Court No. - 29

Case :- SPECIAL APPEAL DEFECTIVE No. - 595 of 2021

Appellant :- Smt Indrawati Devi And Another

Respondent :- State Of U.P. And 3 Others

Counsel for Appellant :- Ramesh Chandra Dwivedi

Counsel for Respondent :- C.S.C.

Hon'ble Munishwar Nath Bhandari,Acting Chief Justice

Hon'ble Anil Kumar Ojha,J.

Order on Civil Misc. Delay Condonation Application No. 1 of

2021

Heard on the application under section 5 of Limitation Act.

Reason of delay has been given and otherwise we have

considered the appeal on its merit, the delay in filing the appeal

is condoned. The application is not otherwise opposed by the

respondents.

The application is allowed.

Order on Special Appeal

By this appeal, challenge is made to the judgment dated

23.10.2019 whereby the writ petition preferred by the

petitioners was dismissed.

The writ petition was preferred to seek compliance of the orders

dated 29.02.2008, 23.10.2007 and 30.01.2009 passed by the

respondents/non-appellant. It was regarding payment of salary

to the petitioner/appellants. A detailed order in that regard was

passed on 13.02.2017 also.

The learned Single Judge dismissed the writ petition referring

to the qualification possessed by the petitioner/appellants

ignoring the fact that the respondent/non appellants did not

question the qualification at the time of appointment and even

no decision was taken to deny salary on that ground. The orders

of non-appellant were favourable to the appellants for payment

of salary. In view of the above, a challenge to the judgment of

learned Single Judge has been made. It is more specific when a

detailed order passed by the State Government favourable to the

petitioner/appellants for grant of salary.

A challenge to the order dated 13.02.2017 by the committee of

management could not sustain before the Writ Court in separate

petition.

It is submitted that the learned Single Judge travelled beyond

the scope of writ petition and accordingly, the judgment of

learned Single Judge deserves to be set aside.

Learned counsel for the non-appellant/State could not contest

the appeal on the grounds urged by counsel for the appellants.

It is a case where writ petition was filed by the

petitioner/appellants to seek compliance of the orders passed by

respondent no.4 District Social Welfare Officer, Deoria and

Director, Social Welfare, State of U.P. The three orders were

containing a direction for payment of salary to the petitioners.

The learned Single Judge however dismissed the writ petition

on the issue not raised in the orders. The State Government did

not pass an adverse order to deny salary to the

petitioner/appellants for want of required qualification at the

time of appointment. It could not be clarified by the non-

appellant as to how the question of qualification came before

the learned Single Judge when it was nobody's case. The

perusal of the orders dated 29.02.2008, 23.10.2007 and

30.01.2009 shows direction for payment of salary to the

petitioners. A detailed order was passed even on 13.02.2017 for

the aforesaid.

In view of the above, the learned Single Judge was to consider

the issue as to whether there exist any justification for the State

Government not to comply its own order when no adverse order

has been passed by them. It is more so when a detailed order

was also passed on 13.02.2017 to direct payment of salary to

the petitioner. It was questioned by the committee of

management by filing a writ petition being Writ-A No. 29699 of

2017. It was dismissed by the judgment dated 23.10.2019.

Thus, the order dated 13.02.2017 became final. In view of the

above, even the counsel for the non-appellant could not support

the judgment of the learned Single Judge.

The judgment could not have travelled beyond the scope of writ

petition. The learned Single Judge had taken the issue which

was not raised by either of the parties. It is also when a writ

petitio