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IN THE HIGH COURT OF ALLAHABAD
RAMESH SINHA, SAMIT GOPAL, JJ.
Naunihal Haidar – Appellant
Versus
Assistant Settlement Of Consolidation And 2 Others – Respondents
Special Appeal No.861 of 2019
Decided on : 01-12-2020
Service Laws – Temporary Basis – Regularization of Services – Present case has a long and old background. – The petitioner-appellant was initially appointed on the post of Lekhpal on temporary basis in the year 1987. – His engagement was extended from time to time and ultimately the services of the petitioner-appellant were dispensed with in the year 1991. – Aggrieved by the order by which the services of the petitioner-appellant were dispensed with, he preferred a Writ A No. 16860 of 1991 before this Court with the prayers it is therefore most respectfully prayed that this Hon’ble Court may be pleased to issue A – A writ of Certiorari quashing the impugned order passed by opposite party no.1 – Writ of Mandamus commanding the opposite parties not to give effect to and not to implement the impugned order and not to interfere in petitioner’s functioning as Lekhpal, village Deptori, Tehsil Bisauli, District Budaun. – Any other suitable writ, direction or order which this Hon’ble Court may deem fit and proper be issued in favour of the petitioner –
Finding of the Court:
Single Judge completely fell in error while deciding the application for recall/restoration application by treating it as an application for review. – Prayer made in the said recall/restoration application is as has been quoted above just plain and simple for recalling of the order by which the petition was dismissed as infructuous and further the prayer that the writ petition be restored to its original number. – There is no prayer whatsoever in the said application that the order be reviewed. – Even further, the order sought to be recalled is not a judgment as the merits of the matter have not been touched at all. – The petition was dismissed without going into the merits of the matter and without deciding the issues as raised therein. – The application for recall and restoration is of an order which did not decide any issue raised between the parties in the writ petition. – If a party whose counsel under some misconception made a prayer for dismissing the writ petition as infructuous by efflux of time and by some subsequent events does not mean that the petition has been decided on merits. – As a matter of fact, a rectification of the said order was prayed by means of the application for recall/restoration. – Rectification of an order stems from the fundamental principle that justice is above all. – The writ petition of the petitioner continued to be pending before this Court from the year 1991 to 26.10.2017 for a good period of 26 years with an order in favour of the petitioner on the strength of which he continued to remain in service till 15.01.2014 on which date his services were terminated as the said writ petition was dismissed for non prosecution on 14.11.2008. – Even thereafter, the recall application filed by the petitioner-appellant along with the delay condonation application were allowed vide order dated 08.12.2016 and the writ petition was directed to be restored to its original number. –
Result: Appeal Allowed
JUDGMENT :
(Per Samit Gopal, J. for the Bench)
1. The present Special Appeal has been filed against the judgment and order dated 15.04.2019 passed in Writ A No. 16860 of 1991 (Naunihal Haider Vs. Assistant Settlement Officer, Consolidation, Badaun and others) whereby a learned Single Judge has rejected an application for recall of order dated 26.10.2017.
2. Heard Sri Hari Shankar Chaurasia, Advocate holding brief of Sri Hari Bhawan Pandey, learned counsel for the petitioner-appellant and Sri A.K. Goel, learned Additional Chief Standing Counsel and have perused the record.
3. The present case has a long and old background. The petitioner-appellant was initially appointed on the post of Lekhpal on temporary basis in the year 1987. His engagement was extended from time to time and ultimately the services of the petitioner-appellant were dispensed with in the year 1991.
4. Aggrieved by the order dated 01.03.1991 by which the services of the petitioner-appellant were dispensed with, he preferred a Writ A No. 16860 of 1991 before this Court with the following prayers:
B. a writ of Mandamus commanding the opposite parties not to give effect to and not to implement the impugned order and not to interfere in petitioner’s functioning as Lekhpal, village Deptori, Tehsil Bisauli, District Budaun.
C. Any other suitable writ, direction or order which this Hon’ble Court may deem fit and proper be issued in favour of the petitioner.
D. Costs of the writ petition be awarded to the petitioner.”
5. In the said writ petition an interim order was passed in favour of the petitioner-appellant on 03.06.1991. The services of the petitioner-appellant were regularized on 20.03.1999 with a condition that the same shall be subject to the final order passed in the said writ petition. The said writ petition was dismissed for non prosecution on 14.11.2008. Subsequent to the dismissal of the writ petition, the services of the petitioner were terminated on 15.01.2014. A Civil Misc. Restoration Application No. 652 of 2014 along with the Delay Condonation Application No. 651 of 2014 was filed by the petitioner-appellant for the restoration of the writ petition which was allowed vide order dated 08.12.2016 passed by a learned Single Judge. Even, the delay condonation application was allowed. The writ petition was directed to be restored to its original number and was directed to be listed before the appropriate Court after two weeks.
6. The writ petition then remained pending for quite sometime and then was listed on 26.10.2017 wherein on the statement of learned counsel appearing for the petitioner-appellant that the same has rendered infructuous by efflux of time, and subsequent developments, the same was dismissed accordingly. The order dated 26.10.2017 is quoted hereinbelow:
2. Dismissed accordingly.
3. Interim order, if any, stands vacated.”
7. In the meantime, since the services of the petitioner-appellant were terminated on 15.01.2014 he preferred another writ petition before this Court numbered as Writ A No. 8181 of 2018 (Naunihal Haider Vs. State of Uttar Pradesh and 5 others) which was dismissed with an observation by a learned Single Judge that the remedy to the petitioner-appellant lay in moving appropriate application in his earlier petition and to seek appropriate protection therein. The order dated 29.03.2018 is quoted herein below:
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