IN THE
HON’BLE SUPREME COURT OF INDIA
Special Leave Petition( Civil
Appeal) No. of 2009
( Under
Article 136 Of Constitution of India)
(DISTRICT – MORADABAD)
(Arising out of Judgment and
order Dated 26.2.2009 and judgment 26.10. 2006 passed in Review application No.
253862 of 2006 and judgment passed in Special Appeal No.1369 of 1999 ( State of
U.P. Versus Prem Shankar Sharma and others) respectively)
Prem Shankar Sharma, son of Ram Bhajan Lal Sharma, Lecture in
English (dismissed) in Ambika Prasad Intermediate College, Near Police station,
Moradabad
---Appellant/ Writ Petitioner
Versus
1.
State of
U.P. through Secretary, Education Department, Vidhan Bhawan, Lucknow.
2.
Uttar
Pradesh Secondary Education service Commission, Allahabad, through its
Chairman.
3.
The One Man
Sub-Committee of the Uttar Pradesh, Secondary Education Service Commission,
through Dr. P.N. Dwivedi, Chairman of the Committee, Allahabad.
4.
Committee of
Management of Ambika Prasad Intermediate College, Near Police station,
Moradabad.------ Respondent/ Opposite Party.
The
present Special Leave Petition under Article 136 of the Constitution is filed
against Judgment and order Dated 26.2.2009 and judgment 26.10. 2006 passed in
Review application No. 253862 of 2006 and judgment passed in Special Appeal
No.1369 of 1999 ( State of U.P. Versus Prem Shankar Sharma and others)
respectively)
That
present Appeal filed by the appellant may be allowed and the the
judgement and order dated 11.8.1999 passed by Hon’ble Mr. Justice V.M. Sahai J
in writ petition no. 24443 of 1989 (Prem Shankar Sharma Vs. State of U.P. and
others), Setting aside the order of
dismissal on the ground of the preventive detention of the petitioner may be
restored with the direction to the respondents to reinstate in service with all
consequential benefit.
The
present Special Leave to Appeal is filed on the following amongst other
Grounds.
G R O U N
D S
1.
Because, Allahabad High Court Rules, 1952 have been promulgated in exercise
of the power conferred under Article 225 of the Constitution of India and all
other powers enabling it on that behalf. Thus the strict observation and
compliance of mandatory provisions is required to be observed by the Court in
consonance with requirement of Principle of equity, fairness and in such
circumstances if the practice and procedure prescribed in this regard is not
followed then the deviations from the rules of court may violate Article 14 of
the Constitution of India.
2.
Because, the constitution of the benches as per the
jurisdiction conferred and allotted to them by the order of Chief Justice or in accordance with his
lordship’s direction under Rule 1 of Chapter V of Allahabad High Court Rules,
1952. The Registrar shall subject to such direction as Chief Justice may give from time to time
caused to be prepare a cause list for each day on which the court sits
containing the list of cases, which may be heard by different benches of court
under Rule 6 of Chapter VI of High Court Rules, 1952.
3.
Because, the case is not listed in the cause list
after determination of heading for what purposes aforesaid matter is being
listed, the other coordinate Division Bench dealing with other jurisdiction
shall not be empowered to decide such case except by getting the nomination of
the matter by the order of Chief Justice
of High Court.
4.
Because, under the provisions of Chapter V Rule 1 of
High Court Rules, 1952, the sole prerogative of the Chief Justice to decide the
particular subject matter conferred on particular bench for particular period.
If the decision of the subject matter by some other bench is taken up without
being listed at the serial number under the heading of the hearing or without the
case being Part-heard or tide-up, if the decision is given by the other bench
without nominating by the Chief Justice the judgement will be without
jurisdiction and nullity.
5.
Because, the Appellant was appointed as Lecturer in
English in the institution on 9.8.1968. The aforesaid institution is recognized
institution having grant in aid and the provision of Uttar Pradesh Intermediate Education Act, 1921, and the
regulation framed therein including Uttar Pradesh Secondary Education Service
Commission and Selection Board Act, 1892 and Uttar Pradesh High school And
Intermediate ( payment of Salary )Act,1971 are applicable. He was confirmed
after completion of probation period on 9.8.1969.
6.
Because, the
conduct and character of the petitioner always remain enshrined by having the
appreciation of the Superior authority. The result of the English classes
remained excellent. He was the member of Rashtriya Swamsevak Shangh and as such
he was detained under the maintenance of Internal Security Act from 14.8.1975
to 30.3.1977. He was again detained under National Security Act (N.S.A.) on
1.11.1980 upto 10.12.1980 and despite the aforesaid preventive detention; the
respondents paid the petitioner salary.
1.
Because, third time when on 11.7.1987 the petitioner
went to Govt. Inter College, Moradabad to take training under the new education
policy, he was detained under the provisions of Internal Security Act.
2.
Because, the
petitioner was taking the training alongwith the principal of institution and
one teacher Khajan Giri and as such he
told the Principal to inform the Manager about his arrest, but still the
Manager wrote a letter on 24.7.1987 stating therein that the petitioner did not
attend the college and was not present in the institution on 21.7.1987.
3.
Because, on 27.7.1987
the petitioner wrote a letter that he was arrested by the Police at the gate of
Govt. Inter College, and had been lodged in district Jail Moradabad from
11.7.1987. This letter was sent through district Jail Moradabad and the same
was communicated to the Manager, who sent the aforesaid letter to the D.I.O.S.
Moradabad on 31.7.1987.
4.
Because, the
members of Bhartiya Janta Party shown its resentment against the illegal
detention of the petitioner and the news to this effect were published in Amar
Ujala on 16.7.1987. Thus the management knew the fact regarding the absence of
petitioner on account of unavoidable circumstances of his illegal detention,
but still the allegation of absent from leave was leveled against the
petitioner.
5.
Because, Sri
Kameshwar Nath Mishra, Senior Lawyer of District Court Moradabad and the
Vice-President of Committee of Management of Institution passed resolution on
15.7.1987 seeking bye cot of all the courts Moradabad on account of illegal
arrest of petitioner.
6.
Because, still the resolution was passed on 4.9.1987
to give a notice to the petitioner as to why he remained absent from 11.7.1987
and sought for his explanation. The notice was sent to the petitioner in jail
on 10.9.1987 stating therein that why his services should not be terminated.
The explanation of petitioner regarding his absence being beyond his control as
had been detained under the National Security Act and the earlier information
sent to the manager on 27.7.1987 was not taken into consideration by the
management.
7.
Because, the
charges were in respect of previous detention for which the petitioner was paid
his salary was also leveled as the first charge, while the second charge was
falsely concocted, as the petitioner did not give any information regarding his
detention, nor gave any leave application. The petitioner explained every thing
in his letter dated 21.1.1988 and said that he is district Jail due to illegal
detention and as such the absence of petitioner was beyond his control. The
sole reason for the detention of the petitioner was that he was the District
Secretary of Bhartiya Janta Party.
8.
Because, the
petitioner was suspended, but the suspension order was revoked after 60 days.
It is submitted that after being released from the preventive detention on 11.7.1988,
the petitioner was directed to put his signature in the office of D.I.O.S.
Moradabad, as the Management did not allow the petitioner to resume his duties.
The petitioner was paid salary by the D.I.O.S. even after the preventive
detention.
9.
Because, despite all such facts the matter was
referred to the U.P. Secondary Education service Commission, Allahabad to whom
petitioner sent a letter on 24.2.1989 seeking setting aside the proposal of the
Committee of Management, but the one member committee who was not even
authorized to conduct the enquiry recommended for termination of services of
the petitioner and thereafter the U.P. Secondary Education service Commission,
Allahabad on 28.7.1989 granted approval to the proposal for termination.
10. Because, one member committee of O.N. Shah who remained Assistant Manager
of the Committee of Management of the Institution on 17.5.1987 and was the
Principal of S.S.K. Inter College could not be appointed as one member
committee and his recommendation to dispense with the services to the
commission were void-ab- initio and as such the subsequent order of termination
dated 1.9.1989 on the baseless, misconceived and frivolous charges was liable
to be set aside, which was done by the reasoned judgement passed on 11.8.1999
in writ petition no. 24443 of 1989.
11.
Because, the a teacher while detained under
Preventive detention could have been said to be voluntarily absenting from duty
on the basis of which without affording any opportunity, the services of such
teacher may be dispensed with in gross violation of the principle of natural
justice and the case law relied upon in the judgement dated 11.8.1999 (state of
Madhya Pradesh Vs. Rama Shankar Raghuvanshui A.I.R. 1983 S.C. 374), (M.H.
Devendrappa Vs. Karnataka State in Small Industries Development Corporation.
A.I.R. 1988 S.C. 1064), Sarnam Singh Vs. Smt Pushpa Devi 1986 (1) U.P.L.B.E.C.
page 348 and Anukool Chandra Pradhan Vs. Union of India A.I.R. 1997 S.C. 2814,
State of Orissa Vs. Dr. Miss. Bina Pani Dei and others 1967 (2) S.C.R. 625
(Para-9), Mohinder Singh Gill VS. Chief Election Commissioner 1978 (2) S.C.R.
272 (Para-9), State of West Bengal Vs. Anwar Ali Sarkar 1952 S.C.R. 284
followed in D.K. Yadav Vs. M/S J.M.A. Industry J.T. 1993 (3) S.C. 617 as well
as the provisions of Regulation 35, 36, 37, 38, 39, 40, 44 and 45 read with
section 16 (G) (3-A) as provided under Chapter III of the U.P. Intermediate
Education Act, 1921 and rule 6 of rules framed under Act no. 5 of 1982 referred
in the judgement dated 11.8.1999 were indicated as the controversy involved
regarding unavoidable incident relating to the arrest under preventive
detention, which is not pertaining to any criminal activity, but simply on
account of participating into association under Article 19 (1) ( C) of the
Constitution of India. Article 19 (1) ( C) of the Constitution of India.
12.
Because, by the judgement and order
dated 11.8.1999 passed by Hon’ble Mr. Justice V.M. Sahai J in writ petition no.
24443 of 1989 (Prem Shankar Sharma Vs. State of U.P. and others), the order of
dismissal on the ground of the preventive detention of the petitioner was set
aside.
13.
Because, by the
judgement and order dated 11.8.1999 passed by Hon’ble Mr. Justice V.M. Sahai J
in writ petition no. 24443 of 1989 (Prem Shankar Sharma Vs. State of U.P. and
others), the order of dismissal on the ground of the preventive detention of
the petitioner was set aside.That Against the judgement and order dated
11.8.1999 passed by Hon’ble Mr. Justice V.M. Sahai J in writ petition no. 24443
of 1989 (Prem Shankar Sharma Vs. State of U.P. and others), the special appeal
no. 840 of 1999, the Special Appeal no. 860 of 1999, special appeal no. 907 of
1999 and Special Appeal No.1369 of 1999
( State of U.P. Versus Prem Shankar Sharma and others)were filed .
14.
Because, the
special appeal no. 840 of 1999 was dismissed as not pressed on 23.11.2004 by
the Division Bench presided over by the Hon’ble Dr. B.S. Chauhan and Hon’ble
Dilip Gupta, JJ. The aforesaid appeal was filed by the Committee of Management of
Ambika Prasad Intermediate College, Moradabad challenging the judgement and
order dated 11.8.1999 passed by Hon’ble Mr. Justice V.M. Sahai J in writ
petition no. 24443 of 1989 (Prem Shankar Sharma Vs. State of U.P. and others).
15.
Because, it is
pertinent to mention here that thereafter an application for recall of the
order dated 23.11.2003 purported to have been passed in the Special Appeal no.
840 of 1999 without annexing the judgement dated 23.11.2004 dismissing the
aforesaid Special Appeal no. 840 of 1999 was filed without serving the copy of
said application to the counsel for the applicant/ petitioner, respondent in
the present appeal, Advocate appearing in the said case, who remained present
at the time of dismissal of aforesaid appeal on 23.11.2004.
16.
Because, the
applicant/petitioner, respondent in the present appeal filed the counter
affidavit in reply to the affidavit filed in support of the recall application.
It was stated that the judgment can not be recalled by moving an application at
belated stage and the copy of the same is not given to the counsel appearing on
behalf of answering respondent.
17.
Because, it was further stated that the said
application is filed without having any explanation regarding non-filing of
application seeking condonation of delay. Thus the same is not maintainable and
liable to be rejected.
18.
Because, it was further stated that the Special Appeal
no. 860 of 1999 filed by Sudhir Kumar against the same judgement dated
11.8.1999 passed by Hon’ble Mr. Justice V.M. Sahai, J has been dismissed on
2.4.2004. This person Sudhir Kumar was inducted as the Lecturer in English
after dispensing the services of the petitioner. However, when the writ
petition no. 24443 of 1989 was allowed on 11.8.1999, then the services of
Sudhir Kumar were terminated and as such he filed the Special appeal no. 860 of
1999, which was also dismissed and thereby reaffirming the judgement dated
11.8.1999.
19.
Because, the special appeal no. 907 of 1999 was filed
against the same judgement passed on 11.8.1999 by Hon’ble Mr. Justice V.M.
Sahai in writ petition no. 24443 of 1989, but that special appeal was also
dismissed as misconceived and also being filed without any locus-standi by the
judgment dated 14.9.1999.
20.
Because, the special appeal no. 840 of 1999 was
dismissed as not pressed on 23.11.2004 by the Division Bench presided over by
the Hon’ble Dr. B.S. Chauhan and Hon’ble Dilip Gupta, JJ. The aforesaid appeal
was filed by the Committee of Management of Ambika Prasad Intermediate College,
Moradabad challenging the judgement and order dated 11.8.1999 passed by Hon’ble
Mr. Justice V.M. Sahai J in writ petition no. 24443 of 1989 (Prem Shankar
Sharma Vs. State of U.P. and others).
21.
Because, it
is pertinent to mention here that thereafter an application for recall of the
order dated 23.11.2003 purported to have been passed in the Special Appeal no.
840 of 1999 without annexing the judgement dated 23.11.2004 dismissing the
aforesaid Special Appeal no. 840 of 1999 was filed without serving the copy of
said application to the counsel for the applicant/ petitioner, respondent in
the present appeal, Advocate appearing in the said case, who remained present
at the time of dismissal of aforesaid appeal on 23.11.2004.
22.
Because, the applicant/petitioner, respondent in the
present appeal filed the counter affidavit in reply to the affidavit filed in
support of the recall application. It was stated that the judgment can not be
recalled by moving an application at belated stage and the copy of the same is
not given to the counsel appearing on behalf of answering respondent.
23.
Because, it was further stated that the said
application is filed without having any explanation regarding non-filing of
application seeking condonation of delay. Thus the same is not maintainable and
liable to be rejected.
24.
Because, it was further stated that the Special Appeal
no. 860 of 1999 filed by Sudhir Kumar against the same judgement dated
11.8.1999 passed by Hon’ble Mr. Justice V.M. Sahai, J has been dismissed on
2.4.2004. This person Sudhir Kumar was inducted as the Lecturer in English
after dispensing the services of the petitioner. However, when the writ
petition no. 24443 of 1989 was allowed on 11.8.1999, then the services of
Sudhir Kumar were terminated and as such he filed the Special appeal no. 860 of
1999, which was also dismissed and thereby reaffirming the judgement dated
11.8.1999.
25.
Because, the special appeal no. 907 of 1999 was filed
against the same judgement passed on 11.8.1999 by Hon’ble Mr. Justice V.M.
Sahai in writ petition no. 24443 of 1989, but that special appeal was also
dismissed as misconceived and also being filed without any locus-standi by the
judgment dated 14.9.1999.
26.
Because, it
is submitted that there is the complete procedure prescribed for having the
jurisdiction being conferred by Hon’ble the Chief Justice for deciding the
special appeal and without any nomination being conferred to the particular
Hon’ble Division Bench by the specific order of Hon’ble Chief Justice, the
matter may not be decided by another coordinated Hon’ble Division Bench, except
the Hon’ble Division Bench having the jurisdiction conferred to the different
benches as per the circulation of cause list circulated to the Hon’ble benches
and members of the Bar.
27.
Because,
the constitution of the benches as per the jurisdiction conferred and
allotted to them by the order of Hon’ble Chief Justice or in accordance with
his lordship’s direction under Rule 1 of Chapter V of Allahabad High Court
Rules, 1952. The Registrar shall subject to such direction as Hon’ble Chief
Justice may give from time to time caused to be prepare a cause list for each
day on which the court sits containing the list of cases, which may be heard by
different benches of court under Rule 6 of Chapter VI of High Court Rules,
1952.
28.
Because, an
application for expediting of hearing of case or for listing a case out of term
or for removal of case to be tried and determined by the court under Rule 4 or
for withdrawal of a case under Article 228 of the Constitution of India shall
be laid before Hon’ble Chief Justice (or any other judge of a bench nominated
by Chief Justice in respect of any case or class of cases) for orders. Thus for
having an out of term hearing of a case, the application is required to be
moved before the Hon’ble the Chief Justice.Because, in this manner, it is crystal clear that
if the case is not listed in the cause list after determination of heading for
what purposes aforesaid matter is being listed, the other coordinate Division
Bench dealing with other jurisdiction shall
not be empowered to decide such case except by getting the nomination of
the matter by the order of Hon’ble Chief Justice.
29.
Because,
the other aspect of the matter is pertaining to the determination of the
reason for which a particular case is being listed in the cause list circulated
to the bench and the members of Bar, the case may not be decided by any other
coordinated Division Bench without it being posted for hearing.
30.
Because, matter
was not argued by the standing counsel, but in the judgment allegedly delivered
on 26.10.2006, it has been falsely mentioned that the case was argued by the
learned standing counsel appearing for the State Appellant. The counsel for the
petitioner in Special Appeal No. 840/1999 Sri Yogesh Kumar saxena, Advocate
informed the deponent that it was only Sri V.K. Singh, Advocate appearing in
Special appeal No. 840/1999, who placed the controversy involved in his special
appeal no. 840 of 1999.
31.
Because, on 26.10.2006 the jurisdiction to here the
listed special appeals for the year of 1999 for hearing including the bunch
cases was conferred by the authority of Hon’ble Chief Justice to the division
bench presided over by their lordships Hon’ble Mr. Justice R.K. Agrawal and
Hon’ble Mr. Justice Vikram Nath in Court no.2. It is submitted that the present
Special appeal no. 1369 of 1999 was not even listed in court no. 34, but since
the record of the said special appeal no. 1369 of 1999 was summoned in furtherance
of recall application filed in special appeal no 840 of 1999 by the bench
presided over by Hon’ble Justice Dr. B.S. Chauhan and Hon’ble Justice Dilip
Gupta and as such only to ascertain the facts stated in the counter affidavit
and in the affidavit filed in support of the alleged recall application, the
records of three aforesaid special appeal was summoned, wherein the name of the
counsel appearing on behalf of petitioner/respondent namely Sri Ashok Khare, Advocate was the only
name mentioned in special appeal no.
1369 of 1999. The true copy of cause list having the jurisdiction of court no.2
pertaining to Special Appeal of year 1999 and the cause list having printing of
Special appeal no. 1369 of 1999 alongwith special appeal no. 840 of 1999 mentioned
as serial no. 2 on 26.10.2006 are filed herewith as Annexure no.5 to
this affidavit.
32.
Because,
the Standing counsel was not prepared to argue the matter pertaining to
the special appeal no. 1369 of 1999 filed by the State of U.P. in absence of
the same not being listed in court no. 34 and in absence of Sri Ashok Khare,
senior Counsel appearing in the said appeal on behalf of petitioner. This fact
has been brought to the notice of the deponent by his counsel appearing in
Special appeal no. 840 of 1999, which was dismissed on 23.11.2004.
33.
Because,
the division bench presided over by Hon’ble Justice Dr. B.S. Chauhan
enquired about the matter from Sri V.K. Singh Advocate appearing in special
appeal no. 840 of 1999 and also enquired from the counsel for the respondent
only about the controversy involved in all such special appeal out of which
three special appeals were already dismissed while the special appeal no. 1369
of 1999 filed by State of U.P. was surviving.
34.
Because, on
1.11.2006, when the matter was shown to be listed in the cause list of court
no. 34 regarding the delivery of the order in the recall application filed in
special appeal no. 840 of 1999 then counsel for the petitioner was informed
that since the special appeal no. 1369 of 1999 filed by the State of U.P. was
also liable to be dismissed and as such it has been shown to be decided on
26.10.2006 in the cause list of 1.11.2006. The true copy of the cause list of
court no. 34 dated 1.11.2006 is Annexure no.6 to this
affidavit.
35.
Because,
upto this time i.e. 1.11.2006 there was no existence of the order
alleged to have been passed on 26.10.2006 in the special appeal no. 1369 of
1999 on the basis of which the recall application was decided as no order is
required to be passed on this application, but subsequently thereafter when the
message of dismissal of special appeal no. 1369 of 1999 was communicated to the
petitioner, then counsel for the petitioner came to know about the existence of
the order. He applied for the order in anticipation that the special appeal
bearing special appeal no. 1369 of 1999, which was earlier filed as (defective)
appeal no. 630 of 1999 might have been dismissed as there may not be the
inconsistent order in the said appeal after dismissal of three special appeals
filed against the same judgement, in which the committee of Management and
Secretary U.P. Secondary Commission remained at the array of respondents and
were duly represented by their respective counsels. The true copy of the order/
judgement dated 26.10.2006 passed in the recall application filed to recall the
dismissal order dt. 23.11. 2004 in the Special Appeal No.840/1999 and the
judgement passed the present special
appeal No. 1369/1999 are being filed herewith and marked as Annexure no.7
and 8 to this affidavit.
36.
Because,
although the order passed on 23.11.2004 dismissing the Special Appeal
No. 840 of 1999 has been affirmed by the order dated 26. 10. 2006 passed on
Recall application, as it has been noted that in view of the judgement passed
in special appeal No. 1369 of 1999, no order is required to pass on the recall
application. Thus it appears that even by this order passed on 26.10.2006, the
Hon’ble Division Bench dealing with the recall application in special Appeal
No. 840 of 1999 did not find any merit in the said appeal. The Hon’ble division
bench Presided by Hon’ble Dr. justice B. S. Chauhan adopted a unique manner in
deciding the present Special Appeal wholly without jurisdiction purported to
have decided on the same day, to which no person could have decided in the open
court on 26.10.2006, otherwise their was no occasion for listing of the case on
1.11.2006 in the cause list for appropriate order on the recall application
filed in Special Appeal no. 840 of 1999. Thus the judgment passed in special
Appeal is bad in the light of the legal fiction that what not be done directly
in absence of jurisdiction, the can not be done indirectly by the Hon’ble
Division Bench presided over by Hon’ble Dr. B.S. Chauhan and Hon’ble Mr.
Justice Dilip Gupta in passing the judgement on 26.10.2006 passed in special
Appeal No. 1369 of 1999.
37.
Because, in
this manner since the judgement passed in the special appeal no. 1369 of 1999
by the bench presided over the Hon’ble Justice Dr. B.S. Chauhan and Hon’ble Mr.
Justice Dilip Gupta is the judgment passed in absentia of the counsel of the
petitioner/respondent appearing in the said appeal namely Senior Counsel Sri
Ashok Khare, Advocate for the petitioner in writ petition no. 24443 of 1989,
which was the only name printed as the sole name of the opposite party; and the
same special appeal no. 1369 of 1999 was neither listed for hearing under the
caption of the jurisdiction, nor there had been any serial number mentioned
against the said listing of the special appeal, regarding which, the
communication could have been made to the senior counsel Sri Ashok Khare,
Advocate appearing on behalf of petitioner by the other counsel appearing in
special appeal no. 840 of 1999 at the time of its dismissal on 23.11.2004.
There was no jurisdiction conferred with the division bench presided over by
Hon’ble Mr. Justice Dr. B.S. Chauhan and Hon’ble Mr. Justice Dilip Gupta to
decide the special appeal of the year of 1999 as the jurisdiction of the same
was conferred before court no. 2 under the prerogative and the authority of the
Hon’ble chief justice in consonance with the requirement of chapter V Rule 1 of
Allahabad High Court Rules. The judgement dated 26.10.2006 passed in Special
Appeal 1369 of 1999 is contradiction to the order passed in special appeal No.
860 of 1999(Dismissed on 2.4.2004), special appeal No. 907of 1999 (Dismissed on
14.9.1999 and special appeal No. 840 of 1999 (Dismissed on 23.11.2004). All the
Appellants filed their appeals against the same judgement, and the appellants of special appeal No. 907of
1999 (Dismissed on 14.9.1999 and special appeal No. 840 of 1999 (Dismissed on
23.11.2004)were also impleaded as respondents in present special appeal no.
1369 of 1999 and thus the judgement passed ex-parte in special appeal no. 1369
of 1999 on 26.10.2006 is passed against the principle of natural justice
causing prejudice and barred by constructive Res- judicata as held in Sarguja
Transport Service versus State Transport appellate Tribunal (1987)1 S. C. C. 5.(
paragraph 7)
38.
Because, under these circumstances, it is expedient
in the interest of justice that the order dated 26.10.2006 passed in Special
Appeal no. 1369 of 1999 may be set aside as justice may be done with the
rights. of the applicant/petitioner
IN THE
HON’BLE SUPREME COURT OF INDIA
Special Leave Petition( Civil
Appeal) No. of 2009
( Under
Article 136 Of Constitution of India)
(DISTRICT – MORADABAD)
(Arising out of Judgment and order Dated 26.2.2009 and judgment
26.10. 2006 passed in Review application No. 253862 of 2006 and judgment passed
in Special Appeal No.1369 of 1999 ( State of U.P. Versus Prem Shankar Sharma
and others) respectively)
Prem Shankar Sharma, son of Ram Bhajan Lal Sharma, Lecture in
English (dismissed) in Ambika Prasad Intermediate College, Near Police station,
Moradabad
---Appellant/ Writ Petitioner
Versus
1.
State of
U.P. through Secretary, Education Department, Vidhan Bhawan, Lucknow.
2.
Uttar
Pradesh Secondary Education service Commission, Allahabad, through its
Chairman.
3.
The One Man
Sub-Committee of the Uttar Pradesh, Secondary Education Service Commission,
through Dr. P.N. Dwivedi, Chairman of the Committee, Allahabad.
4.
Committee of
Management of Ambika Prasad Intermediate College, Near Police station,
Moradabad.------ Respondent/ Opposite Party.
To,
The Hon’ble the Chief Justice
of India and his lordships other Hon’ble companion judges of this Hon’ble
Court.
The humble applicant most respectfully
prayed as under :-
1.
That before
submitting the factual aspect involved in the present case, it is submitted
that there is the complete procedure prescribed for having the jurisdiction
being conferred by Chief Justice Of Allahabad High Court for deciding the
special appeal and without any nomination being conferred to the
particular Division Bench by the
specific order of Chief Justice, the
matter may not be decided by another coordinated Division Bench, except
the Division Bench having the
jurisdiction conferred to the different benches as per the circulation of cause
list circulated to the benches and
members of the Bar.
2.
That the
constitution of the benches as per the jurisdiction conferred and allotted to
them by the order of Chief Justice or in
accordance with his lordship’s direction under Rule 1 of Chapter V of Allahabad
High Court Rules, 1952. The Registrar shall subject to such direction as Chief Justice may give from time to time
caused to be prepare a cause list for each day on which the court sits
containing the list of cases, which may be heard by different benches of court
under Rule 6 of Chapter VI of High Court Rules, 1952.
3.
That an
application for expediting of hearing of case or for listing a case out of term
or for removal of case to be tried and determined by the court under Rule 4 or
for withdrawal of a case under Article 228 of the Constitution of India shall
be laid before Chief Justice of High
Court (or any other judge of a bench nominated by Chief Justice in respect of
any case or class of cases) for orders. Thus for having an out of term hearing
of a case, the application is required to be moved before the Chief Justice Of
High Court.
4.
That in this
manner, it is crystal clear that if the case is not listed in the cause list
after determination of heading for what purposes aforesaid matter is being
listed, the other coordinate Division Bench dealing with other jurisdiction
shall not be empowered to decide such case except by getting the nomination of
the matter by the order of Chief Justice
of High Court.
5.
That the
other aspect of the matter is pertaining to the determination of the reason for
which a particular case is being listed in the cause list circulated to the
bench and the members of Bar, the case may not be decided by any other
coordinated Division Bench without it being posted for hearing.
6.
That the
Allahabad High Court Rules, 1952 have been promulgated in exercise of the power
conferred under Article 225 of the Constitution of India and all other powers
enabling it on that behalf. Thus the strict observation and compliance of
mandatory provisions is required to be observed by the Court in consonance with
requirement of Principle of equity, fairness and in such circumstances if the
practice and procedure prescribed in this regard is not followed then the
deviations from the rules of court may violate Article 14 of the Constitution
of India.
7.
That in the
light of the aforesaid legal propositions advanced by the applicant/ respondent
/ writ petitioner, it is submitted that the present special appeal without
being listed in the daily cause list either under the separate serial number in
the cause list, nor it remain listed with the appropriate heading ‘For
Hearing’, but the same has been decided without giving notice to the counsel
appearing for respondent.
8.
That under
the provisions of Chapter V Rule 1 of High Court Rules, 1952, the sole
prerogative of the Chief Justice to decide the particular subject matter
conferred on particular bench for particular period. If the decision of the
subject matter by some other bench is taken up without being listed at the
serial number under the heading of the hearing or without the case being
Part-heard or tide-up, if the decision is given by the other bench without
nominating by the Chief Justice the judgement will be without jurisdiction and
nullity.
9.
That the
Appellant was appointed as Lecturer in English in the institution on 9.8.1968.
The aforesaid institution is recognized institution having grant in aid and the
provision of Uttar Pradesh Intermediate
Education Act, 1921, and the regulation framed therein including Uttar Pradesh
Secondary Education Service Commission and Selection Board Act, 1892 and Uttar
Pradesh High school And Intermediate ( payment of Salary )Act,1971 are
applicable. He was confirmed after completion of probation period on 9.8.1969.
10.
That the
conduct and character of the petitioner always remain enshrined by having the
appreciation of the Superior authority. The result of the English classes
remained excellent. He was the member of Rashtriya Swamsevak Shangh and as such
he was detained under the maintenance of Internal Security Act from 14.8.1975
to 30.3.1977. He was again detained under National Security Act (N.S.A.) on
1.11.1980 upto 10.12.1980 and despite the aforesaid preventive detention; the
respondents paid the petitioner salary.
11.
That third
time when on 11.7.1987 the petitioner went to Govt. Inter College, Moradabad to
take training under the new education policy, he was detained under the
provisions of Internal Security Act.
12.
That the
petitioner was taking the training alongwith the principal of institution and
one teacher Khajan Giri and as such he
told the Principal to inform the Manager about his arrest, but still the
Manager wrote a letter on 24.7.1987 stating therein that the petitioner did not
attend the college and was not present in the institution on 21.7.1987.
13.
That on
27.7.1987 the petitioner wrote a letter that he was arrested by the Police at
the gate of Govt. Inter College, and had been lodged in district Jail Moradabad
from 11.7.1987. This letter was sent through district Jail Moradabad and the
same was communicated to the Manager, who sent the aforesaid letter to the
D.I.O.S. Moradabad on 31.7.1987.
14.
That the
members of Bhartiya Janta Party shown its resentment against the illegal
detention of the petitioner and the news to this effect were published in Amar
Ujala on 16.7.1987. Thus the management knew the fact regarding the absence of
petitioner on account of unavoidable circumstances of his illegal detention,
but still the allegation of absent from leave was leveled against the
petitioner.
15.
That Sri
Kameshwar Nath Mishra, Senior Lawyer of District Court Moradabad and the
Vice-President of Committee of Management of Institution passed resolution on
15.7.1987 seeking bye cot of all the courts Moradabad on account of illegal
arrest of petitioner.
16.
That still
the resolution was passed on 4.9.1987 to give a notice to the petitioner as to
why he remained absent from 11.7.1987 and sought for his explanation. The
notice was sent to the petitioner in jail on 10.9.1987 stating therein that why
his services should not be terminated. The explanation of petitioner regarding
his absence being beyond his control as had been detained under the National
Security Act and the earlier information sent to the manager on 27.7.1987 was
not taken into consideration by the management.
17.
That the
charges were in respect of previous detention for which the petitioner was paid
his salary was also leveled as the first charge, while the second charge was
falsely concocted, as the petitioner did not give any information regarding his
detention, nor gave any leave application. The petitioner explained every thing
in his letter dated 21.1.1988 and said that he is district Jail due to illegal
detention and as such the absence of petitioner was beyond his control. The
sole reason for the detention of the petitioner was that he was the District
Secretary of Bhartiya Janta Party.
18.
That the
petitioner was suspended, but the suspension order was revoked after 60 days.
It is submitted that after being released from the preventive detention on
11.7.1988, the petitioner was directed to put his signature in the office of
D.I.O.S. Moradabad, as the Management did not allow the petitioner to resume
his duties. The petitioner was paid salary by the D.I.O.S. even after the
preventive detention.
19.
That despite
all such facts the matter was referred to the U.P. Secondary Education service
Commission, Allahabad to whom petitioner sent a letter on 24.2.1989 seeking
setting aside the proposal of the Committee of Management, but the one member
committee who was not even authorized to conduct the enquiry recommended for
termination of services of the petitioner and thereafter the U.P. Secondary
Education service Commission, Allahabad on 28.7.1989 granted approval to the
proposal for termination.
20.
That one
member committee of O.N. Shah who remained Assistant Manager of the Committee
of Management of the Institution on 17.5.1987 and was the Principal of S.S.K.
Inter College could not be appointed as one member committee and his
recommendation to dispense with the services to the commission were void-ab-
initio and as such the subsequent order of termination dated 1.9.1989 on the
baseless, misconceived and frivolous charges was liable to be set aside, which
was done by the reasoned judgement passed on 11.8.1999 in writ petition no.
24443 of 1989.
21.
That
the a teacher while detained under Preventive detention could have been said to
be voluntarily absenting from duty on the basis of which without affording any
opportunity, the services of such teacher may be dispensed with in gross
violation of the principle of natural justice and the case law relied upon in
the judgement dated 11.8.1999 (state of Madhya Pradesh Vs. Rama Shankar
Raghuvanshui A.I.R. 1983 S.C. 374), (M.H. Devendrappa Vs. Karnataka State in
Small Industries Development Corporation. A.I.R. 1988 S.C. 1064), Sarnam Singh
Vs. Smt Pushpa Devi 1986 (1) U.P.L.B.E.C. page 348 and Anukool Chandra Pradhan
Vs. Union of India A.I.R. 1997 S.C. 2814, State of Orissa Vs. Dr. Miss. Bina
Pani Dei and others 1967 (2) S.C.R. 625 (Para-9), Mohinder Singh Gill VS. Chief
Election Commissioner 1978 (2) S.C.R. 272 (Para-9), State of West Bengal Vs.
Anwar Ali Sarkar 1952 S.C.R. 284 followed in D.K. Yadav Vs. M/S J.M.A. Industry
J.T. 1993 (3) S.C. 617 as well as the provisions of Regulation 35, 36, 37, 38,
39, 40, 44 and 45 read with section 16 (G) (3-A) as provided under Chapter III
of the U.P. Intermediate Education Act, 1921 and rule 6 of rules framed under
Act no. 5 of 1982 referred in the judgement dated 11.8.1999 were indicated as
the controversy involved regarding unavoidable incident relating to the arrest
under preventive detention, which is not pertaining to any criminal activity,
but simply on account of participating into association under Article 19 (1) (
C) of the Constitution of India. Article 19 (1) ( C) of the Constitution of
India.
22.
That by the judgement and order dated
11.8.1999 passed by Hon’ble Mr. Justice V.M. Sahai J in writ petition no. 24443
of 1989 (Prem Shankar Sharma Vs. State of U.P. and others), the order of
dismissal on the ground of the preventive detention of the petitioner was set
aside.
23.
That Against the judgement and order dated
11.8.1999 passed by Hon’ble Mr. Justice V.M. Sahai J in writ petition no. 24443
of 1989 (Prem Shankar Sharma Vs. State of U.P. and others), the special appeal
no. 840 of 1999, the Special Appeal no. 860 of 1999, special appeal no. 907 of
1999 and Special Appeal No.1369 of 1999
( State of U.P. Versus Prem Shankar Sharma and others)were filed.
24.
That the
special appeal no. 840 of 1999 was dismissed as not pressed on 23.11.2004 by
the Division Bench presided over by the Hon’ble Dr. B.S. Chauhan and Hon’ble
Dilip Gupta, JJ. The aforesaid appeal was filed by the Committee of Management
of Ambika Prasad Intermediate College, Moradabad challenging the judgement and
order dated 11.8.1999 passed by Hon’ble Mr. Justice V.M. Sahai J in writ petition
no. 24443 of 1989 (Prem Shankar Sharma Vs. State of U.P. and others).
25.
That it is
pertinent to mention here that thereafter an application for recall of the
order dated 23.11.2003 purported to have been passed in the Special Appeal no.
840 of 1999 without annexing the judgement dated 23.11.2004 dismissing the
aforesaid Special Appeal no. 840 of 1999 was filed without serving the copy of
said application to the counsel for the applicant/ petitioner, respondent in
the present appeal, Advocate appearing in the said case, who remained present
at the time of dismissal of aforesaid appeal on 23.11.2004.
26.
That the
applicant/petitioner, respondent in the present appeal filed the counter
affidavit in reply to the affidavit filed in support of the recall application.
It was stated that the judgment can not be recalled by moving an application at
belated stage and the copy of the same is not given to the counsel appearing on
behalf of answering respondent.
27.
That it was
further stated that the said application is filed without having any
explanation regarding non-filing of application seeking condonation of delay.
Thus the same is not maintainable and liable to be rejected.
28.
That it was
further stated that the Special Appeal no. 860 of 1999 filed by Sudhir Kumar
against the same judgement dated 11.8.1999 passed by Hon’ble Mr. Justice V.M.
Sahai, J has been dismissed on 2.4.2004. This person Sudhir Kumar was inducted
as the Lecturer in English after dispensing the services of the petitioner.
However, when the writ petition no. 24443 of 1989 was allowed on 11.8.1999,
then the services of Sudhir Kumar were terminated and as such he filed the
Special appeal no. 860 of 1999, which was also dismissed and thereby
reaffirming the judgement dated 11.8.1999.
29.
That the
special appeal no. 907 of 1999 was filed against the same judgement passed on
11.8.1999 by Hon’ble Mr. Justice V.M. Sahai in writ petition no. 24443 of 1989,
but that special appeal was also dismissed as misconceived and also being filed
without any locus-standi by the judgment dated 14.9.1999.
30.
That it is
submitted that there is the complete procedure prescribed for having the
jurisdiction being conferred by Hon’ble the Chief Justice for deciding the
special appeal and without any nomination being conferred to the particular
Hon’ble Division Bench by the specific order of Hon’ble Chief Justice, the
matter may not be decided by another coordinated Hon’ble Division Bench, except
the Hon’ble Division Bench having the jurisdiction conferred to the different
benches as per the circulation of cause list circulated to the Hon’ble benches
and members of the Bar.
31.
That the
constitution of the benches as per the jurisdiction conferred and allotted to
them by the order of Hon’ble Chief Justice or in accordance with his lordship’s
direction under Rule 1 of Chapter V of Allahabad High Court Rules, 1952. The
Registrar shall subject to such direction as Hon’ble Chief Justice may give
from time to time caused to be prepare a cause list for each day on which the
court sits containing the list of cases, which may be heard by different
benches of court under Rule 6 of Chapter VI of High Court Rules, 1952.
32.
That in this
manner, it is crystal clear that if the case is not listed in the cause list
after determination of heading for what purposes aforesaid matter is being
listed, the other coordinate Division Bench dealing with other jurisdiction
shall not be empowered to decide such
case except by getting the nomination of the matter by the order of Hon’ble
Chief Justice.
33.
That the
other aspect of the matter is pertaining to the determination of the reason for
which a particular case is being listed in the cause list circulated to the
bench and the members of Bar, the case may not be decided by any other
coordinated Division Bench without it being posted for hearing.
34.
That the
Allahabad High Court Rules, 1952 have been promulgated in exercise of the power
conferred under Article 225 of the Constitution of India and all other powers
enabling it on that behalf. Thus the strict observation and compliance of
mandatory provisions is required to be observed by the Hon’ble Court in
consonance with requirement of Principle of equity, fairness and in such
circumstances if the practice and procedure prescribed in this regard is not
followed then the deviations from the rules of court may violate Article 14 of
the Constitution of India.
35.
That in the
light of the aforesaid legal propositions advanced by the deponent / writ
petitioner, it is submitted that the present special appeal without being
listed in the daily cause list either under the separate serial number in the
cause list, nor it remain listed with the appropriate heading ‘For Hearing’,
but the same has been decided without giving notice to the counsel appearing
for respondent.
36.
That under
the provisions of Chapter V Rule 1 of High Court Rules, 1952, the sole
prerogative of the Hon’ble Chief Justice to decide the particular subject
matter conferred on particular bench for particular period. If the decision of
the subject matter by some other bench is taken up without being listed at the
serial number under the heading of the hearing or without the case being
Part-heard or tide-up, if the decision is given by the other bench without
nominating by the Hon’ble Chief Justice the judgement will be without
jurisdiction and nullity.
37.
That the
special appeal no. 840 of 1999 was dismissed as not pressed on 23.11.2004 by
the Division Bench presided over by the Hon’ble Dr. B.S. Chauhan and Hon’ble
Dilip Gupta, JJ. The aforesaid appeal was filed by the Committee of Management
of Ambika Prasad Intermediate College, Moradabad challenging the judgement and
order dated 11.8.1999 passed by Hon’ble Mr. Justice V.M. Sahai J in writ
petition no. 24443 of 1989 (Prem Shankar Sharma Vs. State of U.P. and others).
The true copy of the order dated 11.8.1999 passed in writ petition no. 24443 of
1989 and the judgement dated 23.11.2004 passed in Special Appeal no. 840 of
1999 is being filed herewith as Annexure no. 1 and 2 to this
affidavit.
38.
That it is
pertinent to mention here that thereafter an application for recall of the
order dated 23.11.2003 purported to have been passed in the Special Appeal no.
840 of 1999 without annexing the judgement dated 23.11.2004 dismissing the
aforesaid Special Appeal no. 840 of 1999 was filed without serving the copy of
said application to the counsel for the deponent Sri Yogesh Kumar Saxena,
Advocate appearing in the said case, who remained present at the time of
dismissal of aforesaid appeal on 23.11.2004. The true copy of the recall
application is filed herewith as Annexure no.3 to this affidavit.
39.
That the
deponent filed the counter affidavit in reply to the affidavit filed in support
of the recall application. It was stated that the judgment can not be recalled
by moving an application at belated stage and the copy of the same is not given
to the counsel appearing on behalf of answering respondent.
40.
That it was
further stated that the said application is filed without having any
explanation regarding non-filing of application seeking condonation of delay.
Thus the same is not maintainable and liable to be rejected.
41.
That it was
further stated that the Special Appeal no. 860 of 1999 filed by Sudhir Kumar
against the same judgement dated 11.8.1999 passed by Hon’ble Mr. Justice V.M. Sahai,
J has been dismissed on 2.4.2004. This person Sudhir Kumar was inducted as the
Lecturer in English after dispensing the services of the petitioner. However,
when the writ petition no. 24443 of 1989 was allowed on 11.8.1999, then the
services of Sudhir Kumar were terminated and as such he filed the Special
appeal no. 860 of 1999, which was also dismissed and thereby reaffirming the
judgement dated 11.8.1999.
42.
That the
special appeal no. 907 of 1999 was filed against the same judgement passed on
11.8.1999 by Hon’ble Mr. Justice V.M. Sahai in writ petition no. 24443 of 1989,
but that special appeal was also dismissed as misconceived and also being filed
without any locus-standi by the judgment dated 14.9.1999. The true copy of the
counter affidavit filed by the applicant/writ petitioner is being filed
herewith as Annexure no. 4to this affidavit.
43.
The matter
was not argued by the standing counsel, but in the judgment allegedly delivered
on 26.10.2006, it has been falsely mentioned that the case was argued by the
learned standing counsel appearing for the State Appellant. The counsel for the
petitioner in Special Appeal No. 840/1999 Sri Yogesh Kumar saxena, Advocate
informed the deponent that it was only Sri V.K. Singh, Advocate appearing in
Special appeal No. 840/1999, who placed the controversy involved in his special
appeal no. 840 of 1999.
44.
That on
26.10.2006 the jurisdiction to here the listed special appeals for the year of
1999 for hearing including the bunch cases was conferred by the authority of
Hon’ble Chief Justice to the division bench presided over by their lordships
Hon’ble Mr. Justice R.K. Agrawal and Hon’ble Mr. Justice Vikram Nath in Court
no.2. It is submitted that the present Special appeal no. 1369 of 1999 was not
even listed in court no. 34, but since the record of the said special appeal
no. 1369 of 1999 was summoned in furtherance of recall application filed in
special appeal no 840 of 1999 by the bench presided over by Hon’ble Justice Dr.
B.S. Chauhan and Hon’ble Justice Dilip Gupta and as such only to ascertain the
facts stated in the counter affidavit and in the affidavit filed in support of
the alleged recall application, the records of three aforesaid special appeal
was summoned, wherein the name of the counsel appearing on behalf of petitioner/respondent namely Sri Ashok Khare, Advocate was the only
name mentioned in special appeal no.
1369 of 1999. The true copy of cause list having the jurisdiction of court no.2
pertaining to Special Appeal of year 1999 and the cause list having printing of
Special appeal no. 1369 of 1999 alongwith special appeal no. 840 of 1999
mentioned as serial no. 2 on 26.10.2006 are filed herewith as Annexure
no.5 to this affidavit.
45.
That the
Standing counsel was not prepared to argue the matter pertaining to the special
appeal no. 1369 of 1999 filed by the State of U.P. in absence of the same not
being listed in court no. 34 and in absence of Sri Ashok Khare, senior Counsel
appearing in the said appeal on behalf of petitioner. This fact has been
brought to the notice of the deponent by his counsel appearing in Special
appeal no. 840 of 1999, which was dismissed on 23.11.2004.
46.
That the
division bench presided over by Hon’ble Justice Dr. B.S. Chauhan enquired about
the matter from Sri V.K. Singh Advocate appearing in special appeal no. 840 of
1999 and also enquired from the counsel for the respondent only about the
controversy involved in all such special appeal out of which three special
appeals were already dismissed while the special appeal no. 1369 of 1999 filed
by State of U.P. was surviving.
47.
That on
1.11.2006, when the matter was shown to be listed in the cause list of court
no. 34 regarding the delivery of the order in the recall application filed in
special appeal no. 840 of 1999 then counsel for the petitioner was informed
that since the special appeal no. 1369 of 1999 filed by the State of U.P. was
also liable to be dismissed and as such it has been shown to be decided on 26.10.2006
in the cause list of 1.11.2006. The true copy of the cause list of court no. 34
dated 1.11.2006 is Annexure no.6 to this affidavit.
48.
That upto
this time i.e. 1.11.2006 there was no existence of the order alleged to have
been passed on 26.10.2006 in the special appeal no. 1369 of 1999 on the basis
of which the recall application was decided as no order is required to be
passed on this application, but subsequently thereafter when the message of
dismissal of special appeal no. 1369 of 1999 was communicated to the
petitioner, then counsel for the petitioner came to know about the existence of
the order. He applied for the order in anticipation that the special appeal
bearing special appeal no. 1369 of 1999, which was earlier filed as (defective)
appeal no. 630 of 1999 might have been dismissed as there may not be the
inconsistent order in the said appeal after dismissal of three special appeals
filed against the same judgement, in which the committee of Management and
Secretary U.P. Secondary Commission remained at the array of respondents and
were duly represented by their respective counsels. The true copy of the order/
judgement dated 26.10.2006 passed in the recall application filed to recall the
dismissal order dt. 23.11. 2004 in the Special Appeal No.840/1999 and the
judgement passed the present special
appeal No. 1369/1999 are being filed herewith and marked as Annexure no.7
and 8 to this affidavit.
49.
That,
although the order passed on 23.11.2004 dismissing the Special Appeal No. 840
of 1999 has been affirmed by the order dated 26. 10. 2006 passed on Recall
application, as it has been noted that in view of the judgement passed in
special appeal No. 1369 of 1999, no order is required to pass on the recall
application. Thus it appears that even by this order passed on 26.10.2006, the
Hon’ble Division Bench dealing with the recall application in special Appeal
No. 840 of 1999 did not find any merit in the said appeal. The Hon’ble division
bench Presided by Hon’ble Dr. justice B. S. Chauhan adopted a unique manner in
deciding the present Special Appeal wholly without jurisdiction purported to
have decided on the same day, to which no person could have decided in the open
court on 26.10.2006, otherwise their was no occasion for listing of the case on
1.11.2006 in the cause list for appropriate order on the recall application
filed in Special Appeal no. 840 of 1999. Thus the judgment passed in special
Appeal is bad in the light of the legal fiction that what not be done directly
in absence of jurisdiction, the can not be done indirectly by the Hon’ble
Division Bench presided over by Hon’ble Dr. B.S. Chauhan and Hon’ble Mr.
Justice Dilip Gupta in passing the judgement on 26.10.2006 passed in special
Appeal No. 1369 of 1999.
50.
That in this
manner since the judgement passed in the special appeal no. 1369 of 1999 by the
bench presided over the Hon’ble Justice Dr. B.S. Chauhan and Hon’ble Mr.
Justice Dilip Gupta is the judgment passed in absentia of the counsel of the
petitioner/respondent appearing in the said appeal namely Senior Counsel Sri
Ashok Khare, Advocate for the petitioner in writ petition no. 24443 of 1989,
which was the only name printed as the sole name of the opposite party; and the
same special appeal no. 1369 of 1999 was neither listed for hearing under the
caption of the jurisdiction, nor there had been any serial number mentioned
against the said listing of the special appeal, regarding which, the
communication could have been made to the senior counsel Sri Ashok Khare,
Advocate appearing on behalf of petitioner by the other counsel appearing in
special appeal no. 840 of 1999 at the time of its dismissal on 23.11.2004.
There was no jurisdiction conferred with the division bench presided over by
Hon’ble Mr. Justice Dr. B.S. Chauhan and Hon’ble Mr. Justice Dilip Gupta to
decide the special appeal of the year of 1999 as the jurisdiction of the same
was conferred before court no. 2 under the prerogative and the authority of the
Hon’ble chief justice in consonance with the requirement of chapter V Rule 1 of
Allahabad High Court Rules. The judgement dated 26.10.2006 passed in Special
Appeal 1369 of 1999 is contradiction to the order passed in special appeal No.
860 of 1999(Dismissed on 2.4.2004), special appeal No. 907of 1999 (Dismissed on
14.9.1999 and special appeal No. 840 of 1999 (Dismissed on 23.11.2004). All the
Appellants filed their appeals against the same judgement, and the appellants of special appeal No. 907of
1999 (Dismissed on 14.9.1999 and special appeal No. 840 of 1999 (Dismissed on
23.11.2004)were also impleaded as respondents in present special appeal no.
1369 of 1999 and thus the judgement passed ex-parte in special appeal no. 1369
of 1999 on 26.10.2006 is passed against the principle of natural justice
causing prejudice and barred by constructive Res- judicata as held in Sarguja
Transport Service versus State Transport appellate Tribunal (1987)1 S. C. C.
5.( paragraph 7)
51.
That under
these circumstances, it is expedient in the interest of justice that the order
dated 26.10.2006 passed in Special Appeal no. 1369 of 1999 may be set aside as
justice may be done with the rights. of the applicant/petitioner
No comments:
Post a Comment