R. S. TEGTA v. HP STATE FOREST CORPORATION — 1999 DIGILAW 265 (HP)

JUDGMENT A.L. Vaidya, J (Retd.) Chairman. 1. Shri P.D. Nanda, respondent No. 2, as per annexure P-7 dated 14.3.1984 was offered a post of Superintendent in the pay scale of Rs. 825-1580 plus other allowance admissible under the Rules from time to time. The post was offered with reference to his interview held on 19.7.1982. This offer was accepted by Mr. Nanda, as per annexure P-8 dated 28.3.1984 on the basis of which the pay of Shri Nanda was fixed. 2. The present applicant Shri R. S. Tegta, has assiiled the aforesaid two annexures through the present application on various grounds. 3. The case of the applicant as submitted has been that one Shri Mahesh Kumar Kaundal, stood first in the interview held in July, 1982 for the post of Superintendent (825-1580) which was reserved for a schedule caste. Shri Mahesh Kumar Kaundal was selected as a direct recruit against the post reserved for the scheduled caste .Mr. Kaundal at the time of his selection was working in A. G. Himachal Pradesh from where he was relieved and he joined the Forest Corporation, but after sometime it appeared that some of his requests for fixing his pay etc. was not allowed and thereafter he resigned. The Corporation appointed in place of Shri Kaundal, respondent No. 2 Sh. P.D. Nanda. 4. The applicants simple case as urged before this Tribunal has j been that after the resignation of Mr. Kaundal, roster reserved for the I scheduled caste had exhausted and the authorities illegally appointed Shri I P.D. Nanda who in the merit list was at No. 2 when direct recruits were interviewed for filling up the said post. According to the applicant, in case the rights of the scheduled caste to hold that post had exhausted after the resignation o Mr. Kaundal, in that event/the post had to be filed up in accordance with the roster which was to go to general category and taking into consideration this post alongwith other posts lying vacat, the applintment of Shri Nanda in the scheduled caste category. 5. Further case of the applicant has been that even if after the resignation of Mr. Kaundal, the post was to be filled up from a reserved category i.e. scheduled caste, the post could not have been offered to Mr. 5. Further case of the applicant has been that even if after the resignation of Mr. Kaundal, the post was to be filled up from a reserved category i.e. scheduled caste, the post could not have been offered to Mr. Nanda in as much as at the first instance no panel was drawn by the selection committee and even if the merit list is to be considered a panel, it could be in force for one year alone but as for as the present case is concerned Mr. Nanda was given after one year and in that view of the matter also as per the applicant the appointment of Mr. Nanda was illegal and liable to be quashed. 6. On the basis of the aforesaid circumstances the applicant prayed through the present O.A. to quash annexures P-7, P-8 and P-14 whereby the applicant was informed that his representation dated 5.6.1984 has been considered and was rejected. The applicant also prayed that the respondent No. 1 be directed to promote the applicant w.e.f. 27th March, 1984 on which date the applicant became eligible to be promoted for the said post. These are the relief’s only submitted by the learned counsel before this Tribunal when the case was argued. 7. The application has been resisted on various grounds. Various preliminary objections have been raised out of which it has been pleaded that the application was without limitation. 8. The learned counsel for the parties have been heard and the record had been scrutinised. 9. Before the case on merit is taken up, it would be in the interest of justice and otherwise also to take up the plea of limitation raised on behalf of the respondents. 10. The respondent No. 1 in the reply affidavit took preliminary notion which runs as under :- The application filed by the petitioner is apparently barred by limitation. The appeal as sought relief of quashing office order No.HPSFC/E-108/22061-62, dated 14.3.1984 and Order No. HP SFC/ E/PF-218/23716-18 years and as such the petition suffers from delay and laches and is not maintainable. 11. The appeal as sought relief of quashing office order No.HPSFC/E-108/22061-62, dated 14.3.1984 and Order No. HP SFC/ E/PF-218/23716-18 years and as such the petition suffers from delay and laches and is not maintainable. 11. The applicant in the rejoinder affidavit submitted the following reply to the aforesaid plea raised by the respondents :- In reply to this para of the preliminary objections it is submitted that in view of the rejection orders conveyed to the applicant on 24th February, 1988 annexure P-14, the objection raised in this para is not available to the Respondent Corporation. Since the respondent Corporation itself did not decide the pending representation/appeal of the applicant and as already stated it was sitting tight over the decision at the instance and behest of Respondent No. 2 who was dealing with the same. 12. The applicant on the promotion of Sh. P. D. Nanda, preferred presentation to the Chairmen, H.P. State Forest Corporation Ltd. on 5.6.1984. In the representation the appointment of Mr. Nanda dated 14.3.1984 had been assailed. 13. As per annexure P-14, the applicant was informed that his presentation dated 5.6.1984 and reminder dated 1.2.1988, the said presentation after consideration has been rejected. This annexure P-14 is dated 24.2.1988. 14. The present O.A. was preferred on 21.3.1988. 15. In case the limitation is taken as per annexure P-14 from 24.2.1988, the O.A. in that event would be within limitation. However, this aspect is being disputed. 16. Section 21 of the Administrative Tribunal Act deals with limitation which runs as under Limitation :- (1) A Tribunal shall not admits an application :- (a) in a-case where a final order such as is mentioned in clause (a) of Sub-section (2) of Section 20 has been made in connection with the grievance unless the application is made, within one year form the date on which such final order has been made , (b) in a case where an appeal or representation such as is mentioned in clause (b) of sub-section(2) of Section 20 has been made and a period of six months had expired thereafter without such final order having been made, within one year from the date of expiry of the said period of six months. (2) Notwithstanding anything contained in subsection (1) , where:- (a) the grievance in respect of which an application is made had arisen by reason of any order made at any time during the period of three years immediately preceding the date on which the jurisdiction powers and authority of the Tribunal become exercisable under this Act in respect of the matter to which such order relates; and (b) no proceedings for the redressal of such grievance had been commenced before the said date before any High Court, the application shall be entertained by the Tribunal if it is made within the period referred to in clause (a), or, as the case may be, clause (b), of sub-section (1) or within a period of six months from the said date, whichever period expires later. (3) Notwithstanding anything contained in sub-section (1) or subsection (2), an application may be admitted after the period of one year specified in claused (a) or clause (b) or sub-section (1) or, as the case may be, the period of six months specified in sub-section (2), if the applicant satisfies the Tribunal that he had sufficient cause for not making th application within such period. 17. Section 20 of the Administrative Tribunal Act provides that the applications are not to be admitted unless other remedies have been exhausted. The said section runs as under :- Applications not to be admitted unless other remedies exhausted :- (a) A Tribunal shall not ordinarily admit an application unless it is satisfied that the applicant had availed of all the remedies available to him under the relevant service rules as to redressal of grievances. The said section runs as under :- Applications not to be admitted unless other remedies exhausted :- (a) A Tribunal shall not ordinarily admit an application unless it is satisfied that the applicant had availed of all the remedies available to him under the relevant service rules as to redressal of grievances. (2) For the purposes of sub-section (1), a person shall be deemed to have availed of all the remedies available to him under the relevant service rules as to redressal of grievances, - (a) if a final order has been made by Government or other authority or officer or other person competent to pass such order under such rules, rejecting any appeal preferred or representation made by such person in connection with the grievance; or (b) where no final order has been made by the Government or other authority or officer or other person competent to pass such order with regard to the appeal preferred or representation made by such person, if a period of six months from the date on which such appeal was preferred or representation was made has expired. (3) For the purpose of sub-sections (1) and (2), any remedy available to an applicant by way of submission of a memorial to the president or to the Governot of a State or to any other functionary shall not be deemed to be one of the remedies which are available unless the applicant had elected to submit such memorial. 18. From the aforesaid provisions of law, one aspect is very much relevant and on the basis of the same the period of limitation will start in a case where representation has been preferred within one year from the date of expiry of the said period of six months of filing representation. In that matter in case the representation is finally disposed of within six months then one year period of limitation would start when the representation has been decided. In case the representation is not decided within six months then the cause of action shall accrue from the date when six months have elapsed and the period would be one year from that date. 19. In case the representation is not decided within six months then the cause of action shall accrue from the date when six months have elapsed and the period would be one year from that date. 19. It may not be out of place to mention here that even if an aggrieved person prefers another representation after six months or even prefers reminder to the earlier representation, the decision of the subsequent representation or reply to the reminder informing the fate of the representation will not in any manner extend the period of limitation from that subsequent date. If it is so, the limitation may not even end and a party may file repeated representation and the date of the disposal of the final representation may be the starting point to be taken for limitation. On the basis of the aforesaid provisions of law there is only one inference that the period of limitation in a case where the representation has been preferred and not disposed of shall start after six months of the filing of the representation by the affrieved person. In the present case, the orders sought to be quashed, Annexure P- 7 and P-8, were dated 14.3.1984 and 28.3.1984. The representation was made on 5.6.1984. Admittedly within 6 months this representation dated 5.6.1984 was not disposed of. That means after 6 months from 5.6.1984, the limitation of one year would start. So, in the present case the limitation would start from 5th, December, 1984 and from this date one year period has been prescribed to file any application before the Tribunal and in the present case as per Section 21 (2) of the Administrative Tribunal Act, that period was to expire onn 5.12.1985. The said Act came in to force in the State of H.P. in Jan. 1986 and the H.P. State Administrative Tribunal started functioning in Sept. 1986. The application will lie till the expiry of a period of six months from the establishment of the Tribunal as provided in Sub Section 2 of Section 21 of the Administrative tribunal Act. Thus six months expired in March 1987. Admittedly the application has been preferred in the year 1988, meaning thereby after the prescribed period of limitation. 20. 1986. The application will lie till the expiry of a period of six months from the establishment of the Tribunal as provided in Sub Section 2 of Section 21 of the Administrative tribunal Act. Thus six months expired in March 1987. Admittedly the application has been preferred in the year 1988, meaning thereby after the prescribed period of limitation. 20. lt has been contended by the learned counsel for the applicant that in the present case it was conveyed only on 24.2.1988 that the representation has been rejected and this was conveyed after applicant had submitted reminder dated 1.2.1988, According to the learned counsel, the application as such is within time. 21. The aforesaid submissions made by the learned counsel for the applicant will not hold any good in so far as the provisions of law are concerned which have been referred to earlier. As the six months after the Tribunal started functioning had expired in, March, 1987, the application could be filed by that date. Simply because the result of the representation was not conveyed to the applicant which was so done in Feb. 1988, it will not in any manner extend the period of limitation. It cannot be said that the cause of action for the purpose of limitation would start form 24.2.1988, but on the other hand limitation would extend only as per the provisions of the Administrative Tribunal Act till the period of six months after the establishment of the tribunal. 22. The aforesaid inferences drawn are fully supported by the precedents made by the Apex Court. 23. In AIR 1990 Supreme Court, 10, S.S. Rathore, appellant v. State of Madhya Pradesh, Respondent. Para 20 is very much relevant which is being reproduced as under :- We are of the view that the cause of action shall be taken to arise not from the date of the original adverse order but on the date when the order of the higher authority where a statutory remedy is provided entertaining the appeal or representation is made and where no such order is made, though the remedy has been availed of, as six months period from the date of preferring of the appeal or making of the representation shall be taken to be the date when cause of action shall be taken to have first arisen. However, made it clear that this principle may not be applicable when the remedy availed of has not been provided by law. Repeated unsuccessful representations not provided by law are not governed by this principle. 24. In 1999 (5) SLR 654, Ramesh Chand Sharma etc., appellants versus Udham Singh Kamal and Ors, respondents and State of Himachal Pradesh versus Udham Singh Kamal and Ors, Respondents it has been field that the respondent in that case filed application in the Tribunal after three years challenging order of promotion of the present appellant, but no application for condonation of delay has been filed, therefore, the petition before the Tribunal was barred by time and could not be entertained and decided on merits. In this very case it has been observed that the person cannot be permitted to take up the pleas of condonation of delay at the late stage when it was so done at the time of arguments. 25. In the present case admittedly there has been no application preferred by the applicant for condonation of delay in filing the O.A. as| was the requirement of law, but on the other hand as per the rejoinder I submitted by the applicant not even a single line has been submitted praying 5 for the condonation of delay, but it has been re-alleged that the limitation started from the date in Feb. 1988 when the inimation regarding rejection of the representation was given. 26. In view of the foregoing reasons the application preferred by the j applicant is without limitation and on that sole score, it has to be dis-allowed. The parties case on merits as such is not required to be gone into. The petition accordingly is dis-allowed. The parties are left to bear their own costs.