Allahabad High Court
Vinay Kumar vs The State Of U.P. And 3 Others on 3 August, 2021
Bench: Munishwar Nath Bhandari, Acting Chief Justice, Subhash Chandra Sharma
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 29
Case :- SPECIAL APPEAL DEFECTIVE No. - 446 of 2021
Appellant :- Vinay Kumar
Respondent :- The State Of U.P. And 3 Others
Counsel for Appellant :- Vijay Pratap Yadav
Counsel for Respondent :- C.S.C.,Syed Nadeem Ahmad
Hon'ble Munishwar Nath Bhandari,Acting Chief Justice
Hon'ble Subhash Chandra Sharma,J.
Order on Civil Misc. Delay Condonation Application No.1 of 2021
Heard on the application under section 5 of Limitation Act.
Looking to the reasons given in the application and not opposed by the side opposite, the application is allowed.
Delay is condoned.
Order on Special Appeal
This appeal has been filed against the judgment dated 27.01.2020 whereby the writ petition preferred by the petitioner/appellant was dismissed.
The writ petition was preferred by the petitioner/appellant to challenge the appointment of Smt. Asha Gond on the post of assistant teacher against the recruitment of year 2004. Prior to the aforesaid, petitioner/appellant had earlier also preferred a writ petition in the year 2011 to challenge the appointment of Smt. Asha Gond alleging that the post reserved for Scheduled Caste was filled by her despite of the availability of the petitioner/appellant who belongs to Scheduled Caste. Smt. Asha Gond was a Schedule Tribe candidate. The said writ petition was decided by the order dated 21.09.2011 and thereupon a modified order on 01.11.2011. A direction was given to the Basic Education Officer to first consider the petitioner/appellant for appointment in any other institute without upsetting the appointment of Smt. Asha Gond. If the appointment is not given to the petitioner/appellant, then it was kept open for him to file a fresh writ petition to assail the appointment of respondent no.5 i.e. Smt. Asha Gond. The petitioner then preferred the present writ petition when he was not given appointment in absence of any vacancy.
The challenge to the appointment of Smt. Asha Gond could not sustain as she died during the intervening period. A direction to the respondents to give appointment to the petitioner/appellant was not found justified looking to the long intervening period and finding the petitioner/appellant to be at the age of 38 years. It was also after noticing delay in filing of the first writ petition after seven years of appointment. Learned Single Judge further found that a direction of appointment would now dehors the rules due to age limit, for appointment.
Learned counsel for the petitioner/appellant could not show justification for filing of the first writ petition after lapse of seven years. In the light of the aforesaid, we do not find any error in the judgment of learned Single Judge because while deciding the first writ petition, the learned Single Judge gave opportunity only to assail the appointment of Smt. Asha Gond if the petitioner/appellant is not given appointment. The second writ petition could have been to challenge the appointment of Smt. Asha Gond only and she having died, the prayer could not have sustained.
Taking the facts in totality, we do not find any reason to cause interference in the judgement of the learned Single Judge.
Accordingly the appeal fails, and is, dismissed.
Order Date :- 3.8.2021
Madhurima
(Subhash Chandra Sharma, J.) (Munishwar Nath Bhandri, ACJ.)
