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Luxmi Niwas Pathak v. State Of U.P. & Others - SPECIAL APPEAL DEFECTIVE No. 227 of 2007 [2007] RD-AH 4403 (14 March 2007)


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CJ's Court

Special Appeal No. .227 of 2007

Shri Luxmi Niwas Pathak ...... Appellant


State of UP & others ......Respondents


Counsel for the appellant:  Shri Manoj Kumar

Counsel for the respondents: Shri B.R.Yadav and learned Standing         Counsel.

Hon'ble H.L.Gokhale,C.J

Hon'ble Ashok Bhushan,J

1. Heard Shri Manoj Kumar, learned counsel for the  appellant.  The contesting respondent 4 represented by one Shri B.R. Yadav  has  also been heard as well as  the learned standing counsel.  

2. The case of the appellant is that on the demise of his father he was appointed on a Class-III post in a school on a  post  created as a supernumerary post by way of compassionate appointment.  Subsequently on a regular vacancy occurring in Pandit Hanumat Dutta Tripathi Uchchatar Madhyamik Vidyalaya  he  was shifted over there and it is his case that he joined over there on 1.2.2007.

3. Thereafter the respondent No. 4 appears to have filed a writ petition claiming that he is entitled to that post by way of promotion since, i.e., there is only a single post and that he is an employee in that very school.  The learned Single Judge has disposed of the  petition of respondent No. 4  which  has been done without notice to the appellant though while  observing that the rights of the appellant will not be affected.  The appellant has challenged that order, he wants  to know where he should work.  That is not clear from the order of the learned Single Judge and that is not passed without considering his difficulties.  

4. In the circumstances  for  the  only reason that the impugned order is an ex-parte order,   we set aside and restore the petition to the learned Single Judge.  The learned Single Judge  will examine the submissions of the respondent No.4, the appellant  and of the Government and decide as to where the respondent no. 4 as well as the appellant ought to work.  In the meanwhile the appellant will continue to work in Pandit Hanumat Dutta Tripathi Uchchatar Madhyamik Vidyalaya.  We request the learned Single Judge to hear and decide the restored petition at his earliest  preferably within eight weeks.   The certified copy of the order has been filed and the appeal be numbered.

5. The appeal is allowed.                              

    (Chief Justice)

Date 14.3.2007

IB              (Ashok Bhushan, J)


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