Hatim Ali vs State Of U.P. And 2 Others
2021 Latest Caselaw 3780 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 33
 

 
Case :- WRIT - A No. - 22147 of 2016
 

 
Petitioner :- Hatim Ali
 
Respondent :- State Of U.P. And 2 Others
 
Counsel for Petitioner :- Sanjeev Singh,Ashutosh,Zuber Ahmad Siddiqui
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Ashwani Kumar Mishra,J.

Petitioner is aggrieved by an order dated 15.03.2016 passed by the District Magistrate, Kushinagar insofar as petitioner has been granted regularization from the date of the order. It is contended that the orders dated 11.03.2013 and 15.03.2013 contained in Annexure No.5 to the writ petition be modified and the benefit of regularization be granted to petitioner at par with his junior Ravindra Pathak, who was placed at Serial No. 404 of the Seasonal Collection Amin and was regularized on 09.07.1993, whereas petitioner has been regularized on 15.03.2013.

Facts, as are relevant from the present controversy have been recorded in the order of the District Magistrate dated 15.03.2016 which is required to be noticed, at the outset. It transpires that petitioner was initially engaged as Seasonal Collection Amin in March, 1985 in the then district Deoria. His date of birth is 12.03.1956. He filed a Writ Petition No. 22530 of 1995 with the grievance that though he is working from prior in point of time but his claim for continuance has been overlooked while juniors have been regularized. An interim protection was granted on 10.11.1995 and the writ petition ultimately came to be disposed of on 17.09.2012 requiring the respondents to consider petitioner's claim for regularization. It is thereafter that the authorities have examined petitioner's claim for regularization and the service of petitioner came to be regularized vide order dated 15.03.2013. This order was then put to challenge in Writ Petition No. 44759 of 2015. The writ petition has been disposed of while following orders passed on 11.08.2015:-

"The petitioner claims that he was initially engaged as a Seasonal Collection Amin in March 1985. His date of birth is 12.03.1956 and he will retire on 31.3.2016.

In the year 1995, the petitioner preferred a writ petition no. 22530 of 1995 whreein an interim order was granted on 10.11.1995. It is stated that in compliance of the said interim order, the petitioner has continuously worked and later on his services were regularized vide order dated 15.3.2013. The said writ petition was thereafter disposed of on 17.9.2012.

Now the grievance of the petitioner is that he will be retiring on 31.3.2016 but he will not get the benefit of pension as he has not completed the requisite number of years if the period which he has rendered as Seasonal Collection Amin is not taken into consideration. In this regard, learned counsel for the petitioner has placed reliance upon a Division Bench judgment rendered in the case of State of U.P. Vs. Prem Chand and others Special Appeal Defective No. 264 of 2013 decided on 13.5.2013.

From the record, it transpires that the petitioner has made representation to the respondent no.2, which has not been considered as yet.

Having regards to the facts and circumstances of the case, the end of justice requires that the grievance of the petitioner be considered by the appropriate authority in accordance with law expeditiously.

It is expressly clarified that the Court has not expressed its opinion on merits of the case and the officer concerned shall take decision independently in accordance with law.

The writ petition is accordingly disposed of."

It is thereafter that the order impugned has been passed by the District Magistrate. The District Magistrate has recorded in his order that the petitioner was initially engaged in the year 1985 and worked up till 05.02.1988 and thereafter as seasonal employee from time to time. It is also stated that between 1985 to 2013 there was a break of 4254 days in the working of the petitioner and no material has been placed by the petitioner in respect of recovery during this period. Consequentially petitioner's representation has been rejected.

In the writ petition it is asserted that various persons junior to petitioner have been regularized prior to the petitioner. In para 10 it is asserted that petitioner was placed as Serial No.233 of the seniority list and while others were regularized on different dates. One Ravindra Pathak, who was at Serial no.404 of the Seasonal Collection Amin list was regularized on 09.07.1993 itself. Names of other persons namely, Santosh Yadav, who was at serial no. 252 and Chedi Prasad, who was at serial no.388 etc. have also been mentioned, who were regularized on different dates in the year 2000, whereas petitioner has been regularized only in the year 2013.

Counter affidavit has been filed in which it is recorded that petitioner's claim was considered earlier but as he was found ineligible his claim was not considered. Taking note of such fact this Court proceeded to pass following orders on 07.01.2021:-

''Although in the counter affidavit it is alleged that the petitioner was not regularized earlier, as he was not then eligible, but details in that regard are wholly lacking.

Before proceeding any further it would be appropriate to call upon the respondents to file a supplementary counter affidavit explaining their stand in paragraph 7 of the counter affidavit by placing on record relevant details in that regard.

List after three weeks."

Supplementary counter affidavit has been filed in which the averments made earlier have been reiterated. There is however, no averment with regard to any previous consideration of petitioner's claim for regularization by the respondents. It is merely stated that petitioner's claim has been considered in light of his representation dated 22.09.2012 submitted along with the order of this Court, passed in Writ Petition No. 22530 of 1995.

From the materials that have been placed on record this Court finds force in petitioner's contention that his claim for being regularized at par with his juniors have not been examined by the respondents so far. No details have been brought on record which may demonstrate that petitioner was considered earlier for regularization. Reliance is placed upon an order of this Court passed in Writ Petition No. 59870 of 2007, wherein similar petition has been allowed with a direction issued to the respondents to be consider claim of regularization from the date petitioner's junior got regularized.

Learned Standing Counsel during the course of hearing submits that District Kushinagar has been carved out only in the year 1994 and therefore, any regularization made prior to it would not be relevant as the then district was Deoria and the seniority was distinct.

The argument raised by learned Standing Counsel cannot be accepted inasmuch as mere change of district would not alter the standing of petitioner for the purpose of consideration of his claim for regularization. In the event petitioner is found to be working from 1985 in district Deoria his claim for regularization was required to be considered at par with those who were junior to him. Unless the authorities are able to demonstrate that petitioner was considered prior in point of time and was found ineligible, the respondents would not be justified in denying benefit of regularization from the date petitioner's junior have been regularized.

Writ petition, accordingly, succeeds and is allowed. Order passed by the District Magistrate dated 15.03.2016 stands quashed. The respondents are directed to consider petitioner's claim for regularization from the date of his juniors have been considered. The respondents will not overlook the claim of petitioner only because his junior was regularized while working in district Deoria and not in district Kushinagar. It will be open for the respondents to summon the record from the concerned office and to consider petitioner's claim for regularization from the date his juniors have been considered for regularization. A fresh order in that regard would be passed within a period of four months from the date of presentation of a copy of this order. All consequential actions including consideration of petitioner's claim for retiral benefits etc. would be processed in terms of the fresh order to be passed by the District Magistrate concerned.

Writ petition is, accordingly, disposed of.

Order Date :- 17.3.2021

Abhishek Singh