Allahabad High Court
Vinay Kumar Upadhyay vs State Of U.P. And 2 Others on 11 January, 2019
Author: Ajay Bhanot
Bench: Ajay Bhanot
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 3 Case :- WRIT - A No. - 69236 of 2015 Petitioner :- Vinay Kumar Upadhyay Respondent :- State Of U.P. and 2 Others Counsel for Petitioner :- Surendra Nath Shukla,Bibhuti Narayan Singh,V.K. Tripathi Counsel for Respondent :- C.S.C. Hon'ble Ajay Bhanot,J.
1. By the order dated 29.3.2015 the claim of the petitioner to be regularized in service w.e.f. 05.07.2007 i.e. from the date his immediate junior was regularized as Collection Peon has been rejected. Aggrieved by the aforesaid order dated 29.03.2015 passed by respondent no. 2 the petitioner has filed the instant writ petition.
2. A further prayer has been made for grant of seniority, the salary and all other consequential benefits to the petitioner w.e.f. 05.07.2007.
3. Sri Bibhuti Narayan Singh, learned counsel for the petitioner submits that the petitioner was entitled for regularization of his service as a Collection Peon w.e.f. 05.07.2007. The person immediately junior to the petitioner in the seniority list was regularized on 05.07.2007 as a Collection Peon.
4. The respondent authorities rejected the claim of the petitioner for regularization w.e.f. 05.07.2007 on the foot that the petitioner failed to accomplish the seventy percent recovery in the four faslis preceding 05.07.2007. It is contended that the stand of the authorities is untenable in law. The law is consistent and settled by a number of authorities. In fact it was reiterated by this Court in the case of the petitioner as well. The petitioner is entitled for full backwages and other service benefits w.e.f. 05.07.2007. Various authorities relied upon by the learned counsel shall be cited in the later part of the judgment.
5. Per contra the learned Standing Counsel has called attention to the stand taken by the respondents in the counter affidavit in justifying the order dated 29.03.2015.
6. Heard learned counsel for the parties. Facts relevant for judgment in this case are beyond the pale of dispute.
7. The petitioner was engaged as Seasonal Collection Peon on 28.12.1990. A seniority list of the Collection Peons was drawn up. The seniority list has been appended to the writ petition. The seniority list so appended has not been disputed in the counter affidavit. The specific case of the petitioner is that a number of persons who were junior to the petitioner in the seniority list of Seasonal Collection Peons were regularized prior to the petitioner. The claim of the petitioner for regularization was arbitrarily rejected. The fact that juniors to the petitioner were regularized as Collection Peons w.e.f. 05.07.2007 is undisputed.
8. In the order dated 28.02.2013 the District Magistrate, Sant Ravidas Nagar (Bhadohi) records that sixteen Seasonal Collection Peons were regularized which included Sanjay Kumar Srivastava, Kallu Singh, Shiv Kumar Singh, Om Prakash Dubey, Pramod Kumar Lal, Rakesh Kumar Rai and Ashok Kumar Srivastava prior to the petitioner on 05.07.2007. The order further records that the aforesaid persons are junior to the petitioner in the seniority list.
9. In the counter affidavit filed by the respondents, it is asserted that the petitioner was not regularized on 05.07.2007 as the recovery percent of the petitioner was below seventy percent in the four faslis preceding the date of regularization of his juniors.
10. The case of the petitioner has a chequered history. The petitioner had to oscillate between this Court and the authorities on eleven occasions to realize his constitutional rights guaranteed under Articles 14 & 16 of the Constitution of India. The details of the writ petitions and the contempt petition instituted by the petitioner and the adamantine attitude of the authorities in repeatedly rejecting his claim on successive occasions will be revealed in the later part of the judgment.
11. The petitioner became entitled to be regularized as a Collection Peon in 2007 against fifty percent quota of Seasonal Collection Peons, but his claim was ignored. Being so aggrieved, the petitioner on the first occasion approached this Court. He instituted a writ petition which was registered as Civil Misc. Writ Petition No. 33728 of 2007 (Vinay Kumar Upadhyay Vs State of U.P. and others). The operative portion of the judgment and order passed by this Court in the aforesaid writ petition merits study and reads as under:-
"Contention of petitioner is that he is entitled to be regularized against 50% quota meant for seasonal collection peons. Petitioner submits that his claim has been ignored merely on the ground that his date of birth is not know. Petitioner submits that he has passed High School examination with Roll No. 1707004 from Netaji Inter College, Sarbarkhani, Varanasi and his date of birth has been 20.08.1972. Petitioner has further contended that all these informations and documents had been supplied to respondents, as such his date of birth ought to have been recorded.
The grievance, which has been raised, can be looked into, examined and remedied by the District Magistrate, Bhadohi, as such liberty is given to the petitioner to represent his claim before the District Magistrate, Bhadohi, along with a certified copy of this order, within three weeks from today. In the event of any such representation being made, the claim of the petitioner shall be adverted to by the said authority, by means of reasoned and speaking order within next 8 weeks after affording opportunity of hearing to Ashok Kumar Srivastava, respondent no. 4, and whatever decision is taken the same be communicated to the petitioner as well as respondent no. 4.
In terms of above observations, writ petition stands disposed of."
12. In purported compliance of orders passed by this Court in Civil Misc. Writ Petition No. 33728 of 2007 (Vinod Kumar Upadhyay Vs State of U.P. and others), the District Magistrate rejected the claim of the petitioner by order dated 03.10.2007.
13. Aggrieved by the order dated 03.10.2007 the petitioner again invoked the extraordinary remedy by filing a writ petition before this Court registered as Civil Misc. Writ Petition No. 63052 of 2007 (Vinay Kumar Upadhyay Vs State of U.P. and others). The writ petition was allowed by this Court by judgment and order entered on 12.08.2009. The order is being reproduced in its entirety since it decided all relevant issues in the controversy.
"1. Heard Sri N.L. Srivastava, learned counsel for the petitioner and learned Standing Counsel appearing for respondents no. 1 to 3. The respondent no. 4 was issued notice by registered post pursuant to this Court's order dated 13.10.2008. As per the office report the notice through registered post/AD sent on 17.10.2008 and the office report dated 13.07.2009 shows that notice has been received unserved with post office report "refused". In the circumstances the service of notice is deemed sufficient. Neither any counter affidavit has been filed on behalf of respondent no. 4 nor any one has put in appearance on his behalf. Respondents no. 1 to 3 have filed counter affidavit and supplementary counter affidavit. Petitioner has also filed rejoinder affidavit and, therefore, as requested and agreed by learned counsels for the parties, this writ petition has been heard and is being decided finally at this stage under the Rules of the Court.
2. By means of the present writ petition the order dated 03.10.2007 passed by the District Magistrate, Sant Ravidas Nagar (Bhadohi) has been assailed whereby the representation of petitioner against his supersession/non selection for substantive appointment on the post of Collection Peon has been rejected confirming selection and appointment of respondent no. 4 for such appointment.
3. Learned counsel for the petitioner submitted that he has not been selected for substantive appointment on the post of Collection Peon on the ground that in the Fasali years 1410, 1411, 1412 and 1413 the percentage of recovery was 15.5, 75, 16.9 and 23.4 respectively resulting in average recovery of 32.7 though as per U.P. Collection Peon Service Rules, 2004 (hereinafter referred to as the "Rules, 2004") the average recovery ought to have been at least 70%. The respondent no. 4 who was admittedly junior to the petitioner but his recovery having been noticed above 70% in the said Fasali years, was selected and given appointment to the post of Collection Peon. It is submitted that under Rule 5 of Rules, 2004 the criteria for selection for regular appointment to the post of Collection Peon in respect to Seasonal Collection Peon is satisfactory service in the last at least four "Fasals". The explanation thereof further provides that satisfactory service means good conduct shown from beginning and in the last "four Fasals" he has cooperated for making recovery at least to the extend of 70% as prescribed by the Government. He contended that the respondents no. 1 to 3 have erred in considering the record of preceding four Fasali years instead of four Fasals. Further that the petitioner has not been found guilty or lacking coordination or cooperation in making recovery to the extent of 70% but since the recovery as a matter of fact was less than 70% for that purpose the petitioner has been superseded. He pointed that Rule 5 of Rule, 2004 required only cooperation on the part of the petitioner since the recovery as a matter of fact is the primary duty of the Collection Amin to whom a Collection Peon assist and, therefore, the relevant considerations as contemplated and provided in the Rules, 2004 have not been taken into account.
4. Learned Standing Counsel relying on his counter affidavit, however, supported the selection of respondent no. 4 as well as the impugned order passed by the District Magistrate, Sant Ravidas Nagar (Bhadohi) and said that the same has been passed in accordance with law.
5. Having considered the rival submissions as well as the record I find that the only issue up for consideration in this case is whether the petitioner has been considered and rejected for the post of Collection Peon on relevant considerations as provided under Rule 5 or not.
6. Rule 5 of Rules, 2004 reads as under:
^^5- lsok esa fofHkUu Jsf.k;ksa ds inksa ij HkrhZ fuEufyf[kr lzksrksa ls dh tk;sxh%& ¼,d½ ipkl izfr'kr p;u lfefr ds ek/;e ls lh/kh HkrhZ }kjk] ¼nks½ ipkl izfr'kr in ,sls lkef;d laxzg vuqlsodksa esa ls ftUgksaus de ls de pkj Qlyha rd larks"ktud dk;Z fd;k gks vkSj ftudh vk;q ml o"kZ dh igyh tqykbZ dks ftlesa p;u fd;k tk; 45 o"kZ ls vf/kd u gks] p;u lfefr ds ek/;e ls Hkjs tk;sxsaA ijUrq ;fn mi;qZDr vH;FkhZ miyC/k u gks rks [k.M ¼,d ½ ds v/khu 'ks"k fjfDr;ka lh/kh HkrhZ }kjk Hkjh tk;sxhaA Li"Vhdj.k%& larks"ktud dk;Z dk rkRi;Z gksxk 'kq: ls vUr rd vPNs vkpj.k dks lfEefyr djrs gq, vfUre pkj Qlyksa ds nkSjku ljdkj }kjk fu;r fofgr Lrj ds vuqlkj de ls de lRrj izfr'kr olwyh esa iw.kZ lg;ksx iznku djukA**
7. A perusal of Rules shows that a Seasonal Collection Peon if has satisfactorily worked for at least "four Fasals" and is not above 45 years of age would have to be considered and if he fulfils the above criteria, is entitled to be selected for the post of Collection Peon.
8. The term "satisfactory service" has been explained and it provides that the Seasonal Collection Peon shall extend "full cooperation for recovery in the last four Fasals" according to the standard prescribed by the State Government i.e. at least 70% recovery. It nowhere provides the Seasonal Collection Peon himself would make recovery to the extent of 70% or at any other level.
9. In taking the aforesaid view I am also supported by a Single Judge decision of this Court in Civil Misc. Writ Petition No. 2421 of 2006, Ishwar Chandra Vs. District Magistrate, Khalilabad, Sant Kabir Nagar and others decided on 22.08.2008. Though that was a case of compulsory retirement but in respect to duties of Collection Peon this Court held that a Collection Peon is only required to assist the Collection Amin and is not responsible for the collection of dues itself which is the primary duty of Collection Amin.
10. The respondents in the counter affidavit have nowhere pleaded or shown as to how a Seasonal Collection Peon can be held directly responsible for lesser recovery. On the contrary, the U.P. Collection Manual, Chapter IX para 61 provides for duties of the Collection Peon and reads as under:
^^61- drZO;& ljdkjh cdk;ksa ds laxzg lEcU/kh vkns'kksa es vehu ds vkns'kksa dk vuqikyu djuk pijklh dk ije~ drZO; gSA tc vehu ljdkjh /ku ysdj ;k=k dj jgk gks ;k vius {ks= esa :dk jgs] rc og pijklh mlds lkFk jgsxkA fofHkUu izdkj dh dzwj dkydze vknsf'kdkvksa ds fu"iknu ds fy, Hkh pijkfl;ksa dh lsokvksa dk mi;ksx fd;k tk ldsxkA ,sls ekeyksa esa og Lo;a dksbZ laxzg ugha djsxkA rglhynkj rFkk vU; ofj"b vf/kdkfj;ksa ds vkns'kksa ds v/khu] ,dhd`r laxzg vehuksa ds v/khu] laxzg pijkfl;ksa dks vU; drZO; lkSais tk;saxsA**
11. It shows that the Collection Peon has to obey the orders given by the Collection Amin and when the Amin is travelling alone with Government revenue or is staying in his area of jurisdiction, the Collection Peon will always stay with him so that his services may be utilised by the Collection Amin. Para 61 Chapter IX further provides very clearly that the Collection Peon himself will not make any recovery at all.
12. That being so, and in the light of the statutory provisions contained in Rule 5, it is evident that the Collection Peon himself is not at all responsible for any recovery whatsoever. Hence the assumption on the part of the District Magistrate, respondent no. 2 that the petitioner having failed to make recovery to the extent of 70% in the preceding four Fasali years cannot be said to have failed to satisfy the criteria of "satisfactory service" is patently illegal and in the teeth of the statute.
13. Besides, the rule also required "satisfactory service" in the "last four Fasals" and not "Fasali". The distinction between a "Fasali" and "Fasal" has been considered by this Court in Mithlesh Kumar and another Vs. State of U.P. and others, 2008 (2) ESC 1332 and this Court held as under:
"This Court finds that though in the Rules one has to show his average recovery of at least 70% in the last four Fasals but the chart was submitted by Tahsildars not based on the Fasals but Fasalis i.e. the year which includes both the Fasals namely, Ravi and Kharif. The Selection Committee was also aware of this fact that it has to consider recovery performance of last four Fasals but thereafter it has clearly erred by not confining to consider performance with respect to recovery in last four Fasals but has taken the aforesaid chart to be correct without noticing the fact that the chart (Annexure-CA-2) was prepared on the basis of last four Fasalis and not on the basis of last four Fasals. One Fasali year has more than one Fasal. It is not the entire Fasali year but last four Fasals performance ought to have been considered by the Selection Committee. It has considered performance of the candidates beyond the period for which it is provided under Rule 5(1) of 1974 Rules."
14. The above judgement was taken in Special Appeal No. 294 of 2008, Manbodh Vs. State of U.P. and others connected with Special Appeal No. 398 of 2008, Dev Kumar Vs. State of U.P. and others, decided on 17.07.2009 and the Hon'ble Division Bench while dismissing both the above appeals and confirming the judgment under appeal held as under:
"In our considered opinion, the learned Judge was perfectly justified in arriving at the findings on the basis of material available on record and thereafter concluding that the selections had been made contrary to the provisions contained in Rule 5 (1) read with Rule 17 (A) of the Rules. In support of the conclusion drawn, the learned Judge has very succinctly and appropriately drawn the distinction between the words "Fasal" and "Fasali". The meaning of the said words are defined in the Law Lexicon 1997 Edition at page 713, which read as follows:-
"Fasl. (A.) Harvest; fasli-jyasti, fasl-kami. (M.) Addition or reduction in the revenue on account of double crops, or the loss of one. (Bad. Pow. iii. 99) Fasli. Of or belonging to a harvest; the Mahommadan official era. (Bad. Pow. II. 13, 14) Agricultural lease in which the word 'Fasli' is used unless there are indications that the intention of the parties was to use the word in its strict sense, should be held to be for the agricultural year. (LR 2 A. 139 (Rev.) Fasli or Fusli. What relates to the seasons; the harvest year. (Mac. Mhn. Law.) The name of an era instituted by Akbar, who made the samwat year agree with that of the hijra by arbitrarily cutting 649 years off from the former. This was done in the year 963 of the hijra which year was therefore also 963 fasli; but fasli or harvest year was necessarily counted according to the seasons while that of the hijra is the lunar year of only 354 days. Thus a difference of several years has arisen between the hijra year and the fasli year. (See also 1896 AWN 123).
Fasli-jasti (Tel.) An extra crop, one more than usual; an extra cess imposed on land bearing more than one annual crop."
The aforesaid definitions would, therefore, reflect that the word Fasal means crop whereas the word Fasali is related to the revenue year, which ordinarily in the State of Uttar Pradesh comprises of two harvest seasons - the Kharif and the Rabi. Learned counsel for the appellants could not point out any material to the contrary to persuade us to opine otherwise.
We find no good reason to differ from the view taken by the learned Judge."
15. In the result, the writ petition is allowed. The impugned order dated 03.10.2007 as well as the selection and appointment of respondent no. 4 is hereby quashed. The respondent no. 2 is directed to reconsider the matter of appointment on the post of Collection Peon of the petitioner and the respondent no. 4 in accordance with law and in the light of the observations made hereabove, expeditiously, preferably within a period of two months from the date of production of a certified copy of this order. There shall be no order as to costs."
14. In purported compliance of the order dated 12.08.2009 passed by this Court in as Civil Misc. Writ Petition No. 63052 of 2007 (Vinay Kumar Upadhyay Vs State of U.P. and others), the District Magistrate, Bhadohi passed an order on 13.11.2009. The order makes strange reading.
15. The order records that the case of the petitioner for regular appointment would be considered shortly. For ease of reference the operative portion is extracted here under:-
^^ek0 mPp U;k;ky; }kjk ikfjr vkns'k ds vuqikyu esa izfri{kh la[;k&4 Jh v'kksd dqekj JhokLro laxzg laod dh fu;qfDr mi ftykf/kdkjh Hknksgh }kjk vius dk;kZy; vkns'k la[;k 114@ vf/k0fy0&laxzg&O;0lgk0 Hknksgh&09 fnukad 3 uoEcj 2009 }kjk fujLr dj nh x;h gS vkSj tgkWaa rd laxzg vuqlsod in ij ;kph o izfri{kh la[;k&4 dh fu;qfDr ij fopkj fd;s tkus dk iz'u gS] ds dze esa 50 izfr'kr lkef;d laxzg vuqlsodksa ls fu;fer laxzg vuqlsodksa ds in ij fu;qfDr izfdz;ka izkjEHk dh tk jgh gSA p;u lfefr }kjk lkef;d laxzg lsodksa dh ofj"Brk lwph ,oa 4 Qly ds dk;ksZa dk ijh{k.k dj fu;fer in ij ek0 mPp U;k;ky; }kjk ikfjr vkns'k ds vkyksd esa laxzg lsod fu;ekoyh@'kklukns'k@ifj"knkns'k dks /;ku esa j[krs gq, izR;kosnd dh fu;qfDr ij fopkj 'kh?kz gh fd;k tk;sxkA rn~uqlkj izR;kosnd dk izR;kosnd fuLrkfjr fd;k tkrk gSA**
16. Aggrieved by the non compliance of orders passed by this Court the petitioner instituted a contempt petition against the concerned authorities. The contempt proceedings were registered as Contempt Application (Civil) No. 4657 of 2009 (Vinay Kumar Upadhyay Vs Sri Surendra Singh, D.M.). After the institution of contempt proceedings the District Magistrate, Sant Ravidas Nagar (Bhadohi) by order dated 18.01.2010 rejected the case of the petitioner for regularization.
17. A challenge was laid by the petitioner to the order dated 18.01.2010 by instituting a writ petition, which was registered as Civil Misc. Writ Petition No. 5677 of 2010 (Vinay Kumar Upadhyay Vs State of U.P. and others). The writ petition was allowed by judgment and order dated 15.01.2013. The operative part of the judgment reads thus:-
"The petitioner is working as a Seasonal Collection Peon and has approached the Court for the third time with regard to his regularisation on the post of Collection Peon. The earlier two claims were rejected on various reasons. The last claim of the petitioner was rejected, on the ground, that he had not made sufficient recovery in the last four faslies. The petitioner filed Writ Petition No.63053 of 2007, which was allowed by a judgment dated 12.8.2009 directing the authorities to reconsider the matter in the light of the observations made therein. The Court held, that a Collection Peon is not responsible for the low recovery and consequently, on that basis, the claim of the petitioner for appointment on the post of Collection Peon could not be rejected. Pursuant to the judgment of the Court, the authorities by an order dated 18.1.2010 again rejected the claim of the petitioner, on the ground, that out of the remaining 6 posts, 3 posts were required to be filled up by way of promotion and three by way of direct recruitment and that, three persons, who are senior to the petitioners have already been promoted and consequently, no relief can be granted to the petitioner.
The Court finds, from a perusal of the impugned order, that there are 88 posts of Collection Peon and consequently, under Rule 5 of the Rules of U.P. Collection Peon Service Rules, 2004, 50% posts has to be filled up by way of direct recruitment and 50% by way of promotion. Consequently, out of 88 posts, 44 posts are required to be filled up by way of promotion. In the instant case, the Court does not find that 41 posts have already been filled up by way of promotion.
In the light of the aforesaid, the impugned order cannot be sustained and is quashed. The writ petition is allowed. The authority is directed to reconsider the matter and clearly indicate the number of posts that has already been filled up by promotion and if, there are vacancies available, consider the case of the petitioner taking into consideration that juniors to the petitioner have already been promoted. The said exercise shall be made within six weeks from the date of the production of a certified copy of this order."
18. The petitioner once again approached the authorities for reconsideration of his claim for regularization as Collection Peon. Finally by order dated 04.05.2013 the entitlement of the petitioner for regularization as Collection Peon was upheld by the District Magistrate, Sant Ravidas Nagar (Bhadohi). The aforesaid order dated 04.05.2013 directed for regularization of the petitioner w.e.f. 04.05.2013. The regular appointment of the petitioner as Collection Peon was made on 04.05.2013. The petitioner has been drawing the salary of regularly appointed Collection Peon w.e.f. 04.05.2013.
19. At this stage it would be relevant to reference the order dated 28.02.2013 passed by the District Magistrate, Sant Ravidas Nagar (Bhadohi). The substance of the aforesaid order attests the fact that the petitioner is entitled for regularization and also confirms that the juniors to the petitioner were regularized as Collection Peons prior to the petitioner. The relevant part of the order however is extracted here under:-
^^lkef;d laxzg vuqlsodksa dh ofj"Brk lwpg tks fnukad 28-12-2006 dks vuqeksfnr dh x;h gS mlds dzekad 14 ij fou; dqekj mik/;k; dk uke vafdr gSA rRdkyhu ftyk vf/kdkjh ds vkns'k fnukad 05-07-2007 }kjk ek0 mPp U;k;ky; bykgkckn esa ;ksftr fjV ;kfpdk la[;k 18104@2006 vfuy dqekj ikBd cuke m0iz0 jkT; o vU; esa ikfjr vkns'k fnukad 6-4-2007 ds dze esa p;u lfefr }kjk dqy 16 laxzg vuqlsodksa dks fofu;fer fd;k x;k gSA blesa ls Jh dYyw flag dzekad 18 ij Jh f'kodqekj flag dzekad 19 ij Jh vkse izdk'k nqcs dzekad 20 ij Jh izeksn dqekj yky dzekad 21 ij Jh jkdks'k dqekj jk; daekad 22 ij rFkk v'kksd dqekj JhokLro dzekad 23 ij vafdr gS tks lHkh ;kph ls dfu"B gSaA ek0 mPp U;k;ky; }kjk ikfjr vkns'k fnukad 12-08-2000 }kjk Jh v'kksd dqekj JhokLro dh fu;qfDr fujLr dj nh x;h gSA ek0 mPp U;k;ky; us vius vkns'k fnukad 15-1-2013 esa Li"V :i ls vo/kkfjr fd;k gS fd laxzg vuqlsod de olwyh ds fy, mRrjnk;h ugha gSaA blfy, bldk izR;kosnu fujLr ugha fd;k tkuk pkfg,A in dh fjDrrk ,oa ;kph ls dfu"B lkef;d laxzg lsod ds fofu;erhdj.k dh n'kk esa ;kph ds fofu;ferhdj.k ij fopkj fd;k tk;A mi;qZDr foospu ds ckn vfHkys[kksa esa ;g fl) gks jgk gS fd orZeku esa fofu;ferhdj.k ds fy, 5 fjfDfr;ka vo'ks"k gSa rFkk ;kph ls dfu"B lkef;d laxzg vuqlsodks adks fofu;fer fd;k x;k gSA bl izdkj ;kph fofu;fer fd;s tkus dh vkSipkfjdrk,a iw.kZ djrk gSA vr% ;kph dk izdj.k vk;qDr ,oa lfpo jktLo ifj"kn m0iz0 y[kuÅ dks bl vuqjks/k ds lkFk izsf"kr fd;k tkrk gS fd orZeku esa 'kklukns'k la[;k 815@1&7&2012&135@2012 fnukad 24] flrEcj 2012 ds dze esa] ftlds }kjk lEizfr fofu;ferhdj.k dh dk;Zokgh izfrcfU/kr gS] blds n`f"Vxr vko';d funsZ'k nsuk pkgsA ;kph dk izR;kosnu fnukad 12-01-2013 rnkuqlkj fuLrkfjr fd;k tkrk gSA**
20. The troubles of the petitioner did not end. The order dated 04.05.2013 only partially redeemed the injustice done to the petitioner. The claim of the petitioner for regularization from the date his immediate juniors were regularized was overlooked.
21. Aggrieved by the arbitrary action of the authorities the petitioner preferred a writ petition before this Court which was registered as Writ-A No. 48931 of 2014 (Vinay Kumar Upadhyay Vs State of U.P. and others). The operative portion of the judgment rendered by this Court in the said writ petition on 12.08.2015 is reproduced below:-
"By means of present writ petition, the petitioner has prayed for direction to respondent no.2 to consider the petitioner's seniority at par with his juniors and further prayed for direction to respondent no.2 to decide the representation dated 26.4.2014 (Annexure No.2 to the writ petition) submitted by the petitioner for considering his seniority.
Learned counsel for the petitioner precisely submits that the respondent no.2 may be directed to decide his representation dated 26.4.2014 within stipulated period.
Learned Standing Counsel fairly states that in case the same is still pending and has not been decided, the same shall be considered and decided expeditiously.
In view of the above, there is no need to keep this matter pending. Without expressing any opinion on the merits of the issue and considering the facts and circumstances of the case, this writ petition is disposed of finally with a direction to the respondent no.2 to consider and decide petitioner's aforesaid representation in accordance with law by a speaking order within a period of six weeks from the date of production of a certified copy of this order before him."
22. Finally in compliance of the order passed by this Court on 12.08.2015 in Writ-A No. 48931 of 2014 (Vinay Kumar Upadhyay Vs State of U.P. and others) the District Magistrate considered his claim for seniority and grant of consequential benefits by order dated 23.09.2015.
23. The order dated 23.09.2015 references the conditionality in the order of regularization of the services of the petitioner dated 04.05.2015 that the regularization of the petitioner would abide by the directions issued by the Government of U.P. and Board of Revenue. The order dated 23.09.2015 then records that as per the service rules an employee who is appointed is entitled to the salary only from the date of appointment. The petitioner is being paid his salary from the date of his appointment. In the aforesaid terms the claim of the petitioner for grant of seniority and the consequential benefits was disposed of.
24. In the order dated 23.09.2015, the authority has infact avoided the determination of the fundamental claim of the petitioner for grant of seniority and other consequential benefits. The issue has been obfuscated in bureaucratese. Effectively the claim of the petitioner has been dismissed.
25. This order is sought to be defended on the ground that the petitioner was not entitled to regularization w.e.f. 05.07.2007 since his recovery was less than 70% in the preceding faslis. The relevant paragraphs of the counter affidavit are extracted here under:-
"That the contentions of paragraph 6 of the writ petition are not admitted as stated hence denied. In reply it is submitted that the Collection Peon who have 70% or more than 70% of recovery at their disposal and are duty full paid they are being regularised and since the recovery of the petiioner is less than 70% hence he could not be regularised at the relevant time.
That the contents of paragraph 7 of the writ petition are not admitted as stated hence denied. In reply it is submitted that the petitioner has not submitted his high school marksheet at the time he was temporary appointed or when the proceedings of regularisation were being made nor any documents with regard to the date of birth of the petitioner was produced before the competent authority.
That the contentions of paragraph 16 of the writ petition are not admitted as stated hence denied. In reply it is submitted that when the first regularization proceedings were initiated and done on 05.07.2007 the petitioner could not be regularized since as per procedure and contention of regularisation of 70% or more than 70% of recovery the petitioner could not be regularised inspite of the fact that he stand at serial no. 14 of the seniority list."
26. The pleadings in the counter affidavit are being extracted in extenso to demonstrate the complete ignorance of facts and what is worse an outright defiance of orders passed by this Court.
27. As has been observed in the preceding part of the judgment the claim of the petitioner for regularization was initially rejected by orders dated 05.07.2007 and 03.10.2007 solely on the ground that the petitioner did not effect recovery to the extent of 70% for the preceding faslis. This ground was held untenable in law and this Court decided the controversy in clear terms in the judgment entered by the Court in Writ-A No. 48931 of 2014 (Vinay Kumar Upadhyay Vs State of U.P. and others). The judgment has been extracted earlier. It is not open to the authorities to justify denial of regularization by reiterating grounds which were invalidated by this Court. Actions of the authorities to dilute and to defy judgments of this Court are fatal to the rule of law.
28. In the light of the judgment passed by this Court in Civil Misc. Writ Petition No. 63052 of 2007 (Vinay Kumar Upadhyay Vs State of U.P. and others) this Court finds that the claim of the petitioner for regularization w.e.f. 05.07.2007 was arbitrarily and illegally rejected. Moreover, the stand of the authorities in the counter affidavit is prima facie contumacious and in the teeth of the judgment rendered by this Court in Civil Misc. Writ Petition No. 63052 of 2007 (Vinay Kumar Upadhyay Vs State of U.P. and others) dated 12.08.2009.
29. The authorities admit that juniors to the petitioner were regularised on 05.07.2007. There is no rationale or legal footing to deny regularization to the petitioner w.e.f. 05.07.2007.
30. The petitioner is hence entitled to be regularised as Collection Peon from 05.07.2007.
31. The nature of injustice often shapes the kind of relief to be granted.
32. Grant of relief is the moment of reckoning in the process of law and the redeeming act of justice by the courts. Relief is not an act of philanthropy by the courts nor is it a windfall for the litigant. Grant of relief is guided by balance of multiple issues and clear and manageable standards. The residual discretion will be exercised in the light of the conscience of the court.
33. Relief is moulded on the facts of each case. Sympathy cannot be the basis of grant of relief. Relief cannot be denied on the foot of the doctrine of fait accompli.
34. The courts have set their face against invocation of the doctrine 'fait accompli' to deny the relief. The Division Bench of this Court in the case of Dr. Muktakar Singh vs. State of U.P. and Others, reported at 2018 (2) ADJ 699, held thus:
"50. Fait accompli is a counsel of despair and cannot be elevated to a doctrine of law. The rule of law is founded on a premise of unquenchable hope and optimism that the arms of law are long enough to reach out to injustice and strong enough to redress it. The rule of moulding of relief by Courts, is an expression of this assurance. In such cases, if Courts are constrained by law to grant the relief prayed for in the petition, the Courts are obligated to mould the relief. Moulding of relief by Courts means grant of relief that is not specifically prayed for.
51. Law insists on observance of procedure. Justice demands that there should be no servitude to procedure.
52. The doctrine of moulding of relief by Courts is an indispensable tool in the administration of justice. The facts of this case require that the relief be moulded, to redeem the injustice and secure the ends of rule of law."
35. The endeavour of the courts is to right the wrong. The parties should be put back in the position they would have been but for the intervention of the offending act. Subsequent events may have to be factored in deciding the nature of the relief. In all cases the rule of law has to be affirmed and upheld.
36. While considering the grant of backwages the nature of the order will led to the denial of wages shall be examined. Whether the order was vitiated on account of a technical defect which can be rectified upon remand is a relevant factor. Whether the remand of the matter to the authorities is possible and justified? Whether the order was a bonafide error of judgment by the authorities and the conduct of the parties is another criteria of consideration. In case the order is perverse and no other view is possible, then the defect cannot be supplied even upon remand. This fact would buttress the case for full backwages. The findings in the preceding paragraphs will guide the judgement on the issue.
37. The question of backwages has engaged attention of Court on a number of occasions. Grant of backwages is not a matter of routine, nor a rule of thumb. It depends on the facts of the case, but the discretion of the courts is guided by judicial authority in point. The findings in the preceding paragraphs will guide the judgement on the issue.
38. It would now be apposite to fortify the narrative with judicial authority on point.
39. The nature of injustice and the adverse consequences of the assailed orders as factors in moulding of relief came up as an issue before the Hon'ble Supreme Court in the case of Commissioner., Karnataka Housing Board v. C. Muddaiah, reported at (2007) 7 SCC 689. The Hon'ble Supreme Court in the case of Commissioner., Karnataka Housing Board (supra) opined that in appropriate cases denial of full backwages would amount to permitting the employer to take advantage of his own wrongs. The Hon'be Supreme Court laid down the law in the following terms:
"33. The matter can be looked at from another angle also. It is true that while granting a relief in favour of a party, the court must consider the relevant provisions of law and issue appropriate directions keeping in view such provisions. There may, however, be cases where on the facts and in the circumstances, the court may issue necessary directions in the larger interest of justice keeping in view the principles of justice, equity and good conscience. Take a case, where ex facie injustice has been meted out to an employee. In spite of the fact that he is entitled to certain benefits, they had not been given to him. His representations have been illegally and unjustifiably turned down. He finally approaches a court of law. The court is convinced that gross injustice has been done to him and he was wrongfully, unfairly and with oblique motive deprived of those benefits. The court, in the circumstances, directs the authority to extend all benefits which he would have obtained had he not been illegally deprived of them. Is it open to the authorities in such case to urge that as he has not worked (but held to be illegally deprived), he would not be granted the benefits? Upholding of such plea would amount to allowing a party to take undue advantage of his own wrong. It would perpetrate injustice rather than doing justice to the person wronged.
34. We are conscious and mindful that even in absence of statutory provision, normal rule is "no work no pay". In appropriate cases, however, a court of law may,nay must, take into account all the facts in their entirety and pass an appropriate order in consonance with law. The court, in a given case, may hold that the person was willing to work but was illegally and unlawfully not allowed to do so. The court may in the circumstances, direct the authority to grant him all benefits considering "as if he had worked". It, therefore, cannot be contended as an absolute proposition of law that no direction of payment of consequential benefits can be granted by a court of law and if such directions are issued by a court, the authority can ignore them even if they had been finally confirmed by the Apex Court of the country (as has been done in the present case). The bald contention of the appellant Board, therefore, has no substance and must be rejected."
40. Similarly, in the case of Pradip Kumar v. Union of India, reported at (2012) 13 SCC 182, the grant of backwages was made to redeem violation of Article 14 of the Constitution of India caused by a stigmatic and punitive order:
"19.This now brings us to the appeal arising out of Special Leave Petition No. 27821 of 2012 filed by Pradip Kumar claiming the relief of reinstatement and for the grant of consequential benefits including full back wages. Although, the High Court had allowed the writ petition of the respondent only on the ground that there had been a violation of Rule 9(2), we have come to a conclusion that the order of discharge was vitiated being colourable exercise of power, stigmatic and punitive in nature and such order cannot be sustained in law. In our opinion, the order of discharge is arbitrary and therefore violates Article 14 of the Constitution. Consequently, we hold that the appellant Pradip Kumar is entitled to be reinstated in service. He shall be entitled to full back wages during the period he has been compelled to remain out of service. The Union of India is directed to release all consequential benefits to the said Pradip Kumar within a period of two months of the receipt of a certified copy of this order."
41. In the case of Bhuvnesh Kumar Dwivedi v. Hindalco Industries Ltd., reported at (2014) 11 SCC 85 , the Hon'ble Supreme Court found that an employee who was kept out of service due to a mistake was entitled to full backwages:
"35.Therefore, the Labour Court was correct on factual evidence on record and legal principles laid down by this Court in a catena of cases in holding that the appellant is entitled to reinstatement with all consequential benefits. Therefore, we set aside the order of the High Court and uphold the order of the Labour Court by holding that the appellant is entitled to reinstatement in the respondent Company.
36.On the issue of back wages to be awarded in favour of the appellant, it has been held by this Court in Shiv Nandan Mahto v. State of Bihar [(2013) 11 SCC 626] that if a workman is kept out of service due to the fault or mistake of the establishment/company he was working in, then the workman is entitled to full back wages for the period he was illegally kept out of service. The relevant paragraph of the judgment reads as under: (SCC p. 628, para 8) "8. ... In fact, a perusal of the aforesaid short order passed by the Division Bench would clearly show that the High Court had not even acquainted itself with the fact that the appellant was kept out of service due to a mistake. He was not kept out of service on account of suspension, as wrongly recorded by the High Court. The conclusion is, therefore, obvious that the appellant could not have been denied the benefit of back wages on the ground that he had not worked for the period when he was illegally kept out of service. In our opinion, the appellant was entitled to be paid full back wages for the period he was kept out of service."
43. The learned counsel for the respondent had mentioned before this Court about a settlement between the parties in this matter after the judgment was reserved. Therefore, we have not taken into consideration such plea from the learned counsel of the respondent since it was taken up after the hearing was over. Also the documentary evidence on record produced by the parties required us to reject the subsequent plea made by the respondent in this case. We therefore set aside the finding of the High Court in the impugned judgment [Hindalco Industries Ltd. v. Bhuvnesh Kumar Dwivedi, Civil Misc. Writ Petition No. 8784 of 2002, decided on 10-3-2011 (All)] and hold that the appellant is entitled to reinstatement with full back wages from the date of the termination of his service till the date of his reinstatement and other consequential benefits which accrue to him by virtue of his employment with the respondent Company. The appeals are allowed, with no order as to costs."
42. The Hon'ble Supreme Court in the case of Pawan Kumar Agarwala Vs. General Manager-II SBI, reported at (2015) 15 SCC 184 granted full backwages as the order was passed on the foot of no evidence, by holding thus:
"For the reasons stated supra, we have examined the case threadbare on the basis of the material placed on record and rival legal contentions urged on behalf of the parties, we hold that the finding of the enquiry officer on the charges is vitiated on account of non-compliance with the statutory rules and the principles of natural justice. In the absence of evidence, the order of reinstatement sans full back wages is unjustified in law. At best, the High Court should have made deduction of the amount of pension received by the appellant after awarding full back wages for the period in question. In not doing so, the orders of the learned Single Judge [Pawan Kumar Agarwala v. Union of India, 2014 SCC OnLine Gau 35 : (2014) 3 Gau LR 343] and the Division Bench [SBI v. Pawan Kumar Agarwala, 2014 SCC OnLine Gau 230] of the High Court are liable to be set aside with regard to non-grant of full back wages."
43. The petitioner has not worked as regularly appointed Collection Peon from 2007-13. However he did not voluntarily abstain from work. He was prevented from working as Collection Peon despite orders passed by this Court and on account of arbitrary action of the respondent authorities. The petitioner has been put to untold harassment despite adjudication of his rights by this Court. The authorities have violated the orders passed by this Court. This Court finds that the injustice can be redeemed only by awarding full backwages and consequential benefits of seniority and other service benefits to the petitioner w.e.f. 05.07.2007.
44. In the light of the above discussion, the Court finds that the petitioner is entitled to full consequential benefits as well as the back-wages from the date the juniors to the petitioner were regularized as Collection Peon i.e. 05.07.2007.
45. Ordinarily in the first instance the issue is remitted to the statutory authorities to take a decision when they have failed to perform their functions or have failed to exercise their discretion in accordance with law.
46. In the instant case the matter would have been remitted to the authorities for considering the case of grant of seniority and consequential pay benefits. But in the light of the facts found in the preceding paragraphs, it is evident that the petitioner has reached the stage of litigative exhaustion. The petitioner has been running from pillar to post, from Court to the authorities and back. This cycle was repeated a number of times, for more than a decade.
47. Considering the facts narrated in the preceding paragraphs, this Court proposes to mandamus the authorities. Remanding the matter to such authorities for fresh adjudication, is not in the interest of justice. It is time for a litigative rest.
48. This view stands fortified by the law laid down by the Hon'ble Supreme Court in Comptroller and Auditor General of India, Gian Prakash, New Delhi Vs K.S. Jagannathan reported at 1986 (2) SCC 679, wherein Hon'ble Surpreme Court held thus:-
"22. There is thus no doubt that the High Courts in India exercising their jurisdiction under Article 226 have the power to issue a writ of mandamus or a writ in the nature of mandamus or to pass orders and give necessary directions where the Government or a public authority has failed to exercise or has wrongly exercised the discretion conferred upon it by a statute or a rule or a policy decision of the Government or has exercised such discretion mala fide or on irrelevant considerations or by ignoring the relevant considerations and materials or in such a manner as to frustrate the object of conferring such discretion or the policy for implementing which such discretion has been conferred. In all such cases and in any other fit and proper case a High Court can, in the exercise of its jurisdiction under Article 226, issue a writ of mandamus or a writ in the nature of mandamus or pass orders and give directions to compel the performance in a proper and lawful manner of the discretion conferred upon the Government or a public authority, and in a proper case, in order to prevent injustice resulting to the concerned parties, the Court may itself pass an order or give directions which the Government or the public authority should have passed or given had it properly and lawfully exercised its discretion. "
49. There is another aspect of the matter. The tendency of some authorities to reject the claim of an employee on flimsy pretexts which are contrary to the findings and directions of the Court made while remanding the matter for consideration. The employee is consequently sent into a perpetual orbit of litigation. Such actions by some authorities are frequent. These authorities are habituated to act so. This trend of behaviour of some officials was noted by this Court. In Kalawati Vs State of U.P. through Secretary Mahila Evam Bal Vikas Vibhag and Another, reported at 2017 (1) ADJ 450, this Court found thus:-
"20. Once learned Standing Counsel has made a submission in this Court in writ petition No. 1128 (S/S) of 2008 that the case of petitioner is squarely covered by the judgement in Smt. Ram Devi (supra), it was not open to the Director to reiterate the same stand. If he was satisfied that the petitioner's case was not covered by Smt. Ram Devi (supra) and the learned Single Judge has wrongly applied the law, it was open to the Director to file a review application against the said order or to file special appeal, however, the Director neither filed special appeal nor review application and has reiterated the same stand which was set aside by this Court. Not only this on the third occasion when the learned Single Judge has considered the Government Order 20.04.2005 and set aside the order impugned therein, the Director again did not file special appeal but he opted to stick to his stand which has been repeatedly set aside by this Court. In fact, in my view, the conduct of the Director is contemptuous.
21. The experience reveals that when an order of the authority is set aside and a direction is issued to decide the matter afresh in the light of the observations made in the order, after the remand the authority concerned ignoring the observations of the Court, takes a fresh ground for rejection of the claim of the petitioner. There are several examples when again the order is challenged and the matter is remitted back, the authority finds out some other ground to reject the claim.
22. Once a direction has been issued to decide the matter afresh in the light of the observations made in the order, the said observation cannot be ignored by the authority concerned. It has to confine its order in terms of the observations of the Court. It is not open to it to reject the claim on a fresh ground which was not mentioned in the earlier impugned order, and ignore the observations of the Court. This type of attitude of the authorities not only wastes the invaluable public time but also cause loss to the public exchequer. If any authority or person finds that the observation of the Court is contrary to the law and is improper, it is always open to the State/ its functionaries/ aggrieved person to challenge the order/ observation of the Court taking recourse to such proceeding which is available to him but the direction of the Court must be obeyed. It cannot be ignored.
23. In the case in hand the petitioner who comes from the weaker section of the society has been compelled to file one after another writ petition, as mentioned above, however the second respondent has taken an adamant attitude and has rejected again the claim of the petitioner by a skeletal order."
50. This defiance cum harassment syndrome was fully manifested in the instant case too. In the case of Kalawati (supra) this Court mandamused the authorities without remanding the matter for fresh consideration by holding thus:-
"29. Having regard to the aforesaid law, I issue a direction to the second respondent to pass appropriate order for promotion of the petitioner within two weeks from the date of communication of this order."
51. In view of narrative in the preceding paragraphs, the order dated 23.09.2015 passed by the respondent no. 2 is arbitrary, illegal and cannot stand.
52. The order dated 23.09.2015 is quashed. A mandamus is issued to the respondent no. 2 to execute the following directions:-
(i) The petitioner shall be treated as a regularly appointed Collection Peon w.e.f. 05.07.2007. The petitioner is entitled to full backwages of the regular post of a Collection Peon w.e.f. 05.07.2007 till the date of his regularization on 04.05.2013.
(ii) The respondent no. 2 shall pay to the petitioner full backwages and other consequential financial benefits from 05.07.2007 till the date of his regularisation on 04.05.2013.
(iii) The petitioner shall also be granted all other consequential service benefits like seniority from 05.07.2007. Orders to this effect shall be issued by the respondent no. 2.
(iv) The pensionable service of the petitioner shall be reckoned w.e.f. 05.07.2007.
(v) The directions shall be executed within a period of two months from the date of receipt of a certified copy of this order.
53. It is open to the State authorities to hold an enquiry into the disobedience of the orders passed by this Court, the details of which have been enumerated in the judgment. The State Government may recover the amount of backwages from officials who are found guilty in accordance with law. It is however entirely the discretion of the State Government.
54. The facts of the case compel the Court to impose costs upon the respondents in favour of the petitioner. The costs quantified at Rs. One Lac Fifty Thousand, shall be paid to the petitioner by the respondents within a period of two months from the date of receipt of a certified copy of this order.
55. In case, the amounts to which the petitioner has been held entitled to are not paid within the stipulated period of two months, the petitioner shall be entitled to interest at the rate of 10% after the expiry of two months from the date of receipt of a certified copy of this order, till the date of actual payment. It shall be open to the authorities to recover the interest amount so awarded from the officials who are found to be responsible for delay in release of the payments in favour of the petitioner.
56. The writ petition is allowed.
Order Date :- 11.1.2019 Pravin