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Court No. - 37
Case :- SPECIAL APPEAL DEFECTIVE No.- 363 of 2015
Appellant :- Bharat Suman
Respondents :- State Of U.P. and others
Counsel for Appellant :- Sri Ramesh Kumar Mishra & Sri S.K. Pandey
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Counsel for Respondents :- C.S.C. Sri R.K. Yadav Hon'ble Rakesh Tiwari,J. Hon'ble Mukhtar Ahmad,J. Sri Seemant Singh, Advocate has filed his Vakalatnama on behalf of respondent no. 3 today in Court, which is taken on record. Heard learned counsel for the parties and perused the record. This intra court appeal has been preferred by the appellant challenging the validity and correctness of the judgment and order dated 30.4.2015 passed by the Writ Court in Civil Misc. Writ Petition No. 24818 of 2015, Santosh Kumar Mishra and others versus State of U.P. and others, whereby the aforesaid writ petition had been disposed of with the consent of the parties. A preliminary objection has been raised by the learned standing counsel for respondent no.1, Sri A.K. Yadav, learned counsel for respondent no.2 and Sri Anoop Trivedi, learned counsel for respondent nos. 3 to 7 that the special appeal is not maintainable, hence the same may be dismissed as infructuous as the original order dated 29.5.2014 was challenged in Special Appeal Nos. 561 of 2014 and 622 of 2014, which were dismissed vide judgment and orders dated 12.6.2014 and 7.4.2015. It is also submitted that the review petition filed against the judgment and order dated 29.5.2014 filed by the appellant in this appeal has also been dismissed vide judgment and order dated 8.5.2015. While deciding the review petition in Writ-A No. 28686 of 2014, Brahm Dev Yadav and others versus State of U.P. and others, the Court has also noted the fact in the aforesaid judgment and order dated 8.5.2015, which reads thus:"
1. This is an application for review/ recall of this Court's judgment and order dated 29th May, 2014 on the ground that a learned Single Judge has passed an interim order in another Writ Petition No. 50787 of 2013 along with several other writ petitions, and, therefore, there are two contradictory orders. Copy of the order dated 11.12.2013 passed by Hon'ble Mr. Justice Vikram Nath is on record.
2. It appears that the Writ Petitions No. 58520 of 2013, 62241 of 2013, 55925 of 2013, 50787 of 2013, 62025 of 2013, 58712 of 2013, 57236 of 2013, 52521 of 2013 and 60088 of 2013 are connected and taken up together by His Lordship and after noticing the dispute in the aforesaid writ petitions, separately, the Court ordered respondents to file counter affidavit and fixed the matter on another date. It is also an admitted case that in all the connected matters no interim order initially was granted except in Writ Petition No. 52521 of 2013, Neelam Kumari Gautam Vs. State of U.P. and others, which was going to expire on 11.12.2013. The Court while granting time adjourning all the matters till Tuesday i.e. 17.12.2013, extended interim order already granted. The relevant paragraph of the said order dated 11.12.2013 reads as under:"Sri Mirg Raj Singh, and Sri B.P. Singh learned counsels representing the District Basic Eduction Officer and also the Secretary Basic Education Board may file counter affidavits within three days. As prayed by the learned counsels for the parties put up all the cases in the additional cause list on 17.12.2013. Sri Sanjay Sinha, Secretary, Basic Education Board is present. As he has filed an appropriate affidavit about the questions posed in the order dated 23.10.2013, his personal appearance for the time being is exempted. However as and when required he would again remain present before this Court for proper adjudication of the controversy raised. The interim order granted earlier to continue till Tuesday i.e. 17.12.2013."
3. Again all the aforesaid matters came up before his Lordship on 17.12.2013 and while granting further time to the respondents in the bunch of the aforesaid matters, the Court said, "The interim order granted earlier to continue till the next date of listing."
4. It is thus clear that in all the matters whereever the interim order was already granted, was directed to continue.
5. It is admitted out that in all the aforesaid matters, except Writ Petition No. 52521 of 2013, no interim order was granted, therefore, question of continuance would not have arisen. Similarly when an order of extension of an interim order was passed subsequently, it would also not result in granting an interim order, which did not exist at all. In all the orders which are on record show that the interim order granted was directed to continue. When no interim order was granted, the question of continuance would not arise.
6. It is stated before the Court by counsel that the interim order was passed in one Writ Petition No. 52521 of 2013 and that writ petition has now been dismissed as withdrawn vide order dated 23.04.2015. The said order passed by Hon'ble Mr. Justice Abhinava Upadhya reads as under:"Sri Dharmendra Kumar Srivastava, Advocate holding brief of Sri Kshetresh Chandra Shukla, learned counsel for the petitioner states that he does not wish to press this writ petition any further. He has also moved an application being Civil Misc. Withdrawal Application No. 132303 of 2015 for withdrawal of the writ petition. The prayer is allowed. The writ petition is, accordingly, dismissed as not pressed. Interim order, if any, stands discharged."
7. In view thereof, it cannot be said that now there exists two cont radictory orders, warranting recall/ review of this Court's judgment dated 29th May, 2014 passed in Writ Petition No. 28686 of 2014, therefore, there is no occasion to review/ recall of the aforesaid order at this stage and in view of subsequent events.
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8. Shri Ashok Khare, learned Senior Counsel has also informed that against the order dated 29.05.2014, Special Appeal No. 561 of 2015 was filed but the same was dismissed vide order dated 12.06.2014, which reads as under:"Having heard the learned counsel for the appellant, we do not find any reason to interfere in the impugned order passed by the learned Single Judge. The appeal is dismissed."
9. The present application for recall /review No. 123689 of 2015 stands dismissed.
10. Now the question is regarding final disposal of all the remaining connected matters.
11. Let all the matters be listed before the Court on 15.05.2015, and it is made clear that same shall not be adjourned.
12. Shri Ashok Khare further stated that there are two more matters which also required to be heard with this bunch of matters. These are Writ Petitions No. 57476 of 2013 and 628 of 2015.
13. These two writ petitions may also be listed subject to nomination by Hon'ble The Chief Justice, along with the above matters."
In this special appeal, the appellant has prayed for quashing the judgment and order dated 30.4.2015 passed by the Writ Court in Civil Misc. Writ Petition No. 24818 of 2015, Santosh Kumar Mishra and others versus State of U.P. and others. The Writ Court has also noted about the judgment in Civil Misc. Writ Petition No. 28686 of 2014, referred to above. The judgment and order dated 30.4.2015 reads thus:"
Heard Sri Anoop Trivedi, learned counsel for petitioner, learned Standing Counsel for respondent No.1 and Sri A.K. Yadav for respondent No.2. The petitioners claim that they have been selected for appointment as Assistant Teacher in primary schools but they have not been issued any appointment letter.
A similar controversy by some other selected candidates had come up for consideration before learned single Judge in Writ Petition No.28686 of 2014 (Brahm Dev Yadav and others Vs. State of U.P. and others). It was decided vide judgment and order dated 29.5.2014 directing respondents-authorities to complete process of making actual appointments within a period of two months and ensure that appointed persons join their respective posts within a fortnight thereafter.
The aforesaid order has been upheld by the Division Bench in special appeal. In view of the aforesaid facts and circumstances, with the consent of the parties, the writ petition is disposed of in same terms and conditions as contained in the judgment and order dated 29.5.2014 passed in the above referred writ petition."
In view of the aforesaid facts and circumstances of the case, we do not find any illegality or infirmity in the impugned judgment and order of the Writ Court as the matter has already been decided in special appeals earlier.
The Special Appeal is, accordingly, dismissed.
Dated 15.5.2015 CPP/
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