DISTRICT JUDGE Vs. BHUDEV SHARMA

JUDGEMENT

(1.) Re : Civil Misc. (Delay Contortion) Application No. 2881 of 2000 alongwith Affidavit dated 17.5.2000 the Courier-affidavit dated 14.9.2000 of the Respondent and Rejoinder Affidavit elated 2.11.2000. Through this Special Appeal filed on 25.5.2G00 the Appellants-the District judge. Bulaudshahr and Chairman of the Selection Committee, assail validity of the Judgment and order dated 25th September, 1997 passed by a learned. Single Judge of this Court allowing Respondent's Civil Misc. writ petition No. 5649 of 1997 filed for quashing the order dated 21.1.1994 passed by Appellant No, 1 rejecting his representation dated 15.1.1994 with a further prayer to command the appellants to consider his appointment against Class III post in reserved category pursuant to the 1992 examination. By the impugned Judgment and Order the learned Single Judge had disposed of the writ petition directing the Appellant No. 1 to offer an appointment to the Respondent against Class III post which may be existing on that day with a further direction that if no vacancy is in existence at the moment, then he shall be appointed against the very next vacancy which may occur in near future after holding that the Respondent has made out an iron-cast case for being appointed in one of post in class III under the quota of physically handicapped persons.

(2.) Delay of 2 years 212/213 days in filing of the Special Appeal is sought for in the following backdrop constituting sufficiency of the cause--Even though vacancy for physically handicapped persons to be appointed as a Class III employee pursuant to 1992 Examination Test stood filled up and thereby there was no vacancy on which the Respondent, who because of his total blindness cannot work at all, and had not even qualified in the written examination could not be appointed in terms of his prayer made in his writ petition bearing Civil Misc. Writ Petition No. 5649 of 1997, yet a learned Single Judge of this Court, without considering the true factual and legal position emerging out of two G.O.'s, issued a mandamus commanding the District Judge, Bulandshshr to offer an appointment to him against Class III post which may be existing today or if no vacancy is in existence at the moment in that event he shall be appointed against the very next vacancy which may occur in judgeship in near future showing all respect and obedience to the aforesaid, direction the then District Judge, Bulandshahr gave an appointment to the Respondent on Class III post vide his order dated 7.11.1997 (Annexure-1), the Respondent was/is not in a position to work due to his total blindness, despite this, the matter was being considered as to what remedy may be sought for against the order passed by the learned Single Judge of this Court, as it was not legally possible to accommodate the Respondent as there was no vacancy, finally the District Judge, Bulandshahr sought guidance vide letter dated 17.4.1999 (Annexure-2), the matter was placed before the Hon'ble Acting Chief Justice of this Court on 25.4.2000 proposing that the District Judge, Bulandshahr may be asked to file Special Appeal; the Hon'ble Acting Chief Justice was pleased to approve the proposal vide order dated 26.4.2000; thereafter a communication was made on 8.5.2000 by the Joint Registrar of the Court to the District Judge, Bulandshahr vide letter No. 6451/22-A Admin (D) which was received by the District Judge, Bulandshahr on 12.5.2000 (copy of the letter appended as Annexure-3); immediately on receipt of the same steps were taken to file this Special appeal; the appellants have neither committed wilful default nor negligence in moving this Court; the appellants shall suffer irreparable harm and injury and as such in the facts and circumstances the delay be condoned.

(3.) In the counter-affidavit filed by the respondent the prayer has been opposed stating, inter alia, that with effect from 13.11.1997 till date he has been regularly discharging his duty as Class III employee of the Judgeship of Bulandshahr on the basis of an order issued by the then District Judge on 7.11.1997; there has been no complaint whatsoever against his functioning; no explanation whatsoever has been given for the period commencing with effect from 7.11.1997 upto 17.4.1999 and there has been a gross delay and latches on the part of the appellants in moving this Court; it has not at all been disclosed as to in what way and manner after offering his appointment the matter was being considered; factually incorrect, fictitious and false affidavit has been filed without any symblance of truth; the letter dated 17.4.1999 (Annexure-2) was not. at all in respect of preference of the appeal, the contents of which he was never apprised at any point of time earlier, the counter-affidavit filed by the appellants in the writ petition also contained incorrect facts; and that thus in all factuality the delay condonation application is liable to be dismissed with cost.