State of U.P. vs Rajman Rai

Heard Sri Hanuman Upadhyay, learned Standing Counsel for appellants and Sri Ranjit Saxena for respondent.

In this appeal filed by State of U.P, EngineerinChief, Irrigation Department, Chief Engineer, Tubewell and Irrigation Department, Superintending Engineer Tubewell region, Gorakhpur and Executive Engineer, Tubewell Construction Division, Gorakhpur and judgment/order dated 241192 in Civil Misc. Writ Petition No. 26540 of 1990 is assailed.

On the facts and circumstances of the case and the submissions of the learned counsel for the parties the core question that in our view arises for determination in this case is whether by order dated 231089 (Annexure7 to the writ petition) reinstatement of the writ petitioner/respondent in service was directed. The learned single judge, as appears from the impugned judgment/order, proceeded on the assumption that reinstatement was directed by the aforementioned order. The relevant observation in the order reads:

"In pursuance thereof, the petitioner made a representation to the State Government. It appears that elaborate enquiry was done and consequently order dated 23101989 contained in Annexure7 was passed directing reinstatement of the petitioner."

The thrust of the submissions of the learned standing counsel is that no order of reinstatement was made in favour of the petitioner. Indeed the portion of the order dated 231089 directing reinstatement was scored out, instead it was directed that the matter of reinstatement may be considered. These corrections have not been incorporated in the document filed as Annexure 7 to the writ petition by the writ petitioner/respondent. Illustrating the point in Paragraph 13 of the counteraffidavit it was specifically stated in the said paragraph that no order of reinstatement in service was passed in favour of the petitioner.

Sri Ranjeet Saxena, on the other hand, submits that the position was never denied by the opposite partiesappellants that the order of reinstatement in service was passed in favour the petitioner. He went to the extent of saying that some interpolation has been done in the order.

On the pleadings of the parties noted above, since the opposite parties/appellants had joined issue on the question, it was necessary for proper adjudication of the dispute that the question whether any order of reinstatement was passed on 23101989 was considered and a specific finding recorded thereon. The learned single judge, on the other hand, proceeded on the assumption that an order for reinstatement existed. In the circumstances, it is our considered view that the matter should be remitted to the learned single Judge for consideration of the question.

Accordingly the appeal is allowed, judgment/order dated 24111992 is set aside and Civil Misc. Writ Petition No. 26540 of 1990 is remitted to the learned Single Judge for a fresh disposal in accordance with law in the light of the observations made above.

Since it is an old case it will be listed before the appropriate Bench on 24th February, 1997. Appeal allowed.