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LAKHAN LAL AHIRWAR versus STATE OF U.P. AND OTHERS

High Court of Judicature at Allahabad

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Lakhan Lal Ahirwar v. State Of U.P. And Others - WRIT - A No. - 39933 of 2007 [2007] RD-AH 15809 (20 September 2007)

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HIGH COURT OF JUDICATURE AT ALLAHABAD

Court No. 3

Civil Misc. Writ Petition No. 39933 of 2007.

Lakhan Lal Ahirwar. ...... ...... .... ...Petitioner.

Versus

State of U.P. and others. ....... ....... .... ...Respondents.

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Present:

(Hon'ble Mr. Justice Amitava Lala and Hon'ble Mr. Justice V.C. Misra)

Appearance

For the Petitioner/s : Sri D.K. Srivastava.

For the Respondents : Sri Sanjay Goswami, S.C.

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Amitava Lala, J.-- In view of the provisions of Chapter XXII Rule 2(1) of the Allahabad High Court Rules, 1952 since the learned Counsel appearing for the parties agreed that the matter can be heard and decided without exchange of affidavits being pure question of law involved herein, we have accepted such submission and allowed the parties to make their submission in law.

Learned Standing Counsel contended before this Court that the order impugned, which has been passed on 15th March, 2007, was passed by the authority concerned before the judgement and order delivered by this Court on 10th April, 2007 in Civil Misc. Writ Petition No. 6043 of 2007 (Lakhan Lal Ahirwar Vs. State of U.P. and others). However, since we have considered the question elaborately in the said judgement, the relevant portion thereof is quoted hereunder:

"As per time schedule there are two modes of taking decision. As per first part of the time schedule the decision will be taken within three months after receipt of Government Order. The impugned Government Order has been passed on 6th October, 2006 with the sanction of the Governor and even such period has expired before filing of the writ petition without any decision thereof. As per the second part of the time schedule i.e. departmental proceeding, which has been instituted before retirement must be completed within six months after retirement. Even such period has already expired since the petitioner retired from service on 28th February, 2006.

Even if we hold that right to initiate proceedings would include right to continue the proceedings but the mandatory part of the rules 1995 says that the departmental proceedings, if instituted before retirement, it must be completed within six months after retirement. Therefore, such mandatory part of the Rules cannot be ignored being special in nature which overrides general. Such period is already over. If we go independently with authority of the Governor's as per Article 351-A CSR only on initiation, we are of the view that such period has also expired as per the aforesaid Rules.

Therefore, we hold that the order impugned dated 6th October, 2006 is inoperative in nature. The petitioner cannot be put under any embargo from getting pensionary benefits.

Hence arrears and one time pensionary benefits will be released in favour of the petitioner within a period of two months from the date of communication of the order. The petitioner will also get monthly pension, if any, month by month regularly irrespective of time period of payment of such sum as aforesaid.

Thus, the writ petition stands disposed of without imposing any cost."

Hence, we are of the view that the order impugned, which has been passed on 15th March, 2007, is in the teeth of the aforesaid judgement and order delivered by this Court, therefore, the same can not be sustained. Hence, the order impugned dated 15th March, 2007 is quashed. Consequential orders will also follow in view of the aforesaid circumstances. Thus, the writ petition is allowed.

However, no order is passed as to costs.

We repeat and say that there is no embargo upon the petitioner to get the pensionary benefits within the period of two months from this date as it was directed earlier.

(Justice Amitava Lala)

I agree.

(Justice V.C. Misra)

Dt./- 20th September, 2007.

SKT/-


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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