March 3, 1959 to June 30, 1967. The lump sum compensation payable accordingly is to be spread over yearwise for the entire period of approximately eight years between 1959 and 1967. Accordingly, the payment would be deemed to have been made at the rate of Rs. 1,000/- per year. The Respondents will bear this direction in mind and will give to the Petitioner the benefit of Section 89 of the Income Tax Act, 1961 and Rule 21-A of the Income Tax Rules, 1962, so far as the relief of spread over is concerned, and the deduction at source on account of Income Tax, if any, will be worked out on the said basis. In case any deduction is to be made towards the income tax while making the payment, the Respondents shall take all necessary steps to obtain relief for the Petitioner u/s 89 of the Income Tax Act, 1961 read with Rule 21-A of the Income Tax Rules, 1962. In addition, the pay of the Petitioner shall be fixed on the date of his promotion, that is, on July 1, 1967, in the pay scale of the post of Economic Investigator (Grade-II) at the stage at which it would have been admissible to him had he been promoted to the said post on March 3, 1959. Upon such re-fixation, the Petitioner�s future pay and allowances shall also be re-adjusted accordingly upto date and he shall be given all the consequential monetary benefits on the said basis. The monetary benefits becoming payable accordingly shall also be spread over yearwise for the entire period from July 1, 1967 till the date of payment and the directions hereinabove given as to the grant of relief u/s 89 of the Income Tax Act, 1961 and Rule 21-A of the Income Tax Rules, 1962 shall also be applicable in respect of such payment.

The monetary benefits becoming due and payable to the Petitioner under these orders shall be worked out and shall be actually paid to the Petitioner within a period of six weeks from today.

It is clarified that the Petitioner is not granted any other relief and that his date of promotion to the post of Economic Investigator (Grade-II) shall, for all other purposes, continue to be July 1, 1967.

In granting to the Petitioner relief in the aforesaid terms, the Court has been guided by the decision of the Supreme Court in Y. Ramanjaneyulu Vs. State of A.P. and Others,

Rule made absolute accordingly with no order as to costs.