"In the light of the aforementioned observation the claim petition is hereby allowed and the opp. Party no.1 is directed to consider the petitioner for promotion w.e.f the date of his junior Sri Bankey Lal Maheshwari has been promoted. The petitioner is also entitled for all the service benefits at Sri Maheshwari as admissible to him under the rules. The judgement/order shall be complied with within a period of three months from the date of its receipt. There is no order to costs"
The petitioner State did not comply with the order of the Tribunal with the stipulated time and rather filed a review application no. 6 of 2008 in Re Claim petition no. 1094 of 1998, Sudarshan Singh Vs. State of U.P. and others after two years. On consideration, the Tribunal dismissed the review application on grounds of limitation thus:
"Learned counsel for the petitioner-opp. Party is present. He has stated that he has filed the Review-Application on 20.2.2008 and the impugned order was passed in claim petition no. 1094/98 on 18.8.2006. He has stated that there was delay in filing Review application which should be condoned. In the U.P. Public Services (Tribunal) Act 1976 time for filing Review application is within a month from the date of order but it has been field after about 2 years. The g round showed in para 3 of the application it has been stated that due to official work and a report was called from the subordinate officer in respect of the judgement after that the matter as taken up for decision. From the perusal of the para 3 (14) it appears that the matter of the petitioner was taken for the promotion and in this respect order was passed on 20.7.2007, after that no Review application was filed. When all the action have been taken by the opp. Parties he ought to have filed the Review petition after taking decision on 20.7.2007, as alleged in para 3(14).
In this case it is also evident from para 4(21) that claim petition was filed on 8.5.2007 in Contempt petition No. 96 of 2007 and in this respect a notice was also sent to Director which was received on 31.7.2007 but after receipt of the notice no application was moved for review of the application. It can not be said that there was sufficient cause after 21.7.2007. The opp. Parties - petitioner ought to have filed Review Application after receipt of the Contempt Petition on 21.7.2007 but Review application was field on 20.2.2008 that is highly time barred. It is also important to note that after 31.7.2007 what action has been taken, it has not been disclosed by the opposite party- petitioner.
It is important to note that under section 5 of Limitation Act the opposite parties have to explain day today delay in filing Review Application. The delay has not been explained by the opposite party after 31.7. 2007 which was duty of the Opp. Parties- petitioner to file the Review Application within time. The ground which has been sown that is not sufficient.
Learned counsel for the opp. Parties-petitioner argued that the delay which was caused due to the official activities, so it is ought to be condoned but it is established that the right which have been accrued to the petitioner cannot be taken away.
From perusal of all the facts and circumstances of the case the opposite parties-petitioner is not able to show that the delay which was caused due to sufficient reason. Hence application for condonation of delay u/s 5 of Limitation Act is hereby rejected, and the Review application is time barred, so it is rejected"
Aggrieved, this petition has been filed challenging aforesaid impugned two orders and judgments dated 23.10.2006 anad 18.8.2006 passed by the U.P. State Public Services Tribunal. There orders are assialed by learned counsel for the petitioner on the ground that these suffer from error of law apparent on the face of record. It is submitted that after the order and judgement dated 18.8.2006 passed by the Tribunal the matter of promotion of Sudarshan Singh was referred to the Department Promotion Committee vide letter dated 20.6.2007 which found that Sudarshan Singh, respondent no.1 was junior to Banke Lal Maheshwari and hence was not entitled for promotion from the date Banke Lal Maheshwari was promoted as Account Officer. In the meantime, promotion letter dated 5.12.2007 was issued. The petitioner, thus, decided to file writ petition against the order dated 18.8.2006 passed by the Tribunal. It is over ruled in the writ petition that the matter was thereafter sent to the office of the standing counsel for filing the writ petition and was advised to file a review application before the tribunal. On being so advised the review application was field explaining the delay which too was dismissed on ground of limitation as stated above.
Learned counsel for respondent no. 1 , Sudarshan Singh in the writ petition has submitted that it is admitted fact that he was senior to Bankey Lal Maheshwari having been regularised in service prior in time i.e. 30.10.86 whereas Bankey Lal was regularised in service only on 26.12. 1990. The seniority list issued vide letter dated 25.5.2002 had already been cancelled and thus there was no occasion for petitioner no. 2 who have promoted Bankey Lal Mahehswari on the post of accounts officer.
Learned standing counsel at this stage submits that Sudarshan Singh has been granted promotion on the post of Assistant Accounts Officer vide letter dated 5.12.2007. the benefits admissible to him as directed by the tribunal have not been provided to him.
After hearing learned counsel for the parties and perusal of record, we find that the averments made in para 5 of Supplementary counter affidavit regarding services of Sudashan Singh viz-a-viz Bankey Lal Maheshwari has been considered by the Tribunal in para 5 of its judgement dated 18.8.2006. As regards objection raised in the supplementary counter affidavit are concerned they were neither raised before the Tribunal nor have been pressed before us. Admittedly, from the record, it is proved that respondent no.1 in the writ petition, namely, Sudarshan Singh is senior having been regularised in service on the post of accounts officer prior to Bankey Lal Maheshwari and this fact was undisputed before the Tribunal as is appeared from para 5 of the aforesaid judgement impugned. The tribunal has noted the fact that the petitioners had also not produced any subsequent seniority list though they alleged that earlier seniority list has been cancelled in which Sudarshan Singh has been shown senior to Bankey Lal Maheshwari. The Departmental Promotin Committee had not authority in the circmstnace to sit in appeal over the judgment of the Tribunal for holding Bankey Lal Maheshwari to to be senior in fact fond Sudarshan Singh who was senior to Bankey Lal Maheshwari. For all reasons, the order of Tribunal is in accordance with law and does not suffer from any illegality or infirmity. All these facts and circumstances can not be said that the judgements impugned are incorrect or suffer from any error on face of record.
The petitioners are directed to comply with the direction given by the Public services Tribunal in letter and spirit and pay all benefits to Sudarshan Singh within a period of one month from today alongwith interest at the rate of 9% alonwith cost towards litigation which we assess at Rs. 15,000/- in view of judgement rendered in the case of Saleem Advocate Bar Association Tamil Nadu Vs. Union of India report in AIR 2005 SC-3353.
For these reasons, the writ petition is dismissed accordingly with aforesaid directions.
Order Date :- 3.7.2012 R