Harish Chandra vs State Of U.P. Thru. Prin. Secy. ...
2018 Latest Caselaw 818 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?AFR 
 
Court No. - 23
 

 
Case :- SERVICE SINGLE No. - 13223 of 2018
 

 
Petitioner :- Harish Chandra
 
Respondent :- State Of U.P. Thru. Prin. Secy. Revenue And Ors.
 
Counsel for Petitioner :- Santosh Kr. Yadav "Warsi"
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Irshad Ali,J.

Heard learned counsel for the petitioner Sri S.K. Yadav and learned Standing counsel appearing on behalf of the respondents.

By means of the present writ petition, the present writ petition has been filed on the following prayer :-

(i) issue a writ, order or direction in the nature of certiorari to quash the impugned order dated 28.3.2018 (Annexure No. 1) passed by the opposite party no. 3.

(ia) issue a writ, order or direction in the nature of certiorari quashing thereby the Government Order No. 616/1/17-2017-Ra-7 dated 31.10.2017 (if any) of the summoning form its custodian to the extent it relates to the petitioner who is not more than 45 years of age.

(ib) issue a writ, order or direction in the nature of mandamus thereby directing & commanding the respondents to modify its minutes of meeting dated 26.12.2016 to the extent that petitioner name may be included in the list of 26 incumbents whose age are up to 45 years.

(ii) issue a writ, order or direction in the nature of mandamus thereby commanding and directing the respondents to proceed to reconsidered the case of petitioner, insofar as his age criteria is concerned, and to issue appointment order and his posting order at pare with 36 similarly circumstanced incumbents, treating him up to 45 years of age and ignoring the requirement of age relaxation by the state government as he covered by Rule 5 of U.P. Collection Peons Service (Second amendment) Rules, 2016 with effect from the date when other similarly situated incumbents have been given appointment pursuant to recommendation made by the selection committee on 16.12.2016.

(iii) issue a writ, order or direction in favour of the petitioner which this Hon'ble High Court may deem fit just and proper under the circumstances of this Court in favour of the petitioner.

(iv) Allow the instant writ petition with appropriate costs in the interests of justice.

Brief facts of the case is that the petitioner was appointed as Seasonal Collection Peon on 1.1.1997 in Tehsil Ram Sanehi, District Barabanki. The petitioner in accordance with U.P. Collection Peon's Service Rule 2004 as amended by Second Amendment Rule 2016 which is known as U.P. Collection Peon's Service (Second Amendment) Rules, 2016 claimed regularization on the post of Collection Peon in the respondents department. Under the aforesaid rules, it has been provided that those Seasonal Collection Peons, who have completed 45 years of service and fulfills other eligible criteria required under the aforesaid rules shall be considered for the grant of regularization in service.

The claim of the petitioner was placed before the Selection Committee for consideration of his claim for grant of regularization on the post of Collection Peon in the department. The respondent no. 1 Chairman of the Selection Committee has rejected the claim of the petitioner vide order dated 28.3.2018 on the ground that the petitioner has crossed the age of 45 years and his claim is not comes within the ambit of consideration, therefore, his claim has been rejected.

Prior to filing of the present writ petition, the petitioner along with similarly situated candidates filed Writ Petition No. 447 (SS) of 2018 before this Court which has been finally disposed of by this Court vide order dated 10.1.2018 with the direction to the petitioner to make a fresh representation to the respondent no. 3 Collector District Barabanki along with certified copy of this order within a period of three weeks with further direction to consider and pass appropriate order in accordance with law within a period of three months from the date a certified copy of this order placed before him. In pursuance of the order of this Court, the impugned order has been passed.

Assailing the order impugned, learned counsel for the petitioner submitted that under Rule 5 U.P. Collection Peon Service Rule 2004 as amended in the year, 2016, it has been provided that the candidates, who have completed 45 years of age on the date of recruitment i.e. 1.1.2016 shall be considered for consideration of regularization on the post of peon. The date of birth of the petitioner is 1.7.1971, therefore, he was eligible and qualified on 1.7.2016 being attaining the age of 45 years for consideration but the Collector on the assumption that on 1.7.2016, the petitioner was aged about 45 years and 1 day has refused his claim from the zone of consideration for regularization on the post of Collection Peon, therefore, his submission is assumption drawn by the District Collector based on wholly erroneous and misconceived ground. The age of the petitioner on 1.7.2016 was 45 years, therefore, the order of rejection being based on erroneous assumption is not sustainable in law and is liable to be dismissed.

On the other hand learned counsel for the State appearing on behalf of the respondents submitted that no illegality has been committed by the respondent no. 3 in rejecting the claim of the petitioner for regularization on the post of Collection Peon. The impugned order is just and valid order and does not suffer from any infirmity or illegality.

For deciding the controversy amended Rule 5 of the U.P. Collection Peon Services (Second Amendment) Rules, 2016 is extracted herein below :-

"Rule as hereby submitted.

5. Recruitment to the posts in the service shall be made from the following source.

(i) Fifty percent posts by direct recruitment through the Selection Committee.

(ii) Fifty percent posts shall be filed through the Selection Committee from amongst such Seasonal Collection Peons who have worked satisfactorily for at least four Fasals and whose age on the first day of July of the year in which selection is made does not exceed 45 years:

Provided that if suitable candidates are not available the remaining vacancies shall be filled by direct recruitment under clause (i); Provided further that all the existing vacancies available on the date of the commencement of the Uttar Pradesh Collection Peon's Service (Second Amendment) Rules, 2016 shall, only as one time measure, be filled by selection through the Selection Committee from amongst Seasonal Collection Peons, who possess the requisite qualifications prescribed in clause (ii).

Explanation- Satisfactory work shall mean complying with the orders of the Collection Amin regarding the work of recovery of government dues, and accompanying the Collection Amin when he is traveling with government revenue or staying in his area (Halka). It shall also mean extending full co-operation in discharge of different types of service measures and performing the responsibilities entrusted to him in respect of the recovery of dues under the orders of Tehsildar and other higher officer including good conduct throughout.

On perusal of the Rule 5, it is evident that the candidates, who have attained he age of 45 years along with other required criteria shall be considered for the grant of regularization on the post of Collection Peon.

The date of birth of the petitioner is 1.7.1971 and has completed age of 45 years on 1.7.2016 for calculation to prove the fact that the petitioner has completed his age 45 years on 1.7.2016. The calculation is produced herein below :

1.7.2016

- 1.7.1971

------------------------------------

0(days).0(Month). 0045(years)

-----------------------------------

30.6.2016

- 1.7.1971

---------------------------

29(days).11(Months).0045(years)

----------------------------

In fact the age of the petitioner is calculated on 30.6.2016 his age will be 44 years 11 months and 29 days, therefore, the calculation of the age of the petitioner on 1.7.2016 and treating him to be 45 years 1 day is not the correct calculation and on that score the claim of the petitioner for the grant of regularization has been dislodged by the respondent no. 3 which is erroneous and is not sustainable in law.

In view of the above, the impugned order dated 28.3.2018 as well as consequential orders dated 31.10.2017 as well as 26.12.2016 are hereby quashed.

The writ petitioner succeeds and is allowed.

The respondent no. 3 is directed to reconsider the claim of the petitioner for the grant of regularization on the post of Collection Peon in accordance with the provision of U.P. Collection Peon's Service (Second Amendment) Rules, 2016 within a period of one month from the date of production of certified copy of this order.

Order Date :- 23.5.2018

Manoj