# Varun Kumar v. Union of India and others

- **Citation:** (2009) 1 ILRA 81
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2008-09-16
- **Case number:** Civil Misc. Writ Petition No. 48491 of 2008
- **Bench:** Amitava Lala, Arun Tandon
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/varun-kumar-v-union-of-india-and-others-41321
- **Pages:** 5

## Headnote

82 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
Administrative Tribunal Act 1985-Section
19-Rejection of application in limine
without considering the merit on ground
as per Rule 8 (4)-No separate application
supported with affidavit filed-held-not
proper-Tribunal
is
the
creation
of
constitution and not a statutory onepetition disposed of giving liberty to
approach before Tribunal with separate
application for condonation of delay-the
same be decided by Tribunal on merit.

Held: Para 7

Therefore, the writ petition is disposed
of without any order as to cost and with
a liberty to the petitioner to make an
application for condonation of delay
before the tribunal positively within a
fortnight from this date and if such an
application is made, the tribunal will
hear
out
such
application
afresh,
excluding the period consumed for the
purpose of making the writ petition upon
obtaining the certified copy from the
tribunal till the period when certified
copy of the order made ready for
delivery by the registry of this Court.
Case law discussed:
(1997) 3 SCC 261

## Text

1 All] Varun Kumar V. Union of India and others
81
granted to the petitioner with effect from
13.6.1996, it would be deemed that on
28.2.1998, the petitioner retired from the
post of Excise Inspector and was
receiving salary in the time scale of pay
admissible to the post of Excise Inspector.
Hence he would be entitled for pensionary
benefits to be computed accordingly. The
decision of the respondents that since the
petitioner has not joined on the post of
Excise Inspector and has not worked,
therefore, would not be entitled to take
advantage of notional promotion for the
purpose of pension is wholly arbitrary and
has not been shown to be supported by
any provisions contained in the service
rules applicable to the petitioner.

21. Even otherwise, it would result
in grave injustice as it would amount to
granting benefit to the respondents for
their own fault since denial of promotion
to the petitioner, when it was due, was not
on account of any fault of the petitioner,
but that of respondents. In view of the
aforesaid facts and circumstances, this
Court is clearly of the view that the
impugned orders of the respondents
denying pension to the petitioner taking in
to account his notional promotion on the
post of Senior Clerk, Senior Assistant and
Excise Inspector retrospectively is wholly
illegal and arbitrary and liable to be set
aside.

22. In the result, the writ petition is
allowed. The impugned orders dated
13.9.2002 of the Joint Secretary, U.P.
Government, Lucknow and consequential
order dated 29.5.2003 of the Excise
Commissioner,
U.P.,
Allahabad
(Annexures-6 and 5 respectively to the
writ petition) are hereby quashed. The
respondents are directed to re-determine
the pension and other retiral benefits of
the petitioner taking into account his
notional promotion on the post of Senior
Clerk with effect from 26.6.1981, Senior
Assistant with effect from 2.12.1992 and
Excise
Inspector
with
effect
from
13.6.1996 and calculate the same in
accordance with rules and pay the amount
of arrears of the revised pension and
consequential current pension also within
a period of four months from the date of
production of certified copy of this order
before them. The petitioner shall also be
entitled to interest on the amount of
arrears at the rate of 10% from the date of
order,
denying
benefit
of
notional
promotion in respect to pension, was
passed i.e. 13.9.2002 till the aforesaid
arrears are actually paid to the petitioner.

23. With the aforesaid directions, the
writ petition is allowed. The petitioner
shall also be entitled to cost which is
quantified to Rs.5,000/-.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 16.09.2008

BEFORE
THE HON'BLE AMITAVA LALA, J.
THE HON'BLE ARUN TANDON, J.

Civil Misc. Writ Petition No. 48491 of 2008

Varun Kumar

...Petitioner
Versus
Union of India & others ...Respondents

Counsel for the Petitioners:
Sri Vinay Khare.

Counsel for the Respondents:
Sri Dr. Ashok Nigam, Addl. Solicitor
General of India,
Sri Ajay Bhanot
82 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
Administrative Tribunal Act 1985-Section
19-Rejection of application in limine
without considering the merit on ground
as per Rule 8 (4)-No separate application
supported with affidavit filed-held-not
proper-Tribunal
is
the
creation
of
constitution and not a statutory onepetition disposed of giving liberty to
approach before Tribunal with separate
application for condonation of delay-the
same be decided by Tribunal on merit.

Held: Para 7

Therefore, the writ petition is disposed
of without any order as to cost and with
a liberty to the petitioner to make an
application for condonation of delay
before the tribunal positively within a
fortnight from this date and if such an
application is made, the tribunal will
hear
out
such
application
afresh,
excluding the period consumed for the
purpose of making the writ petition upon
obtaining the certified copy from the
tribunal till the period when certified
copy of the order made ready for
delivery by the registry of this Court.
Case law discussed:
(1997) 3 SCC 261

(Delivered by Hon'ble Amitava Lala, J.)

1. The writ petition has been made
challenging order dated 24th July, 2008
passed by the Central Administrative
Tribunal, Allahabad (hereinafter referred
to as the tribunal), not on merits but only
with regard to delay, holding that in the
absence of application for condonation of
delay, nothing can be adhered to on
merits. So far as this part is concerned, we
have gone through the provisions of
Sections
19,
20
and
21
of
the
Administrative Tribunals Act, 1985 (for
short the Act). Section 21 directly deals
with limitation. Sub-section (1) (a) gives
time to make application before the
tribunal within one year from the date on
which final order has been made. Subsection (1) (b) gives time to make such
application within one year after the
expiry of six months from the date of
filing of appeal or representation made
under clause (b) of sub-section (2) of
Section 20. We quote hereunder all the
relevant Sections 19, 20 and 21 of the Act
for all practical purposes.

"19. Applications to Tribunals. -(1)
Subject to the other provisions of this Act,
a
person
aggrieved
by
any
order
pertaining to any matter within the
jurisdiction of a Tribunal may make an
application to the Tribunal for the
redressal of his grievance.
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).
(2) Every application under subsection (1) shall be in such form and be
accompanied by such documents or other
evidence and by such fee (if any, not
exceeding one hundred rupees) in respect
of the filing of such application and by
such other fees for the service or
execution of processes, as may be
prescribed by the Central Government.
(3) On receipt of an application
under sub-section (1), the Tribunal shall,
if satisfied after such inquiry as it may
deem necessary, that the application is a
fit case for adjudication or trial by it,
1 All] Varun Kumar V. Union of India and others
83
admit such application; but where the
Tribunal is not so satisfied, it may
summarily reject the application after
recording its reasons.
(4) Where an application has been
admitted by a Tribunal under sub-section
(3), every proceeding under the relevant
service rules as to redressal of grievances
in relation to the subject-matter of such
application pending immediately before
such admission shall abate and save as
otherwise directed by the Tribunal, no
appeal or representation in relation to
such matter shall thereafter be entertained
under such rules.

20. Applications not to be admitted
unless other remedies exhausted. -(1) A
Tribunal shall not ordinarily admit an
application unless it is satisfied that the
applicant had availed of all the remedies
available to him under the relevant service
rules as to redressal of grievances.
(2) For the purposes of sub-section
(1), a person shall be deemed to have
availed of all the remedies available to
him under the relevant service rules as to
redressal of grievances, -
(a) if a final order has been made by
the Government or other authority or
officer or other person competent to pass
such order under such rules, rejecting any
appeal preferred or representation made
by such person in connection with the
grievance; or
(b) where no final order has been
made by the Government or other
authority or officer or other person
competent to pass such order with regard
to the appeal preferred or representation
made by such person, if a period of six
months from the date on which such
appeal was preferred or representation
was made has expired.

(3) For the purposes of sub-sections
(1) and (2), any remedy available to an
applicant by way of submission of a
memorial to the President or to the
Governor of a State or to any other
functionary shall not be deemed to be one
of the remedies which are available unless
the applicant had elected to submit such
memorial.

21. Limitation. - (1) A Tribunal
shall not admit an application, -
(a) in a case where a final order such as
is mentioned in clause (a) of sub-section
(2) of section 20 has been made in
connection with the grievance unless the
application is made, within one year from
the date on which such final order has
been made;
(b) in a case where an appeal or
representation such as is mentioned in
clause (b) of sub-section (2) of section 20
has been made and a period of six months
had expired thereafter without such final
order having been made, within one year
from the date of expiry of the said period
of six months.

(2)
Notwithstanding
anything
contained in sub-section (1), where -

(a) the grievance in respect of which
an application is made had arisen by
reason of any order made at any time
during
the
period
of
three
years
immediately preceding the date on which
the jurisdiction, powers and authority of
the Tribunal becomes exercisable under
this Act in respect of the matter to which
such order relates ; and
(b) no proceedings for the redressal
of such grievance had been commenced
before the said date before any High
Court,
84 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
the application shall be entertained by the
Tribunal if it is made within the period
referred to in clause (a), or, as the case
may be, clause (b), of sub-section (1) or
within a period of six months from the
said date, whichever period expires later.
(3)
Notwithstanding
anything
contained in sub-section (1) or subsection (2), an application may be
admitted after the period of one year
specified in clause (a) or clause (b) of
sub-section (1) or, as the case may be, the
period of six months specified in subsection(2), if the applicant satisfies the
Tribunal that he had sufficient cause for
not making the application within such
period."

2. We have also checked up the
Central
Administrative
Tribunal
(Procedure) Rules, 1987 (hereinafter
referred to as the Rule) and find that the
format under Rule 4, prescribed that the
applicant will declare that the application
is within the period of limitation as per
Section 21 of the Act. Therefore, the
application is to be made coupled with a
separate application for condonation of
delay for the purpose of hearing by the
tribunal. We also find that as per Rule 8
(4) of the Rules, the applicant who seeks
condonation of delay, shall file a separate
application supported by an affidavit,
therefore, the Rule is very clear to that
extent.

3. Mr. Vinay Khare, learned counsel
appearing for the petitioner contended
before us that since the selection was not
made in the year 2005 but actually it has
been noticed during that period within
which one year's period is prescribed for
appeal, there is no need of making any
separate application for condonation of
delay, which has been strongly opposed
by Dr. Ashok Nigam, learned Addl.
Solicitor General, by saying when the law
as mentioned above gives scope to make
it, the same is to be followed. In such way
the explanation can be given.

4. During the course of hearing, one
other question arose before us i.e. whether
word "limitation" is the appropriate word
in respect of hearing of such matters by
the tribunal. Against this background, we
find that the tribunal was formed as per
Article 323A of the Constitution inserted
by
the
Constitution
(Forty-second
Amendment)
Act,
1976
w.e.f.
3rd
January, 1977. It gives power to the
tribunal to hear such matters as a Court of
first instance. If we go through the ratio
laid down by the judgement of sevenJudge Bench of apex Court, reported in
(1997) 3 SCC 261(L. Chandra Kumar
vs. Union of India and others), we shall
find the following:
"99. In view of the reasoning
adopted by us, we hold that clause 2 (d) of
Article 323-A and clause 3 (d) of Article
323-B, to the extent they exclude the
jurisdiction of the High Courts and
Supreme Court under Articles 226/227
and
32
of
the
Constitution
are
unconstitutional. Section 28 of the Act
and the "exclusion of jurisdiction" clauses
in all other legislations enacted under the
aegis of Articles 323-A and 323-B would,
to the same extent, be unconstitutional.
The jurisdiction conferred upon the High
Courts under Articles 226/227 and upon
the Supreme Court under Article 32 of the
Constitution is a part of the inviolable
basic structure of our Constitution. While
this jurisdiction cannot be ousted, other
courts and Tribunals may perform a
supplemental role in discharging the
powers conferred by Articles 226/227 and
32 of the Constitution. The Tribunals
1 All] Nirmal Tewari @ Bhoora V. State of U.P.
85
created under Article 323-A and Article
323-B of the Constitution are possessed of
the competence to test the constitutional
validity of statutory provisions and rules.
All decisions of these Tribunals will,
however, be subject to scrutiny before a
Division Bench of the High Court within
whose jurisdiction the Tribunal concerned
falls. The Tribunals will, nevertheless,
continue to act like courts of first
instance in respect of the areas of law for
which they have been constituted. It will
not, therefore, be open for litigants to
directly approach the High Courts even in
cases where they question the vires of
statutory legislations (except where the
legislation which creates the particular
Tribunal is challenged) by overlooking
the jurisdiction of the Tribunal concerned.
Section 5 (6) of the Act is valid and
constitutional and is to be interpreted in
the manner we have indicated."

5. Therefore, the tribunal is not an
usual
statutory
tribunal
but
the
jurisdiction of Writ Court is curtailed and
given to the tribunal. Thus, undoubtedly
the tribunal hears such matters as a court
of first instance i.e. like learned single
Judge exercising writ jurisdiction of the
High Court and its decisions are of
course, subject to scrutiny by a Division
Bench of the High Court, therefore, in
respect of exercise of such jurisdiction for
adjudicating questions of natural justice,
the appropriate word, according to us,
should be 'laches' in the place and instead
of 'delay'. The word 'limitation', therefore,
is uncalled for. Copy of such observation
and/or order will be communicated to
learned Addl. Solicitor General of India to
inform the government in this regard.
However, presently we have to go by the
existing law.

6. In the instant case, we find that
virtually by making this writ petition, the
petitioner wants to enter into merits of the
matter, bypassing the order of tribunal
passed on account of delay. We cannot
enter into the merits in such circuitous
manner because merits cannot be adhered
to by this Court directly as a court of first
instance, overlapping the jurisdiction of
the tribunal.

7. Therefore, the writ petition is
disposed of without any order as to cost
and with a liberty to the petitioner to
make an application for condonation of
delay before the tribunal positively within
a fortnight from this date and if such an
application is made, the tribunal will hear
out such application afresh, excluding the
period consumed for the purpose of
making the writ petition upon obtaining
the certified copy from the tribunal till the
period when certified copy of the order
made ready for delivery by the registry of
this Court.

Petition disposed of.
---------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 02.12.2008

BEFORE
THE HON'BLE BARKAT ALI ZAIDI, J.

Criminal Misc. Bail Application No.31381
of 2008

Nirmal Tewari @ Bhoora ...Applicant
Versus
State of U.P.

...Opposite Party

Counsel for the Applicant:
Sri J.S. Kashyap
Stuti Singh

Counsel for the Opposite Party:
Sri S.K. Kulshrestha
A.G.A.