Ashok Kumar Singh vs State Of U.P. And 2 Others
2022 Latest Caselaw 4384 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 34
 

 
Case :- WRIT - A No. - 8244 of 2022
 

 
Petitioner :- Ashok Kumar Singh
 
Respondent :- State Of U.P. And 2 Others
 
Counsel for Petitioner :- Dharmendra Kumar Dwivedi
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Rajeev Misra,J.

Heard Mr. Dharmendra Kumar Dwivedi, learned counsel for petitioner and learned Standing Counsel representing respondents-1 to 3.

Petitioner has approached this Court for a writ of mandamus commanding respondent-2, Collector Jaunpur, District Jaunpur to regularize the services of petitioner from 03.07.2006 in terms of the order dated 14.09.2017 passed by this Court in Writ-A No.12804 of 2015 (Vijai Narain Tiwari vs. State of U.P. and 3 Others). The order passed in aforementioned writ petition reads as under:-

"1. This petition is directed against an order passed by the District Magistrate, Jaunpur, dated 6th December, 2014, whereby petitioner has been granted notional seniority w.e.f. 3.7.2006, but petitioner's claim for benefit of service from the date his juniors were regularized i.e. 3.7.2006 has been rejected.

2. The order of District Magistrate has been passed in compliance of the directions issued by this Court in Writ Petition No.28634 of 2013, which was disposed of vide following orders on 10.10.2014:-

"Heard Sri Dan Bahadur Yadav, learned counsel for the petitioner and Monika Sahai, learned brief holder of learned standing counsel for the respondents-State.

The petitioner herein is a Seasonal Collection Amin since the year 1985. The contention is that the persons junior to him were considered and their services were regularised under Rule-5 of the Services of U.P. Collection Amin Rules, 1974 way back in the year 2006, but, his claim was rejected vide order dated 07.07.2006 on the ground that his recovery was less than 70%. Being aggrieved the petitioner challenged the said order before this court by means of Writ-A No.69383 of 2006, which was allowed on 21.02.2013 and the order dated 07.07.2006 was quashed with the observation that if the recovery chart belonging to the petitioner did not indicate the recovery made by him in respect of one out of four relevant Faslis, then it was the fault of the respondents-officials and not of the petitioner, for which he could not be made to suffer. Accordingly, the matter was remanded back for consideration afresh. Pursuant to the aforesaid, the case of the petitioner was reconsidered and it was found that he fulfilled the eligibility condition of 70% or more recovery in the last four Faslis and was found fit for regularisation as per the Rules of 1974, however as by that time, he had become over-age having crossed the maximum age limit of 45 years prescribed under Rule 5 of the Rules, 1974, therefore, his matter was referred to the State Government for relaxation under Rules by means of the impugned order dated 18.04.2013.

It is this order, which has been challenged in this writ petition on the ground that the right of the petitioner for consideration had crystallized on the date, when the person junior to him had been considered and their services were regularised, while his case was arbitrarily rejected vide order dated 07.07.2006, therefore, the question of the petitioner becoming over-age does not arise and the respondents have erred in referring the matter to the State Government for relaxation. The petitioner claims entitlement to be considered for regularisation on the basis of his right as accrued in the year 2006, when he was well within the maximum age limit of 45 years, i.e. he was only 43 years of age.

The learned brief holder for the State submits that the matter pertaining to the petitioner has not been rejected rather he has been found fit for regularisation subject to relaxation to be granted, if at all, by the State Government and accordingly, the matter has been referred to the State Government for such relaxation regarding age as per Rules, therefore, no cause of action has arisen to the petitioner to approach this court. She also states that the State Government may be directed to take an appropriate decision in the matter pending before it.

Having heard the learned counsel for the parties and perused the records, I find merit in the submission of Sri Dan Bahadur Yadav to the effect that the right of the petitioner for consideration for regularisation of his services crystallized in the year 2006, when juniors to him were regularised, while his case was illegally rejected. The order of rejection dated 07.07.2006 was held to be illegal by this court in the earlier writ petition filed by the petitioner, which was decided on 21.02.2013 and the respondents were directed to reconsider the case, therefore, reconsideration had to be made considering the eligibility of the petitioner as in the year 2006. As undisputably, the petitioner has been found fit for regularisation, therefore, the reference of the matter to the State Government by the concerned respondent for relaxation regarding age, in my view, is misconceived. In the year 2006, the petitioner was less than 45 years of age, therefore, now his case cannot be referred for reconsideration to the State Government for relaxation regarding age and as there is no other ground mentioned in the impugned order, therefore, the writ petition is liable to be allowed. The impugned order in so far as it refers the matter to the State Government regarding age relaxation is quashed. However, as the respondents have found him fit for regularisation of his services, it is accordingly ordered that the concerned respondents shall issue requisite orders regularising his services from the date, the services of persons junior to him were regularised.

The writ petition is accordingly allowed in the aforesaid terms."

3. This Court took note of the fact that right of petitioner to be considered for regularization was crystallized in the year 2006 itself, and that his juniors were also regularized in the year 2006 itself. The rejection of petitioner's claim vide order dated 7.7.2006 was held to be illegal, and a direction was issued to consider petitioner's claim afresh.

4. It may be noticed that petitioner's claim for regularization on 7.7.2006 was rejected only on the ground that he had failed to secure recovery of more than 70% in four fasals in terms of the chart prepared by the respondents. The recovery made by petitioner in one of the fasals of Rs.87,346/-, however, was not included and only for such mistake of the respondents, he was not regularized in the year 2006. In the earlier writ petition filed by petitioner being No.69383 of 2006, this Court noticed this aspect and consequently quashed the order dated 7th July, 2006 and passed following orders on 21st February, 2013:-

"Heard the learned counsel for the petitioner and the learned Standing Counsel.

The petitioner's claim for regularization of his services as Seasonal Collection Amin was rejected by the impugned order dated 7th July, 2006. The ground taken for rejection is that the percentage of the recovery for one particular fasal was not indicated in the chart prepared by the respondents in the seniority list and, therefore, it is presumed that the recovery was less than 70%.

The Court finds from a perusal of the seniority list that recovery for three fasals was over 70% and for the fourth fasal the recovery made is Rs.87,346/-, which is the highest in comparison to the other three fasals. The fact that the quantum of a recovery was not indicated in the chart with regard to the fourth fasal, against which the petitioner made a recovery of Rs.87.346/- is the fault of the respondent and no fault can be levied upon the petitioner.

Consequently, an irresistible presumption can be drawn that the recovery made by the petitioner was more than 70% and not less than 70% as indicated.

In the light of the aforesaid, the impugned order cannot be sustained and is quashed.

The writ petition is allowed. The matter is remitted back to the authority concerned to reconsider the matter afresh and pass a fresh order in accordance with law within six weeks from the date of production of a certified copy of this order."

5. The facts as have been noticed by this Court in two previous judgments are not in issue. It is admitted that petitioner was entitled to be regularized w.e.f. 3.7.2006, but only because of non-supply of the relevant data that he was held ineligible for regularization. It was in this context that this Court issued a direction to consider the claim of petitioner for regularization from the date his juniors were promoted i.e. on 3.7.2006. The respondents cannot take advantage of their own wrong and just because the details were not placed before the authority concerned, the petitioner cannot be denied benefit of regularization w.e.f. 3.7.2006 when persons junior to petitioner were regularized. In such circumstances, the order passed by the District Magistrate, Jaunpur, in so far as it declines relief of regularization to petitioner services from 3.7.2006, cannot be sustained and is set aside.

6. The petitioner is held entitled to benefit of regularization from 3.7.2006 and all benefits of continuity of service thereafter. However, for the period between 2006 to 2014, petitioner shall not be entitled to any further monetary benefit over and above what has already been paid to him. Appropriate fresh orders in that regard would be passed, within a period of six weeks from the production of certified copy of this order.

7. Writ petition, accordingly, is disposed of.

Order Date :- 14.9.2017 "

At the very outset, learned Standing Counsel submits that no useful purpose shall be served by keeping this writ petition pending.

Grievance of the petitioner is to be considered by respondent-2, Collector Jaunpur, District Jaunpur at the first instance. Therefore, interest of justice shall be served in case a direction is issued to respondent-2, Collector Jaunpur, District Jaunpur to consider the claim of petitioner in accordance with law by passing a reasoned and speaking order.

Having heard learned counsel for petitioner, learned Standing Counsel representing respondents-1 to 3 and upon perusal of record, this Court finds that no useful purpose shall be served by keeping this writ petition pending. Interest of justice shall be served in case a direction is issued to respondent-2, Collector Jaunpur, District Jaunpur to consider the claim of petitioner in a time bound manner.

Accordingly, this writ petition is disposed of finally with a direction to respondent-2, Collector Jaunpur, District Jaunpur to consider the claim of regularization of petitioner in accordance with law by passing a reasoned and speaking order within a period of six weeks from the date of presentation of a certified copy of this order.

Order Date :- 27.5.2022

Saif