Ghanshyam Gupta vs State Of U.P. And 4 Others
2023 Latest Caselaw 8149 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 39
 

 
Case :- SPECIAL APPEAL No. - 141 of 2023
 

 
Appellant :- Ghanshyam Gupta
 
Respondent :- State Of U.P. And 4 Others
 
Counsel for Appellant :- Dharmendra Kumar Tripathi
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Mrs. Sunita Agarwal,J.

Hon'ble Vikas Budhwar,J.

Heard Sri Dharmendra Kumar Tripathi learned counsel for the appellant and learned Standing Counsel for the State-respondents.

The challenge is to the order of the learned Single Judge dated 1.2.2023 on the ground that though the writ petition was allowed but the exact nature of relief granted to the petitioner is not in the spirit of the decision of this Court in the case of Devki Nandan & 17 others vs. State of U.P. & 3 others (Writ-A No. 54923 of 2017) decided on 28th May, 2018, with respect to which the claim of the petitioner was required to be evaluated by the respondents in light of the decision of this Court in Writ-A No. 24781 of 2018 (Ram Pyare and 11 others vs. State of U.P. and 2 others).

The submission is that the appellant herein was already a selected candidate in an exercise for evaluation of claims of all applicants for regularization to the post of Seasonal Collection Amin. In the list prepared in the selection process conducted pursuant to the U.P. Collection Amin's Service (7th Amendment) Rules, 2015, completed in the year 2016 and the name of the petitioner finds place at serial no. '19' in the seniority list of the selected candidates for regularization, which is appended at page '33' of the paper book. It is further demonstrated by the counsel for the appellant that the name of the petitioner was recommended to the State Government for relaxation of age vide communication dated 25th November, 2016 by the District Magistrate, Siddharth Nagar and in the said list, the name of the petitioner finds place at serial no. '12', at page '80' of the paper book.

The issue pertaining to relaxation of age has attained finality with the decision of this Court in the case of Devki Nandan (supra), wherein the following directions were issued:-

"Resultantly, all the writ petitions are being disposed of by directing the competent authority under Rule 3 of Rules' 1992 to consider:-

1. Whether there should be relaxation in the matter of maximum age, in the context of Rules' 1992, for such candidates who fall within the zone of consideration on account of increase in quota to 85% (for Seasonal Collection Amin) and 100% (for Seasonal Collection Peon), by amendment of the relevant rules, as a one time measure; but have been excluded on account of being overage though they fulfill all other eligibility requirements of the Rules, for regular appointment.

2. Similarly, a simultaneous decision shall also be taken, in the context of Rules' 1992, with regard to petitioners and other similarly situated employees, whose candidature for regular appointment has been considered under the existing quota of 35% and 50% under the second proviso, but they have been denied regular appointment on being overage and their claims have been rejected by the State-respondents on the ground that there is no provision for grant of age relaxation under the recruitment rules.

3. For the purpose, the State-respondent would be requiring to place all relevant material before the Governor so that all attending circumstances are brought to his notice so as to form an opinion as to whether relaxation is to be granted or not; and the manner in which the said power is to be exercised.

The aforesaid exercise shall be completed expeditiously, preferably, within a period of two months from the date of presentation of this order before the competent authority.

Till such a decision is taken and appropriate guidelines are issued by the State-respondent in conformity with the decision of the Governor, the District authorities are restrained from making selection within the quota for regular appointment as provided under the second proviso as also under the fourth proviso of both the relevant recruitment rules, to the regular post of Collection Amins and Collection Peons.

With the above observations and directions, this bunch of writ petitions is disposed of. "

It is, thus, argued that the relief of age relaxation was admissible not only to the petitioner who was party in the case of Devki Nandan (supra) but to all other similarly situated employees.

In this fact and circumstance, the petitioner has approached this Court along with others to seek a direction to consider their claim in accordance with the decision of the Devki Nandan (supra), which was directed by this Court.

The submission, thus, is that the select list prepared by the District Magistrate, Siddharth Nagar dated 27th February, 2019 which was subject matter of challenge in the writ petition, out of which the present appeal arises, is a result of a fresh selection conducted by the District Magistrate, Siddharth Nagar, based on the recommendation of the Selection Committee dated 26.2.2019. In the said list, the petitioner has been excluded and the name of another person impleaded as respondent no. 5 in the writ petition, namely Subhash Chandra, was included.

The submission of the learned counsel for the appellant is that after the directions were issued by this court to consider the candidature of all similarly situated employees by granting age relaxation, pursuant to the selection made in the year 2016, the only requirement for the respondent was to give appointment to the petitioner on the post of regular collection amin by grant of age relaxation in terms of the decision of this Court in Devki Nandan (supra).

It is argued that there was no occasion for holding fresh selection to consider the candidature of the petitioner afresh and there was no such direction either in the case of Devki Nandan (supra) or in the writ petition filed by the petitioner.

Taking note of all these submissions of the learned counsel for the appellant, on a pointed query made from the learned Standing Counsel, he could not dispute the factum of selection of the petitioner in the selection held in the year 2016.

It is demonstrated before us that the appointment could not be granted to the petitioner being overage. The dispute pertaining to relaxation of age raised by the Seasonal Collection Amin finds favour by this Court. The name of the petitioner was already forwarded to the State Government for age relaxation.

In the said scenario, we find substance in the submission of the learned counsel for the appellant that only ministerial act for consideration of the candidature of the petitioner against the available vacancy of regular Collection Amin was required to be completed, which has not been done so far.

In view of the above, while modifying the directions issued by the learned Single Judge in the judgment and order dated 1.2.2023, we direct the State respondents to consider the candidature of the petitioner/appellant for appointment on the post of regular Collection Amin against the existing vacancy, giving due consideration to his selection on the post of regular Collection Amin in the year 2016 and the age relaxation permitted by this Court in the case of Devki Nandan (supra).

It is further clarified that the appointment of the petitioner/appellant on the post of regular Collection Amin shall be made by the Collector, Siddharth Nagar, after due verification of the existing vacancy.

It is further demonstrated that the juniors to the petitioner in the select list prepared in the year 2016 have allowed joining since 27.2.2019. In case of available vacancy, on the joining of the petitioner, his appointment shall be deemed to have been made w.e.f. 27.2.2019, the date on which the candidates below him in the merit list prepared in the order of seniority, have been allowed to join in the year 2016.

It is, however, made clear that the appointment w.e.f. 27.2.2019 shall be notional and no financial benefits shall be accorded to the petitioner out of the same, except consideration in respect of seniority.

The writ petition is, accordingly, disposed of.

Order Date :- 21.3.2023

Brijesh