Allahabad High Court
Suresh Kumar And Ors. vs State Of U.P. Thru. Joint Secy. ... on 7 February, 2023
Bench: Brij Raj Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 20
Case :- WRIT - A No. - 10343 of 2018
Petitioner :- Suresh Kumar And Ors.
Respondent :- State Of U.P. Thru. Joint Secy. Home Gaurd And Anr.
Counsel for Petitioner :- Brijesh Kumar Yadav,Ram Karan Yadav
Counsel for Respondent :- C.S.C.
Hon'ble Brij Raj Singh,J.
By means of the present petition, petitioners prayed primarily for the following reliefs:-
"(i) ?? ?? ???, ????/??????? ?? ?? ????????? ??????? ?? ?? ???? ???? ??? ??????? ??.-2 ?????? ?? ??????, ???????? ? ?????? ????????? ?? ???????? ???? ??? ????? ???? ?????? 04-10-2017 ??????? ??-3 ?? ???????? ??? ????? ???? ?? ???? ????? ???? ?? ???? ?? ?????
(ii) ?? ?? ???, ????/??????? ?? ?? ??????? ??????? ?? ?? ???? ???? ??? ??????? ??.-2 ?? ??????/????????? ???? ???? ?? ?????? ?? ?????? ??????? ?? ???????? ????????? ???? ?????? ? ????? ?? ???????? ???? ???????? ??????? ???? ?? ???? ??? ??? ?????? ?? ??? ????? ?? ???? ?? ???????? ???? ??? ????? ???? ?? ?? ???? ???? ???? ?? ???? ????? ???? ?? ???? ?? ?????
(iii) ?? ?? ???????? ???????? ?????? ???? ??? ??? ????/??????? ?? ???? ???? ?? ???? ??? ?? ??????? ?? ???????????? ?? ?????? ???????? ?? ???? ??? ???? ???? ?????? ???????? ?????? ????? ???? ?? ???? ?? ?????"
Learned counsel for petitioners submits that petitioner No.1 was appointed on the post of Home Guard on 06.11.1996 whereas petitioner No.2 was appointed on 27.09.1989 on the same post of Home Guard.
The petitioners were implicated in a criminal case namely, Case Crime No.676 of 1999, under Section 384 IPC and their services were terminated on 28.12.1999. The aforesaid criminal case was tried and final judgment was passed on 23.08.2017 by the competent criminal court and petitioners were acquitted. Petitioners preferred representation before the concerned authority and requested that they have been acquitted from the criminal charges therefore, they should be reinstated in service. In pursuance of the representation preferred by petitioners, the impugned order dated 04.10.2017 was passed against the petitioners as contained in Annexure Nos.3 and 4 to the writ petition which has been impugned by the petitioners.
Learned counsel for petitioners has submitted that while passing the impugned order, consideration has been made by the authority on the ground that as per the Government Order dated 02.12.2016 those Home Guards, who were terminated prior to six years, their case will not be considered for reinstatement. He has submitted that the authority concerned has misinterpreted the Government Order because as per the aforesaid Government Order, Clause 9 is favouring the case of the petitioners which provides that the aforesaid Government Order will not be applicable in the cases where charge-sheet is pending in the criminal court. He has further submitted that in the present case, the criminal case was pending against the petitioners and they have been acquitted therefore, they are entitled for the reinstatement. It has been further argued by counsel for petitioners that at the relevant time of the appointment, the petitioners were qualified and minimum qualification for appointment was Class-VIII whereas in the impugned order it has been stated that now qualification has been changed and the candidates must have passed High School. He has submitted that this impugned order cannot survive in view of the fact that when the petitioners joined their services they were qualified.
On the other hand, Mr. Vinod Kumar Singh, learned Additional Chief Standing Counsel is taken a stand that appeal could have been filed by the petitioners against the impugned order but petitioners directly filed the writ petition which is not maintainable. He has further submitted that as per the Government Order, the impugned order has been passed and there is no illegality and infirmity in the impugned order.
Heard learned counsel for parties.
Para 9 of the Government Order dated 02.12.2016 is pointing out that where the cases are pending in the competent court there is no bar. Thus, the point of delay will not come into way and I am of the view that while deciding the representation of the petitioners, the authorities has misinterpreted and misread the Government Order. The case of the petitioners are standing on different footing and re-consideration is required in the matter. So far qualification part is concerned, it is also to be seen by the authority whether at the relevant time of the appointment, the petitioners were duly qualified and were possessing the minimum qualification but it appears that authority is swayed by the fact that now minimum qualification is High School for appointment on the post of Home Guard. The authority has lost his sight to look into the fact that petitioners were duly qualified when they were appointed. Thus, the impugned order dated 04.10.2017 is hereby quashed and accordingly the instant petition is allowed. The matter is remitted back to opposite party No.2 to take fresh decision within eight weeks from the date of production of certified copy of this order and while taking decision the observation made above will be kept in mind by the authority concerned.
Order Date :- 7.2.2023
Saurabh Yadav/-
