Dev Kishan Daroga And Ors vs State And Ors (2023/Rjjd/013955)
2023 Latest Caselaw 4197 Raj

[2023/RJJD/013955]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Writ Misc Application No. 113/2016

in

S.B. Civil Writ Petition No. 3620/2008

1. Dev Krishan Daroga S/o Shri Ram Lal Ji

2. Laxman Singh S/o Shri Surajmal Gurjar.

3. Ladulal S/o Shri Harish Chandra Ji.

4. Usman Khan S/o Shri Jabbar Khan.

5. Kayum S/o Shri Jabbar

6. Daludas S/o Shri Bansidas

7. Balkrishan S/o Shri Mithudas

8. Narayan Singh S/o Shri Kishan Singh

9. Tej Singh S/o Shri Raghuveer Singh.

10. Ramlal S/o Shri Kalu Chamar

11. Baludas S/o Shri Ladudas

12. Hanuman S/o Shri Mangla Gurjar

13. Ramdhan S/o Shri Ramsaroop Vaishnav

14. Manjeer Ali S/o Shri Alaudeen.

15. Rajendra Prasad S/o Shri Shivratan Trivedi

16. Bhairulal S/o Shri Hazari Gurjar

17. Abdul Saleem S/o Shri Nazeer Khan

18. Jeevanram S/o Shri Chittar Gurjar

19. Saleem S/o Shri Isak Khan

20. Jamuna Lal S/o Shri Mathuralal Vaishnav

21. Shivraj S/o Shri Chittar Meena

22. Gandi Lal S/o Shri Ishwar Lal Gurjar

23. Prabhulal S/o Shri Heeradas Vaishnav

24. Madanlal S/o Shri Heera Joshi

25. Pawan S/o Shri Rameshwar Pareek

26. Brijmohan S/o Shri Chotu Sharma

27. Ashok S/o Shri Peeru Tailor

28. Shishram S/o Shri Khubi Ram Jat.

29. Madhav Lal S/o Shri Kishan Ahir

30. Satyanarayan S/o Shri Devi Lal Sharma. All C/o of Forest Naka, Mataji Road, Hamirgarh, District Bhilwara.

----Non-applicants (Petitioners) Versus

1. State of Rajasthan through its Secretary, Government of Rajasthan, Jaipur.

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2. The Principal Chief Conservator of Forest, Van Bhawan, Forest Department, Rajasthan, Jaipur.

3. The Conservator of Forest, Forest Department, Ajmer.

4. The Deputy Conservator of Forest, Social Forestry, Forest Department, Bhilwara.

----Applicants (Respondents)

For Applicant(s) : Mr. Sandeep Shah, Additional Advocate General assisted by Ms. Akshiti Singhvi Mr. Nishant Bapna For Non-Applicant(s) : Mr. R.S. Saluja

JUSTICE DINESH MEHTA

Order

08/05/2023

1. The present application (Misc. Application No. 113/2016) has

been filed by the applicant - State (Respondents in the writ

proceedings) seeking recalling/review of the order dated

06.02.2012 passed by a co-ordinate Bench of this Court.

2. It is to be noted that the application in hands seeking

recalling/review of the order passed as back as on 06.02.2012

came to be filed on 13.04.2016 - with a delay of about four years.

3. While filing the application, no explanation worth the name

was given by the applicant for the delay, however, subsequently

an application under Section 5 of the Limitation Act came to be

filed by the respondent - State on 11.09.2017, apparently

consequent to the Court proceedings of 11.08.2020 and in wake of

the liberty sought during such proceedings.

4. Mr. Saluja, learned counsel for the non-applicant (writ

petitioners) raised following two preliminary objections regarding

maintainability of the application:-

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(i) the application in hand has been filed with an inordinate delay

of four years, that too without proper explanation of the delay.

(ii) The order dated 06.02.2012 was passed by the Court with the

consent and it dealt with all the applicable law on the subject. As

there is no error, much less apparent error, the application does

not fall within the ambit of review / recalling.

5. Heard learned counsel for the parties.

6. Mr. Shah, learned Additional Advocate General appearing for

the applicant / respondent - State submitted that the delay in

question occurred on account of pendency of the matter at various

stages of the State Government.

7. Reading the application in its entirety, learned Additional

Advocate General submitted that initially the State had decided

not to file an appeal and to comply with the order, but when the

matter was examined by the Finance Department, it was found

that the order passed by this Court on 06.02.2012 was not in

conformity with the Circular of the State Government dated

06.09.2002.

8. Learned counsel submitted that the State has shown the

movement of the file at different stages in its delay condonation

application which shows that the State was precluded from filing

the application in time and prayed that four years' time that has

been taken by the State in moving the present application be

condoned, as the same stands duly explained.

9. In support of his contention that a litigant, more particularly

the State, is not required to explain each days' delay, learned

counsel submitted that the detailed application filed by the

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applicant / State clearly shows that the State was not sitting idle

and the matter was under active consideration of the State.

10. He argued that the State has decided to file the application

seeking review/recalling of the order for cogent reasons and valid

grounds and prayed that the delay condonation application be

allowed and the application for recalling / review be heard on its

merit.

11. In support of his contention that the delay caused in filing

the application should be considered sympathetically, learned

counsel cited Division Bench judgment dated 23.07.2020 passed

in the case of State of Rajasthan & Ors. vs. Ashiana Amar

Developers (D.S. Special Appeal (Writ) No. 1407/2018).

12. Highlighting that the application under Section 5 of the

Limitation Act was filed in September, 2017 and inspite of taking

time for filing reply, no reply to the application has been filed by

the non-applicants, Mr. Shah argued that whatever has been

stated by the applicant - State in the application supported by an

affidavit has remained unrebutted and thus, the application

deserved acceptance.

13. On merits of the application, learned counsel submitted that

true it is, that the order under consideration was passed by the

Court while recording consent of counsel appearing on behalf of

the State, but one fact cannot be lost sight of is, that the Court

had referred to and relied upon the Circulars dated 25.01.1992

and 06.09.2002 (Annexure-5 to the writ petition), and a perusal

thereof clearly shows that non-applicants (writ petitioners) were

not entitled for the benefit of selection grade from the date of

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conferment of semi-permanent status, as has been held by the

Court while passing order under consideration.

14. Having pointed out above fact, learned Senior Counsel

argued that the Court has omitted to consider the true import of

Circular dated 06.09.2002 and 30.09.1998 and proceeded to

decide rights of the parties on the basis of Circular dated

25.01.1992. It was also argued that by the time of passing the

order under consideration, Hon'ble Supreme Court has already

decided the case of State of Rajasthan & Ors. vs. Jagdish

Narain Chaturvedi, reported in (2009) 12 SCC 49, and if the

said judgment was considered, the order under consideration

could not have been passed.

15. Mr. Shah, further submitted that the petitioners had relied

upon the Circular dated 30.09.1998 and therefore, this Court was

required to take into account the effect of such circular. He argued

that the order, which has been passed in ignorance of the relevant

circulars and applicable laws, suffers from apparent error and

thus, the same deserves to be recalled. He relied upon the

judgment of the Supreme Court in the case of State of

Rajasthan & Anr. vs. Surendra Mohnot & Ors., reported in

(2014) 14 SCC 77 and submitted that this judgment is applicable

on all fours.

16. Mr. Saluja, learned counsel appearing for the non-applicants

(writ petitioners) submitted that simply because the non-

applicants have not filed a counter or reply to the application

under Section 5 of the Limitation Act, their right to object to the

application seeking condonation of delay cannot be taken away.

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17. He navigated the Court through the contents of the

application and submitted that there are huge gaps (of six months

/ eight months) in moving the file from one office to another and

the application, seems to have been filed in great detail, fails to

explain the delay, which had occurred between moving file from

one office to another.

18. Learned counsel for the non-applicant submitted that the

delay in question is inordinate and because of the said delay, in

the period interregnum, the applicant / respondent - State has

implemented the order passed by this Court in the case of some of

the employees. Therefore, the position has changed and benefits

have been extended, which cannot be permitted to be undone by

entertaining the present application at such a belated stage.

19. In support of his contention, that delay in the present case

should not be condoned, Mr. Saluja relied upon the judgment of

Hon'ble the Supreme Court rendered in the case of Esha

Bhattacharjee vs. Managing Committee of Raghunathpur

Nafar Academy & Ors., reported in (2014) 1 SCC (Civ) 713,

more particularly the principles culled out by the Supreme Court in

Para 15 thereof.

20. On merits of the application, Mr. Saluja submitted that the

order under consideration has been passed after dealing with

applicable Circular / provisions of law, that too with the consent of

learned counsel. He submitted that had the Government Counsel

not given his consent, the non-applicants (writ petitioners) would

have argued and satisfied the Court about their right to claim

selection scale from the date of conferment of semi-permanent

status. He argued that the writ petitioners are entitled for grant of

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benefit of selection grade from the date of conferment of semi-

permanent status.

21. Having heard the learned counsel for the parties and

considering the adjudication made by Hon'ble the Supreme Court,

particularly in Para (xii) and (xiii) in the case of Esha

Bhattacharjee (supra), this Court is of the view that if the facts

stated in the application as a whole are considered, the State has

been able to atleast explain the delay if not justify.

22. True it is, that the State has taken abnormally long time of

about four years in filing the application. But the delay in the

present case deserves to be condoned, as the State had not

rested on its oars and the matter was being pursued at different

levels of the State.

23. The application (I.A. No. 4769/2017) under Section 5 of the

Limitation Act is allowed.

24. Moving on to the merits of the application, this Court is of

the view that the consent of the Government counsel which is

contrary to law cannot be construed to be binding upon the State

Government in the light of the judgment in the case of Union of

India vs. Heera Lal reported in 1996 (10) SCC 574, wherein

Hon'ble the Supreme Court has held that the concession made by

Government Advocate contrary to law, is not binding upon the

Government.

25. That apart, the judgment of Supreme Court in the case of

Surendra Mohnot (supra) throws enough light on all the issues

including limitation and court's power to review / recall the order,

so also on merit of the case. The case in hands appears to be akin

to what has been decided in the case of Surendra Mohnot (supra).

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26. While passing the order under consideration, the Court

omitted to consider import and impact of the above referred

circulars and the judgments of the Supreme Court on the subject,

perhaps because learned Government counsel gave his consent.

27. For the reasons indicated hereinabove, the application

seeking recalling of the order dated 06.02.2012 is allowed.

28. The order dated 06.02.2012 is, hereby recalled.

29. Needless to state that any observation made in the order

instant shall be treated limited for the purpose of deciding the

application for recalling the order. The parties shall be entitled to

put forth their case on merits in accordance with law, which will

include the submissions made on the basis of circular dated

30.09.1998.

(DINESH MEHTA),J 42-Mak/-

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