Hon'ble Arvind Kumar Tripathi (II),J.
Heard learned Counsel for the appellant and the learned Standing Counsel for the respondent Nos. and 2.
The appellant was extended the benefit of compassionate appointment after the death of her husband by the order dated 20.4.2001. The appellant was admittedly appointed as a Class-IV employee. Her services were dispensed with by cancelling the said appointment on the ground of an alleged deficiency in educational qualification.
The appellant filed the writ petition giving rise to the present controversy, being Writ Petition No.3634 of 1991, and the writ petition was entertained and the appellant was also favoured with an interim order as a consequence whereof she continued in service and has received salary as a class-IV employee/Peon.
The writ petition appears to have been listed on 15.4.2009 for hearing on which date in the absence of the learned Counsel for the appellant, the petition was dismissed for want of prosecution.
The appellant has stated in her Affidavit that she is now 59 years of age and is at the verge of attaining superannuation and that she was not informed about the dismissal of the writ petition in default. Not only this even the respondents did not take any action which may have resulted in any information to the appellant, inasmuch as, she continued to be in service and was receiving salary month by month. It is only when she was restrained from signing on the Attendance Register on 15.9.2014 that she came to know of the dismissal of the said writ petition in default. Thereafter, she contacted another counsel, who filed the restoration application before the learned single Judge for setting aside the ex-parte order dated 15.4.2009.
The learned single Judge vide order dated 30.10.2014 has observed that he did not find any valid reason to condone the delay and has also rejected the restoration application. The appellant, therefore, prays for setting aside the order dated 30.10.2014 as well as the order dated 15.4.2009 with all other consequential reliefs claimed originally in the writ petition.
As indicated above, the matter is very old and is of the year 1991. The appellant is a lady, who has continued in service as a class-IV employee. In our considered opinion, the dispensation of her service, at the fag end of her career, would be a travesty of justice and would also be inequitable. The explanation given by the appellant in support of the delay condonation for restoring the matter appears to be bona fide inasmuch as she was getting salary till September, 2014. This explanation does not appear to have been appropriately considered by the learned single Judge while proceeding to reject the restoration application. We, therefore, find sufficient grounds that were available and were justified for restoring the case after condoning the delay.
We, accordingly, do so and set aside the order dated 30.10.2014 whereby the restoration application has been rejected.
We also, accordingly, condone the delay and treat the application within time. We further find from the reasons disclosed in the restoration application that the situation was beyond the control of the appellant and, therefore, the writ petition ought to have been restored to it's original number. We, therefore, set aside the order dated 15.4.2009 and restore the writ petition to it's original number.
Having considered the submissions so raised on the facts of the present appeal, it is evident that the appellant is 59 years of age and, therefore, no useful purpose would be served in remitting the matter back to the learned single Judge and, therefore, with the consent of the parties, we are disposing of the writ petition alongwith this appeal finally ourselves.
The order of dispensation and cancellation of appointment of the petitioner does not appear to have been passed after giving any notice or opportunity to the appellant. The same is clearly in violation of the principles of natural justice and, therefore, violative of Article 14 of the Constitution of India. Apart from this, the appellant is a petty class-IV employee, who, in the aforesaid background, does not deserve to be non-suited now at the fag end of the career.
We, therefore, in exercise of our extra ordinary jurisdiction under Article 226 of the Constitution of India and in view of the reasons aforesaid, set aside the order dated 30.4.1991 and allow the writ petition. This discretion is being exercised on the peculiar facts of this case as noted above. We direct the respondents to treat the appellant to continue in service and extend all consequential benefits to the appellant in accordance with law.
Order Date :- 3.12.2014 Irshad