Shiv Kumar Pandey vs State Of U.P. Thru. Secy. ...
2021 Latest Caselaw 11253 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

A.F.R.
 
Court No. - 1
 
Case :- SPECIAL APPEAL DEFECTIVE No. - 417 of 2021
 
Appellant :- Shiv Kumar Pandey
 
Respondent :- State Of U.P. Thru. Secy. Agriculture & Ors.
 
Counsel for Appellant :- Shiv Shankar Singh,Reshma Khan
 
Counsel for Respondent :- C.S.C.,Dr. Surendra Singh
 

 
Hon'ble Ramesh Sinha,J.

Hon'ble Vivek Varma,J.

Ramesh Sinha, J. (Oral)

(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 Ors. v. Director of Land Records and Ors. : AIR 1984 SC 41 while dealing with a similar issue held that a litigant cannot suffer for the fault of his counsel. The Hon'ble Supreme Court in the former case observed as under :-

"What is the fault of the party who having done everything in his power expected of him, would suffer because of the default of his advocate.... The problem that agitates us is whether it is proper that a party should suffer for the inaction, deliberate omission, or misdemeanour of his agent.... We cannot be a party to an innocent party suffering injustice merely because his chosen advocate defaulted."

(10) Similar view has been reiterated in Goswami Krishna Murarilal Sharma v. Dhan Prakash and Ors. : (1981) 4 SCC 474, where the counsel had withdrawn his Vakalatnama without notice to his client. The Hon'ble Supreme Court following it's earlier judgment in Rafiq (supra), held that the Court should not have proceeded to dismiss the appeal straightaway on the ground that the appellant was not present in person when his counsel had withdrawn the Vakalatnama. At least a notice ought to have been given to such a litigant to make an alternative arrangement or appear in person.

(11) Similar view has been reiterated in Tahil Ram Issardas Sadarangani and Ors. v. Ramchandra Issardas Sadarangani and Anr. : AIR 1993 SC 1182 and Malkiat Singh and Anr. v. Joginder Singh and Ors.: AIR 1998 SC 258, observing that in case a litigant is neither negligent nor careless in prosecuting his case but his lawyer pleads no instruction, the Court should issue notice to him to make an alternative arrangement. Such a course is required in the interest of justice and the Court may proceed from the stage the earlier counsel pleaded no instruction. If the litigant is not at fault, he should not suffer for such a conduct of his counsel.

(12) In Sushila Narahari and Ors. v. Nand Kumari : (1996) 5 SCC 529, the case was dismissed in default and an application for restoration was dismissed on the ground that there was a delay of 40 days in filing the application for restoration. The Hon'ble Apex Court held that the delay due to advocate's dereliction in duty withdrawing his Vakalatnama without notice to his client warranted condonation.

(13) In Salil Dutta v. T.M. & Mc (P) Ltd., [1993] 1 SCR 794, the Apex Court, after considering its earlier judgment in Rafiq (supra) observed that the said case was decided on the facts involved therein and, thus, it did not lay down any absolute proposition. The Court observed as under :-

"It is true that in certain situations, the Court may, in the interest of justice, set aside a dismissal order or an ex parte decree notwithstanding the negligence and/or misdemeanour of the advocate where it finds that the client was an innocent litigant but there is no such absolute rule that a party can disown its advocate at any time and seek relief. No such absolute immunity can be recognised. Such an absolute rule would make the working of the system extremely difficult."

(14) In view of the law settled by the authorities referred to above, in the interest of justice, we deem it appropriate to condone the delay in filing the recall of the order dated 26.03.2021 passed in writ petition No. 6685 of 2003 (S/S) and condone the delay in filing the recall application therein and the matter be remitted to the learned Single Judge for deciding the writ petition No. 6685 of 2003 (S/S), in accordance with law, on merit.

(15) Accordingly, we allow the instant appeal. The judgment and order dated 14.09.2021 is hereby set-aside. The delay in filing the application for recall of the order dated 26.03.2014 passed in writ petition No. 6685 of 2003 (S/S) is hereby condoned. The order dated 26.04.2014 passed in writ petition No. 6685 of 2003 (S/S) is recalled. The writ petition No. 6685 (S/S) of 2003 is restored to its original number. The matter is remitted with a request to the learned Single Judge to decide it, in accordance with law, expeditiously, on merit, without influenced by any observation made here-in-above.

(16) It is clarified that we have not touched the merit of the case and the parties shall not seek any unnecessary adjournment before the learned Single Judge.

(Vivek Varma, J.)    (Ramesh Sinha, J.)
 
Order Date :- 26.10.2021
 
Ajit/-