MOHD. AYUB v.

STATE OF U.P. AND OTHERS (Civil Appeal No. 8200 of 2009)

NOVEMBER 20, 2009 [G.S. Singhvi and Asok Kumar Ganguly, JJ.]

[2009] 15 (Addl.) SCR 1095

The Judgment of the Court was delivered by

GANGULY, J.

Leave granted.

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. (para 30 page 154 of  

the report)].   

14. The learned Judges in Chaganti (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, (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 Amorer  

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.