Ashwani Kumar Jha and ors. Vs. State of Bihar and ors.

- motor vehicles act, 1988 [c.a. no. 59/1988]section 173(1) proviso; [d. biswas, amitava roy & i.a.ansari, jj] appeal without statutory deposit but within limitation/or extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the court has the discretion either to grant time to make the deposit or not. no formal order condoning the delay is necessary, an order of adjournment would suffice. the provisions of limitation embodied in the substantive provision of the sub-section (1) of section 173 of the act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the court. no specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of section 173 is necessary. [new india assurance co. ltd. v md. makubur rahman, 1993 (2) glr 430 and new india assurance co. ltd. v smt rita devi, 1997(2) glt 406, approved. new india assurance co. ltd. v birendra mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. .....has been disputed by the respondents on the ground that the superintending engineer is not the competent authority to regularize the services of the petitioners. learned counsel for the petitioner submitted that since the date of appointment these petitioners have been continuously working on daily wages basis till date. in paragraph 20 of the counter affidavit, it is stated that list of the daily wages workers alongwith number of vacant posts have been sent to the department vide office letter no. 908 dated 18.10.1995 in which petitioners name have also been included for consideration. in paragraph 23 also the following facts have been stated, which reads as under :--'that with regard to the statements made in paragraph no. 3 of the writ application under reply it is stated that the petitioners were appointed prior to 1.8.1985 on daily wages employees and he is still working on the same post. proposal for his absorption in class ii and class iv posts has been sent to the government for the consideration.'4. having regard to the fact that admittedly petitioners were appointed before 1.8.1985 and they have been continuously and regularly working, respondents should consider the case of the petitioners for their absorption/regularization in service and take final decision as expeditiously as possible.5. for the aforesaid reasons, this writ application is disposed of with a direction to the respondents to take final decision in the matter of absorption/regularization as expeditiously as possible and preferably within a period of four months from the date of receipt of copy of this order.