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Himachal Pradesh High Court · body

2005 DIGILAW 432 (HP)

MOHINDER SINGH v. STATE OF H. P.

2005-11-22

M.R.VERMA, S.S.NEGI

body2005
ORDER M.R. Verma, J. (Retd.) Chairman - In this original application the applicant has prayed for setting aside and quashing Annexures P-1/, P/2, P/3 i.e. communications dated October 7, 1995 and August 12, 1996 intimating the fate of representations of the applicant against the final seniority list and final seniority list respectively. 2. In the reply the respondents inter alia raised the ground of defence that this original application is time barred, therefore, is liable to be dismissed. 3. We have heard the learned Counsel for the parties on the preliminary objection regarding limitation and have also gone through the record. 4. It is by now well settled that the Administrative Tribunals Act, 1985 (hereinafter referred to as the Act) is a self contained statute, Section 21 whereof provides the period of limitation for filing an application against the final orders. 5. In Ms. Savitri Chauhan v. State of HP. and others, OA No. 1747/1995 decided on November 17, 2005 : 2005 (Suppl.) Cur L.J. (HP.) 311 while dealing with the provisions of Section 21 of the Act, this Tribunal held as under :- "it is clear from the above provisions that an original application has to be filed by the aggrieved employee within one year of the passing of the final order within the meaning of Section 20 of the Act. In case any order is appealable or a representation lies against such order the time would run against the employee from the date on which such appeal or representation had been finally disposed of and in case no final orders are passed on such appeal or representation within six months, the employee can prefer an application under Section 19 of the Act, within one year from the expiry of six months from the date of filing of the appeal or the representation. Such application can be admitted by the Tribunal after expiry of the aforesaid prescribed period only if the applicant satisfies the Tribunal that he had sufficient cause for not making the application within such period." 6. The above view is based on the ratio in Secretary to Govt. of India and others v. Shivram Mahadu Gaikwad, 1995 Suppl.(3) SCC 231 and Ramesh Chand Sharma v. Udham Singh Kamal and others, 1999(8) SCC 304. 7. The above view is based on the ratio in Secretary to Govt. of India and others v. Shivram Mahadu Gaikwad, 1995 Suppl.(3) SCC 231 and Ramesh Chand Sharma v. Udham Singh Kamal and others, 1999(8) SCC 304. 7. It is not in dispute that final seniority list is prepared after circulation of tentative seniority list on which objections are called for from the concerned employees. Thus the employee aggrieved by his placement in the tentative seniority list has an occasion to file objection/representation qua his placement. Final seniority list is circulated only after such objections/representations are disposed of, though after the finalisation of seniority list objections/representations qua fixing of seniority except regarding clerical error/factual position are not entertained but nevertheless departments are prone to entertain objections/representations about fixing of seniority even after the finalisation of seniority list. If such representations are considered by the authorities on merits and decided, the date of taking such decision may give a cause of action to the concerned employee to approach the Tribunal within the time as prescribed by the statute. I however, if such an employee has not made any representation against the final seniority list the case of action accrues to him on the day when the seniority list is circulated. It may also be pointed out that any representation filed by an employee after allowing the ordinary period of limitation to expire even if considered on merits will not give a fresh period of limitation to the employee. 8. In the case in hand the final seniority list under challenge was circulated on September 5, 1994. It appears from the records that the applicant made a representation against this seniority list vide Annexure P/6 dated May 27, 1995. However, such representation was rejected and the result communicated to the applicant vide Annexure P/1 on October 7, 1995. Therefore, the cause of action had accrued to the applicant to file original application on October 7, 1995 whereas the present original application had been filed on May 5, 1997 i.e. after more than a year of the intimation about the rejection of the representation against the impugned seniority list. 9. It may be pointed out that vide para 5 of the application regarding limitation the only averment made is that the application is within limitation. 9. It may be pointed out that vide para 5 of the application regarding limitation the only averment made is that the application is within limitation. Neither any reason has been assigned as to how the present original application is within the prescribed period of limitation nor any ground has been made out or condonation of delay in filing the application. By virtue of the provisions of sub-Section (3) of Section 21 the applicant could have applied for condonation of delay by showing a sufficient cause for not filing the application within the period of limitation which he has not done. Thus no case has made out even for condonation the delay in filing the original application. 10. It was submitted for the applicant that this original application has already been admitted and could be so admitted only if it was treated within a period of limitation as provided under Section 21 of the Act. 11. No doubt, as per provisions of Section 21 of the Act, the Tribunal is debarred from admitting an application which is not filed within the prescribed period of limitation. Nonetheless there is no bar for raising the question of limitation even after admission of the application. Bar of limitation does not always appear patently but only after hearing the facts, one can know whether there was a question of limitation or whether the claim is barred by limitation. It cannot therefore be said that by merely admitting an application for hearing the question regarding limitation stood finally disposed of and cannot be reagitated at the final hearing. 12. For the reasons stated therein above, this original application is time barred and merits dismissal on this ground alone. As a result, this original application is dismissed.