Uttarakhand High Court
State Of Uttarakhand And Another ... ... vs Bhuwan Chandra Pathak on 15 September, 2020
Bench: Ravi Malimath, R.C. Khulbe
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Special Appeal No.177 of 2020
State of Uttarakhand and another ... Appellants
Vs.
Bhuwan Chandra Pathak ... Respondent
Shri Paresh Tripathi, learned chief standing counsel along with Shri Jagdish Bisht,
learned standing counsel, for the State/ appellants.
Shri Kailash Chandra Tewari, learned counsel for the respondent.
Dated: September 15, 2020
Coram:Hon'ble Ravi Malimath, A.C.J.
Hon'ble R.C. Khulbe, J.
Hon'ble Ravi Malimath, A.C.J. (Oral) Heard learned counsels.
2. There is a delay of 374 days in filing the appeal. The reason assigned is that after the disposal of the matter by the learned Single Judge, an opinion was sought for from the office of the Directorate, Secondary Education. After receiving the said file, the Directorate prepared a proposal for filing a special appeal, and thereby, sent the same to the learned counsel. In the said process, there was a delay.
3. Learned counsel for the respondent disputes the same. He submits that there is no reason to condone the delay.
4. However, on considering the reasons assigned, we are of the view that the reason assigned constitutes sufficient cause. Hence, the delay in filing the appeal is condoned. The application (CLMA 7158 of 2020) is allowed accordingly.
5. The appeal is admitted.
6. We have heard learned counsels on merit. The appeal is filed being aggrieved by the order dated 01.08.2019 passed by the learned Single Judge in 2 dismissing the recall application along with the delay condonation application. The learned Single Judge was of the view that there is no assistance by the learned standing counsel in the Court; that it has become a daily habit of the state law officers to make appearances without preparing the cases; on this ground, the delay condonation application and the recall application were dismissed.
7. The learned counsel for the respondent submits that there is no error committed by the learned Single Judge that calls for interference.
8. However, on hearing learned counsels, we are of the view that appropriate interference is called for. It may be a fact that the learned counsel was not prepared with the matter; it also may be a fact that the learned counsel was not able to assist the Court as on that date; however, in our considered view, that alone cannot constitute a ground to dismiss the application for condonation of delay as well as on merit.
9. Serious questions have been raised by the State in order to seek recall of the order. The matter at hand should have been considered and thereafter appropriate orders could have been passed. Only because of the error, if any, committed by the learned standing counsel, the State cannot be allowed to suffer. Therefore, we are of the view that the delay in filing the recall application is bona fide and requires to be condoned. The application was filed seeking to recall the interim order dated 31.08.2018 passed by the learned Single Judge in WPSS No.3682 of 2017. In terms of the said interim order, respondent nos.1 & 2 were directed to grant notional promotion to the petitioner from the date of promotion of similarly situated persons.
10. We are of the considered view that grant of the interim order is as good as granting of the final relief. An interim order is passed only in aid of the final order. An interim order can never become the main order. Therefore, 3 we are of the view that the said order also suffers from an error apparent and requires to be corrected.
11. For the aforesaid reasons, the appeal is allowed. The order dated 01.08.2019 passed by the learned Single Judge in WPSS No.3682 of 2017 is set aside. The application (CLMA No.8888 of 2019) seeking condonation of delay in filing the recall application is allowed and the delay is condoned.
12. The application (CLMA No.8887 of 2019) seeking to recall the order dated 31.08.2018 passed by the learned Single Judge in WPSS No.3682 of 2017 is allowed. Order dated 31.8.2018 is recalled. The matter is directed to be listed for consideration, in accordance with law.
13. Consequently, the appeal is disposed off.
14. It is submitted that the counter affidavit has already been filed along with the recall application. If that is so, the same is directed to be taken on record. Four weeks' time is granted to the respondent-writ petitioner from today to file his rejoinder to the counter affidavit, if any.
15. In view of both the orders being recalled and the trouble that has been taken by the respondent, we deem it just and necessary that the appellant herein pay adequate costs to the respondent. Under these circumstances, the appellant shall pay costs in a sum of Rs.10,000/- to the respondent within a period of two weeks from today.
16. Pending applications, if any, also stand disposed off.
(R.C. Khulbe, J.) (Ravi Malimath, A.C.J.) BS/SS