Court No. - 29
Case :- SPECIAL APPEAL DEFECTIVE No. - 543 of 2021 Appellant :- Om Prakash And 2 Others Respondent :- State Of U.P. And 7 Others Counsel for Appellant :- Lokesh Kumar Dwivedi Counsel for Respondent :- C.S.C., P.K. Ganguly, B.S. Pandey, J.P. Singh, Ved Prakash Shukla, Vineet Kumar Singh
Hon'ble Munishwar Nath Bhandari,Acting Chief Justice Hon'ble Subhash Chandra Sharma,J.
Heard on the application for condonation of delay of 1883 days in filing the appeal so as on the merit of this case.
The appeal has been preferred against the judgment dated 27.04.2016 alongwith an application for condonation of delay supported by an affidavit. Before addressing the application for condonation of delay, we would like to refer to the issue on merit.
It is a case where a writ petition was preferred by the petitioners apart from others to claim salary from the State. So far as petitioners are concerned, they were in Writ-A No. 2227 of 2000. The interim order was passed to allow the petitioners to work. The writ petition thereupon was dismissed by the judgment impugned herein. Few petitioners amongst others involved in the bunch preferred an appeal before the Division Bench of this Court and when it was dismissed, approached the Apex Court by filing a Civil Appeal No. 3925 of 2018 which was disposed of by the order dated 17.04.2018. The Apex Court considering the order dated 14.07.2017 in Civil Appeal No. 3904 of 2013 permitted the teachers to continue in service in view of their long services despite the fact that they are lacking in qualification. The order aforesaid was passed on 17.04.2018 but the appellants did not file the appeal immediately thereupon rather preferred this appeal when an order was passed on contempt. The prayer of the petitioners is to pass the similar order as has been passed by the Apex Court.
It is fairly admitted by learned counsel that all the appellants have attained the age of superannuation by now and in fact, out of three appellants, appellant nos.
1 and 2 attained the age of superannuation long before.
Taking aforesaid into consideration, we do not find a ground to pass an order to continue the appellants when they have already attained age of superannuation thus, cannot be continue in service now. The similar order, as passed by the Apex Court could have been, if the appellants would not have attained the age of superannuation and otherwise, it was a writ petition to seek payment of salary from the State fund and not to challenge the termination. It may be that pursuant to the interim order dated 18.01.2000, the petitioner-appellants were continued in service till dismissal of the writ petition but having attained the age of superannuation, the prayer of the petitioners to direct the respondents to continue them in service cannot be issued.
Accordingly, even on merit, nothing survives in a writ petition filed to seek salary from the State Exchequer when no interference in the earlier judgment of the Division Bench has been made by the Apex Court on the aforesaid issue. It is also a fact that there is a delay of 1883 days in filing the appeal. It is not justified in reference to the appeal preferred by others and judgment thereupon by the Apex Court. The appellants could not have sit on the fences and to file an appeal only when compliance of the judgment of Apex Court was made. Thus, we do not find even justification of delay.
We otherwise do not find any merit even in the appeal, hence the same is dismissed on merit as well as on the delay in filing the appeal.
Order Date :- 29.7.2021 Shubham .
(Subhash Chandra Sharma, J.) (Munishwar Nath Bhandari, A.C.J.)