Research › Search › Judgment

Madhya Pradesh High Court · body

2000 DIGILAW 186 (MP)

K. P. Sharma v. K. L. Mishra

2000-02-24

FAKHRUDDIN, N.G.KARAMBELKAR

body2000
ORDER Fakhruddin, J. 1. By this petition under Article 226/227 of the Constitution of India the petitioner has challenged the order dated 5-2-1997 passed by the State Administrative Tribunal, Gwalior Bench, in O.A. No. 752/95. 2. Briefly stated, the facts are that respondent No. 1 Dr. K.L. Mishra who was at the relevant time Lecturer in the Government Ayurvedic College and Hospital, Gwalior, filed an application being O.A No. 752/95 on 20-7-1995 before the State Administrative Tribunal, Bench Gwalior (for short the 'Tribunal') challenging the Gradation List of 1981 and onwards in which he was placed below the petitioner herein, i.e. Dr. K.P. Sharma and praying that the respondents No. 2 and 3 herein be directed to place the applicant/respondent No. 1 above respondents No. 3 to 6 before the Tribunal in the Gradation lists published by making necessary corrections therein and to give all consequential and ancillary benefits to the applicant. On notice being issued, the State/respondents No. 2 and 3 herein (who were respondents No. 1 and 2 before the Tribunal) filed return and it was stated therein that due to clerical mistake name of applicant has been included in the gradation list published in the year 1981 below the respondents No. 3 to 6 and the same has been repeated in the gradation list published in the subsequent years, and on the basis of the representations of the applicant the said mistake has been noticed and due scrutiny is being carried out in the matter of the applicant and his grievance is expected to be redressed within a short period. The petitioner (who was respondent No. 5 before the Tribunal) filed return wherein he stated that it is he who is senior and not applicant Dr. K.L. Mishra. A preliminary objection was also raised in the return (Para 1 (d)) which reads : "That in reply to Para 5 of the petition it is submitted that the petition is highly belated and barred by limitation. The answering respondent No. 5 is always senior to the petitioner from the appointment and has rightly been placed in all the Gradation Lists issued. The answering respondent No. 5 is always senior to the petitioner from the appointment and has rightly been placed in all the Gradation Lists issued. Since the date of appointment the petitioner has never challenged the seniority of the answering respondent and mainly on the basis of the gradation list issued in 1994 the petitioner could not bring this case within the period of limitation which is hopelessly barred by limitation and is hereinafter replied in the factual part of the petition." The petitioner herein in reply to Ground D of the application stated in Para 4.4 of his return : "That in reply to Ground D it is humbly submitted that the error was rectified subsequently but will not cause any interference in the merit list and the action of 1978 cannot be agitated after a long lapse of 17 years." 3. A perusal of the record shows that on 5-2-1997 the case was listed for hearing on I.A. No. 229/97 filed by the petitioner. On that date the Tribunal heard the parties on the said application. But, while deciding the aforesaid interlocutory application, the Tribunal further proceeded to decide the matter on merits merely by taking note of the admission made by the respondents No. 1 and 2 in their return. The order of the Tribunal reads : "Petitioner by Shri Brijesh Sharma, Advocate. Respondents No. 1 and 2 by Shri M.M. Qureshi, Dy. G.A.. Respondent No. 5 by Shri Anil Sharma, Advocate. Respondents No. 4 and 6 are not being represented today. Counsel for the parties to the petition are heard pertaining to I.A. No. 229/97 filed by the petitioner. Respondents No. 4 and 6 though served are not present and they have not filed the return also. In view of the said situation they are proceeded ex parte. In view of the return filed for respondents No. 1 and 2 it is being ordered that as per admission of respondents No. 1 and 2 contained in Paragraph Nos. 6.6 and 6.10 the clerical error appearing in the gradation list published in the year 1981 and repeated in the subsequent gradation lists be corrected and the name of the petitioner be placed over respondent No. 3 and all consequential benefits be given to the petitioner in consequence of his seniority over respondents No. 3 to 6. 6.6 and 6.10 the clerical error appearing in the gradation list published in the year 1981 and repeated in the subsequent gradation lists be corrected and the name of the petitioner be placed over respondent No. 3 and all consequential benefits be given to the petitioner in consequence of his seniority over respondents No. 3 to 6. This order be complied with within one month on certified copy of this order being produced by the petitioner before respondents No. 1 and 2. This finally disposes of the present petition. C.C. as per rules". 4. Shri K.K. Lahoti, learned counsel appearing for the petitioner, submits that the Tribunal did not at all consider his return especially the question of limitation raised by the petitioner which ought to have been considered by the Tribunal. Learned counsel contended that since the petitioner had disputed the question of seniority and the plea of limitation, it required adjudication without which an order affecting the petitioner could not be passed on the basis of the so-called admission of the State and its officer, respondent No. 2. 5. Shri K.B. Chaturvedi, learned Government advocate appearing for the State/respondents No. 2 & 3, very fairly stated that the objections regarding limitation and seniority raised by the petitioner in his return had not been considered and had been totally ignored by the Tribunal. 6. Shri Brijesh Sharma, learned counsel appearing for respondent No. 1, on the other hand, supported the order of the Tribunal. 7. Ordinarily, this Court in its supervisory jurisdiction under Article 227 of the Constitution does not interfere to test the correctness of the order passed by the Tribunal but where a patent illegality is apparent and the pleas raised have not at all been considered and the Tribunal acted with not haste, this Court has to interfere to prevent miscarriage of justice. In this case the petitioner who had been joined as respondent No. 5 in the original application before the Tribunal has filed return disputing the question of seniority claimed by the applicant, especially raising the plea of limitation under Section 21 of the Administrative Tribunals Act, 1985 (for short, the 'Act'). Section 21 of the Act reads as under : "21. Section 21 of the Act reads as under : "21. Limitation.-- (1) A Tribunal shall not admit 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 from 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 Sub-section (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 becomes 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 Clause (a) or Clause (b) of 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 the application within such period." 8. The Tribunal ignored to consider the pleas including the question of limitation raised before it by the petitioner. The Tribunal was bound to consider the questions so raised. In view of this, the order passed by the Tribunal cannot be sustained. It is accordingly quashed, and the matter is remitted to the Tribunal to consider the submissions made by the petitioner in his return. 9. The Tribunal was bound to consider the questions so raised. In view of this, the order passed by the Tribunal cannot be sustained. It is accordingly quashed, and the matter is remitted to the Tribunal to consider the submissions made by the petitioner in his return. 9. Learned counsel for the parties prayed that as the matter is an old one, the Tribunal may be directed to decide it early. No direction as such is required to be given as we do hope that the Tribunal after giving opportunity to the parties and considering their respective cases will decide the matter as expeditiously as possible. 10. No order as to costs.