1999 Supreme(Bom) 989

IN THE HIGH COURT OF BOMBAY
R.M. Lodha, J.
Shetkari Sahakari Sangh Ltd...... Petitioner.
Versus
Shahuwadi Taluka Shetkari Sahakari Kharedi
Vikri Sangh others.... Respondents.
Writ Petition Nos. 2640 2676 of 1984, decided on 2-9-1998.
Advocates appeared :
M.A. Rane, for the petitioner.
V.B. Rajure, for respondent No. 1.

Headnote:-Section 9-Limitation-Appointment to Promotional Post-Appeal against appointment-Appeal filed well after 4 years-Prescription 30 days-Explanation for delay unsatisfactory-Not to be condoned-Appeal-Not maintainable.- There was, therefore, a delay of more than four years and four months in filing the appeal as against the prescription of thirty days. There is absolutely no explanation by respondent No.1 as to why he could not file an appeal under Section 9 of the MEPS Act within the prescribed period of limitation after the appointment of respondent No.2 to the post of clerk. It was tried to be submitted by Shri Singh that respondent No.1 made several representations to the management but he was not given any reply. Therefore, according to him, the respondent No. 1 was waiting for the reply. I do not think that this sort of explanation is in anyway satisfactory to explain the long delay of more than four years. The learned Presiding Officer has observed in para 26 of his judgment that respondent No. 1 first on 20.12.1995 to approach the School tribunal. Therefore, according to the learned Presiding Officer, the delay deserves to be condoned. In my opinion, the leaned Presiding Officer of the School tribunal has clearly acted in contravention of the provisions of the MEPS Act in condoning the delay.

       Thus, sub-section (2) of Section 9 prescribes the limitation of thirty days from the date of receipt of the order of dismissal, removal, otherwise termination of service or reduction in rank. It does not speak of any order of super-session, obviously because in the case of supersession, there is no order, the appointment of a Junior employee to the promotional post itself amounts to supersession. Therefore, there is no dispute of the fact that an appeal in the case of supersession has to be filed within a period of thirty days from the date on which such supersession occurs. Sub-section (3) gives power to the School tribunal to maintain an appeal even after the expiry of the prescribed period if it is satisfied that the appellant has sufficient cause for not preferring the appeal within that period.

       Having regard to the provisions of sub-sections (2) and (3) of Section 9 of the MEPS Act, it cannot be said that respondent No. 1 had any sufficient cause for not filing his appeal within the prescribed period of limitation. The learned Presiding Officer has, therefore, acted illegally in condoning the delay without properly ascertaining the existence of sufficient cause. Therefore, on this count alone, the appeal filed by respondent No. 1 was not maintainable. Consequently, it must be held that the learned Presiding Officer of the School tribunal committed an illegality in entertaining the appeal.

       Super-session takes place when a junior employee is promoted to a higher post by overriding the claim of a senior employee of his cadre. It is in this context that the words "while making an appointment to any post by promotion" occurring in sub-clause (b) are material and relevant. The case of respondent No. 1 would have been covered by sub-clause (b) if respondent No.2 had been appointed to the post of clerk by way of promotion. That is, however, not so. As pointed out above, she was not an employee of the school earlier and she was directly appointed to the post of clerk. Therefore, there is no question of respondent No.1 being superseded by respondent No.2. The view taken by the learned Presiding Officer that there was an "implied super-session" of respondent No. 1 is not proper and correct and it ignores the provisions of sub-clause (b) of subsection (1) of Section 9 of the MEPS Act.

       -Section 9(1)(b)-Super-session-Promotional post filled by direct recruitment-Not super-session.

       -Sections 9(2) and (3)-Appeal against super-session not filed within prescribed period M limitation-Condo-nation of delay by School tribunal without ascertaining existence of sufficient cause illegal.

       -Section 1l(2)(f)-Power of tribunal-Appointment to promotional post by supersession appeal made-No supersession made out-No relief granted.-Section 11 (2)(f) empowers the tribunal "to give such other relief to the employee and to observe such other conditions as it may specify, having regard to the circumstances of the case". In fact, when there is no case of supersession of respondent No.1, no question of granting to him any relief including the alternative relief arises. Therefore, it must be said that by granting the alternative relief, the learned Presiding Officer of the School Tribunal has exceeded his power under Section 11 of the MEPS Act. Consequently, the impugned order suffers from serious illegality and, therefore, liable to be quashed and set aside.