# Virendra Singh Yadav v. Collector, Ghazipur and others

- **Citation:** (2012) 3 ILRA 1373
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2012-10-12
- **Case number:** Civil Misc. Writ Petition No. 109 of 1998
- **Bench:** Rajes Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/virendra-singh-yadav-v-collector-ghazipur-and-others-42419
- **Pages:** 9

## Headnote

Constitution
of
India,
Article
226termination order-appointment on class
4th post-without advertisement, without
constituting
selection
committee-dehorse
the
rules-plea
regarding
opportunity of hearing-not available-as
before this court material do not disclose
how termination order is faulty-working
on
strengthen
of
interim
order-not
helpful-after dismissal of Writ Petitioninterim order nonest-petition dismissed.

Held: Para-11 and 12

Thus, it is apparent that the appointment
of the petitioner was without following
the Rules. The appointment of the
petitioner was motivated by extraneous
consideration
and
as
a
result
of
favouritism. The petitioner is not able to
justify his appointment under the Rules.
In the appointment letter itself it was
made clear that the appointment of the
petitioner was wholly temporary and
could be terminated without any prior
notice. Therefore, even if the termination
order has been passed without giving
any opportunity to the petitioner, the
1374 INDIAN LAW REPORTS ALLAHABAD SERIES [2012

same cannot be said to be illegal. The
petitioner has fullest opportunity in this
Court to assail the impugned order on
merit but the petitioner could not do so
and made no submission in this regard.
Merely
because
the
petitioner
has
worked under the interim order of this
Court,
the
petitioner's
appointment
cannot be justified and the petitioner
cannot be allowed to continue. The
illegal appointment of the petitioner has
taken away the rights of the several
persons, who were also entitled for the
appointment
and
could
be
better
candidates but they were deprived to
exercise their rights. Therefore, in such a
situation, the petitioner is not entitled
for any equitable considerable.

In my view, the initial appointment of
the petitioner is de horse to the Rules,
the equity has no role and on equitable
consideration the petitioner cannot be
allowed to continue on the ground that
he has worked for long period under the
interim order of this Court. It would
amount
to
encourage
the
illegal
appointments, depriving the right of the
legitimate candidates.
Case Law discussed:
2006 (4) SCC-1; 1997 (4) SCC 388: AIR 1997
SC 3071; 2003 (8) SCC 648: (AIR 2003 SC
4482); AIR 1968 Allahabad; JT 2009 (2) SC
520

## Text

3 All] Virendra Singh Yadav V. Collector, Ghazipur and others

1373

"The consistent view of this Court,
consequently, is that the normal mode of
proceeding in a case under the Act is to
receive evidence on affidavits from both
the parties and to decide the case on the
basis of the said affidavits. It is only in a
very rare case where the Court thinks fit
necessary in the interest of justice crossexamine a particular deponent of an
affidavit, but it has to be very sparingly
exercised
in
very
exceptional
circumstances, if such a power is
exercised, specific reasons for exercise of
the powers have to be given by the
authority
concerned.
The
crossexamination cannot be ordered as a
matter of course."

10. In view of the law as discussed
above, it is clear that the proceedings
under Section 21 (1) of the Act are of
summary nature, by which the prescribed
authority holds an enquiry which have to
be dealt with.

11. The impugned order is perfectly
in accordance with law on the point. The
learned Prescribed Authority has rightly
observed that vague application has been
given, by which all the five witnesses
have been sought to be examined and the
application has been moved at the stage of
arguments, after a lapse of a considerable
period just to delay the disposal of the
case which deserves to be decided within
two months as provided by Rule 15 (3) of
the rules framed under the Act.

12. The present application has been
given by the petitioner with an intent to
delay the proceedings and the tenant has
dragged the landlady into the controversy
up to this Court.

13. In view of the above, the writ
petition is dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.10.2012

BEFORE
THE HON'BLE RAJES KUMAR, J.

Civil Misc. Writ Petition No. 109 of 1998

Virendra Singh Yadav

 ...Petitioner
Versus
Collector, Ghazipur and others

 ...Respondents

Counsel for the Petitioner:
Sri Prakash Padia

Counsel for the Respondents:
C.S.C.

Constitution
of
India,
Article
226termination order-appointment on class
4th post-without advertisement, without
constituting
selection
committee-dehorse
the
rules-plea
regarding
opportunity of hearing-not available-as
before this court material do not disclose
how termination order is faulty-working
on
strengthen
of
interim
order-not
helpful-after dismissal of Writ Petitioninterim order nonest-petition dismissed.

Held: Para-11 and 12

Thus, it is apparent that the appointment
of the petitioner was without following
the Rules. The appointment of the
petitioner was motivated by extraneous
consideration
and
as
a
result
of
favouritism. The petitioner is not able to
justify his appointment under the Rules.
In the appointment letter itself it was
made clear that the appointment of the
petitioner was wholly temporary and
could be terminated without any prior
notice. Therefore, even if the termination
order has been passed without giving
any opportunity to the petitioner, the
1374 INDIAN LAW REPORTS ALLAHABAD SERIES [2012

same cannot be said to be illegal. The
petitioner has fullest opportunity in this
Court to assail the impugned order on
merit but the petitioner could not do so
and made no submission in this regard.
Merely
because
the
petitioner
has
worked under the interim order of this
Court,
the
petitioner's
appointment
cannot be justified and the petitioner
cannot be allowed to continue. The
illegal appointment of the petitioner has
taken away the rights of the several
persons, who were also entitled for the
appointment
and
could
be
better
candidates but they were deprived to
exercise their rights. Therefore, in such a
situation, the petitioner is not entitled
for any equitable considerable.

In my view, the initial appointment of
the petitioner is de horse to the Rules,
the equity has no role and on equitable
consideration the petitioner cannot be
allowed to continue on the ground that
he has worked for long period under the
interim order of this Court. It would
amount
to
encourage
the
illegal
appointments, depriving the right of the
legitimate candidates.
Case Law discussed:
2006 (4) SCC-1; 1997 (4) SCC 388: AIR 1997
SC 3071; 2003 (8) SCC 648: (AIR 2003 SC
4482); AIR 1968 Allahabad; JT 2009 (2) SC
520

(Delivered by Hon'ble Rajes Kumar, J.)

1. Heard Sri Prakash Padia, learned
counsel for the petitioner and Sri Pankaj
Rai, learned Additional Chief Standing
Counsel for the respondents.

2. By means of the present writ
petition, the petitioner is challenging the
order dated 29.12.1997 passed by the
District Magistrate, Ghazipur whereby the
appointment of the petitioner has been
cancelled and the services of the petitioner
has been dispensed with. The petitioner
has been appointed by the appointment
letter dated 29.8.1997 issued by the then
District Magistrate, Ghazipur appointing
the petitioner on the post of Peon which
had fallen vacant on the retirement of one
Sri Purshottam Yadav temporarily till the
regular appointment. In the appointment
letter it was stated that the appointment
was only temporary and could be
terminated without any prior information.

3. It appears that in respect of the
appointment of the petitioner, several
complaints have been received by the then
District Magistrate, Ghazipur. On the
complaint,
he
has
appointed
SubDivisional Magistrate,Saidpur, Ghazipur to
make
necessary
inquiry.
The
SubDivisional Magistrate,Saidpur, Ghazipur
submitted the inquiry report on 21.11.1997
stating following irregularities in the
appointment :

A. In accordance to Rule 19 of the
U.P. Group D Employees Service Rules,
1985 (as amended) the vacancy has neither
been notified to the Employment Exchange
nor published in the newspaper nor the
applications have been invited through
Notice Board;

B. For the appointment of one vacant
post of Peon only one application of the
petitioner has been received and he has
been appointed;

C. In accordance to Regulation
Selection Committee would have been
constituted but no Selection Committee
has been constituted and no interview has
been taken by the Selection Committee.

4. The District Magistrate, Ghazipur
on the basis of the inquiry report, in the
impugned order, has stated that for one
vacant post application has been directly
3 All] Virendra Singh Yadav V. Collector, Ghazipur and others

1375
received and the petitioner has been
appointed and accordingly the appointment
is contrary to Rules 1985 made in
accordance
to
Article
309
of
the
Constitution of India and accordingly the
appointment of the petitioner has been
cancelled and his services have been
dispensed with.

5. Learned counsel for the petitioner
submitted that the petitioner has been
appointed on 29.8.1997. The service of the
petitioner has been dispensed with on
29.12.1997 against which the petitioner
filed the writ petition which has been
entertained and vide order dated 8.1.1998
the operation of the order dated 29.12.1997
has been stayed and since then the
petitioner is continuously working and is
getting salary and, therefore, on equitable
consideration, the petitioner may be
allowed to continue. He submitted that the
impugned order has been passed without
giving any opportunity and in violation of
the principle of natural justice. He further
submitted that on the validity of the
appointment of the petitioner he cannot say
anything. In support of the contention,
learned counsel for the petitioner relied
upon the decision of the Apex Court in the
case of Shrawan Kumar Jha Vs. State of
Bihar, reported in 1991-AIR (SC) 309, the
division Bench decision of this Court in the
case of Girish Chandra and others vs.
Union of India and others, reported in
1985 UPLBEC 22 and the decision of the
learned Single Judge of this Court in the
case of Ratnakar Chaubey vs. Deputy
Director of Education Vth Region,
Varanasi and others, reported in 2004
E.S.C. Allahabad 262.

6. Learned Additional Chief Standing
Counsel submitted that the appointment of
the petitioner was wholly temporary and in
the appointment letter, it was clearly stated
that the service of the petitioner could be
terminated without giving any prior notice.
The appointment of the petitioner was on
the face of it was illegal and was made
without
following
procedure
of
appointment given in Group D Employees
Service Rules, 1985. It is apparent that the
appointment was made by manipulation
and on extraneous considerations. As
required under Rule 19 of the Rules, 1985
the vacancy had not been notified to the
Employment Exchange. No publication
was made in the newspaper nor in the
notice Board and as Required under Rule
16, the Selection Committee has not been
formed only the petitioner's application has
been entertained and the petitioner has
been appointed. The appointment letter
was directly handed over to the petitioner
on 1.9.1997. The petitioner has been
allowed to join on the same day. Neither
any
medical
examination
nor
any
verification of the antecedent of the
petitioner was made before his joining.
The appointment was wholly motivated by
extraneous consideration and in such a
situation the appointment has rightly been
cancelled. In the petition, the petitioner is
not able to justify his appointment in
accordance
to
law.
Despite
the
appointment of the petitioner was wholly
illegal de horse to the Rules, the petitioner
is working on the basis of the interim order
granted by this Court. The petitioner has
got his appointment by manipulation
taking away the right of appointment of the
several persons. Therefore, the petitioner is
not entitled for the benefit of equity.

7. I have considered the rival
submissions and perused the records.
1376 INDIAN LAW REPORTS ALLAHABAD SERIES [2012

8. Rules 19 and 16 of the Group 'D'
Employees Service Rules 1985 reads as
follows:

19. Procedure for Selection. - (1)
The appointing Authority shall determine
the number of vacancies to be filled during
the course of the year as also the number of
vacancies to be reserved for the candidates
belonging
to
the
Scheduled
Castes,
Scheduled Tribes and other categories. The
vacancy
shall
be
notified
to
the
Employment Exchange. The Appointing
Authority may also invite application
directly from the persons who have their
names registered in the Employment
Exchange.
For
this
purpose,
the
Appointing Authority shall issue an
advertisement in a local daily newspaper
besides posting the notice for the same on
the notice board. All such applications
shall be placed before the Selection
Committee.

(2) When the names both of the
general candidates and reserve candidates
for whom vacancies are required to be
reserved
under
the
orders
of
the
Government have been received by the
Selection Committee it shall interview and
select the candidates for various posts.

(3) In making selection the Selection
Committee shall give weightage to the
retrenched employees awarding marks in
the following manner :

(i) For the first complete year ....5
marks.

(ii) For the next and every completed
year of service .....5 marks.

9. Provided that the maximum marks
awarded to a not trenched employee under
this sub-rule shall not exceed 15 marks.

(4) The number of the candidates to
be selected will be larger (but not larger by
more than 25 per cent) than the number of
vacancies for which the selection has been
made. The names in the selection list shall
be arranged according to the marks
awarded at the interview.

16.
Constitution
of
Selection
Committee.
-For
the
purpose
of
recruitment to any post, there shall be
constituted a Selection Committee as
follows:

(1)Appointing Authority;

(2)An officer belonging to Scheduled
Caste/Scheduled Tribe, nominated by the
District Magistrate if the Appointing
Authority does not belong to Scheduled
Caste/Scheduled Tribe. If the Appointing
Authority
belongs
to
Scheduled
Caste/Scheduled Tribe, an office other than
belonging to Scheduled Caste, Scheduled
Tribe, Minority Community and Backward
Class to be nominated by the District
Magistrate;

(3)Two officers nominated by the
Appointing Authority, one of whom shall
be an officer belonging to Minority
Community and the other to backward
class. If such suitable officers are not
available in his department or organization,
such officers shall on the request of the
Appointing Authority, be nominated by the
District Magistrate and on his failure to do
so, by reason of non-availability of suitable
officers, such officers shall be nominated
by the Divisional Commissioner.
3 All] Virendra Singh Yadav V. Collector, Ghazipur and others

1377

Rule 19 (1) provides that the
Appointing Authority shall determine the
number of vacancies to be filled during the
course of the year as also the number of
vacancies to be reserved for the candidates
belonging
to
the
Scheduled
Castes,
Scheduled Tribes and other categories and
shall
notify
the
vacancy
to
the
Employment Exchange and may also
invite application directly from the persons
who have their names registered in the
Employment Exchange and in this regard
the Appointing Authority shall issue an
advertisement in a local daily newspaper
besides posting the notice for the same on
the notice board. All such applications
shall be placed before the Selection
Committee.
Thereafter,
the
Selection
Committee shall interview and select the
candidates for various posts. Rules 16
provides for constitution of the Selection
Committee, consisting of the Appointing
Authority, an officer belonging to the
Scheduled Caste and Scheduled Tribe and
one officer belonging to the minority
community.

10. In the present case neither any
Selection Committee has been constituted
nor the petitioner has been interviewed.
The Procedure contemplated under Rule
19 has also not been followed. Only one
application of the petitioner has been
entertained on which the petitioner has
been appointed.

11. Thus, it is apparent that the
appointment of the petitioner was without
following the Rules. The appointment of
the petitioner was motivated by extraneous
consideration
and
as
a
result
of
favouritism. The petitioner is not able to
justify his appointment under the Rules. In
the appointment letter itself it was made
clear that the appointment of the petitioner
was wholly temporary and could be
terminated without any prior notice.
Therefore, even if the termination order
has been passed without giving any
opportunity to the petitioner, the same
cannot be said to be illegal. The petitioner
has fullest opportunity in this Court to
assail the impugned order on merit but the
petitioner could not do so and made no
submission in this regard. Merely because
the petitioner has worked under the interim
order of this Court, the petitioner's
appointment cannot be justified and the
petitioner cannot be allowed to continue.
The illegal appointment of the petitioner
has taken away the rights of the several
persons, who were also entitled for the
appointment and could be better candidates
but they were deprived to exercise their
rights. Therefore, in such a situation, the
petitioner is not entitled for any equitable
considerable.

12. In my view, the initial
appointment of the petitioner is de horse to
the Rules, the equity has no role and on
equitable
consideration
the
petitioner
cannot be allowed to continue on the
ground that he has worked for long period
under the interim order of this Court. It
would amount to encourage the illegal
appointments, depriving the right of the
legitimate candidates. Reliance is placed
on the Constitution Bench decision of the
Apex Court in the case Secretary, State of
Karnataka and others Vs. Uma Devi (2)
and others, reported in 2006 (4) SCC-1. I
have perused the decision of the Apex
Court in the case of Shrawan Kumar Jha
Vs. State of Bihar (supra). The fact of such
case was entirely different. In the said case,
the appointments have been cancelled
because the District Superintendent of
Education had no authority to make the
appointments while the same has been
1378 INDIAN LAW REPORTS ALLAHABAD SERIES [2012

disputed by the petitioner and in such a
situation the Apex Court has held that
before
cancelling
the
appointment,
opportunity should be given. In the case of
Girish Chandra and others vs. Union of
India and others (supra), it is not clear that
what was the condition of the appointment
and the allegation was that the termination
was not in accordance with the terms and
conditions of their services. The case of
Ratnakar Chaubey vs. Deputy Director of
Education Vth Region, Varanasi and
others (supra) the facts of the case are
entirely different and is not applicable to
the present case.

13. In Committee of Management
Arya Nagar Inter College v. Sri Kumar
Tiwari, 1997 (4) SCC 388: AIR 1997 SC
3071, the services of the respondent came
to be terminated on 30th June, 1988,
whereafter he obtained interim order and
continued thereunder. Thus, he continued
in service not by virtue of his own right
under an order of appointment, but on
account of interim order and the Court,
thus, held that no benefit of such
continuance can be allowed. In South
Eastern Coalfields Ltd. vs. State of M.P.
And others, 2003 (8) SCC 648: (AIR
2003 SC 4482), the Court recognized the
principle that wrong order should not be
perpetuated
by
keeping
it
alive.
Recognizing the maxim auctus curiae
neminem gravabit, it was held that no one
shall suffer by an act of the Court and such
a rule is not confined to an erroneous act of
the Court but act of the Court embraces
within its purview all such acts as to which
the Court may form an opinion in any legal
proceedings that the Court would not have
so acted had it been correctly apprised of
the facts and law. It is duty of the Court to
apply the restitution putting the parties in
the same position as they would have been,
had the order, subsequently found to be
erroneous by the Court, would not have
been passed. In para 28 of the judgment, it
was held (para 26 of AIR).

"The injury, if any, caused by the
act of the Court shall be undone and the
gain which the parties would have
earned unless it was interdicted by the
order of the Court would be restored to
or conferred on the party by suitably
commanding the party liable to do so.
Any opinion to the contrary would lead
to unjust if not disastrous consequences.
Litigation may turn into a fruitful
industry. Though litigation is not
gambling yet there is an element of
chance in every litigation. Unscrupulous
litigants
may
feel
encouraged
to
approach the Court persuading the
Court to pass interlocutory orders
favourable to them by making out a
prima facie case when the issues are yet
to be heard and determined on merits
and if the concept of restitution is
excluded from application to interim
orders, then the litigant would stand to
gain by swallowing the benefits yielding
out of the interim order even though the
battle has been lost at the end. This
cannot be countenanced." (emphasis
added)

14. Considering from another angle,
where an interim order is passed and the
writ petition is ultimately dismissed, the
effect would be as if no order was ever
passed. That being so, the incumbent does
not gain on the basis of mere continuance
since he has no legal or valid right to
continue. An interim order passed by the
Court merges with the final order and,
therefore, the result brought by dismissal
of the writ petition is that the interim order
becomes non est.
3 All] Virendra Singh Yadav V. Collector, Ghazipur and others

1379

15. A Division Bench of this Court
in Shyam Lal v. State of U.P., AIR 1968
Allahabad , while considering the effect of
dismissal of writ petition on interim order
passed by the Court has laid down as
under:

"It is well settled that an interim
order merges in the final order and does
not exist by itself. So the result brought
about by an interim order would be non
est in the eye of law if the final final
order grants no relief. The grant of
interim relief when the petition was
ultimately dismissed could not have the
effect to postponing implementation of
the order of compulsory retirement. It
must in the circumstances take effect as
if there was no interim order."

16. The same principle has been
reiterated in the following cases:

(A) AIR 1975 Allahabad 280, Sri
Ram Charan Das v. Pyare Lal.

"In Shyam Lal v. State of U.P., AIR
1968 All 139, a Bench of this Court has
held that orders of stay or injunction are
interim orders that merge in final orders
passed in the proceedings. The result
brought about by the interim order
becomes non est in the eye of law if final
order grants no relief. In this view of the
matter it seems to us that the interim stay
became non est and lost all the efficacy,
the Commissioner having upheld the
permission which became effective from
the date it was passed."

(B) 1986 (40 LCD 196, Shyam
Manohar Shukla v. State of U.P.

"It is settled law that in interim order
passed in a case which is ultimately
dismissed is to be treated as not having
been passed at all (see Shyam Lal v. state
of Uttar Pradesh, Lucknow), AIR 1968
Allahabad 139 and Sri Ram Charan Das v.
Pyare Lal, AIR 1975 Allahabad 280
(DB)."

(C)
AIR
1994
Allahabad
273,
Kanoria Chemicals & Industries Ltd. v.
U.P. State Electricity Board. (Para 7).

"After the dismissal of the writ
petitions wherein notification dated 21-41990 was stayed, the result brought about
by
the
interim
orders
staying
the
notification, became non est in the eye of
law and lost all its efficacy and the
notification became effective from the
beginning."

17. In the case of Raghavendra Rao
Etc. v. State of Karnataka and others, etc.,
reported in JT 2009 (2) SC 520, the Apex
Court held as follows:

18. It is now a well-settled principle
of law that merely because an employee
had continued under cover of an order of
Court, he would not be entitled to any right
to be absorbed or made permanent in the
service . This Court in Uma Devi (3)
(supra), held as under :

"Thus, it is clear that adherence to
the
rule
of
equality
in
public
employment is a basic feature of our
Constitution and since the rule of law is
the core of our Constitution, a Court
would
certainly
be
disabled from
passing an order upholding a violation
of Article 14 or in ordering the
overlooking of the need to comply with
the requirements of Article 14 read with
Article
16
of
the
Constitution.
Therefore, consistent with the scheme
1380 INDIAN LAW REPORTS ALLAHABAD SERIES [2012

for public employment, this Court while
laying down the law, has necessarily to
hold that unless the appointment is in
terms of the relevant rules and after a
proper competition among qualified
persons, the same would not confer any
right on the appointee. If it is a
contractual
appointment,
the
appointment comes to an end at the end
of the contract, if it were an engagement
or appointment on daily wages or casual
basis, the same would come to an end
when it is discontinued. Similarly, a
temporary employee could not claim to
be made permanent on the expiry of his
term of appointment. It has also to be
clarified
that
merely
because
a
temporary employee or a casual wage
worker is continued for a time beyond
the term of his appointment, he would
not be entitled to be absorbed in regular
service or made permanent, merely on
the strength of such continuance, if the
original appointment was not made by
following a due process of selection as
envisaged by the relevant rules. It is not
open to the court to prevent regular
recruitment at the instance of the
temporary employees whose period of
employment has come to an end or of ad
hoc employees who by the very nature of
their appointment, do not acquire any
right. High Courts acting under Article
226 of the Constitution of India, should
not ordinarily issue directions for
absorption,
regularization,
or
permanent
continuance
unless
the
recruitment itself was made regularly
and in terms of the constitutional
scheme. Merely because, an employee
had continued under cover of an order
of Court, which we have described as
'litigious employment' in the earlier part
of the judgment, he would not be
entitled to any right to be absorbed or
made permanent in the service. In fact,
in such cases, the High Court may not
be justified in issuing interim directions,
since,
after
all,
if
ultimately the
employee approaching it is found
entitled to relief, it may be possible for it
to mould the relief in such a manner
that ultimately no prejudice will be
caused to him, whereas the interim
direction to continue his employment
would hold up the regular procedure for
selection or imposed on the State the
burden of paying an employee who is
really not required. The courts must be
careful in ensuring that they do not
interfere unduly with the economic
arrangement of its affairs by the State
or
its
instrumentalities
or
lend
themselves the instruments to facilitate
the bypassing of the constitutional and
statutory mandates."

19. Recently in Official Liquidator
v. Dayanand & Ors. [JT 2008 (11) SC
467 ; 2008 (10) SCC 1], this Court has
reiterated the same view.

20. In the facts and circumstances,
stated above, I do not find any merit,
which requires interference by this Court.
On the facts and circumstances, I direct the
District Magistrate to make inquiry that
who are the persons involved in such
illegal appointment and necessary action
be taken against them.

21. In the result, the writ petition fails
and is dismissed with costs of Rs.25,000/-.
---------
3 All] Oriental Insurance Comp. Ltd. Lko. V. Smt. Vijay Laxmi and others

1381
REVISIONAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 06.11.2012

BEFORE
THE HON'BLE SAEED-UZ-ZAMAN SIDDIQI, J.

Civil Revision No. 118 of 2012

Oriental Insurance Comp. Ltd. Lko.Throu
Its Manager

 ...Petitioner
Versus
Smt. Vijay Laxmi and others

 ...Respondents

Counsel for the Petitioner:
Sri Waquar Hashim

Counsel for the Respondents:
....................................

Code of Civil Procedure-Section 115revision-maintainability
against
order
rejecting
amendment
application
by
accident claim Tribunal-being interlocutory
in nature-revision-held-not maintainable.

Held: Para-8

In view of the above, revision is not
maintainable
and
deserves
to
be
dismissed. However it is made clear that
the Hon'ble Apex Court in the case of
National Insurance Co. Ltd. v. Swaran
Singh and others, (2004) 3 SCC 297 and in
many other cases has repeatedly held that
if the person driving a motor vehicle, at the
time of accident, was not having a valid
driving licence, the insurance company has
to compensate the claimant, with a right
to recover it from the owner.
Case Law discussed:
AIR 1966 SC 153; AIR 2002 SC 559; AIR 2003
SC 2434; (2004) 3 SCC 297

(Delivered by Hon'ble Saeed-Uz-Zaman
Siddiqi, J.)

1. By means of this revision petition,
the revisionist has prayed for setting aside
order dated 17.09.2012, passed by the
Motor
Accident
Claims
Tribunal
(Additional District Judge), Barabanki, in
MACT Case no.91 of 2009.

2. Heard learned counsel for the
revisionist and perused the record.

3. Brief facts of the case are that one
Smt. Vijay Laxmi (opposite party no.1)
filed the claim petition against the
revisionist and opposite party no.4 and 5.
The revisionist / insurance company filed
written statement on 9.9.2011, which was
prepared
on
24.06.2011.
The
case
proceeded by the Tribunal and evidence
was concluded, arguments were heard and
24.08.2012 was fixed for delivery of
judgment. The Insurance Company moved
amendment application paper no.60-B for
addition of plea regarding driving licence,
which has been rejected by the learned
Court below.

4. The amendment has been sought at
a belated stage and no explanation for
moving amendment application after such a
long delay has been given by the revisionist.
In view of this fact the learned Tribunal
rightly observed that the amendment
application has been moved with intention
to delay the disposal of the case, which is
malafide.

5. The Hon'ble Apex Court in the case
of Pandurang Dhondi Chougule and
others Vs. Maruti Hari Jadhav and others,
reported in AIR 1966 SC, 153 has held as
under:-

".............It is well-settled that a plea of
limitation or a plea of res judicata is a plea
of law which concerns the jurisdiction of the
Court, which tries the proceedings. A
finding on these pleas in favour of the party