Ajab Singh And Another vs State Of U.P. And 3 Ors
2018 Latest Caselaw 3757 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


 
AFR
 
Court No. - 5
 

 
Case :- SPECIAL APPEAL DEFECTIVE No. - 604 of 2018
 

 
Appellant :- Ajab Singh And Another
 
Respondent :- State Of U.P. And 3 Ors
 
Counsel for Appellant :- Jagannath Singh
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Pradeep Kumar Singh Baghel,J.

Hon'ble Salil Kumar Rai,J.

(Delivered by Hon'ble Pradeep Kumar Singh Baghel,J.)

This special appeal emanets from a judgment of the learned Single Judge dismissing the writ petition of the appellants/petitioners. The learned Single Judge has found that the appellants' dismissal order did not need any interference. The basic facts pertinent to the issue in question may be stated as follows:

The appellant nos. 1 and 2 have worked as the seasonal collection peon (record lifter) in Tehsil Baraut, District Baghpat. They claim that they were initially engaged/appointed in the year 1981 and 1994 respectively as a seasonal collection peon and they have performed their duties upto 1419 Fasli i.e. September, 2012. Their work was stated to be satisfactory without any adverse remark. In the District Baghpat on 15.07.2009 one post of the Collection Peon was vacant. The appellants/petitioners made a representation dated 24.08.2009 before the Collector Baghpat seeking their appointment against 35% vacancies in terms of executive orders/circular issued by the Board of Revenue for their regular appointment.

When no action was taken by the Collector, the appellants/petitioners approached the Commissioner Meerut Region, Meerut and requested for their regular appointment. On their representation the Commissioner issued a communication to the Collector Baghpat to consider the prayer of the appellants/petitioners and other similarly situated employees for their regular appointment.

It is stated that in compliance thereof, the office of the Collector issued a tentative seniority list on 15.07.2009. In the said seniority list, the name of the appellant no.1 is shown at serial no. 1 with 5,031 days and appellant no. 2 is placed at serial no. 12 with 3051 working days.

In spite of the facts that both of the appellants have sufficient days of working and are eligible for the absorption /regular appointment no order was issued by the competent authority. The inaction on the part of the respondents compelled the appellants/petitioners to prefer a Civil Misc. Writ Petition No. 47538 of 2012, Ajab Singh vs. State of U.P. before this Court. The said writ petition was disposed of on 19.09.2012 by issuing a direction to the Collector Baghpat to finalize the seniority list of the seasonal collection peons and amins and regularise the eligible candidates against 31 vacant posts.

In compliance of the said direction of this Court, Selection Committee was constituted. However, by its recommendation dated 20.12.2012, it found that the testimonials of the appellants/petitioners were found to be forged. Therefore, a concerned Sub-divisional Officer was directed to take action against the appellants/petitioners and to put them in black list.

The appellants/petitioners aggrieved by the said observation of the Selection Committee made representation to the Collector wherein they have stated that they have not filed any educational certificate/ testimonials. Hence, there was no question of any forgery. It was also contended by them that the said order has been passed without furnishing any opportunity of hearing to them. It is stated that without considering their objection/ representation the Sub Divisional Officer, Baghpat issued a show-cause notice to them on 14.01.2013 in the light of the observations made by the Selection Committee in its minute dated 20.12.2012. The appellants/petitioners at this juncture preferred a Civil Misc. Writ Petition No. 10744 of 2013 before this Court. The writ petition was disposed of vide order dated 27.02.2013 by issuing a direction upon the Sub Divisional Officer to consider the representation of the petitioners keeping in view his reply submitted by the petitioners and pass appropriate order in accordance with law.

In compliance of order of this Court dated 27.02.2013, the petitioner no.1 has submitted a representation dated 12.03.2013. The Sub Divisional Officer vide order dated 08.04.2013 rejected the claim of the appellant/petitioner no.1 on the ground that on verification his school certificate was not found in the record of Sashtri Smarak Ucchtar Madhyamik Vidyalaya, Ahmadshahpur, Padra, Baghpat. The said information was sent by Head Master of the School. The Sub-Divisional Officer recorded in his order that petitioner lacks integrity and he has been rightly black listed on the recommendation of the Tehsildar, Baghpat. It is also recorded that he was given an opportunity on 21.01.2013, which he did not avail and on this ground alone his claim has been rejected. Similar order was passed on 08.04.2013 in respect of appellant/petitioner no. 2. In his case also his transfer certificate dated 09.07.1989 was got verified from Head Master of Aadarsh Inter College, Daula, Baghpat, who has replied that it was not on the record of the institution.

From the order of the Sub Divisional Officer itself it is evident that the show-cause notice issued to appellant/petitioner no. 2 was not served upon him and it was pasted on his house on 05.02.2013.

The orders dated 30.01.2013, 14.02.2013 and 08.04.2013 were challenged by the appellants/ petitioners in the present Writ-A No. 32573 of 2013. The learned Single Judge has dismissed the writ petition filed by the appellants/petitioners.

Learned counsel for the appellants submits that both the appellants have necessary eligibility for their absorption in terms of The Uttar Pradesh Collection Peon's Service Rules, 2004 (in short Rules, 2004) and they have completed 31 and 18 years service respectively. He has denied the fact that the appellants have submitted the forged document.

It is further stated by the learned Senior Advocate that the stand of both the appellants/petitioners was that they did not submit the alleged forged document and this fact has not been denied by the respondents. Lastly, he urged that the order has been passed without complying the principles of natural justice which is evident from the order itself. Learned Standing Counsel has supported the judgment of the learned Single Judge and submitted that both the appellants have been rightly denied the benefit of regular appointment as they have been found to be guilty of fabrication and both of them have been rightly black- listed.

We have heard learned counsel for the parties and perused the record.

The appellant/petitioner no.1 was initially engaged in the year 1981 and the appellant no. 2 was engaged in the year 1994 and they were allowed to continue upto 1419 Fasli(September 2012) and there was no adverse material against them regarding their work and conduct. This fact has not been disputed in the counter affidavit.

The State Government exercising its powers under proviso to Article 309 of the Constitution has made the Rules 2004. Part III of the Rules deals with the recruitment. Rule V provides source of recruitment. Under the Rules fifty percent of the vacancies being earmarked to be filled from amongst such Seasonal Collection Peons who have worked satisfactorily for at least four Fasals and their age on the first July of the year of selection does not exceed 45 years. The relevant part of Rule 5 reads as under:-

"5. Source of recruitment.--

Recruitment to the posts in the service shall be made from the following sources--

(I) Fifty per cent by direct recruitment through the Selection Committee.

(ii) Fifty per cent posts shall be filled through the Selection Committee from amongst such Seasonal Collection Peons who have worked satisfactorily for at least four Fasals and whose age o 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).

Explanation--Satisfactory work shall mean extending full co-operation in at least seventy per cent realisation as per prescribed standard fixed by the Government during the last four Fasals and good conduct throughout."

In the District Baghpat there were 31 vacancies of the seasonal collection peons. Upon a representation being made by appellants and some other similarly situated seasonal collection peons, the Commissioner had issued a direction to the Collector Baghpat to take necessary steps to fill up the vacancies in terms of the Rules, 2004.

It is the common ground that a seniority list of the seasonal collection peons was prepared by the respondents and the appellant no.1 is shown as a senior most amongst all the seasonal collection peons and he is placed at serial no. 1 of the seniority list, having more than 5,000 working days. The appellant no. 2 is at serial no. 9 and he has completed about 3,000 working days. The said list was prepared in terms of the Rule 15 of Rules 2004. Both the appellants were not found to be eligible only on the ground that the testimonials submitted by them, after verification, have been found to be fabricated. There is no other ground on which the Selection Committee constituted in terms of the Rules, 2004 has rejected the appellants/ petitioners. Both the appellants in their writ petition have made categorical statement in paragraph 31 that they have never produced any forged education certificate because there was no occasion to file their certificate when they were already working from last 31 years and 18 years respectively. The said statement of the fact has not been denied in the counter affidavit. Reply to paragraph 31 of the writ petition has been given in paragraph 20 of the counter affidavit but there was no reply to the said averments.

We have carefully perused the contents of the counter affidavit. We do not find any reply to the said averments. The said fact has been reiterated by the appellants/petitioners in their rejoinder affidavit that the respondents got annoyed with petitioners because they filed a writ petition and had also made their representations to the Commissioner. For the aforesaid reasons false allegations regarding forged and fictitious document have been made against them. It is stated that allegations have been cooked up by the authority with malafide intention in collusion with the office-bearers of the department. This statement is also uncontroverted.

We also find that in reply to the show-cause notice the appellant/petitioner no. 1 has clearly stated in para 8 of the reply that since the educational qualification is not mentioned in Rule 15 of the Rules, 2004, hence there was no occasion for the appellant/petitioner no. 1 to submit a forged document. He has stated that he has worked satisfactorily for the last 31 years and there was no adverse entry against him. In paragraph 10 of the objection he has stated that he has not submitted any document before the Tehsildar, Sub Divisional Officer or in the office of the District Magistrate as the criteria for the absorption was only satisfactory work.

In the impugned order, the respondents have not adverted to the stand taken by appellant/petitioner no. 1 in his explanation to the show-cause notice coupled with the fact that the similar averment made by the appellants/petitioners in the writ petition has not been denied in the counter affidavit. The order 8 Rule 4 or 5 of CPC provides that if the statement of the fact is not denied in the written statement, the same shall be treated to be admitted. Reference may be made to judgment of Supreme Court in (2007) 8 SCC 449, Prestige Lights Ltd. Vs. State Bank of India. It is true that the provisions of the C.P.C. are not applicable in the writ proceedings but the principles of the C.P.C. are applicable.

We also find that the orders have been passed in mechanical manner and without applying the principles of natural justice. In the case of appellant/petitioner no. 1 a show-cause notice was furnished. He has submitted the reply but it has not been averted in the impugned order. In the case of appellant/petitioner no. 2 he has stated that the impugned order was passed without any opportunity. The said fact has been feebly denied. From the impugned order dated 08.04.2013, it is evident that the show-cause notice was not served upon the appellant no. 2 and it was pasted on his house. The authority concerned without awaiting for reasonable time passed the order which has caused serious prejudice to the appellant/petitioner no. 2. In the impugned order as well as in the counter affidavit except the allegation of the fabrication of the document no other ground has been mentioned by the respondents for not proving the regular appointment to the appellants/petitioners. They have stated that they have worked for 31 and 18 years till 2012 when their services were dispensed with. In the counter affidavit or impugned order it is not recorded that their work was not found satisfactory in these long years.

Regard being had to the facts that the appellant no. 1 has worked 31 years and is the senior most persons amongst all the seasonal collection peons and in the list of seniority prepared in terms of Rule 15 of Rules, 2004 he is at serial no. 1 having 31 years service. The appellant/petitioner no. 2 is at serial no. 12, he has completed 18 long years and there is only allegation of forgery, they are entitled for the appointment in terms of Rule 5 of the Rules, 2004.

In view of the above, we find that the only ground on which the appellants/petitioners' claim has been rejected is untenable. We also find that a large number of similarly placed seasonal collection peons who have challenged in this Court and after filing of the contempt petition some of them had been regularised. Some of the orders of this Court in Writ-A No. 12136 of 2013 Ramesh Chand vs. State and others, Writ -A No. 32269 of 2013 Rohtash vs. State of U.P. and others. Order of this Court in Writ-A No.32269 of 2013 are on the record.

For the reasons mentioned above, we find that the order of the learned Single Judge is liable to be set aside and is accordingly set aside. The matter is remitted to the Collector Baghpat to pass a fresh order in terms of Rule 5 of Rules, 2004 ignoring the allegation of the forged document. In case they are found suitable in terms of Rule 5 of Rules, 2004 they shall be regularised from the date when their juniors have been regularised but they shall not be entitled for the salary from 2012 till the date of regularisation on the principle of no work no pay basis. But the said period shall be counted for the other purposes. The said exercise shall be completed by the Collector, Baghpat within two months from the date of communication of this order. Special Appeal is allowed.

Dated: 16.11.2018

MAA/Ram Murti

Case :- SPECIAL APPEAL DEFECTIVE No. - 604 of 2018

Appellant :- Ajab Singh And Another

Respondent :- State Of U.P. And 3 Ors

Counsel for Appellant :- Jagannath Singh

Counsel for Respondent :- C.S.C.

Hon'ble Pradeep Kumar Singh Baghel,J.

Hon'ble Salil Kumar Rai,J.

In Re:   Civil Misc. Delay Condonation Application No.1 of 2018.

It is reported that present appeal has been filed beyond time by 259 days.  

It is stated in paragraph 4 of the affidavit of this application that on account of financial hardship they could not be able to file present special appeal within stipulated period as they have no source of income except labour work and they hardly managed the expenses for filing the present special appeal.

Cause shown is sufficient.

Accordingly, delay condonation application is allowed.

Delay in filing the present appeal is condoned.

Order Date :- 16.11.2018

MAA/-