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2021 Supreme(All) 981
IN THE HIGH COURT OF JUDICATURE AT ALLAHABAD
Ramesh Sinha, Vivek Varma, JJ.
Shiv Kumar Pandey – Appellant
Versus
State of U.P. Thru. Secy. Agriculture & Ors. – Respondents
Special Appeal Defective No. 417 of 2021
Decided On : 26-10-2021
Advocate Appeared:
For the Appellant : Shiv Shankar Singh, Reshma Khan
For the Respondent: C.S.C., Dr. Surendra Singh
Point of Law : delay due to advocate's dereliction in duty withdrawing his Vakalatnama without notice to his client warranted condonation.
Headnote:
Regularization of Services - Condonation of Delay - Appellant, and five others were working on post of Class-IV on daily wage basis against sanctioned and clear vacant posts but their services were not regularized - Writ petition was dismissed as having become infructuous by learned Single Judge.
Finding of the Court : Learned Counsel for respondents has opposed submissions made by learned Counsel for appellant and has submitted that application for recall of order has been filed by writ petitioner no.4 after more than six years, therefore, learned Single Judge has rightly passed impugned order dismissing recall application as well as application for condonation of delay - There is no illegality or infirmity in impugned order - In view of law settled by authorities referred to above, in interest of justice, Court deem it appropriate to condone delay in filing recall of order passed in writ petition and condone delay in filing recall application therein and the matter be remitted to learned Single Judge for deciding writ petition in accordance with law, on merit.
Result : Appeal allowed
JUDGMENT :
Ramesh Sinha, J.
1. This intra Court appeal has been filed beyond two days.
2. Sri Amitabh Kumar Rai, learned Additional Chief Standing Counsel for the State/respondent no. 1 and Dr. Surendra Singh, learned Counsel for the University/respondents no. 2 to 5 have no objection in case delay in filing the appeal is condoned and the matter be heard finally.
3. On due consideration, since cause shown in the affidavit filed in support of an application for condonation of delay in filing the instant appeal is satisfactory, hence the application for condonation of delay (C.M. Application No. 139821 of 2021) is allowed. Delay in filing the instant appeal is condoned.
4. The appellant, Shiv Kumar Pandey, and five others, namely, Prem Prakash, Diwakar Dube, Dilip Kumar, Harihar Prasad Pandey, Narendra Kumar Dube, have approached this Court by filing Writ Petition No. 6685 (S/S) of 2003 : Prem Prakash and others Vs. State of U.P. and others, stating therein that they were working on the post of Class-IV on daily wage basis against the sanctioned and clear vacant posts at Narendra Dev University of Agriculture & Technology, Kumarganj, Faizabad (hereinafter referred to as “the University”) but their services were not regularized. This writ petition was dismissed as having become infructuous by the learned Single Judge vide order dated 26.03.2014. Thereafter, the appellant/writ petitioner no.4 (Shiv Kumar Pandey) has filed an application for recall of the aforesaid order dated 26.03.2014 (C.M. Application No. 100439 of 2021) along with an application for condonation of delay (C.M. Application No. 100434 of 2021). The learned Single Judge, vide order dated 14.09.2021, rejected both the aforesaid applications.
5. Feeling aggrieved by the order dated 14.09.2021, the instant intra court appeal has been filed by the appellant/writ petitioner no.4.
6. Heard Sri. Shiv Shankar Singh, learned Counsel for the appellant, Sri Amitabh Kumar Rai, learned Additional Chief Standing Counsel for the State/respondent no.1 and Dr. Surendra Singh, learned Counsel for the University/respondent nos.2 to 5.
7. Submission of the learned Counsel for the appellant/writ petitioner no.4 is that the appellant/writ petitioner no.4 has no knowledge about the order dated 26.03.2014 passed by the learned Single Judge, dismissing the writ petition as having infructuous. However, when in the year 2021, the process of regularization has again been initiated in the University on 06.08.2021, the appellant contacted his Counsel to know the status of his writ petition but his counsel Sri Vivek Kumar Shukla did not give any satisfactory answer to him. He argued that as soon as the appellant/writ petitioner no. 4 came to know the order dated 26.03.2014, he immediately filed an application for recall of the order dated 26.03.2014 along with an application for condonation of delay. His submission is that the delay in filing the recall application is bona fide but the learned Single Judge has rejected both the applications vide order dated 26.03.2014 without looking to the fact that the relief sought by the writ petitioner is still survive for the purpose of regularization of services of the writ petitioner no.4.
8. On the other hand, learned Counsel for the respondents has opposed the submissions made by the learned Counsel for the appellant and has submitted that the application for recall of the order dated 26.04.2014 has been filed by the writ petitioner no.4 after more than six years, therefore, the learned Single Judge has rightly passed the impugned order dated 14.09.2021, dismissing the recall application as well as application for condonation of delay. There is no illegality or infirmity in the impugned order dated 14.09.2021.
9. Having heard rival submissions advanced by the learned Counsel for the parties and going through the material brought on record, we deem it appropriate to mention here that in Rafiq and Anr. v. Munshilal and Anr. : AIR 1981 SC 140 and Smt. Lachi and Or
