1 wp-9424-10 pdp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 9424 OF 2010 Shri Akaram Krishna Patil .. Petitioner Vs. State of Maharashtra and ors. .. Respondents Mr. Chetan G. Patil for petitioner. Mr. Samir Patil, AGP for respondent nos.1 to 3. CORAM: B. H. MARLAPALLE & U. D. SALVI, JJ. DECEMBER 14, 2010. P.C. 1. Heard Mr. Chetan Patil, the learned counsel for the petitioner. 2. Rule. 3. Mr. Patil, the learned AGP, waives service for respondent nos. 1 to 3. 2 wp-9424-10 4. The learned counsel for the petitioner has also brought to our notice that the learned Presenting Officer had appeared for all the respondents before the Tribunal when the impugned order was passed. Petition is taken up for final hearing forthwith by the consent of the parties and in any case, if the petitioner succeeds before us, his claim before the Tribunal in O.A. No. 399 of 2010 will have to be adjudicated upon by the Tribunal after hearing all the parties concerned. 5. In O.A. No. 399 of 2010 filed by the petitioner, he had filed Misc. Application No.312 of 2010 for condonation of delay and by the impugned order, the said application has been rejected by the Tribunal. The Tribunal held that the petitioner had received reply dated 28/9/2007 rejecting his application and thereafter any number of applications he had submitted and replies received thereon would not extend the period of limitation, as has been set out under Section 21 of the Administrative Tribunals Act, 1985. The delay will have to be counted with reference to the reply dated 28/9/2007 and if so counted, the O.A. was filed after more than two and half years and thus the application was beyond time by at least one and half years. The justification given by the petitioner in 3 wp-9424-10 support of his prayer for condonation of delay did not impress the Tribunal and it referred to the decision of the Supreme Court in the case of Union of India vs. M. K. Sarkar [(2010) 2 SCC 59] as well as the earlier decisions rendered by the same court. The Tribunal observed that while calculating the period of limitation it would be necessary to take into consideration, the date when the cause of action arose for the first time and the reiteration of earlier decisions does not give a fresh cause of limitation, a well settled position in law. For all these reasons the application for condonation of delay was rejected even after the Tribunal noted that the last reply, petitioner had received, was on 28/1/2010. 6. Thus, the only question we are required to decide in this petition is whether the petitioner had made a case of good and sufficient reasons to condone the delay, if any. 7. The petitioner had approached the Tribunal in the first round by filing O.A. No. 1014 of 2003 and it was allowed on 22/7/2004 in terms of the following order:- “The Original Application is hereby allowed. The Respondents 4 wp-9424-10 are hereby directed to consider assignment of deemed date to the applicant from 13.8.1991 by holding a review D.P.C. He be assigned such deemed date which the review D.P.C. may consider to be just and proper. The Misc. Application is also allowed with no order as to costs. There is no order of cost of Original Application.” 8. On 28/9/2007 the petitioner received a reply from the respondent nos.1 to 4 that his prayer for assignment of deemed date of promotion on 13/8/1991 could not be granted and this reply was despite the order passed by the Tribunal on 22/7/2004. The petitioner, therefore, submitted another representation dated 19/12/2007 inviting the attention of the authorities to the earlier order passed by the Tribunal. On 21/4/2008, the Section Officer from the Department of Irrigation addressed a letter to the Superintending Engineer, Koyana Construction Division, Satara calling for the service details of the petitioner as well as the names of his juniors who had superseded him. His ACRs for five years prior to 1988 were also called for and finally his case was rejected as per the communication dated 19/12/2009 received on 28/1/2010. The said reply reads as under, after referring to the letter dated 25/11/2009 submitted by the office of the 5 wp-9424-10 Superintending Engineer:- “mijksDr lanfHZk; i=kl vuql:u dGfo.;kr ;srs dh] Jh- vk-d`-ikVhy ;kauk fnukad 13@8@1991 gk Jh-iz-;-ikV.kdj ;kapk inksUurhpk ekuho fnukad ns.;kckcrpk izLrko ‘kklukus lanfHkZ; i=kUo;s vekU; dsyk vkgs- rjh lacaf/krkauk rls dGokos.” 9. We have gone through the reply dated 28/9/2007 and if the same is read with the reply received on 28/1/2010, it is clear that the directions given by the Tribunal in O.A. No. 1014 of 2003 were not complied with. The Tribunal had directed the respondents to consider assignment of deemed date of seniority to the applicant from 13/8/1991 by holding a review D.P.C. and take further steps as per the recommendations made by the D.P.C. In none of these communications, it is the case of the respondents that a review D.P.C. was constituted, it held its proceedings and rejected the case of the applicant. In our opinion, this is a significant lapse on the part of the respondents and to say the least, it may be contemptuous as well. The directions given by the Tribunal in the earlier round were not complied with and the petitioner was forced to approach the Tribunal in the second round by filing the above referred O.A. along 6 wp-9424-10 with an application for condonation of delay on or about 30/4/2010. These material aspects have not been taken into consideration by the Tribunal while rejecting the application for condonation of delay. It is necessary to note that the applicant was diligent and was following up with the respondents-authorities to comply with the order passed by the Tribunal on 22/7/2004 and a stereotype reply was being given to him. In the peculiar facts of this case, it would not be permissible to take a hyper-technical view and held that the subsequent representations made by the applicant would not extend the period of limitation. We have no doubt that the impugned order has resulted in miscarriage of justice. It would be necessary for the Tribunal to decide the O.A. submitted by the petitioner on merits and more particularly on the basis of its earlier directions issued on 22/7/2004 in O.A. No. 1014 of 2003. The applicant has made out good and sufficient reasons to condone the delay and the impugned order calls for interference in this petition. 10. Hence, the petition succeeds and the same is hereby allowed. The impugned order is quashed and set aside and Misc. Application No. 312 of 2010 stands allowed. The delay is condoned. O.A. No. 399 of 2010 stands restored so that it is decided on its own merits by the Tribunal. 7 wp-9424-10 11. Rule is made absolute accordingly with no order as to costs. (U.D. SALVI, J.) (B. H. MARLAPALLE, J.)