A.F.R
Court No. - 5 .
Case :- WRIT - A No. - 5645 of 1999 Petitioner :- Ashok Kumar Singh Respondent :- State Of U.P. And Others Counsel for Petitioner :- Smt.Anita Tripathi,Vikas Budhwar Counsel for Respondent :- C.S.C.
Hon'ble Ashok Kumar,J.
Heard Sri Vikas Budhwar, learned counsel for the petitioner at great length and Sri S.K. Mishra, learned standing counsel representing all the respondents.
Brief facts of the case are that the petitioner was appointed as Lab Assistant in Sarojani Naidu Medical College Hospital, Agra in place of one Sri Brijesh Narain for a period of six months vide order dated 23.5.1975 issued by Senior Medical Superintendent, Sarojani Naidu Medical College Hospital, Agra (Annexure 1 to the writ petition).
The petitioner claims that the services of the petitioner as Lab Assistant was confirmed by the respondent on 24.7.1985 and thereafter the order passed by Chief Superintendent, Sarojani Naidu Medical College Hospital, Agra dated 12th October 1987 the petitioner was promoted as Technician in the department of Medicine w.e.f. from the date of order dated 12.9.1987 (Annexure 2 to the writ petition).
The petitioner claims that the services of the petitioner as a Technician was confirmed by the respondent in the department of medicine with effect from the date of order issued by the Superintendent in Chief Sarojani Naidu Medical College Hospital, Agra dated 31.1.1990.
The petitioner claims that thereafter the petitioner continued as a Technician in the department of medicine in the respondent hospital. By impugned order dated 10.12.1998, issued by the Deputy Secretary Medical Health Family Welfare U.P. Lucknow, addressed to the Director General, Family Health Welfare U.P. Lucknow, the services of the petitioner from the post of Technician are reverted to the post of Lab Assistant.
By means of the present writ petition the petitioner has challenged the order dated 10.12.1998 passed by the respondent no.2.
The submission of the learned counsel for the petitioner is that no show cause notice was issued to the petitioner nor any opportunity of being heard was provided to the petitioner before reverted him from the post of Technician to the post of Lab Assistant.
On the other hand, learned standing counsel has submitted that the order impugned passed by the respondent no.2 is fully justified rather he should take a harsh steps against the petitioner as the petitioner has got the services of Lab Assistant by playing fraud with help of his father one Sri Nek Ram Singh, who was working in the Medical College as a clerk. Learned standing counsel has brought to the notice of this Court that admittedly on the date of appointment as a Lab Assistant the age of the petitioner was much below the qualified age (18 years) as such when the petitioner was appointed as Lab Assistant he was below 17 years. Learned standing counsel has placed reliance of Annexure 4, which is the certificate issued by Madhyamic Shiksha Parishad, U.P., which clearly mentions the date of birth of the petitioner as 2.8.1958. According to the date of birth mentioned in the High School certificate, on the date of appointment (23.5.1975) the petitioner was only about 16 year and 9 months old.
Learned counsel for the petitioner has informed the Court that in fact the petitioner has retired on 31.8.2015 and that the petitioner continued as Technician in pursuance of the interim order passed by this Court on 17.2.1999 till his superannuation. Learned counsel for the petitioner has also informed the Court that during the pendency of the present writ petition the petitioner died on 3.9.2017.
The substitution application is filed by the widow of the petitioner, the daughter of the petitioner and sons of the petitioner namely Abhishek Singh/Akshaya Kumar.
Sri Vikas Budhwar has submitted that since the petitioner continued as a Technician till his retirement the post retiral dues to be paid to the dependents/family members/claimants as applicable in a case of Technician.
Learned standing counsel on the other hand has submitted that in fact the appointment of the petitioner was bad in law and in fact the petitioner was not even entitled to be appointed as Lab Assistant, the impugned order is fully justified.
Having heard leaned counsel for the parties, without going to the controversy on merit in my opinion, the petitioner was not legally appointed as a Lab Assistant, however since the petitioner has completed his services and he was superannuated on 31st August 2015 and thereafter died on 3.9.2017, it would not be in the interest of justice to make any observation on the merits of the case.
Learned counsel representing the petitioner after considering the entirety of the matter has fairly submitted that he may be permitted to withdraw the writ petition.
The prayer is accepted. The writ petition is dismissed as withdrawn.
Order Date :- 27.2.2019 S.S.