Court No. - 35
Case :- SPECIAL APPEAL DEFECTIVE No. - 1076 of 2019 Appellant :- Raj Kumar Respondent :- State Of U.P. And 3 Others Counsel for Appellant :- Siddharth Khare,Shri Ashok Khare, Senior Advocate Counsel for Respondent :- C.S.C.
Hon'ble Bharati Sapru,J.
Hon'ble Saurabh Shyam Shamshery,J.
Order on Section 5 Application There is delay in filing of this appeal. Cause shown for delay in filing of this appeal has been properly explained. The delay in filing of this appeal is condoned.
The defect is removed. Order on Appeal We have called for the records of the Writ Petition No.16642 of 2002.
From the record it is evident that an order was passed on 16.08.2018 by which the learned Single Judge has directed that the reconstructed record shall be treated to be record of writ petition and on the same date vide a separate reasoned order the writ petition was also allowed. The orders passed on 16.08.2018 are reproduced hereunder:-
16.08.2018
"1.Perused office report dated 30.07.2018. It is reported that record of this matter was found lost and untraceable, hence, has been reconstructed by obtaining copy from learned Standing Counsel.
2. The reconstructed record shall be treated to be record of writ petition and this Court proceeds accordingly."
16.08.2018
"1. Heard Sri Ashok Khare, learned Senior Advocate for petitioner and learned Standing Counsel for respondents.
2. Order dated 22.11.2001 passed by Senior Superintendent of Police, Pauri Garhwal dismissing petitioner from service has been challenged on the ground that on that date petitioner was already posted at Bareilly and not in Pauri Garhwal, therefore, Senior Superintendent of Police, Pauri Garhwal has no jurisdiction to pass impugned order of dismissal. My attention was drawn to paras 13 and 14 of writ petition stating that on 12.10.2001 petitioner was relieved from Pauri Garhwal to enable him to join at Bareilly where he joined on 20.10.2001.
3. In paras 10 and 11 of the counter affidavit respondents have admitted that vide order dated 05.10.2001 petitioner was transferred to Bareilly. That be so, Senior Superintendent of Police, Pauri Garhwal had no authority or jurisdiction to pass impugned order of punishment.
4. In the result, writ petition is allowed. Impugned order dated 22.11.2001 is hereby set aside.
5. However, this order shall not preclude Competent Authority to pass a fresh order in accordance with law."
It seems that this writ petition was again listed before the learned Single Judge on 07.03.2019 without reference of earlier order dated 16.08.2018 and on that date the writ petition was dismissed due to non-appearance of the counsel for the petitioner. The order dated 07.03.2019 is reproduced hereunder:-
"1. Called in revise. None appeared to press this writ petition. Learned Standing Counsel is present for respondent. In the circumstances, I myself have perused the record.
2. By means of present writ petition, petitioner has sought following reliefs:
"(i) issue a writ, order or direction in the nature of certiorari quashing the order dated 22.11.01 isssued by the Superintendent of Police, Pauri Garhwal (Annexure 9 to the writ petition).
(ii) issue a writ, order or direction of a suitable nature commanding the respondents not to interfere in the functioning of the petitioner as a constable, armed police under the respondents and to pay the petitioner his full monthly salary on the said post, regularly, every month."
3. 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. Moreover, it appears that either the cause of action no more survives or the 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.
5. Dismissed. Interim order, if any, stands vacated."
Upon examining the entire record we find that the contention of the petitioner/appellant that the writ petition was allowed on 16.08.2018 is correct. The writ petition, therefore, stands allowed. The second order was passed on account of the fact that no one has appeared but once the lawyer has already attended the matter and it has been allowed, the advocate was not required to be present. It is obvious that writ petition was wrongly listed without reference of earlier order. Therefore, the order dated 07.03.2019 will not survive and the order dated 16.08.2018 will survive. Accordingly, the second order dated 07.03.2019 which is impugned in the present Special Appeal is hereby quashed.
The Special Appeal stands allowed. No costs.
Order Date :- 19.12.2019 S.P.