Allahabad High Court
State Of ... vs Subhash Chandra Tewari ... on 18 September, 2013
Bench: Uma Nath Singh, Mahendra Dayal
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
Court No. - 1
Case :- SPECIAL APPEAL DEFECTIVE No. - 688 of 2013
Appellant :- State Of U.P.Throu.Secy.Deott.Of Horticulture Lko.& Ors.
Respondent :- Subhash Chandra Tewari 7126(S/S)1993
Counsel for Appellant :- C.S.C.
Counsel for Respondent :- I.B.Singh
Hon'ble Uma Nath Singh,J.
Hon'ble Mahendra Dayal,J.
Order(Oral)
We have heard learned counsel for parties and perused the pleadings of special appeal.
Being aggrieved from a part of directions issued by the impugned order dated 27.11.2012 in Writ Petition No 7126 (SS) of 1993, the State has filed this special appeal.
As per averments made in the special appeal, the learned Single Judge has virtually evolved his own procedure for issuing direction to consider the case of private respondent for regularization, while ignoring the order of termination passed against him.
Learned Additional Chief Standing Counsel, appearing for State, inter alia, placed reliance on two Judgments of Hon'ble the Apex Court rendered on the point of regularization. They are reported as : (i)-(2004) 8 SCC 262 (Executive Engineer, ZP. Engg. Divn. & another vs. Digambara Rao & others; and, (ii)-(2006) 1 SCC 667, State of U.P. vs. Neeraj Awasthi and others.
Vide the ratio of judgment in Digmabara Rao's (Supra) case, unless there is an established legal right, merely by invoking the sympathy of High Court one cannot seek regularisation in service.
On the other hand, Shri I.B. Singh learned Senior Counsel for private respondent placed reliance on an order passed by this Court dated 20.05.2013 in Special Appeal Defective No. 300 of 2013 (State of U.P. & others vs. Ajay Shukla). According to learned Senior Counsel, the facts and circumstances are exactly similar to the one decided in aforesaid special appeal, under reference. The operative portion of the order, on reproduction, would read as:
"On due consideration of rival submissions, we do not want to take a different view in this intra-court appeal for the reason that the State has made a halfhearted attempt by filing this special appeal with a delay of four months and fourteen days and that too after the order has already been implemented. We also agree with the view on the ground that the petitioner was continued in service under the orders of extension of his official superior who was competent to do so, and upon enquiry, the officer was given only a minor punishment of awarding a censure.
In view of all the aforesaid, the special appeal is hereby dismissed on the ground of delay as well as on merit."
In this case also, there is a delay of over eight months in filing the special appeal, and it is also a case of daily-wager, who was later appointed on regular basis, despite the fact that the officer who had engaged the respondent, suffered a censure entry for not following the procedure. Moreover, in both cases, orders of learned Single Judge have been implemented before filing of the special appeal.
On due consideration of rival submissions, we notice that the learned Single Judge has only directed to consider the case for regularization. He has not issued any positive direction to regularize the service of the respondent, nor has he directed framing of a Scheme.
This is also a case where we can observe that the State has made half-hearted attempt, because it has been filed with a delay of over eight months.
In the Judgment reported in (2008) 10 SCC 115 (C. Jacob vs. Director of Geology and Mining and others, Hon'ble the Apex Court has said that if there is a direction to consider, the authority shall consider the order on merit. However, Hon'ble the Apex Court has also held that there should be caution and circumspection in giving such direction so that stale claim is not revived.
In this case, we find nothing to say that the impugned claim is stale, which has been revived under the order of the learned Single Judge.
Thus, the special appeal is dismissed on the ground of delay, as well as on merit.
Order Date :- 18.9.2013
anb
