- (1.) For the reasons stated in affidavit filed in support of delay condonation application, as the same constitutes sufficient cause for condoning delay in filing special appeal, the delay condonation application is allowed and the Special Appeal is treated to have been filed well within time. Ref: Special Appeal
(2.) Jafer Ahmad Khan has preferred the present Special Appeal under Chapter VIII Rule 5 of the High Court Rules assailing the judgment and order dated 9.2.2017 passed by learned Single Judge in Civil Misc. Writ Petition No.6332 of 2017 (Jafer Ahmad Khan vs. State of U.P. & 5 others) wherein he has proceeded to dismiss the writ petition with following observations:- "Heard Sri Ravindra Nath Rai, learned counsel for the petitioner and Sri J.S. Bundela, learned Standing Counsel for the respondents no.1 to 3. In view of the nature of the order sought to be passed it is not necessary to issue any notice to the respondents no.4 to 6. The petitioner is seeking a direction to the respondents to pay his pension. The facts of the case as disclosed in the writ petition are that the petitioner claims to be a regular Tubewell Operator. However, no order of appointment has been filed by the petitioner. He is not disclosed in any paragraph of the writ petition as to what was the nature of his appointment. In paragraph 9 of the writ petition, it is stated that by the Government Order dated 16.12.1996 persons who were appointed prior to October, 1986, their services were regularized. No such regularization order of the petitioner has been filed. In paragraph 5 of the writ petition, it is stated that the petitioner was placed under suspension on 30.11.1988 against which he filed case before the labour court which was decided in favour of the petitioner. The suspension order was revoked on 24.02.2000. It is further stated that the award of the labour court was challenged by the respondents in the High Court in Writ Petition No.6425 of 2001, which was dismissed on 19.02.2001. The award of the labour court has not been filed with the writ petition. This Court, therefore, has no option but to presume that the material documentary evidence and facts are being withheld from the Court for ulterior motives. From the order of the High Court, it is noticed that the labour court had directed reinstatement of the petitioner with back wages. The writ petition was disposed of by the High Court by order dated 09.03.2011 with a direction that the respondent workman shall be deemed to be in continuous service for all purposes except that apart from back wages which have been withdrawn by him no further backwages shall be payable to him. From this part of the order the petitioner claims that he should be treated to be duly regularized in service. In paragraph 17 of the writ petition, it is stated that the petitioner was appointed on 01.12.1985 and therefore, his services should be treated as automatically regularized. The contention of the petitioner is thoroughly misconceived. Regularization is never automatic rather an order of regularization is required to be passed. There is no such order of regularization of service of the petitioner on record. The petitioner is a Tube well Operator. He is claiming pension. He alleges that the respondents no.4, 5 and 6 are being paid pension and they are similarly situated to the petitioner. A Full Bench of this Court in the case of Pawan Kumar Yadav vs. State of U.P. and others, 2010 8 ADJ 664 in para 26 has held as under: "26 (1). A daily wager and workcharge employee employed in connection with the affairs of the Uttar Pradesh, who is not holding any post, whether substantive or temporary, and is not appointed in any regular vacancy, even if he was working for more than 3 years, is not a 'Government servant' within the meaning of Rule 2 (a) of U.P. Recruitment of Dependants of Government Servant (Dying in Harness) Rules, 1974, and thus his dependants on his death in harness are not entitled to compassionate appointment under these Rules. 2. The judgements in Smt. Pushpa Lata Dixit Vs. Madhyamik Shiksha Parishad and others, 1991 18 AllLR 509; Smt. Maya Devi Vs. State of U.P. (Writ Petition No.24231 of 1998 decided on 2.3.1998); State of U.P. Vs. Maya Devi (Special Appeal No.409 of 1998); Santosh Kumar Misra Vs. State of U.P. & Ors., 2001 4 ESC 1615; and Anju Misra Vs. General Manager, Kanpur Jal Sansthan, 2004 1 UPLBEC 201 giving benefit of compassionate appointment to the dependants of daily wage and workcharge employee have not been correctly decided." Therefore, on the facts of the case and the law laid down by the Full Bench no direction for payment of pension to the petitioner can be given to the respondents. The writ petition lacks merit and is accordingly dismissed."
(3.) Brief background of the case is that the petitioner-appellant was initially appointed as Part Time Tubewell Operator on 1.12.1985 under the respondents. He was suspended on 30.11.1988 and the same was subjected to challenge before the Labour Court, Gorakhpur. The Labour Court passed an award in his favour and the suspension was revoked on 24.2.2000. The order passed by the Labour Court was subjected to challenge before this Court by the State respondents by preferring Writ Petition No.6425 of 2001 (State of UP through Executive Engineer, Nalkoop Khand-II, Gorakhpur vs. the Presiding Officer, Labour Court, Gorakhpur and another). The said writ petition was initially entertained by learned Single Judge on 19.2.2001 and an interim order was granted in favour of the petitioner-appellant to the following effect:- "Heard the learned counsel for the petitioner. Issue notice to respondent No.2 who may file counter affidavit within six weeks. List immediately thereafter. In the meantime operation of impugned award dated 24.2.2000 published on 19.9.2000, Annexure-1 to the petition, shall remain stayed provided the petitioner deposits the entire amount of back wages within a period of 45 days from today with Labour Court concerned. If the amount is so deposited, half of the amount shall be released in favour of the respondent-employee while balance amount shall be deposited by the Labour Court in a fixed term deposit of some nationalised bank initially for a period of one year so that it may earn interest. This amount shall be held by the Labour Court subject to the ultimate decision of the present petition. In the event of failure of the petitioner to deposit the amount aforesaid within the specified time, the award in question shall become enforceable. As regards the reinstatement of the respondent-employee pursuant to the award, it is directed that he shall be permitted to join his duties on submitting the joining report and shall be paid the current salary. If, however, at any point of time it is revealed that the respondent employee has engaged himself in some gainful employment, in that event, the petitioner shall be at liberty to stop the payment of salary to him.";