Vijay Narain And Others vs State Of U.P. And Others
2018 Latest Caselaw 1824 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Reserved on 05.04.2018
 
Delivered on 03.08.2018
 
Court No. - 62
 

 
Case :- WRIT - A No. - 25548 of 2010
 
Petitioner :- Vijay Narain And Others
 
Respondent :- State Of U.P. And Others
 
Counsel for Petitioner :- Satish Mandhyan,Vidhu Prakash Pandey,Vinod Sinha
 
Counsel for Respondent :- C. S. C.
 

 
Hon'ble Ajit Kumar,J.

1. The petitioners, who were initially appointed as a Seasonal Collection Amin, a temporary cadre created by the respondent-State, have questioned the order passed by the Collector/ District Magistrate, Gorakhpur dated 27th November, 2009 by means of this writ petition. By the impugned order petitioners' claim qua regular appointment within 35% quota reserved under U.P. Collection Amins' Service Rules, 1974 (for brevity 'Rules, 1974'), has been rejected.

2. The factual matrix of the case is that after the amendment in the Rules, 1974 vide notification dated 23rd October, 1992, 35% of the posts of Seasonal Collection Amins were directed to be filled in from amongst the Seasonal Collection Amins. Thus, for 35% of the vacancies, the Seasonal Collection Amins cadre became a feeding cadre. Accordingly, the petitioners, who were appointed prior to the amendment became entitled to be considered for regular appointment as Seasonal Collection Amin under the Rules, 1974.

3. In order to make appointments without disturbing seniority even in the feeding cadre, the Board of Revenue, U.P., Lucknow issued a Circular dated 25th February, 1995 for preparation of the seniority list of Seasonal Collection Amins district-wise. On 26th April, 1995, the seniority list was prepared of the Seasonal Collections Amins and these Seasonal Collection Amins were placed in order of merits in the category 'A', 'B' and 'C'. The petitioner nos. 1, 2 and 3 were placed at serial No. 25, 23 and 13 respectively in category 'A' of the seniority list declared on 26th April, 1995. It is also worth noticing that the average work performance of collection revenue was adjudged to be 82%, 72% and 79% respectively in respect of the petitioners. The combined seniority list of Seasonal Collection Amins of district- Gorakhpur in the category 'A', 'B' and 'C' with reference to their respective merits of performance has been filed as Annexure-3 to the writ petition.

4. One Akhilesh Kumar along with other persons who did not find place in the seniority list (supra) made some representation with the District Magistrate who on their representation passed the order on 19/20th July, 1997 directing Additional District Magistrate (Finance and Revenue), Gorakhpur not to make any appointment until new seniority list is prepared. In the meanwhile, one Kripa Shanker s/o Markande Shukla filed a writ petition before this Court bearing No. 23684 of 1997 seeking directions for being appointed as Seasonal Collection Amin on the basis of his work and performance and this Court disposed of his writ petition vide order dated 14th June, 1997 directing the Collector to pass appropriate order in the light of an amendment brought in 1974 Rules, vide notification dated 23rd October, 1992. In compliance of the order of this Court passed in Writ Petition No. 23684 of 1997, the Collector considered the claim of Kripa Shanker and on the basis of his performance which was below 59% observed that he can be placed in 'C' category and, therefore, he being not eligible, cannot be appointed as Seasonal Collection Amin. It is worth mentioning here that neither under the order dated 19/20th July, 1997 nor, under the order dated 5th December, 1997, the Collector/ District Magistrate passed any order either for cancellation of existing seniority list or for preparation of a fresh seniority list.

5. Considering the seniority list of the year 1995, serial No. 1 to 4 were given regular appointment of Collection Amin on 1st June, 1995 but thereafter no further appointments were being made and the department proceeded to make fresh selection from open market ignoring the claim of Seasonal Collection Amins whose name found placed in the seniority list.

6. Under the circumstances, the petitioners along with other Seasonal Collection Amins represented before the Collector, Gorakhpur. The additional Collector (Finance and Revenue), Gorakhpur passed an order on 3rd October, 2002 informing the present petitioners that no appointment was possible from the old seniority list prepared in the year 1995. The petitioners challenged the said order before this Court vide Writ Petition No. 15791 of 2003 along with two other Seasonal Collection Amins Vijay Pratap Tiwari (Serial No.6) and Amarjeet Rai (Serial No. 22). Initially, it appears, counter affidavit was called for, however, no counter affidavit was filed. Learned Standing Counsel representing State-respondent including the Collector/ District Magistrate, Gorakhpur was heard and the Court proceeded to consider the claim of the petitioners on the basis of the seniority list prepared on 26th April, 1995. It is worth noticing here that from the judgment dated 27th February, 2004 passed in the above writ petition, it clearly borne out that State- respondents had no explanation to offer as to why and under what circumstances, the seniority list prepared on 26th April, 1995 under the orders of Board of Revenue, was not to be honoured and as to why the petitioners, who were working as Seasonal Collection Amins continuously, were not to be considered for regular appointment. Thus, this Court in the said writ petition vide order dated 27th February, 2004 considering the claim of the petitioners passed an order directing the Collector, Gorakhpur to pass a reasoned order on the representation of the petitioners obviously, for appointment as regular Collection Amin. Regarding the order passed by the Additional Collector (Finance and Revenue), Gorakhpur rejecting the claim of the petitioners, the Court clearly observed that it was a case of non-application of mind. Relevant extract of paragraph 3 of the judgment (supra) is reproduced hereunder:-

".............. No counter affidavit has been filed by the standing counsel though both respondents are represented by him. The petitioners only pray that they may be appointed according to seniority list prepared on 26-4-1995. Admittedly, under directions of the State Government a list of Collection Amins was prepared on 26-4-1995 and they were categorized in Class-A, B and C. It was also directed that Collection Amins will be appointed from the said list according to their merit. It is on record that several persons from the said list have been appointed. It is not clear how appointments were made if list had not been prepared according to rule. On the representation made by the Amins the Collector on same day i.e. 3-10-2002 though list is not according to rule, hence selection is not possible but relevant facts be taken into consideration. The said orders do not contain reason as to how list is not according to law. It appears to be a case of non application of mind."

7. In compliance of the order of this Court passed in Writ Petition No. 15791 of 2003 (supra), the Collector considered the claim of the petitioners and this time instead of going into the merit of the existing seniority list prepared on 26th April, 1995 rejected the claim of the petitioners on the ground that their average performance of revenue collection was less than 70% in the last four faslis i.e. 1460-1410 (2000-2003). The petitioners again challenged the order before this Court vide Writ Petition No. 22374 of 2004 and this Court recorded a finding that in the seniority list prepared in the year 1995 wherein the petitioners' name figured at item Nos. 13, 23 and 25, their realization of revenue had been more than 70% and, therefore, on the date of preparation of seniority list, they had requisite eligibility criteria being fulfilled. Under the circumstances, this Court vide order dated 31st July, 2009 set aside the order and issued a direction to the respondent-Collector to consider the case of the petitioners afresh in the light of their realization of revenue and placement in the seniority shown in the year 1995. The operative portion of the order dated 31st July, 2009 passed in Writ Petition No. 22374 of 2004 is quoted hereunder:-

"Considering all these facts and circumstances of the case, I hereby quash the order impugned dated 26-05-2004 passed by the Collector Gorakhpur (Annexure 9) and issue a direction to consider their case as fresh in the light of their realization of revenue and placement in the seniority shown in 1995, within three months from the date of production of certified copy of this order before the Collector concerned."

8. No appeal has been filed by the State Government against the judgment and order dated 31st July, 2009 passed in the Writ Petition No. 22374 of 2004. Accordingly, the judgment having become final between the parties, the petitioners made representation to the District Magistrate/ Collector, Gorakhpur on 27th August, 2009 for being considered.

9. This time while considering the matter again in the light of the judgment passed by this Court dated 27th November, 2009 (supra), the District Magistrate rejected the claim of the petitioners on the following grounds:-

(a). Seniority list prepared in the year 1995 with category 'A', 'B' and 'C' came to be cancelled by his predecessor District Magistrate Sri Sanjeev Saran vide order dated 19th July, 1997;

(b). The persons who were given appointment on substantive post on a regular basis in the year 2004, were appointed on the basis of seniority list of the year 2004 and not of the year 1995;

(c). Vijay Pratap Tiwari and Amarjeet Rai were given appointment in compliance of the order of this Court dated 27th February, 2004 ; and

(d). The order dated 26th May, 2004 that was passed on the representation of the petitioners in compliance of the order of this Court dated 27th February, 2004 (Writ Petition No. 15791 of 2003) was passed on the basis of the notification dated 23rd October, 1992 with regard to the satisfactory collection work of 70% and not on the basis of the seniority list of the year, 1995 and since in the seniority list prepared in the year 2004, the petitioners' work was not up to mark, therefore, they could not be given appointment.

10. Having heard learned counsel for the parties and having perused the record, I find that the seniority list dated 26th April, 1995 was definitely prepared under the orders passed by the Board of Revenue, U.P. , Lucknow dated 25th February, 1995 after the Rules, 1974 came to be amended under the notification dated 23rd October, 1992 and there cannot be any dispute about it. The order of the Board of Revenue, Lucknow dated 25th February, 1995 referred to its earlier order dated 13th January, 1988 for preparation of seniority list on the basis of merit with due regard to the collection work as per the norms, in the category 'A', 'B' and 'C'. Thus, the seniority list that was prepared on 26th April, 1995, the petitioners who had the revenue collection more than 70% to wit, 82%, 72% and 79% respectively, were placed in the category 'A'.

11. The claim of the petitioners had been rejected initially under some order passed by the Additional District Magistrate (Finance and Revenue), Gorakhpur, which became subject matter of litigation in Writ Petition No. 17591 of 2003 on the ground that the seniority list was old one and was not in accordance with Rules, 1974 and, therefore, cannot be relied upon. This Court in its order dated 27th February, 2004 passed in aforesaid writ petition has held that order to be absolutely without any application of mind and remitted the matter. Accordingly, it was a duty cast upon the Collector/ District Magistrate, Gorakhpur to consider the matter of seniority list in the light of the Rules, 1974 framed and the orders passed by the Board of Revenue, Lucknow, and then to record a finding that seniority list was wrong and a fresh seniority list was to be prepared. However, even this time while rejecting the claim of the petitioners under the order dated 26th May, 2004, the Collector proceeded, in the first instance, to reject the claim of the petitioners on the ground that their work of performance was below the eligibility criteria as per the Rules, 1974 and then it held that the seniority list prepared on 26th April, 1995 had to be cancelled after investigation and inquiry. But the order was absolutely silent as to when the said seniority list dated 26th April, 1995 was cancelled and as to when new seniority list came to be prepared. It appears that even before this Court when the said order came to be challenged in Writ Petition No. 22375 of 2004, the only stand was taken that list of 1995 was cancelled. This Court in its judgment found that no such stand of cancellation of the seniority list dated 26th April, 1995 was ever taken when this Court passed an order in the year 2004 and further, the Court noticed that the persons who were shown in the seniority list of the year 1995 were given appointment. Needless to add Amarjeet Rai being at Sl. No. 22 was junior to the petitioner No.3.

12. Thus, the Court held that the seniority list of the year 1995 was still in existence and regular appointments were being made. The Court, thus, proceeded to consider the claim of the petitioners on the ground; when seniority list of the year 1995 was still in force, the petitioners' claim could not be rejected and under that seniority list prepared on the basis of merit list, the performance of the petitioner in terms of revenue collection was more than 70%. Even in the impugned order, I find while respondents have justified cancellation of seniority list dated 26th April, 1995 on the ground that new seniority list of the year 2004 was prepared and that certain persons who were given appointments in the year 2004, were given appointments either from the seniority list of 2004 or under the orders of the Court, respondents have failed to turn up with any seniority list in their counter affidavit or any order of the Collector approving any such seniority list. In order to justify their stand not to consider claim of the petitioners on the basis of the seniority list of 1995, the 2nd respondent in the impugned order has relied upon the order of the then Collector, Gorakhpur dated 19th July, 1997, whereby, according to him, the seniority list of 1995 was cancelled. The order dated 19th July, 1997 has been brought on record as Annexure-8 to the writ petition which is reproduced hereunder:-

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"OFFICE OF DISTRICT MAGISTRATE, GORAKHPUR
 
Letter No: 247/ Ashu. D.M.-97	      Dated: July 19/20, 1997
 
Additional District Magistrate (F/R)
 
	Sri Akhilesh Kumar and others, Seasonal Collection Amins met me today and handed over a letter which is appended to this letter. They have apprised me that the seniority list that was prepared have many defects and appointments are being made on the basis of old list. They have requested that after preparation of new list on the basis of gradation list, the appointments should be made.
 
	Accordingly, you are hereby directed that until new list is prepared no process of appointment should be undertaken, simultaneously get gradation list prepared and place before me.
 
Appendix: As above.
 
Sd./ illegible
 
(Sanjeev Saran)
 
District Magistrate, Gorakhpur"
 

 
(Translation by the Court)
 

13. From the operative portion of the order of the then Collector Sanjeev Saran, it is very much clear that he directed that unless and until new seniority list is prepared, no appointment shall be made on the basis of the above existing seniority list. It appears from the order that the Collector acted mechanically on some representation of Seasonal Collection Amins and proceeded to pass an order for preparation another seniority list, however, without recording any reason as to why the existing seniority list was bad. Moreover, the then Collector, Gorakhpur does not cancel the existing seniority list nor, does he mention date and year of the seniority list being questioned. All that he states is that new seniority list shall be prepared and until such seniority list was prepared, no fresh appointment would be made. Apart from this order, there is no other order in existence whereby it can be said that seniority list dated 26th April, 1995 was ever cancelled in the first instance or secondly some other seniority list was prepared. Admittedly, this order was passed in the year 1997 and according to the stand taken in the impugned order, some seniority list was prepared in the year 2004. Meaning thereby, there was no seniority list between 1997 and 2004. But this is not the stand of the respondents. If the order of 1997 is taken to be an order cancelling the seniority list as it directs for preparation of a fresh seniority list then in order to justify the cancellation as a deemed cancellation under the order, the respondents were to place on record any such seniority list which was prepared according to them under the order 1997. But neither in the impugned order nor, in the counter affidavit any such plea is taken. Nor, any order of Collector has been placed before this Court showing approval of any subsequent seniority list prepared in the year 1997 or even in the year 2004. Hence, this Court does not find any justification to uphold the finding returned by the Collector/ District Magistrate that the seniority list dated 26th April, 1995 stood cancelled under the order dated 19th July, 1997 and so also the stand of 2nd respondent that consideration of the petitioners' appointment on the basis of the said seniority list could not be considered.

14. Further in the absence of any evidence to show that any subsequent seniority list was prepared in the year 1997 or there was any order approving the seniority list of the year 2004 by the Collector, the Court does not find any justification to uphold the finding that the subsequent appointments have been made in the year 2004 only on the basis of some seniority list prepared in the year 2004 cancelling and superseding seniority list of 1995. So, this ground also being equally not justified, the same is also unsustainable.

15. So far as the ground (c) is concerned that the appointments have been made in the year 2004 of two persons in compliance of the order of the Court dated 27th February, 2004, I find that order dated 27th February, 2004 was passed in the Writ Petition No. 15791 of 2003 in which the petitioners were also party. The respondents allowed the claims of two petitioners Amarjeet Rai and Vijay Pratap Tiwari, under the order dated 27th February, 2004 which has been quoted hereinabove in the earlier part of this judgment virtually upholding the seniority list dated 26th April, 1995. So if Amarjeet Rai and Vijay Pratap Tiwari were to be appointed in compliance of the order of the Court ignoring the seniority list etc. then the petitioners could have also been considered but the petitioners' claim was rejected on the ground that their performance of subsequent four faslis was not as required under 1992 amended Rules.

16. The order dated 26th May, 2004 has been quashed by this Court and this Court while setting aside the said order in its judgment dated 31st July, 2009 has recorded a categorical finding that the petitioners were placed in the merit seniority list of 1995 and on the basis of their work performance on the date of preparation of seniority list, ought to have been considered. This finding returned by the learned Single Judge has not been challenged and, therefore, now to hold otherwise would amount to sitting in appeal over the findings returned by this Court in its judgment dated 31st July, 2009. In my opinion, therefore, the issue with regard to the cancellation of the earlier seniority list dated 26th April, 1995, in the facts of the case, is no more res intigra and, thus ground no. (c) is also not tenable and is liable to be rejected and is hereby rejected.

17. So far the seniority list 2004 and 2008 is being relied upon to deny the claim of the petitioners, in view of the discussions made hereinabove and the view taken that the seniority list of the year 1995 has not been cancelled by any written order of the Collector/ District Magistrate, would be totally irrelevant and it would not be proper to deny the claim of the petitioners on the said ground.

18. Moreover, the respondents have not come up with any such case in the counter affidavit showing the seniority list of 2004 and 2008. As a matter of fact there are no such averments in the entire counter affidavit that any such merit seniority list was prepared in the year 2004 and 2008 to justify the findings returned in the impugned order denying the claim of the petitioners. Although the directions of this Court as contained in the order dated 31st July, 2009 passed in the Writ Petition No. 22374 of 2004 to consider the claim of the petitioners on the basis of their work performance as recorded in the seniority list dated 26th April, 1995 has become final and is binding but even looking to the provisions regarding satisfactory work in the explanation of Rules, 1974 provided that the satisfactory work will be taking into account total conduct and character of Seasonal Collection Amin from the date of his appointment and then on the basis of that performance candidature would be considered taking last four faslis collection should be at least 70%, provided of course, in the opinion of the Court, merit-cum-seniority list was revised after inviting objections. The order which was set aside by learned Single Judge in the judgment dated 31st July, 2009 could have been justified in case if the seniority list was re-revised as per the merit performance of Seasonal Collection Amins on the year to year basis but this is not so. The respondents while appointed some of the Seasonal Collection Amins under the order of this Court as they admit under the impugned order and then some of them were appointed on the basis of some seniority list of the year 2004 which has not seen the light of the day, in the opinion of the Court, the respondents themselves have violated their own rules. Either the Collector should have revised the merit seniority list as per the performance periodically after every four faslis or he should have followed his own seniority list once prepared on the basis of merit, in matters of public employment. This being not the situation the order passed cannot be justified even if 70% work performance is raised as an issue to deny the claim of the petitioners.

19. It is a case of hide and seek. While initially in the year 2003 stand taken is that the merit seniority list prepared in the year 1995 was cancelled, though there was no such cancellation order, the next stand taken is that 70% performance in four faslis was not there and when this order was challenged then again they have turned up to take stand that some subsequent seniority list was prepared in the year 2004 although the said seniority list has not been filed either before this Court in earlier two writ petitions or even in the present writ petition. Under the circumstances, this Court is of the considered view that order impugned dated 27th November, 2009 (Annexure-1 to the writ petition) cannot be sustained and is hereby quashed.

20. The respondents are directed to reconsider the claim of the petitioners in the light of observations and discussions made herein this judgment and shall pass a fresh order positively within a period of six weeks from the date of production of certified copy of this order. It is made clear that if juniors to the petitioners have been given regular appointment, the petitioners' claim shall be considered with due regard to their seniority in list 'A' of merit list dated 26th April, 1995.

21. Under the facts and circumstances of the present case, the Court cannot be oblivious of the utter harassment meeted out to the petitioners by forcing them to unnecessary litigation for the fault of the State-respondents. They have continuously discharged their duties as Seasonal Collection Amin and nothing has been found against them to question their work and conduct as such and yet they have been denied regular appointment for the technicalities involved in continuance/ existence/ revised merit seniority list. This is a case which, in the opinion of the Court, deserves exemplary cost to be imposed against the respondents to do complete justice in the matter. Under Chapter XXI, Rule 11 of the Allahabad High Court Rules, 1952, there is an ample provision for award of cost. The provision runs as under:-

"11. Costs. - In disposing of an application under this Chapter the Court may make such order as to costs as it may consider just."

22. Thus, in order to do justice, rules provide for the imposition of the cost while disposing of the matter, as may be considered just and proper by the Court. While in the case of Nagar Panchayat Kithore, District Meerut v. Presiding Authority, Labour Court, U.P., Meerut and another, (2007) 1 SAC 567, the Court held that imposition of exemplary costs taking into account of the circumstances of the case as justified, Supreme Court in the case of Salem Advocate Bar Association, Tamil Nadu v. Union of India, AIR 2005 SC 3353 has held that "so far as awarding of costs at the time of judgment is concerned, awarding of costs must be treated generally as mandatory inasmuch as the liberal attitude of the Courts in directing the parties to bear their own costs had led the parties to file a number of frivolous cases in the Courts or to raise frivolous and unnecessary issues. Costs should invariably follow the event. Costs must be appropriately apportioned. Special reasons must be assigned if costs are not being awarded. Costs should be assessed according to the rule in force".

23. Apart from above, in a catena of the decisions, Supreme Court has held that the Court can award exemplary costs to the litigants who have approached the Court for commission and omission of State authorities. While no litigants can derive any benefit on account of pendency while protection of interim order has been there, the litigants can also not be prejudiced for non-consideration of their case for a service benefit, which is otherwise guaranteed to them as condition of service under the rules, just for wrongful action or inaction on the part of respondent authorities.

24. In the case of RamRameshwari Devi and others v. Nirmala Devi and others, (2011) 8 SCC 249, the Court observed that "in order to curb uncalled for and frivolous litigation, the courts have to ensure that there is no incentive or motive for uncalled for litigation. It is a matter of common experience that court's otherwise scarce and valuable time is consumed or more appropriately, wasted in a large number of uncalled for cases".

25. In the facts of the present case, I find that after the order was passed by this Court on 27th February, 2004 in initial Writ Petition No. 15791 of 2003 the controversy could have been set at rest at the end of the respondents but they continued to pass wrong orders by twisting facts one way or the other and this led to the filing of repeated writ petitions.

26. In view of above, in the considered opinion of the Court, the respondent No.3- District Magistrate/ Collector, Gorakhpur is liable to be saddled with the exemplary cost to be paid to the petitioners and this will do complete justice in the matter.

27. The writ petition is, accordingly, allowed with cost which this Court quantifies to be Rs. 30,000/-.

Order Date :- 3.8.2018

Atmesh