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Kendriya Vidyalaya Sangathan Thru' Asstt. Commissioner v. Central Administrative Tribunal & Another - WRIT - A No. 70655 of 2005 [2005] RD-AH 5785 (16 November 2005)


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Court No. 34

Civil Misc. Writ Petition No. 70655 of 2005

Kendriya Vidyalaya Sangathan Vs. Central Administrative Tribunal, Additional Bench at Allahabad and another


Hon. Dr. B.S. Chauhan, J.

Hon. Dilip Gupta, J.

The claim of the respondent No.2, namely, Ghanshyam had been allowed by the Tribunal vide its judgment and order dated 16.3.2005 directing the present petitioner to treat the respondent No.2 employee in service. However, opportunity had been given to replace him by the regular selected candidate.

This case has a chequered history. Respondent No.2 claims to have been appointed on ad hoc basis in the year 1992 but his services were terminated by the order dated 16.2.1993. Feeling aggrieved he filed a writ petition in 1993 itself and obtained an interim order permitting him to work till a regular appointment was made. Subsequently, the writ petition was dismissed in default on 7.4.2003 and it was restored to its original number but dismissed on 16.7.2003. A Special Appeal was filed which was disposed of with a direction to send the case to the Tribunal for adjudication in accordance with law. The order dated 16.7.2003 was accordingly modified. The Tribunal has decided the case by the impugned judgment and order dated 16.3.2005.

The present petitioner had been given an opportunity to replace the said employee by a regularly selected candidate on the principle that an ad hoc employee cannot be replaced by another ad hoc employee. In paragraph 15 of the writ petition averments have been made that one M.G. Gupta, was appointed on the post on which the respondent No.2 had been appointed by the letter dated 20.1.2005 and he had also joined the post on 6.4.2005.

Learned counsel for the petitioner submits that the said averments had been made before the Tribunal but the Tribunal has not dealt with it. We have gone through the judgment and order and we are of the considered opinion that whether the averments made in paragraph 15 of the writ petition had been taken before the Tribunal or not cannot be ascertained by this Court. In State of Maharashtra Vs. Ramdas Shrinivas Nayak and another AIR 1982 SC 1249, the Supreme Court had held that in such a case it is not possible for the Higher Court to hold any enquiry as to what had happened in the court below. In such circumstances the appropriate remedy for the party aggrieved is to file a review application.

In view of the above, the writ petition is dismissed. It shall, however, be open to the present petitioner to file a review application pointing out the fact that a regularly selected candidate had joined the post.

Dt/- 16.11.2005



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