1 aswp-6311-6312-11 pdp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 6311 OF 2011 Shri Rushiket Kantilal Shelke .. Petitioner Vs. State of Maharashtra and anr. .. Respondents WITH WRIT PETITION NO. 6312 OF 2011 Shri Vikas Sharad Bhalerao .. Petitioner Vs. State of Maharashtra and anr. .. Respondents Mr. A.A. Kumbhakoni i/by Mr. Sanjay S. Gawde for petitioner in both matters. Ms. S.S. Bhende, AGP for respondent no.4. CORAM: B. H. MARLAPALLE & SMT. NISHITA MHATRE JJ. SEPTEMBER 06, 2011. P.C. 1. Heard Mr. Kumbhakoni with Mr. Gawde, the learned counsel for the petitioners. Ms. Bhende, the learned AGP appears for the State of 2 aswp-6311-6312-11 Maharashtra. 2. The common order passed by the Maharashtra Administrative Tribunal (MAT) on 29/11/2010 has been challenged in these two separate petitions. The Tribunal rejected the applications filed for condonation of delay caused in filing the Original Applications, challenging the issue of seniority for the post of Nayab Tahsildar and, therefore, these petitions are being decided by this common order. 3. The petitioners were originally appointed as Nayab Tahsildars by nomination and they were posted in different divisions. It appears that they applied for transfer to their respective revenue division i.e. the revenue division in which the native place falls. These requests were accepted and they came to be transferred to the revenue division of their origin as per the orders dated 24/1/2009 and 20/6/2008 respectively. In the transfer orders, it was stipulated that in the new revenue division the seniority of the petitioners will be counted after the date of transfer and not from the initial date of their appointments as Nayab Tahsildar. In the transfer orders it was also specified that the issue of seniority will be subject to the outcome in O.A. No. 333 of 2006. The petitioners, therefore, claimed before the 3 aswp-6311-6312-11 Tribunal that there was no immediate cause of action to challenge the issue of seniority as stated in the said transfer orders and they were waiting for the outcome in O.A. No. 333 of 2006. In the meanwhile, O.A. No. 189 of 2008 was decided by the Tribunal on 10/12/2008 and the issue of seniority was decided in favour of the Nayab Tahsildars by the Tribunal. The petitioners were not given the benefit of the said decision and, therefore, they submitted a representation on or about 17/7/2009 to the State Government claiming seniority from the date of initial appointment. The representation remained pending and, therefore, they approached the Tribunal along with an application for condonation of delay. 4. Section 21 of the Administrative Tribunals Act deals with the issue of limitation so as to file an Original Application and the said section 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 4 aswp-6311-6312-11 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) ...... (3) Notwithstanding anything contained in sub-section (1) or sub-section (2), an application may be admitted after a 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.” 5. The Tribunal held that it was obligatory on the part of the petitioners to give satisfactory explanation or to show sufficient cause for failure to approach the Tribunal within a period of limitation which was only one year and the delay beyond one year could be favourably considered if the petitioners had pointed out that there were particular 5 aswp-6311-6312-11 reasons for not filing the application in time and these reasons must be found to be sufficient by the Tribunal. No fault could be found with these reasons. However, in the facts of the present case, in our considered view, the Tribunal erred in rejecting the application for condonation of delay. The petitioners have relied upon the outcome in O.A. No. 189 of 2008 which was decided on 10/12/2008. The subject matter of that application was the issue of seniority in the post of Nayab Tahsildar, but the Tribunal proceeded to observe that the applicants in O.A. No. 189 of 2008 were not informed in their transfer orders that their seniority would be counted not from the date of initial joining but from the date of their reporting in the new revenue division of their choice. Whereas in the case of the present petitioners, the transfer order itself stipulated that they would be denied seniority from the initial date of joining. This distinction, in our opinion, does not have any bearing on the petitioners’ claim for seniority and more so in view of the decision of the Tribunal in O.A. No. 189 of 2008. The petitioners specifically stated that the decision in O.A. No. 189 of 2008 was applicable to them as well and having waited for some time, they submitted a representation to the State of Maharashtra on 17/7/2009. As there was no response from the State Government, they finally approached the Tribunal. 6 aswp-6311-6312-11 6. It is also pertinent to note that the Tribunal’s decision in O.A. No. 189 of 2008 was challenged by the State Government in Writ Petition No. 5059 of 2010 and a Division Bench of this court by its order dated 29/9/2010 rejected the petition. The petitioners failed to place before the Tribunal a copy of the order dated 29/9/2010 passed in Writ Petition No. 5059 of 2010 when the impugned order was passed by the Tribunal. In para 5 of the order dated 29/9/2010, this court stated thus, “5. The Tribunal adverted to the respective submissions and noted that the Divisional Commissioner, Konkan Division had included the applicant’s name in the list of candidates who were required to be considered for promotion and this was done by relying upon Rule 4(2) and Rule 5(2) of the Regulation of Seniority. The said recommendation was changed and the name of the applicant was deleted on the sole ground that on his own request he was transferred to Konkan Division by relying upon the G.R. dated 11th September, 2008 which G.R. was in fact issued after the petitioner was transferred to the Konkan Division. The Tribunal also held that 7 aswp-6311-6312-11 the G.R. dated 11th September, 2008, could not override the Seniority Rules, and the State Government was required to follow the provisions of Rule 4(2) and 5(2) of the said Rules. This view taken by the Tribunal, in our considered opinion, cannot be said to be erroneous so as to call for interference and we are satisfied that the reasoning set out by the Tribunal while allowing the Original Application does not suffer on any count.” 7. We, therefore, hold that the decision in O.A. No. 189 of 2008 gave a fresh cause of action to the petitioners and the said decision has received its finality as per the order passed by this court on 29/9/2010. At the same time, O.A. No. 333 of 2006 came to be disposed as withdrawn on 28/8/2008 and the petitioners not being a party in the same, had no knowledge that the said O.A. was withdrawn. For all these reasons, the petitioners had made out good and sufficient reasons to condone the delay caused in filing the Original Applications. 8. Hence, the petitions succeed and they are hereby allowed. The impugned common order dated 29/11/2010 passed by the Tribunal is 8 aswp-6311-6312-11 hereby quashed and set aside and the applications for condonation of delay stand allowed. (SMT. NISHITA MHATRE J.) (B. H. MARLAPALLE, J.)