Allahabad High Court
Pankaj Srivastava vs State Of U.P. Thru ... on 18 January, 2020
Author: Saurabh Lavania
Bench: Saurabh Lavania
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Court No. - 26 Case :- SERVICE SINGLE No. - 8200 of 2019 Petitioner :- Pankaj Srivastava Respondent :- State Of U.P. Thru Secy.Prin.Secy.Revenue Lucknow & Ors. Counsel for Petitioner :- Ramesh Kumar Srivastava Counsel for Respondent :- C.S.C. Hon'ble Saurabh Lavania,J.
Heard Sri Ramesh Kumar Srivastava, learned counsel for the petitioner and learned Chief Standing Counsel for the opposite party nos.1 to 3.
This is the fifth writ petition filed by the petitioner, who was appointed as Seasonal Collection Amin, for the relief sought for regularization. On one count and other the claim of the regularization of the petitioner was rejected by the opposite parties. Finally by the impugned orders dated 06.09.2017 and 08.08.2018 claim of the petitioner has been rejected on the ground that he is over age and the relaxation of age can not be granted.
Brief facts of the present case are that the petitioner was initially appointed as Seasonal Collection on 01.01.1989 and he approached this Court by means of the Writ Petition No.3280 S/S of 2001 (Pankaj Srivastava Vs. State of U.P. & Ors.) and the same was disposed of vide order dated 12.07.2001 with a direction to the opposite parties to consider the case of the petitioner for regularization in accordance with Government Orders and the Rules against 35% vacancies of the total vacancies. The relevant portion of the order dated 12.07.2001, reads as under:-
"Heard the learned counsel for the petitioner and the learned Standing Counsel.
With the consent of the parties, the writ petition is being disposed of finally.
The grievance of the petitioner is that although he has been working as Seasonal Collection Amin since September, 1989 but his services have not been regularized and several persons junior to the petitioner have been regularized. It has also been submitted by the learned counsel for the petitioner that the petitioner has to his credit satisfactory work four fasli years and he is less than 45 years of age and having achieved necessary target of 70 % but his regularization has not been considered.
In view of the above, this writ petition is disposed of finally with the direction that in case persons junior to the petitioner have been regularized or their cases for regularization have been considered or are being considered, the case of the petitioner for regularization shall also be considered in accordance with the relevant Government Orders and the Rules against 35% vacancies of the total vacancies.
The writ petition is disposed of finally."
Thereafter, the claim of the petitioner for regularization on the post of Collection Amin under the provision of U.P. Collection Amins' Service Rules, 1974 (in short "Rules 1974") was considered and rejected by the opposite party no.3 on 15.12.2001.
Being aggrieved by the aforesaid decision dated 15.12.2001, the petitioner filed second Writ Petition No.7580 S/S of 2009 (Pankaj Srivastava Vs. State of U.P. & Ors.). This Court after considering the pleadings and material available on record, vide judgment and order dated 04.10.2013 allowed the writ petition with cost of Rs.20,000/-.
Vide judgment and order dated 04.10.2013, the opposite party no.3 was directed to consider the case of the petitioner keeping in view the observations made by this Court in the judgment, the relevant portion of the same reads as under:-
"Learned counsel appearing for the State has failed to satisfy the Court as to whether the percentage of recovery mentioned in para-12 of the counter affidavit is on the basis of total demand entrusted to the petitioner or on the basis of the some other yardstick. He also could not satisfy the Court as to how the reason indicated by the Selection Committee in its meeting dated 15.12.2001 while rejecting the claim of the petitioner for regular appointment to the effect that he was not working on the date of consideration is tenable in a situation where no such condition precedent for regular appointment of Seasonal Collection Amin finds mentioned in the Service Rules.
Engagement of Seasonal Collection Amins in a district is made in the exigency of administration for meeting the need of effecting the recovery of government dues expeditiously. The Rules governing service conditions of regular Collection Amins including their appointment are governed by Uttar Pradesh Collection Amin Service Rules, 1974. Initially, there was no provision of any quota meant for giving regular appointment to the Seasonal Collection Amins in the 1974 Services Rules. However, realizing the significance of the services rendered by Seasonal Collection Amins, the Services Rules were amended in the year 1992 by means of notification issued on 23.10.1992 and the provision was made that 35% vacancies shall be filled in from those Seasonal Collection Amins who have worked satisfactorily for four fasals and who are not above the age of 45 years on the first day of July of the year in which selection is held. The said provision was inserted in Rule 5 of the Service Rules, 1974 and an explanation was also added to Rule 5 which provides that satisfactory work shall mean at least 70% realisation or recovery as per prescribed standard during the last four fasals which will include good conduct throughout. The explanation has further been amended in the year 2004 and the State Government by means of notification dated 17.12.2004 amended the Service Rules and provided that satisfactory work shall mean at lease 70% average realisation of recovery as per prescribed standard during the last four fasals including good conduct throughout.
Perusal of 1974 Service Rules as amended from time to time, particularly Rule 5 which makes a provision for regular appointment of Seasonal Collection Amins against 35% vacancies, provided such Seasonal Collection Amins fulfill requisite criteria mentioned therein reveals that on the date of consideration for regular appointment whether the Seasonal Collection Amin was working or not, is not a criteria given therein. What all is important is that Seasonal Collection Amin should be below the age of 45 years on the first day of July of the year in which selection is made and further that he has worked satisfactorily. What is satisfactory work has also been defined in the explanation appended to Rule 5 of the said Service Rules, 1974. Thus, the reason indicated for non-suiting the petitioner's case for regular appointment in the minutes of meeting of the Selection Committee dated 15.12.2001 is extraneous to the provisions contained in Service Rules, 1974 as amended from time to time.
As regards the other reason indicated in the counter affidavit filed by the State to the effect that the petitioner's performance was not at par so as to term it satisfactory for the reason that realization or recoveries made by him were below 70% of the target fixed, it may only be observed that the said consideration was never made by the Selection Committee as is clearly reflected from perusal of the minutes of meeting dated 15.12.2001.
The aforesaid issue or point was not taken into consideration by the Selection Committee for denying the claim of petitioner for regular appointment, thus, the same cannot be supplemented by the State while filing the counter affidavit. Further, it is to be noticed that Annexure 6 appended to the writ petition which is a part of letter dated 17.08.2001 written by Tehsildar, Rudauli, District Faizabad giving him certain information regarding the recoveries made by the petitioner contradicts the figures of recovery mentioned in para-12 of the counter affidavit.
The figures of recoveries made by the petitioner mentioned in the counter affidavit also do not indicate as to under what basis the said percentage of recovery or realization made by the petitioner has been calculated.
As noticed above, the Board of Revenue in its circular dated 29.09.2000 has clearly indicated that for the purpose of assessing the performance of Seasonal Collection Amins, the percentage of realization/recovery made by the Seasonal Collection Amin concerned should be calculated vis-a-vis the total demand entrusted to an individual. In view of the circular of the Board of Revenue dated 29.09.2000, it is not open to the authorities of districts to deviate from the said provision while calculating the percentage of recovery for the purpose of assessing the performance of Seasonal Collection Amins.
For the reasons indicated above, I have no hesitation to hold that impugned decision taken by the Selection committee in its meeting dated 15.12.2001, so far it rejected the claim of the petitioner for regular appointment, cannot be permitted to be sustained any more.
Accordingly, the impugned decision concerning the petitioner taken in the meeting dated 15.12.2001 is hereby quashed.
The authorities of the district Faizabad are directed to consider the case of the petitioner for regular appointment against 35% vacancies in terms of the provisions contained in Rule 5 of U.P. Collection Amins' Service Rules, 1974 as amended from time to time. While considering the case of the petitioner for giving him regular appointment, the authorities concerned shall take into account the observations made in this judgement herein above and they shall further keep in mind the circular dated 29.09.2000 issued by the Commissioner-cum-Secretary, Board of Revenue issued to all the District Magistrates of the Uttar Pradesh which unambiguously provides that while evaluating the performance of Seasonal Collection Amins, the percentage of recovery made by them shall be calculated as against the total demand entrusted to them. The authorities shall also take into account the law laid down by this Court in the case of Dinesh Kumar Asthana vs Collector, Azamgarh and others, reported in (2001) 1 UPLBEC 867 and judgement of this Court passed in Special Appeal No.518 of 2000; State of U.P. and others vs Sri Surendra Singh, decided on 15.09.2009. Consideration of the case of the petitioner for giving regular appointment on the post of Collection Amin shall be made within a period of six weeks from the date a certified copy of this order along with a representation is served to the Collector/District Magistrate, Faizabad by the petitioner. The petitioner while making representation will not only annexe the certified copy of this judgement but will also annexe true copies of judgements of this Court in the case of Dinesh Kumar Asthana vs Collector, Azamgarh and otherr (supra) and the judgement of this Court passed by a Division Bench of this Court in the Special Appeal No. 518 of 2000; State of U.P and others vs Surendra Singh.
The writ petition is allowed in the aforesaid terms with the cost of Rs.20,000/- to be paid to the petitioner by the respondents within a month from today."
Unfortunately, again the regularization of petitioner on the post of Collection Amin was rejected vide order dated 05.03.2014 on the ground that percentage of recovery by the petitioner was less than 70%. Being aggrieved by the same, petitioner again filed Writ Petition No.3168 S/S of 2014.
Vide judgment and order dated 01.09.2015 passed in Writ Petition No.3168 of 2014, this Court interfered in the order dated 05.03.2014. It has been specifically observed by this Court in the judgment dated 05.03.2014 that the rejection of the claim of the petitioner for regularization on the post of Collection Amin on the ground of less recovery is unsustainable in the eye of law. The judgment and order dated 05.03.2014 reads as under:-
ÞJh iadt JhokLro] lhtuy laxzg vehu rglhy feYdhiqj QSTkkckn us fnukad 17-10-2013 dks bl vk'k; dk izkFkZuk i= fn;k gS fd fjV ;kfpdk la[;k&7580¼,l,l½@2009 iadt JhokLro cuke mRRkj izns'k ljdkj esa ikfjr ek0 mPp U;k;ky; ds vkns'k fnukad 04-10-2013 ds vuqikyu esa mudk fofu;ferhdj.k fu;fer laxzg vehu ds in ij fd;k tk;A fjV ;kfpdk la[;k&5891¼,l,l½@2013 dks ek0 mPp U;k;ky; us fnukad 04-10-2013 dks vfUre :i ls fuLrkfjr djrs gq, ;kph dk izdj.k lxzg vehu ds in ij fofu;erhdj.k gsrq 06 lIrkg esa fopkj fd;s tkus dk vkns'k ikfjr fd;k gSA ek0 mPp U;k;ky; ds vkns'k fnukad 04-10-2013 ds fo:} fo'ks"k vihy la0&845@2013 ;ksftr dh x;h] ftlesa fnukad 3-12-2013 dks ek0 mPp U;k;ky; us fuEu vkns'k ikfjr fd;kA " We make no observation in this regard since it would be open to the selection committee, upon remand, to re-consider the entire issue namely as to whether the respondent has rendered satisfactory service and fulfilled the requirement of the norms of 70% recovery with reference to the work which was entrusted to him as prescribed in the explanation to Rule 5 of the Rules of 1974, the time for consideration of the claim of the respondent for regularisation, is extended by a further period of three months from today."
ek0 mPp U;k;ky; ds vkns'k fnukad 03-12-2013 ds vuqikyu esa Jh JhokLro ds izdj.k ij iqu fopkj.k gsrq pkj lnL;h; desBh xfBr dh x;h] ftlesa eq[; jktLo vf/kdkjh] QSTkkckn dks v/;{k rFkk vij ftykf/kdkjh¼fo@jk½] vij ftykf/kdkjh ¼iz0½ ,oa miftykf/kdkjh] feYdhiqj dks lnL; fu;qDr fd;k x;k fd;k x;kA lfefr }kjk fnukad 07-02-2014 dks loZlEEkr ls fu.kZ; fy;k x;k fd **m0iz0 laxzg vehuksa dh lsok fu;ekoyh&1974 ds iSjk&5 ds *d* esa fn;s x;s izkfo/kkuksa ds vUrxZr ¼dqy fjfDr;ksa ds 35 izfr'kr fjfDr;ka ,sls lhtuy laxzg vehuksa esa ls p;u }kjk Hkjh tk,xh&ftUgksaus de ls de 4 Qlyks rd larks"ktud :i ls dk;Z fd;k gksA larks"ktud dk;Z dk rkRi;Z gksxk fd 'kq: ls vUr rd vPNs vkpj.k dks lfEEkfyr djrs gq, vfUre pkj Qlyksa ds fofgr Lrj ds vuqlkj de ls de 70 izfr'kr olwyh gksuk pkfg,A Jh JhokLro }kjk o"kZ&1400 Qlyh esa 28-12 izfr'kr] o"kZ 1403 [kjhc esa 33-99 izfr'kr] o"kZ 1403 jch Qlyh esa 44-16 izfr'kr o 1404 [kjhc esa ek- 45-19 izfr'kr dh olwyh dh xbZ gSA pkjksa Qlyksa dh vkSlr olwyh 37-86 izfr'kr gS] tks 70 izfr'kr ls de gSA ,slh fLFkfr esa Jh iadt JhokLro dks laxzg vehu ds in ij fofu;fer fd;k tkuk fof/k lEEkr~ o vkSfpR;iw.kZ ugha izrhr gksrk gS ,oa rnqulkj Jh iadt JhokLro mijksDr fu;e ds vuqlkj fofu;erhdj.k gsrq vgZ ugha gSA of.kZr rF;ksa dks n`f"Vxr j[krs gq, ;kph Jh iadt JhokLro dk izR;kosnu fnukad 17-10-2013 ,oa 09-12-2013 Hkh dks rn~uqlkj fuLrkfjr fd;k tkrk gSAß Thereafter, the case of the petitioner for regularization on the post of Collection Amin was proceeded with and the matter was referred to the State Government for relation of the age. The State Government vide its order dated 06.09.2013 rejected the relaxation of age. The order passed by the State Government dated 06.09.2017 was challenged by means of the Writ Petition No.31107 S/S 2017. This Court after considering the facts and circumstances of the present case, disposed of the writ petition on 20.12.2017 with liberty to the petitioner to make a fresh representation before the opposite party no.1 and directed to the opposite party no.1 to take appropriate decision in the matter in issue.
Pursuant to the order dated 20.12.2017 petitioner preferred the representation before the opposite party no.1 and the same was decided vide order dated 08.08.2018.
By order dated 08.08.2018 the claim of the petitioner for regularization on the post of Collection Amin was rejected on the ground that the petitioner is over age and vide order dated 06.09.2017 the claim for age relaxation was rejected.
The orders dated 06.09.2017 and 08.08.2018 have been challenged in the present writ petition and the petitioner has also sought the relief for regularization on the post of Collection Amin.
While entertaining the present writ petition, vide order dated 26.03.2019 this Court reserved one post of Collection Amin in the District-Faizabad (Now Ayodhya) for petitioner.
Learned counsel for the petitioner drawn the attention of this Court on the Government order dated 22.02.2019 and submitted that the State Government has already enhanced/extended the age for the purpose of regularization of Seasonal Collection Amin on the post of Collection Amin from 45 years to 48 years and the petitioner is below 48 years and accordingly he is fully eligible for regularization on the post of Collection Amin.
Learned counsel for the petitioner further submitted that keeping in view of the Government order dated 22.02.2019 the appointing authority/opposite party no.3 (Collector District Faizabad now Ayodhya) be directed to consider the case of the petitioner for regularization afresh in the light of the Government Order dated 22.02.2019, whereby the age has been enhanced. The ground of rejection of claim of regularization of the petitioner which is to the effect that the petitioner is over age as per the U.P. Collection Amin Service Rule 2004 is now not an impediment. It is further submitted that in the light of Government Order dated 22.02.2019 and age of the petitioner as well as the judgment passed by this Court the authorities are under obligation to regularize the petitioner on the post of Collection Amin but till date the petitioner has not been regularized.
Learned counsel for the State on the basis of the counter affidavit submitted that the case of the petitioner for regularization was rejected vide orders dated 06.09.2017 and 08.08.2018 on the ground of age and subsequent to the same, vide order dated 22.02.2019 the age provided under the Rules has been relaxed/enhanced for the purposes of regularization of Seasonal Collection Amin and the case of the petitioner was rejected prior to order dated 22.02.2019, as such the case of the petitioner for regularization was not considered.
Heard learned counsel for the parties and perused the record.
It is evident from the record that in earlier rounds of ligation this court after considering all the relevant issues including the issue related to recovery interfered and remanded back the matter for considering the case of the petitioner for regularization on the post Collection Amin. Vide impugned order dated 08.08.2018, the case of the petitioner for regularization on the post of Collection Amin was rejected on the ground that the petitioner is over age and age relaxation has been demanded vide order dated 06.09.2017.
It is admitted fact that the age for the purposes of regularization of Seasonal Collection Amin on the post of Collection Amin has been enhanced vide Government Order dated 22.02.2019 and on account of orders dated 06.09.2017 and 08.08.2018, impugned in the present writ petition , the case of the petitioner was not considered for regularization.
In view of the above, the writ petition is disposed of with liberty to the petitioner to make fresh representation before the opposite party no.3-The Collector, District-Faizabad now Ayodhya. In case, the representation is made, the opposite party no.3-The Collector, District-Faizabad now Ayodhya shall consider the case of the petitioner for regularization on the post of Collection Amin strictly keeping in view the observations made by this Court in the judgment passed in the earlier proceedings, as mentioned above, as well as ignoring the impugned orders dated 06.09.2017 and 08.08.2018, as after passing of the said orders the State Government has enhanced the age of Seasonal Collection Amin for the purpose of regularization on the post of Collection Amin vide Government order dated 22.02.2009.
It is needless to state here that while entertaining the present writ petition, vide order dated 26.03.2019 this Court reserved one post of Collection Amin in the District-Faizabad (Now Ayodhya), and while considering the case of the petitioner, the competent authority shall take note of this fact.
In above terms, the writ petition is disposed of finally. No order as to costs.
Order Date :- 18.1.2020 Vinay/-