When a statutory gap in a remedy is filled by a legislative amendment during the pendency of a challenge, the existing appeal may become infructuous, allowing the party to pursue the newly created statutory remedy.

G.S. SANDHAWALIA,J. (ORAL)

CM-202-LPA-2023 in LPA-1257-2021

Application has been filed for preponement of the main case from 18.04.2023.

Notice in the application.

Mr.Ankur Mittal, Addl. A.G. Haryana and Mr.Saurabh Mago, Addl. A.G., Haryana, accepts notice on behalf of respondents-State.

Keeping in view the order which we propose to pass, we feel that sufficient cause has made out as such to prepone the hearing of the appeal. Accordingly, the application is allowed. Main case is taken on board.

Main Case:-

Challenge in the present Latters Patent Appeal is to the order dated 14.12.2021 passed by the learned Single Judge in Civil Writ Petition No.23955 of 2021, wherein the writ petition was dismissed on account of existence of equally efficacious remedy of appeal. The appellant, as such, has challenged the orders dated 24.08.2021 (Annexure P-2) and the consequent letter dated 01.09.2021 (Annexure P-3), whereby he had been removed from the post of Chowkidar and he had been relieved from duty thereafter. The learned Single Judge has come to the conclusion that since the order was passed by the Deputy Commissioner, Sonepat while acting as a Revenue Officer and therefore, there is a remedy of appeal and thus, has relegated the present appellant to file an appeal.

On 28.03.2022, the following order was passed:

“Learned Advocate General, Haryana, who fortunately is

present in Court, has been requested to look into the aspect

where it is apparent and admitted on behalf of the counsel

for the parties including the counsel for the State that there

is no provision for appeal provided under the Haryana

Chowkidara (Watchman) Rules, 2013. The aspect as to

whether the appeal is maintainable under Section 13 of

The Haryana Land Revenue Act, 1887 , also needs to be

looked into by the learned Advocate General, Haryana, as in

the prima facie opinion of this Court since separate statutory

rules have been provided for a particular category of

appointments to be made, the provisions of the Revenue

Act, 1887, would not be applicable. List for consideration

on 20.04.2022. Copy of this order be placed on the file

of connected case.”

In pursuance of the same, counsel for the appellant has now placed on record the notification dated 28.12.2022, whereby an amendment has been made in the Haryana Chowkidara (Watchman) Rules, 2013, whereby Rule 7(A) has been inserted, wherein right of appeal has been granted against the order passed by the Deputy Commissioner within a period of 30 days from the date of such order.

Resultantly, we are of the considered opinion that the present appeal has been rendered infructuous in view of the State having taken remedial steps to create a right of remedy under the relevant Rules.

Accordingly, we give liberty to the appellant to file an appeal within a period of two weeks from today and the Appellate Authority shall hear the case on merits and not dismiss the case on the ground of limitation, as the matter was pending before this Court. In view of the above facts and circumstances, the appeal is, accordingly, disposed of.