Court No. - 40
Case :- SPECIAL APPEAL DEFECTIVE No. - 789 of 2018 Appellant :- Nand Kumar Respondent :- Managing Director U.P. State Road Transport Corporation And Another Counsel for Appellant :- Manas Bhargava Counsel for Respondent :- Sunil Kumar Misra
Hon'ble Amreshwar Pratap Sahi,J. Hon'ble Harsh Kumar,J.
Ref:- Civil Misc. Delay Condonation Application No. 1 of 2018.
Heard learned counsel for the appellant and Sri Rahul Agarwal for the U.P. State Road Transport Corporation.
The relief prayed for in this appeal is with regard to pensionary benefits. It is settled law that pension is not a bounty reference may be had to the decision in the case of D.S. Nakara & Others Vs. Union of India AIR 1983 SC130.
The question as to whether such pension is admissible to the appellant or not is also in our opinion a recurring cause of action and cannot be rejected on the ground of laches.
The learned Single Judge has dismissed the writ petition on the ground of laches and the appeal is belated by 385 days. In these peculiar facts where the appellant has come up for his pensionary benefits, we find that the cause shown is sufficient to condone the delay.
The delay condonation application is allowed and the appeal shall be treated to be within time.
The office shall give a regular number to this appeal.
Order on Appeal:-
Heard Sri Manas Bhargava, learned counsel for the applicant-appellant and Sri Rahul Agarwal, learned counsel for the respondent nos. 1 and 2.
The Court had adjourned the matter for today on the request of Sri S.K. Mishra, learned counsel who had put in appearance for the respondent-Corporation to assist the Court as a statement had been made that the appellant's case would be covered by another judgment.
Sri Rahul Agarwal has placed before us the judgment in the case of Committee of Management U.P. Rajkiya Roadways Parivahan Nigam Sewa Nivrat & Others Vs. State of U.P. & Others decided on 24.11.2016. Sri Agarwal however submits that this judgment may however not be applicable on the facts of the present controversy, and therefore, the appellant if establishes his case, he would be entitled to the benefits of the judgment relied on by the learned counsel for the appellant in the case of Satya Prakash Kulshrestha Vs. State of U.P. & Others in Special Appeal Defective No. 23 of 2016 decided on 01.02.2016.
Having considered the submissions raised, we find that the learned Single Judge has proceeded to consider the question of laches on the ground that the appellant had retired in the year 2007 and an order had been passed in the year 2011, therefore, the filing of the writ petition in the year 2017 would be governed by the principles of laches.
However the learned Single Judge further proceeded on the merits of the claim as well and after having referred to the Government Orders dated 20th October, 2004 and 26th December, 2005 came to the conclusion that the appellant would not be entitled to receive the said benefits from the corporation.
On the issue of laches it is correct that the appellant did commit a delay in approaching the Court but since pension is not a bounty and is also recurringly payable amount, we do not find this to be a case to deny access to justice to the appellant on such ground. Apart from this we otherwise also find that the findings recorded on merits against the appellant is not sustainable, in the event, it is established that the appellant was holding such a post in relation whereto pension would be admissible as per the decision in the case of Satya Prakash Kulshrestha (supra). We may further clarify that the observations made by the learned Single Judge that a challenge was necessary to the Government Orders, does not appear to be correct in view of the law laid down in the case of Satya Prakash Kulshrestha (supra). The learned Single Judge therefore ought to have called for a affidavit and then proceeded to dispose of the matter accordingly.
In this view of the matter, the impugned judgment dated 19.08.2017 is set aside and the appeal is allowed.
The U.P. State Road Transport Corporation is directed to file a counter affidavit within two weeks' to the writ petition which shall stand restored to its original number. The appellant will have a week's time thereafter to file a rejoinder affidavit to the same and the writ petition shall be listed for appropriate orders before the learned Single Judge immediately after the expiry of the aforesaid period.
Order Date :- 26.10.2018 S.Chaurasia