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2004 DIGILAW 347 (HP)

PURAN CHAND SHARMA v. STATE OF H. P.

2004-12-23

DEEPAK GUPTA, LOKESHWAR SINGH PANTA

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JUDGMENT Deepak Gupta, J.:- This writ petition under Articles 226/227 of the Constitution of India is directed against the Order of the learned H.P. State Administrative Tribunal (hereinafter referred to as the Tribunal) dated 27.12.1999, whereby the Original Application No. 161/1989 of the petitioner was dismissed as being barred by limitation under Section 21 of the Administrative Tribunal Act (hereinafter referred to as the Act). 2. The petitioner was employed with respondents 1 and 2. He is aggrieved against the promotion of respondent No. 3. The petitioner claimed that he was senior to respondent No. 3 and had wrongly been overlooked. He had filed an appeal, which was rejected by the respondent on 16.11.1988. The O.A. was filed on 6th May, 1989. Respondents 1 and 2 in the reply took up the plea that application is barred under Section 20 of the Act since the petitioner had an alternative remedy and not availed the remedy of appeal available to him under the CCS (CCA) Rules. According to the State the applicant had filed a representation against the order of the Director, Land Records dated 7.4.1983 promoting the respondent No. 3 to the Director of Land Records with copy of the Chief Secretary, Government of Himachal Pradesh and Financial Commissioner to the Government of Himachal Pradesh. Admittedly the appellate authority was the Financial Commissioner, Himachal Pradesh. The representation of the petitioner was rejected on 16.11.1988. 3. According to the respondents the petitioner had not filed an appeal to the appellate authority i.e. the Financial Commissioner and therefore the rejection dated 16.11.1988. will not extend the limitation and this is not the final order passed. We are unable to appreciate this argument. The Tribunal has totally lost sight of the fact that the petitioner had sent his representation to the Director, Land Records with copy of the Financial Commissioner who was admittedly the appellate authority. From the perusal of the record we also find that the Director, Land Records has been sending some comments on this representation to the Under Secretary (Personnel) to the Government of Himachal Pradesh. The appeal of the petitioner has not been rejected on the ground that the same has not been moved to the appropriate authority. The appeal was filed well within limitation. 4. This Court has held in Mohinder Singh Malhi v. The Commissioner Municipal Corporation and another. The appeal of the petitioner has not been rejected on the ground that the same has not been moved to the appropriate authority. The appeal was filed well within limitation. 4. This Court has held in Mohinder Singh Malhi v. The Commissioner Municipal Corporation and another. Latest HLJ 2001 (HP.) 439 as follows : "8. In this connection, it may be profitable to refer to Section 21 of the Act, which provides limitation. It enacts that the Tribunal shall not admit an application in a case where a final order as mentioned under sub-section (2)(a) of Section 20 has been made in connection with the grievance of the applicant. Subsection (2)(a) of Section 20 states that for the purposes of subsection (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 when the final order is made rejecting an appeal on representation. Clause (a) of Section 21(1) provides that 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 an application can be made within one year from the date of such final order. 9. In the instant case, the grievance of the petitioner before the State Government was the action taken by the 1st respondent. Therefore, even if it is assumed that there was no appeal and what was submitted was merely a representation to the Government, then also, the case was covered by sub-section 1 (2)(a) of Section 20 of the Act and it was open to the petitioner to invoke Section 21(1) of the Act and Section 21(2) has no application. And as the final order was passed in January, 1990 and the petition was filed in August, 1990, it was within time." 5. Mrs. Ranjana Parmar, learned Counsel appearing on behalf of respondent No. 3 urged that even though the State has passed an order on 16.11.1988, under Section 21(2) of the Act, the grievance in respect of which the application was made had arisen by reason of an order dated 31.1.1983. This order was more than 3 years prior to the date when the Act was came in force in Himachal Pradesh (i.e. 1.9.1986). This order was more than 3 years prior to the date when the Act was came in force in Himachal Pradesh (i.e. 1.9.1986). It is argued that an order on an appeal or representation against such order made earlier would not extend limitation in view of Section 21 (2) of the Act, which reads as follows :- "21. Limitation : (1) .................. (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 proceeding 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 preferred 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." 6. We are unable to accept this argument. A combined reading of the provisions of Sections 20 end 21 of the Act can only lead to one conclusion; that it is only the date of final grievance from which the limitation will start to run otherwise it would lead to a highly anomalous and absurd situation. Supposing an order of termination was passed on 20th September, 1983 and a statutory appeal was filed against the said order and the statutory appeal is rejected on 28th February, 1987. In case the submission of the respondents is accepted the aggrieved person should file the O.A. by 28th February, 1987 and limitation will not start from the date of passing of the appellate order. This cannot be the intention of the legislature. 7. Section 20 of the Act also provides that in cases where there is an alternative remedy available the Tribunal shall not ordinarily admit an application. A harmonious construction of Sections 20 and 21 of the Act can lead to only one conclusion of Sections 20 and 21 of the Act can lead to only one conclusion that the word grievance in Section 21(2) of the act has to relate to the final order being passed. A harmonious construction of Sections 20 and 21 of the Act can lead to only one conclusion of Sections 20 and 21 of the Act can lead to only one conclusion that the word grievance in Section 21(2) of the act has to relate to the final order being passed. Since in the present case final order was passed on 16.11.1988 and the O.A. was filed within one year thereafter the same is within limitation. 8. In this case there is another ground to support our view. The State has taken the plea that the petition is pre-mature whereas it also argues that it is time barred. Obviously a petition cannot be a premature and time barred at the same time. The interest of justice demands that the case will be decided on its own merits and the petitioner should not be thrown out on the technical plea of limitation. 9. In view of the above discussion, the writ petition is allowed. The order of the Tribunal dated 27.12.1999 passed in O.A. No. 161 of 1989 is set-aside and the case is sent back to the Tribunal to decide the same on merits. Since the O.A. was filed in 1989 the Tribunal is requested to dispose of the matter at the earliest. No order as to costs.