Hon'ble Rajeev Singh,J.
(C.M. Application No. 54974 of 2021) The Court convened through video conferencing.
Heard Shri Surendra Singh, learned counsel for the appellant and Shri H.P. Srivastava, learned Additional Chief Standing Counsel for the respondents.
Cause shown for delay in the affidavit filed in support of the application is sufficient and the same is condoned.
Delay condonation application stands allowed.
Order Date :- 5.5.2021 VKS Court No. - 10 Case :- SPECIAL APPEAL DEFECTIVE No. - 190 of 2021 Appellant :- Umesh Chandra (In S/S 17114 Of 2020) Respondent :- State Of U.P.Thru.Prin.Secy. Electricity Deptt.Lko.& Ors.
Counsel for Appellant :- Surendra Singh Counsel for Respondent :- C.S.C.
Hon'ble Ramesh Sinha,J.
Hon'ble Rajeev Singh,J.
The Court convened through video conferencing.
Heard Shri Surendra Singh, learned counsel for the appellant and Shri H.P. Srivastava, learned Additional Chief Standing Counsel for the respondents.
This is an appeal under the Rules of the Court arising from the judgment and order dated 19th October, 2020 of the learned Single Judge dismissing the appellant?s Writ Petition (S/S) No. 17114 of 2020.
The short facts giving rise to the appeal is that the appellant claims himself to be the maternal cousin of late Ravi Sharma, who was working under the control of respondent no. 6. In an accident, Ravi Sharma died on 24.10.2016. However, before his death, a notarial adoption deed was executed by Ravi Sharma on 24th June, 2016, on the basis of which, appellant moved an application dated 28.07.2017 claiming himself to be entitled for appointment under the U.P. State Electricity Board Dying-in-Harness Rules, 1975. The said application was rejected by the Executive Engineer vide order dated 30.12.2017 by saying that the adoption deed is not valid. Thereafter, appellant moved another application dated 19.08.2020 and requested that he may be given compassionate appointment considering the adoption deed being a dependent of late Ravi Sharma.
When the said application was not being disposed of, the appellant-petitioner moved Writ Petition (S/S) No. 17114 of 2020 seeking a writ of mandamus commanding the opposite parties to recruit him in the Electricity Department under the Dying-in-Harness Rules, after considering the adoption deed within a stipulated period. A further prayer was made to decide his representation dated 19.08.2020 within a stipulated period. Learned Single Judge, vide impugned order dated 19.10.2020, while rejecting the prayer of the petitioner, observed that the representation was moved with an inordinate delay of four years and, in case, an order directing the respondents to decide the said representation is passed without considering the delay, it would create a fresh cause of action for the petitioner. Hence, the present appeal.
Learned counsel for the appellant submits that the learned Single Judge failed to consider the fact that in the case of Manoj Kumar Saxena Vs. D.M. Bareilly & Ors., (2000) 2 UPLBEC 1694, the delay was condoned and the case of the victim was considered after 14 years on the direction of the Court and, therefore, this appeal is liable to be allowed and the matter may be remanded back.
Shri H.P. Srivastava, learned Additional Chief Standing Counsel, on the other hand, submits that the earlier application of the appellant dated 28.07.2017 had already been considered and rejected by the Executive Engineer on 30.12.2017, which is appended as Annexure 3 to the writ petition and this fact is also mentioned in para 6 of the writ petition, but in suppression of this fact, appellant moved another application dated 11.08.2020 (appended as Annexure 1 to the writ petition). It is further submitted that the Writ Petition (S/S) No. 17114 of 2020 was filed by the appellant-petitioner with the prayer that his representation dated 19.08.2020 may be decided and he may be given appointment under the provisions of the Dying-in-Harness Rules, considering the adoption deed. It is vehemently submitted that when his claim had already been rejected on 30.12.2017 and the said order has not been challenged, therefore, appellant is not entitled to get any relief. Drawing the attention of the Court towards Annexure 2 to the affidavit filed in support of the appeal, which is an application dated 28.12.2018 moved by the appellant, Shri H.P. Srivastava submits that the matter in relation to the claim/succession of late Ravi Sharma is pending in the court of Additional District Judge, Gorakhpur. In such circumstances, when the claim in relation to compassionate appointment of the appellant was already rejected on 30.12.2017, which order has not been challenged, the second application dated 19.08.2020 is not maintainable. It is lastly submitted that this fact was not decided by the writ court and this issue can be decided in the present appeal.
Learned counsel for the appellant failed to reply the fact that as to how the subsequent application dated 19.08.2020 is maintainable, when his earlier application for compassionate appointment dated 28.07.2017 was already rejected on 30.12.2017 and the same was not challenged. He also failed to explain the fact that the disputed question of fact in relation to the succession/claim of late Ravi Sharma is pending in the court of Additional District Judge, Gorakhpur.
We have considered the arguments advanced by the learned counsel for the parties and gone through the record.
It is evident that on the basis of one notarial adoption deed, application dated 28.07.2017 was moved by the appellant for compassionate appointment claiming himself to be the dependent of late Ravi Sharma, who was the maternal cousin of the appellant. The said application was rejected by the Executive Engineer on 30.12.2017 with the observation that adoption deed is not valid in the eyes of law. Admittedly, the said order was not challenged by the appellant and he moved another application dated 19.08.2020 and filed Writ Petition (S/S) No. 17114 of 2020 with the prayer for disposal of the same as well as also prayed for giving him compassionate appointment. It is also evident from the aforesaid application dated 19.08.2020 that he has not disclosed that his earlier application dated 28.07.2017 was already rejected on 30.12.2017. It is also evident from the record that the dispute in relation to the succession of late Ravi Sharma is also pending in the court of Additional District Judge, Gorakhpur. The case law relied on by the learned counsel for the appellant is, thus, not applicable in the present case.
In view of above facts and discussions, this special appeal lacks merit and stands dismissed.
Order Date :- 5.5.2021 VKS