Hon'ble Jaspreet Singh,J.
Heard Sri Gopal Kumar Srivastava, learned Standing Counsel for the appellants and Sri Deepak Singh, learned counsel for the writ petitioner/respondent.
This intra court appeal is barred by 107 days.
On due consideration, since reasons assigned in the affidavit filed in support of application for condonation of delay in filing the present appeal (C.M.Application No. 151640 of 2019) are satisfactory, therefore, we allow C.M.Application No. 151640 of 2019 and condone the delay in filing the present appeal.
Learned counsel for the appellants has drawn our attention to the judgment and order dated 26.4.2017 passed in writ petition no. 15721 of 2016 (S/S) : Vineet Kumar Misra Vs. State of U.P. and others, which was reproduced in the impugned order and has submitted that in Vineet Kumar Misra (supra), as the writ petitioner could not participate in physical examination as he was suffering from Jaundice, therefore, the learned Writ Court granted second opportunity to him for physical examination and directed the respondents/appellants herein accordingly. In the present case, the writ petitioner/ respondent had participated in the physical examination on 5.12.2018 and, therefore, order dated 26.04.2017 (Supra) is distinguishable on facts.
Learned counsel for the appellants has informed that no counter affidavit has been filed on behalf of the appellants in the writ petition.
Considering the aforesaid so also the fact that the writ petitioner had participated in the physical examination, whereas in Vineet Kumar Misra (supra), the writ petitioner had not participated in the examination as he was suffering from Jaundice, we are of the view that the learned Writ Court has erred in granting the benefit of the order dated 26.04.2017 (Supra) to the writ petitioner.
In view of the above, we set-aside the impugned judgment and order dated 25.07.2019 passed in Service Single No. 20276 of 2019 : Raj Kumar Sharma vs. State of U.P. and others, and remit the matter to the learned Writ Court for deciding it afresh, in accordance with law, on merit. Learned counsel for the appellants is directed to file counter affidavit in Service Single No. 21160 (SS) of 2019 within six weeks.
Learned Standing Counsel has given assurance that the counter affidavit will be filed within time as directed by this Court and therefore the petition shall be decided expeditiously.
The special appeal is, accordingly, allowed.
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(Jaspreet Singh, J.) (Pankaj Kumar Jaiswal, J.) Order Date :- 20.12.2019 Asheesh