Summary
A Doordarshan employee who had accepted second and third financial upgradations under the MACP Scheme in 2010 and 2015 made a representation in October 2016 claiming the second upgradation under the earlier ACP Scheme due in March 2009, and moved the Central Administrative Tribunal within weeks of its rejection. The Supreme Court held the original application time-barred: under Sections 20 and 21 of the Administrative Tribunals Act, 1985 a belated, non-statutory representation on a stale claim does not postpone the cause of action, and limitation is reckoned from the accrual of the cause of action and, where no order is passed on a representation, one year from the expiry of six months from it. Though the Tribunal and the High Court erred in not deciding maintainability, the Court, under Article 142, declined to interfere or direct any refund from the respondent, who had retired in 2018.
Issues
- Whether the respondent's claim to the second financial upgradation under the ACP Scheme was affected by the issuance of notice in a later SLP concerning B. D. Kadam or by the decision in Union of India v. N.M. Raut.
- Whether the original application before the Tribunal, filed after rejection of a belated representation, was barred by limitation under Sections 20 and 21 of the Administrative Tribunals Act, 1985.
- What 'remedies' must be exhausted under Section 20 of the Act, and how limitation under Section 21 is reckoned where the representation made is not one provided for in the service rules.
- Whether, the Tribunal's order having been implemented and the respondent having retired, any recovery or interference was warranted.
Provisions considered
- Section 20, Administrative Tribunals Act, 1985The 'remedies' to be exhausted are those statutorily available under the relevant service rules. Where the rules provide no representation, the aggrieved public servant may approach the Tribunal directly; where rights are affected by the employer's inaction, a representation is desirable and, if unanswered after the period in sub-section (2), the application cannot be rejected for non-exhaustion, but the public servant cannot wait indefinitely and must represent expeditiously. (¶¶ 25, 26, 27, 28, 29, 30, 31, 34)
- Section 21, Administrative Tribunals Act, 1985Limitation of one year runs from a final order on a statutorily provided appeal or representation, or from expiry of six months after an unanswered representation. A belated non-statutory representation and its rejection do not furnish a fresh cause of action; limitation must be reckoned from the accrual of the cause of action, so the respondent's application filed in December 2016 for a benefit due in March 2009 was time-barred. (¶¶ 14, 15, 25, 32, 33, 35, 36, 37)
- Section 19, Administrative Tribunals Act, 1985An original application lies to the Tribunal; in exceptional cases it may be entertained without exhaustion of remedies under the service rules (D.B. Gohil). Limitation for such an application is governed by Sections 20 and 21 as construed in the judgment. (¶¶ 28, 31, 34, 35)
- Article 226, Constitution of IndiaLimitation laws do not apply to writ jurisdiction, but unexplained delay or laches is a self-imposed restriction that may justify refusing discretionary relief; service disputes before the Tribunal are, by contrast, governed by statutory limitation under Sections 20 and 21 of the 1985 Act. (¶¶ 24, 25)
- Article 142 (with Articles 15(3) and 41), Constitution of IndiaTreating the case as very special, and bearing in mind the State's power to make special provision for women and the directive on assistance in old age, the Court refrained from directing the retired respondent to refund any surplus received over her entitlement. (¶ 38)
Held
- The issuance of notice in the pending SLP against rejection of the review petition in B. D. Kadam was of no relevance to this appeal. Union of India v. N.M. Raut, which interdicted MACP upgradations granted despite non-functional upgradations after two or four years of service, is factually distinct and does not operate to the respondent's detriment; her claim arose from delay in granting an ACP benefit before the MACP Scheme intervened. (¶¶ 7, 8, 10, 11, 12, 13)
- Following C. Jacob, M.K. Sarkar, Shiv Charan Singh Bhandari and Chaman Rana, a belated representation raising a stale or dead claim, and its rejection (even one made in compliance with a court's direction), does not furnish a fresh cause of action or extend limitation; delay and laches are judged with reference to the original cause of action. That no court direction to consider the representation intervened here is a factual dissimilarity on which nothing turns. (¶¶ 17, 18, 19, 20, 21, 22)
- The respondent accepted MACP upgradations in August 2010 and November 2015 without demur and claimed the ACP benefit due in March 2009 only by a representation in October 2016. That a conscientious officer rejected it within 32 days, instead of ignoring a stale claim, cannot be turned to her advantage to distinguish the settled law. (¶ 23)
- The word 'remedies' in Section 20 means remedies statutorily available under the relevant service rules. Where the rules do not provide for a representation against an order, the public servant may approach the Tribunal directly without making a non-statutory representation, and an objection of non-exhaustion can be met on that basis; where the rules do provide a representation it must be exhausted unless an exceptional case is set up. Whether the representation relied on is statutory, its timing, and whether it raises a stale claim are all relevant to limitation. (¶¶ 29, 34)
- Where no formal order exists but rights are affected by the employer's silence or inaction in conferring a legitimate benefit, the public servant should first represent to the employer; if the grievance is not redressed after expiry of the period in Section 20(2), the Tribunal cannot reject the application on the ground that the service rules provide no representation. But the public servant must not wait indefinitely; the representation must be made expeditiously and before accrual of third-party rights, or within a reasonable time of learning of them. An unsuccessful aspirant for public employment may likewise challenge the process immediately or represent and then apply within limitation, explaining any delay once third-party rights accrue. (¶¶ 30, 31, 34)
- Except where final orders are passed on statutorily provided appeals, revisions, memorials or representations, limitation for an original application under Section 19 is reckoned keeping in mind the date of accrual of the cause of action and the proximity of the representation to it; where no order is passed on the representation, the one-year period runs from the expiry of six months from the representation. The cause of action cannot be deferred by making a highly belated representation and awaiting its outcome. Different considerations apply to a continuing wrong (Union of India v. Tarsem Singh). (¶ 35)
- The respondent did not plead any service rule under which her representation of 4 October 2016 was made, so it was a non-statutory representation whose rejection could not stretch limitation. She ought to have approached the Tribunal immediately after being granted MACP instead of ACP benefits; her original application was time-barred and should not have been entertained. The High Court also erred in declining to examine maintainability on the ground that B. D. Kadam covered the issue. (¶¶ 33, 36, 37)
- Since the respondent retired in 2018 and the Tribunal's order had been implemented, and bearing in mind Articles 15(3) and 41, the Court in exercise of its power under Article 142, treating the case as very special, refrained from directing refund of any surplus received over her entitlement and disposed of the appeal without interfering with the impugned order. (¶¶ 38, 39)
Result
Appeal disposed of without interfering with the impugned order of the High Court; the original application held to have been time-barred, but no refund of any surplus amount received by the retired respondent directed, in exercise of power under Article 142.