Rk Sharma v. Union of India & Ors

JUDGMENT ARUNA SURESH. J. (QraO CM No. 5937/2010 (for delay) Q

¶1This is an applicationseeking condonationof delay in filing the appeal. For the reasons stated in the application,though not very convincing,in the interest of justice, it is allowed and delay in filing the appeal is hereby condoned. RSA No. 65/2010

¶2Appellant joined as Assistant Commandant in Group 'A', BSFwith respondentNo. 2 in 1984. He got his first promotionto the rank of Deputy Commandantin 1989. Immediately,thereafter he was sent on deputationwith National Security Guards, where he remained from 6^^ November, 1989 to l?**" October 1991. Thereafterhe came back to his parent organization. RespondentNo. 2 communicatedadverse remarks recorded in,the Part Confidential Report of the appellant for the year 1991 relatingto theworkperformanceofthe appellantduringtheperiod, 1®^ April 1991 to 17^*^ October, 1991 vide letter No. A/28017/92/C.C,^ers./ B.S.F./5462-64dated 19^^ October, 1992. Despite communicationof the said adverse remarks to the appellant, he was prompted to the rank of " DeputyCommandantw.e.f 4^^ November,1982 afterconsideringACR for the periodrelatingto 1991-1992.Appellantdidnot make any representation against the adverse remarks. He made a representation on 21December, 1992 againstthe impugned adverseremarks but, the same was rejected vide ^ order dated 19^'' August, 1993. In 1997, appellant was ignored for promotion to the post of Second-in-Commandantand he was informed by therespondentvideletterNo.31/29/97-Pers/BSFdated27^April, 1997 that though he was consideredfor promotionby the DPC held on 19^'^ March, 1997 but was not found fit for promotion due to inadequate record of service and certain adverse remarks in his PGR for the year 1991-1992 and ACRs of 1992-1993,1993-1994. Thereafterappellant served a legal notice under Section 80 CPC upon the Department and filed the suit.

¶3Trial Court as well as the First Appellate Court were of the view that suit was barred by period of limitatioij and therefore, was not maintainable. The suit was accordingly dismissed. Hence, this second appeal.

¶4It is an admittedcase of the appellantthat he had filed a suit seeking declarationand consequentialrelief of mandatoryand permanent injunction against the respondent seeking declaration that the adverse remarksin impugnedPCR for the period ending 17^*^ October, 1991 were illegal,unlawfuland void ab initioand directionsbe issuedto respondentto dxpungetheadverseremarkscontainedinthesaidPCR and notto take into considerationthe impugned adverse remarks containedtherein. This suit was filed on27^*"April, 1998. Thus, it is clearthatsuitwas filed aftermore than six years of the adverseentrymade in the PCR for theperiod1 April, 1991 to n'** October,1991.

¶5Period of limitation for seeking relief of declaration is three years from the date of cause of action. Representation of the appellant was I w rejectedon 19^''August, 1993. Even ifthe periodoflimitationis construed to start running against the appellant, from the date of rejection of his representation,suit should have been filed by him within three years beginningfrom 19^''August,1993 i.e. to 19^August,1996.However,itwas filed in the year 1998. Allegedcommunicationby the Departmentin 1997 did not extendthe periodof limitationas it did not give any fresh cause of actionto the appellantto file a suit for declaration.

¶6While dealingwith the questionof limitation.Trial Court has observed;- " The submission made on behalf of pltff that he was denied promotion to the rank of Second-in-command on 1.5.97 and cause of actionto file the present suit arose from the said date, is totally misconceived and untenable in the eyes of law. The reason that pltff is challenging only impugned adverse remarks in PGR for the period 1.4.91 to 17.10.91 against which admittedly he made representation on

21.12.92 which was rejected on

19.8.03, Neither there is any mention regarding deprivationof pltff in promotionto the rank of Second-In-Command in the plaint nor there is any relief claimed by pltff to that effect. It cannot be said that the cause of action to challenge the impugned adverse remarks for the PGR of 1991 arose to the pltff in 1997. In case plaintiff felt aggrieved from the impugned adverse remarks then he was required to approach the Gourtof Law within the stipulated period prescribed by law. The cause of action to file the same arose from the date of rejection of his representation by the Competent Authority i.e. w.e.f 19.8.93. In this way, the present suit filed on 27.4.98 is bitterly barred by limitation. The other submission made on behalf of plaintiff that the remarks of accepting authority with regard to impugned PGR of 1991 were not conveyed by R-2 and therefore, the pltff is still within his right to challenge the same after conveying the said remarks of Accepting Officer, is also without any merit. The plaintiff made representation to Competent Authority against impugned adverse remarks in PCR of 1991 wherein the plaintiff has not raised any such point that he was not conveyed the remarks of accepting officer due to which he was not in a position to make proper representation. Moreoverin case said remarks were not conveyed to the plaintiff then the plaintiff was required to approach appropriate forum within reasonable time for the issuance of directions to convey said remarks of accepting officer failing which pltff cannot be allowed to agitate this point at this juncture. Moreover, it is nowhere the case of pltff in the plaintitselfthattheremarksof acceptingofficer were not convey to him. The said submission made on behalf of plaintiff is merely an after thought plea which has been raised in order to save limitation. Hence, the same is hereby rejected. Thus, the Court does not find any merit in the submissions made on behalf of plaintiff The Court find force in the argument raised on behalf of defts that the cause of action to file the present suit arose to the pltff on

19.8.03 when his representation against adverse remarks was rejected by the Competent Authority. Admittedly, the present suit is beyond the prescribed period of limitation of three years from the said date. Hence the same is barred,by limitation. It is held accordingly. Accordingly Issue no. 1 is decided against the s plaintiff."

¶7The First Appellate Court, while upholding findings of the Trial Court in its impugned order, has held:- " I have considered the oral arguments advanced before me, the written synopsis filed by both the parties, the trial court record aridthe various docuriients placed on record. Firstly it is admitted by bo& the parties that the PCR under challenge is for the period 1.4.199 to

17.10.1991. Secondly it is not denied by the appellant that he had made a representation against the said remarks on 21.12.1991 which had been rejected by the competent authority on

19.8.1983 and the suit was filed on 28.4.1998. Thirdly in the entire pleadings the appellant had not mentioned that he had been deprived to ' the rank of Second in Command nor any relief has been pleaded or sought in this regard. Lastly it is evident from the pleadings that in paragraph 21 the appellant has made a vague averment that the cause of action for filing the suit arose on each occasion when after learning of the existence of the respective impugned adverse remarks he had lodged protest against the same and on each occasion when for the reasons best known to the respondents they refused to acceptthe legal and correct demands of the appellant. That being so, the cause of action started to run on the appellant being conveyed about the PCR for the period 1.4.1991 to 17.10.1991 against v^ich the appellant had ^ -given a detailed representationon 21.12.1992 ^ and thereafter again on 19.8.1983 when the appellant was informed about the rejection of his representation. The subsequentlegal notice does not have the effect of extending the limitation." Page 6of 7 1-

¶8Learned, counsel for the appellant has argued that remarks of ' the Accepting Officer were not conveyed to appellant and therefore, when he came to know of it, he filed a suit. Dismissing this plea of the appellant, it was observed by the courts below that this argument has been raised by the appellant as an afterthought as it was neither pleaded in the plaint nor any document was filed to indicate that he was not communicated about rejection of his representation.

¶9It is stated at the Bar by counsel for the appellantthat a writ petitionhas already been filed challengingthe ACRs of 1992-1993 and 1993-1994, which is pending adjudication. Appellant was admittedly deniedpromotionnot only on the basis of PGR for the periodstring 1st April, 1991 to l?^*" October, 1991 but also because of adverse remarks appearinginhis ACRs for the years 1992-1993and 1993-1994.

¶10Under these circumstances and in view of my discussion as above, no. substantialquestion of law arises in this appeal which needs adjudicationby this Court. Hence,appealisdismissedaccordingly. .V^ (ARUNA SURESH) JUDGE APRIL 06,2010 sb Page7of7

• !) * IN THE HIGH COURT OF DELHI AT NEW DELHI + RSA No.65/2010 & CM No.5937/2010 (delay) Date of Decision: April 06, 2010 R.K.SHARMA Appellant Through: Ms. Isha IChanna,Advocate. Versus UQI & ORS. Respondents Through: Mr.Anuj Aggarwal and Mr.Gaurav Khanna, Advocates for Respondent No.1. % CORAM: HON'BLE MS. JUSTICE ARUNA SURESH (3) Whetherreportersof localpapermay be allowed to see the judgment? (2) To be referredto the reporteror not? (3) Whetherthejudgmentshouldbe reported in the Digest ?