WRIT PETITION 5521 of 1993 on 7 December 2017

Case :- WRIT - A No. - 5521 of 1993Petitioner :- Shashi Kant Sharma and Ors.Respondent :- Conservetor Of ForestCounsel for Petitioner :- Swapnil Kumar,Pradeep KumarCounsel for Respondent :- S.C

AND

Case :- WRIT - A No. - 684 of 2021Petitioner :- Shashi Kant SharmaRespondent :- State Of U.P. And 2 OthersCounsel for Petitioner :- Awadhesh Kumar Saxena,Avijit SaxenaCounsel for Respondent :- C.S.C..

Hon'ble Mahesh Chandra Tripathi,J.

Heard Shri Avijit Saxena, learned counsel for the petitionersand Shri Devesh Vikram, learned Standing Counsel for therespondents.

In Writ A No.5521 of 1993 the petitioners have prayed forquashing the order dated 13/15.1.1993 passed by therespondent, whereby the temporary services of the petitionerswere terminated under the provisions of TemporaryGovernment Servant (Service Termination) Rules, 1975.

In Writ A No.684 of 2021 the petitioner has challenged theimpugned notice dated 16.12.2020 issued by the secondrespondent/Chief Conservator of Forest & Regional Director(Social Forestry), Kanpur Range, Kanpur. Further request hasbeen made to issue direction to the respondents to pay the entireretiral benefits including gratuity, pension, GPF, leaveencashment, insurance etc. admissible to him forthwith.

It appears that the petitioners were appointed between the years1980-82 on different Class-III posts in the Forest Department.Initially orders for regularization of their services were passedby this Court, which were confirmed by the Hon'ble SupremeCourt. Thereafter, the petitioners were given appointments astemporary Government servants in the year 1992 and by theimpugned order dated 13/15.01.1993, their service wereterminated. The said order has been challenged by thepetitioners in the leading Writ A No.5521 of 1993, wherein aninterim order was passed by this Court on 11.2.1993, stayingthe operation of the impugned order dated 13/15.1.1993, andthe respondents were directed to comply with the orders of theHigh Court dated 10.8.1992 within a period of six weeks or toshow cause by filing counter affidavit from the date of receiptof a certified copy of the order. The petitioners have been made "In paragraph no.38 of the Counter Affidavit filed on behalf of therespondent, it has been stated that the petitioners were given twoopportunities to appear in the regularization test but they failed to appearin the same and therefore, the respondent was left with no option except toterminate their services. In reply to the above averment, no specific replyhas been given by the petitioners in their Rejoinder Affidavit exceptdenial. Further, all the petitioners appear to have crossed the age ofsuperannuation and therefore, no relief can be granted to them at thisbelated stage. A perusal of the order sheet also shows that the petitionershave not made any effort to get the petition decided earlier and therefore,they do not appear to be interested in the job.

Therefore, the writ petition fails and is accordingly dismissed. No order asto costs."

It also appears from the record that the said order has beenchallenged by the petitioners in Special Appeal Defective No.9of 2018 (Shashi Kant Sharma and 3 others vs. State of UP andanother) and a Division Bench of this Court vide order dated06.2.2018 has proceeded to allow the appeal and set aside theorder of learned Single Judge dated 7.12.2017, with followingobservations:- "The writ petition was dismissed by an order dated 7th December, 2017.One of the ground on which the writ petition has been dismissed is that thepetitioners must have crossed the age of superannuation. Therefore, norelief can be granted.

Conclusion

Before us a supplementary affidavit has been filed indicating that pursuantto the termination order dated 13/15th January, 1993, the writ petition wasfiled and an interim order dated 11th February, 1993 was passed stayingthe effect and operation of the termination order. As a result of the interimorder, it is contended that the appellants have continued to work till thedisposal of the writ petition.

It is also contended that they are still working and have not reached theage of superannuation.

In the light of the aforesaid, the order of the learned Single Judge dated 7thDecember, 2017 is set aside. The special appeal is allowed. The writpetition is restored to its original number. It would be heard and decidedagain afresh after taking into consideration all aspects of the matter.

Registry is directed to list the writ petition in the 3rd week of February,2018 before the appropriate Court."

In compliance of the aforesaid order, the matter has been placedbefore this Court. While preferring Writ A No.684 of 2021 it isbeing claimed that the petitioner was initially appointed ondaily wage basis as Steno/Typist (Class-III employee) in District Etawah on 20.5.1980. Thereafter, vide common orderdated 05.6.1992 the petitioner and three others namely MilapSingh, Suresh Babu Chauhan and Ganesh Babu Yadav wereappointed on the post of Junior Clerk/Range Lipik. By the orderdated 15.1.1993 the second respondent had terminated theservices of the petitioner and three others. The said order waschallenged by the petitioners in leading Writ A No.5521 of1993, wherein the interim order was passed on 11.2.1993,staying the termination order and on the basis of the interimorder, the petitioner and three others were allowed to work ontheir respective posts continuously. The petitioner waspromoted to the post of Senior Assistant on 29.4.2016.Ultimately, the leading writ petition was dismissed on07.12.2017. The said order was challenged in Special AppealDefective No.9 of 2018 and the same was allowed by theDivision Bench on 06.2.2018. Thereafter, the petitioner wasserved with the impugned notice dated 16.12.2020, which hasbeen challenged by the petitioner in the connected Writ ANo.684 of 2021. Finally, the petitioner has retired from serviceon 31.12.2020 after attaining the age of superannuation but hispost retiral benefits have not been paid to him till date.

In this backdrop, learned counsel for the petitioner submits thatthe services of the petitioner alongwith other three persons wereregularized and they were appointed on the post of Junior Clerkon 05.6.1992. They were working continuously on the strengthof the interim order dated 11.2.1993 passed in Writ A No.5521of 1993. Out of four persons, two persons namely Suresh BabuChauhan and Milap Singh have already retired from service on31.3.2019 and 29.2.2020 respectively and both the persons werepaid their post retiral dues as well as regular pension but thepetitioner is being deprived of his legal right of post retiral duesas well as regular pension, which is discriminatory and hit byprovisions of Articles 14, 16 and 21 of Constitution of India.The petitioner had worked in the department concerned forabout 40 years and the petitioner is not being paid his retiralbenefits merely on the ground that the retiral benefits would bepaid after decision of the leading writ petition.

On the other hand, Shri Devesh Vikram, learned StandingCounsel fairly states that no doubt, the petitioner was continuedto work in the department on the strength of the interim orderdated 11.2.1993 passed in the leading writ petition. Finally, thewrit petition was dismissed on 07.12.2017. The said order waschallenged by the petitioner in Special Appeal Defective No.9of 2018 and the Division Bench has allowed the said appeal on06.2.2018 and after setting aside the order of learned SingleJudge dated 7.12.2017, the matter has been restored to itsoriginal number for deciding afresh taking into consideration all aspects of the matter. In case similar benefits have already beenextended to other incumbents, who have joined the petitioner inthe leading Writ A No.5521 of 1993 then definitely the claim ofthe petitioner would be remedied by the competent authority asper law.

In the facts and circumstances, since the matter is pending sincethe year 1993 and admittedly, the petitioner continued to workin the department concerned on the strength of the interim orderdated 11.2.1993. In such situation, the claim of the petitionerfor his regularization and payment of retiral benefits are to beredressed by the competent authority as similar benefit hasalready been extended to other two similarly situatedincumbents.

Consequently, the leading Writ A No.5521 of 1993 is allowedand the impugnedorder dated 13/15.01.1993 is set aside. Thedirection is issued to the respondents to consider the claim ofthe petitioner strictly in accordance with law within two monthsfrom the date of receipt of certified copy of this order.

For the aforesaid reasons, the connected Writ A No.684 of 2021is also disposed of.

Order Date :- 24.3.2021RKP