Hon'ble Manish Mathur,J.
(C.M. Application No. 4426 of 2015)
1. The application seeks condonation of delay in filing the special appeal.
2. For reasons given in the affidavit in support of the application for condonation of delay, the delay in filing the appeal is hereby condoned.
3. The application is allowed accordingly.
Order Date :- 26.8.2019 prabhat Court No. - 2 Case :- SPECIAL APPEAL DEFECTIVE No. - 28 of 2015 Appellant :- Wazid Ali (Inre 2167 S/S 2011) Respondent :- State Of U.P.,Thru.Secretary Minority Welfare & Muslim Waqfs Counsel for Appellant :- Alok Singh Counsel for Respondent :- C.S.C.
Hon'ble Ajai Lamba,J.
Hon'ble Manish Mathur,J.
(Oral)
1. Wajid Ali has preferred this Special Appeal challenging order dated 23.9. 2014 passed while dealing with writ petition no. 2167 (S/S) of 2011 (Bhola Prasad and Wajid Ali versus State of U.P. and others).
Vide the impugned order the writ petition has been dismissed on the grounds of delay and laches, and also on account of an earlier adjudication vide which it was said that the benefit shall not be available to those candidates of earlier selection who had not come to the Court.
2. Learned counsel for the appellants has not appeared to prosecute the appeal. The appeal relates to the year 2015. Four years have gone by. We find no justifiable reason to adjourn the matter for the reason of absence of the counsel.
In the circumstances, we have heard the learned counsel for respondent, Sri Shikhar Anand, and with his assistance have gone through the contents of the impugned order and the pleadings.
3. It appears that pursuant to advertisement published in 'Dainik Jagran' and 'Rashtriya Sahara' selection for the post of Junior Clerk was held. The selection however was cancelled. The order of cancellation of selection was challenged, however writ petitions were dismissed by learned Single Judge. Special Appeal No. 209 of 2004 however was allowed vide judgment dated 30.7.2007.
While dealing with Special Appeal No. 209 of 2004 the following (relevant portion) was held:-
"We, thus, find that the learned Single Judge while passing the order under appeal did not enter into the validity of the order of cancellation of selection at all and has directed that the result of the selection held in pursuance of the advertisement dated 19.7.1998 be declared within a period of one month from the date of production of a certified copy of this order. Therefore, the judgment and order under appeal is liable to be set aside.
At this juncture, the learned counsel for parties submitted that since there were only thirty one vacancies in the earlier selection against 68 vacancies of the subsequent advertisement and looking to the fact that very few persons have come to the Court, who can very well be accommodated against the 68 vacancies, we provide that the appellants, who approached this Court, challenging the cancellation of selection their result may be declared and on the basis of declaration of result, they may be given appointment against the vacancies advertised. The result of the selection of the subsequent advertisement shall also be declared subject to adjustment of the appellants and the order candidates, if any, who have already approached the Court. The said benefit shall not be available to those candidates of earlier selection, who have not come to the Court till date.
We, therefore, set aside the order passed by the learned Single Judge and direct that all the candidates, whose result has been directed to be declared and who are declared successful, they shall be given appointment without any further delay.
The special appeal is disposed of finally in accordance with law."
(emphasized by us)
4. The impugned order notices that S.L.P. No. 7744 of 2008 was filed in the Hon'ble Supreme Court of India, which however was withdrawn on 14.12.2010 thereby rendering the judgment dated 30.7.2007 as final.
5. It is apparent that the appellant-writ petitioner did not join the litigants at the time of filing the original writ petition, and even in subsequent proceedings. For the first time writ petition no. 2167 (S/S) of 2011(supra) was filed by the writ petitioners. The said writ petition has been dismissed for the reason that Special Appeal Bench while dealing with Special Appeal no. 209 of 2004 (supra) made it clear that the benefit shall not be available to those candidates of earlier selection who have not come to the court till date. Case of the writ petitioners falls within that category.
The other reason given by the learned Single Judge in the impugned order is that the claim of the appellants-writ petitioners suffers from delay and laches.
6. A possible view has been taken by learned Single Judge with which we find no reason to differ in Special Appeal jurisdiction. The reasons adopted by learned Single Judge are in accordance with law and equity.
7. Dismissed.
Order Date :- 26.8.2019 prabhat