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2013 DIGILAW 1046 (ALL)

Ram Kishore Trivedi v. State of U. P

2013-04-05

ARVIND KUMAR TRIPATHI II, DEVI PRASAD SINGH

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JUDGMENT 1. After hearing learned counsel for the parties' we proceed to decide the present appeal. 2. Present appeal has been preferred under Chapter VIII Rule 5 of the Rules of the Court against the impugned order passed by Hon'ble Single Judge of this Court. 3. Admittedly, appellant was appointed as teacher against the regular vacancy in stop gap arrangements. When salary was not paid to them, they have approached this Court under Article 226 of the Constitution of India. An interim order was passed for payment of salary but while finally adjudicating the controversy Hon'ble Single Judge had dismissed the petitions on the ground that appointments were done 25.1.1991 in a situation when CT Grade was declared dying cadre. 4. Attention has been invited towards two government orders which reveal that CT Grade was declared dying cadre as on 19.2.1991. The other government order dated 4.9.1990 provides that while making appointment in CT Grade the candidate possessing qualification of LT grade shall be recruited. The Government order dated 4.9.1990 has been filed as Annexure -5 to the connected writ petition no. 5414 of 2012(SS). According to petitioner's counsel in the impugned judgement and order it has been incorrectly mentioned that CT grade was declared dying cadre w.e.f. 1.1.1986 rather it was declared as dying cadre w.e.f. 19.2.1991. 5. According to appellants counsel, government order dated 1.1.1986 referred in the impugned judgement does not provide that CT grade shall be declare dying carder from the said date. Only a circular was issued showing intention of government to declare dying cadre. 6. The submission is, CT Grade was declared as dying cadre on 19.2.1991. Petitioner was appointed on 25.1.1991 before CT grade declared as dying cadre. Otherwise also the government order dated 4.9.1990 (supra) reveals that in place of CT Grade a candidate possessing qualification of LT Grade shall be appointed. According to appellants counsel, appellants possessed requisite qualification of LT Grade. 7. It appears that attention of Hon'ble Single Judge was not invited to the aforesaid facts and circumstances as well as government order dated 4.9.1990. 8. Since, while dismissing the writ petition Hon'ble Single Judge had not considered the government order dated 4.9.1990 and the fact that CT Grade was declared dying cadre w.e.f. 19.2.1991, judgement seems to be not sustainable and suffers from substantial illegality. 9. 8. Since, while dismissing the writ petition Hon'ble Single Judge had not considered the government order dated 4.9.1990 and the fact that CT Grade was declared dying cadre w.e.f. 19.2.1991, judgement seems to be not sustainable and suffers from substantial illegality. 9. In view of above, we allow the appeal and remit the matter back to Hon'ble Single Judge to re-decide the controversy afresh on the basis of pleadings on record expeditiously. Registrar shall list the writ petition for peremptory hearing before Hon'ble Single Judge in the first week of May, 2013. 10. A perusal of the government order dated 24.5.2004 reveals that CT grade was declared dying cadre w.e.f. 19.2.1991. It shall be open to the appellant's counsel to file an affidavit to bring on record all the related government orders. Present appeal is allowed accordingly.