Court No. - 40
Case :- SPECIAL APPEAL DEFECTIVE No. - 791 of 2018 Appellant :- Pramod Kumar Gautam Respondent :- District Inspector Of Schools And 05 Others Counsel for Appellant :- Sunil Kumar Srivastava,Ashok Khare Counsel for Respondent :- C.S.C.,Pradeep Kumar Pandey
Hon'ble Amreshwar Pratap Sahi,J. Hon'ble Ajit Kumar,J.
Order on delay Condonation Application No. 1 of 2018 Heard learned counsel for the appellant Sri Ashok Khare learned Senior Counsel assisted by Sunil Kumar Srivastava.
The delay as explained is sufficient. The delay condonation application is allowed and the appeal shall be treated to be within time and shall be given a regular number by the office.
Order on appeal Supplementary Affidavit filed today is taken on record. Admit.
This appeal questions the correctness of the judgment of the learned Single Judge dated 3rd August 2018 on the ground that the learned Single Judge without adverting to the merits of the case and in an ex-parte manner has proceeded to dismiss the writ petition when the petition was very much alive and it was not infructuous.
It is further submitted that the appellant was working as a Lab Assistant and his qualifications are B.Sc. with Physics, Chemistry and Maths as subjects.
One Keshav Dev Saraswat who was appointed on compassionate basis against a supernumerary post was adjusted as a Class IV employee in the institution and this dispute after some litigation was settled by the District Inspector of Schools Mathura vide order dated 1st September 1997 when the writ petition filed by the appellant was pending and the said order was brought on record through a counter affidavit. It is however on record that an interim had been passed on 04th September 1997 in favour of the appellant which is extracted hereinunder:-
"Issue notice. Counter affidavit may be filed within three weeks'. The order dated 07.07.1997 is stayed and the respondents are directed to pay the salary to the petitioner."
It appears that the order dated 01st September 1997 was not assailed by the appellant through any amendment but a supplementary affidavit has been filed today explaining that being on account of the interim order passed by this Court. The said order dated 1st September 1997 therefore did not adversely affect the continuance or receiving salary of the appellant in the institution.
On the other hand Keshav Dev Saraswat also continued in the institution after being adjusted and is being paid salary of a Class IV employee. His qualifications are M.A. in Economics.
The continuance of Keshav Dev Saraswat according to the learned counsel is against a post which is not in excess of the sanctioned strength in the institution and therefore the appellant as well as Keshav Dev Saraswat are both continuing to get salary within the sanctioned strength of the institution.
Keshav Dev Saraswat had attempted to get his appointment upgraded as a Class III employee keeping in view his qualifications and the initial recommendations made in his favour, but the Court is informed that he could not succeed and ultimately his Writ Petition No. 49688 of 2002 came to be dismissed on 05th April 2018.
It is in this background that the learned Senior Counsel contends that the appellant's appointment is otherwise not illegal nor affected, inasmuch as, prior to the passing of the order dated 1st September 1997, the appointment of the appellant had been approved by the District Inspector of Schools.
Prima facie, this Court finds that the learned Single Judge has nowhere considered any of the aforesaid submissions advanced and also the fact that there is no extra burden on the State exchequer for making payment of salary simultaneously to the appellant along with Sri Keshav Dev Saraswat who is also continuing on his separate sanctioned post as a Class IV employee. Consequently, a case grant of interim relief is made out.
Until further orders of the Court, the operation of the impugned judgment dated 3rd August 2018 shall remain stayed. The appellant shall be continued as Lab Assistant and shall be paid salary but payment of salary to the appellant shall in no way affect the continuance or otherwise receipt of salary by Keshav Dev Saraswat.
Learned counsel for the respondents may file a response if they so choose within six weeks'. The appeal may be listed in its turn or as directed by the court in future.
Order Date :- 29.10.2018 M. ARIF