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2015 DIGILAW 3775 (ALL)

Om Prakash v. State of U. P.

2015-12-02

RITU RAJ AWASTHI

body2015
JUDGMENT Ritu Raj Awasthi, J. Heard learned counsel for the petitioner as well as learned Standing Counsel 2. Affidavit of service is already on record. As per affidavit of service the opposite parties have been duly served. 3. This review petition has been filed arising out of order dated 22.9.2014, passed in Writ Petition No.2090 (SS) of 1999, whereby the writ petition has been dismissed making observations that "either the cause of action no more survives or that petitioner has lost interest in this matter or it has otherwise become infructuous...." 4. It is also observed that petitioner has not been able to make out a case so as to justify interference of this Court. 5. Learned counsel for review petitioner submits that the order under review has been passed in the absence of parties' counsel. The writ petition has not become infructuous. The matter relates to the appointment of the petitioner on the post of Lecturer, Geography in a government aided intermediate college. The petitioner is still working and getting salary on the basis of interim order. 6. Mr. H.G.S. Parihar, learned Senior Advocate appearing on behalf of review petitioner submits that almost under the similar facts and circumstances arising out of one of the similar orders the Division Bench consisting of Hon'ble the Chief Justice and another Hon'ble Judge in Special Appeal (D) No.267 of 2015 vide order dated 14.7.2015 has set aside the order of the Hon'ble Single Judge and has remanded the matter back to the learned Single Judge to decide it afresh on merit. 7. Learned Standing Counsel does not dispute the aforesaid position. 8. The order dated 22.9.2010, passed in Writ Petition NO.2090 (SS) of 1999 which is under review on reproduction reads as under: - "1. Called in revised. None appeared to press this writ petition on behalf of the petitioner. 2. It appears that either the cause of action no more survives or that petitioner has lost interest in this matter or it has otherwise become infructuous and, probably for this reason, none is interested to have decided this matter on merits and that is why, counsel for petitioner is absent. 3. However, I myself have gone through the pleadings, grounds as also reliefs sought and find that petitioner is not able to make out a case so as to justify interference of this Court by granting reliefs, as prayed for. 4. 3. However, I myself have gone through the pleadings, grounds as also reliefs sought and find that petitioner is not able to make out a case so as to justify interference of this Court by granting reliefs, as prayed for. 4. In view of above, the writ petition is dismissed. 5. Interim order, if any, stands vacated. Order Date: - 22.9.2014." 9. The Division Bench of this Court in Special Appeal (D) No.267 of 2015 after recording the observations made with respect to the similar order has allowed the special appeal and set aside the order passed by learned Single Judge. The relevant paragraphs of the order dated 14.7.2015, passed in Special Appeal (D) No.267 of 2015 on reproduction reads as under: - "Reading the order of the learned Single Judge dated 14 August 2014, it is evident that the appellant and his Advocate were both absent when the petition was called out for hearing. In fact, in paragraph 2 of the order, the learned Single Judge recorded that it appeared that either the cause of action had no longer survived or the appellant had lost interest in the matter or it had otherwise become infructuous and, probably for that reason, the Appellant was not interested in having the matter decided on merits. Having observed this, the learned Single Judge proceeded to record that having gone through the pleadings, grounds and reliefs, the appellant was not able to make out a case justifying interference by the Court. We find merit in the submission of the learned counsel for the appellant that once the learned Single Judge had held that the petition was liable to be dismissed in the absence of the appellant and his Advocate, there was no occasion for the learned Single Judge to make any observation on merits of the case. The observations in paragraph 3 of the order dated 14 August 2014 cannot even be construed, reasonably speaking, to be observations on merits. Beyond stating that having gone through the pleadings, grounds and reliefs, no case was made out for interference by the Court, there is no discussion on the merits of the case nor is there any discussion on facts or the legal submissions which were on the record. Beyond stating that having gone through the pleadings, grounds and reliefs, no case was made out for interference by the Court, there is no discussion on the merits of the case nor is there any discussion on facts or the legal submissions which were on the record. In this view of the matter, we are of the view that the learned Single Judge has taken a rather technical view of the matter by declining to entertain the application for restoration or recall on the ground that it was not maintainable. Properly construed, the order dated 14 August 2014 is an order of dismissal in the absence of the counsel for the appellant and hence the application for restoration/recall was maintainable. The only surviving issue is as to whether a case for restoration or recall was made out. From the record, it is evident that the appellant was diligently pursuing the matter and, as a matter of fact, the petition was heard on 1 May 2013, 20 August 2013, 22 October 2013 and 25 October 2013 when the learned Single Judge had issued certain directions. Hence, there is nothing on the record to indicate that the appellant was guilty of inaction or negligence in pursuing the matter. The inadvertent error on the part of the learned counsel for the appellant in not noticing the listing of the case or in remaining absent, cannot and should not result in a miscarriage of justice by precluding the appellant from pursuing his remedy in the writ petition. Whether any case has been made on the merits of the case is a separate issue on which we make no observation since that will have to be decided by the learned Single Judge after restoration. For these reasons, we allow the special appeal and set aside the impugned order of the learned Single Judge dated 13 May 2015. In consequence, we allow the application for restoration/recall. Consequently, the order of the learned Single Judge dated 14 August 2014 shall stand recalled. The writ petition, i e Service Single No 3282 of 2008 shall stand restored to the file of the learned Single Judge for deciding the petition on merits. Since the petition has been pending since 2008, we request the learned Single Judge to take up the petition for hearing expeditiously. The special appeal is accordingly disposed of. The writ petition, i e Service Single No 3282 of 2008 shall stand restored to the file of the learned Single Judge for deciding the petition on merits. Since the petition has been pending since 2008, we request the learned Single Judge to take up the petition for hearing expeditiously. The special appeal is accordingly disposed of. There shall be no order as to costs." 10. In view of above, I am of the considered view that this review petition deserves to be allowed. It is hereby allowed. The order dated 22.9.2014, passed in Writ Petition No.2090 (SS) of 1999 is set aside. The writ petition is restored to its original number. It shall be listed before appropriate Court in the next cause list.