Chandra Shekhar Sahi vs State Of U.P. And 2 Others
2022 Latest Caselaw 18522 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 29
 

 
Case :- SPECIAL APPEAL No. - 328 of 2021
 

 
Appellant :- Chandra Shekhar Sahi
 
Respondent :- State Of U.P. And 2 Others
 
Counsel for Appellant :- Ved Prakash Shukla,Nand Lal Pandey
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Manoj Misra,J.

Hon'ble Vikas Budhwar,J.

Heard learned counsel for the appellant and learned Standing Counsel for the respondents 1, 2 and 3.

The delay condonation application supported with an affidavit was filed to condone the delay in filing the appeal. By order dated 08.11.2021, the delay condonation application was allowed and a regular number was assigned to the appeal.

In Re : Appeal

This intra-court appeal has been filed against the judgment and order dated 11.09.2007 passed by learned single Judge in Writ A No.17152 of 1989 whereby the writ petition of the appellant was dismissed.

The facts giving rise to the instant appeal are as follows : The appellant got himself registered with the Employment Exchange, Mau for being appointed against a suitable post. On 03.08.1989, an advertisement for filling up two posts of registration clerks in the office of Sub-Registrar, Mau was published inviting applications and requesting the Employment Exchange to send names of suitable persons for appointment. Whereafter interview was held on 10.08.1989. The District Registrar, who was the appointing authority, appointed the petitioner vide appointment order dated 16.08.1989 against a sanctioned post which had fallen vacant consequent to the appointment of one Fakruddin Khan, registration clerk, on the post of chief registration clerk, by way of promotion. On 04.09.1989, the petitioner fell ill and applied for leave up to 08.09.1989. On 26.08.1989, the services of the petitioner were terminated on the ground that he was appointed temporarily against a temporary post and that his services are no longer required.

It is the case of the appellant that after facing Selection Committee and the procedure prescribed under the Rules his name was recommended for appointment. It is also the case of the appellant (writ petitioner) that he took charge on the post of registration clerk pursuant to the letter of appointment on 18.08.1989.

The appellant challenged the order of termination of his services by claiming that he was appointed against a regular vacancy after facing selection procedure prescribed under the law and had joined the post therefore, the order of termination of his services was arbitrary.

The writ petition against the termination order was entertained and by order dated 19.09.1989 an interim protection was granted directing that petitioner's services shall not be dispensed with. This interim order dated 19.09.1989 was modified by order dated 17.10.1989 thereby clarifying that the respondents shall not give effect to the termination order dated 26.08.1989.

The case of the appellant in this appeal is that pursuant to the interim order dated 19.09.1989 as modified by order dated 17.10.1989 the petitioner continued to render service and his services were regularized by order dated 24.03.1998. Consequent to the regularization of his services, when the matter was listed before the learned single Judge on 11.09.2007, the counsel for the writ petitioner did not appear therefore, after perusal of the records, the learned single Judge by observing that the appellant was a temporary employee and was not appointed as per the procedure established by law, dismissed the writ petition by order dated 11.09.2007 against which this intra-court appeal has been filed.

The contention of learned counsel for the petitioner is that gross injustice has been done to the writ petitioner, inasmuch as, after the dismissal of the writ petition on 11.09.2007, the department has terminated his services even though he had been regularized and, therefore, his writ petition be decided afresh on merits more so because the learned counsel for the writ petitioner was not present before the learned single Judge and full facts including subsequent developments could not be brought to the notice of the learned single Judge resulting in dismissal of the writ petition. It has been submitted that the view taken by learned single Judge that the appointment was without following proper procedure as prescribed by the Rules is not correct because, the appointment of the appellant was as per The Uttar Pradesh Registration Department (District Establishment) Ministerial Service Rules, 1978 (In short '1978 Rules'); his candidature was recommended by the Selection Committee; his appointment was made against a substantive post; and the observation in the order impugned in the writ petition that the post was temporary is not correct because the post fell substantively vacant consequent to the promotion of the incumbent working on that post. Not only that, the services of the petitioner were regularized and that regularization was not subject to decision of the writ petition therefore, in view of the regularization of his services even if the writ petition had been dismissed, his services could not have been dispensed with.

Learned Standing Counsel, who has appeared for the State-respondents, submitted that although the order of learned single Judge may not have noticed the complete facts that were placed in the record of the writ proceedings but the order of appointment indicated that it was a temporary appointment and since the petitioner had continued in service on account of an interim order, the benefit of continuance in service on account of an interim order would not confer any benefit as to entitle the petitioner to seek regularization.

Having noticed the facts of the case and the submissions of learned counsel for the parties, we are of the view that some of the issues which arise from the pleadings were critical. These are (a) whether the petitioner was appointed against a substantive vacancy after following procedure prescribed by the Rules; (b) whether the termination of services by taking recourse to the terms and conditions of the letter of appointment was arbitrary in the facts of the case; and, (c) now, in view of subsequent developments, as to what would be the consequence of the regularization of his services. As the first two of the aforesaid three issues which were raised in the writ petition, have not been addressed properly, perhaps, because none may have appeared, as would appear from the impugned order which does not recite that the counsel for the petitioner was heard, in our view, the matter needs fresh consideration by the learned single Judge.

Consequently, the appeal is allowed. The order dated 11.09.2007 passed by learned single Judge in Writ A No.17152 of 1989 is set aside. The said writ petition shall be restored to its original number and shall be decided afresh in light of the observations made above. It is also clarified that it shall be open for the writ petitioner to bring on record of the writ proceedings the subsequent developments that have taken place and for the said purpose he may appropriately amend the petition.

As we notice that the record of the writ proceedings has been digitized, the office may prepare a record of the writ proceedings from the digitized record available and on the basis of said record the matter shall be decided. If the original record is available, then making copy from the digitized record would not be necessary.

Order Date :- 23.11.2022.

Rks.