Allahabad High Court
State Of U.P.Thru Collector Ayodhaya & ... vs Ram Anand on 2 July, 2021
Bench: Ritu Raj Awasthi, Dinesh Kumar Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Court No. - 1 Case :- SPECIAL APPEAL DEFECTIVE No. - 184 of 2021 Appellant :- State Of U.P.Thru Collector Ayodhaya & Ors. Respondent :- Ram Anand Counsel for Appellant :- C.S.C. Hon'ble Ritu Raj Awasthi,J.
Hon'ble Dinesh Kumar Singh,J.
On Application for condonation of delay (C.M. Application No.52898 of 2021) Heard Sri Manjive Shukla, learned counsel for the appellants.
The appeal has been filed with delay of 369 days. It is accompanied with an application for condonation of delay. The cause shown in the affidavit filed in support of the application for condonation of delay is sufficient and more particularly considering the Apex Court's order dated 27.04.2021, passed in Misc. Application No.665 of 2021 in SMW (C) No.3 of 2020; Cognizance for Extension of Limitation Vs. XXXX, we find it appropriate to condone the delay.
Accordingly, the application for condonation of delay is allowed and the delay in filing the appeal is condoned.
On memo
1. The present intra-Court appeal has been filed impugning the judgement and order dated 5.3.2020 passed by the learned Single Judge in Writ Petition No.4336 (SS) of 1988.
2. Learned Single Judge has allowed the writ petition filed by the respondent-petitioner and quashed the orders dated 15.2.1988 and 13.5.1988, whereby the respondent-petitioner's temporary services as Lekhpal were terminated. However, learned Single Judge has held that the respondent-petitioner would not be entitled for any salary for this period, but he would be entitled to pensionary benefits of the post including the pension and other allowances with effect from the date of superannuation, as admissible and revised from time to time. It has been further directed that the service period for 15.2.1988 till superannuation in the year 2012 shall be treated as qualifying service for calculation of pensionary benefits.
3. Respondent-petitioner was appointed as Lekhpal in Tehsil Bikapur on 1.5.1978 against a temporary vacancy and thereafter, he was appointed on 31.1.1982 against a permanent vacancy, which was caused on superannuation of one Lekhpal, Bhawani Prasad. Respondent-petitioner had appeared in special Lekhpal examination in the year 1981 and had completed the training. However, vide impugned order, the training undergone by the respondent-petitioner and the certificate issued pursuant thereof were cancelled and the respondent-petitioner's services were terminated on the ground that he had not completed three years of service as on 30.4.1980 as required by the Government Order dated 15.5.1980 for sending him for training etc.
4. Government Order dated 15.5.1980 provided three years service as on the cut off date on 8.5.1980 for undergoing the training of Lekhpal for appointment against a substantive vacancy. Since the respondent-petitioner had not completed three years of service as on the cut off date i.e. 8.5.1980, his certificate of training was cancelled and his services were terminated in the year 1988.
5. Under Rule 5 of U.P. Lekhpal Service Rules, 1958 there was only one source of recruitment to the post of Lekhpal i.e. only such candidates who had obtained Patwari or Lekhpal School Certificate and whose names had been brought on the list mentioned in Rule 6 were eligible for appointment to the service.
6. It is the Government Order dated 15.5.1980, which prescribed three years minimum service as Lekhpal on temporary basis, which would make eligible for undergoing the training. This requirement of three years is not prescribed in the statutory Rules. Learned Single Judge, therefore, has held that the requirement of three years service for undergoing the training, was a new condition which was not found in the statutory Rules and the executive could not have prescribed such a condition by issuing executive instructions. The executive instructions cannot supplant the statutory Rules and, therefore, even if the respondent-petitioner did not complete three years service, since it was not a requirement under the statutory Rules, the certificate could not have been cancelled and his services could not have been terminated.
7. Sri Manjive Shukla, learned Additional Chief Standing Counsel for the appellant has submitted that admittedly the respondent-petitioner did not complete three years service as Lekhpal on temporary post before the cut off date as prescribed by the Government Order dated 15.5.1980 and, therefore, it was a mistake on the part of the authorities that he was sent for training and, when it was discovered that the respondent-petitioner was not eligible for undergoing the training, the certificate was cancelled and his services were terminated. He has further submitted that the learned Single Judge has erred in concluding that the Government Order dated 15.5.1980 prescribing three years minimum service, would amount supplanting the statutory Rules. Since the statutory Rules did not prescribe the minimum period for undergoing the training, the lacuna/gap had been filled up by the executive instructions and, there was nothing wrong in the executive instructions to prescribe the minimum period of three years for undergoing the training of Lekhpal.
8. We have considered the submissions advanced on behalf of the appellants.
9. Respondent-petitioner was not at fault and there is no allegation that he had manipulated the record to be sent for training. The list was prepared at the Tehsil and, then he was sent for training. If it was prescribed under the Government Order that three years minimum service would be required for undergoing the training, it was for the authorities concerned not to send the respondent-petitioner for training. Further, the fact remains that respondent-petitioner was sent for training and after completion of the training, the certificate was issued and thereafter, his services were terminated in the year 1988 on the ground that he had not completed three years of service and the certificate was wrongly issued. If the respondent-petitioner was not sent for training in the year 1988, he could have been sent for training in the next year as per the Government Order dated 15.5.1980. Further, we agree with the finding of the learned Single Judge that in absence of any statutory prescription of three years minimum service for undergoing the training, by the executive instructions such a condition could not have been provided.
10. In view thereof, we do not find any error or illegality in the judgement and order passed by the learned Single Judge, impugned herein in this special appeal. It is accordingly dismissed, however, without any cost.
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(Dinesh Kumar Singh, J.) (Ritu Raj Awasthi, J.) Order Date :- 2.7.2021 Rao/-