Allahabad High Court
Mohammad Alim Khan vs State Of U.P. Thru. Addl. Chief ... on 21 September, 2023
Bench: Pritinker Diwaker, Chief Justice, Rajan Roy
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Neutral Citation No. - 2023:AHC-LKO:60982-DB
Chief Justice's Court
Case :- SPECIAL APPEAL DEFECTIVE No. - 708 of 2023
Appellant :- Mohammad Alim Khan
Respondent :- State Of U.P. Thru. Addl. Chief Secy. Ayush Deptt. U.P. Govt. Lko. And Another
Counsel for Appellant :- Mohammad Tauseef Siddiqui
Counsel for Respondent :- C.S.C.
Hon'ble Pritinker Diwaker,Chief Justice
Hon'ble Rajan Roy,J.
(C.M. Application No.1 of 2023)
This is an application seeking condonation of delay in filing the appeal.
Heard.
Learned A.G.A. does not have objection to the condonation of delay in filing the appeal.
Cause shown in the affidavit in support of the application seeking condonation of delay is sufficient. Accordingly, the application is allowed and delay is condoned.
(Order on special appeal)
This is a special appeal challenging the judgment dated 10.04.2023 passed by the writ court in Writ-A No.2740 of 2023. The only contention raised by learned counsel for the petitioner/ appellant is that the writ court has erred in dismissing his writ petition on the ground of delay ignoring the fact that the appellant had earlier filed a Writ Petition bearing No.32977 (S/S) of 2019 wherein an order was passed on 29.11.2019 to consider and dispose of the appellant-petitioner representation dated 30.10.2019. This order was not complied, therefore, contempt proceedings were initiated and only then the claim of the petitioner was decided by the State Government vide order dated 25.03.2023 which was challenged by means of the above mentioned petition. Therefore, there was no delay and the judgment of the trial court is erroneous and liable to be set aside.
We are unable to accept the contention of learned counsel for the appellant for the reason it has come in the order dated 25.03.2023 which was impugned before the writ court that claim of the appellant-petitioner for regularization of his services on the post of Junior Clerk was considered in the year 1999 along with other eligible persons but the appellant was not found fit. Services of others were regularized who were found fit on the basis of scrutiny of their educational and reservation based documents and interview which was conducted on 22.11.1999 vide order dated 01.12.1999. This order was never challenged by the appellant-petitioner. A copy of the said order is on record. Therefore, the cause of action, if any, for his non-regularization or claim for regularization w.e.f. 01.12.1992 occurred in the year 1999 but there is nothing on record to show that the appellant ever raised any grievance either before the authorities or filed any petition before this court or before the U.P. Public Services Tribunal, as the case may be.
Thereafter, the appellant was considered for regularization and his services were regularized vide order dated 02.04.2012, copy of which is on record. This exercise of regularization was undertaken in terms of G.O. dated 08.09.2010. This regularization of services took place after creation of posts, otherwise the posts were not vacant for such regularization. This regularization order was accepted by the appellant-petitioner. It is only in 2019 that he submitted a representation on 30.10.2019 to Principal Secretary, Ayush Anubhag-I, Government of U.P. claiming regularization from the date of regularization of services of his juniors w.e.f. 01.12.1999. When the representation was not decided, the petitioner-appellant preferred a writ petition bearing No.32977 (S/S) of 2019 which was decided on 29.11.2019 as already stated with a direction to consider and decide the petitioner's representation. The aforesaid representation dated 30.10.2019 was decided by the order dated 25.03.2023. Merely because of disposal of the said representation by the order dated 25.03.2023, a fresh cause of action did not arise in favour of the appellant-petitioner, as, the cause of action, if any, arose in the year 1999 itself when the services of his alleged juniors to the appellant/petitioner were regularized vide order dated 01.12.1999 and he was not found fit for the same. Therefore, clearly, the claim was highly belated. As already stated, the services of the appellant-petitioner were regularized vide order dated 02.04.2012 in pursuance to G.O. dated 08.09.2010 which was accepted by the appellant/ petitioner without any demur and almost seven years thereafter, a representation was submitted on 30.10.2019 claiming regularization of his services w.e.f. 01.12.1999 which itself was not maintainable. However, because of the order of the writ court in the earlier writ petition filed by the petitioner to decide the representation, a decision had to be taken by the authority which was taken on 25.03.2023. In these circumstances, merely because of the order dated 25.03.2023, the appellant-petitioner cannot claim any benefit on the question of delay as the said order does not say anything new but says that the appellant was considered in 1999 along with others but was not found fit.
Moreover, from a reading of the reading of the order dated 25.03.2023, we find that the appellant-petitioner along with others had filed another writ petition bearing No.1558(S/S) of 2004 and some orders were passed therein, copies of which have not been annexed. Thereafter, in pursuance to the said orders, the petitioner-appellant was granted minimum of the pay scale with the condition that no other benefit would be admissible to him of the post of Junior Clerk, as by then services have not been regularized. At this stage also, he did not raise any claim for regularization of his services w.e.f. 01.12.1999.
In these circumstances, we do not find any error in the judgment of the writ court by which the appellant's writ petition has been dismissed on the ground that the claim is highly belated. We, accordingly, do not find any merit in the appeal and dismiss it.
(Rajan Roy,J.) (Pritinker Diwaker, CJ)
Order Date :- 21.9.2023
Shanu/-
