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LPA/2630/2010 8/ 8 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS
PATENT APPEAL No. 2630 of 2010
In
CIVIL
APPLICATION - FOR AMENDMENT No. 8945 of 2010
In
SPECIAL CIVIL APPLICATION No. 6416 of 1994
With
CIVIL
APPLICATION No. 14968 of 2010
In
LETTERS PATENT APPEAL No. 2630 of 2010
For
Approval and Signature:
HONOURABLE MR
JUSTICE V.M.SAHAI
HONOURABLE MR JUSTICE
G.B.SHAH
=========================================================
HARISH
H. DAVE - Appellant(s)
Versus
CHIEF
ADMINISTRATIVE OFFICER GUJARAT WATER SUPPLY &SEWERAGE & 2 -
Respondent(s)
=========================================================
For Approval and Signature:
HONOURABLE
MR.JUSTICE V.M.SAHAI
HONOURABLE
MR.JUSTICE
G.B.SHAH
=============================================================
Whether Reporters of Local Papers
may be allowed to see
the judgment ?
YES
To be referred to the Reporter or
not ? YES
Whether their Lordships wish to
see the fair copy of the NO
judgment ?
Whether this case involves a
substantial question of law NO
as to the interpretation of the
Constitution of India, 1950
or any other order made thereunder ?
Whether it is to be circulated to
the Civil Judge ? NO
HARISH
H. DAVE - Appellant(s)
Versus
CHIEF
ADMINISTRATIVE OFFICER GUJARAT WATER SUPPLY &SEWERAGE & 2 -
Respondent(s)
=========================================================
Appearance
:
MR
PH PATHAK for
Appellant(s) : 1,
MR DG CHAUHAN for Respondent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE V. M. SAHAI
and
HONOURABLE
MR.JUSTICE G.B.SHAH
Date
: 16/03/2011
COMMON
ORAL JUDGMENT
(Per
: HONOURABLE MR.JUSTICE V. M. SAHAI)
1. This
Letters Patent Appeal has been filed challenging the order passed by
the learned Single Judge dated 30.8.2010 in Civil Application for
amendment No.8945 of 2010 has been dismissed.
2. With
the consent of learned counsel for the parties, we have taken up this
appeal for final disposal, at the admission stage.
3. Special
Civil Application No.6416 of 1994 and Civil Application No.6416 of
1994 and Civil Application No.3125 of 2008 were disposed by a common
order dated 4.4.2008. The order is extracted as under:
“1) Heard
learned counsel for the parties.
2) Mr.P.H.Pathak,
learned counsel for the applicant-original petitioner, relying on the
letter dated 8.2.2007 addressed by Zonal Officer and Superintending
Engineer of opponent-Department and submits that in case if the
petition is withdrawn, there may be some delay in granting deemed
date, as prayed for.
3) Mr.Deepak
Patel, learned counsel for the opponents Nos.2 and 3 submits that if
the main Special Civil Application is withdrawn by the petitioner,
case of the applicant-petitioner for granting deemed date will be
expedited.
4) In
view of the above, Mr.Pathak, learned counsel for the petitioner
seeks permission to withdraw Special Civil Application No.6416 of
1994 with a request to direct the respondent authorities to pass
appropriate orders granting deemed date at the earliest. Mr.Deepak
Patel, learned counsel for the respondent has no objection to it.
5) Permission
as prayed for is granted. This Special Civil Application No.6416 of
1994 stands disposed of as withdrawn. The respondent authorities are
directed to pass appropriate order granting deemed date to the
petitioner within a period of 8 weeks from the date of the receipt of
the writ of this order. In case of any difficulty, liberty is granted
to the petitioner to revive this petition. Rule is discharged.
However, there shall be no order as to costs.
6) In
view of the above, Civil Application No.3125 of 2008 also stands
disposed of.”
4. Thereafter,
the appellant-petitioner made a representation before the respondents
on 23.4.2008. The respondents have decided the said representation by
order dated 21.5.2008 wherein they have held that the
appellant-petitioner is not entitled to deemed date of seniority
vis-a-vis his juniors. The appellant filed an application for
reviving the writ petition. The application was allowed on
20.7.2009. The order dated 20.7.2009 wrongly mentioning the date of
disposal of the petition as 4.4.2009 though the correct date is
4.4.2008. The order dated 20.7.2009 is extracted as below:-
“ORAL
ORDER
1) The
applicant-original petitioner has filed this application with the
following prayers:-
(A) The
Hon’ble Court be pleased to set aside the order dated Annexure.A and
revive the Spl.C.A. No.6416/1994 and direct the office to place the
said Spl.CA for hearing before the Hon’ble Court.
(B) Be
pleased to condone the 50 delay, if any, in filing of the present
Misc. Application in interest of justice and further direct the
respondents to pay the cost and compensation to the petitioner.
(C) Pending
admission and final disposal of the application be pleased to direct
the respondents to give the deemed date of seniority to the
applicant at par with other similarly placed employees forthwith.
(D) Any
other and further relief this Hon’ble Court deem fit and proper in
interest of justice together with costs.”
2) Learned
counsel for the applicant submits that order dated 21.05.2008 passed
by the respondent-Board does not confer correct deem date in
accordance with law.
3) Mr.Dipak
Patel, learned counsel for the opponent, submits that granting of
deem date to the applicant is in accordance with various circulars
issued by the Board and in accordance with law.
4) However,
vide order dated 04.04.2009 liberty was granted to the petitioner to
revive the petition in case of difficulty. In view of the above, I
deem it just and proper to revive Special Civil Application No.6416
of 1994. Order accordingly.
5) This
application is allowed to the aforesaid extent only. The Office is
directed to notify the main matter for hearing.”
5. Thereafter,
the appellant-petitioner filed an amendment application in Special
Civil Application No.6416 of 1994. The said application had been
dismissed by the learned Single Judge on 30.8.2010 on the ground
that it was filed after one year. It is this order dated 30.8.2010
which has been challenged in this appeal.
6. Having
heard learned counsel for the parties, we are of the opinion that the
order passed by the respondents on 21.5.2008 gave fresh cause of
action to the appellant and it could be challenged by the
appellant-petitioner by way of filing fresh (writ petition) Special
Civil Application. The revival of the petition in case of difficulty
was permissible only in case if there was some difficulty or problem
with the respondents in not deciding the question of deemed
seniority, then only the petition can be revived. Once the
representation of deemed seniority had been decided, it could be
challenged by way of filing fresh writ petition because, after
disposal of the earlier writ petition, the Court has become functus
officio except for that limited purpose. Therefore, we are of
the opinion that the revival of the petition by order dated 20.7.2009
is not valid.
The
question arises whether the Court should permit revival of the writ
petition or any other case. Ordinarily revival of the case is
permissible only where a party has no remedy. If the order dated
4.4.2008 was not complied by the respondents then it was open to the
appellant to file Contempt Petition under the Rules of the Court.
Under Article 215 of the Constitution of India power to punish for
contempt has been provided to the High Court. This does not mean that
every Single Judge or Division Bench possesses power to punish for
contempt. Power to take action for contempt in case of non-compliance
of the order is within the jurisdiction of Single Judge or Division
Bench in whose jurisdiction of contempt had been vested under the
roster nominated by Hon’ble the Chief Justice.
After
final disposal of the case only review application or application for
correcting clerical or arithmatical errors could be filed. But by
moving an application saying that revive the case as the order passed
by the respondents is not to the satisfaction of the appellant. In
our considered opinion, the application to revive the writ petition
was not maintainable and the order of learned Single Judge dated
20.7.2009 was illegal and without jurisdiction.
7. We
have gone through the amendment sought by the appellant-petitioner.
As we have already held that once the writ petition was dismissed as
withdrawn or disposed of on 4.4.2008 by the Court, the Court becomes
functus officio. The Court has granted liberty to revive the
petition in case of difficulty, i.e. for the limited purpose and if
the order passed by the Court is not carried out by the respondents,
then only petition can be revived. But, once the order dated
21.5.2008 had been passed by the respondents rejecting the claim of
seniority of the appellant, in that case, the petition could not be
revived and the only option available to the appellant was to
challenge the decision by way of filing separate fresh writ petition.
In this view of the matter, we are satisfied that the learned Single
Judge had no jurisdiction to reopen the entire case and entertain the
amendment application which has rightly been rejected as time barred.
8. Learned
counsel for the appellant has further stated that the learned Single
Judge has dismissed the application on the ground of delay only. We
are of the opinion that if a fresh petition was filed, the appellant
was required to explain latches. Therefore, revival application and
amendment application were filed. There was one year’s delay and in
view of the legal position discussed above, the amendment application
was not maintainable and deserved to be dismissed as it was nothing
but an abuse of the process of the Court.
9. Learned
counsel for the appellant has relied upon a decision of the Apex
Court in the case of Andhra Bank vs. ABN Amro Bank N.V. &
Ors., AIR 2007 SC 2511. We have gone through this decision. The
view taken by the Apex Court is that, normally an application for
amendment should not be dismissed on the ground of delay. In the
present case, though the learned Single Judge has dismissed the
amendment application on the ground of delay, we are of the opinion
that the Court had become functus officio when it disposed of
the writ petition giving liberty only for a limited purpose and if
the respondents do not comply the order directing the respondents to
decide the question of deemed seniority, only then the petition could
have been revived. Therefore, in the peculiar facts of this case,
the amendment application was not maintainable and it has been
rightly dismissed. We do not find any reason to interfere with the
order passed by the learned Single Judge. This appeal fails and is
accordingly dismissed. Notice is discharged.
10. In
view of the order passed in the appeal, the Civil Application for
interim relief shall also stand dismissed.
(V.M.Sahai,
J.)
Sreeram. (G.B.Shah,
J.)
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