Central Administrative Tribunal - Chandigarh
Dr. K.P. Rawerkar vs Director General Of Indian Council Of ... on 10 November, 2005
Equivalent citations: 2006(2)SLJ286(CAT)
JUDGMENT Shyama Dogra, Member (J)
1. The applicant has preferred this Original Application (OA) for setting aside ex pa rte order dated 21.3.2001 (A/2) passed in O.A. No. 28/HP/2000 while proceeding ex pane against the applicant who was Respondent No. 4 in that O.A., with further prayer to give him due opportunity to contest his case.
2. The applicant has further challenged impugned order dated 31.5.02/21.6.02 (A/1) whereby his appointment to the post of Sr. Scientist (Soil Microbiology) was cancelled and he was placed at the disposed of Dr. Y.S. Parmar University of Horticulture and Forestry, Solan (HP) as Assistant Scientist with further prayer for direction to respondents to treat him in service as Sr. Scientist with all consequential benefits.
3. Briefly, the facts of the case as submitted in the O.A. are that the applicant was Respondent No. 4 in above referred O.A. 28/HP/2000 filed by one Dr. Y.P. Dube, who is now Respondent No. 4 in the present O.A. Dr. Y.P. Dube had challenged the selection of present applicant to the post of Sr. Scientist (Soil Microbiology) on the ground that the present applicant was not possessing requisite qualification for the said post.
4. The Court while allowing his prayer held in its order dated 21.3.2001 that the present applicant was not possessed of the requisite qualifications, thus, said selection was declared illegal and quashed and set aside with directions to the respondents to consider Dr. Dube alongwith other candidates who had applied for that post afresh.
5. The said order passed by this Bench was, however, further challenged by official respondents in the Hon'ble Himachal Pradesh High Court by filing a writ petition, but, the same was dismissed in limine at admission stage vide order dated 30.8.2001 (Ann. R-4/1). The said order was further challenged by official respondents in the Hon'ble Apex Court but it has met the same fate of its dismissal at admission stage vide order dated 21.1.02 in SLP (Civil) CC 193/02 without issuing notice to Dr. Y.P. Dube or the present applicant.
Hence, in view of these facts of the case, impugned order dated 31.5.02/21.6.02 (A/1) was passed by the respondents while canceling the appointment and selection of present applicant to the said post of Sr. Scientist.
6. The applicant's stand in the present case is that he was wrongly and illegally proceeded ex parte in the said O.A. where he was made party as Respondent No. 4. The applicant has in fact never been served either personally or through official respondents through any mode of effecting service on him as per procedure prescribed in the C.A.T. (Procedure) Rules or C.A.T. Rules of Practice.
7. Even though he was also made party in the Civil Writ Petition as Respondent No. 2 but no notice was issued to him since case was disposed of at admission stage. In support of these contentions applicant has filed affidavit with further averments that name of the Counsel Mr. H.M. Sharma was wrongly shown as Counsel for the present applicant, whereas he had in fact filed his Power of Attorney for Respondent No. 1 i.e. Dr. Y.P. Dube which is evident from Ann. A/28 which is a copy of said Power of Attorney. The applicant has further contended that since he was never served in that O.A., to plead his case, he remained unaware of further proceedings of the case upto Supreme Court. Since, after his appointment as Sr. Scientist, he was posted at Indian Institute of Soil Science, Nabibagh, Berasin Road, Bhopal and was also confirmed there as he had opted for his permanent absorption at that place vide A/21 and on his absorption, he also requested the authorities to terminate his lien with Dr. Y.S. Parmar University, Solan vide letter dated 23.8.2001 (A/23) which was accepted duly vide order dated 3.9.2001 (A/24). The applicant on completion of his probation on the said post was also confirmed as Sr. Scientist vide order dated 18.4.2002 (A/26).
8. The contention of the applicant is that he came to know about all these proceedings, when he received letter dated 21.6.2002 (A/1) on 1.7.2002, wherein factum of filing of and decision in the said case was mentioned on the basis of which his selection as Sr. Scientist was cancelled.
9. While placing these facts on record, the applicant has pleaded that since he came to know about said order on 1.7.2002, therefore, the present O.A. is filed within prescribed period of 30 days from the date of knowledge as per provision of Article 123 of Limitation Act. However, he has also moved M.A. No. 976/2002 for condonation of delay, if any, in filing the present O.A.
10. To substantiate his case, applicant has also given details of chronological events in Para 5(B) of the O.A. to show that had the applicant been aware of the pendency of the case or decision passed by this Court, he would not have terminated his lien with his earlier employer i.e. Dr. Y.S. Parmar University, Solan. Even Indian Institute of Soil Science, Bhopal would not have confirmed him as Sr. Scientist on 18.4.2002 as it appears that they were also not aware of pendency of that case which was decided on 21.3.2001.
11. The applicant has further drawn our attention to the Memo of parties and addresses thereof as given in the earlier O.A. (record thereof was called for), wherein applicant has been shown as Respondent No. 4 C/o Director General, Indian Council of Agricultural Research, Krishi Bhawan, New Delhi-110001. While showing these documents applicant's plea is that he has never been intimated by Indian Council of Agricultural Research (ICAR for short) that some case is pending against him. Therefore, it cannot be said to be a proper and effective service on the applicant as he has never been served at any stage with notice either through ICAR or through his office at Bhopal.
12. The applicant has also thus disputed declaration of his deemed service to proceed ex parte against him by this Court vide its order dated 4.10.2002 as per provision of Rule 25 of the CAT (Rules of Practice). The Registrar of this Court has never made such declaration that applicant was deemed to be served as A/D was not received back undelivered within the specified period. Therefore, applicant should not have been condemned unheard.
13. The applicant has also challenged order of cancellation of his appointment as Sr. Scientist (Ann. A/1) on various grounds and documents placed on record, to show his eligibility for the said post but we do not find them to be relevant to be discussed at this stage since first point is to be considered is as to whether said ex parte order can be quashed and set aside and thereafter to give an opportunity of being heard to the applicant.
14. Official Respondents No. 1 to 3 including ICAR have filed their written statement and justified the impugned order on the ground that it has been passed as per observation of the Court as applicant's selection to the post of Sr. Scientist (Soil Microbiology) was held illegal and said order has already attained finality upto the Apex Court. Therefore, this O. A. is not maintainable and he should have approached the Hon'ble Supreme Court for the redressal of his grievance, if any.
15. Respondents have also submitted that they have further considered the candidates afresh but none was found suitable for the post. Therefore, they disputed the maintainability of this O.A. alleging the same having become infructuous.
16. In reply to Para 4(xvi), the respondents have, however, categorically denied receipt of any order for issuing/serving notice regarding O.A. 28/HP/2000 to the present applicant from this Bench.
17. Private Respondent No. 4 (Dr. Y.P. Dube) has filed separate reply. He has also raised the question of maintainability of present O.A. and as per his submission remedy, if any, available to the applicant was by way of filing Review Application as order of this Court has attained finality upto Apex Court.
18. Respondents have also raised plea of present O.A. being bad for non-joinder of Dr. Y.S.P. University, Solan which according to him was a necessary party. He has also opposed this O.A. on the point of limitation.
19. On merits, Respondent No. 4 has also pleaded that the applicant since was not possessing requisite essential qualifications as per advertisement dated 13.6.1998, therefore, he has rightly been ousted from the post.
20. The applicant had failed to put his appearance in person or through Counsel on the date of hearing, though notices were issued to him through Respondent No. 1, therefore, plea of the respondents is that he was rightly proceeded ex parte as per provision of law when conclusion was drawn by the Court with regard to service of notices to the applicant. Therefore, applicant being aware of the proceedings had not chosen to appear before the Court and now at this stage, this case can not be re-opened on the ground that he has not been duly served and was condemned unheard. Respondents have also raised question of maintainability of present O.A. on non-joinder of Secretary of ICAR as necessary party and prayed to non-suit the O.A. on this ground.
21. Applicant in reply to all these averments of the respondents has filed rejoinder alongwith M. A. to implead I.C.A.R through its Secretary though as per his submission reply to O.A. has been verified not by Secretary but by some legal adviser. He has reiterated all his submissions as made in the O.A.
22. The learned Counsel for the applicant has also taken us through various decisions in support of his contentions that the applicant had no other remedy except by way of filing the present O.A. Since order of the Tribunal can only be executed in this Court hence, ex parte order can only be set-aside by the executing Court. So far as filing of review against ex parte order dated 21.3.2001 is concerned, applicant's plea is that it would not have been maintainable being time barred and review is otherwise not maintainable as SLP has been dismissed by Supreme Court, therefore, he has preferred present O.A. under Section 22(3)(h) of the Administrative Tribunal Act, 1985. He has taken us through various Judgments which are given below:
(a) Kewal Ram v. Ram Lubhai and Ors. .
(b) The Official Receiver, Bangalore v. Sellamma and Ors .
(c) State of Maharashtra and Anr. v. Prabhakar Bhikaji Ingle, .
(d) Gopabandhu Biswal v. Krishna Chandra Mohanty and Ors. .
23. Applicant has also filed affidavit in compliance of orders of this Court, dated 3.3.2005 while deposing that on inspection of case file in CWP No. 724/01 titled I.C.A.R. v. Y.P. Dube, he has found that said CWP was filed on 02 Aug., 2001 and before its listing for hearing for admission, Mr. H.M. Sharma, Advocate had in fact filed Power of Attorney for Respondent No. 1, Mr. Y.P. Dube. Case was listed on 23.8.2001 and presence of Mr. H.M. Sharma by clerical mistake has been shown for Respondent No. 2 i.e. the present applicant that too at the request of learned Counsel for petitioner. On 30 Aug., 2001, when the case was again listed the petition was dismissed without issuing notice to Res. No. 2, the present applicant.
24. The applicant has further deposed that after passing impugned order of cancellation of his selection vide Annexure A/1, the post was again advertised and interviews were conducted by ICAR and this Court has disposed of M.A. 206/2003 filed by the applicant for stay of selection while making it subject to outcome of the present O. A. Applicant was never called for the subsequent interview conducted on 25.2.2003. However, none was selected in the said process.
25. Applicant has categorically mentioned that he had never been served any notice at all stages of the case either pending in the Tribunal, High Court or in the Apex Court.
26. Neither of the respondents have countered these averments of the applicant made in his additional affidavit dated 8.5.2005.
27. We have heard learned Counsel for the parties and carefully gone through the record of the present O. A. as well as record summoned of O.A. No. 28/HP/2000. After giving our anxious and thoughtful consideration to the matter, following points raised for our consideration:
(1) Whether Application is maintainable in the present form?
(2) Whether it is hit by Law of Limitation?
(3) Whether it can be non-suited for non-joinder of necessary party?
(4) Whether applicant was ever served with notice to put his appearance to plead his case before any of the Courts?
(5) Can ex parte order which has attained finality upto highest Court of land, be set aside by this Court?
28. Before proceeding further we would like to reproduce relevant extract of Section 19 of the Administrative Tribunals Act, 1985, which entitles any aggrieved person to make an application to the Tribunal for the redressal of his grievance aggrieved by any order made:
Explanation-For the purposes of this sub-section, "order" means an order made
(a) by the Government or a local or other authority within the territory of India or under the control of the Government of India or by any corporation (or society) owned or controlled by the Government; or
(b) by an officer, committee or other body or agency of the Government or a local or other authority or corporation (or society) referred to in Clause (a).
29. A bare perusal of these contents shows that a person aggrieved by the Court's order cannot seek remedy under this section. Applicant has filed present Application under Section 22 wherein procedure to be adopted and powers to be exercised by the Tribunal have been mentioned. For the sake of convenience, relevant provisions thereof are reproduced herein below:
Procedure and powers of Tribunals-(1) A Tribunal shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908), but shall be guided by the principles of natural justice and subject to the other provisions of this Act and of any rules made by the Central Government, the Tribunal shall have power to regulate its own procedure including the fixing of places and times of its inquiry and deciding whether to sit in public or in private.
(2) xxx xxx xxx (3) A Tribunal shall have, for the purpose of discharging its functions under this Act, the same powers as are vested in a civil Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:
(a) to (g) xxx xxx xxx
(h) setting aside any order of dismissal of any representation for default or any order passed by it ex parte; and
(i) xxx xxx xxx
30. Provision as quoted hereinabove are self explanatory. Tribunals are vested with the powers as are vested in a civil Court under CPC 1908 yet not bound to follow them meticulously and have powers to regulate its own procedure. Under Section 22 (h), powers are specifically provided to set aside any order passed by it ex parte. Reviewing its own decisions is also provided under Section 22(3)(f).
31. We have also gone through Rule 17 of C.A.T. (Procedure) Rules, wherein 30 days period has been provided to review the order from the date of receipt of copy of order sought to be reviewed. This period of 30 days, however, cannot be extended or condoned as said Rule is enshrined with non-abstante clause and while taking assistance from the decision rendered by the Apex Court titled State of Maharashtra & Anr. v. Prabhakar Bhilkaji Ingle (supra). Paras 4 and 5 thereof read as follows:-
4. But in this case, when the self-same main order was confirmed by this Court, the question arises whether the Tribunal has had power under Order 47, Rule 1 CPC or any other appropriate provision under the Tribunals Act to review the orders passed by it and confirmed by this Court by refusing to grant leave. We find that the exercise of the review power is deleterious to the judicial discipline. Once this Court has confirmed the order passed by the Tribunal, that becomes final. Therefore, the Tribunal cannot have any power to review the previous order which stands merged with the order passed by this Court.
5. It is next contended by the learned Counsel for the respondent that though the Tribunal was communicated with the order of this Court dated 5.8.1995, it has thereafter passed the order. It would mean that though it had the knowledge of dismissal of the order passed by this Court, the Tribunal has exercised the power of review and that, therefore, it cannot be said to be illegal. We are wholly unable to appreciate the contention of the learned Counsel. We could appreciate that if the Tribunal had no knowledge of dismissal of the SLP it might, in certain circumstances, review its earlier order, e.g., if it was found that the order was vitiated by the manifest error of law apparent on the face of the record. But having received the communication that this Court had already upheld its order, the Tribunal's exercise of power can be said to be audacious and without any judicial discipline. Under those circumstances, we do not think that the Tribunal is justified in reviewing its own order when this Court had confirmed the order passed earlier.
32. Similarly in the case of Gopabandhu Biswal v. Krishna Chandra Mohanty and Ors (supra), speaking through Hon'ble Mrs. Justice Sujata v. Manohar, in Para 8, it has been held as under:
8. The power of review that is granted to an Administrative Tribunal is similar to the power given to a civil Court under Order 47 Rule 1 of the Code of Civil Procedure. Therefore, any person (inter alia) who considers himself aggrieved by a decree or order from which an appeal is allowed, but from which no appeal has been preferred can apply for review under Order 47, Rule 1(1)(a). An appeal lies to this Court from a decision of the Administrative Tribunal. If an appeal is preferred, the power to review cannot be exercised. In the present case, a special leave petition to file an appeal was preferred from the judgment of the Tribunal in TA No. 1 of 1989 to this Court, and the special leave petition was rejected. As a result, the order of the Tribunal in T.A. No. 1 of 1989 became final and binding. The rejection of a petition for leave to appeal under Article 136 of the Constitution, in effect, amounts to declining to entertain an appeal, thus, making the Judgment and order appealed against final and binding. Once a special leave petition is filed and rejected, the party cannot go back to the Tribunal to apply for review. In the case of State of Maharashtra v. Prabhakar Bhikaji Ingle, this Court held that when a special leave petition from the order of the Tribunal was dismissed by a non-speaking order, the main order was confirmed by the Supreme Court. Thereafter, the power of review cannot be exercised by the Tribunal. The Court said that the exercise of power of review by the Tribunal in such circumstances would be "deleterious to judicial discipline". Once the Supreme Court has confirmed the order passed by the Tribunal, that becomes final. In Sree Narayana Dharmasanghom Trust v. Swami Prakasananda, the above decision was reaffirmed. This Court held that after an order of this Court dismissed the SLP in limine from a Judgment of the High Court, the High Court cannot review it. The Court followed the earlier judgment in State of Maharashtra v. Prabhakar Bhikaji Ingle.
33. Thus, we find averments of the applicant quite favourable that remedy of review was not available to him as the order passed by this Court has already attained finality.
34. Hence, the present Application is held to be maintainable in the present form and is also further held not hit by law of Limitation in view of Article 123 of Limitation Act which provides starting point of limitation for setting aside ex parte decision 30 days from the date of knowledge as we are convinced with the arguments of the applicant that he was not aware of the proceedings at any point of time being not served in person or through Deptt. Had it been so, he would definitely not have terminated his lien from his earlier Deptt. in Dr. Y.S.P. University, Solan and his plea to that effect is found to be genuine.
35. We are also alive to the fact that under Rule 16 of CAT (Procedure) Rules, only 30 days are provided to apply for setting aside ex parte order but Article 123 of Limitation Act would come to his rescue as provision of the Act would prevail upon the Rules unless provided otherwise like incorporating non-obstante clause as has been provided under Rule 17 of these Rules.
36. The present Application is also held to be not non-suited for non joinder of Secretary as party as in earlier O. A. Secretary was not aparty and in the present O. A., written statement has not been verified by him, therefore., applicant by way of filing separate M.A. has prayed for impleading him as party. Otherwise also, case cannot be thrown out merely on such technicalities if it has no serious effect on the matter. Since Director General, ICAR is already party in the case, it is irrelevant whether Secretary is made party or not.
37. Now, the main point for consideration is as to whether applicant was in fact ever served with notice to enable him to put his appearance and plead his case. We have gone through the case file of earlier O.A. No. 28/HP/2000. As per orders sheets, first notice was issued to applicant (Respondent No. 4 in that O.A.) on 7.4.2000 by the Registry on the address as given in Memo. of parties which is shown as under:
Shri Kiran P. Raverkar, Senior Scientist of Soil Micro-biology C/o Director General, Indian Council of Agricultural Research, Krishi Bhavan NewDelhi-110 001.
Though the designation of the applicant has been shown as Sr. Scientist of Soil Microbiology, yet his place of posting at Bhopal has not been shown.
38. It is relevant to quote here that Mr. H.M. Sharma has been shown as Counsel for the applicant that is Dr. Y.P. Dube in said O.A. who had challenged the selection of the present applicant as Sr. Scientist.
39. Notice was issued to Respondent No. 4 (present applicant) on 3.8.2000, but none appeared on his behalf on 17.8.2000. On 17.8.2000, order was passed to issue fresh notice to Respondent No. 4 (present applicant) for 4.10.2000.
40. On 4.10.2000, Court has observed that Respondent No. 4 has neither put in appearance nor has filed written statement. Notice of the O.A. was sent to him by Regd. Cover on 30.8.2000. Hence in view of provision of "Order 5", he was deemed to have been served as A/D has not been received back undelivered. Resultantly, applicant was proceeded ex parte.
41. Now taking into consideration the averments of official respondents in their written statement that they have never received any notice or order for serving it to the present applicant is aforesaid O. A., question arises as to whether applicant can be held to be deemed to have been served under deeming provisions of the relevant rules.
42. After careful consideration of the matter and facts and circumstances narrated as above, we are of the opinion that applicant has never been served throughout as he was proceeded ex parte while exercising deeming provisions of the rules in this Court. No notice was issued to him in the CWP filed by official respondents as it was dismissed at admission stage. Needless to say, Mr. H.M. Sharma was a Counsel for Dr. Y.P. Dube throughout as is evident from Court orders in earlier O.A. as well as from copy of his power of Attorney filed in the High Court (A/28). S.L.P. was also dismissed in limine. Hence taking assistance from the decision rendered by the Apex Court in Kewal Ram v. Ram Lubhai's case (supra), we further hold that present Application is maintainable in this Court only, particularly, in view of the fact that application for execution of order passed by this Tribunal is maintainable in this Court only. Para 10 of the judgment (supra) is reproduced hereinbelow:
10. A feeble contention was put forward that fraud was practiced upon these two persons in not getting service effected on them. We do not propose to consider this aspect of the case since this case was not properly pleaded or proved. For the purpose of this Judgment we accept the conclusions arrived at by the Court below that these two persons were not served either in the suit or in the appeal. If so, what is the position. It is well settled that when a decree of the trial Court is either confirmed, modified or reversed by the appellate decree, except when the decree is passed without notice to the parties, the trial Court decree gets merged in the appellate decree. But when the decree is passed without notice to a party, that decree will not, in law, be a decree to which he is a party. Equally so in the case of an appellate decree. In this case these two persons were not served in the suit. A decree was passed ex parte against them without giving them notice of the suit. In law, therefore, there is no decree against them. In the appeal also they were not served. If they had been served in the appeal, things would have been different. They could have put forward their case in appeal and got appropriate orders passed. But that is not the case here. That being so, there is no bar for an application by them before the trial Court under Order IX, Rule 13, to set aside the ex parte decree against them. This is the only point that arises in the appeal field by the plaintiff. The appeal has to fail and is dismissed.
43. Though in the above referred decision no notice was issued to the affected persons whereas, in the present case, notice was issued but keeping in view specific reply of official respondents with regard to non receipt thereof, on the basis of which we have held that applicant was not duly served and order of the Tribunal has merged into the order of the Apex Court; in our considered opinion, ratio of this judgment is equally applicable in the present case. Thus, present Application to get said ex parte order set aside is not barred.
44. We may at this stage further refer to a decision in the case of The Official Receiver, Bangalore v. Sellamma and Ors. (supra). Extract of Paras 8 and 10 thereof is relevant to quote and are reproduced herein below:
8. A reading of the above provision would show that an application to set aside an ex pane decree passed by the trial Court should be made to the Court which has passed the same and to no other Court. The question for consideration, therefore, is whether that right which a defendant has under the said provision is lost when an appeal is filed against the said ex parte decree and the same is confirmed or modified by the appellate Court. It was contended by Sri Sastry that such an application could be made before the appellate Court itself. Acceptance of the said argument would be doing violence to the express provision of Order 9, Rule 13 of the Code of Civil Procedure which requires an application to be made to the trial Court.
9. A decree made by a higher Court in the land can be got set aside by a lower Court in a suit filed on the ground of fraud or collusion, even when the person who files such a suit may have been a party to the proceedings in the higher Court. Both the decrees, namely, a decree which is passed ex parte and a decree obtained by fraud or collusion, are voidable ones and in principle they stand on the same footing. An aggrieved party should have an opportunity to approach the competent Court for redress and when the Code of Civil Procedure has specifically made a provision in that regard authorizing an application for setting aside an ex parte decree before the Court by which the ex parte decree was passed, we cannot hold that such an application would not be maintainable on the basis of the principle of merger which has no statutory basis. If the ex parte decree passed by the trial Court is liable to be set aside on a ground which can be urged under Order 9, Rule 13 of the Code of Civil Procedure, then any decree passed on appeal or revision on the basis of such ex parte decree would have to give way.
45. Hence, taking into consideration that this Court is provided with the powers as are vested in a Civil Court under Code under Civil Procedure, 1908, under Section 22(3)(h) to set aside ex parte order, we have no hesitation to hold the view that provisions of Order 9, Rule 13 of the CPC would apply, which prescribes as under:
In any case in which a decree is passed ex parte against a defendant, he may apply to the Court by which the decree was passed for an order to set it aside, and if he satisfies the Court that the summons was not duly served or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him upon such terms as to costs, payment into Court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit.
46. It would be relevant to mention that either of the respondents have failed to prove that applicant was evev duly served at any stage of proceedings before three judicial stages. We have also not found any affidavit on record in these two cases, to be filed by respondents in proof of effecting service on present applicant.
47. Hence, ultimate result of our discussion as above is that applicant has succeeded in satisfying this Court and it is held that he was not duly served in O.A. No. 28/HP/2000 which has deprived him to put his defence and was proceeded ex parts by this Court on exercising its powers under deemed provisions. Thus, we hold this view accordingly. Therefore, in the interest of justice, the ex parte decision dated 21.3.2001 in O.A. No. 28/HP/2000 against the applicant is hereby quashed and set aside but subject to payment of cost of Rs. 3000 to be paid to the respondents in equal shares, on or before next date of hearing.
48. Resultantly, present O.A. is partly allowed as the case on the merits is to be decided while hearing the parties in O.A. No. 28/HP/2000 on the next date of hearing which is fixed1 for 18th November, 2005 at Shimla Circuit Bench. Registry is directed to inform the parties and their Counsel against proper receipt of information in this regard. Hence, in terms of these observations, present O.A. stands disposed of accordingly.