State Of U.P. And 2 Othrs. vs Jaswant Kumar And Another
2018 Latest Caselaw 1617 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Reserved on: 28.11.2017
 
Delivered on: 20.07.2018
 
Court No. - 34
 

 
Case :- SPECIAL APPEAL DEFECTIVE No. - 570 of 2017
 
Appellant :- State Of U.P. And 2 Othrs.
 
Respondent :- Jaswant Kumar And Another
 
Counsel for Appellant :- Smt. Subhash Rathi, ACSC
 
Counsel for Respondent :- Ajay Singh,Dharmendra Kumar Tripathi
 

 
Hon'ble Sudhir Agarwal,J.

Hon'ble Ajit Kumar,J.

(Delivered by Hon'ble Sudhir Agarwal, J.)

1. Heard learned Additional Chief Standing Counsel for appellants and Sri Dharmendra Kumar Tripathi, learned counsel for petitioner-respondents.

2. This Intra Court appeal under Chapter VIII Rule 5 of Allahabad High Court Rules, 1952 (hereinafter referred to as ''Rules, 1952') has arisen from judgement dated 22.03.2017 in writ petition No. 11895 of 2017 whereby learned Single Judge has disposed of writ petition.

3. With the consent of learned counsel for parties, we have proceeded to hear and decide appeal at this stage, under the Rules.

4. Petitioner-respondent, Jaswant Kumar filed writ petition no. 11895 of 2017 seeking a mandamus commanding Board of Revenue, Lucknow to accord permission to recommendation of District Magistrate, Jaunpur in respect of relaxation in the age of petitioner-respondents for regularization on the post of Collection Amin as per Seniority List, 2012 and Government Order (hereinafter referred to as "G.O.") dated 10.11.2000 read with other G.Os. dated 30.05.2008, 26.02.2014 and 01.10.2015. He also sought a further mandamus commanding respondents to regularize petitioner-respondents on the post of Collection Amin from the date his Juniors were regularized with all consequential benefits.

5. Brief facts stated in the writ petition are, that, petitioner-respondent was employed as Seasonal Collection Amin in 1995 and required to work at Tehsil- Mariyahun, District- Jaunpur. Recruitment, appointment and other conditions of service of Collection Amin are governed by Rules framed under proviso to Article 309 of Constitution of India titled as U.P. Collection Amin Service Rules, 1974 (hereinafter referred to as ''Rules, 1974'). A Seniority list was published in 2012 of all Seasonal Collection Amins in which petitioner-respondents was shown at Sl. No. 74. G.O. dated 10.11.2000 was issued giving regularization to all Seasonal Collection Amins for substantive appointment of Collection Amin up to the completed age of 45 years. Similar relief was granted by subsequent a G.O. dated 30.05.2008. Vide G.O. dated 26.02.2014, all concerned authorities were directed to make substantive appointment under Rules, 1974.

6. Rules, 1974 were amended by Seventh Amendment on 01.10.2015 providing that total 85% vacancies shall be filled in as one time measure, from Seasonal Collection Amins. Order dated 02.11.2018 for compliance was issued by Deputy Secretary, Government of U.P., Lucknow to Commissioner and Secretary, Board of Finance, U.P., Lucknow. In different districts, several persons were accordingly regularized. However petitioner-respondent was not considered for regularization. He along with others filed writ petition No. 42228 of 2016 (Ram Ajab Yadav and 14 others Vs. State of U.P. And 3 others) which was disposed of vide judgement dated 06.09.2016, directing District Magistrate, Jaunpur to decide claim of petitioner in the light of G.O. dated 04.08.2008 and in accordance with seniority list of 2012. District Magistrate, Jaunpur passed order dated 19.12.2016 selecting petitioner-respondent and others for substantive appointment as Collection Amin. However petitioner was not given substantive appointment/regularization as Collection Amin, hence he filed above writ petition which has been disposed of by learned Single Judge, directing Principal Secretary to take final decision in the matter of grant of age relaxation to petitioner-respondent in accordance with law.

7. Learned counsel for appellant contended that under Rules, 1974, age is prescribed and Rules relating relaxation of a rules pertaining to rules of Recruitment and there is no provision under Rules for relaxation of such provisions, hence question of relaxation does not arise.

8. Learned counsel for petitioner-respondents, on the contrary, submitted that since such relaxation was allowed in the past, therefore, it cannot be denied to petitioner.

9. Date of birth of petitioner admittedly is 02.04.1957 which is evident from Annexure-17 to writ petition which is a High School Examination Certificate, 1972. It is also not in dispute that recruitment and appointment to post of Collection Amin is governed by Rules, 1974. Rules initially framed did not mention about Seasonal Collection Amin. Rule 5 provides source of Recruitment. It says that direct recruitment shall be made in accordance with procedure prescribed in Chapter V of Rules, 1974 which comprised of Written test and Interview. Rule 5, proviso further says that subject to availability of candidates, 10% vacancies of Collection Amin shall be filled in by promotion of permanent Collection Peon who possessed intermediate qualification or equivalent and have worked for six years in Collection Organization of Revenue Department and are not above 45 years of age.

10. Rule 9 of 1974 Rules underwent an amendment by notification dated 11.03.1976 and a proviso was added therein to the following effect:

" 9& lsok esa lh/kh HkrhZ ds fy;s vH;FkhZ dks ek/;fed f'k{kk परिषद] mRrj izns'k dh b.VjehfM,V ijh{kk ;k ljdkj }kjk mlds led{k ekU;rk izkIr ijh{kk esa vo'; mRrh.kZ gksuk pkfg;s%

izfrcU/k ;g gS fd mu O;fDr;ksa ds lEcU/k esa tks bl fu;ekoyh ds izkjEHk gksus ds iwoZ lsok esa HkrhZ fd;s x;s Fks] 'kSf{kd vgZrk ogh le>h tk;sxh tSlh lsok esa mudh izFke fu;fer fu;qfDr ds le; fofgr FksA""

9. Academic qualifications- A candidate for direct recruitment to the service must have passed the Intermediate examination of the Board of High School and Intermediate Education, U.P. or an examination recognized by the Government as equivalent thereto:

Provided that, in respect of persons who were recruited in the Service prior to the commencement of these Rules, the academic qualifications shall be deemed to be as prescribed at the time of their first regular appointment in the Service."

(English Translation by the Court)

11. Thereafter, another amendment came by notification dated 20.04.1977 and Rule 9 providing educational qualifications was substituted by following:

" 9& 'kSf{kd vgZrk,a&

lsok esa lh/kh HkrhZ ds fy;s vH;FkhZ dks ek/;fed f'k{kk परिषद mRrj izns'k dh b.VjehfM,V ijh{kk ;k ljdkj }kjk mlds led{k ekU;rk izkIr ijh{kk esa vo'; mRrh.kZ gksuk pkfg;s%

izfrcU/k ;g gS fd mu O;fDr;ksa ds lEcU/k esa tks bl fu;ekoyh ds izkjEHk gksus ds iwoZ lsok esa HkrhZ fd;s x;s Fks 'kSf{kd vgZrk ogh le>h tk,xh tSlh lsok esa mudh izFke fu;fer fu;qfDr ds le; fofgr Fkh%

vxzsrj izfrcU/k ;g gS fd mu O;fDr;ksa ds laca/k esa] ftuds uke bl fu;ekoyh ds izkjEHk gksus ds fnukad dks lhtuy dysD'ku vehu ds inksa ij HkrhZ ds fy;s vH;fFkZ;ksa dh vuqeksfnr lwph esa lfEefyr fd;s x;s Fks vkSj ftUgksaus mDr fnukad rd lhtuy dysD'ku vehu ds :i esa de ls de pkj Qlyksa esa dk;Z dj fy;k Fkk] 'kSf{kd vgZrk ek/;fed f'k{kk परिषद mRrj izns'k dh gkbZ Ldwy ;k ljdkj }kjk mlds led{k ekU;rk izkIr ijh{kk gksxhA"

"9. Academic qualifications- A candidate for direct recruitment to the service must have passed the Intermediate examination of the Board of High School and Intermediate Education, U.P. or an examination recognized by the Government as equivalent thereto:

Provided that, in respect of persons who were recruited in the Service prior to the commencement of these Rules, the academic qualifications shall be deemed to be as prescribed at the time of their first regular appointment in the Service:

Provided further that, in respect of persons whose names were included in the approved list of candidates for recruitment on the post of seasonal collection Amins on the date of commencement of these Rules and who had already worked as seasonal collection Amins for at least four fasals till the said date, the academic qualifications shall be High School of the Board of High School and Intermediate Education, U.P. or an examination recognized by the Government as equivalent thereto."

(English Translation by the Court)

(emphasis added)

12. Seasonal Collection Amin for the purpose of making substantive appointment on the post of Collection Amin came to be recognized for the first time by amendment of Rules, 1974, by notification dated 17.05.1980 and Rule 9, substituted by said amendment, reads as under:

"9. Academic qualifications- A candidate for direct recruitment to the service must have passed the Intermediate Examination of the Board of High School and Intermediate Education, U.P. or an examination recognized by the Government as equivalent thereto:

Provided that, in respect of persons who were recruited in the service prior to the commencement of these Rules, the academic qualifications shall be deemed to be as prescribed at the time of their first regular appointment in the Service:

Provided further that, in respect of persons who had been appointed to the post of Seasonal Collection Amins prior to the commencement of the U.P. Collection Amins' Service (Third Amendment) Rules, 1980 and who have already worked satisfactorily for at least four fasals till the said date, the academic qualifications shall be as prescribed at the time of their first appointment as Seasonal Amin."

(emphasis added)

13. Rule 19-A was also inserted with effect from 12.01.1976 by amendment notification dated 17.05.1980 and it provides in respect of appointing authority as under:

" 19-A. Appointing Authority- Subject to the provisions of Article 311 of the Constitution, the sub-divisional Officer shall be the appointing authority;

Provided that in respect of the persons appointed by the Collector in accordance with the rules, in force for the time being, he shall be the appointing authority for the purpose of Article 311 of the Constitution:

Provided further that, if so authorized by the Government, the Collector may also exercise the powers of appointing authority in cases where the appointment has been made by the Sub Divisional Officer or by any other subordinate authority."

(emphasis added)

14. Then came a more comprehensive amendment by notification dated 08.05.1984 which made amendments in Rules 3, 5, 8, 11 to 17, 20 to 23, 29 and inserted a new Rule 32. However we are skipping the same since that is not related with issue in question.

15. Next came Fifth Amendment made by notification dated 23.10.1992 and here we find that existing Rule 5 (1) was substituted, prescribing 35% quota in vacancies of Collection Amins from Seasonal Collection Amins for making substantive appointment. Substituted Rule 5 (1) reads as under:

"(1) Recruitment to posts in the ordinary grade of the Service shall be made on the result of a competitive examination as provided in Part V of these rules:

Provided that subject to availability of suitable candidates fifteen percent of the vacancies shall be filled by promotion from amongst such substantively appointed collection peons-

(a) Who have passed at least High School Examination of the Board of High School and Intermediate Education, Uttar Pradesh or Examination recognised by the Government as equivalent thereto; and

(b) Who have worked in the Collection Organisation of the Revenue Department for a period of at least six Fasals:

Provided further that thirty-five per cent vacancies shall be filled by selection from amongst such Seasonal Collection Amins-

(a) who have worked satisfactorily for at least four Fasals:

(b) whose age on the first day of July of the year in which selection is made does not exceed 45 years:

Provided also that if suitable candidates are not available, remaining vacancies shall be filled by general candidates through direct recuirtment.

Explanation- Satisfactory work shall mean at least seventy per cent realisation as per prescribed standard during the last four Fasals inclulding good conduct throughout."

(emphasis added)

16. Aforesaid Amendment Rules also made amendment in Rule 6, 13, inserted Rule 17-A, amended Rule 19-A and 20 but same are being skipped as same are not relevant for us.

17. Then Sixth Amendment came vide notification dated 17.12.2004 and again Rule 5 (1) was substituted as under:

"(1) Recruitment to posts in the ordinary grade of the service shall be made on the result of a competitive examination as provided in Part V of these rules:

Provided that subject to availability of suitable candidates, fifteen per cent of the vacancies shall be filled by promotion from amongst such substantively appointed collection peons-

(a) who have passed at least High School Examination of the Board of High School and Intermediate Education, Uttar Pradesh or an Examination recognised by the Government as equivalent thereto; and

(b) who have worked in the Collection Organisation of the Revenue Department for a period of at least six Fasals;

Provided further that thirty-five per cent vacancies shall be filled by selection, from amongst such Seasonal Collection Amins-

(a) who have worked satisfactorily for at least four Fasals;

(b) whose age on the first day of July of the year in which selection is made does not exceed 45 years:

Provided also that if suitable candidates are not available, remaining vacancies shall be filled by general candidates through direct recruitment.

Explanation- Satisfactory work shall mean at least seventy percent average realisation as per prescribed standard during the least four Fasals including good conduct throughout."

(emphasis added)

18. Seventh Amendment has been made in Rules, 1974 vide notification dated 01.10.2015 and it has substituted Rule 5(1) again as under:

"5. (1) Recruitment to posts in the ordinary grade of the service shall be made on the Basis of result of a competitive examination as provided in part V of these rules:

Provided that subject to availability of suitable candidates, fifteen per cent of the vacancies shall be filled by promotion from amongst such substantively appointed collection peons:-

(a) who have passed at least High School Examination of the Board of High School and Intermediate Education, Uttar Pradesh or an Examination recognised by the Government as equivalent thereto; and

(b) who have worked in Collection Organisation of the Revenue Department for a period of at least six fasals:

Provided further that thirty five per cent vacancies shall be filled by selection, from amongst such Seasonal Collection Amins:-

(a) who have worked satisfactorily for at least four fasals;

(b) whose age on the first day of July of the year in which selection is made does not exceed 45 years:

Provided also that if suitable candidates are not available, remaining vacancies shall be filled by general candidates through direct recruitment:

Provided further that after the commencement of the Uttar Pradesh Collection Amin's Service (Seventh Amendment) Rules, 2015, only as one time measure, 85 per cent of the existing vacancies on the date of commencement of these rules, shall be filled by selection, from amongst such seasonal collection amins who possessed requisite qualifications as prescribed in second proviso to sub-rule (1) of rule 5.

Explanation- Satisfactory work shall mean at least seventy per cent average realisation as per prescribed standard during the last four fasals including good conduct throughout."

(emphasis added)

19. Rules 5 (1) thus as it has been brought in Rules 1974 prescribes 35% quota for substantive appointment from Seasonal Collection Amin. It also clearly provides maximum age of 45 years on the first date of July of the year of recruitment. Year of recruitment has been defined in Rule 3(m) which was inserted by notification dated 08.05.1984 and reads as under:

"3-(m) 'year of recruitment' means a period of twelve months commencing from the first day of July of a calendar year."

20. Now only one more Rule needs be examined as to whether there is any power of relaxation under Rules, 1974. This is provided in Rule 31 which reads as under:

"31. Relaxation of conditions of service- Where the Government is satisfied that the operation of any rule regarding the conditions of service causes undue hardship in any particular case, it may, notwithstanding anything contained in the rules, by order, dispense with or relax the requirements of that rule to such extent and subject to such conditions as it may consider necessary for dealing with the case in a just and equitable manner."

(emphasis added)

21. Rule 31 confers power upon a Government to relax any Rule regarding "conditions of service" if it is causing any undue hardship in a particular case.

22. Question is, whether Rule providing for age for recruitment to the post of "Collection Amin" on substantive vacancy, is a Rule relating to "conditions of service" or "Rule of Recruitment", for the reason that Rule 31 confers power upon Government to relax Rules pertaining to "conditions of service" and not pertaining to "Recruitment".

23. Distinction between terms "Recruitment" and "conditions of service" has been well recognized time and again. Under Article 309 of Constitution of India legislature may make provisions for "Recruitment" and "conditions of service" of persons holding civil post. So long as legislative provisions are not made by Principal Legislature, under proviso to Article 309, power has been conferred upon President of India in respect to Central Government employees and upon Governor in respect to State Government employees, to make Rules governing "recruitment" and "conditions of service". Therefore, power of framing rules is in respect of "Recruitment" and "conditions of service". These two terms are different having different connotation. Recruitment rules are such which are applicable up to the stage of appointment. Once a person is appointed, rules which govern holder of civil post are relating to "continues in service". This distinction has been pointed out by Courts time and again.

24. In State of Madhya Pradesh Vs. Shardul Singh 1970 (1) SCC 108, Court explained the expression "conditions of service" as under:

"The expression "conditions of service" is an expression of wide import. It means all those conditions which regulate the holding of a post by a person right from the time of his appointment till his retirement and even beyond it in matters like pension etc."

(emphasis added)

25. In I.N. Subba Reddi Vs. Andhra University 1977 (1) SCC 554, Court explained the term as under:

"The expression 'conditions of service' means all those conditions which regulate the holding of a post by a person right from the time of his appointment till his retirement and even beyond it, in matters like pension etc."

26. Same view was taken in para 6 of judgement in Mysore State Road Transport Corporation Vs. Mirja Khasim Ali Beg and another 1977 (2) SCC 457.

27. In Lily Kurian Vs. Sr. Lewina and others 1979 (2) SCC 124, in para 13 of judgement, Court referred to above decisions and observed that expression "conditions of service" includes everything from the stage of appointment to the stage of termination of service and even beyond including matters pertaining to disciplinary action.

28. In Syed Khalid Rizvi Vs. Union of India (1993) 3 SCC 575, Court held where a rule permits relaxation of provisions pertaining to "conditions of service", the same would be applicable to the condition after appointment to the service in accordance with rules. It also held that that "recruitment" and "conditions of service" are distinct terms and latter is preceded by an appointment according to rules, the former cannot be relaxed.

29. A Division Bench of this Court in Dr. Rajeev Ranjan Mishra and others Vs. State of U.P. and others 2008 (1) AWC 810, referring to some of above authorities, has said:

"The distinction between rule of "recruitment" and "condition of service" is no more res integra having already been settled by the Apex Court in a catena of cases. In State of M.P. Vs. Shardul Singh 1970(1) SCC 108 the Apex Court held that the term "conditions of service" means all those conditions which regulate the holding of a post by a person right from the time of his appointment till retirement and even pension etc. It was reiterated in I.N. Subbareddy Vs. State of A.P. 1997(1) SCC 554. In Syed Khalid Rizvi Vs. Union of India 1993 Supp (3) SCC 575 the Apex Court held where a rule permits relaxation of provisions pertaining to "conditions of service", the same would be applicable to the condition after appointment to the service in accordance with rules. It also held that that "conditions of recruitment" and "conditions of service" are distinct and the latter is preceded by an appointment according to rules, the former cannot be relaxed."

"Part 3, 4 and 5 contain rules of recruitment which includes rules pertaining to reservation, eligibility and other qualifications with respect to nationality, educational qualifications, age, character, marital status, physical fitness etc. and procedure for recruitment. The rules pertaining to 'recruitment' cannot be relaxed by exercising power under Rule 26 since such rules are not relaxable."

30. The above decision has been followed in Devendra Nayak and another Vs. State of U.P. and others, Writ Petition No. 55988 of 2009, decided on 24.02.2011.

31. There is a Full Bench judgement of Gujarat High Court also, dealing with this issue in A.J. Patel and others Vs. The State of Gujarat and others, AIR 1965 Guj 23. The judgment was rendered by Hon'ble K.T. Desai, C.J. and in para 27, with reference to the terms "recruitment" and "conditions of service" mentioned in Article 309 of Constitution, His Lordship said:

"From this Article it is evident that rules relating to the recruitment of persons to public services and posts are distinct from rules relating to the conditions of service. The conditions of service are conditions applicable to persons who have been appointed to public services and posts. The terms and condition relating to recruitment and relating to appointment to public services and posts must, therefore, be regarded as distinct and different from the conditions of service governing persons on their appointment to public services and posts."

(emphasis added)

32. In the present case since power has been conferred upon Government only to relax rules relating to "conditions of service", we have no manner of doubt that in the absence of any power, Rules pertaining to age cannot be relaxed.

33. Learned counsel for petitioner-respondents drew our attention to Supreme Court judgement in Ashok Kumar Uppal Vs. State of Jammu and Kashmir, 1998 (4) SCC 179 but we find that Rule 14 of relevant Rules, which is quoted in para 20 of judgement clearly shows that power of relaxation, conferred upon Government was not confined to any particular kind of Rule but it was applicable to all rules. It is in these circumstance, Court held that Government could have exercised power of relaxation of Rules in all cases, if hardship is caused in implementation of Rules. But it is not stated in the said judgement that even if there is no such wide power of relaxation, still rigour of rule can be relaxed.

34. Learned counsel for petitioner-respondent has lastly contended that order has been passed by learned Single Judge with consent of parties, therefore this intra Court appeal does not lie.

35. However, we do not find any such mention in the judgement in question that order has been passed with consent of parties. Court has simply observed that no useful purpose would be served by keeping this writ petition pending and, therefore, disposed of same and had specifically mentioned that claim of petitioner-respondent has not been examined on merit.

36. In our view, when Rules applicable to concerned service do not empower Government to relax rules regarding "Recruitment", any direction to Government to pass a speaking order on representation of employee seeking relaxation of Rules pertaining to "recruitment" would not be justified for the reason that unless a representation is provided under Statute or authorities are competent to take a decision eitherway, there is no reason to unnecessarily burden the authority concerned to consider matter and pass order when it has no power under Statute to do something which is being requested by employee concerned. In fact, such directions sometimes are misconstrued and misused. Authorities construe orders of this Court as a direction conferring jurisdiction upon them to exercise their power eitherway and clothe upon themselves with such authority or power which is otherwise not vested by Statute. At least, this Court should not become a party to such an action and no futile direction should be given by this Court, when Rules specifically do not empower State Government to relax rules pertaining to "Recruitment".

37. In our view, no direction would be justified to Government to consider request of an employee to relax rules pertaining to "Recruitment" and pass an order. Therefore, impugned judgement of learned Single Judge cannot be sustained.

38. In the result, appeal is allowed. Judgement dated 22.03.2017 passed by learned Single Judge in writ petition No. 11895 of 2017 is hereby set aside.

Order Date :- 20.07.2018

S. Thakur