Rajasthan High Court - Jodhpur
State Of Raj. & Ors vs Nathu Singh on 6 September, 2012
Author: Dinesh Maheshwari
Bench: Dinesh Maheshwari
SAW No. 690/1998.
State of Rajasthan & Ors. Vs. Nathu Singh
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D.B. CIVIL SPECIAL APPEAL (WRIT) NO. 690/1998.
State of Rajasthan & Ors. Vs. Nathu Singh
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Date of Order :: 6th September 2012.
HON'BLE MR. JUSTICE DINESH MAHESHWARI
HON'BLE MR. JUSTICE NARENDRA KUMAR JAIN-II
Mr. I.S. Pareek, Government Counsel, for the appellants.
Mr. K.S. Rathore ]
Mr. Tejmal ], for the respondent.
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BY THE COURT:
This intra-court appeal, SAW No.690/1998, is directed against the order dated 28.04.1997 as passed in CWP No.6027/1992 whereby the learned Single Judge of this Court allowed the writ petition filed by the petitioner Nathu Singh Rathore (since deceased); and, while setting aside the impugned orders dismissing the writ petitioner from service, directed his reinstatement with all consequential benefits.
The relevant background aspects had been that the writ petitioner Nathu Singh Rathore, who was working on the post of constable, came to be dismissed from service by the order dated 16.07.1979 as passed with reference to Article 311 (2) of the Constitution of India and clause (iii) of Rule 19 of the Rajasthan Civil Services (Classification, Control & Appeal) Rules, 1958 essentially for the reason that he was considered to be a participant in the strike of police personnel in the year 1979. The petitioner preferred an appeal against the order dated 16.07.1979 that was dismissed by the order dated 20.03.1990. The writ petition preferred against the orders aforesaid was allowed by the learned Single SAW No. 690/1998.
State of Rajasthan & Ors. Vs. Nathu Singh 2 Judge of this Court on 28.04.1997 essentially with reference to the order dated 03.05.1996 as passed in CWP No.1249/1988: Prabhu Singh Vs. State. The impugned order dated 28.04.1997 in its entirety reads as under:-
"Learned counsel Shri Singhvi places on record the copy of the judgment of this court in case of Prabhu Singh Vs. State [SBCWP No. 1249/88] decided on 3-5-96 and submits that this petition is squarely covered by the aforesaid judgment of this court.
Learned counsel Shri Chhangani for the respondents cannot dispute this fact.
In terms of the aforesaid judgment, this petition is allowed. The impugned order of dismissal and the subsequent order in appeal are hereby set aside. The petitioner is ordered to be reinstated in service with all consequential benefits of service, as if no order of dismissal was ever passed against him and he is granted full back wages and continuity of service with other benefits of service. However, there is no order as to costs."
This appeal against the aforesaid order dated 28.04.1997 was in fact, considered and allowed by a Division Bench of this Court on 12.08.2002 after noticing that nobody had appeared for the respondent (writ petitioner) and the fact that though the writ petition was allowed on the basis of the decision in the case of Prabhu Singh (supra) but the said decision had already been set aside by a Division Bench of this Court in the order passed in SAW No. 446/1996 (reported in WLR 1998 Raj. 136).
However, one miscellaneous application bearing number 98/2011 was moved on behalf of the legal representatives of the respondent (the writ petitioner) with the submissions that the writ petitioner Nathu Singh had expired on 28.08.2001 and the appeal as filed by the State had abated before passing of the order dated 12.08.2002. Another Division Bench of this Court, in its order dated 09.11.2011, considered it proper to allow the application (MA No. SAW No. 690/1998.
State of Rajasthan & Ors. Vs. Nathu Singh 3 98/2011) without going into the technicalities; and recalled the order dated 12.08.2002 as earlier passed in this appeal. Accordingly, this appeal was ordered to be restored to its number for hearing in accordance with law by allowing the legal representatives of the respondent to be brought on record so as to enable them to contest the appeal.
Now, an application (IA No.12192/2012) has been moved on behalf of the respondents (the legal representatives of the original writ petitioner) with the submissions, inter alia, that at the time of hearing of the writ petition on 28.04.1997, when the decision by the learned Single Judge of this Court in Prabhu Singh's case (supra) was placed before the Court and submissions in that regard were not disputed, the writ petition came to be allowed following the said decision in Prabhu Singh's case and hence, the matter could not be heard on other factual aspects though the present case had many distinguishing features even when it had the similarity with Prabhu Singh's case to the extent that the said petitioner and present petitioner were alleged to have taken part in the strike of police personnel. It is submitted that when the matter was not heard on all the factual aspects, several material issues involved in the writ petition remained unadjudicated and hence, in the interest of justice, the writ petition is required to be heard on merits. It has been prayed in the application that either the matter be heard on merits by the Division Bench in this appeal or be remitted for disposal of the writ petition after hearing the parties on the issues sought to be raised on behalf of the writ petitioner.
Per contra, it is contended on behalf of the appellants that the SAW No. 690/1998.
State of Rajasthan & Ors. Vs. Nathu Singh 4 writ petition was allowed with reference to the decision in Prabhu Singh's case as rendered by a learned Single Judge of this Court but the same having since been reversed by a Division Bench of this Court, the writ petition is liable to be dismissed.
After having given thoughtful consideration to the entire matter, we are of the considered view that the issues sought to be raised on behalf of the writ petitioner (now by his legal representatives) do deserve consideration in the original writ petition itself and hence, the writ petition deserves to be restored to the file of the learned Single Judge.
Apparent it is that when the writ petition was taken up for hearing, the petitioner placed before the Court the decision in Prabhu Singh's case as rendered by a learned Single Judge on 03.05.1996; and it was submitted that the matter stood squarely covered thereby. This submission was not opposed on behalf of the present appellants and hence, the impugned order of dismissal was set aside and the writ petition was allowed as noticed hereinbefore.
It remains indisputable that the said decision in Prabhu Singh's case had been reversed by a Division Bench of this Court on 15.12.1997. Thus, the decision rendered in the present case on the basis of the decision in Prabhu Singh's case cannot be sustained and is required to be set aside.
In view of the above, in the ordinary course, the fate of this case would have been sealed with the decision of the Division Bench in SAW No.446/1996: WLR 1998 Raj. 136 (supra). However, a look at the petition makes out that the petitioner had, inter alia, taken the ground that at the given point of time, he was availing SAW No. 690/1998.
State of Rajasthan & Ors. Vs. Nathu Singh 5 sanctioned leave and could not have been said to be a participant in the strike. Such a ground with other relevant factual aspects have obviously not gone into consideration of the learned Single Judge because in the earlier decision in Prabhu Singh's case, similar nature orders were set aside as being violative of Article 311 of the Constitution of India; and the writ petition relating to this appeal was considered covered thereby. Therefore, in all fairness to the writ petition (now his legal representatives) and in the interest of justice, even while setting aside the impugned order, it does appear necessary that the relevant factual aspects are examined and decision is rendered accordingly in the writ petition.
We would hasten to observe that we have, otherwise, not examined the merits of the contentions sought to be urged in support of the writ petition; and none of the observations herein are of any expression on the merits of the case either way. All these aspects are, obviously, left open for consideration in the writ petition.
In view of what has been discussed above, this appeal succeeds and is allowed to the extent and in the manner indicated. The impugned order dated 28.04.1997 is set aside. The writ petition (CWP No. 6027/1992) as filed by the predecessor of the respondents shall stand restored to its number for consideration afresh by the learned Single Judge of this Court.
To put the record straight, it is considered appropriate and hence observed that the legal representatives of the writ petitioner, who have been substituted in this appeal as the respondents, shall stand substituted as the petitioners in the writ petition in place of the deceased petitioner. It shall, however, be required of the substituted SAW No. 690/1998.
State of Rajasthan & Ors. Vs. Nathu Singh 6 petitioners to file an amended cause title in the writ petition before the next date of hearing by the learned Single Judge.
The parties through their counsel shall stand at notice to appear before the learned Single Judge on 02.11.2012. /Mohan/ (NARENDRA KUMAR JAIN-II), J. (DINESH MAHESHWARI), J.