Allahabad High Court
District Basic Shiksha Adhikari , ... vs Bhagwan Prasad And Another on 5 October, 2023
Bench: Attau Rahman Masoodi, Om Prakash Shukla
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
Neutral Citation No. - 2023:AHC-LKO:64003-DB
Court No.-1
Case:- SPECIAL APPEAL DEFECTIVE No. - 767 of 2023
Appellant :- District Basic Shiksha Adhikari, Gonda And Others
Respondent :- Bhagwan Orasad And Another
Counsel for Appellant :- Uday Veer Singh
Counsel for Respondent :- Vinay Tripathi,C.S.C.
Hon'ble Attau Rahman Masoodi,J.
Hon'ble Om Prakash Shukla,J.
C.M.A. No.1 of 2023 (Application for condonation of delay)
(1) Heard learned Counsel for the appellants, Shri Vinay Tripathi, learned Counsel, who has put in appearance for respondent no.1 and learned Counsel for the State-respondent no.2.
(2) The present special appeal instituted under Chapter VII Rule 5 of the High Court Rules is delayed by 185 days. An application seeking condonation of delay supported by an affidavit has been filed along with the appeal.
(3) Although objection has been raised by learned Counsel for respondent no.1 against the application seeking condonation of delay, but on a careful consideration of justification spelt out in the affidavit, we are convinced that the application for condonation of delay deserves to be allowed.
(4) Cause shown in the affidavit being sufficient, therefore, the application for condonation of delay is allowed and the delay in filing the appeal is hereby condoned.
(5) Let the special appeal be assigned a regular number.
Order on Appeal
(6) The present intra-court appeal arising out of the judgment/order dated 23.02.2023 passed in Writ- A No.1420 of 2023 has questioned the legality and validity of the impugned judgment on various grounds, however, during the course of argument the learned Counsel for the appellant elected to urge a very specific ground that the learned Writ Court while setting aside the order assailed in the said writ petition ought to have left the enquiry open and to that extent the present appeal deserves to be allowed.
(7) Having heard the learned Counsel for the appellant on the specific grounds relating to the enquiry being conducted against the respondent No.1 relating to the controversy shrouded against his actual age, this Court finds that the learned Single Judge in the impugned judgment has neither mentioned nor has dealt with the aspect of appearance of the respondent No.1 in the examination of High School in the year 1976, wherein he was enrolled at roll no. 337904 and his date of birth was mentioned as 07.04.1962 and most significantly, even this date of birth was verified by the Secretary, Secondary Education Board, Prayagraj.
(8) According to the learned Counsel for the appellant, although the aforesaid averment could be well found at para/clause-11 of the impugned order dated 10.10.2022 passed by the Basic Shiksha Adhikari, Gonda, however, the learned Single Judge while directing the respondent No.2 to ensure the payment of salary to the respondent No.1 on month to month basis has also set-aside the order dated 10.10.2022 and the effect of which would be that the same would adversely affect the enquiry being conducted by them as even till date there are two date of birth of the respondent No.1.
(9) This Court finds sufficient force in the argument of the learned Counsel for the appellant. Apparently, the learned Single Judge while directing the State to ensure the payment of salary to the respondent No.1 on month to month basis has taken cognizance of only one part of the story and relied on the medical report to conclude the genuineness of his age and employment, whereas the issue highlighted at para/clause 11 of the impugned order dated 10.10.2022 did not find any relevance with the learned Single Judge.
(10) Having observed the dichotomy relating to the genuineness of the age of the respondent No.1, but the same time keeping in view the impugned judgment passed by the learned Single Judge that nothing wrong has been found with regard to the employment granted to the petitioner and the entire controversy arose due to the age difference of ten years between the petitioner and his son and a plausible answer already given by the respondent No.1, we do not wish to interfere with the impugned judgment to the extent of payment of regular salary and arrears to the respondent no.1/petitioner inclusive of interest. However, in the peculiar facts, we do not agree to the setting aside of the order that 10.10.2022 and as such direct that an enquiry may be conducted as per the applicable rule.
(11) With the aforesaid observations, this Special Appeal is disposed of.
(Om Prakash Shukla, J.) (Attau Rahman Masoodi, J.)
Order Date :- 5.10.2023
Anand Sri./-
