ANIL KUMAR Vs. STATE OF UTTARAKHAND AND ANR.

JUDGEMENT

(1.) THE writ petition was filed in 2004 contending that in breach of the law governing the field, no disabled person was appointed, despite the advertisement clearly held out that there is reservation for disabled persons. It was contended that no such appointment was given in view of a letter dated 21st July, 2003, written by Additional Secretary, Uttarakhand, to Secretary, Public Service Commission. This writ petition was permitted to be dismissed for default on 19th November, 2010.

(2.) AN application has been filed for restoration of the writ petition and for recalling the order of dismissal dated 19th November, 2010. Since there was some delay in filing the restoration application, an application has also been filed for condonation of delay in filing the restoration application. The reason for permitting the writ petition to be dismissed for default is that the Advocate engaged by the Petitioner was busy in another court at the time when the writ petition was taken up for consideration. That is no ground or just reason for permitting a writ petition to be dismissed for default. Since that is the reason for dismissal, there is no reason, far less any reasonable reason, for condonation of delay in filing the application for restoration. The Advocate, for whose default dismissal of the writ petition took place, should be deemed to have come to know about the same the moment dismissal took place or soon thereafter. There was no just reason for him not to communicate the Petitioner of his default on the same date or within a reasonable period there from and, thereupon, the Petitioner to approach for recalling the order of dismissal within time. We are, therefore, of the view that no ground, far less any reasonable ground, has been made out either for condonation of delay in filing the restoration application or for restoring the writ petition by recalling the order of dismissal. We are, at the same time, of the view that the Petitioner suffered because his chosen Advocate sank him in the middle of the sea for no just reason. In such situation, we would have dismissed both the applications with exemplary costs. We have, however, restrained ourselves from doing so only on the ground that, if we do not allow the restoration application and consider the writ petition, there will be such infraction of law by the Additional Secretary, Uttarakhand, that the same would become beyond retrieval. We, accordingly, allow the application for condonation of delay as well as the application for restoration.

(3.) IN the counter affidavit, State Government has purported to contend that it has not yet been able to identify posts in establishments, which can be reserved for persons with disability. Because the State Government has not discharged one of its legal obligations on time, the same cannot, in law, permit the State Government to deny a right given by an appropriate legislature to a class of persons. We, accordingly, strike down that portion of the communication dated 21st July, 2003, referred to above, which purported to deny reservation for disabled / handicapped persons in relation to appointments, being the subject matter of the writ petition.