- (1.) BY the Court. The Special Appeal has been filed against the judgment and order dated 21.10.2008 passed by learned Single Judge by which the writ petition has been dismissed as not maintainable.
(2.) WE have heard Shri Vivek Verma, learned Counsel for the appellant, learned Standing Counsel appearing for respondents No. 1 to 3, Shri V.B. Mishra, learned Counsel appearing for respondent No. 5 and Shri Ghanshyam Maurya, learned Counsel appearing for respondent No. 6. Shri Vivek Verma, learned Counsel for the appellant submits that the learned single Judge has dismissed the writ petition on the basis of the decision rendered in Special Appeal No. 547 of 2004, Mala Deviv. State of U.P. and others, decided on 17.5.2004 (AII)(DB). The said decision is based on the decision of learned single Judge in Writ Petition No. 15908 of 2003, Pradeep Kumar v. Adhyaksha Gram Shiksha Samiti and others, decided on 15.4.2003 (All) (DB), but the decision in Pradeep Kumar's case was set aside by another Division Bench of this Court in Special Appeal No. 338 of 2003.
(3.) THE order passed by the Division Bench is reproduced below: "By consent of parties this appeal is treated as on day's list and taken up for hearing. A writ petition was moved by the writ petitioner asking for setting aside an order dated 25.2.2003 passed by Block Development Officer; Sadar Auraiya, District Auraiya and also directing the State-respondents not to release the fixed pay in favour of respondent No. 4 and other incidental reliefs. From a perusal of the impugned order against which the present appeal has been preferred we find that the learned Judge proceeded on the basis that the writ petitioner himself claimed appointment on the post of Shiksha Mitra although the relief claimed in the writ application was totally different. That being the position, we have no other alternative but to set aside the impugned order and send the case back to the learned Judge for a decision afresh in accordance with law after giving hearing to the parties and after passing a reasoned order. In the event the non-appearing respondents are aggrieved by this order. It will be open for them to apply for recall of this order in the presence of other parties. With the above observations, this Special Appeal, the application for stay becomes infructuous and is disposed of.";