Vichitra vs State Of U.P. Thru. The Prin. Secy. ...
2023 Latest Caselaw 11444 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 24
 

 
Case :- WRIT - A No. - 4120 of 2022
 

 
Petitioner :- Vichitra
 
Respondent :- State Of U.P. Thru. The Prin. Secy. Panchayati Raj And 5 Others
 
Counsel for Petitioner :- Uma Shankar Sahai,Beena Kishor,Madhav Srivastava
 
Counsel for Respondent :- C.S.C.,Jaibind Singh Rathour
 

 
Hon'ble Rajan Roy,J.

Heard.

The petitioner has challenged an order dated 07.06.2022 passed by Apar Mukhya Adhikari, Zila Panchayat, Lucknow terminating the services of the petitioner who had been appointed on compassionate basis as Junior Clerk in Zila Panchayat, Lucknow. The ground of termination is concealment of fact by his father about his Writ Petition bearing No.2734 (S/S) of 1993 [Krishna Kumar vs. Zila Parishad, Lucknow & Ors.] seeking extension of his services, having been dismissed on 05.04.2012. It is said that there was an interim order operating in the aforesaid writ petition filed by the petitioner's father since 1993 in pursuance to which he was working. Once the petition was dismissed on 05.04.2012, he did not bring this fact to the notice of Zila Panchayat, consequently, he continued in service and ultimately, he died on 24.04.2016. Based on this, the petitioner was given compassionate appointment and mother was given family pension and other post-retiral dues.

After passing of the impugned order dated 07.06.2022, the order dated 05.04.2012 dismissing the aforesaid writ petition filed by the petitioner's father has been recalled and the said writ petition along with Writ-A No.7927 of 2022 [Smt. Neelu vs. State of U.P. & Ors.] filed by the petitioner's mother challenging the very order impugned herein but to the extent that it denied her pensionary benefits on the same grounds has already been decided. While writ petition filed by Smt. Neelu-petitioner's mother has been allowed, the writ petition filed by the petitioner' father was disposed of. The said judgment dated 19.01.2023 passed in the aforesaid two writ petitions reads as under:-

"Heard.

The original petitioner, Krishan Kumar, was appointed in Zila Panchayat, Lucknow as Tax Inspector vide order dated 18.01.1990 of Uppar Mukhya Adhikari, Zila Panchayat, Lucknow in the pay-scale of Rs. 360-620/- along with Dearness Allowances on temporary basis on probation of one year. As the requisite approval had not been granted, therefore, the appointment was extended on 16.12.1991 and 30.04.1992 and ultimately, on 01.03.1993, his services were terminated on the ground that the appointment was till 28.02.1993 which had come to an end. This order was put to challenge by the original petitioner, Krishan Kumar, by means of Writ A No. 2734 of 1993 wherein an interim order was passed on 08.04.1993 directing the opposite parties to allow the petitioner to work and pay him salary till further orders of this Court. In pursuance to the said interim order, petitioner continued in service of Zila Parishad/Panchayat, Lucknow. The said writ petition came to be dismissed on 05.04.2012. An application for recall was filed inter alia on the ground that the counsel for the petitioner was not present and in his absence the petition was dismissed. The said order dated 05.04.2012 was recalled after condoning the delay in filing the said application on 16.08.2022 in the following terms:

"This is an application for recall of the order dated 05.04.2012 and for restoration of the writ petition to its original number.

Sri U.S. Sahai, learned counsel for the applicants has contended that the order dated 05.04.2012 was passed in the absence of the counsel for the parties. He submits that the order being an ex-parte order is liable to be recalled. In support of his contention, he has placed reliance upon the decision of this Court in Nikhil Kumar Singh v. State of UP and others, 2015 (113) ALR 499.

Sri JBS Rathour, learned counsel for the Respondent 1, after arguing at some length states that he has no objection in case the order dated 05.04.2012 is recalled and the writ petition is restored to its original number.

Accordingly, the application is allowed.

Let the petition be restored to its original number. "

In the interregnum, original petitioner, Krishna Kumar, died on 24.04.2016. Moreover, prior to his death, his services were regularized vide order dated 18.03.2000 which was communicated to him on 07.04.2007. He died as a regular employee. Accordingly, family pension was given to his wife, Smt. Neelu. In the meanwhile, prior to restoration of Writ A No. 2734 of 1993 on 16.08.2022, an order dated 07.06.2022 was passed by Uppar Mukhya Adhikari, Zila Panchayat, Lucknow stating that the factum of dismissal of earlier writ petition on 05.04.2012 was not disclosed by the original petitioner and he continued in service even thereafter as he was continuing earlier. Moreover, after his death, not only family pension was extended to his wife but also appointment was given to his son under Dying in Harness Rules which according to him was based on concealment of relevant fact by the original petitioner, Krishna Kumar. However, the order does not delve on the issue as to why the counsel for Zila Panchayat, Lucknow did not inform Zila Panchayat about dismissal of writ petition on 05.04.2012. It is possible that its counsel did not know about it, just as it is possible that the original petitioner, Krishna Kumar, did not come to know about it. Moreover, the services already having been regularized before his death and before dismissal of earlier writ petition on 05.04.2012, all these issues which have been discussed in the impugned order are irrelevant. There was no direction in the earlier writ petition to regularize the services of the original petitioner, Krishna Kumar, yet his services were regularized. The regularization was never challenged nor has it been done by the impugned order. In fact, his services have been treated as having been dismissed w.e.f. 05.04.2012 by the impugned order dated 07.06.2022 although the person had already died on 24.04.2016 which itself could not have been done as dismissal order cannot be given retrospective effect that too after a person's death.

In the facts and circumstances of the case especially as the earlier writ petition bearing Writ A No. 2734 of 1993 has been restored and the order of its dismissal dated 05.04.2012 has been recalled on 16.08.2022, therefore, the impugned order based on the said basis i.e. its dismissal on 05.04.2012 cannot be sustained. This is especially as the services of original petitioner, Krishan Kumar, had already been regularized prior to dismissal of earlier writ petition on 05.04.2012, therefore, for all practical and legal purposes, the said writ petition had lost its efficacy in any case and it should not have been dismissed on 05.04.2012, but it seems that the parties did not inform the Court about the said regularization. The order dated 16.08.2022 passed in Writ A No. 2734 of 1993 has not been challenged by the opposite parties, therefore, it has attained finality between the parties herein.

By the impugned order itself, the appointment of the son of original petitioner under Dying in Harness Rules has also been cancelled which is the subject matter of a separate writ petition bearing No. Writ A No. 4120 of 2022 wherein this very order pertaining to the said petitioner has been stayed.

In view of the above, the petitioner has a right to maintain Writ A No. 7927 of 2022 and challenge the impugned order as her valuable right to receive family pension being the widow of a regular employee of Zila Panchayat has been violated by the impugned order.

Considering the facts of the case, Writ A No. 2734 of 1993 is disposed of in the aforesaid terms.

Writ A No. 7927 of 2022 is allowed. The impugned order dated 07.06.2022 is hereby quashed so far as it relates to the petitioner of Writ A No. 7927 of 2022.

Family pension which was being paid to the petitioner shall be restored. The arrears of family pension for the period it has not been paid though it should have been paid shall also be paid within two months. "

For the reasons already mentioned in the above quoted judgment especially as persons similarly situated to the petitioner's father, their services were regularized in pursuance to an order of this court dated 17.01.2007 passed in Writ Petition No.2325 (S/S) of 1993 by Pradeep Kumar Tripathi although the stand in the counter affidavit is that the said order did not relate to the petitioner's father, but, there is no denial of the fact that Sri Sri Pradeep Kumar Tripathi and others including the petitioner's father -Krishna Kumar were similarly situated and therefore, an order was passed on 18.03.2000 for regularization of services of these persons including Krishna Kumar and the same was communicated to him sometimes in 2007 much prior to dismissal of his writ Petition on 05.04.2012 but this fact, as already noticed in the above quoted judgment dated 19.01.2023, could not be brought to the notice of the Court. Nevertheless, the fact is that the order dated 05.04.2012 passed in Writ Petition 2734 (S/S) of 1993 filed by the petitioner's father was recalled. In these circumstances, the stand of opposite parties in the counter affidavit that due to inadvertence, the regularization of the petitioner's father, namely, Krishna Kumar had been ordered, cannot be accepted as there is nothing on record to show that any effort was made to rectify the said error. If it was an error then it should have been rectified within a reasonable time. There is nothing of that sort on record. Once similarly situated persons their services were regularized in pursuance to some orders of the court as referred hereinabove and the said orders were not put to challenge then the stand in the counter affidavit is not acceptable. The impugned order passed on the basis of the factual premise as already referred hereinabove is not sustainable. This aspect has already been considered while allowing the writ petition filed by the petitioner's mother which related to pensionary benefits. Learned counsel for the opposite parties only reiterated the stand in the counter affidavit which the Court does not find to be tenable. The above quoted judgment dated 19.01.2023 passed in Writ-A No.7927 of 2022 has not been challenged by the opposite parties and the same has been complied.

In view of the above, the impugned order is quashed. The petitioner shall be treated as in service from the date he was disengaged consequent to the impugned order. It is said that he has already been paid salary for this period in view of the interim order granted by this Court by which he has continued in service, therefore, consequential service benefits flowing from this judgment shall be made available to him accordingly.

The writ petition is allowed in the aforesaid terms.

(Rajan Roy,J.)

Order Date :- 18.4.2023

Shanu/-