Dismissed

State of U.P. Thru Secry. Secondary Education and Another v. Brijesh Pal Singh and Another

Allahabad HC21 Feb 2018SPLAD/1153/2013

Case brief

AI extract

What is this about?

The Court dismissed an intra-Court appeal against a single judge's order granting appointment approval to an employee and rejecting a review application due to the state counsel's failure to produce records. The bench found no merit in the appellants' challenge.

What did the court decide?

Impugned judgment dismissing the review application and allowing the writ petition is dismissed.

State of U.P. Thru Secry. Secondary Education and… — Service and Employment | Allahabad HC (2018)

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Court No. - 34

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Case :- SPECIAL APPEAL DEFECTIVE No. - 1153 of 2013

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Appellant :- State Of U.P. Thru' Secry. Secondary Education And Another Respondent :- Brijesh Pal Singh, And Another Counsel for Appellant :- Pankaj Saxena,S.C. Counsel for Respondent :- B.N. Singh,Rakesh Agrahori

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Hon'ble Sudhir Agarwal,J. Hon'ble Shashi Kant,J.

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Heard learned Standing Counsel appearing for the appellants.

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This intra-Court appeal under Chapter VIII Rule 5 of the Allahabad High Court Rules, 1952 has arisen from the judgment dated 30.08.1999 passed by learned Single Judge in Writ Petition No. 15372 of 1999 – Brijesh Pal Singh Vs. State of U.P. and Others, whereby writ petition was allowed directing the authority concerned to grant approval for appointment of petitioner as well as order dated 17.09.2012 whereby review application filed by respondentsappellants was dismissed.

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This is an appeal showing as to how State Law Officers are functioning.

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The writ petition was filed by petitioner-respondents in 1999. No counter affidavit was filed, hence, it was disposed of by order dated 30.08.1999, which reads as under :-

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“ Despite the order dated 15.4.1999 and subsequent stop order dated 23.7.1999, the respondent no. 2 has not cared to file counter affidavit. The respondent no. 3 has been served by the petitioner. In view of the stop order and also in view of the fact that more than four months have passed since the learned Standing Counsel was granted time to file counter affidavit but no counter

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affidavit has been filed, thus the averments made in the writ petition remain uncontroverted. Learned Standing Counsel suggested that a direction be issued to the respondent no. 2 to consider the case of the petitioner for approval of appointment. This order would have been passed at the ex-parte stage. After granting time for counter affidavit repeatedly no counter affidavit having been filed, it is presumed that the respondent no. 2 has nothing to say in opposition to the writ petition, therefore a mandamus is issued to the respondent no. 2 to grant approval to the appointment of the petitioner. The approval will relate back to the date of appointment of the petitioner and the petitioner will be entitled to his salary alongwith 12% interest. It will be open for the State Government to fix responsibility for the delay upon respondent no. 2 or such person in the office of respondent no. 2 who has been responsible not only for the delay in decision about approval, but also for not filing the counter affidavit to his writ petition and the amount interest be recovered from the guilty person.

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With aforesaid directions, this writ petition is finally disposed of. ”

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A Review/Recall application was filed which has been rejected by learned Single Judge by order dated 17.09.2012, observing rightly that when case was taken up learned Standing Counsel did not assist the Court either on the ground of non availability of record or no preparation. The order dated 17.09.2012, reads as under :-

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“ Civil Misc. Review/Recall Application No.16165 of 2000

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The Writ Petition has been disposed of by the order dated 30.8.1999. The respondent nos. 1 and 2 filed the present Review/Recall Application on 16.2.2000. The application was ordered to be listed with previous papers on 19.2.2000. It was listed on 5.2.2003. In 2003, the Court has passed the following order:

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"Today, learned Standing Counsel is present but he does ot have file. Despite time granted for half an hour, he has not been able to get the file taced out in his office. In the circumstances, this case will be listed in the next cause list by which time Standing Counsel either will have the file traced out or get the file re-constructed in which learned counsel for the applicant will give full cooperation. List in the next cause list."

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On 9.2.2010, the case has again been directed to be listed for order and again on 30.3.2012, the case has been adjourned and was directed to be listed in the next cause list on the request of the learned Standing Counsel, who stated that the record is not available. The case was listed on 13.4.2012. The learned Standing Counsel stated that he is not ready with the matter today and on his request, the matter was again directed to be listed in next cause list. Today, the matter is listed. Learned Additional Chief Standing Counsel again stated that the record of the case is not available.

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Sri B.N. Singh, learned counsel for the petitioner states that the Review/Recall Application, which has been filed beyond five months, without any application for condonation of delay, is barred by time.

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In the aforesaid facts and circumstances, the Court is of the view that no further opportunity should be given to the learned Standing Counsel, representing respondent nos. 1 and 2.

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In view of the above, the Review/Recall Application stands rejected.”

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Correctness of these facts recorded in order dated 17.09.2012 could not be disputed by learned Standing Counsel.

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We therefore, find no reason to interfere in the judgment of learned Single Judge, assailed in this appeal.

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Appeal lacks merit. Dismissed.

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Order Date :- 21.2.2018 A. Verma

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Court No. - 34

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Case :- SPECIAL APPEAL DEFECTIVE No. - 1153 of 2013

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Hon'ble Sudhir Agarwal,J. Hon'ble Shashi Kant,J.

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Order of Application filed under Section 5 of Limitation Act No. 332621 of 2013

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This is an application seeking condonation of delay in filing appeal. 2. Delay in filing appeal is explained satisfactorily. It is hereby condoned. The application is accordingly allowed.

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Let appeal be registered with regular number and old number shall also continued to be shown in bracket for finding out details of case, whenever required by parties with reference to either of the two numbers.

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Order Date :- 21.2.2018 A. Verma

State of U.P. Thru Secry. Secondary Education and Another v. Brijesh Pal Singh and Another

Case brief

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State of U.P. Thru Secry. Secondary Education and Another v. Brijesh Pal Singh and Another

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