Hon'ble Jaspreet Singh,J.
Heard Sri Manjive Shukla, learned counsel for the State-Appellants and Dr. L.P.Mishra, learned counsel for the respondent no.1 on the C.M.Application No.85263 of 2019 as well as on the question of admission of appeal.
This appeal is beyond time of 135 days.
On due consideration as well as reasons assigned in the application, so also the objection filed by the respondent no.1, we are of the view that cause shown is sufficient.
Delay in filing the appeal is condoned.
The delay condonation application no. 85263 of 2019 is allowed.
This special appeal under Chapter VIII Rule of the Allahabad High Court Rules, has been filed against the interim order dated 08.02.2019 passed by learned writ Court in Civil Misc. Writ Petition No. 3690 (S/S) of 2019 (Atul Prakash Vs. State of U.P. and others, whereby the learned writ Court had directed the appellant to make payment of current salary to the respondent no.1 monthly basis as and when the same falls due in accordance with the Salary Act.
Learned counsel for the State-Appellant has submitted that fraud has been played in obtaining the appointment of the respondent no.1 on the post of Assistant Teacher and to support the aforesaid averments, he has drawn our attention to the staff statement for the year 2011 and 2012, though the respondent no.1 was appointed in the year 2010 but there is no details in the staff statement and only in the year 2013, his name has been shown by the committee of management, therefore, the District Basic Education Officer, Ambedkar Nagar has rightly passed the order dated 06.08.2018, whereby rejecting the prayer of the respondent no.1. He further submitted that looking to the aforesaid facts and circumstances, the impugned order passed by the learned writ Court is liable to be set aside.
Per contra, Dr. L.P.Mishra, learned counsel for the respondent no.1 has drawn our attention to main order dated 29.10.2012 passed in Service Single No. 7146 of 2010 in the matter of the Vivek Kumar Vs. State of U.P. and has submitted that said Vivek Kumar was appointed in the year 2009, apart from the aforesaid Vivek Kumar, one Virendra Kumar and Pawan Kumar Singh were also appointed in the year 2009 but their names have not been shown in the staff statement for the year 2011 and 2012 but pursuant to the order passed by the learned writ Court, they were drawing their salary. He undertakes that in case, the writ petition is dismissed, then the respondent no.1 will refund the salary drawn by him.
Considering the aforesaid, an application for stay vacation has been filed before the learned writ Court, so also the undertaking, therefore, we are not incline to pass any order and the appellant may pursue the stay vacation application by raising all the grounds and we expect that the learned counsel for the parties shall make a prayer before the learned writ Court for early disposal of the stay vacation application.
It goes without saying that the undertaking be filed within 7 days from today in the shape of the affidavit before the learned writ Court.
With the aforesaid, the special appeal is dismissed.
[Jaspreet Singh,J.] [Pankaj Kumar Jaiswal,J.] Order Date :- 30.7.2019 S.Ali