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2006 DIGILAW 911 (MP)

D. P. Sahu v. State of M. P.

2006-07-27

R.K.GUPTA

body2006
Judgment ( 1. ) PETITIONER by way of filing this petition has challenged the order dated 3rd February, 1998, which is Annexure A-l to the petition. By this order, the petitioners representation dated 3-11-1993 against his supersession has been rejected by the Additional Commissioner, Jabalpur Division, Jabalpur. Petitioner thereafter submitted a second appeal, which is Annexure A-5 to the petition, dated 12-3-1998. ( 2. ) THE case initially was filed before the Tribunal and the Tribunal by its order dated 21-6-2000 issued notice against the admission as a question of limitation was also involved in the case. ( 3. ) A preliminary objection has been raised on behalf of the respondents that present application before the Tribunal was barred by limitation in view of the Section 21 (1) of the Administrative Tribunals Act, 1985. It is also contended that the present application suffers with delay and laches. ( 4. ) THE facts leading to the present case, as submitted by the petitioner, are that he was superseded by his junior on the post of Election Supervisor in the pay scale of Rs. 4500-7000, therefore, the petitioner has chosen to claim the promotion prior to 7-9-1993 so that he could be placed on the post of Election Supervisor above to the respondent No. 4. ( 5. ) ON the basis of the aforesaid facts it is seen that the petitioner submitted a representation on 3-11-1993. The same was decided by the authority on 3rd February, 1998, which is Annexure A-l to the petition. Petitioner in the petition has submitted that after the decision dated 3rd February, 1998, a second appeal was preferred by him on 12-3-1998, which is Annexure A-5 to the petition. Since the authority did not decide the second appeal, therefore, a reminder was given on 6-7-1998, which is Annexure A-6 and second reminder was given on 14-9-1999, which is Annexure A-7 to the petition. ( 6. ) ACCORDING to the learned Counsel for the petitioner since the petitioner submitted a second appeal on 12-3-1998, which is Annexure A-5, therefore, he was waiting for the communication of the decision on the said second appeal submitted by him. Therefore, the present case does not suffer with the limitation or delay and laches. ( 7. ) LEARNED Counsel for the respondents submitted that against the supersession no statutory appeal is provided. Therefore, the present case does not suffer with the limitation or delay and laches. ( 7. ) LEARNED Counsel for the respondents submitted that against the supersession no statutory appeal is provided. It is only a representation which is maintainable, which was submitted by the petitioner on 3-11-1993 and which ultimately was rejected on 3rd February, 1998. Thus, on this basis, it is contended that after when the first representation was rejected, then the petitioner ought to have filed a case before the Tribunal. The second appeal is also not permissible under any statutory rules so that the petitioner legitimately could have waited for a decision on the second appeal as submitted by him. According to the learned Counsel for the respondents this is again a representation after when the earlier representation was already rejected. ( 8. ) THE aforesaid submissions of the parties are considered. Section 21 (1) of the Administrative Tribunals Act, 1985 provides that with regard to a grievance against which a representation has been submitted, if no final order is passed, then after the expiry of period of six months from the date such representation was submitted, i. e. , 3-11-1993 petitioner ought to have filed an application in the Tribunal. The said submission was replied by the learned Counsel for the petitioner and he submitted that a final order on the petitioners representation was passed on 3rd February, 1998, which is Annexure A-l to the petition, therefore, petitioner submitted a second appeal, thus, the period of limitation has to be counted not from 3rd February, 1998 but has to be counted from the date when the petitioner submitted the second representation which is termed by the petitioner to be a second appeal dated 12-3-1998. ( 9. ) IN the present case, keeping in view the Section 21 of the Administrative Tribunals Act, 1985, if the second appeal dated 12-3-1998 is treated to be a second representation and when no final order by the said authority has been passed, then after the expiry of the period of six months from 12-3-1998 petitioner should have preferred a petition before the Tribunal but the first reminder to the so-called second appeal was given on 6-7-1998 and the second reminder was given on 14-9-1999 and the application before the Tribunal was submitted on 18-6-2000. Assuming that the submission of the learned Counsel for the petitioner is correct, then the petitioner ought to have preferred the case before the Tribunal on expiry of six months from 12-3-1998. In the present case, no final order on the so-called second appeal was passed by the respondents, therefore, the application ought to have been preferred after the expiry of six months from 12-3-1998. Apparently the application filed before the Tribunal on 18-6-2000 is barred by limitation. ( 10. ) APART from the aforesaid, it may also be seen that after when this case has been transferred to this Court after the abolition of State Administrative Tribunal, question with regard to delay and laches shall also to be decided. In the present case, the application as such also suffers with delay and laches. Petitioner was superseded as his junior was given promotion to the post of Election Supervisor with effect from 7-9-1993. The representation was rejected on 3rd February, 1998. Petitioner ought to have preferred a petition before the Tribunal within a period of one year or immediately after 3rd February, 1998. There is no provision for filing of the second appeal as no appeal against the supersession is maintainable. ( 11. ) IT may be seen that the Apex Court in P. S. Sadasivaswamy v. State of Tamil Nadu AIR1974 SC 2271 , [1974 (29 )FLR433 ], 1974 Lablc1431 , (1975 )1 SCC152 , [1975 ]2 SCR356 , 1974 (6 )UJ654 (SC ), has laid down the following principle : A person aggrieved by an order of promoting a junior over his head should approach the Court at least within six months or at the most a year of such promotion has not that there is any period of limitation for the Courts to exercise their powers under Article 226 nor is it that there can never be a case where the Court cannot interfere in a matter after the passage of a certain length of time. But it would be a sound and wise exercise of discretion for the Courts to refuse to exercise their extra-ordinary powers under Article 226 in the case of persons who do not approach it expedi-tiously for relief and who stand by and allow things to happen and then approach the Court to put forward stale claims and try to unsettle settled matters. ( 12. ( 12. ) APART from the aforesaid, it may also be seen that continuous making of representation and not filing a case whether such an act of an incumbent would be away from the consideration of delay and laches. In the present case, the authority decided the representation by passing the order Annexure A-l. dated 3rd February, 1998. No appeal is provided against the order of supersession against any statutory rules yet the authority passing the order Annexure A-l dated 3rd February, 1998 has given the reasons in detail to reject the petitioners representation. The petitioner with a view to consume the time did file a second representation against the supersession and that too when the Apex Court has already held that persons aggrieved by an order promoting a junior over his head should approach the Court at least within six months or at the most within a year of such promotion. In the present case, against the supersession of the petitioner which was effected on 7-9-1993 an application was filed before the Tribunal after nearly more than 7 years. Such a belated application or submission of grievance for its redressal shall have the effect of unsettling the settled claim for promotion and seniority and such settled claim for promotion cannot be unsettled at the behest of an incumbent who had been slow over his right and has not approached the proper forum to challenge the supersession within a reasonable time. In the present case, after when the petitioners representation was rejected on 3rd February, 1998, then immediately he should have filed a case before the Tribunal but he has not chosen to file a case immediately. ( 13. ) KEEPING in view the aforesaid facts and circumstances, the application filed before the Tribunal not only suffers with delay and laches but is also held to be barred by limitation in view of Section 21 (1) of the Administrative Tribunals Act, 1985. ( 14. ) LEARNED Counsel for the petitioner relied upon the judgment passed by the Apex Court in AIR1986 SC 1636 , 1986 Lablc1105 , (1986 )I LLJ7 SC , 1986 (1 )SCALE1262 , (1986 )3 SCC325 , 1986 (2 )UJ387 (SC ) (Sushil Kumar Yadunath Jha v. Union of India and Anr. ). The facts of the aforesaid case were different. ) LEARNED Counsel for the petitioner relied upon the judgment passed by the Apex Court in AIR1986 SC 1636 , 1986 Lablc1105 , (1986 )I LLJ7 SC , 1986 (1 )SCALE1262 , (1986 )3 SCC325 , 1986 (2 )UJ387 (SC ) (Sushil Kumar Yadunath Jha v. Union of India and Anr. ). The facts of the aforesaid case were different. In the said case, the appellant before the Apex Court was challenging the break in service and its condonation. The aforesaid case was not a case of supersession. The aforesaid case shall have no application in the present case. Another judgment which has been relied upon by the learned Counsel for the petitioner is (1995) 6 SCC 614 (Nand Kishore v. State of Punjab ). The aforesaid case is also of no help to the petitioner. In the aforesaid case, the Apex Court was considering the jurisdiction under Article 136 of the Constitution of India wherein there had been some delay in filing the special leave petition before the Apex Court. In the aforesaid case, earlier the petitioner filed a petition challenging the compulsory retirement and did not challenge the enabling provisions. The petition was dismissed. Subsequently a decision was passed in favour of the retiree by the Apex Court and the retiree filed a suit for declaring the order of his compulsory retirement invalid on account of being passed under an invalid provision. Therefore, the Apex Court in the said case condoned the delay to entertain the special leave petition. In the present case, the facts are entirely different. Therefore, the said judgment is also not of any help to the petitioner. ( 15. ) LEARNED Counsel for the petitioner further relied upon 2005 (2 ) AWC1012 (SC ), 2005 (1 )BLJR821 , (SCSuppl )2005 (2 )CHN195 , 2005 (2 ) CTC232 , [2005 (3 )JCR14 (SC )], JT2005 (3 )SC 161 , (2005 )141 PLR668 , (2005 )4 SCC117 , 2005 (1 )UJ535 (SC ) (K. Venkatachala Bhat and Anr. v. Krishna Nayak (D) By L. Rs. and Ors. ). The facts of the aforesaid case are also entirely different. It was the case concerning the delay in filing the writ appeal where the question arose about the condonation of delay. v. Krishna Nayak (D) By L. Rs. and Ors. ). The facts of the aforesaid case are also entirely different. It was the case concerning the delay in filing the writ appeal where the question arose about the condonation of delay. It was found that when a writ petition was disposed of by the Single Judge in an indefensible manner then the Division Bench should have condone the delay even if it was substantial having regard to the reasons indicated for the delay. It was found by the Apex Court that judgment passed by the Single Judge was erroneous, therefore, delay in the said case was liable to be condoned by the Division Bench while exercising the powers of writ appeal. In the present case, all such questions are not involved. In the present case, the representation against the supersession dated 3-11-1993 by the petitioner was already rejected on 3rd February, 1998. It was only a representation though the petitioner and the authority passing the said order Annexure A-1 have treated it to be an appeal. It was not a statutory appeal but has to be treated only a representation. Against the rejection of such representation, no second appeal is maintainable. Thus, at the behest of the petitioner, the claim with regard to supersession of the petitioner in the year 1993 cannot be disturbed by filing an application before the Tribunal after nearly more than seven years. ( 16. ) IN view of the aforesaid, the present petition not only suffers with delay and laches but also is barred by limitation which was initially filed before the Tribunal. Accordingly, the petition is dismissed.