CASE NO.: Appeal (civil) 3119 of 1997 PETITIONER: RAMESH CHAND SHARMA ETC. RESPONDENT: UDHAM SINGH KAMAL AND ORS. DATE OF JUDGMENT: 12/10/1999 BENCH: S.P. KURDUKAR & R.P. SETHI JUDGMENT:
JUDGMENT
1999 Supp(3) SCR 613
The Judgment of the Court was delivered by
S.P. KURDUKAR, J. These two civil appeals can be conveniently disposed of
by this common judgment since they are filed against the common order dated
6th August, 1996 passed by the Himachal Pradesh Administrative Tribunal
(for short `the Tribunal’) in O.A. No. 631 of 1994. Civil Appeal No. 3119
of 1997 is filed by Ramesh Chand Sharma who has been promoted to the
selection post as Assistant Legislative Draftsman (Hindi) class II
(gazetted) on being recommended by the Departmental promotion Committee.
Civil Appeal No. 3120 of 1997 is filed by the State of Himachal Pradesh.
2. Feeder cadre to the selection post is Translator-cum-Legal Assis-tant.
Under the relevant rules called “Recruitment and Promotion Rules” framed by
the Government of Himachal Pradesh prescribed the condition precedent of at
least three years experience in a feeder cadre i.e. Trans-lator-cum-
Legislative Assistant or Proof Reader. The Government of Himachal Pradesh
accepted the recommendation of the DPC and promoted Ramesh Chand Sharma,
the appellant as Assistant Legislative Draftsman (Hindi) class-II
(Gazetted). Although, he was junior to respondent No. 1- Udham Singh Kamal
in service under the following circumstances :
It is unnecessary to set out various contentions raised in these appeals
since the main question raised before us relates to limitation provided
under Section 21 of the Administrative Tribunal Act, 1985. The first
respondent filed O.A. in the Tribunal after expiry of three years
challenging the order of promotion of Ramesh Chand Sharma issued by the
Government of Himachal Pradesh on 22nd April, 1991. Suffice it to state
that first respondent Udham Singh Kamal was serving in the Air Force and
after his retirement from the said service, he came to be appointed as
Translator-cum-Legal Assistant in October, 1989 and joined on 5th of
October, 1989. It is common premise that his past service in the Air Force
was reckoned and accordingly he was placed senior to appellant Ramesh Chand
Sharma. A vacancy arose in the promotional post (Assistant Legislative
Draftsman (Hindi) class-II (Gazetted)]. This vacancy was reserved for
scheduled tribe but as a candidate from that category was not available it
was declared a general vacancy. Admittedly, Udham Singh Kamal on the date
of vacancy had not put in three years experience in the feeder cadre
Translator-cum-Legislative Assistant or Proof Reader. This condition was
prescribed under the rules framed by Himachal Pradesh Government in
exercise of powers under Article 309 of the Constitution of India. The DPC
which held its meeting on 16th February, 1991 on perusal of the service
record of Ramesh Chand Sharma and Udham Singh Kamal found that the later
did not fulfil the condition of three years experience in the feeder cadre
and, therefore, vide its letter dated 22nd April, 1991 selected and
recommended Ramesh Chand Sharma for being appointed as Assistant
Legislative Draftsman (Hindi) class II (Gazetted).
3. The first respondent Udham Singh Kamal on 1st May, 1991 submitted his
representation to the Deputy Secretary (SAD) to the Government of Himachal
Pradesh which came to be rejected on 2nd July, 1991 by the government on
the ground that since he did not possess three years experience, he is not
eligible. In the mean time, vide notification dated April 22, 1991 issued
by the Government of Himachal Pradesh (Department of Personnel), Ramesh
Chand Sharma was appointed as an Assistant Legislative Draftsman (Hindi)
class-II (Gazetted) in the Himachal Pradesh Secretariat.
4. The respondent No. 1 Udham Singh Kamal on 2nd June, 1994 filed Original
Application (O.A.) before the Himachal Pradesh Administrative Tribunal.
This O.A. was admittedly beyond the prescribed period of limitation of
three years as provided under Section 21 of the Administrative Tribunals
Act, 1985. As regards the limitation in paragraph 5, the first respondent
has stated as under :
“The applicant further declares that the application is within the
limitation prescribed in Section 21 of the Administrative Tribunals Act,
1985.”
This averment clearly indicates that the first respondent was all along
asserting that he had filed O.A. within limitation but it was not so. The
appellants in both these appeals have raised a contention that the O.A. was
beyond three years and, therefore, the same was barred by limitation under
Section 21 of the Administrative Tribunals Act, 1985. Despite this
objection raised by the appellants, the first respondent did not file any
application for condonation of delay. Section 21 (3) of the Act gives power
to the Tribunal to condone the delay if sufficient cause is shown.
5. Section 21 reads as under :
“21. Limitation – (1) A tribunal shall not admit an application, :
(a) in a case where a final order such as is mentioned in clause (a) of
sub-section (2) of Section 20 has been made in connection with the
grievance unless the application is made, within one year from the date on
which such final order has been made;
(b) in a case where an appeal or representation such as is mentioned in
clause (b) of sub-section (2) of Section 20 has been made and a period of
six months had expired thereafter without such final order having been
made, within one year from the date of expiry of the said period of six
months.
(2) xxxx xxxx xxxx xxxx (3) Notwithstanding anything contained in sub-section (1) or subsection
(2), an application may be admitted after the period of one year specified
in clause (a) or clause (b) of sub-section (1) or, as the case may be, the
period of six months specified in sub-section (2), if the applicant
satisfies the Tribunal, that he had sufficient cause for not making the
application within such period.”
Relying upon the aforesaid provisions, it was contended on behalf of the
appellants that the O.A. filed by the first respondent Udham Singh Kamal
was barred by limitation. No application for condonation of delay was
filed. In the absence of any application under sub-Section (3) of Section
21 praying for condonation of delay, the Tribunal had no jurisdiction to
admit and dispose of O.A. on merits. It was, therefore, contended that the
Tribunal has totally overlooked the statutory provision contained in
Section 21 of the Act and, therefore, impugned order be set aside.
6. Learned Counsel for the first respondent urged that after his
representation was rejected by the Himachal Pradesh Government on 2nd July,
1991. he had made another representation pointing out the factual position
and, therefore, the period of limitation needs to be counted not from 2nd
July, 1991 but from the date of rejection of his second representation (no
date mentioned). He also urged that the vacancy arose because one Shri Sita
Ram Dholeta who was holding the post and working as Translator-cum- Legal
Assistant went on deputation in March, 1990 by keeping a Hen on the said
post. This respondent was under a bonafide belief that until the lien comes
to an end, there may not be a clear vacancy and, therefore, as and when
such vacancy arises, his claim would be considered. It is in these
circumstances, he did not file O.A. at an early date. If there be any
delay, the same may be condoned.
7. On perusal of the materials on record and after hearing counsel for the
parties, we are of the opinion that the explanation sought to be given
before us cannot be entertained as no foundation thereof was laid before
the Tribunal. It was open to the first respondent to make proper
application under Section 21(3) of the Act for condonation of delay and
having not done so, he cannot be permitted to take up such contention at
this late stage. In our opinion, the O.A. filed before the Tribunal after
the expiry of three years could not have been admitted and disposed of on
merits in view of the statutory provision contained in Section 21(1) of the
Administrative Tribunals Act, 1985. The law in this behalf is now settled,
see Secretary to Government of India and Others v. Shivam Mahadu Gaik-wad,
[1995] Supp. 3 SCC 231.
8. For the reasons stated above, the impugned order passed by the
Administrative Tribunal on August 6, 1996 in O.A. No. 631 of 1994 is set
aside and the said O.A. is dismissed on the ground of limitation. The Civil
Appeal Nos. 3119 of 1997 and 3120 of 1997 are allowed. In the
circumstances, parties are directed to bear their own costs.