Bombay High Court
Mr. Vinod V. Chavan And Anr vs State Of Maharashtra And Ors on 28 March, 2025
Author: A. S. Chandurkar
Bench: A.S. Chandurkar
2025:BHC-AS:14718-DB
902-15531-22 with connected writ petitions.doc Rameshwar Dilwale
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
RAMESHWAR WRIT PETITION NO.15531 OF 2022
LAXMAN
DILWALE 1. Sanjeev Dnyandeo Bhor,
Age 52 years
Digitally signed
Working as Deputy Regional Transport
by RAMESHWAR Officer, Regional Transport Office, Pune
LAXMAN
DILWALE 411 001
Date: 2025.03.31 Residing at Flat No. D-302, Rohan
13:53:40 +0530 Tapovan, Gokhale Nagar, Pune 411 016
2. Mr. Vijay Laxman Kathole,
Age 49 years
Working as Deputy Regional Transport
Officer, Dy. Regional Transport Office,
Jalana-431 203,
residing at 501, Merlot, Grape City,
behind Shri Guruji hospital,
Nashik-422 005
3. Smt. Archana Shailendra Gaikwad,
Age-49 years
Working as Deputy Regional Transport
Officer at Deputy Regional Transport
Office, Akluj, District-Solapur, 413 118,
residing at 105, Pushp,
Antrolikar Nagar No.2, Hotgi Road,
Solapur 413 003 .. Petitioners
Versus
1. State of Maharashtra,
Through Principal Secretary,
Transport Department,
Mantralaya Mumbai 400 032,
Presenting office at World Trade
Centre, Mumbai 400 005
2. The Transport Commissioner,
Government of Maharashtra,
MTNL Building, 5th Floor,
Fort Mumbai 400 001
1/27
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3. Mr. Dnyaneshwar Eknath Hirde,
Age 54 years,
Working as Dy. Regional Transport
Officer,
Residing at:A-2/701, Happy Valley CHS,
Manpada, Tikujiniwadi Road,
Thane-400 607
4. Mr. Vishwambhar Nagorao Shinde
Age -58 Years
Retired Deputy Regional Transport Officers
Residing at B-1303, Laxminarayan
residency, Devdaya Nagar,
Thane (West)-400 606
5. Mr. Rupkumar Maruti Belsare,
Age-58 Years
Retired Deputy Regional Transport Officer
Residing at Flat No.2,
Cosmos Co-operative Housing Society,
Shivashrushti, Kurla (East),
Mumbai 400 024. .. Respondents
ALONG WITH
CONTEMPT PETITION NO.362 OF 2024
IN
WRIT PETITION NO.15531 OF 2022
Dnyaneshwar Eknath Hirde, Age:56 years,
Occu: Service, R/at:1-2/701,
Happy Valley CHS, Manpada,
Tikujiniwadi Road, Thane 400 607 .. Petitioner
Versus
1. Sanjay Sethi,
Additional Chief Secretary Home
(Transport Department) Government of
Maharashtra, Mantralaya, Mumbai
400032
2. Parag Jain Nainutiya
Erstwhile, Principal Secretary Home
(Transport Department) Government of
Maharashtra, Mantralaya, Mumbai
400032
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3. Vivek Laxmikant Bhimanwar
Age: 57 years, Occ: Transport
Commissioner, having office at:
Transport Commissioner Office, 5th
Floor, MTNL Building No.1,
Hutatma Chowk, Fort, Mumbai 400 001 ..Respondents
ALONG WITH
WRIT PETITION NO.13411 OF 2023
1. The State of Maharashtra,
Through its Principal Secretary,
Transport Department Mantralaya,
Mumbai 400032.
2. The Transport Commissioner
Maharashtra State
5th Floor, MTNL Building No.2
Hutatma Chowk Fort.
Mumbai 400 001 .. Petitioners
Vesus
1. Mr. Dnyaneshwar Eknath Hirde
Age-46 Years Happy Valley CHS
Manpada. Tikunjwadi Road. Thane
2. Mr. Vinod V. Chavan,
A-9, Government Quarter, 17,
Queens Garden, Pune-1
3. Mr. Surendra P. Nikam,
Flat No.1004, Lily Building,
Regency Garden,
Kharghar-10
4. Mr. Atul R. Adey,
Flat No.201, Shiv Kamini Apt,
Gorakshan Road, Akola .. Respondents
ALONG WITH
WRIT PETITION NO.15533 OF 2022
1. Vinod V. Chavan,
Age: 46 years
Working as Deputy Regional Transport
Officer, Satara
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Residing at Rudraksha Residency,
R5, G2, Tamjai Nagar, Satara,
Dist-Satara -415 001
2. Mr. Atul R. Adey,
Age 49 years
Working as Deputy Regional Transport
Officer, Pimpri Chinchwad-410 506
residing at Flat No.D 1101,
Metro Jazz Society, near
Educon School, Mahalunge,
Pune-411 045 .Petitioners
Versus
1. State of Maharashtra
Through the Principal Secretary,
Transport Department,
Mantralaya, Mumbai 400 032
2. The Principal Secretary,
Home Department,
Government of Maharashtra,
Mantralaya,
Mumbai 400 032
3. The Principal Secretary,
Finance Department,
Government of Maharashtra,
Mantralaya,
Mumbai 400 032
4. Mr. Dnyaneshwar Eknath Hirde,
Age:54 years,
Working as Dy. Regional Transport
Officer, Residing at:A-2/701,
Happy Valley CHS,
Man panda, Tikujiniwadi Road,
Thane:400 607
5. Secretary,
General Administration Department,
Government of Maharashtra,
Mantralaya,
Mumbai:400 032
4/27
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6. Mr. Surendra P. Nikam
Residing at plot no.28, Nisarg Society,
Near Ryan International School,
Bavdhan,
Pune-411 007 .. Respondents
Mr. S.C. Naidu with Mr. Vishal P. Shirke and Ms. Sruti Roy,
Advocates for the Petitioner in WP No.15533/2022 and for
Respondent Nos.2 and 4 in WP No.13411/2023.
Mr. Ravi R. Shetty, Senior Advocate, with Mr. Sidheshwar N.
Biradar, Advocate for the Petitioner in WP No.15531/2022.
Mr. Abhijeet A. Desai with Mr. Digvijay Kachare, Mr. Vijay Singh,
Mr. Karan Gajra, Ms. Mohini Rehpade, Ms. Daksha Pungera and
Ms. Sanchita Sontakke, Advocates, i/by Desai Legal, for the
Petitioner in CP No.362/2024 and for Respondent No.4 in WP
No.15533/2022.
Mr. Mihir Desai, Senior Advocate, with Mr. N.C. Walimbe,
Additional Government Pleader, Smt. R.A. Salunkhe, Assistant
Government Pleader for the Respondent-State of Maharashtra in
WP No.13411/2023 and for Respondent Nos.1 and 2 in WP
No.15533/2022 and WP No.15531/2022.
Mr. Dinesh R. Shinde, Advocate for Respondent Nos.4 and 5 in
WP No.15531/2022 and for Respondent No.6 in WP
No.15533/2022.
CORAM : A.S. CHANDURKAR &
RAJESH S. PATIL JJ
Date on which the arguments concluded : 19 th DECEMBER 2024.
Date on which the judgment is pronounced : 28 th MARCH 2025.
JUDGMENT :
(PER : A. S. CHANDURKAR, J)
1. Rule. In view of the order dated 15/05/2023 passed by the
Supreme Court in SLP (Civil) Diary Nos.19297/23 and
19299/2023, the writ petitions are taken up for final disposal.
902-15531-22 with connected writ petitions.doc Rameshwar Dilwale
2. The petitioners in Writ Petition No.15531 of 2022 are
aggrieved by the judgment of the Maharashtra Administrative
Tribunal (for short, 'the Tribunal') dated 06/06/2022 passed in
Original Application No.614 of 2014. By the said judgment, the
Tribunal has held that the seniority of the respondent no.3 on the
post of Assistant Regional Transport Officer shall be considered
from the date of his initial appointment being 01/04/1991. Writ
Petition No.15533 of 2022 also raises a challenge to the aforesaid
judgment dated 06/06/2022 as Original Application No.938 of
2016 preferred by the petitioners raising a challenge to the
seniority of respondent no.3 came to be dismissed.
3. Facts relevant for adjudicating the writ petitions are that one
Mr. Hirde came to be appointed on the post of Deputy Engineer,
Rural Broadcasting Department on 01/04/1991. The said
Department was proposed to be closed from 31/08/2001. Hence
on 20/08/2001, a Government Resolution was issued proposing
to absorb the employees who were rendered surplus in the said
Department. Accordingly, the services of Mr. Hirde came to be
absorbed at the State Human Rights Commission on a non-
technical post. Subsequently on 05/06/2007, the Home
Department issued an order on the basis of which Mr. Hirde came
902-15531-22 with connected writ petitions.doc Rameshwar Dilwale
to be appointed on a temporary basis on the post of Assistant
Regional Transport Officer (for short, ARTO) subject to terms and
conditions stated therein. As per Condition nos.1 and 2, the
appointment of Mr. Hirde with the Motor Transport Department
was to be treated as a fresh appointment and the seniority was to
be reckoned from the date when the charge of the said post was
taken. Mr. Hirde raised a protest to the aforesaid conditions
imposed in the order dated 05/06/2007. Ultimately on
12/07/2013, the seniority list in the cadre of ARTO came to be
published. Mr. Hirde was shown at serial no.100 and his date of
appointment was shown as 04/07/2007. After raising an
objection on 16/11/2013 and 04/01/2014, the seniority list was
finalised on 08/01/2014. Mr. Hirde not being satisfied with his
placement at serial no.98 approached the Tribunal by filing
Original Application No.614 of 2014. Prayer Clauses (a) and (b) of
the said Original Application read as under:-
a) Hon. Tribunal be pleased to call the record and
proceedings of the order dated 08.01.2014 and after
examining its legality and validity the Hon. Tribunal
be pleased to hold and declares that the Applicant is
entitled to count his seniority in the cadre of ARTO
from 01.04.1991 in the light of the provisions of the
relevant Rules and GRs stated in O.A. and direct the
Respondents to grant him the proper placement as
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per that date with all consequential service benefit
including promotion, deemed date of promotion,
notional promotion, retrospective promotion, pay
stepping at par with immediate juniors, etc.
b) Hon. Tribunal further be pleased to hold and
declare the condition No. 2 incorporated in the order
dated 05.06. 2007 appointing the Applicant as a
ARTO as a illegal and bad as the same is being
contrarary to the provisions of GR 10.11.1982,
9.3.1989, 1.11.1999, 10.09.2001 and Rule 4(2)(c) of
the MCS seniority Rule 1982 and by suitable order
the said condition No. 2 be ordered to be struck
down.
4. The petitioners in Writ Petition No.15531 of 2022, namely
Mr. Sanjeev Dyandeo Bhor and two others- (hereinafter referred to
as 'Mr. Bhor and others') filed their affidavit in reply raising a plea
that the challenge raised by Mr. Hirde to Condition no.2 in the
order of appointment dated 05/06/2007 was barred by limitation.
Other grounds for opposing the prayers made in the Original
Application were also raised.
The petitioners in Writ Petition No.15533 of 2020, namely
Mr. Vinod V. Chavan and two others (hereinafter referred to as
'Mr. Chavan and others') filed Original Application No.938 of 2016
before the Tribunal raising a challenge to the order dated
26/05/2016 by which it was stated that the appointment of Mr.
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Hirde be treated as made on 08/10/2001 with the State Human
Rights Commission on regular basis. A declaration was sought
that the seniority of Mr. Hirde had been incorrectly fixed.
5. The learned Members of the Tribunal by the judgment dated
06/06/2022 decided both the Original Applications together. It
was observed that there was delay on the part of Mr. Hirde in
approaching the Tribunal. However, since Mr. Hirde had made
various representations to the concerned authorities and such
representations had been pursued, the proceedings were liable to
be entertained on merits. It was held that the seniority of Mr.
Hirde ought to be considered from the date of his initial
appointment on the post of ARTO from 01/04/1991. While
Original Application No.614 of 2014 preferred by Mr. Hirde was
allowed, Original Application No.938 of 2016 preferred by Mr.
Chavan and others came to be dismissed. It is this common
judgment of the Tribunal dated 06/06/2022 that is impugned in
these writ petitions.
6. For the record, it may be stated that on 19/12/2022 while
considering both the writ petitions, this Court observed that it was
not inclined to stall any proceedings of the Departmental
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Promotional Committee and that any decision that would be taken
by the said Committee would be subject to outcome of the writ
petitions. The present petitioners challenged this order before the
Supreme Court. By an order dated 15/05/2023, the Special Leave
Petitions were permitted to be withdrawn with liberty to approach
this Court for early hearing of these writ petitions. The said prayer
as made was accordingly granted on 03/08/2023.
7. The State of Maharashtra through its Secretary, Transport
Department has preferred Writ Petition No.13411 of 2023 also
raising a challenge to the common judgment dated 06/06/2022
passed by the Tribunal. It seeks to rely upon order of appointment
dated 05/06/2007 issued to Mr. Hirde and it is aggrieved by the
finding recorded by the Tribunal that the seniority of Mr. Hirde
ought to be considered from 01/04/1991 by treating that date as
his initial date of appointment in the Transport Department.
Accordingly, all these writ petitions have been taken up together
for consideration.
8. At the outset, we may state that the common judgment of
the Tribunal is assailed broadly on two counts. Firstly, on the
jurisdictional aspect, it is urged that the reliefs claimed by Mr.
902-15531-22 with connected writ petitions.doc Rameshwar Dilwale
Hirde in his Original Application were barred by limitation.
Without the delay being condoned, the Tribunal decided the
proceedings on merit. Secondly, the challenge was to the
adjudication on merits. It is urged that the Tribunal wrongly held
that the seniority of Mr. Hirde ought to be reckoned from
01/04/1991 instead of 04/07/2007.
We would first consider the jurisdictional aspect. In case the
challenge succeeds on this count, it would not be necessary to
consider the challenge on merits. We accordingly proceed to
consider the jurisdictional challenge.
9. Mr. S. C. Naidu, learned counsel appearing on behalf of Mr.
Chavan and others at the outset submitted that Original
Application No.614 of 2014 filed by Mr. Hirde on 09/07/2014
initially raising a challenge to Condition no.2 incorporated in the
appointment order dated 05/06/2007 had been filed beyond the
prescribed period of limitation. No prayer for seeking condonation
of delay was made by Mr. Hirde in his Original Application. On the
contrary, it was pleaded by Mr. Hirde in paragraph 5 that the
Original Application had been filed within limitation. The Tribunal
had no jurisdiction whatsoever to consider the prayers made in
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the Original Application on merits without the delay in filing the
same being condoned. He referred to the provisions of Section 21
of the Administrative Tribunals Act, 1985 (hereinafter referred to
as "Act of 1985") and submitted that the Original Application was
liable to be dismissed summarily on the ground of delay. It was
further submitted that the contention of Mr. Hirde that in view of
the order passed in Miscellaneous Application No.10 of 2019, the
delay in filing the Original Application had been condoned was
misconceived. That Miscellaneous Application had been filed for
seeking amendment to the Original Application and raising a
challenge to Condition no.1 in the appointment order dated
05/06/2007. The order dated 06/01/2019 passed on the
Miscellaneous Application made it clear that the Tribunal had
merely allowed the amendment as prayed for. On the basis of said
order, it could not be contended that the delay in filing the
Original Application had been condoned. It was further pointed
out that the Tribunal in the impugned order noted that there was
in fact delay in filing the Original Application. Merely by observing
that Mr. Hirde had made various representations earlier, the
Tribunal proceeded to adjudicate the prayers made in the Original
Application on merits. In absence of any prayer seeking
condonation of delay and an opportunity to Mr. Bhor and others
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to meet such contention, the Tribunal was not justified in
entertaining the Original Application on merits.
Without prejudice to the aforesaid, it was urged that the
observations made by the Tribunal that as various representations
had been made by Mr. Hirde, the proceedings were liable to be
considered on merits was also contrary to law. It was well settled
that merely by making various representations, the statutory
period of limitation as prescribed would not get extended. Making
of representations without pursuing the same would be of no
avail. Even on this count, the Tribunal committed an
jurisdictional error in entertaining the Original Application on
merits. In that regard, the learned counsel placed reliance on the
decisions in Secretary to Government of India and others Vs.
Shivram Mahadu Gaikwad, (1995) Supp (3) SCC 231 and Ramesh
Chand Sharma Vs. Udham Singh Kamal and others, (1999) 8 SCC
304. It was thus submitted that the impugned judgment was
liable to be set aside.
10. Mr. Ravi Shetty, learned Senior Advocate on behalf of Mr.
Bhor and others too submitted that the Original Application filed
by Mr. Hirde sought to raise a challenge to the conditions imposed
in the order of appointment issued to him on 05/06/2007. The
902-15531-22 with connected writ petitions.doc Rameshwar Dilwale
Original Application as filed initially sought to raise a challenge
only to Condition no.2 in the said order. Subsequently, an
amendment was sought to the Original Application for raising a
challenge to Condition no.1 in the said order. Merely because the
amendment was allowed, the same would not mean that the delay
in raising such challenge had been condoned. To substantiate
this plea, the learned Senior Advocate placed reliance on the
judgment in State of Maharashtra and another Vs. Ramesh
Krushrao Yewale and another (Writ Petition No.3056 of 2022
decided on 05/08/2022 at the Nagpur Bench). He also referred to
the decisions in S. S. Rathore Vs. State of M. P., (1989) 4 SCC 582,
Shivram Mahadu Gaikwad and Ramesh Chand Sharma (supra) in
that regard. He therefore submitted that the Tribunal committed
an error in entertaining the Original Application on merits without
the delay being condoned. The impugned judgment therefore was
liable to be set aside.
11. Mr. Mihir Desai, learned Senior Advocate appearing on
behalf of the State reiterated these grounds of challenge. He
further submitted that additionally, Mr. Hirde did not join all
parties who were likely to be affected if his claim of seniority was
to be accepted. The effect of the impugned judgment of the
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Tribunal was that the appointments made prior to Mr. Hirde being
appointed in the Transport Department from 05/06/2007 were
affected as such appointees would become junior to Mr. Hirde. In
absence of such necessary parties, the Tribunal could not have
granted this relief as prayed for by Mr. Hirde. It was further
submitted that Mr. Hirde was aware about his placement in the
seniority list from 05/06/2007 itself and he had accepted the
appointment order as a fresh appointment. He sought to challenge
the order dated 05/06/2007 only when the final seniority list in
the cadre of ARTO came to be published on 08/01/2014. He
therefore submitted that the Tribunal committed a jurisdictional
error in entertaining the Original Application on merits without
the delay in filing the same being condoned. Since the seniority of
various ARTO's was affected due to the impugned judgment, the
State had also challenged the same.
12. Mr. Abhijeet Desai, learned Advocate appearing for Mr. Hirde
opposed aforesaid submissions. According to him, the cause of
action for filing the Original Application accrued to Mr. Hirde only
when the seniority list of ARTO was finally published on
08/01/2014. It was then that Mr. Hirde was informed that his
past service since 1991 would not be considered for the purposes
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of seniority. The conditions as contained in the appointment order
dated 05/06/2007 had been challenged by seeking an
amendment in the Original Application by filing Miscellaneous
Application No.10 of 2019. The order dated 16/01/2019 passed
on the Miscellaneous Application had the effect of allowing the
amendment and also condoning the delay in filing the Original
Application. On the amendment being allowed, the doctrine of
"relation back" applied and it had the effect of the delay in
challenging the appointment order dated 05/06/2007 being
condoned. Since the publication of the final seniority list gave a
cause of action to Mr. Hirde, it was clear that the Original
Application was filed within limitation. The Tribunal was justified
in considering the prayers made by Mr. Hirde on merits after
being satisfied that the making of various representations in his
regard was sufficient. It was thus submitted that since the
proceedings were filed within limitation, there was no
jurisdictional error committed by the Tribunal. Relying upon the
decision in Sub-Inspector Rooplal and another vs. Lt. Governor
through Chief Secretary and others, (2000) 1 SCC 644 it was
submitted that the State was not justified in challenging the
judgment of the Tribunal.
902-15531-22 with connected writ petitions.doc Rameshwar Dilwale
13. We have heard the learned counsel for the parties at length
and with their assistance we have also perused the documentary
material on record. After giving thoughtful consideration to the
rival submissions based on the jurisdictional challenge, in our
view said challenge deserves to be upheld as the Tribunal
adjudicated the Original Application which was filed beyond the
period of limitation, without the delay being condoned.
14. It is not in dispute that on 05/06/2007, the Home
Department issued an order appointing Mr. Hirde on the post of
ARTO, Group-B through nomination. Condition no.1 of the
appointment order states that the appointment of Mr. Hirde in the
Motor Vehicle Department would be a fresh appointment.
Condition No.2 of the said appointment order states that the
seniority of Mr. Hirde would be reckoned from the date he would
take charge of the said post. It is further not in dispute that the
petitioner joined the post of ARTO pursuant to the order dated
05/06/2007. The record further indicates that in the seniority list
of ARTO's dated 01/01/2013, Mr. Hirde was placed at serial
no.100 while Mr. Bhor and others as well as Mr. Chavan and
others were placed above him. Mr. Hirde raised an objection to his
placement in the seniority list through his grievance dated
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05/10/2013. This was followed by reminders dated 16/11/2013
and 04/01/2014. The objections raised to the aforesaid seniority
list were thereafter considered by the Home (Transport)
Department and the final seniority list came to be published on
08/01/2014. Mr. Bhor and others were placed at serial nos.38 to
41 while Mr. Chavan and others were placed at serial nos.48 and
49. Mr. Hirde was placed at serial no.98 in the said seniority list.
Mr. Hirde being aggrieved by his placement in the said seniority
list as on 01/01/2013 filed Original Application No.614 of 2014
on 09/07/2014. The prayers made in the said Original Application
as filed reads as under:
a) Hon. Tribunal be pleased to call the record and
proceedings of the order dated 08.01.2014 and after
examining its legality and validity the Hon. Tribunal be
pleased to hold and declares that the Applicant is entitled to
count his seniority in the cadre of ARTO from 01.04.1991 in
the light of the provisions of the relevant Rules and GRs stated
in O.A. and direct the Respondents to grant him the proper
placement as per that date with all consequential service
benefit including promotion, deemed date of promotion,
notional promotion, retrospective promotion, pay stepping at
par with immediate juniors, etc.
b) Hon. Tribunal further be pleased to hold and declare the
condition No. 2 incorporated in the order dated 05.06.2007
appointing the Applicant as a ARTO as a illegal and bad as the
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same is being contrarary to the provisions of GR 10.11.1982,
9.3.1989, 1.11.1999, 10.09.2001 and Rule 4(2)(c) of the MCS
seniority Rule 1982 and by suitable order the said condition
No. 2 be ordered to be struck down.
In paragraph 5 of the Original Application, it was stated that the
same had been preferred within limitation.
15. Mr. Bhor and others filed their reply and raised an objection
to the belated challenge as raised by Mr. Hirde. Mr. Chavan and
others were aggrieved by the order dated 26/05/2016 as a result
of which the seniority of Mr. Hirde came to be fixed from
08/10/2001. They therefore challenged the said order by filing
Original Application No.938 of 2016. It is common ground that
both the Original Applications were heard and decided together.
16. It would be necessary to note that during pendency of the
aforesaid proceedings, Mr. Hirde filed Miscellaneous Application
No.10 of 2019 seeking to amend his Original Application and
raised a challenge to Condition no.1 in the appointment order
dated 05/06/2007. In the said Miscellaneous Application , it was
stated that Condition no.1 in the order of appointment dated
05/06/2007 was sought to be challenged and hence a prayer for
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amendment was made. The prayer sought to be incorporated in
the Original Application reads as under:--
"(e) : That this Honourable Tribunal be pleased to hold and
declare that Condition No.l incorporated in the Order dated
5.6.2007 while appointing the Applicant as A.R.T.O. as
illegal and bad in law as the same is being contrary to G.R.
dated 10.9.2001 as well as G.R. dated 1.11.1999 and the
Affidavit in reply dated 4.12.2017 filed in O.A.No.938 of
2016 and as such, the said condition No. 1 be ordered to be
struck down.
The Miscellaneous Application was accordingly considered by the
Tribunal. On 16/01/2019 it passed the following order:-
"MA for amendment allowed".
From a reading of the Miscellaneous Application and the
prayer made therein, it becomes clear that what was sought in the
Miscellaneous Application was only a prayer for amendment.
There was no prayer for condoning the delay in filing the Original
Application nor was such delay condoned. The submission made
on behalf of Mr. Hirde that since the prayer made in the
Miscellaneous Application had been allowed, the amendment
stood granted and on the principle "relation back" the delay also
stood condoned cannot be accepted. The order passed by the
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Tribunal is clear and it merely allows the amendment as a result
of which Condition no.1 came to be challenged.
17. On the aspect of delay in raising a challenge to the order
dated 05/06/2007, it would be necessary to refer to the provisions
of Section 21 of the Act of 1985. Section 21 prescribes the period
of limitation within which an aggrieved applicant is required to
approach the Tribunal. It is well settled that firstly, making of
repeated representations would not result in furnishing a fresh
cause for such applicant to avail the remedy of approaching the
Tribunal on the basis of the last representation. On the making of
a representation, if no response is received within a period of six
months of making such representation, the right to approach the
Tribunal would accrue on the expiry a period of six months.
Thereafter the aggrieved applicant ought to approach the Tribunal
with expedition. The law is laid down by the Constitution Bench
in S. S. Rathore (supra) has been consistently followed and the
legal position in that regard is well settled. A reference to various
other judgments in that context has been made in the judgment of
the Co-ordinate Bench in Ramesh Krushrao Yewale and another
(supra).
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18. If the amended prayers made by Mr. Hirde in the Original
Application are perused it becomes clear that Mr. Hirde sought a
declaration that he was entitled to reckon his service in the cadre
of ARTO from 01/04/1991 and sought all consequential benefits.
Initially challenge was raised to Condition No.2 in the order of
appointment dated 05/06/2007. By amending the Original
Application on 30/01/2019 challenge was raised to Condition
no.1 in the said appointment order.
It becomes clear that Mr. Hirde was aggrieved by Condition
nos.1 and 2 contained in his order of appointment dated
05/06/2007 and same were challenged only in 2014 by filing the
Original Application. The Tribunal in paragraph 22 of the
impugned judgment has noted that there was delay in
approaching the Tribunal but the same was explained by Mr.
Hirde by stating that he had been continuously making various
representations to the authorities seeking appropriate
appointment after his absorption. On this basis, the Tribunal has
proceeded to adjudicate the challenge on merits.
19. In our view, the cause of action for challenging the
conditions in the order of appointment dated 05/06/2007 arose
immediately after the said appointment order was issued to Mr.
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Hirde. He however chose not to challenge the same immediately.
He was placed in the seniority list dated 01/01/2013 in
accordance with the said order of appointment. This was after
considering his objection to the seniority list as published. Mere
filing of representations after 05/06/2007 till publication of the
final seniority list dated 01/01/2013 on 08/01/2014 cannot be
the basis to hold that the challenge raised to condition nos.1 and
2 of the order of appointment dated 05/06/2007 was within
limitation. We therefore find that the Original Application as filed
was barred by limitation and no prayer was made to seek any
condonation of delay by Mr. Hirde.
20. Yet another aspect that was not noticed by the Tribunal was
that Mr. Hirde was seeking to reckon his seniority in the cadre of
ARTO from 01/04/1991. By virtue of the order of appointment
dated 05/06/2007 in the Transport Department, grant of benefit
of service to Mr. Hirde in the cadre of ARTO from 01/04/1991
would have the effect of affecting members of the said cadre who
were appointed from 01/04/1991 to 05/06/2007. Such
appointees were not parties to the Original Application filed by
Mr. Hirde. They were liable to be heard before accepting the
prayers made by Mr. Hirde. The Tribunal has in fact granted such
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relief to Mr. Hirde by directing his appointment to be considered
from 01/04/1991 on the post of ARTO without hearing the parties
who were affected by such declaration. This aspect has been
glossed over by the Tribunal.
21. For these reasons, we are of the view that the Tribunal
committed a jurisdictional error in entertaining a challenge to
condition nos.1 and 2 in the order of appointment dated
05/06/2007 as raised by Mr. Hirde in the Original Application
that was filed in the year 2014. The Original Application had been
filed beyond the period of limitation as prescribed under Section
21(1) of the Act of 1985. Without the delay being condoned, the
challenge has been adjudicated on merits. The ratio of the
decision in Ramesh Chand Sharma (supra) is squarely attracted.
Further, the relief of reckoning the seniority of Mr. Hirde from his
initial appointment being treated as 01/04/1991 in the absence of
parties likely to be affected by the same has also resulted in a
jurisdictional error. On these counts, the impugned judgment of
the Tribunal is found to be unsustainable and is therefore liable to
be quashed.
22. In the Original Application filed by Mr. Hirde, he has stated
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in paragraph 5 that the same had been filed within the prescribed
period of limitation. The Tribunal thus proceeded to adjudicate the
same on merits by observing that though there was delay in filing
the Original Application, the same was explained by Mr. Hirde on
the basis of various representations made by him. We have
however found that the Original Application was in fact filed
beyond the period of limitation and the Tribunal erred in
entertaining the same without the delay being condoned. In such
situation, in our view, Mr. Hirde cannot be left remediless. An
opportunity to make a prayer for condonation of delay before the
Tribunal deserves to be granted to him. For adopting such course,
we place reliance on the judgment of learned Single Judge (B.R.
Gavai, J. as His Lordship was) in Madhao S/o Somaji Sarode Vs.
Jotiba Dhyan Upasak Shikshan Sanstha, (2004) 3 Mh.L.J. 1078. It
has been held therein that if during the course of proceedings that
are stated to be filed within limitation, the concerned Tribunal
finds that the proceedings were filed beyond limitation, it is the
duty of that Tribunal to bring to the notice of the party the said
aspect and also grant such party an opportunity to make an
application for condonation of delay. Hence, as we have found that
the Original Application preferred by Mr. Hirde though stated to
be filed within limitation has been filed beyond the period of
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limitation, an opportunity to seek condonation of delay deserves to
be granted.
23. Since we are inclined to permit Mr. Hirde to move the
Tribunal with a prayer for seeking condonation of delay, we do not
deem it necessary to go into the merits of the reasons assigned by
the Tribunal while allowing the Original Application. In our view,
this exercise undertaken on merits was without jurisdiction.
Unless the delay was condoned, the Tribunal did not have
jurisdiction to go into the merits of the Original Application. For
these reasons, we have not dealt with the submissions made by
the learned counsel on merits. In our view, the impugned
judgment deserves to be quashed and the following directions that
would serve the ends of justice ought to be issued :-
(i) The common judgment of the Maharashtra Administrative
Tribunal in Original Application No.614 of 2014 and Original
Application No.938 of 2016 dated 06/06/2022 is quashed
and set aside
ii) An opportunity is granted to Mr. Hirde to seek
condonation of delay in filing Original Application No.614 of
2014 by moving a separate application in that regard. If such
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application is moved, the same shall be considered in
accordance with law after giving due opportunity to all
parties.
iii) It is made clear that this Court has not examined the
submissions of the rival parties on merits. In case the delay
in filing Original Application No.614 of 2014 is condoned, the
said Original Application shall be heard with Original
Application No.938 of 2016 and decided on its own merits in
accordance with law. Any observations made in this
judgment shall not be construed as expression of any
opinion on the merits of the matter.
iv) Rule is made absolute in Writ Petition Nos.15531,
13411 and 15533 of 2022 in above terms. Consequently,
Contemp Petition No.362 of 2024 does not survive and it
stands disposed of.
[ RAJESH S. PATIL, J. ] [ A.S. CHANDURKAR, J. ]
