Allahabad High Court
State Of Up And 3 Others vs Dr Surendra Nath Singh on 12 November, 2024
Bench: Anjani Kumar Mishra, Jayant Banerji
HIGH COURT OF JUDICATURE AT ALLAHABAD
Neutral Citation No. - 2024:AHC:177580-DB
Court No. - 3
Case :- SPECIAL APPEAL DEFECTIVE No. - 801 of 2024
Appellant :- State Of UP And 3 Others
Respondent :- Dr Surendra Nath Singh
Counsel for Appellant :- Amit Manohar,Bipin Bihari Pandey
Counsel for Respondent :- Yogesh Singh
Hon'ble Anjani Kumar Mishra,J.
Hon'ble Jayant Banerji,J.
Order on Delay Condonation Application No. 2 of 2024.
1. The delay in filing the special appeal has been sufficiently explained in the affidavit filed in support of the delay condonation application and moreover the learned counsel for the respondent does not oppose the application.
2. The application is, accordingly allowed.
Order on Special Appeal.
3. It appears from the record that the petitioner-respondent preferred Writ-A No. 8491 of 2020 which was disposed of by a judgment and order dated 14.12.2020 which is as follows:-
"Heard learned counsel for the petitioner and learned Standing Counsel for the respondents.
Present petition has been filed with the following prayer:
"Issue a writ, order or direction in the nature of Mandamus directing the respondent nos. 2 and 3 to grant pension and other terminal benefits of petitioner by counting his services from date of his initial appointment from the state i.e. from 18.6.1988 within stipulated period."
Learned counsel for the petitioner submitted that petitioner was appointed as Medical Officer on ad hoc basis on 18.6.1988 in State Aayurveda and Yunani Health Service, U.P. Services. Services of petitioner was duly covered under the U.P. Regularization of Ad hoc Appointment (Post within the purview of Public Service Commission), Rules 1979 (hereinafter referred to as Rules, 1979). He next submitted that petitioner acquired right of regularization after three years from his initial appointment, but due to laches on the part of respondents, he could not regularize after three years. He further submitted that lastly he regularized on 16.3.2005 and superannuated on 31.01.2020. While calculating the post retiral benefits, services of petitioner during ad hoc period was not counted for which he has moved several representation and ultimately filed the present petition.
Case was heard on 13.10.2020, Court has passed the following order:-
"Learned Standing Counsel to obtain instructions as to whether the case of the petitioner is covered by the judgment rendered by this Court on 23.01.2019 in Writ A No. 22833 of 2018 (Dr. Ravindra Kumar and Others Vs. State of U.P. and Others) along with the companion writ petitions.
Put up this case on 11.12.2020 in the list of fresh cases."
Mr. Purshottam Maurya, learned standing counsel has fairly submitted before the Court that case of petitioner is squarely covered by the judgment and order of this Court dated 23.1.2019 in the matter of Dr. Ravindra Kumar and 8 others vs. State of U.P. and others passed in Writ-A No.22833 of 2018 alongwith connected matters.
I have perused the record as well as judgments. The very same issue was decided by this Court in Writ-A No.22833 of 2018 and also affirmed by Apex Court in Special Leave Petition No. 33111 of 2017 (State of U.P. and others Vs. Dr. Mayank Shekhar Upadhyay) vide order dated 9.3.2018.
Therefore, under such facts and circumstances, the writ petition is disposed of in terms of order dated 23.1.2019 passed in Writ-A No.22833 of 2018 alongwith connected matters.
Respondents are directed to recalculate the post retiral benefits of petitioner including pension etc. after counting his service from the date of his initial appointment and pay the same preferably within three months from the date of submission of computer generated copy of this order after verifying the same from Official Website of Allahabad High Court."
4. It appears that thereafter, the petitioner-respondent through his Advocate moved an application before the Director, Ayurveda and Unani Health Services, Lucknow to comply with the order dated 14.12.2020 passed in the aforesaid Writ-A No. 8491 of 2020. By an office memorandum dated 6.7.2021, the Additional Chief Secretary, Government of U.P., (Ayush) Anubhag-I, Lucknow proceeded to pass an order dated 6.7.2021 considering the merit of the case raised by the petitioner and rejected his claim in the teeth of the order of the writ court dated 14.12.2020 passed in Writ-A No. 8491 of 2020.
5. It is pertinent to mention here that thereafter, the State-appellant preferred a Special appeal (Defective) No. 393 of 2020 ( State of U.P. and another Vs. Dr. Surendra Nath Singh and others) challenging the judgment dated 14.12.2020. The aforesaid Special Appeal(D) No. 393 of 2020 came to be dismissed as the Standing Counsel for the State-appellant therein had submitted that he had received instructions not to press that appeal.
6. In the meanwhile, the petitioner-respondent filed Writ-A No. 653 of 2022 ( Dr. Surendra Nath Singh Vs. State of U.P. and others), challenging the order dated 6.7.2021, in which this court passed the following order on 25.4.2022:-
"On 22nd March, 2022 a Coordinate Bench of this Court passed following order:
"Sri Vishal Singh, Advocate, appearing on behalf of respondent No.3, prays for and is granted three weeks' time to file counter affidavit.
Rejoinder affidavit, if any, may be filed within one week thereafter.
In the meantime, learned Standing Counsel for respondent Nos. 1, 2 and 4 may also file counter affidavit.
Put up this case on 25.4.2022 as a fresh case.
In case counter affidavit is not filed, authority concerned will appear in person on the next date fixed at 10 a.m. sharp. "
By means of the order dated 22nd March, 2022, the Coordinate Bench specifically clarified that in case the counter affidavit is not filed by the next i.e. 25th April, 2022, the concerned authority will appear in person on the said date.
Today, on the matter being taken up, the learned Standing Counsel submits that he shall file counter affidavit in the registry today itself.
The learned counsel for the petitioner submits that the similar controversy, involved in the present writ petition, has been dealt with by the Lucknow Bench of this Court in Writ Petition No. 18031 (S/S) of 2021 (Dr. Prakash Veer Singh Vs. State of U.P. & Others), in which concerned Writ Court vide order dated 22nd September, 2021 held as follows:
"Thus, following the decision rendered in re; Awadhesh Kumar Singh (supra), opposite party no.1 is directed to pay the petitioner terminal benefits by counting his services from the date of his initial appointment and shall work out the pension and other dues payable to him accordingly and make such payment within a period of three months."
When the said order has not been complied with by the respondent-authorities, the petitioner Dr. Prakash Veer Singh filed contempt petition and in compliance of the order of the Contempt Court dated 7th March, 2022, the petitioner Dr. Prakash Veer Singh has been paid his terminal benefits after counting his services from the date of his initial appointment.
Further, the learned counsel for the petitioner submits that earlier the petitioner has approached this Court by means of Writ-A No. 8491 of 2020 (Surendra Nath SinghVs. State of U.P. & Others) and the Writ Court vide order dated 14th December, 2020 while disposing the said writ petition issued following directions:
"Respondents are directed to recalculate the post retiral benefits of petitioner including pension etc. after counting his service from the date of his initial appointment and pay the same preferably within three months from the date of submission of computer generated copy of this order after verifying the same from Official Website of Allahabad High Court. "
Learned counsel for the petitioner, therefore, submits that respondent no.1, while misinterpreting the order of the Writ Court dated 14th December, 2020, has rejected the claim of the petitioner.
In such circumstances, let the Joint Secretary, Ministry of Ayush (Ayush Anubhag-I), Lucknow i.e. respondent no.1 appear before this Court in person on 18th May, 2022 along with his personal affidavit explaining as to why the order of the Writ Court dated 14th December, 2020 has not been complied with in letter an in spirit.
Put up this Court on 18th May, 2022 as fresh."
7. When the aforesaid Writ-A No. 653 of 2022 was listed before this Court on 18.5.2022, the following order was passed:-
1. Heard Mr. Yogesh Singh, the learned counsel for petitioner and Mr. Vikram Bahadur Yadav, the learned standing counsel representing respondents 1 to 4.
2. Petitioner has approached this Court challenging order dated 06.07.2021 passed by respondent-1, Joint Secretary, Department of Aayush (Aayush Anubhag-1), Lucknow whereby the claim of petitioner for payment of pension and post retrial benefits has been rejected
3. Present writ petition came up for admission on 25.04.20220 and this Court passed following order:
"On 22nd March, 2022 a Coordinate Bench of this Court passed following order:
"Sri Vishal Singh, Advocate, appearing on behalf of respondent No.3, prays for and is granted three weeks' time to file counter affidavit.
Rejoinder affidavit, if any, may be filed within one week thereafter.
In the meantime, learned Standing Counsel for respondent Nos. 1, 2 and 4 may also file counter affidavit.
Put up this case on 25.4.2022 as a fresh case.
In case counter affidavit is not filed, authority concerned will appear in person on the next date fixed at 10 a.m. sharp."
By means of the order dated 22nd March, 2022, the Coordinate Bench specifically clarified that in case the counter affidavit is not filed by the next i.e. 25th April, 2022, the concerned authority will appear in person on the said date.
Today, on the matter being taken up, the learned Standing Counsel submits that he shall file counter affidavit in the registry today itself.
The learned counsel for the petitioner submits that the similar controversy, involved in the present writ petition, has been dealt with by the Lucknow Bench of this Court in Writ Petition No. 18031 (S/S) of 2021 (Dr. Prakash Veer Singh Vs. State of U.P. & Others), in which concerned Writ Court vide order dated 22nd September, 2021 held as follows:
"Thus, following the decision rendered in re; Awadhesh Kumar Singh (supra), opposite party no.1 is directed to pay the petitioner terminal benefits by counting his services from the date of his initial appointment and shall work out the pension and other dues payable to him accordingly and make such payment within a period of three months."
When the said order has not been complied with by the respondent-authorities, the petitioner Dr. Prakash Veer Singh filed contempt petition and in compliance of the order of the Contempt Court dated 7th March, 2022, the petitioner Dr. Prakash Veer Singh has been paid his terminal benefits after counting his services from the date of his initial appointment.
Further, the learned counsel for the petitioner submits that earlier the petitioner has approached this Court by means of Writ-A No. 8491 of 2020 (Surendra Nath SinghVs. State of U.P. & Others) and the Writ Court vide order dated 14th December, 2020 while disposing the said writ petition issued following directions:
"Respondents are directed to recalculate the post retiral benefits of petitioner including pension etc. after counting his service from the date of his initial appointment and pay the same preferably within three months from the date of submission of computer generated copy of this order after verifying the same from Official Website of Allahabad High Court. "
Learned counsel for the petitioner, therefore, submits that respondent no.1, while misinterpreting the order of the Writ Court dated 14th December, 2020, has rejected the claim of the petitioner.
In such circumstances, let the Joint Secretary, Ministry of Ayush (Ayush Anubhag-I), Lucknow i.e. respondent no.1 appear before this Court in person on 18th May, 2022 along with his personal affidavit explaining as to why the order of the Writ Court dated 14th December, 2020 has not been complied with in letter an in spirit.
Put up this Court on 18th May, 2022 as fresh.
4. Pursuant to above order dated 25.04.2022, respondent-1 has appeared in person. Learned Standing counsel has placed before Court the personal affidavit of respondent-1, which is taken on record.
5. Learned counsel for petitioner has invited attention of Court to Government order dated 13.05.2022 wherein decision has been taken to provide pension and other post retrial benefits due to the petitioner. Learned counsel for petitioner has then referred to the order dated 14.12.2020 passed by this Court in Writ A No. 8491 of 2020 (Surendra Nath Singh Vs. State of U.P. and 3 others). On basis thereof, he contends that a direction was issued earlier by this Court that entire amount be paid within a period of 3 months from the date of presentation of certified copy of this order. However, the same has not been paid till date.
4. When confronted with above, learned standing counsel representing respondent-1, who is present in court today, submits that entire payment due to petitioner shall be made on or before 25.05.2022.
5. The court has no reason to doubt the bonafide expressed by learned standing counsel on the basis of instructions so received by him from respondent-1, who is present in person.
6. In view of above, hearing of present writ petition is adjourned till 30.05.2022. In case entire payment due to petitioner is paid by 28.05.2022, respondent-1 shall not appear in person. However, if on account of any reason, entire payment is not paid, respondent 1 shall appear in person on the next dated fixed.
7. Matter shall re-appear as fresh on 30.05.2022."
8. It is evident from the order dated 18.5.2022 that the Joint Secretary of the Government of U.P. was present before this Court and instructed the learned Standing Counsel to submit that the entire payments due to the petitioner shall be paid on or before 25.5.2022.
9. By an order dated 30.5.2022, the writ petition was allowed in terms of the order passed on that date which reads as follows:-
"Heard Sri Yogesh Singh, learned counsel for the petitioner and learned Standing counsel for the respondents.
The instant writ petition has been filed challenging the impugned order dated 06.07.2021 passed by respondent no.1-Joint Secretary, Ministry of Ayush (Ayush Anubhag-I), Lucknow, whereby retiral benefits of the petitioner has been refused.
Learned Standing Counsel on the basis of instruction submits that the entire retiral benefits has been paid to the petitioner pursuant to previous orders of this Court.
Learned counsel for the petitioner admitted the said position and submits that relief so claimed by the petitioner is fulfilled.
Accordingly, the impugned order dated 7.6.2021 passed by respondent no.1-Joint Secretary, Ministry of Ayush (Ayush Anubhag-I), Lucknow is quashed.
The writ petition stands allowed."
10. The contention of the learned counsel for the appellant is that pursuant to the order passed by this Court, the entire retiral dues of the petitioner has been paid and this appeal has been filed to challenge the judgment and orders dated 25.4.2022, 18.5.2022 and 30.5.2022 passed by this Court in Writ-A No. 653 of 2022.
11. It is evident from perusal of the record that the judgment dated 14.12.2020 passed in Writ-A No. 8491 of 2020 was a consent order passed by this Court in view of the statement made by the Standing Counsel that the case of the petitioner is squarely covered by the judgment and order of this Court dated 23.1.2019 passed in the matter of Dr. Ravindra Kumar and 8 others Vs. State of U.P. and others passed in Writ-A No. 22833 of 2018 alongwith other connected matter. This Court in its judgment and order dated 14.12.2020 also noticed that the matter was affirmed by the Apex Court in Special Leave Petition No. 33111 of 2017 (State of U.P. and others Vs. Dr. Mayank Shekhar Upadhyaya) by an order dated 9.3.2018. It is also pertinent to mention here that the special appeal filed by the State against the aforesaid judgments dated 14.12.2020 also was dismissed as not pressed in terms of the statement made by the Standing Counsel on the basis of the instructions received.
12. In this view of the matter, and in the facts and circumstances of the case, the contention raised by the learned counsel for the petitioner in Writ-A No. 653 of 2022 which is recorded in the order dated 25.4.2022 that the respondent no.1 had rejected the claim of the petitioner while misinterpreting the order of writ court dated 14.12.2020, was correct. It is also pertinent to mention here that the authority concerned while passing the order dated 6.7.2021 sought to sit in appeal over the judgement passed by this Court in Writ-A No. 8491 of 2020 which, apart from being illegal, is also contumacious.
13. In the facts and circumstances, preferring of this special appeal in the garb of challenging the three orders/judgment passed by this Court in Writ-A No. 653 of 2022, the appellant-State is seeking to question the judgment passed by this Court on 14.12.2020 in Writ-A No. 8491 of 2020.
14. In our considered opinion, the act of the State in the present case is in gross abuse of process of the Court. This special appeal is, therefore, dismissed with a cost of Rs. 10,000/ (Rs. ten thousand) which shall be paid by the State to the petitioner-respondent within a period of one month from today. The State is at liberty to recover the aforesaid amount of cost from the salary of the concerned official, who authorised filing of this Special Appeal.
Order Date :- 12.11.2024
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