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2016 DIGILAW 1198 (ALL)

Ajay Rawat v. State of U. P.

2016-04-04

ASHWANI KUMAR MISHRA

body2016
JUDGMENT Ashwani Kumar Mishra,J. It is pointed out that petitioner had earlier filed Writ Petition No.7888 of 2010, which was dismissed on 17.11.2015 by this Court. Order dated 17.11.2015 is reproduced: - "Heard Sri Y.P. Pandey holding brief of Sri M.K. Pandey, learned counsel for the petitioner and Sri H.C. Pathak, learned standing counsel for the respondents. On 10th February, 2011, the Writ-A No.7888 of 2011 was heard and this court passed the following order: "The petitioner had earlier filed Writ Petition No. 12903 of 2008 claiming that he was working on daily wages as a Driver but wages were not being paid to him. This petition was disposed of on 14th March, 2008 with a direction to the Executive Officer, Zila Panchayat Kaushambi to decide the representation in accordance with law. The representation filed by the petitioner has been decided by the order dated 16th June, 2008 by the Upper Mukhya Adhikari, Zila Panchayat Kaushambi by merely observing that since the High Court had passed an order, the petitioner is being placed in the minimum of the pay-scale of Rs. 3050-4590/-. The Upper Mukhya Adhikari, Zila Panchayat Kaushambi was required to pass a reasoned order but there is nothing in the order which gives any indication as to when and how the petitioner was engaged as a daily wager. Learned Standing Counsel appears for respondent No.1. Sri Vivek Mishra, learned counsel appears for respondent Nos. 2 and 3. The affidavit on behalf of respondent Nos. 2 and 3 shall be filed by the Upper Mukhya Adhikari, Zila Panchayat Kaushambi who shall explain why reasons were not given in the order dated 16th June, 2008 for allowing the representation filed by the petitioner and what was the reason which compelled the Officer to place the petitioner in the minimum of the pay-scale. They pray for and are granted six weeks time to file the counter affidavit. Rejoinder affidavit, if any, may be filed within two weeks thereafter. List this petition for admission/hearing in the week commencing 11th April, 2011." 2. Undisputedly, the petitioner was not validly appointed. The controversy being raised in these writ petitions is squarely covered by the judgment of this court dated 26.05.2014 in Writ-A No.40236 of 2012, Asifuddin and another Vs. State of U.P. and others, along with other connected writ petitions. 3. List this petition for admission/hearing in the week commencing 11th April, 2011." 2. Undisputedly, the petitioner was not validly appointed. The controversy being raised in these writ petitions is squarely covered by the judgment of this court dated 26.05.2014 in Writ-A No.40236 of 2012, Asifuddin and another Vs. State of U.P. and others, along with other connected writ petitions. 3. Learned standing counsel states that the Special Appeal Defective No.921 of 2014 challenging the aforesaid judgment was dismissed by the Division Bench on 11.11.2014. 4. In view of the above, I find no merit in these writ petitions. Accordingly, both these writ petitions are dismissed in terms of the judgment in the case of Asifuddin and another (supra)." 5. A special appeal was thereafter filed, which has been disposed of on 5.1.2016 by following orders: - "The only relief which the appellant sought in the writ petition was for the payment of his salary as Driver for the period from December 2008 to January 2011 together with interest. In the counter affidavit which was filed before the learned Single Judge on behalf of the Zila Panchayat, it was stated that the appellant was appointed on daily wage basis. Moreover, it was averred that on 16 June 2008, an order was passed by the Upper Mukhya Adhikari, Zila Panchayat for the payment of salary to the petitioner in the minimum pay scale of Rs.3050-4590. The salary of the appellant was fixed at Rs.3050/-. The learned Single Judge dismissed the writ petition holding that the appellant was not validly appointed. The submission of the appellant is that his only plea was for the payment of salary for the period during which he has worked and continues to work. The order dated 16 June 2008 of the Upper Mukhya Adhikari provides to the appellant the minimum pay scale as noted above. Hence, any unpaid dues shall be paid on the basis of the order dated 16 June 2008. We however clarify that the present judgment shall not be construed as any direction to regularise the appellant since the issue of appointment and regularization does not arise for consideration in these proceedings. The order of the learned Single Judge dismissing the writ petition shall accordingly stand modified and substituted by the aforesaid direction. We however clarify that the present judgment shall not be construed as any direction to regularise the appellant since the issue of appointment and regularization does not arise for consideration in these proceedings. The order of the learned Single Judge dismissing the writ petition shall accordingly stand modified and substituted by the aforesaid direction. The unpaid dues of the appellant shall be paid over within a period of two months from the receipt of a certified copy of this order. The special appeal is, accordingly, disposed of. There shall be no order as to costs." 6. The issue of petitioner's appointment has already attained finality and it has been held that petitioner was not appointed validly. The only issue left for consideration was the payment of unpaid dues of the petitioner, which admittedly have been released to him. Once petitioner has been held not to have been validly appointed, no right continues to him to continue as driver. The writ petition is utterly misconceived. Even otherwise, the filing of writ petition, as well as the special appeal has been suppressed. Normally, this Court would have imposed exemplary post, but as the petitioner has already lost his employment, no cost is imposed, but it would be appropriate to observe that petitioner should desist from filing any such petition in future. 7. Writ petition is accordingly dismissed.