# Shiv Kumar Pandey v. State of U.P. & Ors. 672 INDIAN LAW REPORTS ALLAHABAD SERIES

- **Citation:** (2021) 10 ILRA 671
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-10-26
- **Case number:** Special Appeal No. 417 of 2021
- **Bench:** Ramesh Sinha, Vivek Varma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shiv-kumar-pandey-v-state-of-u-p-ors-672-indian-law-reports-allahabad-series-46394
- **Pages:** 5

## Headnote

Law
-
Regularization
-
Condonation of delay - If the litigant is not
at fault, he should not suffer for such a
conduct of his counsel. In case a litigant is
neither negligent nor careless in prosecuting his
case but his lawyer pleads no instruction, the
Court should issue notice to him to make an
alternative arrangement. Such a course is
required in the interest of justice and the Court
may proceed from the stage the earlier counsel
pleaded no instruction. (Para 10, 11, 12)

Special appeal allowed. Delay condoned.
Matter remitted. (E-4)

Precedent followed:

## Text

10 All. Shiv Kumar Pandey Vs. State of U.P. & Ors.
671

Thereafter, the Supreme Court
prescribes exception to the aforesaid Rule
and in Para-17 held as follows:

"17. Non-compliance with any
procedural requirement relating to a
pleading, memorandum of appeal or
application or petition for relief should not
entail automatic dismissal or rejection,
unless the relevant statute or rule so
mandates.
Procedural
defects
and
irregularities which are curable should not
be allowed to defeat substantive rights or to
cause injustice. Procedure, a handmaiden
to justice, should never be made a tool to
deny justice or perpetuate injustice, by any
oppressive or punitive use. The wellrecognised exceptions to this principle are:

(i) where the statute prescribing
the procedure, also prescribes specifically
the consequence of non-compliance;

(ii) where the procedural defect is
not rectified, even after it is pointed out and
due opportunity is given for rectifying it;

(iii) where the non-compliance or
violation is proved to be deliberate or
mischievous;

(iv) where the rectification of
defect would affect the case on merits or
will affect the jurisdiction of the court;

(v) in case of memorandum of
appeal, there is complete absence of
authority and the appeal is presented
without
the
knowledge,
consent
and
authority of the appellant."

Therefore, in normal cases, the
defects in the pleadings including the
defects in signing the same are curable.
Had the present case been one of the
regular cases or the defects being a minor
irregularity,
this
Court
could
have
permitted the same to be corrected. Present
is an election petition and Section 81(3) of
the RP Act specifically provides for filing
of an election petition along with copies
attested by the petitioner. Section 86 of the
RP Act provides that failure to comply with
the requirement of Section 81 of the RP
Act would result in rejection of the election
petition at the initial stage only.

In view thereof, condition no.(i)
of Para-17 of Uday Shankar Triyar (supra)
is applicable to the present case and thus,
the consequences as prescribed under
Section 86 of the RP Act are to follow, as is
already settled in the case of Saritha S.
Nair (supra).

39. In view of the discussions made
hereinabove, C.M. Application No.118019
of 2021 under Order VII Rule 11 of C.P.C.
is disposed of, holding that the election
petition itself is not maintainable.

40. In view of above, since
application for exemption from publication
is already rejected and there is no
publication made in the newspaper by the
petitioner which is mandatorily required as
held above, therefore, the present election
petition itself is not maintainable and
further, in view of the order passed on C.M.
Application No.118019 of 2021 under
Order VII Rule 11 of C.P.C. that election
petition is not maintainable on the grounds
as discussed above, the election petition is
also dismissed.
----------
(2021)10ILR A671
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 26.10.2021

BEFORE

THE HON'BLE RAMESH SINHA, J.
THE HON'BLE VIVEK VARMA, J.

Special Appeal No. 417 of 2021

Shiv Kumar Pandey ...Appellant
Versus
State of U.P. & Ors. ....Respondents
672 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Appellant:
Shiv Shankar Singh, Reshma Khan

Counsel for the Respondents:
C.S.C., Dr. Surendra Singh

A.
Service
Law
-
Regularization
-
Condonation of delay - If the litigant is not
at fault, he should not suffer for such a
conduct of his counsel. In case a litigant is
neither negligent nor careless in prosecuting his
case but his lawyer pleads no instruction, the
Court should issue notice to him to make an
alternative arrangement. Such a course is
required in the interest of justice and the Court
may proceed from the stage the earlier counsel
pleaded no instruction. (Para 10, 11, 12)

Special appeal allowed. Delay condoned.
Matter remitted. (E-4)

Precedent followed:

1. Rafiq & anr. Vs Munshilal & anr., AIR 1981 SC
140 (Para 9)

2. Smt. Lachi & ors. Vs Director of Land Records
& ors., AIR 1984 SC 41 (Para 9)

3. Goswami Krishna Murarilal Sharma Vs Dhan
Prakash & ors., (1981) 4 SCC 474 (Para 10)

4. Tahil Ram Issardas Sadarangani & ors. Vs
Ramchandra Issardas Sadarangani & anr., AIR
1993 SC 1182 (Para 11)

5. Malkiat Singh & anr. Vs Joginder Singh & ors.,
AIR 1998 SC 258 (Para 11)

6. Sushila Narahari & ors. Vs Nand Kumari,
(1996) 5 SCC 529 (Para 12)

7. Salil Dutta Vs T.M. & Me (P) Ltd. [1993] 1
SCR 794 (Para 13)

Present appeal challenges order dated
14.09.2021, passed by learned Single
Judge.

(Delivered by Hon'ble Ramesh
Sinha, J.)

(1) This intra Court appeal has been
filed beyond two days.

(2) Sri Amitabh Kumar Rai, learned
Additional Chief Standing Counsel for the
State/respondent no. 1 and Dr. Surendra
Singh,
learned
Counsel
for
the
University/respondents no. 2 to 5 have no
objection in case delay in filing the appeal
is condoned and the matter be heard finally.

(3) On due consideration, since cause
shown in the affidavit filed in support of an
application for condonation of delay in
filing the instant appeal is satisfactory,
hence the application for condonation of
delay (C.M. Application No. 139821 of
2021) is allowed. Delay in filing the instant
appeal is condoned.

(4) The appellant, Shiv Kumar
Pandey, and five others, namely, Prem
Prakash, Diwakar Dube, Dilip Kumar,
Harihar Prasad Pandey, Narendra Kumar
Dube, have approached this Court by filing
Writ Petition No. 6685 (S/S) of 2003 :
Prem Prakash and others Vs. State of U.P.
and others, stating therein that they were
working on the post of Class-IV on daily
wage basis against the sanctioned and clear
vacant posts at Narendra Dev University of
Agriculture & Technology, Kumarganj,
Faizabad (hereinafter referred to as "the
University") but their services were not
regularized.
This
writ
petition
was
dismissed as having become infructuous by
the learned Single Judge vide order dated
26.03.2014. Thereafter, the appellant/writ
petitioner no.4 (Shiv Kumar Pandey) has
filed an application for recall of the
aforesaid
order
dated
26.03.2014
(C.M.Application No. 100439 of 2021)
along with an application for condonation
of delay (C.M. Application No. 100434 of
2021). The learned Single Judge, vide order
10 All. Shiv Kumar Pandey Vs. State of U.P. & Ors.
673
dated
14.09.2021,
rejected
both
the
aforesaid applications.

(5) Feeling aggrieved by the order
dated 14.09.2021, the instant intra court
appeal has been filed by the appellant/writ
petitioner no.4.

(6) Heard Sri Shiv Shankar Singh,
learned Counsel for the appellant, Sri
Amitabh Kumar Rai, learned Additional
Chief
Standing
Counsel
for
the
State/respondent no.1 and Dr. Surendra
Singh,
learned
Counsel
for
the
University/respondent nos.2 to 5.

(7) Submission of the learned Counsel
for the appellant/writ petitioner no.4 is that
the appellant/writ petitioner no.4 has no
knowledge about the order dated 26.03.2014
passed by the learned Single Judge,
dismissing the writ petition as having
infructuous. However, when in the year 2021,
the process of regularization has again been
initiated in the University on 06.08.2021, the
appellant contacted his Counsel to know the
status of his writ petition but his counsel Sri
Vivek Kumar Shukla did not give any
satisfactory answer to him. He argued that as
soon as the appellant/writ petitioner no. 4
came to know the order dated 26.03.2014, he
immediately filed an application for recall of
the order dated 26.03.2014 along with an
application for condonation of delay. His
submission is that the delay in filing the recall
application is bona fide but the learned Single
Judge has rejected both the applications vide
order dated 26.03.2014 without looking to the
fact that the relief sought by the writ
petitioner is still survive for the purpose of
regularization of services of the writ
petitioner no.4.

(8) On the other hand, learned
Counsel for the respondents has opposed
the submissions made by the learned
Counsel for the appellant and has submitted
that the application for recall of the order
dated 26.04.2014 has been filed by the writ
petitioner no.4 after more than six years,
therefore, the learned Single Judge has
rightly passed the impugned order dated
14.09.2021,
dismissing
the
recall
application as well as application for
condonation of delay. There is no illegality
or infirmity in the impugned order dated
14.09.2021.

(9) Having heard rival submissions
advanced by the learned Counsel for the
parties and going through the material
brought on record, we deem it appropriate
to mention here that in Rafiq and Anr. v.
Munshilal and Anr. : AIR 1981 SC 140
and Smt. Lachi and Ors. v. Director of
Land Records and Ors. : AIR 1984 SC
41 while dealing with a similar issue held
that a litigant cannot suffer for the fault of
his counsel. The Hon'ble Supreme Court in
the former case observed as under :-

"What is the fault of the party
who having done everything in his power
expected of him, would suffer because of
the default of his advocate.... The problem
that agitates us is whether it is proper that a
party should suffer for the inaction,
deliberate omission, or misdemeanour of
his agent.... We cannot be a party to an
innocent party suffering injustice merely
because his chosen advocate defaulted."

(10) Similar view has been reiterated
in Goswami Krishna Murarilal Sharma
v. Dhan Prakash and Ors. : (1981) 4 SCC
474, where the counsel had withdrawn his
Vakalatnama without notice to his client.
The Hon'ble Supreme Court following it's
earlier judgment in Rafiq (supra), held that
the Court should not have proceeded to
674 INDIAN LAW REPORTS ALLAHABAD SERIES
dismiss the appeal straightaway on the
ground that the appellant was not present in
person when his counsel had withdrawn the
Vakalatnama. At least a notice ought to
have been given to such a litigant to make
an alternative arrangement or appear in
person.

(11) Similar view has been reiterated
in Tahil Ram Issardas Sadarangani and
Ors.
v.
Ramchandra
Issardas
Sadarangani and Anr. : AIR 1993 SC
1182 and Malkiat Singh and Anr. v.
Joginder Singh and Ors.: AIR 1998 SC
258, observing that in case a litigant is
neither
negligent
nor
careless
in
prosecuting his case but his lawyer pleads
no instruction, the Court should issue
notice to him to make an alternative
arrangement. Such a course is required in
the interest of justice and the Court may
proceed from the stage the earlier counsel
pleaded no instruction. If the litigant is not
at fault, he should not suffer for such a
conduct of his counsel.

(12) In Sushila Narahari and Ors. v.
Nand Kumari : (1996) 5 SCC 529, the
case was dismissed in default and an
application for restoration was dismissed
on the ground that there was a delay of 40
days
in
filing
the
application
for
restoration. The Hon'ble Apex Court held
that the delay due to advocate's dereliction
in duty withdrawing his Vakalatnama
without notice to his client warranted
condonation.

(13) In Salil Dutta v. T.M. & Mc (P)
Ltd., [1993] 1 SCR 794, the Apex Court,
after considering its earlier judgment in Rafiq
(supra) observed that the said case was
decided on the facts involved therein and,
thus, it did not lay down any absolute
proposition. The Court observed as under :-

"It is true that in certain situations,
the Court may, in the interest of justice, set
aside a dismissal order or an ex parte decree
notwithstanding
the
negligence
and/or
misdemeanour of the advocate where it finds
that the client was an innocent litigant but
there is no such absolute rule that a party can
disown its advocate at any time and seek
relief. No such absolute immunity can be
recognised. Such an absolute rule would
make the working of the system extremely
difficult."

(14) In view of the law settled by the
authorities referred to above, in the interest of
justice, we deem it appropriate to condone
the delay in filing the recall of the order dated
26.03.2021 passed in writ petition No. 6685
of 2003 (S/S) and condone the delay in filing
the recall application therein and the matter
be remitted to the learned Single Judge for
deciding the writ petition No. 6685 of 2003
(S/S), in accordance with law, on merit.

(15) Accordingly, we allow the instant
appeal. The judgment and order dated
14.09.2021 is hereby set-aside. The delay in
filing the application for recall of the order
dated 26.03.2014 passed in writ petition No.
6685 of 2003 (S/S) is hereby condoned. The
order dated 26.04.2014 passed in writ petition
No. 6685 of 2003 (S/S) is recalled. The writ
petition No. 6685 (S/S) of 2003 is restored to
its original number. The matter is remitted
with a request to the learned Single Judge to
decide
it,
in
accordance
with
law,
expeditiously, on merit, without influenced
by any observation made here-in-above.

(16) It is clarified that we have not
touched the merit of the case and the
parties shall not seek any unnecessary
adjournment before the learned Single
Judge.
----------
10 All. Girja Shankar Tiwari Vs. State of U.P. & Ors.
675
(2021)10ILR A675
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 04.10.2021

BEFORE

THE HON'BLE RAMESH SINHA, J.
THE HON'BLE MRS. SAROJ YADAV, J.

Special Appeal No. 366 of 2021

Girja Shankar Tiwari ...Appellant
Versus
State of U.P. & Ors. ....Respondents

Counsel for the Appellant:
Gaurav Mehrotra, Abhinav Bhattacharya,
Akber Ahmad

Counsel for the Respondents:
C.S.C.

A. Service Law - Promotion - U.P.
Agriculture (Group-A posts) Service Rules,
1992 - Rule 5 - A promotion takes effect
from the date of being granted and not
from the date of occurrence of vacancy or
creation of the post. Promotions can be
granted only after the Assessment Board has
met and made its recommendations for the
grant of promotions. (Para 16, 17)

In the present case, the name of the writ
petitioner/appellant was considered by the
Departmental Promotional Committee (DPC)
together with other persons. The DPC met on
31.01.2006,
in
which
the
writ
petitioner/appellant was found eligible for
promotion to the post of Director, Agriculture
together with one Girish Kumar but they were
not recommended for promotion on the post of
the Director, Agriculture for the reasons that
they attained the age of superannuation on that
date i.e. on 31.01.2006; the vacancy accrued on
the next date of attaining the age of
superannuation i.e. 01.02.2006; and no junior
to the writ petitioner/appellant was granted
promotion prior or on the date of his retirement
i.e. on 31.01.2006, hence in view of the Office
Memorandum dated 23.08.1997 (in which
candidature of petitioner had been rejected),
the writ petitioner/appellant and one Girish
Kumar were not entitled to get notional
promotion. Moreover, no entitlement was
claimed on the basis of any rule allowing the
benefit of notional promotion. (Para 19)

Special Appeal dismissed. (E-4)

Precedent followed:

1. U.O.I. & ors. Vs K.K. Vadera & ors., 1989
Supp (2) SCC 625 (Para 16)

2. St. of Uttaranchal & anr. Vs Dinesh Kumar
Sharma, 2007 (1) SCC 683 (Para 16)

3. K.V. Subba Rao Vs Govt.of A.P., 1988 (2) SCC
201 (Para 16)

4. Sanjay K. Sinha & ors. Vs St. of Bihar & ors.,
2004 (10) SCC 734 (Para 16)

Present appeal assails order of the Single
Judge dated 16.08.2021, by which the
writ
petition
filed
by
the
writ
petitioner/appellant
herein
was
dismissed.

(Delivered by Hon'ble Ramesh
Sinha, J.)

(1) Supplementary affidavit filed
today on behalf of the appellant is taken on
record.

(2) Heard Sri Gaurav Mehrotra,
learned Counsel assisted by Sri Akber
Ahmad, learned Counsel for the appellant
and Sri Amitabh Rai, learned Additional
Chief
Standing
Counsel
for
the
State/respondents.

(3) The instant intra Court appeal has
been filed by the appellant, Giraja
Shankar Tiwari, challenging the judgment
and order of the learned Single Judge dated
16.08.2021 passed in Service Single No.
3659 of 2019 :Giraja Shankar Tiwari Vs.