Dinesh Kumar Pandey Hon'ble Arun Bhansali,Chief Justice Hon'ble Vikas Budhwar,J. 1. This review petition v. Laxman Prasad Kushwaha and another
Case Details
Chief Justice's Court Neutral Citation No. - 2024:AHC:188380-DB Case :- CIVIL MISC REVIEW APPLICATION No. - 453 of 2024 Applicant :- Basic Shiksha Adhikari District Ballia and another Opposite Party :- Laxman Prasad Kushwaha and another Counsel for Applicant :- Kushmondeya Shahi Counsel for Opposite Party :- Dinesh Kumar Pandey Hon'ble Arun Bhansali,Chief Justice Hon'ble Vikas Budhwar,J. 1. This review petition has been filed in Basic Shiksha Adhikari District Ballia and another v. Laxman Prasad Kushwaha and another (Special Appeal Defective No. 455 of 2022) decided on 10.11.2022 whereby special appeal filed by the appellants/applicants, which was barred by 4871 days, was dismissed as barred by limitation on rejection of the application seeking condonation of delay. 2. The present review petition is barred by 660 days. An affidavit of the District Basic Education Officer has been filed in support of application under Section 5 of the Limitation Act inter-alia indicating that Writ - A No. 23659 of 1998 filed by the respondent no. 1 was allowed by learned Single Judge on 22.04.2009; a recall application no. 281891 of 2009 was filed, which was dismissed for want of prosecution on 13.09.2011 and a recall application no. 59848 of 2013 seeking recall of the order dated 13.09.2011 was filed, which was dismissed on 17.5.2019 holding the application as misconceived, leaving it open for the applicant to file an application under Section 114 C.P.C. 3. An intra-court appeal against the order dated 17.5.2019 as well as order dated 22.04.2009 was filed, which was dismissed with liberty to the appellants/applicants to approach the forum as per the order dated 17.5.2019; whereafter a review application no. 18 of 2020 along with application seeking condonation of delay was filed seeking review of order dated 22.04.2009. Learned Single Judge by order dated 30.03.2022 dismissed the application seeking condonation of delay and consequently, the review application was also dismissed. 4. Feeling aggrieved, the present Special Appeal qua which review is being sought was filed, wherein delay condonation application seeking condonation of delay was rejected and appeal also came to be rejected. Whereafter, reference has been made to order passed by learned Single Judge in a contempt petition on 24.09.2024 and a plea pertaining to fraud by the respondent no. 1 has been raised and a prayer has been made seeking condonation of delay of 660 days. 5. It would be seen that in the affidavit, no reference has been made to the fact that against the order dated 10.11.2022 qua which review is being sought, a Special Leave Petition (Civil) Diary No(s). 24881/2023 was filed, which was dismissed on 9.9.2024 by Hon'ble Supreme Court. The affidavit does not contain any explanation worth the name for the delay of 660 days in filing the review petition. 6. Learned counsel for the appellants/applicants, attempted to make submission that after dismissal of Special Leave Petition by Hon'ble Supreme Court, a review petition has been filed and that the delay occurred on account of pendency of the Special Leave Petition before the Hon'ble Supreme Court. 7. Further Submission has been made that the Division Bench while passing the order dated 10.11.2022, had observed that when the application no. 50848 of 2013 seeking recall of order dated 13.09.2011 was dismissed, while dismissing the application delay in filing the recall application was not condoned, which is factually incorrect inasmuch as on 17.5.2019 while deciding the application, by a separate order the application seeking condonation of delay was allowed. However, the said fact could not be brought to the notice of the Court. 8. Further, vehement submission has been made pertaining to the alleged fraud on the part of the father of the respondent no. 1 in seeking employment on account of whose death the respondent no. 1 was ordered to be accorded compassionate appointment and it has been prayed that the delay in filing the review petition be condoned and the order dated 10.11.2022 be reviewed.
Legal Reasoning
9. Learned counsel for the respondent no.1 made submissions that action of the appellants/applicants since beginning in prosecuting the present litigation has been that of gross negligence and latches. 2 10. It has been submitted that the Division Bench while deciding the Special Appeal on 10.11.2022 has thoroughly considered the conduct of the applicants whereby the appeal was filed after a delay of 4871 days and found that there was no good ground to entertain the appeal. The Division Bench had also dealt with the allegation of fraud and in the circumstances noticed by it did not go into the issue of fraud. 11. Submission has also been made that against the order dated 10.11.2022 Special Leave Petition was filed and the same has been dismissed by Hon'ble Supreme Court and therefore, now the aspect as sought to be raised by the applicants in the review petition cannot be raised and therefore, the review petition deserves dismissal. 12. We have considered the submissions made by learned counsel for the parties and perused the material available on record. 13. A co-ordinate Bench of this Court to which one of us (Vikas Budhwar, J.) was a member, by its order dated 10.11.2022, noticing in detail the sequence of events since passing of the order dated 22.04.2009, inter-alia came to the following conclusion : "Sri Rama Nand Pandey, learned counsel for the appellants, submits that this is a case where the first respondent has got benefit of compassionate appointment in lieu of death of his father in harness when the appointment of his father itself was void therefore, it is a fit case where the Court should condone the delay to prevent perpetuation of fraud. In response to the above submissions, learned counsel for the first respondent submitted that the father of the first respondent died in harness on 13.01.1991. The first respondent was offered compassionate appointment vide letter dated 27.06.1994 with effect from 02.07.1994 and there had been an approval of compassionate appointment on 23.05.1998. When, despite approval, salary was not paid, the first respondent filed Writ Petition No.23695 of 1998 which came to be allowed after exchange of affidavits and hearing both sides. The writ court had found that there was no challenge to the procedure for appointment and that the appointment had been approved therefore there was no justification to deny salary. He submits that, in the circumstances, the order of the writ court dated 22.04.2009 was an order passed on merits after hearing both sides and there was therefore no occasion to file a recall or review application. The appellants did not even file an appeal and waited for nearly 10 years to file the appeal which was withdrawn. It has been submitted that, in these 3 circumstances, the learned Single Judge was justified in rejecting the application seeking condonation of delay in filing the review application. It be noticed that during the course of hearing we put a query to Sri Rama Nand Pandey, learned Standing Counsel, as to on what basis he says that the compassionate appointment was obtained by fraud. In response to our query, Sri Pandey submitted that in a separate order passed by this Court in a separate proceeding, the appointments were held void and, therefore, since writ petitioner's father's appointment was void, the compassionate appointment would be illegal. When we deeply probed on the above aspect, we could not get any satisfactory answer as to when it was declared void and whether that order was passed while writ petitioner's father was alive. In such circumstances, we do not propose to go into the issue of alleged fraud. More so, when the plea of fraud was not pressed before the learned Single Judge when the petition was heard and decided on 22.04.2009. Having considered the rival submissions and having noticed the reasons recorded by the learned Single Judge for rejection of the delay condonation application in his order dated 30.03.2022, we do not find a good ground to entertain this appeal, which is reported to be beyond time by 4871 days. The delay condonation application is, accordingly, rejected. As we have rejected the delay condonation application, the appeal is dismissed as barred by limitation." 14. It would be seen that the aspect of purported fraud was specifically raised and was considered by the Division Bench whereafter, the Court did not find any good ground to entertain the appeal, which was barred by 4871 days and accordingly, dismissed the application seeking condonation of delay and the appeal was dismissed as barred by limitation. 15. So far as the plea raised by the appellants/applicants pertaining to the observations made by the Court that delay in filing the recall application no. 50848 of 2013, which was dismissed on 17.5.2019 that while dismissing the said application, delay in filing the recall application was not condoned while factually by a separate order, which was not placed before the Court, the delay has been condoned is concerned, nothing turns on the said fact as the said recall application was filed in the year 2013 seeking recall of the order dated 13.9.2011 and condonation of delay in moving the said application, by no means would affect the delay of 4871 days in filing the Special Appeal, which was directed against the order passed in the writ petition dated 12.04.2009. 4 16. Further, the aspect pertaining to fraud, as noticed hereinbefore, was very much argued while passing the order dated 10.11.2022 and the co-ordinate Bench of this Court has taken a particular view of the allegations made qua the said aspect. The attempt made to reagitate the issue of fraud in a review petition cannot be entertained as the same essentially would be questioning the validity of the findings and cannot be termed as an error apparent on the fact of record. 17. As noticed hereinbefore, no explanation worth the name has been given for the delay of 660 days in filing the review petition. The plea raised that Special Leave Petition was pending before the Hon'ble Supreme Court, cannot be countenanced inasmuch as the nature of plea raised in the present petition, was very much available to the appellants/applicants when the order was passed on 10.11.2022.
Decision
18. In view of the above discussions, no case seeking condonation of delay in moving the review petition is made out and the application seeking condonation of delay is dismissed. 19. As observed hereinbefore, there is no substance even in the review petition and consequently, the same is also dismissed as barred by limitation and on merits. Order Date :- 28.11.2024 nd (Vikas Budhwar, J.) (Arun Bhansali, CJ) 5