# Smt. Jhamania 3634(S/S01991) v. Chief Accounts Examination Officer Cooperative & Anr

- **Citation:** (2015) 1 ILRA 178
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2014-12-03
- **Case number:** Special Appeal No. 723 of 2014
- **Bench:** Amreshwar Pratap Sahi, Arvind Kumar Tripathi (Ii
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-jhamania-3634-s-s01991-v-chief-accounts-examination-officer-cooperative-anr-43079
- **Pages:** 3

## Headnote

High Court Rule-Chapter VIII Rule 5Appeal against judgment-refusing to
condone delay-in restoration applicationpetitioner being aged about 59 years
continued in service without being aware
of the fact of dismissal of writ petition in
default-petitioner
being
class
4th
employee-cause found sufficient-delay
condoned-dismissal
without
notice
opportunity-held-principle
of
natural
justice violated.
Held: Para-7 & 11

## Text

178
 INDIAN LAW REPORTS ALLAHABAD SERIES
where the factual position or legal
implication arising thereunder is disputed
and not where it is not in dispute or
cannot be disputed. If only one conclusion
is possible, a writ would not issue only
because there was a violation of the
principles of natural justice".
17. Once the Court comes to the
conclusion that the petitioner has lost his
rights in the matter of allotment of the
plot in question because of the canellation
of the same, subsequent auction of the
plot in favour of third person cannot be
objected to by the petitioner on the
ground that there is an interim order in the
matter of delivery of possession in respect
of the plot in question, inasmuch as that
would be an issue between the person,
who has filed the said writ petition before
the High Court referred to above, and the
respondent Housing and Development
Board and the subsequent allottee.
18. Learned counsel for the
petitioner then contended that in respect
of an other person, who had been allotted
the land similarly situate, respondentHousing and Development Board has
taken a decision to refund the earnest
money even after they had committed
default in payment of the installments as
agreed upon at the time of auction.
19. If such is the situation, the
petitioner is at liberty to make an
application before respondent no.3, which
shall be dealt with in the same manner as
it has been dealt with in respect of other
person similarly situate if any.
20. With the aforesaid observations,
the present writ petition is disposed of.
--------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 03.12.2014
BEFORE
THE HON'BLE AMRESHWAR PRATAP SAHI, J.
THE HON'BLE ARVIND KUMAR TRIPATHI (II), J.
Special Appeal No. 723 of 2014
Smt. Jhamania 3634(S/S01991) Appellant
Versus
Chief
Accounts
Examination
Officer
Cooperative & Anr.
.Respondents
Counsel for the Appellant:
Shree Prakash Singh
Counsel for the Respondents:
C.S.C.
High Court Rule-Chapter VIII Rule 5Appeal against judgment-refusing to
condone delay-in restoration applicationpetitioner being aged about 59 years
continued in service without being aware
of the fact of dismissal of writ petition in
default-petitioner
being
class
4th
employee-cause found sufficient-delay
condoned-dismissal
without
notice
opportunity-held-principle
of
natural
justice violated.
Held: Para-7 & 11
7. As indicated above, the matter is very
old and is of the year
1991. The
appellant is a lady, who has continued in
service as a class-IV employee. In our
considered opinion, the dispensation of
her service, at the fag end of her career,
would be a travesty of justice and would
also be inequitable. The explanation
given by the appellant in support of the
delay condonation for restoring the
matter appears to be bona fide inasmuch
as she was getting salary till September,
2014. This explanation does not appear
to have been appropriately considered
by
the
learned
single
Judge
while
proceeding to reject the restoration
application. We, therefore, find sufficient
grounds that were available and were
1 All] Smt. Jhamani 3634(S/S01991) Vs. Chief Account Examination Officer Cooperative & Ors. 179
justified for restoring the case after
condoning the delay.
11. The order of dispensation and
cancellation
of
appointment
of
the
petitioner does not appear to have been
passed
after
giving
any
notice
or
opportunity to the appellant. The same is
clearly in violation of the principles of
natural justice and, therefore, violative
of Article 14 of the Constitution of India.
Apart from this, the appellant is a petty
class-IV employee, who, in the aforesaid
background, does not deserve to be nonsuited now at the fag end of the career.
(Delivered by Hon'ble Amreshwar Pratap
Sahi, J.)
1. Heard learned Counsel for the
appellant and
the learned Standing
Counsel for the respondent Nos. and 2.
2.
The appellant was extended the
benefit of compassionate appointment after
the death of her husband by the order dated
20.4.2001. The appellant was admittedly
appointed as a Class-IV employee. Her
services were dispensed with by cancelling
the said appointment on the ground of an
alleged deficiency in educational qualification.
3. The appellant filed the writ
petition giving rise to the present
controversy, being Writ Petition No.3634
of
1991, and the writ petition was
entertained and the appellant was also
favoured with an interim order as a
consequence whereof she continued in
service and has received salary as a classIV employee/Peon.
4. The writ petition appears to have
been listed on 15.4.2009 for hearing on
which date in the absence of the learned
Counsel for the appellant, the petition was
dismissed for want of prosecution.
5. The appellant has stated in her
Affidavit that she is now 59 years of age
and
is
at
the
verge
of
attaining
superannuation and that she was not
informed about the dismissal of the writ
petition in default. Not only this even the
respondents did not take any action which
may have resulted in any information to
the appellant, inasmuch as, she continued
to be in service and was receiving salary
month by month. It is only when she was
restrained from signing on the Attendance
Register on 15.9.2014 that she came to
know of the dismissal of the said writ
petition
in
default.
Thereafter,
she
contacted another counsel, who filed the
restoration application before the learned
single Judge for setting aside the ex-parte
order dated 15.4.2009.
6. The learned single Judge vide
order dated 30.10.2014 has observed that
he did not find any valid reason to
condone the delay and has also rejected
the restoration application. The appellant,
therefore, prays for setting aside the order
dated 30.10.2014 as well as the order
dated
15.4.2009
with
all
other
consequential reliefs claimed originally in
the writ petition.
7. As indicated above, the matter is
very old and is of the year 1991. The
appellant is a lady, who has continued in
service as a class-IV employee. In our
considered opinion, the dispensation of
her service, at the fag end of her career,
would be a travesty of justice and would
also be inequitable. The explanation given
by the appellant in support of the delay
condonation for restoring the matter
appears to be bona fide inasmuch as she
was getting salary till September, 2014.
This explanation does not appear to have
been appropriately considered by the
180
 INDIAN LAW REPORTS ALLAHABAD SERIES
learned single Judge while proceeding to
reject the restoration application. We,
therefore, find sufficient grounds that
were available and were justified for
restoring the case after condoning the
delay.
8. We, accordingly, do so and set
aside the order dated 30.10.2014 whereby
the restoration application has been
rejected.
9. We also, accordingly, condone
the delay and treat the application within
time. We further find from the reasons
disclosed in the restoration application
that the situation was beyond the control
of the appellant and, therefore, the writ
petition ought to have been restored to it's
original number. We, therefore, set aside
the order dated 15.4.2009 and restore the
writ petition to it's original number.
10.

Having
considered
the
submissions so raised on the facts of the
present appeal, it is evident that the
appellant is 59 years of age and, therefore,
no useful purpose would be served in
remitting the matter back to the learned
single Judge and, therefore, with the
consent of the parties, we are disposing of
the writ petition alongwith this appeal
finally ourselves.
11.
The order of dispensation and
cancellation of appointment of the petitioner
does not appear to have been passed after
giving any notice or opportunity to the
appellant. The same is clearly in violation of
the principles of natural justice and, therefore,
violative of Article 14 of the Constitution of
India. Apart from this, the appellant is a petty
class-IV employee, who, in the aforesaid
background, does not deserve to be non-suited
now at the fag end of the career.
12.
We, therefore, in exercise of our
extra ordinary jurisdiction under Article 226
of the Constitution of India and in view of
the reasons aforesaid, set aside the order
dated 30.4.1991 and allow the writ petition.
This discretion is being exercised on the
peculiar facts of this case as noted above. We
direct the respondents to treat the appellant to
continue
in
service
and
extend
all
consequential benefits to the appellant in
accordance with law.
--------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 15.01.2015
BEFORE
THE HON'BLE RAKESH TIWARI, J.
THE HON'BLE MRS VIJAY LAKSHMI, J.
Special Appeal Defective No. 1040 of
2014
State of U.P. & Ors.
...Appellants
Versus
Devesh Kumar Ojha & Anr. .Respondents
Counsel for the Appellants:
Sri Bhola Nath Yadav, S.C.
Counsel for the Respondents:
Sri A.C. Mishra.
Uttar Pradesh Chhatrvitti Yojna Niyamawali,
2012-claim of reimbursement-denied saying
admission against paying seat-while it was
against free seat-due to negligence of
college functioning-wrong feeding can not
be basis for denial-admittedly, monthly
income less than 30,000/-held-Single Judge
rightly-exercised its writ jurisdiction-appeal
dismissed.
Held: Para-6
After hearing learned counsel for the
parties and on perusal of the aforesaid
finding of the Writ Court we are of the
considered opinion that under the Uttar
Pradesh
Samanya
Varg
Dashmottar