Uttarakhand High Court

SPA/470/2021 of YOGESH CHANDRA TIWARI Vs STATE OF UTTARAKHAND on 31 December 2021

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COURT OF UTTARAKHAND AT NAINITAL Special Appeal No. 470 of 2021 Yogesh Chandra Tiwari. .......….......Appellant. -Versus- State of Uttarakhand and others. ……...Respondents. Present: Shri Bhagwat Mehra, learned counsel for the appellant. Shri Pradeep Joshi, learned Standing

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IN THE HIGH COURT OF UTTARAKHANDAT NAINITAL

Special Appeal No. 470 of 2021

Yogesh Chandra Tiwari. .......….......Appellant.

-Versus-

State of Uttarakhand

and others. ……...Respondents.

Present: Shri Bhagwat Mehra, learned counsel for the appellant.Shri Pradeep Joshi, learned Standing Counsel for the State of Uttarakhand.

Date of hearing and Order : 31.12.2021

Coram:Shri Sanjaya Kumar Mishra, ACJ.Shri Ravindra Maithani, J.

Upon hearing the learned counsel for the parties, the Court made following order (Per Shri Sanjaya Kumar Mishra, ACJ)

1. In this intra court appeal, petitioner – appellant, herein, has assailed the order passed by the learned Single Judge in Writ Petition no. 1674 (SS) of 2021 on 28.12.2021 rejecting his application for stay on the ground that such interim stay would, in fact, result in final adjudication of the writ petition. In other words, the learned Single Judge has held that by allowing the interim relief application, final relief sought for would be granted. However, learned counsel for the appellant submits that since the writ petition has been filed challenging the order of the Government directing the Authorities to relieve him from services, on the basis of his earlier application for voluntary retirement, interim protection be granted.

2. In a recent judgment, the Hon’ble Supreme Court in the case of New Victoria Mills and others Vs. Shrikant Arya 2021 SCC online SC 808 in paragraph 25 has held that in J.N.

Srivastava Vs. Union of India and Shambhu Murari Sinha Vs. Project and Development India, has held that an employee has a right to withdraw the application for voluntary retirement, even after its acceptance, if such a withdrawal is done prior to the date of employee’s actual retirement then such a withdrawal will be valid and acceptable.

3. In that view of the matter, we are of the opinion that if the petitioner – appellant is not granted interim relief, the writ petition would become infructuous and he shall also face irrepairable loss.

4. In that view of the matter, the special appeal is allowed. Impugned order of the learned Single Judge is set aside. It is directed that petitioner – appellant shall continue to discharge his duties in the post he is now holding for the next six months or till disposal of the writ, whichever is earlier. Learned counsel for the appellant is advised to make a mention before learned Single Judge for early disposal of the writ petition, preferably within six months.

5. Urgent copies be granted during course of the day as per Rules.

(Ravindra Maithani, J.) (Sanjaya Kumar Mishra)

Acting Chief Justice.

SKS

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