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Himachal Pradesh High Court · body

2012 DIGILAW 844 (HP)

Vijay Chandan v. State of Himachal Pradesh

2012-11-16

R.B.MISRA, RAJIV SHARMA

body2012
Judgment R.B. Misra, J. The present review petition has been preferred for recalling the order dated 24.11.2009 passed by this Court in CWP (T) No. 10954 of 2008. Initially both the petitioners filed Original Application No. 2067 of 2004 before the learned H.P. State Administrative Tribunal, at Shimla (in short ‘Tribunal’), praying to quash seniority list dated 16.6.2003 of Himachal Pradesh Administrative Service (in short ‘HAS’) Officers and seeking directions to redraw the same within a time bound manner and granting of promotion to the writ petitioners to HAS cadre with retrospective effect from the date when they were entitled and for declaring the petitioners seniors to the private respondents. The said Original Application after abolition of learned Tribunal was transferred to this Court and was re-numbered as CWP (T) No. 10954 of 2008. 2. The writ petition in question come up for consideration on 24.11.2009 and after hearing learned counsel for the petitioners as well as learned Senior Advocate General for respondent No. 1 and learned counsel for respondents No. 6, 8, 11 and 12, was dismissed as infructuous vide order dated 24.11.2009, which reads as under:- “Ms. Aruna Sharma submits that the present petition has become infructuous. Consequently, the same is dismissed as infructuous. No costs. (R.B. Misra), ACJ. (Rajiv Sharma), J.” 4. After dismissal of the writ petition in question being infructuous, an application viz CMP (T) No. 301 of 2010 was preferred by petitioners with a prayer to re-call the order dated 24.11.2009 passed in CWP (T) No. 10954 of 2008. This Court (Division Bench) after hearing the learned counsel for the parties was pleased to pass the following order on 27.7.2010. “It is settled law by now that once the petition is disposed of, it cannot be reopened by way of application. Accordingly, the present application is dismissed. However, liberty is reserved to the petitioner to move appropriate petition seeking review of the judgment, if permissible under law. (R.B. Misra), Judge. (Rajiv Sharma), Judge.” 5. The writ petitioners has now preferred the present review petition on 1st March, 2011 for recalling the order dated 24.11.2009 with further prayer to restore the writ petition No. 10954 of 2008 to its original number. (R.B. Misra), Judge. (Rajiv Sharma), Judge.” 5. The writ petitioners has now preferred the present review petition on 1st March, 2011 for recalling the order dated 24.11.2009 with further prayer to restore the writ petition No. 10954 of 2008 to its original number. Along with the review petition, an application being C.M.P. (M) No. 359 of 2011 under Section 5 of the Limitation Act for condonation of delay of 416 days in filing the review petition has been preferred. The notice of the said application was issued and after receiving the response of the concerned respondents, the said application has been taken for hearing. 6. The writ petitioners have endavoured to explain the delay by stating in paragraph 2 of the application for condonation of delay that the judgment dated 24.11.2009 passed in CWP (T) No. 10954 of 2008 was communicated by learned counsel for the writ petitioners immediately that the writ petition had been admitted by this Court vide order dated 24.11.2009. As such, copy of order dated 24.11.2009 was applied for in a routine manner on 25.11.2009 and the order was collected on 25.6.2010. On receiving the copy thereof the actual position came to the knowledge of the writ petitioners and thereafter writ petitioners moved an application on 7.7.2009 for recalling the order dated 24.11.2009, being CM.P (T) No. 301 of 2010, which was also dismissed on 27.7.2010. The writ petitioners thereafter applied for fresh certified copy of the order dated 24.11.2009 for the purpose of filing review petition, which was supplied on 7.9.2010. It has further been submitted on behalf of the writ petitioners that the review petition was misplaced in the office by the clerk of the learned counsel, as such, it could not be filed in time. The file was located in January, 2011, when the fact about non-filing of the review petition came to the notice of the original counsel for the first time. In that process the delay has occurred in filing the review petition, which is neither intentional nor deliberate, but has occurred on account of reasons mentioned above. On such grounds prayer is being made to condone the delay. 7. In that process the delay has occurred in filing the review petition, which is neither intentional nor deliberate, but has occurred on account of reasons mentioned above. On such grounds prayer is being made to condone the delay. 7. On the other hand learned counsel for the respondents No. 6 and 11 have vehemently opposed the application for condonation of delay by submitting that the writ petitioners had initially filed Original Application No. 2067 of 2004 before the learned Tribunal challenging the seniority list dated 16.6.2003, that too by delay of about more than one year and prayed for promotion with retrospective effect. However, the impugned order dated 24.11.2009 has been rightly passed declaring the CWP (T) No. 10954 of 2008 as infructuous, as many of the respondents either have already died or many of them have already been retired. It has been brought to our notice that Sh. G.S. Thakur, respondent No. 2, Sh. H.S. Pundeer respondent No. 3, Sh. Hans Raj respondent No. 7, Sh. H.S. Guletia respondent No. 9 have already retired, whereas, Sh. Ravinder Singh respondent No. 4, Sh. T.G. Negi respondent No. 5 and Sh. B.D. Chowdhry respondent No. 10 have already died. The writ petitioners had not challenged the tentative seniority list and had only challenged seniority list dated 16.6.2003 of HAS Officers working under the Government of Himachal Pradesh. Thereafter many more, subsequent seniority lists, have been issued and many of the respondents and similarly situated persons have already been promoted and have also been superannuated. In the facts and circumstances, the writ petitioners, through not members of the HAS Officers, were not entitled to any relief and the writ petition in question was rightly dismissed being infructuous, in view of the submissions made by learned counsel for the petitioners. It has also been argued on behalf of the respondents that no reasonable explanation has been given, what to say of any cogent reasons or proper explanation for condonation of delay in fling the review petition. It is also been submitted that the writ petitioners are not vigilant in pursuing their case, therefore, the application for condonation of delay is to be dismissed. 8. We have heard the learned counsel for the parties and have also perused the documents. It is also been submitted that the writ petitioners are not vigilant in pursuing their case, therefore, the application for condonation of delay is to be dismissed. 8. We have heard the learned counsel for the parties and have also perused the documents. It is true that the seniority list dated 16.6.2003 of HAS Officers has been challenged on 9.7.2004 i.e. after one year by filing Original Application No. 2067 of 2004, which on the abolition of the learned Tribunal has been transferred to this Court and was re-numbered as CWP (T) No. 10954 of 2008 and the petition was heard on 24.11.2009, by this Court on which date the learned counsel appearing for the writ petitioners has submitted that the matter has become infructuous. It appears that on 24.11.2009, many of the private respondents have either died or have already superannuated, as such, it cannot be said that the matter cannot be declared as infructuous. However, the writ petitioners are said to be aware of the dismissal of the writ petition by an order dated 24.11.2009 which was passed in presence of the learned counsel of the petitioners and if there was any doubt about the said order, it could have been immediately brought to the notice of this Court for rectification or modification of the same. In our considered view, there was considerable slackness on the part of the writ petitioners in approaching before this Court for recalling the order by filing the review petition. After passing of order dated 24.11.2009, the writ petitioners have moved an application being CMP (T) No. 301 of 2010, which was also dismissed on 27.7.2010, in presence of learned counsel of the writ petitioners. Even thereafter also the review petition in question has been filed by inordinate delay, for which no sufficient and proper explanation has been given. This Court is conscious about the observations of Hon’ble Supreme Court in Raja Harish Chandra Raj Sigh Vs. The Deputy Land Acquisition Officer and another, AIR 1961 (48) SC 1500, that unless a party had knowledge of the order, the question of approaching the appropriate forum challenging the order does not arise. Such view was subsequently re-iterated by the Hon’ble Supreme Court in State of Andhra Pradesh & Another Vs. Marri Venkaiah & Others, AIR 2003 SC 2949 and also in Parsottambhai Maganbhai Patel & others Vs. Such view was subsequently re-iterated by the Hon’ble Supreme Court in State of Andhra Pradesh & Another Vs. Marri Venkaiah & Others, AIR 2003 SC 2949 and also in Parsottambhai Maganbhai Patel & others Vs. State of Gujarat and others, AIR 2005 SC 3464 . It goes without saying that the learned counsel for the writ petitioners was heard while declaring the writ petition as infructuous vide order dated 24.11.2009 and thereafter CMP (T) No. 301 of 2010 was also dismissed on 27.7.2010 after hearing the learned counsel for the petitioners. As such, it cannot be said that the writ petitioners were not in the knowledge of the orders dated 24.11.2009 and 27.7.2010. Therefore, the application for condonation of delay in filing the review petition is without any proper and sufficient explanation, cannot be allowed. Therefore, the application for condonation of delay being C.M.P. (M) No. 359 of 2011 is dismissed. In view of the dismissal of the application for condonation of delay, the present review petition cannot be entertained, as such, the same is also dismissed.