Mohd. Ayub Vs. State of U.P. and others
EmailAppeal: Civil Appeal No. 8200 of 2009
[Arising out of Special Leave Petition (Civil) No. 4104 of 2009]
[From the Judgement and Order dated 09.09.2008 of the High Court of Judicature at Allahabad, Lucknow Bench, Lucknow U.P. in Special Appeal No. 513 (SB) of 2008]
[Arising out of Special Leave Petition (Civil) No. 4104 of 2009]
[From the Judgement and Order dated 09.09.2008 of the High Court of Judicature at Allahabad, Lucknow Bench, Lucknow U.P. in Special Appeal No. 513 (SB) of 2008]
Petitioner: Mohd. Ayub
Respondent: State of U.P. and others
Apeal: Civil Appeal No. 8200 of 2009
[Arising out of Special Leave Petition (Civil) No. 4104 of 2009]
[From the Judgement and Order dated 09.09.2008 of the High Court of Judicature at Allahabad, Lucknow Bench, Lucknow U.P. in Special Appeal No. 513 (SB) of 2008]
[Arising out of Special Leave Petition (Civil) No. 4104 of 2009]
[From the Judgement and Order dated 09.09.2008 of the High Court of Judicature at Allahabad, Lucknow Bench, Lucknow U.P. in Special Appeal No. 513 (SB) of 2008]
Judges: G.S. Singhvi & Asok Kumar Ganguly, JJ.
Date of Judgment: Nov 20, 2009
Appearances:
Appearances
Mr. B.P. Singh Dhakray, Mr. R.K. Singh, Mr. Shakti Singh Dhakray, Dr. Kailash Chand, Advocates, for the Appellant(s).
Mr. S.B. Upadhyay, Senior Advocate, Mr. S.K. Dwivedi, AAG, Mr. Manoj Kumar Dwivedi, Mr. Gunnam Venkateswara Rao, Advocates, with them for the Respondent(s).
Mr. B.P. Singh Dhakray, Mr. R.K. Singh, Mr. Shakti Singh Dhakray, Dr. Kailash Chand, Advocates, for the Appellant(s).
Mr. S.B. Upadhyay, Senior Advocate, Mr. S.K. Dwivedi, AAG, Mr. Manoj Kumar Dwivedi, Mr. Gunnam Venkateswara Rao, Advocates, with them for the Respondent(s).
Head Note:
Service and Labour Laws
Constitution of India, 1950
Articles 226, 14, 16 – General Clauses Act, 1897, Section 10 – Nomination for the post of Armourer – Information circulated on 10.04.2003 – Applications of interested candidates to be made available by 14.04.2003 and to be accompanied by medical certificate – Applicant submitted the application alongwith educational qualification on 14.04.2003 but no medical certificate given – Said certificate given on 15.04.2003 – 11th April was gazetted holiday – 12th April was second Saturday and 13th April was Sunday – 14th April was Ambedkar Jayanti, due to which medical certificate could not be obtained – Certificate obtained on 15.04.2003 and submitted on that very day. Rejection of applications by the applicant and rejection of the writ petition, held, was not justified as the court below did not consider the provision of Section 10 of the General Clauses Act. Application was well within time and the application directed to be considered accordingly. Harinder Singh’s case [AIR 1957 SC 271] relied and followed. Case Law discussed.
Constitution of India, 1950
Articles 226, 14, 16 – General Clauses Act, 1897, Section 10 – Nomination for the post of Armourer – Information circulated on 10.04.2003 – Applications of interested candidates to be made available by 14.04.2003 and to be accompanied by medical certificate – Applicant submitted the application alongwith educational qualification on 14.04.2003 but no medical certificate given – Said certificate given on 15.04.2003 – 11th April was gazetted holiday – 12th April was second Saturday and 13th April was Sunday – 14th April was Ambedkar Jayanti, due to which medical certificate could not be obtained – Certificate obtained on 15.04.2003 and submitted on that very day. Rejection of applications by the applicant and rejection of the writ petition, held, was not justified as the court below did not consider the provision of Section 10 of the General Clauses Act. Application was well within time and the application directed to be considered accordingly. Harinder Singh’s case [AIR 1957 SC 271] relied and followed. Case Law discussed.
Held:
The last date of submitting the application along with medical certificate was 14th of April, 2003, which was a gazetted holiday on account of Ambedkar Jayanti. The application of the applicant was incomplete only because it did not contain the medical certificate. The explanation of the appellant is that in view of the 14th April being a holiday and the previous days were also holidays, he could not obtain the medical certificate and he obtained it on the very next day i.e. 15th April and submitted it on that day itself. (Para 9)
In these circumstances, his application should have been considered on merit in view of the principles laid down in Section 10 of General Clauses Act. (Para 10)
The decisions of the learned Single Judge and that of the Division Bench of the High Court, which have been impugned before us are not based on sound principles. The order of the Single Bench dated 18.8.2008 is quashed as also the order dated 02.07.2003 passed by the respondent No.3-DIG, PAC Barriely section. Accordingly, the order of the Division Bench dated 9.9.2008 is also quashed. (Para 16)
The application filed by the appellant on the post of Constable Armourer Course is valid and should be considered as valid and the respondents are directed to take steps on the same in accordance with law. (Para 17)
Cases Reffered:
1. Huda and another v. Dr. Babeswar Kanhar and another [JT 2005 (11) SC 78] (Para 15)
2. Ghaganti Satyanarayana and others v. State of Andhra Pradesh [1986 (3) SCC 141] (Para 13)
3. N. Sureya Reddy v. State of Orissa [1985 Cri LJ 939 (Ori)] (Para 14)
4. (H.H. Raja) Harinder Singh v. S. Karnail Singh and others [AIR 1957 SC 271] (Para 11)
Foreign Case Referred:
1. Hossein Ally v. Donzelle ILR [1880 (5) Cal 906] (Para 15)
2. Ghaganti Satyanarayana and others v. State of Andhra Pradesh [1986 (3) SCC 141] (Para 13)
3. N. Sureya Reddy v. State of Orissa [1985 Cri LJ 939 (Ori)] (Para 14)
4. (H.H. Raja) Harinder Singh v. S. Karnail Singh and others [AIR 1957 SC 271] (Para 11)
Foreign Case Referred:
1. Hossein Ally v. Donzelle ILR [1880 (5) Cal 906] (Para 15)
JUDGEMENT:
GANGULY, J.
1. Leave granted.
1.1. This appeal is directed against the judgment and order dated 09.09.2008 passed by the
Division Bench of High Court of Allahabad, Lucknow Bench, Lucknow in Special Appeal No. 513 (S/S) 2008 whereby the learned Judges of the Division Bench were pleased to affirm the view taken by the Learned Single Judge in judgment and order dated 18.08.2008 by which the Writ Petition No. 5554 (S/S) of 2003 filed by the appellant was dismissed.
2. The material facts of the case are that information was circulated by the Commandant IInd battalion, PAC Sitapur, 4th Respondent, on 10.04.2003 to all the Branch Incharge/Commandant to make available the nominations of the constable having certain qualifications for the post of Armourer (herein after referred as said post). It was made clear that applications of the interested candidates will be made available to the Head Office by 14.04.2003 and no application sent thereafter will be considered.
3. It was also mentioned therein that a medical certificate from the Chief Medical Officer as per category A was required to be sent along with the application and no application would be accepted without the medical certificate.
4. The appellant submitted his application along with educational qualification on 14.04.2003. The medical certificate admittedly was not attached with this application dated 14.04.2003 but the medical certificate was submitted on 15.04.2003. In his Writ Petition, the appellant stated that there was a gazetted holiday on account of Ramnavami on 11th April, 12th April was closed for second Saturday, Sunday was on 13th April and Ambedkar Jayanti was on 14th April. As such from 11th April to 14th April 2003, the appellant could not get the medical certificate. He got the medical certificate on 15.04.2003 and submitted the same on 15.04.2003 itself. The appellant further stated that his name was not considered because he submitted his application on 14.04.2003 along with the educational certificates. However, even though he submitted his medical certificates on the next available day i.e. 15.04.2003, even then his application was not considered.
5. Aggrieved by this action of the respondent the appellant filed a writ petition No.2657 (SS) of 2003 before the High Court. The Hon’ble High Court vide its order dated 14.05.2003 directed the Respondent No.3-DIG, PAC Barriely section to pass a speaking order on the representation filed by the appellant. The substance of the said order is that since the appellant submitted his application with the educational qualifications on 14.04.2003 but submitted the medical certificate on 15.04.2003, the same could not be considered for the post of Armourer for non-production of medical certificate. It was stated in the impugned order of Respondent No. 2 dated 02.07.2003, the appellant is himself responsible for the delay in submission and as such his application is liable to be dismissed.
6. Challenging the said order dated 02.07.2003, the appellant filed another writ petition no. 5554 (S/S) of 2003. The said writ petition was also rejected on the same grounds on which the representation of the appellant was dismissed. The Appellate Bench of the High Court also took the
same view and dismissed the appeal by affirming the decision taken by the learned Single Judge.
7. It appears that both the learned Single Judge and the Appellate Bench of the High Court failed to take into consideration the provision of Section 10 of General Clauses Act and the principles of equity which are embodied in the said provision.
8. The provisions of Section 10 of General Clauses Act are set out below:
’10. Computation of time. – (1) Where, by any Central Act or regulation made after the commencement of this Act, any act or proceeding is directed or allowed to be done or taken in any court or office on a certain day or within a prescribed period, then, if the Court or office is closed on that day or the last day of the prescribed period, the act or proceeding shall be considered as done or taken in due time if it is done or taken on the next day afterwards on which the Court or office is open:
Provided that nothing in this Section shall apply to any act or proceeding to which the Indian Limitation Act, 1877 (15 of 1877), applies.
(2) This section applies also to all Central Acts and Regulations made on or after the fourteenth day of January, 1887.’
9. It is common ground that the last date of submitting the application along with medical certificate was 14th of April, 2003, which was a gazetted holiday on account of Ambedkar Jayanti. The application of the applicant was incomplete only because it did not contain the medical certificate. The explanation of the appellant is that in view of the 14th April being a holiday and the previous days were also holidays, he could not obtain the medical certificate and he obtained it on the very next day i.e. 15th April and submitted it on that day itself.
10. In these circumstances, his application should have been considered on merit in view of the principles laid down in Section 10 of General Clauses Act.
11. Section 10 of the General Clauses Act has come up for consideration in various cases before this Court and also different High Courts. In the case of (H.H. Raja) Harinder Singh v. S. Karnail Singh and others [AIR 1957 SC 271], a four-Judge Bench of this Court explained the object of Section 10 very lucidly. The learned Judges have held as under:
‘…Where, therefore, a period is prescribed for the performance of an act in a Court or office, and that period expires on a holiday, then according to the section the Act should be considered to have been done within that period, if it is done on the next day on which the Court or office is open. For that section to apply, therefore, all that is requisite is that there should be a period prescribed and that period should expire on a holiday.’ (Page 273 of the report)
12. The decision in the case of Harinder Singh (supra) was rendered in the context of an election dispute but the general principles explained therein apply to all cases.
13. Even while construing the provisions of Section 167 of Criminal Procedure Code, 1961, this Court accepted the same interpretation in respect of Section 10 of the General Clauses Act. [See Ghaganti Satyanarayana and others v. State of Andhra Pradesh [1986 (3) SCC 141].
14. The learned Judges in Ghaganti (supra) accepted the interpretation of Section 10 in the case of N. Sureya Reddy v. State of Orissa [1985 Cri LJ 939 (Ori)], and held that the principle enunciated in Section 10 of General Clauses Act should be invoked on consideration of justice and expediency.
15. Rather recently in the case of Huda and another v. Dr. Babeswar Kanhar and another [JT 2005
(11) SC 78 : 2005 (1) SCC 191], this Court held that there is a general principle that a party, prevented from doing an act for some reasons beyond his control, can do so at the first subsequent opportunity. The learned Judges further elaborated by saying that the underlying object of Section 10 is to enable a person to do what he should have done in a holiday, on the next working day. The learned Judges held that the said principle is based on doctrine that law does not compel the performance of an impossibility. In saying so, the learned Judges relied on an old decision of Calcutta High Court in the case of Hossein Ally v. Donzelle ILR [1880 (5) Cal 906]. This Court is in respectful agreement with the aforesaid principles.
16. Therefore, this Court holds that the decisions of the learned Single Judge and that of the Division Bench of the High Court, which have been impugned before us are not based on sound principles. The order of the Single Bench dated 18.8.2008 is quashed as also the order dated 02.07.2003 passed by the respondent No.3-DIG, PAC Barriely section. Accordingly, the order of the Division Bench dated 9.9.2008 is also quashed.
17. The application filed by the appellant on the post of Constable Armourer Course is valid and should be considered as valid and the respondents are directed to take steps on the same in accordance with law and within a period of six weeks from the date of service of this order upon them.
18. The appeal is thus allowed. There shall be no order as to costs.
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1. Leave granted.
1.1. This appeal is directed against the judgment and order dated 09.09.2008 passed by the
Division Bench of High Court of Allahabad, Lucknow Bench, Lucknow in Special Appeal No. 513 (S/S) 2008 whereby the learned Judges of the Division Bench were pleased to affirm the view taken by the Learned Single Judge in judgment and order dated 18.08.2008 by which the Writ Petition No. 5554 (S/S) of 2003 filed by the appellant was dismissed.
2. The material facts of the case are that information was circulated by the Commandant IInd battalion, PAC Sitapur, 4th Respondent, on 10.04.2003 to all the Branch Incharge/Commandant to make available the nominations of the constable having certain qualifications for the post of Armourer (herein after referred as said post). It was made clear that applications of the interested candidates will be made available to the Head Office by 14.04.2003 and no application sent thereafter will be considered.
3. It was also mentioned therein that a medical certificate from the Chief Medical Officer as per category A was required to be sent along with the application and no application would be accepted without the medical certificate.
4. The appellant submitted his application along with educational qualification on 14.04.2003. The medical certificate admittedly was not attached with this application dated 14.04.2003 but the medical certificate was submitted on 15.04.2003. In his Writ Petition, the appellant stated that there was a gazetted holiday on account of Ramnavami on 11th April, 12th April was closed for second Saturday, Sunday was on 13th April and Ambedkar Jayanti was on 14th April. As such from 11th April to 14th April 2003, the appellant could not get the medical certificate. He got the medical certificate on 15.04.2003 and submitted the same on 15.04.2003 itself. The appellant further stated that his name was not considered because he submitted his application on 14.04.2003 along with the educational certificates. However, even though he submitted his medical certificates on the next available day i.e. 15.04.2003, even then his application was not considered.
5. Aggrieved by this action of the respondent the appellant filed a writ petition No.2657 (SS) of 2003 before the High Court. The Hon’ble High Court vide its order dated 14.05.2003 directed the Respondent No.3-DIG, PAC Barriely section to pass a speaking order on the representation filed by the appellant. The substance of the said order is that since the appellant submitted his application with the educational qualifications on 14.04.2003 but submitted the medical certificate on 15.04.2003, the same could not be considered for the post of Armourer for non-production of medical certificate. It was stated in the impugned order of Respondent No. 2 dated 02.07.2003, the appellant is himself responsible for the delay in submission and as such his application is liable to be dismissed.
6. Challenging the said order dated 02.07.2003, the appellant filed another writ petition no. 5554 (S/S) of 2003. The said writ petition was also rejected on the same grounds on which the representation of the appellant was dismissed. The Appellate Bench of the High Court also took the
same view and dismissed the appeal by affirming the decision taken by the learned Single Judge.
7. It appears that both the learned Single Judge and the Appellate Bench of the High Court failed to take into consideration the provision of Section 10 of General Clauses Act and the principles of equity which are embodied in the said provision.
8. The provisions of Section 10 of General Clauses Act are set out below:
’10. Computation of time. – (1) Where, by any Central Act or regulation made after the commencement of this Act, any act or proceeding is directed or allowed to be done or taken in any court or office on a certain day or within a prescribed period, then, if the Court or office is closed on that day or the last day of the prescribed period, the act or proceeding shall be considered as done or taken in due time if it is done or taken on the next day afterwards on which the Court or office is open:
Provided that nothing in this Section shall apply to any act or proceeding to which the Indian Limitation Act, 1877 (15 of 1877), applies.
(2) This section applies also to all Central Acts and Regulations made on or after the fourteenth day of January, 1887.’
9. It is common ground that the last date of submitting the application along with medical certificate was 14th of April, 2003, which was a gazetted holiday on account of Ambedkar Jayanti. The application of the applicant was incomplete only because it did not contain the medical certificate. The explanation of the appellant is that in view of the 14th April being a holiday and the previous days were also holidays, he could not obtain the medical certificate and he obtained it on the very next day i.e. 15th April and submitted it on that day itself.
10. In these circumstances, his application should have been considered on merit in view of the principles laid down in Section 10 of General Clauses Act.
11. Section 10 of the General Clauses Act has come up for consideration in various cases before this Court and also different High Courts. In the case of (H.H. Raja) Harinder Singh v. S. Karnail Singh and others [AIR 1957 SC 271], a four-Judge Bench of this Court explained the object of Section 10 very lucidly. The learned Judges have held as under:
‘…Where, therefore, a period is prescribed for the performance of an act in a Court or office, and that period expires on a holiday, then according to the section the Act should be considered to have been done within that period, if it is done on the next day on which the Court or office is open. For that section to apply, therefore, all that is requisite is that there should be a period prescribed and that period should expire on a holiday.’ (Page 273 of the report)
12. The decision in the case of Harinder Singh (supra) was rendered in the context of an election dispute but the general principles explained therein apply to all cases.
13. Even while construing the provisions of Section 167 of Criminal Procedure Code, 1961, this Court accepted the same interpretation in respect of Section 10 of the General Clauses Act. [See Ghaganti Satyanarayana and others v. State of Andhra Pradesh [1986 (3) SCC 141].
14. The learned Judges in Ghaganti (supra) accepted the interpretation of Section 10 in the case of N. Sureya Reddy v. State of Orissa [1985 Cri LJ 939 (Ori)], and held that the principle enunciated in Section 10 of General Clauses Act should be invoked on consideration of justice and expediency.
15. Rather recently in the case of Huda and another v. Dr. Babeswar Kanhar and another [JT 2005
(11) SC 78 : 2005 (1) SCC 191], this Court held that there is a general principle that a party, prevented from doing an act for some reasons beyond his control, can do so at the first subsequent opportunity. The learned Judges further elaborated by saying that the underlying object of Section 10 is to enable a person to do what he should have done in a holiday, on the next working day. The learned Judges held that the said principle is based on doctrine that law does not compel the performance of an impossibility. In saying so, the learned Judges relied on an old decision of Calcutta High Court in the case of Hossein Ally v. Donzelle ILR [1880 (5) Cal 906]. This Court is in respectful agreement with the aforesaid principles.
16. Therefore, this Court holds that the decisions of the learned Single Judge and that of the Division Bench of the High Court, which have been impugned before us are not based on sound principles. The order of the Single Bench dated 18.8.2008 is quashed as also the order dated 02.07.2003 passed by the respondent No.3-DIG, PAC Barriely section. Accordingly, the order of the Division Bench dated 9.9.2008 is also quashed.
17. The application filed by the appellant on the post of Constable Armourer Course is valid and should be considered as valid and the respondents are directed to take steps on the same in accordance with law and within a period of six weeks from the date of service of this order upon them.
18. The appeal is thus allowed. There shall be no order as to costs.
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