K P SHARMA Vs. K L MISHRA

JUDGEMENT

(1.) BY this petition under Article 226/227 of the Constitution of India the petitioner has challenged the order dated 5-2-1997 passed by the State Administrative Tribunal, Gwalior Bench, in O. A. No. 752/95.

(2.) BRIEFLY stated, the facts are that respondent No. 1 Dr. K. L. Mishra who was at the relevant time Lecturer in the Government Ayurvedic College and Hospital, Gwalior, filed an application being O. A No. 752/95 on 20-7-1995 before the State Administrative Tribunal, Bench Gwalior (for short the 'tribunal') challenging the Gradation List of 1981 and onwards in which he was placed below the petitioner herein, i. e. Dr. K. P. Sharma and praying that the respondents No. 2 and 3 herein be directed to place the applicant/respondent No. 1 above respondents No. 3 to 6 before the Tribunal in the Gradation lists published by making necessary corrections therein and to give all consequential and ancillary benefits to the applicant. On notice being issued, the State/respondents No. 2 and 3 herein (who were respondents No. 1 and 2 before the Tribunal) filed return and it was stated therein that due to clerical mistake name of applicant has been included in the gradation list published in the year 1981 below the respondents No. 3 to 6 and the same has been repeated in the gradation list published in the subsequent years, and on the basis of the representations of the applicant the said mistake has been noticed and due scrutiny is being carried out in the matter of the applicant and his grievance is expected to be redressed within a short period. The petitioner (who was respondent No. 5 before the Tribunal) filed return wherein he stated that it is he who is senior and not applicant Dr. K. L. Mishra. A preliminary objection was also raised in the return (Para 1 (d)) which reads : "that in reply to Para 5 of the petition it is submitted that the petition is highly belated and barred by limitation. The answering respondent No. 5 is always senior to the petitioner from the appointment and has rightly been placed in all the Gradation Lists issued. Since the date of appointment the petitioner has never challenged the seniority of the answering respondent and mainly on the basis of the gradation list issued in 1994 the petitioner could not bring this case within the period of limitation which is hopelessly barred by limitation and is hereinafter replied in the factual part of the petition. " The petitioner herein in reply to Ground D of the application stated in Para 4. 4 of his return :

(3.) A perusal of the record shows that on 5-2-1997 the case was listed for hearing on I. A. No. 229/97 filed by the petitioner. On that date the Tribunal heard the parties on the said application. But, while deciding the aforesaid interlocutory application, the Tribunal further proceeded to decide the matter on merits merely by taking note of the admission made by the respondents No. 1 and 2 in their return. The order of the Tribunal reads :