Court No. - 39
Case :- SPECIAL APPEAL DEFECTIVE No. - 80 of 2018
Appellant :- Subhash Chandra
Respondent :- State Of U.P. And 4 Others
Counsel for Appellant :- Siddharth Khare,Sr. Advocate Ashok Khare
Counsel for Respondent :- C.S.C.
Hon'ble Dilip Gupta,J. Hon'ble Jayant Banerji,J.
Civil Misc. Delay Condonation Application No. of 2018 Heard learned counsel for the parties.
In view of the averments made in the affidavit filed in support of the application under Section 5 of the Limitation Act, we are satisfied that the applicant was prevented by sufficient cause from preferring the Special Appeal within the period of limitation.
The application is, accordingly, allowed and the delay in filing the Special Appeal is condoned.
Order Date :- 28.2.2018 MAA/-
(Dilip Gupta,J.) (Jayant Banerji,J.)
Court No. - 39
Case :- SPECIAL APPEAL DEFECTIVE No. - 80 of 2018 Appellant :- Subhash Chandra Respondent :- State Of U.P. And 4 Others Counsel for Appellant :- Siddharth Khare,Sr. Advocate Ashok Khare Counsel for Respondent :- C.S.C.
Hon'ble Dilip Gupta,J. Hon'ble Jayant Banerji,J.
This Special Appeal has been filed against the judgment and order dated 10 November 2017 of a learned Judge of this Court by which Writ-A No.10587 of 1996 that had been filed for not only quashing the order dated 11 March 1996 passed by the District Inspector of Schools but, interalia, for a direction upon the respondents not to interfere with the working of the petitioner-appellant as Assistant Teacher in L.T. grade and to pay regular salary, has been dismissed. The judgment is reproduced below:-
"1. Called in revised. None appeared to press this writ petition. Learned Standing Counsel is present for respondents. In the circumstances, I myself have perused the record.
2. By means of present writ petition, petitioner has sought following reliefs:
"1. a writ, order or direction in the nature of certiorari quashing the order dated 11.3.1996 passed by the District Inspector of Schools, Bulandshahar (Annexure 10 to the writ petition).
2. a writ,order or direction in the nature of certiorari quashing the notice dated 14.3.1996 issued by the Manager, Adarsh Vaidik Inter College, Karaura, District Bulandshahar (Annexure No. 9 to the writ petition).
3. a writ, order or direction of suitable nature commanding the respondents to produce a copy of the resolution of the Committee of Management, Adarsh Vaidik Inter College, karaura, district Bulandshahar dated 20.2.1996 and to quash the same.
4. a writ, order or direction of suitable nature commanding the respondents not to interfere in the functioning of the petitioner as Assistant Teacher in L.T. Grade in Aadarsh Vaidik Inter College, Karaura, district Bulandshahar and to pay the petitioner his regular monthly salary on the said post regularly every month including the arrears of his salary from 19.9.1994 till date within a period to be specified by this Hon'ble Court."
3. I myself have gone through the pleadings, grounds as also reliefs sought and find that petitioner is are 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."
Learned counsel for the petitioner-appellant has submitted that the counsel for the petitioner-appellant could not appear before the learned Judge. It is also submitted that cause of action still survives but as the matter has been decided on merits, a recall application cannot be filed.
In the absence of counsel for the petitioner-appellant, the learned Judge has, after reading the pleadings, found that the petitioner-appellant has not been able to make out a case for the Court to interfere. The learned Judge has also observed that the matter may have been rendered infructuous as counsel for the petitioner-appellant has not appeared. The learned counsel for the petitioner-appellant has stated that he could not appear before the Court.
In the facts and circumstances of the case and when the matter has not been rendered infructuous, we consider it appropriate to set aside the judgment and order dated 10 November 2017 and restore the writ petition to its original number.
The Special Appeal is, accordingly, allowed.
Order Date :- 28.2.2018 MAA/-
(Dilip Gupta,J.) (Jayant Banerji,J.)