SALIK RAM PAL Vs. STATE OF U P

JUDGEMENT

(1.) WRIT petitioner-appellant, aggrieved by judgment and order dated 31.03.2009 passed by a learned Judge in WRIT Petition No. 45393 of 2009, has preferred this special appeal under Chapter VIII Rule 5 of the Allahabad High Court Rules, 1952. Short facts giving rise to the present appeal are that one Salig Ram son of Uma Shanker Mishra was appointed as Collection Peon by order dated 04.03.1991. WRIT petitioner-appellant (hereinafter referred to as the ''appellant') challenged his appointment by filing WRIT Petition No.28398 of 1991. Salig Ram son of Uma Shanker Mishra also filed WRIT Petition No. 16197 of 1991, inter-alia, praying for payment of salary. Both the writ petitions were heard together and a learned Single Judge of this Court by judgment and order dated 23rd November 1995 allowed WRIT Petition No. 28398 of 1991 filed by the appellant and set aside the appointment of Salig Ram son of Uma Shanker Mishra. The learned Judge also dismissed WRIT Petition No. 16197 of 1991 filed by Salig Ram son of Uma Shanker Mishra. Salig Ram son of Uma Shanker Mishra, aggrieved by the aforesaid order allowing the writ petition filed by the appellant and dismissing the writ petition filed by him, preferred two special appeals, being Special Appeal No. 986 of 1995 and Special Appeal No. 4 of 1996. A Division Bench of this Court by judgment and order dated 02.04.1996 set aside the aforesaid order of the learned Judge and while doing so, the Division Bench observed as follows:- "Accordingly the judgment of the learned Single Judge under challenge is set aside and it is ordered that the Divisional Commissioner, Varanasi will hold an enquiry into the controversy raised regarding appointment of the appellant in the post giving opportunity of hearing to the appellant and respondent no.3 and on the basis of the enquiry report, the District Magistrate, Mirzapur or any other authority who is competent will issue appointment order. The exercise will be completed within a period of three months from the date of production of a certified copy of this order. Till then, neither the appellant nor the respondent no.3 will hold the post in question. The Special Appeal is disposed of." In the light of the aforesaid judgment, the matter was considered by the Commissioner, Varanasi Division, Varanasi and by order dated 8th August 1996, it was declared that Salig Ram son of Uma Shanker Mishra had obtained appointment illegally and it was the appellant, who was validly appointed. Salig Ram son of Uma Shanker Mishra, aggrieved by the aforesaid order, preferred WRIT Petition No. 7167 of 1997 before this Court. Appellant also filed WRIT Petition No. 45393 of 1999 praying, inter-alia, for payment of salary for the period 04.03.1991 to 09.01.1995 and 01.04.1995 to 17.08.1996. Both the writ petitions have been heard together by the learned Judge and both the writ petitions have been dismissed by judgment and order dated 31.03.2009, impugned in the present special appeal. Mr. Prabhakar Singh, appearing on behalf of the appellant, submits that Salig Ram son of Uma Shanker Mishra was appointed on misrepresentation and for no fault of the appellant, he was prevented from functioning as Collection Peon and as such he is entitled for payment of salary for the aforesaid period. In support of his submission, he has placed reliance on two decisions of the Supreme Court in the cases of A.L. Kalra Vs. The Project and Equipment Corporation of India Ltd., AIR 1984 SC 1361 and Union of India and Ors. Vs. Naman Singh Sekhawat, (2008) 2 UPLBEC 1890. We do not find any substance in the submission of Mr. Singh and the decisions relied on do not apply in the facts and circumstances of the present case. The Division Bench of this Court, while passing the order dated 02.04.1996, had clearly directed that till the enquiry was made, neither the appellant nor Salig Ram son of Uma Shanker Mishra would hold the post in question. In the face of aforesaid, the prayer made by the appellant for payment of salary for the aforesaid period is absolutely misconceived. However, fact of the matter is that instead of the appellant having been appointed, Salig Ram son of Uma Shanker Mishra was appointed by misrepresentation and for that no fault lies with the appellant. In that view of the matter, we are of opinion that it shall be just and proper to treat the aforesaid period as spent on duty for all purposes excepting the salary. In the result, the special appeal is partly allowed and the judgment and order dated 31.03.2009 is modified to the extent indicated above.