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2002 DIGILAW 593 (MP)

BIHARI LAL SONI v. STATE OF M. P.

2002-06-27

AJIT SINGH, DIPAK MISRA

body2002
ORDER Dipak Misra, J. In this writ petition preferred under Article 227 of the Constitution of India the petitioner has prayed for quashment of the order dated 9-3-1999, Annexure P-1, passed by the M.P. Administrative Tribunal, Bhopal Bench, Bhopal (in short 'the Tribunal') in M.A. No. 165/97 whereby the Tribunal refused to review its own order passed in O.A. No. 542/1989 decided on 4-11-1997, Annexure P-2 and further to modify the aforesaid order by commanding the respondents 1 to 4 to pay the petitioner the benefit of arrears of pay and allowances with effect from 30-6-1979 from which date the petitioner was allowed promotion to the post of Deputy Ranger and to pass any other order/direction as may be fit and proper in the facts and circumstances of the case. On a perusal of the writ petition it is perceivable that the real grievance of the petitioner relates to non-granting of arrears of salary by the Tribunal while granting him promotion to the post of Deputy Ranger with effect from the date his junior was promoted and further conferring the benefit on him for consideration to the next higher post by constitution of DPC for the purpose of adjudging his suitability but while so directing it observed that if the petitioner is found suitable for promotion to the higher post as Forest Ranger he may be given the benefit but he should not be entitled to arrears of salary. It is apposite to mention here that the Tribunal clearly stated that the petitioner would only be entitled to the pay fixation in the higher post. The review application was filed as stated hereinbefore for grant of arrears of pay but the Tribunal declined to entertain the prayer on the ground that it had consciously decided about the said aspect of the payment of arrears and, therefore, the order did not warrant any review. We have heard Mr. Ashok Tiwari, learned counsel for the petitioner and Mr. S.K. Yadav, learned Government Advocate for the State. It is submitted by Mr. Tiwari, learned counsel for the petitioner that the Tribunal has fallen into error by denying the benefit of arrears of salary when the Tribunal itself recorded a finding that the petitioner was unjustly treated junior for no fault of his and there was wrongful exclusion of his name from the list of incumbents for consideration to the higher post. Tiwari, learned counsel for the petitioner that the Tribunal has fallen into error by denying the benefit of arrears of salary when the Tribunal itself recorded a finding that the petitioner was unjustly treated junior for no fault of his and there was wrongful exclusion of his name from the list of incumbents for consideration to the higher post. It is also urged by him that when the Tribunal itself directed for promotion to the post of Deputy Ranger by expressing the opinion that there was no necessity to hold a review DPC as the facts were absolutely clear and commanded the respondents to promote him from the date when one S.S. Goswami was promoted there was no justification in refusing the relief relating to arrears of salary. It is also argued by Mr. Tiwari that the Tribunal had condoned the delay and thence, there was no justification in not granting the arrears of payment as such an order amounts to illegal exercise of jurisdiction. Mr. S.K. Yadav, learned Government Advocate, per contra, has canvassed that the petitioner was denied the promotion to the post of Deputy Ranger and was informed so vide Memorandum dated 12-2-1981. He chose not to approach the appropriate legal forum for redressal of his grievances and knocked at the door of the Tribunal in the year 1989 and the Tribunal condoned the delay and dealt with the case of the petitioner on merits and under these circumstances and due to the belated approach the Tribunal in paragraph 9 of the order has addressed itself with regard to the grant of salary and thought it apposite not to confer the said benefit on the petitioner and in that factual backdrop the order passed by the Tribunal is beyond reproach and unassailable. The hub of the matter is whether the Tribunal was justified in expressing its disinclination to grant the benefit pertaining to arrears of salary to the petitioner. On a scanning of the order of the Tribunal it transpires that in the DPC which met on 30-6-1979 the petitioner was not found eligible. He submitted a representation against his non-promotion and he was intimated by memorandum dated 12-2-1981 that the DPC did not find him suitable for the promotional post. On a scanning of the order of the Tribunal it transpires that in the DPC which met on 30-6-1979 the petitioner was not found eligible. He submitted a representation against his non-promotion and he was intimated by memorandum dated 12-2-1981 that the DPC did not find him suitable for the promotional post. The Tribunal has considered the factum of opinion expressed by the competent authority but opined that no information was given to the applicant that he was treated as an untrained Forester. In view of this it expressed the view that had such information been given, the petitioner would certainly have made representation in that regard and defect which had, crept in would have been corrected at the relevant point of time. The Tribunal felt that a vital piece of information was not given to the petitioner and therefore, the just claim of the applicant could not be ignored. Considering the aforesaid factual scenario the Tribunal condoned the delay. While so holding the Tribunal has also expressed the view that the petitioner did not approach the appropriate Court for redressal of his grievance when he was not promoted and was informed about the same by letter dated 12-2-1981. Assigning such reasons the Tribunal arrived at the conclusion that for the delay the petitioner had to suffer and cannot claim the benefit of arrears of salary. The gravamen of submission of Mr. Tiwari is that when the Tribunal condoned the delay by entertaining the application on the ground that vital piece of information was withheld from the petitioner it cannot have recorded a finding that there was belated approach by the petitioner and hence, the financial benefit could not be extended to him. Mr. Yadav, learned Government Advocate, sounding a contra note, proponed that the Tribunal could not have entertained the lis u/s 21 of the Administrative Tribunal Act, 1985 as the cause of action for the same had commenced three years prior to the establishment of the Tribunal and, therefore, it was cognizable by the Tribunal. We may hasten to add that as far as the submission of Mr. Yadav in this regard is concerned we are not inclined to deal with the same for the simon pure reason that the State Government or the authorities have not assailed the order passed by the Tribunal. In fact they have conceded to the same. We may hasten to add that as far as the submission of Mr. Yadav in this regard is concerned we are not inclined to deal with the same for the simon pure reason that the State Government or the authorities have not assailed the order passed by the Tribunal. In fact they have conceded to the same. We have been informed at the Bar that the order has already been worked out. As the order has been conceded and worked out such a submission made by the learned Government Advocate, in our considered opinion, is unacceptable. But that does not necessarily put the petitioner's claim in a better position or footing than what has been conferred on him by the Tribunal. On a survey of the order passed by the Tribunal we find that in paragraph 9 the Tribunal has addressed itself to the controversy and given cogent reasons for non-granting of arrears of salary. If we allow ourselves to say so, the Tribunal has struck a balance between the petitioner and the respondents 1 to 4 before it. An appropriate balance having been struck and in striking of such a balance we perceive no perversity of approach. The view taken by the Tribunal as far as refusal of payment of arrears of salary is concerned is quite acceptable and is not so manifestly illegal warranting interference in exercise of jurisdiction under Article 227 of the Constitution. We may further add here that when a discretion has been exercised on proper appreciation of factual scenario a Writ Court should not substitute its view because while exercising the power of judicial review certain guidelines are to be followed. In this context, we may profitably refer to the decision rendered in the case of Syed Yakoob Vs. K.S. Radhakrishnan and Others, wherein it has been held as under: The jurisdiction of High Court to issue a writ of certiorari is a supervisory jurisdiction and the Court exercising it is not entitled to act as an appellate Court. This limitation necessarily means that findings of fact reached by the inferior court or Tribunal as result of the appreciation of evidence cannot be reopened or questioned in writ proceedings. An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of fact, however grave it may appear to be. An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of fact, however grave it may appear to be. In regard to a finding of fact recorded by the Tribunal, a writ of certiorari can be issued if it is shown that in recording the said finding, the Tribunal had erroneously refused to admit admissible and material evidence, or had erroneously admitted inadmissible evidence which has influenced the impugned finding. Similarly, if a finding of fact is based on no evidence, that would be regarded as an error of law which can be corrected by a writ a certiorari. A finding of fact recorded by the Tribunal cannot, however, be challenged in proceedings for a writ of certiorari on the ground that the relevant and material evidence adduced before the Tribunal was insufficient or inadequate to sustain the impugned finding. The adequacy or sufficiency of evidence led on a point and the inference of fact to be drawn from the said finding being within the exclusive jurisdiction of the Tribunal, the points cannot be agitated before a writ Court....... In this context we may usefully refer to the decision rendered in the case of State of Uttar Pradesh and Others Vs. Maharaja Dharmander Prasad Singh and Others, wherein it has been held as under: .....However, judicial review under Article 226 cannot be converted into appeal. Judicial review is directed, not against the decision, but is confined to the examination of the decision-making process. In Chief Constable of the North Wales Police vs. Evans, (1982) 1 W.L.R. 1155 refers to the merits-legality distinction in judicial review. Lord Hailsham said: The purpose of judicial review is to ensure that the individual receives fair treatment, and not to ensure that the authority, after according fair treatment, reaches on a matter which it is authorized by law to decide for itself a conclusion which is correct in the eyes of the Court. Lord Brightman observed: ......Judicial review, as the words imply, is not an appeal from a decision, but a review of the manner in which the decision was made...... And held that it would be an error to think: ....that the Court sits in judgment not only on the correctness of the decision-making process but also on the correctness of the decision itself. And held that it would be an error to think: ....that the Court sits in judgment not only on the correctness of the decision-making process but also on the correctness of the decision itself. When the issue raised in judicial review is whether a decision is vitiated by taking into account irrelevant, or neglecting to take into account of relevant, factors or is so manifestly unreasonable that no reasonable authority, entrusted with the power in question could reasonably have made such a decision, the judicial review of the decision-making process includes examination, as a matter of law, of the relevance of the factors...... Recently in the case of State of Maharashtra vs. Milind and others, 2001(1) MPLJ 1 (SC) : AIR 2001 SC 393 the Apex Court expressed the view that the High Court's power of judicial review is supervisory and not appellate. In this context we may also profitably refer to the decision rendered in the case of Sugarbai M. Siddiq and Others Vs. Ramesh S. Hankare (D) by Lrs., wherein their Lordships laid emphasis that while exercising power under Article 227 of the Constitution the High Court is concerned whether the order impugned is vitiated by procedural irregularity or whether any error has crept in the decision making process. In this regard we think it apposite to quote a passage from the decision rendered in the case of M/s. Estralla Rubber Vs. Dass Estate (Pvt.) Ltd., wherein a two Judge Bench of the Apex Court expressed the view as under: 6. The scope and ambit of exercise of power and jurisdiction by a High Court under Article 227 of the Constitution of India is examined and explained in a number of decisions of this Court. The exercise of power under this Article involves a duty on the High Court to keep inferior courts and tribunals within the bounds of their authority and to see that they do the duty expected or required of them in a legal manner. The High Court is not vested with any unlimited prerogative to correct all kinds of hardship or wrong decisions made within the limits of the jurisdiction of the subordinate courts or tribunals. The High Court is not vested with any unlimited prerogative to correct all kinds of hardship or wrong decisions made within the limits of the jurisdiction of the subordinate courts or tribunals. Exercise of this power and interfering with the orders of the Courts or tribunals is restricted to cases of serious dereliction of duty and flagrant violation of fundamental principles of law or justice, where if the High Court does not interfere, a grave injustice remains uncorrected. It is also well settled that the High Court while acting under this article cannot exercise its power as an appellate Court or substitute its own judgment in place of that of the subordinate court to correct an error, which is not apparent on the face of the record. The High Court can set aside or ignore the findings of facts of an inferior court or tribunal, if there is no evidence at all to justify or the finding is so perverse, that no reasonable person can possibly come to such a conclusion which the Court or tribunal has come to. If the order passed by the Tribunal is tested on the touchstone of the aforesaid principles we are of the considered opinion that the said order is absolutely just, proper, appropriate and warrantable and there is no justification to overturn or dislodge the same. In the result, the writ petition, being devoid of substance, stands dismissed without any order as to costs. Final Result : Dismissed