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2011 DIGILAW 220 (GUJ)

Harish H. Dave v. Chief Administrative Officer Gujarat Water Supply and Sewerage Board

2011-03-16

G.B.SHAH, V.M.SAHAI

body2011
JUDGMENT : V.M. Sahai, J. This Letters Patent Appeal has been filed challenging the order passed by the learned Single Judge dated 30.8.2010 in Civil Application for amendment No.8945 of 2010 has been dismissed. 2. With the consent of learned counsel for the parties, we have taken up this appeal for final disposal, at the admission stage. 3. Special Civil Application No.6416 of 1994 and Civil Application No.6416 of 1994 and Civil Application No.3125 of 2008 were disposed by a common order dated 4.4.2008. The order is extracted as under : "(1) Heard learned counsel for the parties. (2) Mr. P.H.Pathak, learned counsel for the applicant-original petitioner, relying on the letter dated 8.2.2007 addressed by Zonal Officer and Superintending Engineer of opponent-Department and submits that in case if the petition is withdrawn, there may be some delay in granting deemed date, as prayed for. (3) Mr. Deepak Patel, learned counsel for the opponents Nos.2 and 3 submits that if the main Special Civil Application is withdrawn by the petitioner, case of the applicant-petitioner for granting deemed date will be expedited. (4) In view of the above, Mr. Pathak, learned counsel for the petitioner seeks permission to withdraw Special Civil Application No.6416 of 1994 with a request to direct the respondent authorities to pass appropriate orders granting deemed date at the earliest. Mr. Deepak Patel, learned counsel for the respondent has no objection to it. (5) Permission as prayed for is granted. This Special Civil Application No.6416 of 1994 stands disposed of as withdrawn. The respondent authorities are directed to pass appropriate order granting deemed date to the petitioner within a period of 8 weeks from the date of the receipt of the writ of this order. In case of any difficulty, liberty is granted to the petitioner to revive this petition. Rule is discharged. However, there shall be no order as to costs. (6) In view of the above, Civil Application No.3125 of 2008 also stands disposed of." 4. Thereafter, the appellant-petitioner made a representation before the respondents on 23.4.2008. The respondents have decided the said representation by order dated 21.5.2008 wherein they have held that the appellant-petitioner is not entitled to deemed date of seniority vis-a-vis his juniors. The appellant filed an application for reviving the writ petition. The application was allowed on 20.7.2009. Thereafter, the appellant-petitioner made a representation before the respondents on 23.4.2008. The respondents have decided the said representation by order dated 21.5.2008 wherein they have held that the appellant-petitioner is not entitled to deemed date of seniority vis-a-vis his juniors. The appellant filed an application for reviving the writ petition. The application was allowed on 20.7.2009. The order dated 20.7.2009 wrongly mentioning the date of disposal of the petition as 4.4.2009 though the correct date is 4.4.2008. The order dated 20.7.2009 is extracted as below:- "ORAL ORDER (1) The applicant-original petitioner has filed this application with the following prayers:- (A) The Hon'ble Court be pleased to set aside the order dated Annexure-A and revive the Spl.C.A. No.6416/1994 and direct the office to place the said Spl.CA for hearing before the Hon'ble Court. (B) Be pleased to condone the 50 delay, if any, in filing of the present Misc. Application in interest of justice and further direct the respondents to pay the cost and compensation to the petitioner. (C) Pending admission and final disposal of the application be pleased to direct the respondents to give the deemed date of seniority to the applicant at par with other similarly placed employees forthwith. (D) Any other and further relief this Hon'ble Court deem fit and proper in interest of justice together with costs." (2) Learned counsel for the applicant submits that order dated 21.05.2008 passed by the respondent-Board does not confer correct deem date in accordance with law. (3) Mr. Dipak Patel, learned counsel for the opponent, submits that granting of deem date to the applicant is in accordance with various circulars issued by the Board and in accordance with law. (4) However, vide order dated 04.04.2009 liberty was granted to the petitioner to revive the petition in case of difficulty. In view of the above, I deem it just and proper to revive Special Civil Application No.6416 of 1994. Order accordingly. (5) This application is allowed to the aforesaid extent only. The Office is directed to notify the main matter for hearing." 5. Thereafter, the appellant-petitioner filed an amendment application in Special Civil Application No.6416 of 1994. The said application had been dismissed by the learned Single Judge on 30.8.2010 on the ground that it was filed after one year. It is this order dated 30.8.2010 which has been challenged in this appeal. 6. Thereafter, the appellant-petitioner filed an amendment application in Special Civil Application No.6416 of 1994. The said application had been dismissed by the learned Single Judge on 30.8.2010 on the ground that it was filed after one year. It is this order dated 30.8.2010 which has been challenged in this appeal. 6. Having heard learned counsel for the parties, we are of the opinion that the order passed by the respondents on 21.5.2008 gave fresh cause of action to the appellant and it could be challenged by the appellant-petitioner by way of filing fresh (writ petition) Special Civil Application. The revival of the petition in case of difficulty was permissible only in case if there was some difficulty or problem with the respondents in not deciding the question of deemed seniority, then only the petition can be revived. Once the representation of deemed seniority had been decided, it could be challenged by way of filing fresh writ petition because, after disposal of the earlier writ petition, the Court has become functus officio except for that limited purpose. Therefore, we are of the opinion that the revival of the petition by order dated 20.7.2009 is not valid. The question arises whether the Court should permit revival of the writ petition or any other case. Ordinarily revival of the case is permissible only where a party has no remedy. If the order dated 4.4.2008 was not complied by the respondents then it was open to the appellant to file Contempt Petition under the Rules of the Court. Under Article 215 of the Constitution of India power to punish for contempt has been provided to the High Court. This does not mean that every Single Judge or Division Bench possesses power to punish for contempt. Power to take action for contempt in case of non-compliance of the order is within the jurisdiction of Single Judge or Division Bench in whose jurisdiction of contempt had been vested under the roster nominated by Hon'ble the Chief Justice. After final disposal of the case only review application or application for correcting clerical or arithmatical errors could be filed. But by moving an application saying that revive the case as the order passed by the respondents is not to the satisfaction of the appellant. After final disposal of the case only review application or application for correcting clerical or arithmatical errors could be filed. But by moving an application saying that revive the case as the order passed by the respondents is not to the satisfaction of the appellant. In our considered opinion, the application to revive the writ petition was not maintainable and the order of learned Single Judge dated 20.7.2009 was illegal and without jurisdiction. 7. We have gone through the amendment sought by the appellant-petitioner. As we have already held that once the writ petition was dismissed as withdrawn or disposed of on 4.4.2008 by the Court, the Court becomes functus officio. The Court has granted liberty to revive the petition in case of difficulty, i.e. for the limited purpose and if the order passed by the Court is not carried out by the respondents, then only petition can be revived. But, once the order dated 21.5.2008 had been passed by the respondents rejecting the claim of seniority of the appellant, in that case, the petition could not be revived and the only option available to the appellant was to challenge the decision by way of filing separate fresh writ petition. In this view of the matter, we are satisfied that the learned Single Judge had no jurisdiction to reopen the entire case and entertain the amendment application which has rightly been rejected as time barred. 8. Learned counsel for the appellant has further stated that the learned Single Judge has dismissed the application on the ground of delay only. We are of the opinion that if a fresh petition was filed, the appellant was required to explain latches. Therefore, revival application and amendment application were filed. There was one year's delay and in view of the legal position discussed above, the amendment application was not maintainable and deserved to be dismissed as it was nothing but an abuse of the process of the Court. 9. Learned counsel for the appellant has relied upon a decision of the Apex Court in the case of Andhra Bank v. ABN Amro Bank N.V. & Ors., AIR 2007 SC 2511 . We have gone through this decision. The view taken by the Apex Court is that, normally an application for amendment should not be dismissed on the ground of delay. We have gone through this decision. The view taken by the Apex Court is that, normally an application for amendment should not be dismissed on the ground of delay. In the present case, though the learned Single Judge has dismissed the amendment application on the ground of delay, we are of the opinion that the Court had become functus officio when it disposed of the writ petition giving liberty only for a limited purpose and if the respondents do not comply the order directing the respondents to decide the question of deemed seniority, only then the petition could have been revived. Therefore, in the peculiar facts of this case, the amendment application was not maintainable and it has been rightly dismissed. We do not find any reason to interfere with the order passed by the learned Single Judge. This appeal fails and is accordingly dismissed. Notice is discharged. 10. In view of the order passed in the appeal, the Civil Application for interim relief shall also stand dismissed. Appeal dismissed.