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2002 DIGILAW 420 (MP)

Sadri Prasad Sitoke v. State of M. P.

2002-04-16

DIPAK MISRA, UMA NATH SINGH

body2002
ORDER Misra, J. 1. Assailing the order dated 10.4.1995 passed by M.P. Administrative Tribunal Bhopal (in short 'the Tribunal') in TA No. 6108/88, Annexure P-1, and order dated 23.12.1998, Annexure P-2, passed by the M.P. Administrative Tribunal Bhopal in MA No. 45/1995, the petitioner has visited this Court. 2. It is apposite to mention here that the petitioner being dissatisfied with regard to his non-consideration for the promotional post had approached this Court in late 80s by filing a writ petition which was transferred to the Tribunal by operation of law and was registered as a Transferred Application. The Tribunal disposed of the application by the impugned order dated 10.4.1995. The petitioner having not met with success in entirety sought further relief by filing an application for review of the order by invoking the provision under section 22 (3) (F) of Administrative Tribunal Act, 1985 (hereinafter referred to as 'Act') and the same resulted in the order dated 13.12.1998 as per Annexure P-2. Thereafter the petitioner has approached this Court under Article 227 of the Constitution of India. It is not-disputed that the order was passed in the Transferred Application before the decision was rendered in the case of L. Chandra Kumar v. Union of India and others [AIR 1997 SC 1128] was tendered. The decision rendered in L. Chandra Kumar (supra) declared a part of section 28 as ultra vires and it also declared the clause 2 (d) of Article 323A and clause 3 (d) of Article 323B to exclude the jurisdiction of the High Courts and Supreme Court under Article 226/227 and 32 of the Constitution as ultra vires. While so doing their Lordships in paragraph 93 held as under: "We may add that Tribunals will, however, continue to act as the only Courts of first instance in respect of the areas of law for which they have been constituted. By this, we mean that it will not be open for litigants to directly approach the High Courts even in cases where they question the vires of statutory legislations (except, as mentioned, where the legislation which creates the particular Tribunal is challenged) by overlooking the jurisdiction of the concerned Tribunal." 3. Thereafter their Lordships proceeded to hold as under: "94. By this, we mean that it will not be open for litigants to directly approach the High Courts even in cases where they question the vires of statutory legislations (except, as mentioned, where the legislation which creates the particular Tribunal is challenged) by overlooking the jurisdiction of the concerned Tribunal." 3. Thereafter their Lordships proceeded to hold as under: "94. The decisions issued by us in respect of making the decisions of Tribunals amenable to scrutiny before a Division Bench of the respective High Courts will, however, come into effect prospectively i.e. will apply to decisions rendered hereafter. To maintain the sanctity of judicial proceedings, we have invoked the doctrine of prospective over-ruling so as not to disturb the procedure in relation to decisions already rendered." 4. On a perusal of paragraph 94 it is quite clear that the law laid down in the case of L. Chandra Kumar (supra) would be applicable prospectively and this was so done to maintain sanctity of judicial proceedings. Their Lordships have categorically held that the doctrine of prospective over-ruling has been adopted so as not to disturb the procedure in relation to decisions already rendered. The decision in L. Chandra Kumar (supra) was rendered on 18.3.1997. The impugned order contained in Annexure P-l was passed on 10.4.1995. 5. Indubitability the aforesaid order could not have been challenged directly before this Court. Mr. Tiwari learned counsel submitted that the order passed in review is much after the judgment passed in L. Chandra Kumar (supra) and therefore, the writ petition was filed before this Court. In support of the aforesaid submission he has placed reliance on the decision rendered in the case of Union of India and others v. Central Administrative Tribunal [Administrative Total judgments 2000 (1)], wherein a Division Bench of Allahabad High Court came to hold as under: "The review petition in the present case has been rejected on 11th April, 1997. Thus the grievance remains against the main order and the writ petition against which is admittedly not maintainable. However, in our opinion, the Full Bench judgment of this Court relied on by the learned counsel for the respondents is not applicable in the present case. The controversy before the Full Bench was whether the proceedings could be abated in view of the provisions contained in D.P. Consolidation of Holdings Act. However, in our opinion, the Full Bench judgment of this Court relied on by the learned counsel for the respondents is not applicable in the present case. The controversy before the Full Bench was whether the proceedings could be abated in view of the provisions contained in D.P. Consolidation of Holdings Act. The Full Bench held that merely on admission of review application the proceedings are not reopened and they cannot be abated under the provisions of D.P. Consolidation of Holdings Act. However, in the present case, the question involved before us is as to whether the writ petition under Article 226 of the Constitution is maintainable against the order rejecting the review application. In our opinion, since Statute and the Rules framed there under confer power on the Tribunal to review its order and the review application was filed which was not barred under any provision of law and the review application has been considered and rejected, this decision given by the Tribunal gave rise to fresh cause of action to petitioners for filling the present writ petition. Though against the main order dated 13.12.1996, the writ petition is not legally maintainable but the writ petition against order dated 11th April, 1997 is found maintainable. The submissions to the effect as to what shall be the scope of the writ petition so far as the order dated 13.12.1996 is concerned, is not required to be examined at this stage and such a question can be considered and decided at the time of final hearing. The preliminary objection raised on behalf of the petitioners thus cannot be accepted and the same is rejected. ' 6. The sole question arises for consideration is whether the order passed in review after the decision of L. Chandra Kumar (supra) gave rise to a fresh cause of action to the petitioner for filing the present writ petition. It is apposite to mention here this Court in the case of Union of India v. Shri N.L. Pare I in Writ Petition No. 2515/98 expressed the view as under: "The impugned order of Central Administrative Tribunal has been passed on 17.2.1997 held by the Supreme Court in the case of Chandra Kumar v. Union of India and others [1997 (1) MPLJ 621] decision of the Tribunal rendered after 17.3.1997 would be amenable to writ jurisdiction of this Court under Article 227 of the Constitution of India. Since in this case, the judgment was passed by the Tribunal prior to the cut-off date mentioned above, merely filing of review application in September 1997 and its disposal after that date, is no ground to entertain this petition. No such exception can be read in the order of the Supreme Court (supra) to entertain petition filed against judgments of Tribunal passed before 17.3.1997." 7. In view of the aforesaid order we are of the considered opinion that the present writ petition cannot be adjudicated on merits. Accordingly it is dismissed as not maintainable.