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Patna High Court
Sandip Kumar vs The Union Of India on 13 March, 2026
Author: Anshuman
Bench: Anshuman
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.1200 of 2025
======================================================
Sandip Kumar Son of Sri Rajendra Paswan, Resident of Village-
Chhotikesopur, P.O. and P.S.- Jamalpur, District- Munger.
... ... Petitioner/s
Versus
1. The Union of India through Inspector General of Indo Tibbtan Border Police
Force, North West Frontier, New Delhi, Home Ministry, Govt. of India.
2. Inspector General ITBP, East Frontier Head Quarter 6th Floor Kendriya
Bhawan Sector-H, Aliganj, Lucknow, U.P.
3. The Commandant, 51 BN, Indo Tibbtan Border Police Force, North West
Frontier, MHA, Govt. of India, P.O.- Punjab University District- Patiala
(Punjab).
4. The Deputy Inspector General (Establishment), Directorate Indo Tibbtan
Border Police Force.
... ... Respondent/s
======================================================
Appearance :
For the Petitioner/s : Mr.Raja Ram Mishra, Adv.
For the Respondent/s : Mr.Awadhesh Kr. Pandey, Sr. CGC
Mr.R.K. Sharma, CGC
Mr.Abhishek Kr. Verma, Adv.
======================================================
CORAM: HONOURABLE MR. JUSTICE DR. ANSHUMAN
ORAL JUDGMENT
Date : 13-03-2026
Heard Learned Counsel for the petitioner and Learned
Counsel for the State.
2. The present writ petition has been filed with the
following reliefs:-
1. That this is an application for
issuance of a writ of 'CERTIORARI' to quash the
appellate order dated 25/10/2024 passed by the
Inspector General ITBP, East Frontier Head
Quarter 6th Floor Kendriya Bhawan Sector-H,
Aliganj, Lucknow, U.P.(Respondents No.2) through
Patna High Court CWJC No.1200 of 2025 dt.13-03-2026
which appeal against removal from service of the
petitioner has been rejected as time barred and to
quash the office order dated 23/01/2016 issued by
the Commandant 51 BN ITBP through which the
petitioner has been removed from the service with
effect from 18/01/2016.
3. Learned counsel for the petitioner submits that the
petitioner has earlier moved before this Court in C.W.J.C.
No.7432 of 2016 which was withdrawn with liberty to avail
remedy of appeal vide order dated 13.10.2023.
4. Counsel further submits that when petitioner has
preferred appeal before the concerned authority, his appeal was
not considered on merit rather it has been rejected on the ground
of delay. Therefore, the appellate order, which has not been
considered on merit, be set aside.
5. Learned counsel for the Union of India firstly,
sought time to file a counter-affidavit, but upon specific
direction of the Court to clarify the position of law, he fairly
submits that from the order dated 13.10.2023 passed by this
Hon'ble Court in C.W.J.C. No.7432 of 2016, it is clear that
liberty was granted to the petitioner to prefer appeal. He further
submits that it is due to this reason, filing of appeal of the
petitioner has been entertained by the authority and authority
thereafter, passed order in accordance with law.
Patna High Court CWJC No.1200 of 2025 dt.13-03-2026
6. In the light of the submissions made, the only legal
point involved in the present case is that once liberty to prefer
appeal has been granted by the Writ Court and thereafter, the
petitioner preferred appeal before the authority concerned, then
in that case, the Appellate Authority ought to pass order on merit
or reject it on the ground of delay.
7. With regard to answering this legal point, it is
necessary to quote the provision of Order XXIII Rule 1(3) &
Rule 1-A(2) of the Code of Civil Procedure, 1908 which states
as follows:-
1(3) Where the Court is satisfied,-
(a) that a suit must fail by reason of
some formal defect, or
(b) that there are sufficient grounds for
allowing the plaintiff to institute a fresh suit for the
subject-matter of a suit or part of a claim,
it may, on such terms as it thinks fit,
grant the plaintiff permission to withdraw from
such suit or such part of the claim with liberty to
institute a fresh suit in respect of the subject-matter
of such suit or such part of the claim,
1-A(2) "Limitation law not affected by
first suit- In any fresh suit instituted on permission
granted under the last preceding rule, the plaintiff
shall be bound by the law of limitation in the same
manner as if the first suit had not been instituted."
Patna High Court CWJC No.1200 of 2025 dt.13-03-2026
8. Upon perusal of the provisions laid down under
Order XXIII Rule 1(3) of the C.P.C., it transpires to this Court
that the terms of withdrawal has been specified in the order
sheet passed by the learned Single Judge, which states as
follows:-
"At the outset, the learned counsel for
the petitioner does not seek to press the present
writ petition, however, seeks liberty on behalf of the
petitioner to challenge the order of punishment
dated 30.11.2015, by filing appropriate appeal.
Liberty, so sought, is granted.
2. The present writ petition stands
disposed off as not pressed."
9. Here in the present matter, liberty to prefer
appropriate appeal has been granted and with this direction, the
writ petition was disposed of, but Rule 1-A(2) of Order XXIII of
the C.P.C. states that "Limitation law not affected by first
suit- clearly states that in any fresh suit instituted on permission
granted under the last preceding rule, the plaintiff shall be bound
by the law of limitation in the same manner as if the first suit
had not been instituted."
10. Meaning thereby, when any fresh proceeding
instituted on permission granted by the Writ Court, then in that
case, there is no question of limitation arise.
Patna High Court CWJC No.1200 of 2025 dt.13-03-2026
11. In this view of the matter, the appellate order
dated 25.10.2024 passed by the Inspector General ITBP, East
Frontier (respondent No.2) (annexure-P/6) is hereby set aside
and the present writ petition is hereby allowed.
12. However, it is hereby directed to Respondent No.2
(Appellate Authority) to pass a fresh order on merit considering
this aspect that in the withdrawal of the earlier writ, liberty to
file appeal has been granted.
13. With the aforesaid directions and observations, the
present writ application stands allowed.
(Dr. Anshuman, J)
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