Allahabad High Court
State Of U.P.Throu.Secy.Public Works ... vs Bajrang Singh And Another on 19 November, 2019
Author: Alok Mathur
Bench: Pankaj Kumar Jaiswal, Alok Mathur
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Court No. - 1 Case :- SPECIAL APPEAL DEFECTIVE No. - 267 of 2019 Appellant :- State Of U.P.Throu.Secy.Public Works Department Lko.& Ors. Respondent :- Bajrang Singh And Another Counsel for Appellant :- C.S.C. Counsel for Respondent :- I.H.Farooqui Hon'ble Pankaj Kumar Jaiswal,J.
Hon'ble Alok Mathur,J.
Order on Civil Misc. (Delay Condonation) Application No. 73854 of 2019
1. Heard learned Standing Counsel for the applicants-appellants and Sri I.H. Farooqui, learned counsel for the respondents.
2. This application under Section 5 of the Limitation Act has been filed for condonation of delay in filing the special appeal.
3. The appeal is time barred by 308 days.
4. Learned counsel for the applicant-appellants submits that immediately after receipt of the order dated 27.07.2018, passed by the learned Single Judge in Writ Petition No. 179 (S/S) of 2010 - Bajrang Singh Vs. State of U.P. and Others, the matter was referred to the Department, who later on obtained opinion from the Chief Standing Counsel and thereafter the Department referred the matter to the State Government as well as to the Law Department for grant of permission for filing a special appeal. The said permission was granted on 30.05.2019 and thereafter the appeal was filed on 01.07.2019. Therefore, due to procedural delay, the appeal could not be filed within time.
5. Considering the aforesaid, we are of view that delay in filing the appeal has been sufficiently explained.
6. The application is allowed.
7. Delay in filing the special appeal is condoned.
Order Date :- 19.11.2019
A. Verma
(Alok Mathur, J.) (Pankaj Kumar Jaiswal, J.)
Court No. - 1
Case :- SPECIAL APPEAL DEFECTIVE No. - 267 of 2019
Appellant :- State Of U.P.Throu.Secy.Public Works Department Lko.& Ors.
Respondent :- Bajrang Singh And Another
Counsel for Appellant :- C.S.C.
Counsel for Respondent :- I.H.Farooqui
Hon'ble Pankaj Kumar Jaiswal,J.
Hon'ble Alok Mathur,J.
1. Heard learned Standing Counsel for the appellants and Sri I.H. Farooqui, learned counsel for the respondents.
2. This intra Court appeal under Chapter VIII Rule 5 of the Allahabad High Court Rules, 1952 has been filed against the judgment and order dated 27.07.2018, passed by the learned Writ Court in Writ Petition No. 1179 (S/S) of 2010 - Bajrang Singh Vs. State of U.P. and Others, whereby the writ petition has been allowed.
3. The Writ Petition No. 1179 (S/S) of 2010 was filed challenging the order dated 17.02.2010, passed by the Superintending Engineer, Public Works Department, Mahatma Gandhi Marg, Lucknow. The writ Court while allowing the petition observed that the writ petitioner-respondent was promoted to Class III post by order dated 05.03.2013. The promotion was on the basis of his service record and against the quota earmarked for such employees also renders the petitioner liable to continue on the promoted post, and the writ Court allowed the writ petition.
4. Brief facts of the case are that the petitioner-respondent was initially appointed as 'Beldar' inthe year 1985 and was continuing in service but since his services were not regularized consequently he approached this Court by filing Writ Petition No. 9210 (S/S) of 1993 - Bajrang Singh Vs. State of U.P. and Others, claiming regularization. This Court vide order dated 02.08.1999, disposed of the writ petition with direction to the respondents to consider the petitioner-respondent for regularization against any Class IV post. This Court further directed that in case there is no post, the respondents shall create a supernumerary post for the work which was bring performed by the petitioner for such a long period. The appellants challenged the aforesaid order by filing Special Appeal No. 435 (S/B) of 2000 - State of U.P. and Others Vs. Sri Bajrang Singh, in which vide interim order dated 29.09.2000, the Division Bench stayed the creation of supernunumerary post, but in the meanwhile in compliance of the order passed by the writ Court, the services of the petitioner-respondent were regularized on a vacant Class IV post of 'Peon' on 25.02.2003 and was regularized with effect from 17.08.1999.
5. After a period of more than a year, the petitioner-respondent was served with a show cause notice dated 22.12.2009, requiring him to show cause as to why his appointment be not cancelled and he be not reverted back. Petitioner-respondent submitted his reply to the aforesaid show cause notice, but the respondents-appellants by means of order dated 17.02.2010, cancelled the appointment order of the petitioner-respondent and reverted him back to the post of 'Beldar'.
6. The aforesaid action of the respondents-appellants was challenged by the petitioner-respondent by filing Writ Petition No. 1179 (S/S) of 2010 and the writ Court vide interim order dated 26.02.2010, directed the respondents-appellants that the petitioner-respondent be permitted to continue as a Class IV employee.
7. The writ Court in the order dated 27.07.2018, impugned in this special appeal, while considering the entire facts and circumstances of the case, in para nos. 12 to 17, observed/held as under :-
"12. From the conspectus of the case set forth by the petitioner, it is an admitted fact that the petitioner, who was appointed as Beldar, had approached this Court praying for regularization of his services by means of Writ Petition No.9210 (SS) of 1993, which was decided on 02.08.1999 with a direction to the respondents to consider the petitioner for regularization against any Class IV post. So far as the order of creation of supernumerary post so made vide order dated 02.08.1999, the same has been stayed in the special appeal. In pursuance to the order dated 02.08.1999, the respondents proceeded to appoint the petitioner vide order dated 25.02.2003 on a Class IV post and thereafter vide order dated 31.10.2008, the services of the petitioner have been regularized on a Class IV post with effect from 17.08.1999. As per averments made in the counter affidavit, as the appointment of the petitioner on a Class IV post was not in accordance with the provisions of 1985 Rules, consequently the order dated 17.02.2010 was passed citing the provisions of 1985 Rules and contending that the appointment of the petitioner made vide order dated 25.02.2003 is illegal and thereafter reverted him to the post of Beldar. In pursuance to the interim order dated 26.10.2010, the petitioner was permitted to continue as a Class IV employee and has also been promoted to a Class III post vide order dated 05.03.2013 subject to decision of the instant writ petition. In the counter affidavit, it has been contended that action has been initiated against the officials who were responsible for appointing the petitioner in violation of 1985 Rules.
13. However, from perusal of the records, it clearly comes out that the order dated 31.10.2008 by which the petitioner has been regularized on a Class IV post with effect from 17.08.1999 still continues to exist till date and has neither been withdrawn nor cancelled by means of impugned order dated 17.02.2010 meaning thereby that in pursuance to the order dated 31.10.2008, the petitioner still continues as a regularized Class IV employee with effect from 17.08.1999 and consequently even if the order dated 17.02.2010 is taken at its face value of having cancelled the appointment order dated 25.02.2003 even then the petitioner is entitled to continue as a regular class IV employee keeping in view the order dated 31.10.2008.
14. Be that as it may, the order dated 17.02.2010 indicates that the petitioner has been given direct appointment in pursuance to the order passed by this Court dated 02.08.1999 in violation of the Rules. It is not alleged anywhere in the order dated 17.02.2010 that the petitioner had any role in being appointed on a Class IV post or that he obtained the order dated 25.02.2003 by concealing the facts or that the order dated 25.02.2003 is a fake order. It clearly comes out that the order dated 25.02.2003 was passed consciously by the competent authority in pursuance of the directions issued by this Court vide order dated 02.08.1999 and accordingly once the petitioner had no role in the said appointment done by the competent authority, consequently the respondents could not have cancelled the order dated 25.02.2003 after a period of almost seven years and that too, when no action has been taken against the guilty officials, if any, who were responsible for having issued the order dated 25.02.2003. The reason why this Court uses the words "no action was taken against the guilty officials" is that though in the counter affidavit it has been contended that the officials who were responsible for having issued the order dated 25.02.2003 were placed under suspension and departmental proceedings were recommended against them yet subsequently by means of supplementary counter affidavit it comes out that all of them have been let off. In this regard, it would be pertinent to mention that in the counter affidavit the order of suspension dated 05.12.2009 has been indicated to have been passed with respect to one Sri J.P. Gautam, Senior Assistant, who was allegedly responsible for mooting the proposal of appointment of the petitioner and vide order dated 05.12.2009, a copy of which is Annexure CA-3 to the counter affidavit, the departmental proceedings are also said to have been initiated against him. However, in the supplementary counter affidavit dated 27.10.2017, it has been indicated that the suspension order of Sri J.P. Gautam was revoked and the suspension period was also treated on duty and thereafter the suspension period was also treated as full service period and the entire amount for the period of suspension was also paid to him. In the disciplinary proceedings, Sri J.P. Gautam was given censure entry and strong warning and the disciplinary proceedings came to an end. The details of another official, who was involved in the alleged issue of the appointment order of the petitioner namely Sri D.K. Singh the then Superintending Engineer Unnao, has been indicated to have been recommended for 5% deduction in pension yet subsequently the proceedings against him were also dropped. Thus, it is apparent the respondents themselves have not treated the appointment order of the petitioner dated 25.02.2003 to have such serious ramification to impose any major punishment on the officials who were responsible for having issued the appointment order dated 25.02.2003 of the petitioner wrongly and thus singling out the petitioner and cancelling his appointment order would, in the opinion of the Court and in the facts and circumstances of the case, be discriminatory and malicious and consequently the impugned order dated 17.02.2010 would be bad on this ground alone.
15. Another aspect of the matter is that this Court vide order dated 02.08.1999 had directed the respondents to consider the petitioner for regularization. The regularization has in fact been done by the respondents vide order dated 31.10.2008 with effect from 17.08.1999 which still continuous to exist and has neither been recalled nor withdrawn, as already indicated above, and as such the petitioner is entitled to continue in service as a regular Class IV employee on the basis of this order also.
16. Another aspect of the matter is that taking into consideration the eligibility of the petitioner, he has also been promoted to a Class III post vide order dated 05.03.2013 but the same has been made subject to the decision of the instant writ petition. Thus, promotion of the petitioner to a higher post on the basis of his service record and against the quota earmarked for such employees also renders the petitioner liable to continue on the promoted post on this basis also.
17. Accordingly, keeping in view the discussions made above, it is apparent that the impugned order dated 17.02.2010, a copy of which is Annexure-1 to the writ petition, merits to be quashed and is accordingly quashed and set-aside. The writ petition is allowed. Consequences to follow."
8. On due consideration of the aforesaid, we are of the view that the petitioner-respondent was initially appointed as 'Beldar' in the year 1985 and in a writ petition direction was given for his regularization and therefore his services were regularized on 25.02.2003 on a Class IV post. Subsequently, on the basis of his service record he was considered for promotion and was promoted on a Class III post vide order dated 05.03.2013. Keeping in view the period of continuity of the petitioner-respondent in service and the reasons assigned by the writ Court in the impugned order, we are not inclined to interfere in the impugned order since no illegality legal or otherwise is pointed out.
9. No case is made out. The special appeal lacks merit and is accordingly dismissed.
Order Date :- 19.11.2019
A. Verma
(Alok Mathur, J.) (Pankaj Kumar Jaiswal, J.)