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Patna High Court

Sandip KumarversusThe Union of India

Decided
Disposal
ALLOWED

Holding

The appellate order dated 25‑10‑2024 is set aside and the appellate authority is directed to pass a fresh order on merit.

Summary

The petitioner, Sandip Kumar, a former employee of the Indo‑Tibetan Border Police (ITBP), was removed from service by an order dated 23‑01‑2016. He filed a writ petition seeking liberty to appeal, which the High Court granted, and the petition was subsequently withdrawn. He then filed an appeal before the ITBP appellate authority, which was dismissed on the ground of delay without consideration of merit. The petitioner challenged this appellate order by filing a writ of certiorari, arguing that once the writ court grants liberty to appeal, the limitation period should not apply and the appeal must be decided on its merits. The Court examined Order XXIII Rule 1(3) and Rule 1‑A(2) of the Code of Civil Procedure, 1908, concluding that a fresh proceeding instituted on such permission is not subject to limitation. Accordingly, the appellate order was set aside and the petitioner was directed to obtain a fresh order on merit.

Issues considered

  • Whether an appellate authority must decide an appeal on merit after the writ court has granted liberty to prefer the appeal.
  • Whether the limitation period applies to a fresh proceeding instituted under Order XXIII Rule 1(3) and Rule 1‑A(2) of the CPC.

Legislation cited

Subjects

  • service removal
  • writ of certiorari
  • limitation
  • fresh suit
  • Order XXIII CPC
  • appeal on merit
  • ITBP

Judgment

         IN THE HIGH COURT OF JUDICATURE AT PATNA
                   Civil Writ Jurisdiction Case No.1200 of 2025
     ======================================================
     Sandip Kumar Son of Sri Rajendra Paswan, Resident of Village-
     Chhotikesopur, P.O. and P.S.- Jamalpur, District- Munger.

                                                               ... ... Petitioner/s
                                      Versus
1.   The Union of India through Inspector General of Indo Tibbtan Border Police
     Force, North West Frontier, New Delhi, Home Ministry, Govt. of India.
2.   Inspector General ITBP, East Frontier Head Quarter 6th Floor Kendriya
     Bhawan Sector-H, Aliganj, Lucknow, U.P.
3.   The Commandant, 51 BN, Indo Tibbtan Border Police Force, North West
     Frontier, MHA, Govt. of India, P.O.- Punjab University District- Patiala
     (Punjab).
4.   The Deputy Inspector General (Establishment), Directorate Indo Tibbtan
     Border Police Force.

                                               ... ... Respondent/s
     ======================================================
     Appearance :
     For the Petitioner/s   :      Mr.Raja Ram Mishra, Adv.
     For the Respondent/s   :      Mr.Awadhesh Kr. Pandey, Sr. CGC
                                   Mr.R.K. Sharma, CGC
                                   Mr.Abhishek Kr. Verma, Adv.
     ======================================================
     CORAM: HONOURABLE MR. JUSTICE DR. ANSHUMAN
     ORAL JUDGMENT
      Date : 13-03-2026

                  Heard Learned Counsel for the petitioner and Learned

      Counsel for the State.

                  2. The present writ petition has been filed with the

      following reliefs:-

                                1. That this is an application for
                      issuance of a writ of 'CERTIORARI' to quash the
                      appellate order dated 25/10/2024 passed by the
                      Inspector General ITBP, East Frontier Head
                      Quarter 6th Floor Kendriya Bhawan Sector-H,
                      Aliganj, Lucknow, U.P.(Respondents No.2) through
Patna High Court CWJC No.1200 of 2025 dt.13-03-2026
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                         which appeal against removal from service of the
                         petitioner has been rejected as time barred and to
                         quash the office order dated 23/01/2016 issued by
                         the Commandant 51 BN ITBP through which the
                         petitioner has been removed from the service with
                         effect from 18/01/2016.
                     3. Learned counsel for the petitioner submits that the

         petitioner has earlier moved before this Court in C.W.J.C.

         No.7432 of 2016 which was withdrawn with liberty to avail

         remedy of appeal vide order dated 13.10.2023.

                     4. Counsel further submits that when petitioner has

         preferred appeal before the concerned authority, his appeal was

         not considered on merit rather it has been rejected on the ground

         of delay. Therefore, the appellate order, which has not been

         considered on merit, be set aside.

                     5. Learned counsel for the Union of India firstly,

         sought time to file a counter-affidavit, but upon specific

         direction of the Court to clarify the position of law, he fairly

         submits that from the order dated 13.10.2023 passed by this

         Hon’ble Court in C.W.J.C. No.7432 of 2016, it is clear that

         liberty was granted to the petitioner to prefer appeal. He further

         submits that it is due to this reason, filing of appeal of the

         petitioner has been entertained by the authority and authority

         thereafter, passed order in accordance with law.
Patna High Court CWJC No.1200 of 2025 dt.13-03-2026
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                     6. In the light of the submissions made, the only legal

         point involved in the present case is that once liberty to prefer

         appeal has been granted by the Writ Court and thereafter, the

         petitioner preferred appeal before the authority concerned, then

         in that case, the Appellate Authority ought to pass order on merit

         or reject it on the ground of delay.

                     7. With regard to answering this legal point, it is

         necessary to quote the provision of Order XXIII Rule 1(3) &

         Rule 1-A(2) of the Code of Civil Procedure, 1908 which states

         as follows:-

                                     1(3) Where the Court is satisfied,-
                                     (a) that a suit must fail by reason of
                         some formal defect, or
                                     (b) that there are sufficient grounds for
                         allowing the plaintiff to institute a fresh suit for the
                         subject-matter of a suit or part of a claim,
                                         it may, on such terms as it thinks fit,
                         grant the plaintiff permission to withdraw from
                         such suit or such part of the claim with liberty to
                         institute a fresh suit in respect of the subject-matter
                         of such suit or such part of the claim,
                                     1-A(2) “Limitation law not affected by
                         first suit- In any fresh suit instituted on permission
                         granted under the last preceding rule, the plaintiff
                         shall be bound by the law of limitation in the same
                         manner as if the first suit had not been instituted.”
Patna High Court CWJC No.1200 of 2025 dt.13-03-2026
                                           4/5




                     8. Upon perusal of the provisions laid down under

         Order XXIII Rule 1(3) of the C.P.C., it transpires to this Court

         that the terms of withdrawal has been specified in the order

         sheet passed by the learned Single Judge, which states as

         follows:-

                                     “At the outset, the learned counsel for
                         the petitioner does not seek to press the present
                         writ petition, however, seeks liberty on behalf of the
                         petitioner to challenge the order of punishment
                         dated 30.11.2015, by filing appropriate appeal.
                         Liberty, so sought, is granted.
                                     2. The present writ petition stands
                         disposed off as not pressed.”
                     9. Here in the present matter, liberty to prefer

         appropriate appeal has been granted and with this direction, the

         writ petition was disposed of, but Rule 1-A(2) of Order XXIII of

         the C.P.C. states that “Limitation law not affected by first

         suit- clearly states that in any fresh suit instituted on permission

         granted under the last preceding rule, the plaintiff shall be bound

         by the law of limitation in the same manner as if the first suit

         had not been instituted.”

                     10. Meaning thereby, when any fresh proceeding

         instituted on permission granted by the Writ Court, then in that

         case, there is no question of limitation arise.
             Patna High Court CWJC No.1200 of 2025 dt.13-03-2026
                                                        5/5




                                  11. In this view of the matter, the appellate order

                      dated 25.10.2024 passed by the Inspector General ITBP, East

                      Frontier (respondent No.2) (annexure-P/6) is hereby set aside

                      and the present writ petition is hereby allowed.

                                  12. However, it is hereby directed to Respondent No.2

                      (Appellate Authority) to pass a fresh order on merit considering

                      this aspect that in the withdrawal of the earlier writ, liberty to

                      file appeal has been granted.

                                  13. With the aforesaid directions and observations, the

                      present writ application stands allowed.




                                                               (Dr. Anshuman, J)
Prakashmani/-
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CAV DATE                N/A
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