Allahabad High Court
State Of U.P. Thru. Secy Animal ... vs Kamlesh Kumar Gupta on 9 November, 2020
Equivalent citations: AIRONLINE 2020 ALL 2643
Bench: Pankaj Mithal, Saurabh Lavania
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Court No. - 1 Case :- SPECIAL APPEAL DEFECTIVE No. - 277 of 2020 Appellant :- State Of U.P. Thru. Secy Animal Husbandry Lko. & Ors. Respondent :- Kamlesh Kumar Gupta Counsel for Appellant :- C.S.C. Counsel for Respondent :- Rajesh Kumar Singh Hon'ble Pankaj Mithal,J.
Hon'ble Saurabh Lavania,J.
Heard learned Counsel for the parties.
The delay of 238 days in filing the Special Appeal is condoned as the same has not been opposed and reasons given in the affidavit filed in support of application for condonation of delay (C.M.Application No. 63060 of 2020), are sufficient, in our view, to condone the delay in filing the present appeal.
Sri Rajesh Kumar Singh Advocate, has filed Vakalatnama on behalf of the respondent, which is taken on record.
Heard Sri Vivek Kumar Shukla, learned Counsel appearing for the appellant-State and Sri Rajesh Kumar Singh, learned Counsel for the respondent.
The appeal is directed against the judgment and order dated 20.01.2020 of the learned Single Judge passed in Writ Petition No. 200(S/S) of 1996 (Kamlesh Kumar Gupta Versus State of U.P. and Others).
The learned Single Judge has allowed the writ petition in terms of judgment and order dated 24.01.2019 passed in Writ Petition No. 331 (S/S) of 1996 (Bhanu Pratap Verma and others), against which Special Appeal(D) No. 192 of 2019 was filed, which was dismissed on 23.05.2019. In SLP No. 17925 and 17298 of 2019, the Hon'ble Supreme Court vide judgment and order dated 09.08.2019 modified the judgment in following terms:-
"Be that as it may, having gone through the material placed on record, we are of the opinion that the Single Bench as well as the Division bench are justified in holding that the respondents' appointments were not illegal though there are certain irregularities.
Since the respondents are out of job from 1995 onwards, in our considered opinion, interest of justice would be met if the respondents are not provided continuity of service as well as back wages from the date of the order of the Single Bench. Ordered accordingly. With this modification, the impugned judgments are upheld. The special leave petitions stand disposed of.
Pending application(s), if any, stands disposed of accordingly".
The short controversy before the Writ Court was that whether after the appointment pursuant to the advertisement, interview and joining can be cancelled without affording opportunity of hearing on the pretext that while making the aforesaid selection, the Rules have not been followed and certain anomalies took place in making the selection.
The Writ Court while dealing with the aforesaid aspect of the matter in allowing a batch of writ petitions held that the petitioners have been selected strictly in accordance with law, subject to some irregularities which could have been cured and that irregularities does not permit the authority concerned to cancel the selection without affording opportunity of hearing, therefore, the impugned order of cancelling the appointment of petitioners was liable to be quashed and was accordingly quashed.
The Writ Court further directed that the petitioners therein shall be treated to continue in service on the post which they had joined, but they shall not be entitled for the salary for which they had not discharged their duties and for all other purposes, they shall be deemed to be in service. Thereafter, the matter was taken up by the State before the Division Bench through Special Appeal, which was also dismissed with the following observations, which reads as under:-
"It would be appropriate to state that learned Single Bench while accepting the petition for writ placed heavy reliance upon a judgment of Hon'ble Supreme Court in Joginder Pal Versus State of Pubjab and others reported in (2014) 6 SCC 644. In the case aforesaid, the Court held that the issue of entire selection process having been vitiated would have arisen only if there would have been any finding that it was not possible to distinguish cases of tainted from non-tainted ones and there was a possibility that all of them got the benefit of wrong doings of some person and his accomplices.
In the instant matter, it is not the case of the appellants that the tainted persons could have not been identified from among all the aspirants and the selected persons who participated in the process of selection. So far as the law laid down in the case of Municipal Corporation, Jabalpur Versus Om Prakash Dubey (supra) is concerned that does not contain the facts to ensure its application in the instant matter.
In the case aforesaid, the Apex Court framed a question in the terms "is there any distinction between "irregular appointment" and "illegal appointment"? The distinction between the two terms is apparent. In the event the appointment is made in total disregard of the constitutional scheme as also the recruitment rules framed by the employer, which is State within the meaning of Article 12 of the Constitution of India, the recruitment would be an illegal one; whereas there may be cases where, although, substantial compliance with the constitutional scheme as also the rules has been made, the appointment may be irregular in the sense that some provisions of the rules might not have been strictly adhered to."
From perusal of the question considered by Hon'ble Supreme Court, it is apparent that the same was with regard to total disregard of the constitutional scheme as also the recruitment rules framed by the employer. No such rampant scheme and the statutory rules is alleged in the instant matter. In view of that, the judgment aforesaid is having no application in the instant matter.
For the reasons given above, we are not inclined to interfere with the judgment impugned dated 24.01.2019 passed by learned Single Bench."
The aforesaid, order was modified by the Hon'ble Supreme Court and it was observed that interest of justice would be met, if the petitioners therein are not provided continuity of service as well as back wages from the date of order of the Writ Court. It is in view of the aforesaid judgment and order of the Writ Court and the judgment of Division Bench passed in Special Appeal (Defective) as well as the Hon'ble Supreme Court, that the learned Single Judge has decided the writ petitions by the impugned order.
Since the judgment and order under appeal of the learned Single Judge is based on the judgment of the Writ Court passed in the batch of writ petitions, which has not been quashed/set aside by the higher Courts including the Hon'ble Supreme Court and is final, as such we do not find that learned Single Judge committed any error of law in passing the judgment and order under appeal.
The special appeal, for reasons aforesaid, is devoid of merits and it is dismissed accordingly.
Order Date :- 9.11.2020 Jyoti/-