1 W.P. 3253.2010 - ( J ) IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 3253 OF 2010 Vishnupant Laxmanrao Bhayekar Age : 70 yrs., Occ. Pensioner, R/o : Kesapur Camp, Majalgaon, Tq. Majalgaon, Dist. Beed. .... PETITIONERS V E R S U S 1. The State of Maharashtra Through the Secretary, Irrigation Department, Mantralaya, Mumbai – 32. 2. The Superintending Engineer Quality Control, Pune Circle, Yeravada Road, Pune. 3. The Superintending Engineer Zonal Office, Aurangabad region, Behind Old High Court, Aurangabad. .... RESPONDENTS ---------------------------------------------------------------------------------------------------------------- Mr. S.M.Godsay, Advocate for the petitioner. Mr. N.B.Khandare, Govt. Pleader for State. ----------------------------------------------------------------------------------------------------------------- CORAM : NARESH H. PATIL & S.V. GANGAPURWALA, JJ. DATE : 10 /01/2011 2 W.P. 3253.2010 - ( J ) JUDGMENT : [ PER - S.V. GANGAPURWALA, J. ] 1. The petitioner being aggrieved by the fact that he was not being considered for promotion filed Original Application No. 305 of 1995 before the Aurangabad Bench of the Maharashtra Administrative Tribunal [ For short, ‘ the Tribunal ’ ] . The said Original Application was admitted on 17/7/1995. The same was listed for hearing on 11/11/2003. On the said date, as nobody appeared on behalf of the petitioner, the said Original Application came to be dismissed for default. The petitioner thereafter filed Misc. Application No. 513 of 2003. Vide Order dated 13/4/2004, the order of dismissal dated 11/11/2003 was called back and the Original Application No. 305 of 1995 was restored to its original position. Thereafter the said Original Application was listed for hearing on 11/11/2005. None appeared for the petitioner on the said date. However, no order was passed on the Original Application, but on the board i.e. the cause list, the order of ‘ DID’ was mentioned. The petitioner on the belief that the said Original Application is again dismissed for default, filed Misc. Application NO. 211 of 2006 for restoration. The Tribunal rejected the said application vide Order dated 28/11/2007 on the ground that the Original Application was dismissed on 11/11/2003 and the restoration application is filed after three ( 3 ) years. Being aggrieved by the said order, the petitioner has filed the present Writ Petition. 2. Mr. Godsay, learned counsel for the petitioner submits that in fact the order dated 11/11/2003 was called back and the Original Application was restored vide order dated 13/4/2004. This fact has not been considered by the 3 W.P. 3253.2010 - ( J ) Tribunal. In fact, after the Original Application was restored vide order dated 13/4/2004, the Original Application was not dismissed for default, but as on the board the clerk had written as ‘ DID ’, the petitioner was mis-lead and as such has filed the restoration application, though in fact it was not necessary. The learned counsel submits that the invaluable rights of the applicants with regard to his promotion are involved in the Original Application and the petitioner deserves to be given an opportunity to prosecute the said Original Application. 3. The learned Govt. Pleader appearing for the respondent no. 1 submitted that the proceeding show that the petitioner was not diligent and the Courts can not come to the aid of the litigant who is not diligent. On going through the record, the learned Govt. Pleader conceded that after the Original Application was restored to its original position, the same was not dismissed for default. No such order appears on record. 4. With the assistance of the learned counsel, we have gone through the order impugned in the present petition and also the record. 5. It is a matter of record that on 13/4/2004, the Original Application was restored to its original position and the record of the Original Application does not show that thereafter it was dismissed for default. As such, filing of Misc. Application No. 211 of 2006 for restoration believing that the Original Application was dismissed for default on 11/11/2005 was unwarranted and inconsequential. The Tribunal while passing the impugned order did not notice that the Original 4 W.P. 3253.2010 - ( J ) Application was restored on 13/4/2004 and the order of dismissal dated 11/11/2003 was called back. The Tribunal under the belief that the Original Application was dismissed on 11/11/2003 and the application for restoration is filed after three ( 3 ) years, had rejected the said application. The same is against the record. The order dated 11/11/2003 was called back vide order dated 13/4/2004. 6. In view of the above conspectus, it is clear that after the Original Application was restored to its original position vide order dated 13/4/2004, it was never dismissed for default. In light of the same, the impugned order deserves to be quashed and set aside. The Original Application No. 305 of 1995 will be deemed to be pending and the Tribunal shall decide the Original Application No. 305 of 1995 on its own merits. 7. Rule is accordingly made absolute in terms of prayer clause ‘ B ’ and ‘ C ’, however with no order as to costs. [S.V. GANGAPURWALA, J.] [NARESH H. PATIL,J.] knp/WP 3253.2010