1 WP.9185-2009 acd IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 9185 OF 2009 State of Maharashtra & Anr. .. Petitioners. Vs. Vinayak Dnyandeo Kamble .. Respondent. ---- Mr. A.B. Vagyani, for the Petitioner.. Mr. Prakash Wagh, for Respondent.. ---- CORAM: B. H. MARLAPALLE & U. D. SALVI, JJ. DECEMBER 07, 2010. P.C. 1] This Writ Petition filed by the State of Maharashtra through the Commissioner of Police Greater Mumbai under Article 226 of Constitution of India is directed against the order dated 29.06.2009 passed by the Maharashtra Administrative Tribunal, Mumbai (the Tribunal for short) in Original Application No.190 of 2009. Pursuant to the said order dated 29.06.2009, the Tribunal has directed the petitioners to appoint the applicant (present respondent) to the post of “police constable driver” by 2 WP.9185-2009 treating that he has the height of 165 cms. He was directed to be sent for training whenever the next batch would be available. The Tribunal further clarified that his date of joining would be from the date of appointment order to be issued afresh. 2. While granting Rule, interim relief by way of stay to the impugned order was also directed by this court, and therefore, the respondent/applicant approached the Supreme Court in SLP (Civil) No.3977/2010 which came to be disposed of on 10.05.2010 in terms of the following order: “The special leave petition is disposed of with the request to the High Court to dispose of the writ petition by the end of September, 2010. It is clarified that we have expressed no opinion on the merits of the case.” We have therefore heard this Writ Petition on out of turn basis and in deference to the request made by the Supreme Court. 3. Pursuant to the recruitment process initiated by the petitioners for the post of police constable/driver, the applicant has submitted his 3 WP.9185-2009 application and he received a call letter dated 03.12.1996 from petitioner no.1 so as to participate in the selection process for the post of police constable driver. He underwent the physical measurements test, physical ground test, written test, oral test and medical test between 10th to 23rd December, 1996, based on the Identity Card issued to him on 10.12.1996. It appears that, in the physical measurement taken on 10.12.1996, he was found to have the height of 165 cms which was the minimum height prescribed and therefore, he was allowed to undergo the further examinations. However, on 30.12.1996, he was recalled for verification of physical measurements and during that process it was allegedly noticed that his height was not 165 cms., but it was less(i.e.164.5 cms), and he was kept out of selection. He submitted a representation to the Deputy Commissioner of Police, Motor Transport Division, Mumbai and by a communication dated 25/27-01-1997 he was informed by the said Officer that on account of his height being less than the minimum height of 165 cms., his case could not be considered for appointment to the post of police constable driver and therefore, his representation came to be rejected (first rejection). 4 WP.9185-2009 4] According to the applicant, he submitted a representation to the Home Minister on 10.12.1999 who in turn addressed a letter to the Principal Secretary, Home Department on 25.04.2000 recommending his case for relaxation of minimum height requirement. However, on 22.05.2003 the Home Department informed the applicant that his request could not be considered and the same was rejected. This was a second rejection within a period of six years and even then the applicant did not approach the Tribunal and instead he again approached the Minister for Home in December, 2003, so also some letters to various elected representatives like the Member of Legislative Assembly, in the year 2004. He claims that on 03.05.2006 he underwent a physical test at Ankur Nursing Home at Kalyan and the said hospital issued him a certificate stating that his height was 165 cms and based on this medical certificate he submitted a fresh representation to the Director General of Police on 14.06.2006. According to him he was informed by the said Office that his application was sent for consideration. Finally on 25.06.2008 he was informed for the third time that his case could not be considered and therefore, his representation was rejected. 5 WP.9185-2009 5. Under these circumstances, for the first time, he approached the Tribunal on 27.08.2008 by filing Original Application (St.) No.591/2008 with Misc. Application No.247 of 2008 for condonation of delay of twelve years, though in our view the delay was of thirteen years with reference to the first rejection letter dated 25/27-1-1997. He was represented by an Advocate before the Tribunal and the application for condonation of delay was heard by the Tribunal on 25.02.2009, and it came to be disposed off as withdrawn along with the Original Application by an order passed on the very same day. The said order reads thus: “After some arguments, Mr. Jagdale on instructions from the applicant, who is present in the Court seeks leave to withdraw the above Misc. Application as well as Original Application with liberty to apply for the post of Police Constable Driver as and when the advertisement is issued by the respondent. In view thereof Misc. Application as well as Original Application are allowed to be withdrawn. We make it clear that the applicant is at liberty to apply for the post of Police Constable Driver as and when the advertisement is issued by the respondent. But the same shall be decided strictly in accordance with law in its own merits and not to be influenced by the earlier rejection order.” 6 WP.9185-2009 6. Sometimes in the second week of April, 2009, the applicant filed Misc. Application No.185 of 2009 for setting aside the earlier order dated 25.02.2009 passed by the Tribunal and this Application came up for hearing on 15.04.2009. The following order on the same Application was passed on 15.04.2009, as is evident from the record, “Heard Shri P.N. Wagh, learned counsel for the applicant and Mr. N.K. Rajpurohit, learned Presenting Officer for the respondents. Having regard to the facts and circumstances as the only dispute in the above is with regard to the correct, height of the applicant, hence we direct the Medical Board of Sir J.J. Hospital, Mumbai to examine the applicant and give the exact height of the applicant to this court in centimeters. The said report shall be submitted to this court on or before 15th June, 2009. The learned counsel for the applicant has explained the contents of this order to the applicant that the applicant should appear before the Board and his height would be measured and he was also explained that in case if the Medical Board finds his height to be less than 165 cms., he will withdraw this application. Head of the Sir J.J. Hospital to take steps to constitute the said medical board to find out the correct height of the applicant. Hamdust granted. Both the applicants as well as the learned Presenting officer Mr. Rajpurohit shall communicate this order 7 WP.9185-2009 to the Superintendent of Sir J.J. Hospital, Mumbai.” 7. As directed in the order dated 15.04.2009, the applicant appeared before the Sir J.J. Hospital, Mumbai and he was issued medical certificate dated 15.05.2009 stating that his height was 165 cms. The said certificate was placed before the Tribunal, and the following order came to be passed in Misc. Application No.190 of 2009 on 15.06.2009:- “Heard Shri P.N. Wagh, learned Advocate for the applicant and Shri N.K. Rajpurohit, Presenting Officer for the respondents. In the above Misc. Application by our order dated 15th April 2009 we had directed the Medical Board of Sir J.J. Hospital Mumbai to examine the applicant and give the exact height of the applicant to this Court in centimeters. The Medical Board in pursuance of the said order made a report dated 15th May 2009 categorically mentioning that the applicant’s height is 165 cms. The said report is signed by three doctors from Sir J.J. Hospital. Having regard to the report of the aforesaid Medical Board M.A. is allowed. Accordingly our order dated 25th February 2009 stands recalled and O.A. 1990/09 is restored. Shri Rajpurohit, learned Presenting Officer states that he will take appropriate instructions with regard to the fact that the applicant’s height is 165 cms. as certified by the doctors of the aforesaid Medical Board. The copy of the report be given to the learned Counsel for the applicant as well as learned 8 WP.9185-2009 Presenting Officer. Hamdast granted. Place the matter on board on 29.06.2009.” 8. Section 22(3)(f) of the Administrative Tribunals Act, 1985 provides for the power of review as is vested in a Civil Court under the Code of Civil Procedure, which means that these are required to be exercised in keeping with Section 114 read with Order 47 of C.P.C. Under Article 122 of the Limitation Act an application for review is required to be filed within thirty days. Thus while moving an application for review under Section 22(3) of the Administrative Tribunals Act, the review petition is required to be filed within thirty days from the date of dismissal of the O.A. In the instant case Misc. Application No.247 of 2008 along with O.A. Stamp No.591 of 2008 was dismissed as withdrawn on 25th February, 2009 and it is clear from the said order that the appellant was represented through an Advocate and he was personally present before the Tribunal on that day and hence the limitation for filing a review petition would start from 26th February, 2009. Miscellaneous Application No.185 of 2009 has been filed on 6th April, 2009 i.e. beyond limitation. There was no separate application filed for condonation of delay in filing the review petition and there does not appear to be a prayer for condonation of delay along with the prayer for setting aside or recall of the order dated 25th February, 2009 so as to restore Misc. Application No.247 of 2008 along with O.A. Stamp No.591 of 2008. Before the order dated 15th April, 2009 was passed on M.A. No.185 of 2009 it does not appear that the learned Presenting Officer appearing for the State Government was granted time to file reply so as to contest the said 9 WP.9185-2009 application. In addition when the order dated 15th June, 2009 was passed the reason given for allowing the restoration application reads as under:- “Having regard to the report of the Medical Board the M.A., is allowed.” 9. In our opinion the medical report received from the J.J. Hospital could not be a valid reason to allow such restoration application filed belatedly. The applicant was not praying for restoration of his application dismissed in default and on the other hand the withdrawal of the lis was prayed on the ground that the applicant approached the authorities to consider his case in the future recruitment drive. 10. Further after M.A. No.247 of 2008 along with O.A. Stamp No.591 of 2008 was restored, it was necessary for the Tribunal to decide at the first instance M.A. No.247 of 2008 which was filed for condonation of delay and there is no such separate order passed in the said application. Section 21(1) of the Administrative Tribunals Act provides for limitation and it states that the Tribunal shall not admit an application, unless such an application is made within a period of one year from the date on which a representation submitted under Section 20(2)(a) of the said Act has been decided by the Competent Authority. In short the period of limitation for 10 WP.9185-2009 the applicant in the instant case was of one year from 25th/27th January, 1997 when his first representation was rejected by the Deputy Commissioner of Police. Obviously, the applicant had approached the Tribunal after 13 years from the date of rejection of his representation by the Deputy Commissioner of Police and, therefore, it was imperative that M.A. No.247 of 2008 was required to be decided by a reasoned order. The record does not indicate that the Tribunal has passed any order allowing M.A. No.247 of 2008. Instead it proceeded to allow the Original Application for the reasons that the applicant was required to be treated as having the height of 165 cms., and he had already completed all the tests. These procedural errors in deciding M.A. No.185 of 2009 and M.A. No.247 of 2008 rendered the orders dated 15th April, 2009 and 15th June, 2009 as well as the impugned order dated 29th June, 2009 unsustainable. It would be imperative that M.A. No.185 of 2009 is heard and decided at the first instance by a reasoned order and in the second stage M.A. No.247 of 2008 is also required to be heard and decided in the same manner i.e. by a reasoned order and the fate of the Original Application will certainly depend on the orders to be passed in these Miscellaneous Applications. 10. Hence, this Writ Petition succeeds and the same is hereby 11 WP.9185-2009 allowed by quashing and setting aside the impugned order dated 15th April, 2009, 15th June, 2009 and 29th June, 2009. The Misc. Application No.185 of 2009 stands restored to the file of Tribunal. We request the Tribunal to hear and decide the said application on its own merits as expeditiously as possible and preferably within eight weeks from the date of appearance of the parties. If M.A. No.185 of 2009 is allowed, the Tribunal will have to decide M.A. No.247 of 2008 and O.A. Stamp No.591 of 2008 de novo, as per law. Both parties to appear before the Tribunal on 15th December, 2010. 11. Rule is made absolute in terms of the above directions, with no order as to costs. (U.D. SALVI, J.) (B. H. MARLAPALLE, J.)