Tulsi Ram vs State of U.P. and Others

We have heard Shri S.P. Sharma, learned Counsel for petitioner appellant. Learned Standing Counsel appears for the State respondents.

In this Special Appeal filed with delay of 227 days against the order dated 28.1.2010, it is submitted that after the interim order dated 28.1.2010, by which it was held that the petitioner was appointed on 18.1.1978 and is thus not entitled to the benefit of the Regulations of 2005 as erstwhile employees of Local Self Government Engineering Department appointed prior to 1975, will continue to keep the same terms of service as the government servant and will retire at the age of 60 years.

In Dayanand Chakrawarty v. State of UP and Ors. Writ Petition No. 1595 (SB) of 2009 along with bunch of writ petitions decided on 29.7.2010, a Division Bench sitting at Lucknow has held that there was no reasonable nexus and differentia to create the classification of employees by the Regulation of 2005, and same was also not published in gazette. It was published for the first time in the newspaper on 8th November, 2009. The Regulations 2005 were held to be ultra vires and discriminatory as per Articles 14 and 16 of the Constitution of India.

Shri S.P. Sharma submits that a Division Bench of this Court in Special Appeal No. 1133/2010 did not find any good ground to take a different view. Shri Sharma also submits that the benefit of the Division Bench judgment in Dayanand Chakrawarty''s case (supra) has to be given to only those employees, who were vigilant and had filed writ petitions prior to their retirement. It is alleged that the writ petition was filed on 10.1.2010. The petitioner attained the age of superannuation on 28.2.2010, and thus he is entitled to the benefit of judgment in Dayanand Chakrawarty''s case decided on 29.7.2010.

There appears to be some substance in the contention of learned Counsel for appellant, that the petitioner should also get the benefit of the judgment of the Division Bench sitting at Lucknow in Dayanand Chakrawarty''s case.

We further find that since the order challenged in the Special Appeal was passed on 28.1.2010 much before the judgment of the Division Bench, it is always open to the petitioner to approach learned Single Judge to expedite the hearing.

The Special Appeal is dismissed both on the ground of delay, which has not been adequately explained, and further on the ground that the impugned order is not a judgment within the meaning of Chapter VIII Rule 5 of the Rules of the Court. It will be open to the petitioner to approach learned Single Judge after giving number of all the cases, which are pending to be listed together and be decided, as expeditiously as possible subject to the roster and convenience of Hon''ble Single Judge.