Order on Delay Condonation Application
Heard learned counsel for the parties.
In view of the averments made in the affidavit filed in support of the application under Section 5 of the Limitation Act, we are satisfied that the appellant was prevented by sufficient cause from preferring the Special Appeal within the period of Limitation.
The application is, accordingly, allowed and the delay in filing the Special Appeal is condoned.
Order Date :- 26.2.2018 MAA/-
(Dilip Gupta,J) (Jayant Banerji,J.) (Delivered by Hon'ble Jayant Banerji,J.) This Special Appeal is directed against the judgment dated 9 December 2016 passed in Writ-A No.29010 of 1993 by means of which challenge to the termination of the service of the petitioner-appellant has been rejected and the writ petition has been dismissed.
Heard learned counsel for the petitioner-appellant and the learned Standing Counsel for respondent nos. 1 and 2.
It has been stated in the writ petition that the petitioner- appellant was appointed on 1 September 1987 as Class-IV employee (peon) in the institution known as Sri Anardevi Khandelwal Mahila Polytechnic, Mathura, which is under the control of Director Technical, U.P. and the institution is a recognized and aided institution of the State of Uttar Pradesh. It has been contended by the learned counsel for the petitioner- appellant that the service of petitioner-appellant was illegally terminated by means of an order dated 24 May 1993 without any opportunity of hearing. It has been further contended that the provisions of Uttar Pradesh Temporary Government Servants (Termination of Service) Rules, 1975 (hereinafter referred to as the 'Rules of 1975') is not applicable on the aforesaid institution and so the learned Judge has erred while placing reliance on the provisions of the said Rules while dismissing the aforesaid writ petition.
The learned Standing Counsel has controverted the averments made by the learned counsel for the petitioner-appellant and has stated that as per the own admission of the learned counsel for the petitioner-appellant before the learned Judge, the provisions of Rules of 1975 are applicable to the institution.
In the writ petition the petitioner-appellant had initially challenged the order dated 24 May 1993 whereby the petitioner- appellant was informed that it was not feasible to consider the (2) application for extension of leave and subsequently by an order dated 3 December 1993 the services of the petitioner-appellant were terminated by the respondents in exercise of the powers under the Rules of 1995. The order dated 3 December 1993 was challenged by the petitioner by filing an amendment application in the writ petition. It is evident from a perusal of the order of the learned Judge that the learned counsel for the petitioner-appellant had contended that the notice of termination was in violation of the Rules of 1975 inasmuch as period of one month notice was not given before affecting the order of termination. Moreover, the learned Judge recorded the admission of the petitioner-appellant that his appointment was of a temporary character and the Rules of 1975 were applicable. The Court found no merit in the writ petition and it was consequently dismissed.
In these circumstances, the contention of the learned counsel for the petitioner-applicant that the Rules of 1975 are not applicable to the institution is at complete variance with the stand taken before the learned Judge in the writ petition. In this view of the matter, we see no reason to interfere in the judgment dated 9 December 2016 passed by the learned Judge. This Special Appeal is, accordingly, dismissed.
Order Date :- 26.2.2018 MAA/-
(Dilip Gupta,J) (Jayant Banerji,J.)