State Of U.P.Through Secy. vs Salman Ahmad
2018 Latest Caselaw 1464 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

A.F.R.
 
Court No. - 7
 

 
Case :- SPECIAL APPEAL No. - 18 of 2001
 
Appellant :- State Of U.P.Through Secy.
 
Respondent :- Salman Ahmad
 
Counsel for Appellant :- C.S.C.
 
Counsel for Respondent :- M.M.Ahmad,C.S.C.,Manish Kumar
 

 
Hon'ble Anil Kumar,J.

Hon'ble Mrs. Rekha Dikshit,J.

(C.M. Application No. 121837 of 2017)

Heard Shri Manish Kumar, learned counsel for the review-applicant, Shri Vivek Kumar Shukla, learned Standing Counsel and perused the record.

Facts in brief of the present case are that review-applicant/Salman Ahmad who was working on the post of Gram Panchayat Adhikari under opposite party no.3/Director, Panchayat Raj Officer, Pratapgarh, his services were terminated vide order dated 31.12.1986.

Aggrieved by the said order, he approached this Court by filing Writ Petition No.3382 (SS) of 1997. The said writ petition along with three other petitions namely Writ Petition Nos.359 (SS) of 1995, 120 (SS) of 1993 and 1354 (SS) of 1992 were allowed vide order dated 20.07.2000 passed by this Court, challenged by State of U.P. through Secretary, Panchayat Raj U. P., Civil Secretariat, Lucknow and others by filing Special Appeal No.18 of 2001 at a belated stage.

On an objection raised by learned counsel for review-applicant, a Division Bench of this Court had passed an order dated 22.02.2012, which reads as under :-

"Learned counsel for the appellants is granted three weeks' further time to file better affidavit explaining the delay in filing the appeal.

The matter shall appear after expiry of the aforesaid period."

Again in this regard, on 02.05.2012, this Court had passed an order, which reads as under :-

"Learned counsel for the appellant, as a last indulgence, is granted two weeks' further time to file better affidavit explaining the delay in filing the appeal.

List thereafter."

However, the appellant has not complied the said orders but by order dated 30.10.2017, Special Appeal No.18 of 2001 has been allowed.

In view of the above said factual background, the present review-application has been filed for recall of the order dated 30.10.2017.

Shri Manish Kumar, learned counsel for the review-applicant while pressing the review-application submits that the orders dated 22.02.2012 as well as 02.05.2012 have been passed in the special appeal thereby directing the appellant to file a better affidavit explaining the delay, then the appellant should comply the same and thereafter, the matter should be decided on merit. As the said act has not been done, so the order dated 30.10.2017 is contrary to law, liable to be set aside and special appeal be restored to its original number.

In support of his argument, he has placed reliance on the judgment given by Hon'ble the Apex Court in the case of V. M. Salgaocar and Bros. vs. Board of Trustees of Port of Mormugao and another, (2005) 4 SCC 613, wherein it has been held as under :-

" The mandate of Section 3 of Limitation Act is that it is the duty of the Court to dismiss any suit instituted after the prescribed period of limitation irrespective of the fact that limitation has not been set up as a defence. If a suit is ex-facie barred by the Law of Limitation, a Court has no choice but to dismiss the same even if the defendant intentionally has not raised the plea of limitation.

This Court in Manindra Land & Building Corporation Ltd. Vs. Bhutnath Banerjee and others reported in AIR 1964 SC 1336 held as under :-

"Section 3 of the Limitation Act enjoins a Court to dismiss any suit instituted, appeal preferred and application made, after the period of limitation prescribed therefor by Schedule I irrespective of the fact whether the opponent had set up the plea of limitation or not. It is the duty of the Court not to proceed with the application if it is made beyond the period of limitation prescribed. The Court had no choice and if in construing the necessary provision of the Limitation Act or in determining which provision of the Limitation Act applies, the subordinate Court comes to an erroneous decision, it is open to the Court in revision to interfere with that conclusion as that conclusion led the Court to assume or not to assume the jurisdiction to proceed with the determination of that matter."

In rebuttal, Shri Vivek Kumar Shukla, learned Standing Counsel while supporting the impugned judgment submits that in the present case, review-applicant/Salman Ahmad was appointed on the post of Village Panchayat Officer, vide an order no. Memo (7) (Pan/Stha-Li/86-87) dated 08.12.86 of the District Panchayat Raj Officer, Pratapgarh purely on the temporary and ad-hoc basis in the exigencies of work with a condition that his services can be terminated any time without any notice and it would not be a regular appointment.

He further submits that the procedure prescribed under the service rules namely U. P. Gram Panchayat Adhikari Rules, 1978 is applicable in the present case and by invoking the said provision, services of the petitioner were terminated. However, at a belated stage, he approached this Court challenging the same by filing Writ Petition No.3382 (SS) of 1997. So, in view of the above said facts, the judgment and order dated 20.07.2000 passed by learned Single Judge thereby allowing the Writ Petition No.3382 (SS) of 1997 is contrary to law and the same is rightly set aside by means of the order dated 30.10.2017. So, review-application is liable to be dismissed.

We have heard learned counsel for the parties and gone through the records.

As per admitted facts of the present case, appellant has filed the special appeal No.18 of 2001 thereby challenging the order dated 20.07.2000 passed by learned Single Judge in Writ Petition No.3382 (SS) of 1997 beyond the period of limitation.

This Court had passed an order dated 22.02.2012 and 02.05.2012 respectively in special appeal thereby directing the appellant to file better affidavit. However, the said orders have not been complied with, special appeal was allowed vide order dated 30.10.2017.

Hon'ble the Apex Court in the case of State of W.B. vs. Somdeb Bandyopadhayay, (2009) 2 SCC 694 has held as under :-

"Whenever a petition/memo of appeal is filed in the court alongwith an application for condonation of delay and the delay is not condoned, the petition remains unentertained. In such an eventuality, it is not permissible in law to pass any interim or effective/substantive order. Such as course is impermissible as the appeal remains not est in the eyes of law without it being entertained."

In view of the above said position of law, it is mandatory on the part of the Court to condone the delay first and thereafter proceed to decide the matter on merit. In spite of the orders dated 22.02.2012 and 02.05.2012 by which learned counsel for the appellant was directed to file better affidavit explaining the delay, the same was not filed and the delay in filing the special appeal was not condoned, on the other hand, vide order dated 30.10.2017, special appeal has been allowed, as such, the same is liable to be set aside.

Further, it is also settled proposition of law that an order passed by coordinate bench is binding upon any coordinate bench.

Hon'ble the Apex Court in the case of Rajasthan Public Service Commission and anr. vs. Harish Kumar Purohit and ors. (2003) 5 SCC 480, held that a bench must follow the decision of a coordinate bench and take the same view as has been taken earlier. The earlier decision of the coordinate bench is binding upon any latter coordinate bench deciding the same or similar issues.

Hon'ble the Apex Court in the case of Sant Lal Gupta and ors. vs. Modern Co-operative Group Housing Society Ltd. and ors. (2010) 13 SCC 336 held that a coordinate bench cannot comment upon the discretion exercised or judgment rendered by another coordinate bench of the same court. The rule of precedent is binding for the reason that there is a desire to secure uniformity and certainty in law. Thus, in judicial administration precedents which enunciate rules of law forum the foundation of the administration of justice under our system. Therefore, it has always been insisted that the decision of a coordinate bench must be followed.

Accordingly, in view of the above said decision given by Hon'ble the Apex Court in the case of Rajasthan Public Service Commission and anr. (Supra) and Sant Lal Gupta and ors. (Supra), it is mandatory on the part of the Court to ensure that the orders dated 22.02.2012 and 02.05.2012 passed by a coordinate bench must have been complied with and thereafter proceed to decide the matter on merit.

For the foregoing reasons, the review-application is allowed and the order dated 30.10.2017 passed by this Court in Special Appeal No.18 of 2001 is set aside. Special Appeal is restored to its original number.

Learned counsel for the appellant is directed to file better affidavit in pursuance to the order dated 22.02.2012 passed by this Court within a period of three weeks from today. Rebuttal, if any, may be filed within one week thereafter.

List thereafter before appropriate Bench.

.

(Rekha Dikshit,J.) (Anil Kumar,J.)

Order Date :- 10.7.2018

Mahesh