# Dwarika Prasad and others v. Shesh Narain and others

- **Citation:** (2012) 1 ILRA 28
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2012-01-17
- **Bench:** Shabihul Hasnain
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dwarika-prasad-and-others-v-shesh-narain-and-others-42121
- **Pages:** 5

## Headnote

C.S.C.
Sri G.P. Tripathi
Sri Rakesh Kumar
Sri Satish Tripathi
Sri Ved Prakesh Shukla.

Constitution
of
India,
Article
226Practice and Procedure-Dismissal of Writ
Petition in Default-once restored on
original number the status on date of
dismissal automatically revived-no need
of
passing
specific
order-admitted
petition-confirmed interim order-never
vacated prior to dismissal of defaultautomatically revived-no need of passing
further extension order.

Held: Para 11

In view of what has been discussed
above, there appears no need to pass
any fresh orders. I have already held
that when a petition is restored to its
original number, it gets the status which
1 All] Dwarika Prasad and others V. Shesh Narain and others
29
was being enjoyed by it on the date it
was dismissed. Accordingly, I hold that
the interim orders I passed in the writ
petitions are continuing today. The stay
is not time bound hence, there is no need
to extend it for any specified time.
Case law discussed:
AIR 1968 Mys 283:(1967) 1 Mys LJ 414; AIR
1934 Mad. 49:ILR 57 Mad 308; AIR 1956 Pat
271; AIR 1978 AP 30

## Text

28 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
and
surpasses
the
territory
of
arbitrariness,
unreasonableness
and
irrationality. Such an official cannot be
allowed
to
go
scot-free
without
accounting for the public funds.

6. In view of the above discussion,
this writ petition is disposed of with the
following direction:

i. For the entire period the petitioner
remained under suspension she shall be
entitled for full salary since suspension is
wholly unjustified as no departmental
enquiry was ever conducted against her.

ii. The amount of salary paid to the
petitioner without actual discharge of
duty on and after 8.9.2008 i.e. after
suspension till reinstatement shall be
realized from respondent No.3 i.e. the
officer presently holding the office who
is admittedly working in the said office
since 2007.

iii. The Secretary, Basic Education
shall also initiate departmental enquiry
against respondent No.3 as to why and in
what circumstances, though petitioner
was placed under suspension, but no
enquiry was conducted against her, and
thereafter a situation was created in
which she got reinstated without any
liability or responsibility. The aforesaid
enquiry shall be completed by Secretary,
Basic Education within three months and
the ultimate order passed by it shall be
placed before this Court after three
months. This case will be listed in the
week commencing 14th May, 2012 only
for this purpose and nothing else.

iv. The petitioner shall also be
entitled to cost which I quantify to
Rs.25,000/- which shall be paid at the
first instance by respondent No.1 but it
would have liberty to recover the same
from respondent No.3, the present
incumbent holding the said office.
---------

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 17.01.2012

BEFORE
THE HON'BLE SHABIHUL HASNAIN,J.

Consolidation No. - 1393 of 1980

Dwarika Prasad and others ...Petitioner
Versus
Shesh Narain and others ...Respondents

Counsel for the Petitioner:
Sri P.L. Misra
Sri A.K. Verma
Sri Jagdish Singh
Sri R.S. Tripathi

Counsel for the Respondents:
C.S.C.
Sri G.P. Tripathi
Sri Rakesh Kumar
Sri Satish Tripathi
Sri Ved Prakesh Shukla.

Constitution
of
India,
Article
226Practice and Procedure-Dismissal of Writ
Petition in Default-once restored on
original number the status on date of
dismissal automatically revived-no need
of
passing
specific
order-admitted
petition-confirmed interim order-never
vacated prior to dismissal of defaultautomatically revived-no need of passing
further extension order.

Held: Para 11

In view of what has been discussed
above, there appears no need to pass
any fresh orders. I have already held
that when a petition is restored to its
original number, it gets the status which
1 All] Dwarika Prasad and others V. Shesh Narain and others
29
was being enjoyed by it on the date it
was dismissed. Accordingly, I hold that
the interim orders I passed in the writ
petitions are continuing today. The stay
is not time bound hence, there is no need
to extend it for any specified time.
Case law discussed:
AIR 1968 Mys 283:(1967) 1 Mys LJ 414; AIR
1934 Mad. 49:ILR 57 Mad 308; AIR 1956 Pat
271; AIR 1978 AP 30

(Delivered by Hon'ble Shabihul Hasnain,J. )

C.M.Application
No.100661/2011
(For extension of the stay order)

1. This application has been moved
for extension of the interim order granted
by this Court on 19.5.1980.

2. The brief facts leading to filing of
this application is as under:-

3. The petitioners being aggrieved
by
the
judgment
dated
28.8.1986
upholding the judgment dated 18.3.1981,
filed the above noted writ petition in
which an order was passed on the
application for stay on 19.5.1980 staying
the
operation
of
the
order
dated
15.1.1980. The writ petition was listed for
order
on
24.8.1987
and
further
proceedings
pending
before
the
Settlement Officer Consolidation were
stayed. The writ petition was listed on
25.5.2010 and dismissed for want of
prosecution, whereupon an application
was made by the petitioners which was
allowed and the writ petition was restored
to its original number. While restoring the
petition to its original number, the stay
order granted earlier was not specifically
revived. It is being interpreted by the
opposite parties as if the stay has not been
extended. Hence, this application has
been moved.

4. From a perusal of the record it
appears that following orders were passed
on 19.5.1980:

"Hon' S. C. Mathur, J.

Put up along with the writ petition.
Meanwhile operation of the order dated
11.1.1980 contained in Annexure-15
passed by teh Deputy Director of
Consolidation, Pratapgarh shall remain
stayed."

19.5.80.

 Sign. Illegible"

On 2.7.1980 the following orders
were passed:

"Hon'ble K. N. Goyal, J.

Admit. Issue notice to opposite
parties 1 to 10. In the meantime, the
interim
order
dated
19.5.80
shall
continue.

Sign. Illegible.

2.7.80"

An application for vacation of stay
was moved on 20.11.1980 in which
following orders were passed:

"Hon' U.C.Srivastava, J.

No good ground for vacating the
interim order has been made out. The
interim order dated 19.5.80 is confirmed.

Sign. Illegible.

20.11.80."

On 29.11.2005 this writ petition was
dismissed for non-prosecution by Hon'ble
30 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
R. P. Yadav, J. and following orders were
passed:

Hon. R. P. Yadav, J.

List has been revised.

None appears for the parties.

The writ petition is dismissed for
non-prosecution.

29.11.05

 Sign. Illegible."

The petition was restored by Hon'ble
R.
P.Yadav
on
28.2.2006
passing
following orders:

"Hon'ble R. P. Yadav, J.

Heard Learned Counsel for the
parties. This is an application for setting
aside the order dated 29.11.05 dismissing
the petition for non prosecution.

No objection filed.

Perused the affidavit.

Sufficient ground has been disclosed.
The application is within time.

It is, therefore, allowed. The order
dated 29.11.05 is recalled and the writ
petition is restored to its original number.

List the case in the next cause list for
final hearing.

28.2.06

 Sign. Illegible".

5. It is clear that Hon'ble R. P.
Yadav, J. had restored the petition to its
original number and it can safely be
presumed that the petition was restored to
its original number. Meaning thereby that
the petition will obtain the same status
which was being contained in the writ
petition on the date of dismissal for nonprosecution. It is clear that the the
confirmed stay order was operating in
favour of the petitioner on 29.11.2005 as
aforementioned. The restoration of a
petition to its original number will mean
that stay has also revived. The petition
was again dismissed in default by Hon'ble
Y. K. Sangal, J. on 25.5.2010 by passing
the following orders:

Hon'ble Yogendra Kumar Sangal, J.

List revised. None is present on
behalf of the petitioners.

Matter is quite old of the year, 1980
and listed in the old case.

The writ petition is hereby dismissed.

25.5.2010

 Sign. Illegible."

The petition was later on restored by
me to its original number on 4.2.2011 by
passing the following order by the same
analogy:-

Hon'ble Shabihul Hasnain, J.

C.M.Application No.77910 of 2010.

This is an application for recall of
the order dated 25.5.2010.

Cause shown is sufficient.

Application is allowed.

Order dated 25.5.2010 is recalled.
1 All] Dwarika Prasad and others V. Shesh Narain and others
31

Petition is restored to its original
number.

4.2.2011.

 Sign. illegible. "

6. The confirmed interim order shall
become operative on the restoration of the
petition to its original number. The
position is very clear. The interim order
granted on 19.5.1980 and confirmed on.
20.11.1980 has never been vacated. It
came under eclipse for some time by the
dismissal of the writ petition in default
but when the shadow of dismissal was
removed by the order of this Court, the
interim order will again emerge and its
existence can not be denied.

7. I draw strength from the
observations in the case of Shivaraya Vs.
Sharnappa, AIR 1968 Mys 283: (1967) 1
Mys LJ 414 wherein it has been held that
the question whether the restoration of the
suit revives ancillary orders passed before
the dismissal of the suit depends upon the
terms in which the order of dismissal is
passed and the terms in which the suit is
restored. If the Court dismisses the suit
for default, without any reference to the
ancillary orders passed earlier, then the
interim orders shall revive as and when
the suit is restored. However, if the Court
dismisses the suit specifically vacating the
ancillary orders, then restoration will not
revive such ancillary orders.

8. In the case of Saranatha
Ayyangar V. Muthiah Moopanar, AIR
1934 Mad 49: ILR 57 Mad 308, it has
been held that on restoration of the suit
dismissed for default all interlocutory
matters shall stand restored, unless the
order of restoration says to the contrary.
That as a matter of general rule on
restoration of the suit dismissed for
default, all interlocutory orders shall stand
revived unless during the interregnum
between the dismissal of the suit and
restoration, there is any alienation in
favour of a third party.

9. A similar view has been taken by
teh Patna High Court in the case of
Bankim Chandra V. Chandi Prasad, AIR
1956 Pat 271 in which it has been held
that orders of stay pending disposal of the
suit are ancillary orders and they are all
meant to supplement the ultimate decision
arrived at in the main suit and, therefore,
when the suit, dismissed for default, is
restored by the order of the Court all
ancillary orders passed in the suit shall
revive, unless there is any other factor on
record or in the order of dismissal to show
to the contrary. This was also a matter
under Order 39.

10. In the case of Nandipati Ram
Reddi V. Nandipati Padma Reddy, AIR
1978 AP 30 it has been held by the
Division Bench of the Andhra Pradsh
high Court that when the suit is restored,
all interlocutory orders and their operation
during the period between dismissal of the
suit for default and restoration shall stand
revived. That once the dismissal is set
aside, the plaintiff must be restored to the
position in which he was situated, when
the Court dismissed the suit for default.
Therefore, it follows that interlocutory
orders which have been passed before the
dismissal would stand revived along with
the suit when the dismissal is set aside
and the suit is restored unless the Court
expressly or by implication excludes the
operation of interlocutory orders passed
during the period between dismissal of the
suit and the restoration.
32 INDIAN LAW REPORTS ALLAHABAD SERIES [2012

11. In view of what has been
discussed above, there appears no need to
pass any fresh orders. I have already held
that when a petition is restored to its
original number, it gets the status which
was being enjoyed by it on the date it was
dismissed. Accordingly, I hold that the
interim orders I passed in the writ
petitions are continuing today. The stay is
not time bound hence, there is no need to
extend it for any specified time.

12. List after two weeks for final
hearing.
---------
ORIGINAL JURISDICITION
CIVIL SIDE
DATED: ALLAHABAD 11.01.2012

BEFORE
THE HON'BLE SUDHIR AGARWAL,J.

Civil Misc. Writ Petition NO. 1629 of 2012

Vikas Kumar & others
 ...Petitioners
Versus
State of U.P. & others
 ...Respondents

Counsel for the Petitioner:
Sri Aditya Kumar Yadav
Sri Mrityunjay Dwivedi

Counsel for the Respondents:
C.S.C.
Sri Ramendra Pratap Singh

Constitution of India, Article 14, 16Regularization-Daily
wagers
appointment made without following
procedure-long time working can not be
ground for regularization.

Held: Para 6

The Apex Court consistently since then
has held that in absence of any statutory
provision if a person has been engaged
in a wholly illegal manner without
following procedure prescribed in statute
and in violation of Article 16 of the
Constitution, such person cannot be
allowed to be regularised as that would
amount to commanding the respondents
to commit a patent illegality which is
unconstitutional also.
Case law discussed:
(2006) 4 SCC 1; (2007) 1 SCC 575; (2008) 3
SCC 505; (2009) 4 SCC 342; (2010) 2 SCC
422; (2010) 4 SCC 179; 2011 (2) SCC 429

(Delivered by Hon'ble Sudhir Agarwal,J.)

1. Heard learned counsel for the
petitioners and perused the record.

2. Petitioners are challenging the
advertisement dated 08.12.2011 (Annexure13 to the writ petition) published by New
Okhla Industrial Development Authority
(hereinafter referred to as "NOIDA"),
respondent no. 3 for making recruitment on
various Class III and IV posts.

3. Learned counsel for the petitioners
contended that petitioners are working for a
long time and, therefore, are entitled to be
considered for regularisation and so long as
they are not considered for regularisation,
the post on which they are working, no
recruitment by advertisement of vacancies
can be made.

4. Learned counsel for the petitioners,
however, could not dispute that none of
petitioners
were
ever
engaged
by
respondent-authority
by
following
procedure prescribed in statute consistent
with Article 16 of the Constitution of India,
i.e., by advertisement of vacancy giving
opportunity of consideration to all other
eligible persons. The petitioners in a wholly
illegal manner without following any
procedure of selection were engaged
abruptly by officials of NOIDA in a
whimsical manner and they have been