Allahabad High Court
State Of U.P. And 4 Others vs Ritesh Kumar Yadav And 5 Others on 28 July, 2022
Bench: Pritinker Diwaker, Ashutosh Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 29 Case :- SPECIAL APPEAL DEFECTIVE No. - 238 of 2022 Appellant :- State Of U.P. And 4 Others Respondent :- Ritesh Kumar Yadav And 5 Others Counsel for Appellant :- Pranab Kumar Ganguli Counsel for Respondent :- Siddharth Khare Hon'ble Pritinker Diwaker,J.
Hon'ble Ashutosh Srivastava,J.
Civil Misc. Delay Condonation Application No. 01 of 2022:
Heard.
This is an application to condone the delay of 67 days in filing the appeal. The reasons for delay in filing the appeal has been satisfactorily explained in the affidavit filed in support of delay condonation application. The delay condonation application is allowed. The appeal is treated to be filed within time. Order on Appeal:
The instant intra-court appeal has been filed questioning the judgment and order dated 29.3.2022 passed by the learned Single Judge in Writ-A No. 4040 of 2022 (Ritesh Kumar Yadav and 2 others versus State of U.P. and 7 others) whereby the writ petition has been allowed and the writ petitioners have been held entitled to function as Assistant Teachers in their respective institutions and paid their arrears of salary and salary with other service benefits regularly month to month from the date of their respective appointments within 6 weeks.
Record reveals that the writ petition was filed praying for questioning the order dated 25.1.2022 passed by the Principal Secretary, Social Welfare-II, Government of U.P., Lucknow whereby and whereunder the approval letters approving the appointment of the petitioners as Assistant Teachers by the Zila Basic Shiksha Adhikari, Ghazipur were held to be forged, having been issued under the forged signature of the aforesaid authority and the appointments of the petitioners were accordingly, disapproved.
Learned counsel for the appellants has assailed the order of the learned Single Judge on the ground that the learned Single Judge proceeded to allow the writ petition even without calling for counter affidavit from the appellants who were arrayed as respondents in the writ petition. He submits that considering the factual controversy involved in the case as to whether the signatures of the Basic Shiksha Adhikari, Ghazipur were forged or not, the learned Single Judge ought to have invited a counter affidavit from the respondents in the writ petition (appellants herein) in order to test the veracity of the version of the petitioners and then proceed to allow the writ petition. This having not been done the order suffers from patent illegality and is liable to be set aside.
We find force in the submissions of the learned counsel for the appellants. Once the issue as to whether the writ petitioners were appointed without approval from the District Basic Education Officer or that the signature of the District Basic Education Officer was forged was under consideration, the learned Single Judge was required to call for a counter affidavit from the respondents in the writ petition (appellants herein) and thrash out the issue and only then proceed to pass the order allowing the writ petition. We are inclined to entertain the appeal and stay the effect and operation of the order of the learned Single Judge.
At this juncture, Shri Ashok Khare, learned Senior Counsel assisted by Shri Siddharth Khare, learned counsel for the respondents submits that this Court in stead of admitting the appeal and staying the effect and operations of the learned Single Judge may allow the appeal, set aside the order and remit the matter back to the learned Single Judge to decide the lis afresh after inviting the counter affidavit from the appellants, herein.
Learned counsel for the appellants has no objection.
Accordingly, with the consent of the parties, the intra-court appeal is allowed. The impugned judgment and order dated 29.3.2022 passed by the learned Single Judge is set aside. The learned Single Judge may proceed to decide the lis between the parties after calling for a counter affidavit from the appellants (respondents before the learned Single Judge). The intra-court appeal is decided, accordingly.
Order Date :- 28.7.2022
Ravi Prakash
(Ashutosh Srivastava, J.) (Pritinker Diwaker, J.)