Guru Narayan vs State Of U.P. Thru Its ...
2021 Latest Caselaw 9701 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Court No. - 18
 
Case :- SERVICE SINGLE No. - 3627 of 2014
 
Petitioner :- Guru Narayan
 
Respondent :- State Of U.P. Thru Its Prin.Secy.Deptt.Of Revenue & Others
 
Counsel for Petitioner :- L.P. Singh
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Abdul Moin,J.

1. Heard learned counsel for the petitioner and learned Additional Chief Standing counsel appearing for the State-respondents.

2. The instant writ petition has been filed seeking following reliefs:-

(i) Issue a writ, order or direction in the nature of CERTIORARI thereby quash the impugned order dated 22.02.2014 passed by the opposite party no. 3 as contained in Annexure No. 1 to this writ petition.

(ii) Issue a writ, order or direction in the nature of MANDAMUS commanding the opposite parties to take necessary action for regularizing the services of the petitioner on the post of Collection Peon.

(iii) Issue a writ, order or direction in the nature of MANDAMUS commanding the opposite parties to pay the arrears of salary to the petitioner for the post of Collection Peon from 01.12.2012 till the date and thereafter pay him salary regularly month to month.

(iv) issue any writ order or direction which this Hon'ble Court may deem fit and proper under the circumstances of the case.

(v) allow the writ petition with cost in favour of the petitioner.

3. At the very outset, learned counsel for the petitioner contends that the petitioner has been regularized as Collection Peon vide order dated 27.02.2019 and considering the same, he is not pressing the reliefs no. 1 and 2, so far as it pertains to his claim for regularization but raises a challenge to the impugned order dated 22.02.2014 so far as it deprives the petitioner of salary for the period from 01.10.2012 to 27.12.2016.

4. Learned counsel for the petitioner contends that petitioner had earlier filed a Writ Petition No. 823 (SS) of 2001 Inre; Guru Narain Vs. State of U.P and ors in which initially an interim order dated 12.02.2001 was passed whereby the writ Court had directed the respondents to engage the petitioner as a Seasonal Collection Peon. When no compliance of the said interim order was made, the petitioner was constrained to file Contempt Petition No. 1499 of 2001 Inre; Guru Narain Vs. Sri Ram Yadav and 2 Ors and the contempt Court vide order dated 10.04.2012, a copy of which is annexure 8 to the writ petition, considering the interim order of this Court and its non compliance, directed the Sub Divisional Magistrate, Safipur, Unnao to allow the petitioner to work as Seasonal Collection Peon or regular peon by virtue of interim order dated 12.02.2001. In pursuance thereof, the Tehsildar, Safipur, Unnao issued an order dated 21.04.2012, a copy of which is annexure 10 to the writ petition considering the direction issued by the contempt Court and attaching the petitioner with Sri Laxman Prasad, Collection Amin for the purpose of making recovery until further orders.

5. Subsequent thereto, the writ petition of the year 2001 was disposed of vide judgment and order dated 29.01.2014 requiring the respondents to consider the case of the petitioner for regularization on the post of Collection Peon and also directing the respondents to release the arrears of salary of the petitioner within next two months as the petitioner claimed that due to institution of contempt petition, the respondents have stopped the payment of salary though he was engaged to work as Seasonal Peon.

6. In pursuance thereof, the respondents have passed the impugned order dated 22.02.2014, a copy of which is annexure 1 to the writ petition whereby, so far as the payment of salary is concerned, it was contended that the petitioner is not in service since 01.10.2012 and consequently no payment can be made to him. Being aggrieved, the present petition has been filed.

7. As already indicated above, the petitioner has been regularized as Collection Peon on 27.02.2019 and thus the present petition is only restricted for payment of salary for the period from 01.10.2012 till 27.12.2016 inasmuch as learned counsel for the petitioner contends that through an order dated 28.12.2016, a copy of which has been filed as annexure 1 to the application for disposal of the writ petition dated 18.05.2017, the petitioner was permitted to work vide order dated 28.12.2016 and subsequently regularized.

8. Learned counsel for the petitioner contends that the respondents in the impugned order have indicated that the petitioner has not worked since 01.10.2012 and thus would not be entitled for salary which runs contrary to records inasmuch as once the order of Tehsildar dated 21.04.2012 was issued in compliance of the direction issued by the contempt Court dated 10.04.2012 and the said order stated that the petitioner was being appointed until further orders, consequently there was no occasion for the respondents to not now pay salary by contending the petitioner is not working since 01.10.2012. Learned counsel for the petitioner further contends that the documents are available on record including the recovery citation dated 10.11.2012, a copy of which has been filed as annexure 14 to the writ petition and other documents to indicate that the petitioner continued to discharge the work upon his attachment with the collection amin in terms of the order dated 21.04.2012 and even if the petitioner was not assigned work yet the order dated 21.04.2012 specifically indicated that the petitioner is being appointed until further orders, as such there was no occasion for the respondents to deprive the petitioner of salary starting from 01.10.2012. In this regard, learned counsel for the petitioner has also invited the attention of this Court towards the documents as have been annexed along with the application for disposal of the writ petition dated 18.05.2017, copies of which have been filed as annexures 2 and 3 which pertains to recovery summons and the recovery citations issued/counter signed by the petitioner.

9. Thus, learned counsel for the petitioner contends that the petitioner is fully entitled for payment of salary for the aforesaid period.

10. On the other hand, learned Additional Chief Standing counsel on the basis of averments contained in the counter affidavit argues that the order dated 21.04.2012 was only a work allocation order which would not give any right to the petitioner to continue even after the end of the season and, as such, once the season ended on 30.09.2012, the petitioner would not be entitled for any payment of salary w.e.f 01.10.2012 unless a specific order was issued continuing the petitioner for other seasons also. In this regard, learned Additional Chief Standing counsel has invited the attention of this Court towards the specific averments made in paragraph 12 and 13 of the counter affidavit filed on behalf of 1 to 4 dated 17.10.2016 to contend that the petitioner was a Seasonal Collection Peon and was engaged timely for Seasonal Collection every year from the year 1987 and the timely Seasonal Collection is being made from 16 November to 31st March and from 16 April to 31st September in every financial year and no collection is made from 1st April to 15th April and from 1st October to 15 November due to closure of accounts.

11. Learned Additional Chief Standing counsel also argues on the basis of averment contained in paragraphs 11 and 12 of the personal affidavit filed by Sri Brijesh Kumar Singh, Sub Divisional Magistrate, Safipur, Unnao dated 16th November, 2016 to contend that appointing authority of the Collection Peon is Sub Divisional Magistrate and not the Tehsildar and, therefore, the then Tehsildar had passed the order dated 21.04.2012 only for taking work as Seasonal Collection Peon and that the petitioner only worked till the end of season in question i.e 30.09.2012 and did not work subsequently and thus is not entitled for salary for the subsequent years. He thus contends that there is no infirmity and illegality in the impugned order dated 22.02.2014 whereby the petitioner has not been found entitled for payment of any salary for the period from 01.10.2012 till 27.12.2016 i.e till the passing of the subsequent order dated 28.12.2016.

12. As regards the documents annexed by the learned counsel for the petitioner with the application for disposal including the recovery citation, learned Additional Chief Standing counsel submits that there is no column for indicating the name of any particular person and, as such in case the petitioner has affixed his name in the said recovery citation, no such benefit can be claimed by the petitioner for the purpose of claiming his salary.

13. Heard learned counsel appearing for the contesting parties and perused the records.

14. From a perusal of records it is apparent that initially the petitioner had filed Writ Petition No. 823 (SS) of 2001 wherein an interim order had been passed by the writ Court directing the respondents to engage the petitioner as a Seasonal Collection Peon in accordance with the seniority list. Copy of the said order has been filed as annexure 5 to the writ petition. When the petitioner was not engaged, he was constrained to file Contempt Petition No. 1499 of 2001 and the contempt Court, after taking into consideration the interim order of the writ Court directed the Sub Divisional Magistrate, Safipur, Unnao to allow the petitioner to work as Seasonal Collection Peon or regular peon by virtue of interim order dated 12.02.2001. It was also clarified by the contempt Court that the petitioner will get the salary of Seasonal Collection Amin from the date on his joining on the said post. Admittedly, in pursuance thereof, the Tehsildar issued an order dated 21.04.2012 attaching the petitioner with one Sri Laxman Prasad Pandey, Collection Amin for the purpose of making recovery until further orders. The petitioner continued to work but it appears that w.e.f 01.10.2012 he was not paid any salary. The documents pertaining to working of the petitioner have been filed along with the application for disposal of the writ petition as already indicated above, which, as per the learned Additional chief Standing counsel should not bear the signature of the petitioner but as per the learned counsel for the petitioner, the same were duly signed /counter signed by the petitioner.

15. Be that as it may, the fact of the matter remains that the petitioner claims to have started worked in pursuance to the order dated 21.04.2012 by which the petitioner was attached to a Collection Amin until further orders and in terms of the order of the contempt Court, was to get salary of Seasonal Collection Amin from the date of his joining.

16. The plea being taken by the respondents that the order dated 21.04.2012 would only attach the petitioner with a regular Collection Amin till the end of the season i.e 30.09.2012 cannot be accepted particularly taking into consideration the interim order passed by the writ Court in Writ Petition No. 823 (SS) of 2001 which required the respondents to engage the petitioner as Collection Peon in accordance with seniority. It is not the case of the respondents that the petitioner was not eligible as per the seniority for his engagement as Seasonal Collection Peon rather the plea which has been taken during the course of arguments is that the order issued by the Tehsildar dated 21.04.2012 would only operate till the end of the season i.e only till 30.09.2012 and there was no engagement of the petitioner subsequent thereto.

17. As already indicated above, the said argument would run contrary to the interim order passed in the writ petition of the year 2001 dated 12.02.2001 as well as order issued by the contempt Court dated 10.04.2012 which had directed the Sub Divisional Magistrate to allow the petitioner to work as Seasonal Collection Peon and it was also clarified that the petitioner will get the salary of Seasonal Collection Amin from the date of his joining on the said post. It is not the case of the respondents that the petitioner did not submit his joining in pursuance to the order of Tehsildar dated 21.04.2012 rather the stand is that the order dated 21.04.2012 would only stand till the end of the season i.e only 30.09.2012 and a fresh order was required for the continuance of the petitioner after 30.09.2012.

18. The stand taken by the respondents is thus contrary and contradictory to the interim order of this Court dated 12.02.2001, the order of the contempt Court dated 10.04.2012. Further, even if the respondents chose to violate the interim order of the writ Court and the specific direction of the contempt Court, the same would not come to the rescue as they were under specific mandamus to allow the petitioner to work as a Seasonal Collection Peon and pay him salary.

20. Taking into consideration the aforesaid discussion, the writ petition is liable to be allowed and is allowed.

21. A writ of certiorari is issued quashing the order dated 22.02.2014, a copy of which is annexure 1 to the writ petition so far as it deprives the petitioner of the salary for the period from 01.10.2012. A writ of mandamus is issued directing the respondents to consider the case of the petitioner for grant of salary for the period from 01.10.2012 till 27.12.2016 considering the observations made above.

22. Let such a consideration be done within a period of three months from the date of receipt of a certified copy of this Court.

Order Date :- 6.8.2021

Pachhere/-

(Abdul Moin, J.)