Hon'ble Irshad Ali,J.
Heard Sri Sanjai Kumar Singh, learned counsel for the appellant and Sri Q.H. Rizvi, learned Additional Chief Standing Counsel for respondents.
This special appeal is barred by 150 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. 113991 of 2019) are satisfactory, therefore, C.M.Application No. 113991 of 2019 is allowed. Delay in filing the instant appeal is condoned.
This special appeal has been filed by the appellant against the judgment and order dated 26.3.2019 passed in Service Single No. 7266 of 2011 : Umesh Kumar Vs. State of U.P. and others, whereby the learned Writ Court, while placing reliance upon Riyasat Ali Vs. State of U.P. and others : 2003 (53) ALR 257, dismissed the writ petition with liberty to the writ petitioner to avail the appropriate remedy before the appropriate Court.
The sole contention of the learned counsel for the appellant is that in view of the decision of the Full Bench of this Court dated 01.10.2018 rendered in Writ-A No. 30084 of 2003 : Rajveer Singh Vs. State of U.P. and others, writ petition [No. 7266 of 2011 (S/S)] filed by the appellant under Article 226 of the Constitution of India is maintainable but the learned Writ Court, without considering the observations made by the Full Bench of this Court in the last two paragraphs of Rajveer Singh (supra), which has been annexed with this special appeal, erred in dismissing the writ petition as not maintainable under Article 226 of the Constitution of India and relegated the petitioner to avail the appropriate remedy before the appropriate Court. Thus, the impugned order passed by the learned Writ Court is liable to be set-aside and the matter be remitted to the learned Writ Court for deciding it afresh in accordance with law.
The relevant paras of Rajveer Singh (Supra) is reproduced as under :
"In this regard, we may point out that the Apex Court in the case of A.K. Nag Vs. General Manager (P.J.)Indian Oil Corporation Ltd, Haldia & Others 2005 (7) SCC 764 which is a three Judges decision had the occasion to deal with a somewhat similar situation in the case of an employee of the Indian Oil Corporation where also the issue of the employee holding a civil post and applicability of Article 311(2) of the Constitution of India had been raised. The said decision answered the question holding that an employee of the corporation was not holder of a civil post. It however held that even in such situations where the employee is claiming protection of the audi alteram partem Rule, there cannot be a straight jacket formula but if the action is unreasonable or arbitrary then in that event the tenets of Article 14 would be attracted and the same can be tested on the anvil thereof for which the said decision further ruled that a writ petition under Article 226 read with Article 227 would be maintainable. A Home Guard as observed above may for the time being be not holder of a civil post, but there is a substantial statutory control of the State administration under the 1963 Act. Consequently, we do not find there to be any conflict on this issue and once the law has been clarified by the Apex Court we find that the judgment in the case of Ram Kumar (supra) rightly holds that a writ petition would be maintainable under Article 226/227 of the Constitution of India in the event an action taken under the 1963 Act is questioned.
In view of the two questions referred, having been answered by us, let the judgment be now placed before the learned Single Judge for proceeding further in the matter."
Considering the aforesaid, we are of the view that though there is delay of 11 years in filing the writ petition by the writ petitioner but the writ petition under Article 226 of the Constitution of India filed by the writ petitioner is maintainable in view of the Full Bench decision of this Court in Rajveer Singh (Supra), therefore, the impugned order passed by the learned Writ Court is liable to be set-aside.
In view of the above, we set-aside the impugned judgment and order dated 26.3.2019 passed in writ petition No. 7266 of 2011 (S/S) and remit the matter to the learned Writ Court for deciding it afresh, in accordance with law.
The special appeal is, accordingly, allowed.
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(Irshad Ali, J.) (Pankaj Kumar Jaiswal, J.) Order Date :- 26.9.2019 Ajit/-