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Shri Jagdish Saran Upadhyay v. State Of U.P. & Others - WRIT - A No. 43693 of 1998  RD-AH 28 (15 May 2001)
Civil Misc. Writ Petition No. 43693 of 1998.
Shri Jagdish Saran Upadhyaya Vs. State of U.P. & Ors.
The petitioner, Shri Jagdish Saran Upadhyaya, was appointed as a constable in 14th Battalion, PAC on 24.11.1969. It appears that revolt in PAC Cadre, took place in May, 1973. Criminal case against large number of PAC personnels were filed by the State Government. The personnels involved in the revolt were discharged from service without trial. No criminal case against the petitioner was filed. However, his services were dispensed with by the Commandant PAC vide order dated 31.5.1973 on the ground that his services were no longer required. Similarly situated persons, whos3e services were terminated by the Commandant, PAC were reinstated. The petitioner approached this Court by filing Civil Misc. Writ Petition No. 32086 of 1998. The said writ petition was disposed of vide judgment and order dated 8.10.1998 in the following terms:
The facts of this case are covered by a decision in Horilal Vs. State of U.P. and others (Writ Petition No. 4369 of 1998) decided on 11.2.1993. Following the aforesaid decision, this petition is disposed of with the liberty to the petitioner to make a representation to the S.S.P. concerned who will decide the same within two months thereafter in accordance with law."
Pursuant to the aforesaid direction give by this Court, the petitioner represented the matter before the Commandant who vide order dated 15.11.1998 had rejected the petitioner's representation.
I have heard Shri R.N. Tripathi learned counsel for the petitioner and the learned standing counsel.
The contention of the petitioner is that this Court while directing the petitioner to make representation before the S.S.P. concerned vide judgment and order dated 8.10.1998, passed in Civil Misc. Writ Petition No. 32086 of 1998, had held that the facts of this case are covered by the decision of this Court in the case of Horilal and therefore, the decision taken by the State of U.P. in the case of Horilal should have also been taken in the present case.
From a perusal of the various documents filed alongwith the writ petition and the supplementary affidavit, I find that the facts of this case are fully covered by the decision rendered in Hori Lal Vs. state of U.P. and others decided on 11.2.1998, therefore, the commandant PAC was not at all justified in rejecting the application made by the petitioner in as much as Hori Lal was also terminated on the similar term viz. " his services were no longer required". Since Horilal has been reinstated as per annexure 1 filed to the supplementary affidavit of the petitioner, thus, there is no justification for not reinstating the petitioner in service.
The learned Standing Counsel, on the other hand, has submitted that the petitioner had earlier filed claim petition before the U.P. State Public Services Tribunal which was dismissed and, thereafter, the petitioner filed Civil Misc. Writ Petition No. 2257(S/S) of 1998 before the Lucknow Bench of this Court and, therefore, the present writ petition should not be entertained.
In the rejoinder affidavit filled by the petitioner, the filing of the claim petition before the U.P. State Public Service Tribunal as also the Writ Petition No. 2257(S/S) of 1998 by the petitioner before the Lucknow Bench of this Court has been denied. In fact the order dated 26.5.1998 passed by the Lucknow Bench in Civil Misc. Writ Petition 2257(S/S) of 1998, Ram Karan Prajapati Vs. District Magistrate, Pratapgarh and others, a copy whereof is contained in annexure R.A.1 to the Rejoinder Affidavit, goes to show that the same was not filed by the petitioner. Thus, the plea taken by the learned Standing Counsel regarding the maintainability of the second writ petition is not sustainable. In fact, this is the first writ petition of the petitioner.
As discussed above, another constable Hori Lal who had been discharged from services on the ground that "his services were no longer required, has been reinstated by the respondent, the present case having been held to be similar to that of Hori Lal, there is no justification for not putting the petitioner back in service in as much as the State Government cannot treat similarly situated persons differently.
In view of the foregoing discussions, the writ petition succeeds and is allowed. The respondents are directed to reinstate the petitioner forthwith. The question of back wages will be subject to the policy decision taken by the State Government in respect of other similar situated constables.
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