Dr. Skand Sinha & Anr. vs Union Of India & Ors.

Hon’ble Mr. Rajinder Kashyap, Member (A):

By filing the accompanying OA under Section 19 of the Administrative Tribunals Act, 1985, the applicant is seeking the following reliefs:

Since the applicants are challenging the aforesaid order dated 31.10.2023 by filing the accompanying OA vide which the respondent No.4, namely, Dr. Deepak Joshi had been appointed as Director, Sports Injury Centre, VMMCA, Safdarjung Hospital, New Delhi, they have also filed the present Misc. Application seeking condonation of delay in filing the accompanying OA.

During the course of hearing, Shri R.V. Sinha, learned counsel appearing for the applicants, submitted that the applicants have filed the accompanying Original Application challenging the order dated 31.10.2023, whereby respondent No.4, namely, Dr. Deepak Joshi, was appointed as Director, Sports Injury Centre, VMMC & Safdarjung Hospital, New Delhi. He submitted that the appointment of respondent No.4 is ex facie illegal, nullity and void ab initio, for the reasons elaborately set out in the accompanying Original Application. According to learned counsel, the applicants were arbitrarily deprived of their right to be considered for appointment/promotion to the post of Director, Sports Injury Centre, and such action on the part of respondent Nos.1 and 2 is violative of Articles 14 and 16 of the Constitution of India.

Pursuant to notice issued by this Tribunal, respondents have filed their replies to which the applicant has also filed rejoinder.

Shri Satish Kumar, learned counsel appearing for respondent nos. 1 to 3, referring to the reply/counter affidavit filed on their behalf, submitted that the Sports Injury Centre, earlier known as the Arthroscopy Surgery Centre, was established pursuant to the communication dated 22.02.2008 issued by the Ministry of Health and Family Welfare (MoHFW), keeping in view the forthcoming Commonwealth Games, 2010, and became functional in September, 2010.

Shri Kanan Dang, learned counsel appearing on behalf of private respondent No. 4, referring to the contents of the reply filed to the present Miscellaneous Application, submitted that the applicants have sought condonation of an inordinate delay of 522 days in filing the accompanying OA. He submitted that Applicant No.1 was transferred to the Sports Injury Centre in the year 2018, whereas Applicant No. 2 was transferred to the Sports Injury Centre in the year 2020, and both have been continuously working therein since their respective transfers.

In rebuttal, Shri Sinha, learned counsel appearing for the applicants while reiterating the submissions also submitted that even otherwise, it is a case of continuing wrong of the illegalities committed by the official respondents by not following the rule of law in form of policy or due selection process based on pre-existing rule or policy of the Government and respondent No.4 continues to occupy the post of Director based on illegal appointment and the applicants are being deprived their fundamental right of consideration in a fair and lawful manner. The respondent Nos.1 to 3 cannot be allowed to take the benefit of their own wrong and challenge the application on technical grounds like limitation. They are expected to conduct the process of selection and appointment in a legal manner, which is in consonance to being a model employer and need to take corrective action as per law once the illegalities are brought to their notice. The respondent No.4 also neither can claim any equity nor right based on right including legitimate expectation based on the illegalities committed by the respondent Nos.1 to 3.

We have heard learned counsel for the parties and perused the pleadings as well as the judgments on which reliance is placed by the learned counsel for the parties.

The short question which arises for our consideration in the present Miscellaneous Application is whether the applicants have made out sufficient cause for condonation of the delay of 522 days in filing the accompanying Original Application challenging the appointment of respondent No.4 as Director, Sports Injury Centre, VMMC & Safdarjung Hospital, New Delhi. The applicants seek to explain the delay principally on the grounds that the impugned order dated 31.10.2023 was not effectively communicated to them; that they were under a bona fide belief, on the basis of legal advice, that the senior-most Dr. Hitesh Lal alone had the cause of action to challenge the appointment; that they subsequently came to understand that, being eligible officers having a right of consideration, they had an independent grievance; and that, after acquiring such legal advice, they submitted a representation dated 12.02.2026 and, upon receiving no effective redressal, approached this Tribunal.

On the other hand, learned counsel appearing for respondent Nos.1 to 3 and respondent No.4 have opposed the instant Misc. Application primarily on the ground that the cause of action accrued on 31.10.2023 itself. According to them, the applicants were working in the Sports Injury Centre and, after the appointment of respondent No.4, continued to work under him and comply with his administrative directions. It is, therefore, contended that the applicants could not have remained unaware of the appointment and that the explanation furnished for the delay is neither satisfactory nor sufficient. Learned counsel for respondent No.4 has further relied upon H. Guruswamy & Ors. v. A. Krishnaiah (since deceased) by LRs., State of Madhya Pradesh v. Ramkumar Chowdhary (supra) and Basawaraj v. Special Land Acquisition Officer (supra) to submit that negligence, want of bona fides and prolonged inaction cannot be condoned merely by invoking the concept of substantial justice.

There can be no dispute with the proposition advanced by the respondents that limitation is not a mere technicality and that an applicant seeking condonation must establish sufficient cause. In H. Guruswamy & Ors. v. A. Krishnaiah (supra), the Hon’ble Supreme Court reiterated that the length of delay is relevant, that the Court must first examine the bona fides of the explanation furnished for the delay, and that the Court should not commence its consideration with the merits of the substantive dispute. The said decision, however, has to be understood in the factual setting in which it was rendered, where the delay of about 2200 days occurred in a long-pending litigation and the conduct of the concerned parties disclosed repeated inaction and lack of diligence. Thus, the principle emerging from H. Guruswamy (supra) is, therefore, not that every delay of a substantial duration must necessarily be rejected, but that the explanation furnished must be examined first and the Court must satisfy itself regarding its bona fides and sufficiency. The said judgment itself recognises that the rules of limitation are intended to ensure that parties pursue their remedies with reasonable promptitude; it does not dispense with the judicial discretion vested in the Court to consider whether, on the particular facts, sufficient cause has been shown.

The same principle is discernible from Esha Bhattacharjee v. Managing Committee of Raghunathpur Nafar Academy, reported in (2013) 12 SCC 649 wherein the Hon’ble Supreme Court held that the expression “sufficient cause” has to be understood in its proper spirit and that a liberal, pragmatic and justice-oriented approach may be adopted where the delay is not attributable to deliberate inaction, gross negligence or lack of bona fides. At the same time, the Hon'ble Supreme Court cautioned that a liberal approach cannot become an excuse for condoning unexplained or mala fide delay. Thus, the ultimate test remains whether the explanation furnished, viewed in the factual setting of the case, constitutes sufficient cause.

Likewise, in Ram Nath Sao alias Ram Nath Sahu v. Gobardhan Sao, reported in (2002) 3 SCC 195, the Hon’ble Supreme Court held that “sufficient cause” should receive a liberal construction so as to advance substantial justice, particularly where negligence, inaction or want of bona fides cannot be imputed to the party. At the same time, the Hon'ble Supreme Court emphasised that the valuable right which may accrue to the opposite party by reason of expiry of limitation cannot be lightly defeated. The Hon'ble Supreme Court thus required a balance to be maintained between the prejudice resulting from condonation and the prejudice resulting from refusal to condone the delay.

Tested on the aforesaid principles, we find that the explanation furnished by the applicants cannot be characterised, at this stage, as concocted, fanciful or wholly devoid of bona fides. The applicants have specifically pleaded that they were not effectively informed of the impugned appointment and that they were initially advised that the senior-most eligible officer alone had a cause of action. They have further explained that they subsequently obtained legal advice to the effect that their own right of consideration could independently be questioned and, thereafter, they submitted a representation dated 12.02.2026 before approaching this Tribunal. These circumstances, taken cumulatively, provide a plausible explanation for the delay.

We are conscious of the submission of respondent No.4 that the applicants were working under him from the date of his appointment and, therefore, must necessarily have been aware of his appointment. The said circumstance undoubtedly has some bearing upon the question of diligence. However, mere knowledge of the factum of appointment cannot, by itself, conclusively establish that the applicants were aware of the legal grounds on which they could independently challenge the selection process or that their failure to institute proceedings earlier was deliberate or mala fide. The distinction between knowledge of an appointment and knowledge of a legally enforceable grievance arising from the manner in which the appointment was made cannot be completely ignored while considering an application for condonation of delay.

Equally, the plea of the applicants that they were initially advised that another senior officer alone had a cause of action cannot be rejected merely because, with the benefit of hindsight, a different legal view may now appear preferable. The applicants have asserted that they acted upon legal advice and thereafter, upon obtaining further advice, took steps by making a representation to the competent authority. Whether such legal understanding ultimately proves to be correct is a matter, which would fall for consideration in the accompanying OA. At the stage of deciding the present Misc. Application, the question is whether the explanation is bona fide and sufficiently plausible to warrant adjudication of the substantive grievance. In our considered view, it is.

We are also unable to accept the submission that the filing of the representation dated 12.02.2026, by itself, revives an otherwise dead cause of action. We do not proceed on that basis. The representation is being noticed only as one of the circumstances demonstrating the subsequent conduct of the applicants after they claim to have become aware of the legal nature of their grievance. The condonation of delay is thus not being granted merely because a representation was submitted.

The reliance placed by learned counsel for respondent No.4 on State of Madhya Pradesh v. Ramkumar Chowdhary (supra) and Basawaraj v. Special Land Acquisition Officer (supra) also does not persuade us to reject the present Misc. Application. Those decisions undoubtedly reiterate that negligence, lack of bona fides and unexplained inaction constitute strong grounds against condonation. We respectfully apply that principle. However, in the present case, the explanation furnished by the applicants, particularly the asserted bona fide legal advice, their subsequent representation and their approach to the Tribunal thereafter, is sufficient for us to hold that the delay cannot, at this interlocutory stage, be attributed to deliberate or mala fide inaction.

The decision in State of Madhya Pradesh v. Syed Qamarali, reported in 1961 SCC OnLine SC 9, relied upon by learned counsel for the applicants, proceeds on the principle that an order passed in breach of a mandatory provision and having no legal existence may not acquire validity merely by lapse of time. We, however, do not consider it necessary, while deciding the present Misc. Application, to record any final finding that the appointment of respondent No.4 is a nullity or void ab initio. That question necessarily belongs to the merits of the accompanying OA. The said decision is relevant only to the extent that the applicants have raised an arguable challenge founded upon alleged violation of the governing procedure and Articles 14 and 16 of the Constitution. Whether that contention ultimately succeeds is expressly left open.

The decision in Ajay Kumar Shukla & Ors. v. Arvind Rai & Ors., reported in (2022) 12 SCC 579, also relied upon by the applicants, was rendered in the context of a challenge to seniority where the alleged seniority position itself was shown to have been prepared contrary to the statutory rules. The Hon’ble Supreme Court observed that statutory illegality cannot ordinarily be defended merely on the ground of delay, while also recognising that an unreasonable delay which remains unexplained can constitute an exception. The said judgment, therefore, does not dispense with the requirement of explaining delay; rather, it reinforces the proposition that where a substantive statutory or constitutional grievance is raised and the explanation for delay is satisfactory, the matter may appropriately be examined on merits.

The reliance placed on State of Punjab & Ors. v. Brijeshwar Singh Chahal & Ors. (supra) is also of some relevance to the background of the controversy involved in the instant case, as that decision concerned fairness, transparency and objectivity in public appointments. However, we make it clear that we are not expressing any opinion at this stage on whether the selection/appointment of respondent No.4 actually suffered from any illegality. That issue shall be considered independently in the accompanying OA after examination of the applicable rules, instructions, selection record and rival pleadings.

The decision of the Tribunal in Dr. Anita Jain v. Union of India & Anr., OA No.2623/2016, and the subsequent decision in Pushplata v. Union of India & Ors., OA No.1691/2024, are also relied upon by the applicants in support of the contention that the procedure adopted for appointment to the post of Director in the Central Health Service is amenable to judicial scrutiny. The latter decision, in particular, examined the selection process for Director, CGHS and found the selection process liable to scrutiny where the prescribed assessment procedure was not followed. These decisions cannot be treated as determining the legality of the appointment impugned in the present OA, which will depend upon its own governing framework and factual record. Nevertheless, they demonstrate that the applicants’ grievance cannot, at this stage, be termed wholly frivolous or devoid of an arguable legal foundation.

As regards the other decisions relied upon by the applicants, namely Ravikumar Dhansukhlal Maheta & Anr. v. High Court of Gujarat & Ors., reported in 2024 INSC 436, and the decisions of this Tribunal referred to as Pushplata (supra) and Sourabh Sharma (supra), their applicability has to be considered in the context of the facts and statutory framework involved in each case. Ravikumar Dhansukhlal Maheta (supra) principally concerned the nature of merit-cum-seniority and the legality of the selection methodology in the judicial service; it ultimately upheld the impugned selection process. Thus, the said judgment cannot be treated as laying down a proposition that every challenge to a selection process must succeed, but it does recognise the significance of examining the governing rules and the actual selection methodology. We accordingly leave the applicability and effect of these authorities to be considered at the stage of final adjudication of the accompanying OA.

On an overall consideration of the rival submissions, we are of the view that the respondents have been able to establish that the applicants had knowledge of respondent No.4's appointment at least during the period in which they worked under him. However, that circumstance, by itself, does not establish that the delay was deliberate, mala fide or attributable to gross negligence. The explanation furnished by the applicants regarding their bona fide understanding of their legal right, the subsequent legal advice received by them, their representation dated 12.02.2026 and their approach to this Tribunal thereafter constitutes sufficient cause within the meaning of the applicable law.

We are further of the view that refusal to condone the delay at this stage would have the effect of shutting out the applicants from adjudication of a grievance concerning an appointment to a public post, without examination of whether the prescribed procedure and the applicable policy/rules were duly followed. On the other hand, condonation of delay does not confer any substantive right upon the applicants, nor does it create any presumption against the validity of the appointment of respondent No.4. Respondent No.4 shall have full opportunity to defend the appointment on merits, including on the grounds that the applicants were duly considered by the Screening Committee and that the appointment was made on the basis of suitability.

We are conscious of the caution administered by the Hon’ble Supreme Court in H. Guruswamy (supra) that the Court should not commence the exercise of condonation of delay by examining the merits of the substantive dispute. We have, therefore, first examined the explanation for delay and have independently found the same to constitute sufficient cause. The arguable nature of the applicants’ grievance has been noticed only as a consequential consideration and not as a substitute for sufficient cause. In this regard, the present case is distinguishable on facts from cases where the applicant had remained completely inactive, had offered no credible explanation, or had sought to invoke the merits of the case alone for overcoming limitation.

We may also observe that the law of limitation is intended to promote diligence and finality; it is not intended to defeat adjudication where the Court is satisfied that the delay is satisfactorily explained and that the litigant has not acted with mala fide intent. The Supreme Court in Esha Bhattacharjee (supra) and Ram Nath Sao (supra) has emphasised the need to balance the competing considerations of finality on the one hand and substantial justice on the other. On the facts before us, that balance, in our considered view, lies in permitting the applicants to have their grievance examined on merits.

Accordingly, the delay in filing the accompanying OA is condoned. The instant MA is, therefore, allowed.

It is made clear that we have not expressed any opinion on the merits of the challenge raised in the accompanying OA, including the legality or otherwise of the appointment of respondent No.4 to the post in question, the applicability of the Office Memorandum dated 11.04.2023, the competence or composition of the Screening Committee, the alleged right of the applicants to consideration, or the suitability of respondent No. 4. All such questions are left open to be adjudicated in the accompanying OA in accordance with law.

Registry is directed to assign an appropriate number to the accompanying OA and list the same under same category on 06.10.2026 as substantial argument on the merit of the matter has been made and counter reply and rejoinder have been filed by the respondents and applicant in the matter.