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Judgment
Mohammad Yaqoob Mir, CJ.
This intra-court appeal is directed against the order dated 21.09.2016 passed by the learned Single Judge in WP (C) No.168 (SH) of 2013. By virtue of the order impugned, on the submission of Mr. Raghvendra Jha, learned counsel for the petitioners therein, petition was dismissed as withdrawn. Said learned counsel for the petitioners had placed an application on record stating therein that he has the instructions to withdraw the said petition. Learned counsel for the respondents had not opposed, accordingly writ petition was dismissed as withdrawn.
An application for restoration bearing Misc. Case No.94 of 2017 was filed for setting aside the withdrawal order i.e. impugned order dated 21.09.2016, same was dismissed by the learned Single Judge on 31.05.2017 opining therein that he could not alter or recall his own order. The petitioners, if so advised, may approach the Division Bench. This is how intra-court appeal thereafter has been filed.
This case has its own peculiar facts and features. The cause of the petitioners has remained to be redressed because their cause got complicated in view of apparent misunderstanding between the petitioners and the first counsel thereafter the second counsel engaged. In order to make the position clear and for appreciating the matter in its right perspective, precise factual background is advantageous to be noticed.
The appellants (petitioners) in their writ petition being WP (C) No.168 (SH) of 2013 had projected their grievances relatable to the promotion to the rank of Naib/Subedar AA Vehicle equal to M Tech B Vehicle. Further, they had prayed for classification pay, group pay, appointment pay, course pay and other allowances as were allegedly granted to similar situated personnel in the force as well as the counterparts in different Central Para Military Forces under the Ministry of Home Affairs. During pendency of the said petition, one more petition was filed bearing WP (C) No.186 of 2016 wherein further grievances were projected, same was disposed of vide order dated 21.06.2016 with liberty to the petitioners to assail the grievances in WP (C) No.168 (SH) of 2013 i.e. earlier pending writ petition.
Earlier when first writ petition WP (C) No.168 (SH) of 2013 was filed Mr. R Jha, Advocate was engaged as counsel by the petitioners but later on while filing second petition, they had engaged Mr. Hara Govind Baruah. However, Mr. Jha, Advocate earlier engaged had issued no objection.
When WP (C) No.168 (SH) 2013 was taken up for consideration, Mr. Jha, Advocate under the impression that a fresh petition has been filed, therefore, WP (C) No.168 (SH) 2013 would not survive had submitted that he had the instructions to withdraw. In support whereof, he has filed a self signed application stating therein that he had the instructions to withdraw. It is in the same background he had made submission which were recorded and writ petition was dismissed vide order impugned. Faced with the strange position, the basic cause of the petitioners remained as it was and in a way the door for seeking justice in effect was closed for them.
The application seeking restoration was not tenable because petition was not dismissed in default. The learned Single Judge in the background of the facts and stated position has dismissed the application with liberty to the petitioners to avail remedy before the Division Bench.
The order impugned passed by the learned Single Judge apparently has been passed on the submission of earlier engaged counsel Mr. R Jha. No illegality is noticed in the order. But now when the whole background of the case was projected, the question arose as to whether by declining to interfere in the matter, cause of justice would be advanced or defeated. The petitioners with all bon fide had filed the petition and were pursuing legal course, in the process, a sort of misunderstanding gave rise to such a situation where-from, it has become difficult for the petitioners to come out that too for no fault of their own.
In fact what appears to have happened is that Mr. R Jha, Advocate who had filed first petition No.168 (SH) of 2013 was instructed to withdraw the petition in view of filing of second petition WP (C) No.186 of 2016 through second engaged counsel. Mr. R Jha was not informed about the order passed in WP (C) No.186 of 2016, so a miscommunication and resultant misunderstanding.
Perusal of the record reveals that WP (C) No.168 (SH) of 2013 was ripe for final hearing but for later developments i.e. to incorporate their grievances as were projected in the subsequent filed petition WP (C) No.186 of 2016.
Mr. K Paul, learned counsel for the respondents was right in his submission that there is nothing illegal in the order passed by the learned Single Judge but when confronted with the position as stated above coupled with the facts of misunderstanding, submits that it was for the appellants to take care of their own rights.
We have considered the submissions of learned counsel for the parties and the entire record in our considered view, the order impugned will harshly operate against the rights of the appellants, faced with such a situation which has effect of defeating the cause of justice, Court cannot be said to be without power that too when appeal arise out of a petition filed under Article 226 of the Constitution of India, whereunder scope is wide enough except for self imposed restrictions. By allowing the appeal what would happen is that the main writ petition will be decided on merits same shall be in consonance with law.
Therefore, for the stated facts, reasons and for advancing cause of justice, we allow the appeal and set aside the order impugned. WP (C) No.168 (SH) of 2013 as such is relegated to the position as it existed prior to the impugned order dated 21.09.2016. Registry to take steps for listing it before the Bench having roster.
Appeal succeeds shall stand disposed of as above.