Sunil Kumar vs Public Services Tribunal and Others

Barin Ghosh, C.J.—Services of the Petitioner were terminated by an order dated 7.2.1991. Petitioner challenged the said order dated 7.2.1991 before the Tribunal in 2004 and succeeded in obtaining an order therefrom quashing the said order of termination dated 7.2.1991. Tribunal directed reinstatement of the Petitioner, but did not allow him back wages. In order to obtain back wages, the present writ petition was filed in 2006.

The writ petition was permitted to be dismissed for non-prosecution. An application for recalling the order, dismissing the writ petition for non-prosecution, has been filed. Inasmuch as the same was filed beyond time, an application for condonation of delay in filing the recalling application has also been filed.

The reason for dismissal of the writ petition for non-prosecution has not been indicated in the application for recalling, without which such an application is not maintainable in law. The reason for delay in filing the application for recalling is failure on the part of the Advocate on record of the Petitioner in keeping in touch with the Petitioner. That too is no ground, far less any ground for delay. In law, it is the litigant who is required to be vigilant and not his Advocate. An impression has been given in the two applications referred to above that the earlier Advocate on record of the Petitioner was practicing in the courts at Dehradun and, accordingly, he could not keep track of the writ petition in this Court situated at Nainital. Although the new Advocate on record of the Petitioner has filed his Vakalatnama after obtaining no objection from erstwhile Advocate on record of the Petitioner, but still then, in the pleadings, there is not a single whisper as to why there was default in appearance before the Court, when the writ petition was taken up for consideration, and because of absence of Petitioner and his Advocate on record, the writ petition had to be dismissed for non-prosecution. In the circumstances, the conclusion would be that the application for recalling as also the application for condonation of delay are utterly meritless.

However, in order to ensure that a litigant should not suffer in a case, where he is otherwise entitled to get relief, we have considered the merit of the writ petition.

It appears that the Petitioner was appointed as a constable on 1.10.1984 Petitioner has not produced, either before the Tribunal or before this Court, his appointment letter. On 7.2.1991, the services of the Petitioner were terminated. The Tribunal found as a fact that in relation to Constables, provisions of para 541 of the Police Regulations applied and that the Petitioner was not confirmed. In the circumstances, the conclusion of the Tribunal was that the Petitioner was still a probationer. If the Petitioner was a probationer, he had not become a Government employee within the meaning of the U.P. Fundamental Rules and, accordingly, Rule 54 thereof did not apply to the Petitioner. In such circumstances, there was no scope of the Tribunal awarding back wages to the Petitioner. There is, therefore, no merit in the writ petition. We, accordingly, dismiss the application for condonation of delay in preferring the restoration/recalling application as well as the restoration/ recalling application.