# Naunihal Haidar v. Asst. Settlement of Consolidation Badaun & Ors. 1096 INDIAN LAW REPORTS ALLAHABAD SERIES

- **Citation:** (2021) 1 ILRA 1095
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-01-31
- **Case number:** Special Appeal No. 861 of 2019
- **Bench:** Ramesh Sinha, Samit Gopal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/naunihal-haidar-v-asst-settlement-of-consolidation-badaun-ors-1096-indian-law-46100
- **Pages:** 7

## Headnote

Civil Law- Petitioner appointed as lekhpal
on
temporary
basis-regularized
on
20.03.1000 in persuance to and order of
Hon'ble High Court-said W.P. dismissed
for want of prosecution-Petitioner got
dismissed-Petitioner filed recall orderrejected-Recall
application
treated
as
Review Application by single judge.

Special Appeal allowed. (E-7)

List of Cases cited:-

## Text

1 All. Naunihal Haidar Vs. Asst. Settlement of Consolidation Badaun & Ors.
1095
sought by petitioner under the Act, 2016 in
the first place, therefore, even if the reason
given in the impugned order dated
01.11.2017, challenge to which is in any
case highly belated, is that the petitioner is
not a society, that itself does not persuade
this Court to interfere in the matter by
quashing
the
said
order
unless
the
petitioner was able to satisfy the Court that
it was covered by the Act, 2016, about
which we are not satisfied at all.

17. As regards contention of learned
counsel
for
petitioner
that
the
State
Government is still seized with the matter as
to whether petitioner qualifies as an
employees association recognized by the
State Government or not in view of a letter
dated 31.01.2020, firstly, it is an internal
correspondence. Secondly, the order dated
13.11.2020 has been passed 10 months
thereafter, therefore, obviously the matter is
no longer under consideration by the State
Government. Thirdly, whether the petitioner
is covered by the Act, 2016 or not, is a legal
issue to be decided and the Courts are best
suited to decide the said issue with the
assistance of the counsel, which has been
ably provided by Shri Ratnesh Chandra, yet,
inspite of it we have not been persuaded to
come to the conclusion that petitioner is
covered by the Act, 2016 for the reasons
already mentioned hereinabove.

18. The contention of Shri Chandra that
neither the Act nor the Rules made
thereunder contain modalities for recognition,
therefore, this can not be a ground for ousting
the petitioner from its purview is also not
acceptable in view of Rules 1979 referred
above as also Rule 5(viii) of the Rules, 2016
made under the Act, 2016 and Section 2(l) of
the Act, 2016. Even if this argument is
accepted for the sake of discussion, it does
not help the petitioner, as he claims to fall in
the category of employees association which
has
to
be
recognized
by
the
State
Government under Section 2(l) and does not
claim to fall in any other category to which
the Act 2016 applies. No recognition of the
petitioner by the State Government has been
produced by it before us.

19. A Trade Union registered under the
Act, 1926 is not eligible for allotment under the
Act, 2016 unless it satisfies the conditions of
Section 2(l), Section 4 of the Act, 2016 read
with Rule 5(viii) of the Rules, 2016. As already
stated petitioner could have a grievance of
discrimination if otherwise tenable in law but it
is not possible to come to the conclusion that it
has a right of allotment, re-allotment or renewal
of allotment under the Act, 2016 as it stands
without a challenge to its vires.

20. We appreciate the efforts made by
Shri Ratnesh Chandra but in view of the
admitted factual position before us and the
express provision of law we find ourselves
unable to accede his arguments nor accept the
same. We do not find any reason to interfere
with the impugned orders.

21. We accordingly dismiss the writ
petition.
----------
(2021)01ILR A1095
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 01.12.2020

BEFORE

THE HON'BLE RAMESH SINHA, J.
THE HON'BLE SAMIT GOPAL, J.

Special Appeal No. 861 of 2019

Naunihal Haidar ...Appellant
Versus
Asst. Settlement of Consolidation Badaun
& Ors. ...Respondents
1096 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Appellant:
Sri Hari Bhawan Pandey, Sri Hari Shankar
Chaurasia

Counsel for the Respondents:
C.S.C.

Civil Law- Petitioner appointed as lekhpal
on
temporary
basis-regularized
on
20.03.1000 in persuance to and order of
Hon'ble High Court-said W.P. dismissed
for want of prosecution-Petitioner got
dismissed-Petitioner filed recall orderrejected-Recall
application
treated
as
Review Application by single judge.

Special Appeal allowed. (E-7)

List of Cases cited:-

1. Asit Kumar Kar Vs St. of W.B. & ors.: (2009) 2
SCC 703

2.Vishnu Agarwal Vs St. of U.P. & anr.: (2011)
14 SCC 813

(Delivered by Hon'ble Samit Gopal, J.)

1. The present Special Appeal has
been filed against the judgment and order
dated 15.04.2019 passed in Writ A No.
16860 of 1991 (Naunihal Haider Vs.
Assistant
Settlement
Officer,
Consolidation, Badaun and others) whereby
a learned Single Judge has rejected an
application for recall of order dated
26.10.2017.

2. Heard Sri Hari Shankar Chaurasia,
Advocate holding brief of Sri Hari Bhawan
Pandey, learned counsel for the petitionerappellant and Sri A.K. Goel, learned
Additional Chief Standing Counsel and
have perused the record.

3. The present case has a long and old
background. The petitioner-appellant was
initially appointed on the post of Lekhpal
on temporary basis in the year 1987. His
engagement was extended from time to
time and ultimately the services of the
petitioner-appellant were dispensed with in
the year 1991.

4. Aggrieved by the order dated
01.03.1991 by which the services of the
petitioner-appellant were dispensed with,
he preferred a Writ A No. 16860 of 1991
before this Court with the following
prayers:

"It is therefore most respectfully
prayed that this Hon'ble Court may be
pleased to issue

A. A writ of Certiorari quashing the
impugned order dated 1.05.1991 (Annexure
4) passed by opposite party no.1.

B. a writ of Mandamus commanding
the opposite parties not to give effect to and
not to implement the impugned order and
not to interfere in petitioner's functioning as
Lekhpal, village Deptori, Tehsil Bisauli,
District Budaun.

C. Any other suitable writ, direction or
order which this Hon'ble Court may deem
fit and proper be issued in favour of the
petitioner.

D. Costs of the writ petition be
awarded to the petitioner."

5. In the said writ petition an interim
order was passed in favour of the
petitioner-appellant on 03.06.1991. The
services of the petitioner-appellant were
regularized on 20.03.1999 with a condition
that the same shall be subject to the final
order passed in the said writ petition. The
said writ petition was dismissed for non
prosecution on 14.11.2008. Subsequent to
the dismissal of the writ petition, the
services of the petitioner were terminated
on 15.01.2014. A Civil Misc. Restoration
Application No. 652 of 2014 along with the
1 All. Naunihal Haidar Vs. Asst. Settlement of Consolidation Badaun & Ors.
1097
Delay Condonation Application No. 651 of
2014 was filed by the petitioner-appellant
for the restoration of the writ petition which
was allowed vide order dated 08.12.2016
passed by a learned Single Judge. Even, the
delay condonation application was allowed.
The writ petition was directed to be
restored to its original number and was
directed to be listed before the appropriate
Court after two weeks.

6. The writ petition then remained
pending for quite sometime and then was
listed on 26.10.2017 wherein on the
statement of learned counsel appearing for
the petitioner-appellant that the same has
rendered infructuous by efflux of time, and
subsequent developments, the same was
dismissed accordingly. The order dated
26.10.2017 is quoted herein-below:

"1. Sri R.P.S. Chauhan, learned
counsel for petitioner, at the outset stated
that by efflux of time and in view of the
subsequent events, this matter has rendered
infructuous.

2. Dismissed accordingly.

3. Interim order, if any, stands vacated. "

7. In the meantime, since the services
of the petitioner-appellant were terminated
on 15.01.2014 he preferred another writ
petition before this Court numbered as Writ
A No. 8181 of 2018 (Naunihal Haider Vs.
State of Uttar Pradesh and 5 others) which
was dismissed with an observation by a
learned Single Judge that the remedy to the
petitioner-appellant
lay
in
moving
appropriate application in his earlier
petition and to seek appropriate protection
therein. The order dated 29.03.2018 is
quoted herein below:

"Petitioner was initially appointed on
the post of Lekhpal on temporary basis in
1987. Such engagement was extended from
time to time, and ultimately the services of
petitioner were dispensed with in 1991.
Petitioner
aggrieved
by
such
order
approached this Court by filing Writ
Petition No.16860 of 1991, in which an
interim order came to be passed in favour
of the petitioner on 3rd June, 1991.
Petitioner continued to work and his
services were also regularized on 20th
March, 1999. The regularization order,
however, clearly provided that petitioner's
regularization would be subjected to the
order to be passed in Writ Petition
No.16860 of 1991. This petition was
dismissed
in
default
on
14.11.2008.
Consequently, the services of petitioner
were terminated on 15.1.2014. It is this
order of 15.1.2014, which is under
challenge in the present writ petition.

Contention is that after the petitioner
came to know of dismissal of the writ
petition in default, he moved an application
for restoration, which was allowed on 8th
December,
2016.
The
writ
petition,
thereafter, was dismissed on 26.10.2017,
upon the statement of the counsel for the
petitioner that by efflux of time the writ
petition has been rendered infructuous. The
order dated 26.10.2017 passed in Writ
Petition No.16860 of 1991 reads as under:-

"1. Sri R.P.S. Chauhan, learned
counsel for petitioner, at the outset stated
that by efflux of time and in view of the
subsequent events, this matter has rendered
infructuous.

2. Dismissed accordingly.

3. Interim order, if any, stands
vacated."

Petitioner thereafter has made certain
representations for his reinstatement in
service, and as no orders have been passed,
he has approached this Court. Learned
counsel for the petitioner submits that once
petitioner's services have been regularized
1098 INDIAN LAW REPORTS ALLAHABAD SERIES
and he was about to retire, the respondents
would not be justified in terminating his
services, in the manner stated. It is also
stated that petitioner is entitled to retiral
benefits, and in respect of such grievance a
fresh cause has arisen.

Petition is opposed by the learned
Standing Counsel.

Admittedly petitioner was engaged on
temporary basis and his services were
terminated
in
1991.
Petitioner's
continuation thereafter was under an
interim order. The order of regularization
passed in favour of the petitioner also made
it clear that the same shall be subject to the
final
outcome
of
the
writ
petition.
Admittedly petition of 1991 was initially
dismissed in default, and thereafter has
been dismissed on 26.10.2017. Once that
be so, the petitioner can have no grievance
against the order of the respondents,
inasmuch as his continuance was under the
interim order, and there was no independent
right created in favour of the petitioner to
continue. The order of regularization is also
specific in that regard. The writ petition
apparently was dismissed on the statement
of the counsel that petition had been
rendered infructuous due to efflux of time
and on account of subsequent events. No
direction, therefore, can be issued to the
respondents to reinstate the petitioner in
service. Remedy of the petitioner lay in
moving appropriate application in his
earlier petition and to seek appropriate
protection therein.

Subject to the observations made
above, this writ petition is dismissed "

8. Consequent to the dismissal of the
writ petition on 29.03.2018, the petitionerappellant filed recall/restoration application
which was numbered as Civil Misc.
Recall/Restoration Application No. 5 of
2018 along with a Civil Misc. Delay
condonation Application No. 4 of 2018.
The prayer in the said recall/restoration
application is quoted herein-below:

"It is therefore most respectfully
prayed that this Hon'ble Court may be
pleased to recall the order dated 26.10.2017
passed by this Hon'ble Court in the instant
writ petition and to restore the same to its
original number after hearing the case on
merit so justice be done to the applicant."

9.

The
said
recall/restoration
application has been decided by the learned
Single Judge vide order dated 15.04.2019
which is impugned herein by which the
said application has been rejected.

10. The learned Single Judge has in
the impugned judgment and order in para 3
stated that the petitioner-appellant has filed
a recall/restoration application and has
stated as follows:

"3. The reason given for filing of this
recall/restoration
application
is
that
subsequently, petitioner filed another Writ
Petition No. 8181 of 2018 which was
dismissed on 29.03.2018."

11. Subsequently, in paragraph 5 of
the impugned judgment and order, the
learned Single Judge has stated that the
review application has been filed by
another counsel. Para 5 of the same is
quoted herein-below:

"5. In the present writ petition, Review
Application has been filed by another
counsel without giving any cogent reason
as to why review petitioner was not filed by
same counsel."

12. The learned Single Judge then
takes up two issues in the impugned
1 All. Naunihal Haidar Vs. Asst. Settlement of Consolidation Badaun & Ors.
1099
judgment and order, the first being that the
review petition ought to have been filed by
the same counsel and not by a new counsel
and the second aspect of the matter that the
grounds taken in the review petition
amounts to almost rehearing of the matter
and states that some of the arguments
advanced are such as were not raised
earlier. Paragraphs 6 and 7 of the impugned
judgment and order referring to the first
objection and the second aspect of the
matter are quoted herein-below:

"6. First objection before reviewapplicants is that review petition ought to
have been filed by same counsel and not by
a new counsel. In T.N. Electricity Board
Vs. N. Raju Reddiar AIR 1997 SC 1005,
Apex Court has deprecated the practice of
arguing matter by one counsel and review
by another counsel and has observed that
review application ought to have been filed
by same counsel who has argued matter.

7. Now the second aspect is that the
grounds taken in review petition amounts
to almost rehearing of matter and some of
arguments advanced are such as were not
raised earlier. A review petition cannot be
made as an opportunity to re-argue the
matter."

13. The learned Single Judge has
proceeded to give the reasoning why the
review application is not maintainable.
Certain case laws have been quoted which
refer to the issue of review. In para 13, the
learned Single Judge has stated that review
is not an appeal in disguise. He proceeds to
rely upon another judgment of the Apex
Court as to when can power of review be
exercised. Para 13 of the impugned
judgment and order is quoted herein-below;

"13. Thus, Review is not an appeal in
disguise. Rehearing of the matter is
impermissible in the garb of review. It is an
exception to the general rule that once a
judgment is signed or pronounced, it should
not be altered. In Lily Thomas Vs. Union of
India AIR 2000 SC 1650, the Court said
that power of review can be exercised for
correction of a mistake and not to substitute
a new. Such powers can be exercised within
limits of the statute dealing with the
exercise of power. The aforesaid view is
reiterated in Inderchand Jain Vs. Motilal
(2009) 4 SCC 665."

14. Then, lastly the said impugned
judgment and order concludes in para 15
which is quoted herein-below:

"15.
In
view
thereof,
review
application is rejected."

15. Learned counsel for the petitionerappellant argued that the applicant for
recall/restoration was filed giving adequate
reasons which was treated as an application
for review and the learned Single Judge
rejected it. It is further argued that the
learned
Single
Judge
misread
an
application
for
recall/restoration
and
proceeded
to
decide
it
as
review
application. It is argued that the judgment
and order is totally based on non-existent
fact and deserves to be set aside.

16. Sri A.K. Goel, learned Additional
Chief Standing Counsel though opposed
the present special appeal but could not
dispute the fact that the application as filed
was an application for recall of the order
dated 26.10.2017 and not a review
application.

17. There is a marked difference
between "recall" and "review." As is
apparent from the application titled as Civil
Misc. recall/restoration application the
1100 INDIAN LAW REPORTS ALLAHABAD SERIES
same had been filed with a prayer to recall
the order dated 26.10.2017 and to restore
the writ petition to its original number.
There is no prayer in the said application to
review the order passed in the writ petition.
Even the writ petition was dismissed on the
ground that it has become infructuous by
efflux of time and subsequent events but
not on merits.

18. The Apex Court in the case of
Asit Kumar Kar Vs. State of West
Bengal and others : (2009) 2 SCC 703 has
held that there is a difference between
recall and review and has held as under:

"6. There is a distinction between a
petition under Article 32, a review petition
and a recall petition. While in a review
petition the Court considers on merits
where there is an error apparent on the face
of the record, in a recall petition the Court
does not go into the merits but simply
recalls an order which was passed without
giving an opportunity of hearing to an
affected party."

19. The said judgment of Asit Kumar
Kar (supra) has been followed in the
judgment of Vishnu Agarwal Vs. State of
Uttar Pradesh and another : (2011) 14
SCC 813.

20. The learned Single Judge
completely fell in error while deciding the
application for recall/restoration application
by treating it as an application for review.
Prayer made in the said recall/restoration
application is as has been quoted above just
plain and simple for recalling of the order
by which the petition was dismissed as
infructuous and further the prayer that the
writ petition be restored to its original
number. There is no prayer whatsoever in
the said application that the order be
reviewed. Even further, the order sought to
be recalled is not a judgment as the merits
of the matter have not been touched at all.
The petition was dismissed without going
into the merits of the matter and without
deciding the issues as raised therein. The
application for recall and restoration is of
an order which did not decide any issue
raised between the parties in the writ
petition.

21. If a party whose counsel under
some misconception made a prayer for
dismissing the writ petition as infructuous
by efflux of time and by some subsequent
events does not mean that the petition has
been decided on merits. As a matter of
fact, a rectification of the said order was
prayed by means of the application for
recall/restoration. Rectification of an
order
stems
from
the
fundamental
principle that justice is above all. The
writ petition of the petitioner continued to
be pending before this Court from the
year 1991 to 26.10.2017 for a good
period of 26 years with an order in favour
of the petitioner on the strength of which
he continued to remain in service till
15.01.2014 on which date his services
were terminated as the said writ petition
was dismissed for non prosecution on
14.11.2008. Even thereafter, the recall
application
filed
by
the
petitionerappellant
along
with
the
delay
condonation application were allowed
vide order dated 08.12.2016 and the writ
petition was directed to be restored to its
original number.

22. Thus, looking to the facts and
circumstances of the matter, the learned
Single Judge totally fell in error in treating
the application for recall/restoration as an
application
for
review
and
thereby
dismissing the same as such.
1 All. Shriprakash Upadhya Vs. State of U.P. & Anr.
1101

23. The present special appeal is thus
allowed.

24. The impugned judgment and order
dated
15.04.2019
is
set
aside.
The
review/recall Application No. 5 of 2018
dated 14.07.2018 along with the Delay
Condonation Application No. 4 of 2018 are
allowed. The writ petition is restored to its
original number.

25. The office shall forthwith list the
Writ A No. 16860 of 1991 (Naunihal
Hairder Vs. Assistant Settlement Officer,
Consolidation,
Budaun
and
others)
before the appropriate Bench for its hearing
and disposal which is expected to be done
as expeditiously as possible.

26. No order as to cost.
----------
(2021)01ILR A1101
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 18.01.2021

BEFORE

THE HON'BLE RAJESH SINGH CHAUHAN, J.

Service Single No. 1106 of 2021

Shriprakash Upadhya ...Petitioner
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Petitioner:
B.R. Singh

Counsel for the Respondents:
C.S.C., Shubhra Kumar

Civil Law-Prior to retirement-charesheet
was been served-till retirement enquiry
could not be concluded-recovery order
passed after 9 months of retirement-no
specific provision -recovery order illegal.

W.P. allowed. (E-7)

List of Cases cited: -

1. Bhagirathi Jena Vs Board of Directors,
O.S.F.C. & ors., (1999) 3 SCC 666

2.Chandra Prakash Verma Vs Chairman, U.P.
Govt. Employees Welfare Corpn. & anr., [2018
(36) LCD 82],

(Delivered by Hon'ble Rajesh Singh Chauhan, J.)

1. Heard Sri B.R. Singh, learned
counsel for the petitioner. Notice for
opposite party no.1 has been accepted by
the office of learned CSC.

2. Sri Anurag Vikram has filed
Vakalatnama on behalf of opposite party
no.2, the same is taken on record.

3. By means of this petition, the
petitioner has assailed the punishment order
dated 11.9.2020 (Annexure No.1), orders
dated
13.10.2020
and
23.12.2020
(Annexures No.2 & 3). By means of order
dated 23.12.2020, recovery to the tune of
Rs.50,12,631.59 has been directed. The
petitioner has also assailed the order dated
8.7.2020 whereby opposite party no.2 has
denied payment of due salary of the
petitioner from January, 2014 to December,
2019.

4. The precise submission of learned
counsel for the petitioner is that the
petitioner
retired
from
service
on
31.12.2019 after attaining the age of
superannuation. Prior to his retirement,
charge sheet dated 26.10.2019 has been
served upon the petitioner. Till retirement
of the petitioner, enquiry could not be
concluded. However, after nine months
from the retirement, the impugned order
dated 11.9.2020 has been issued whereby