Allahabad High Court
State Of U.P. And 5 Others vs Navneet Kumar Kamboj on 7 May, 2024
Author: Mahesh Chandra Tripathi
Bench: Mahesh Chandra Tripathi
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2024:AHC:81686-DB
Court No. - 40
Case :- SPECIAL APPEAL No. - 379 of 2024
Appellant :- State Of U.P. And 5 Others
Respondent :- Navneet Kumar Kamboj
Counsel for Appellant :- Chandan Kumar,Jagannath Maurya
Counsel for Respondent :- Lokesh Kumar,Pramod Kumar Sinha
Hon'ble Mahesh Chandra Tripathi,J.
Hon'ble Anish Kumar Gupta,J.
1. Heard learned Standing Counsel for the appellant-respondents, Mr. Gajendra Pratap Singh, learned Sr. Advocate, assisted by Mr. Pramod Kumar Singh, learned counsel appearing for the respondent-petitioner and perused the record.
2. The instant Special Appeal under Chapter VIII, Rule-5 of the Allahabad High Court Rules, 1952 (hereafter referred to as the "Rules, 1952") has been preferred assailing the legality and validity of the order dated 9.8.2023 passed by Writ Court in WRIT - A No.- 9363 of 2019 (Navneet Kumar Kamboj Vs. State of U.P. and 5 Others) whereby the learned Single Judge has allowed the writ petition and directed the respondent(appellant herein) for making the regular appointment of the petitioner (respondent herein) under the relevant Rules absolute as well as extending all consequential benefits including the reinstatement in service with full salary to the petitioner-respondent.
3. The record in question reflects that petitioner-respondent was inducted as Seasonal Collection Amin at Tehsil - Jansat, District- Muzaffar Nagar in the month of Feburary, 1995. Thereafter, his services came to be regularized under the relevant provisions of the U.P. Collector Amin Services Rules, 1974 (hereinafter referred to as the "Rules, 1974) with effect from 07.07.2003. Thereafter, the said regularization order was recalled vide order dated 12.09.2003 taking note of the fact that number of working days of the petitioner was 2273 and not 2534 as such he would be placed at Sl. No.57 in the seniority list of the Seasonal Collection Amin and not at Sl. No.48. The aforesaid order dated 12.09.2003 was subject matter of challenge before writ Court in WRIT - A No. - 45984 of 2003 (Navneet Kumar Kamboj Vs. State of U.P. & Others) whereby learned Single Judge was pleased to allow the petition vide judgment and order dated 17.11.2011 and set aside the impugned order dated 12.9.2003 and remitted the matter to the Deputy Collector, Tehsil Budhana, District- Muzaffar Nagar for passing a fresh order after affording the opportunity to all stakeholders in the matter. The relevant portion of the order dated 17.11.2011 is extracted hereinbelow:-
"At the outset it may be noted that although the order dated 15.10.2003 required the learned standing counsel to (i) produce the original records relating to the appointments, (ii) payment of emoluments and (iii) deposits of collection made by the Seasonal Collection Amins of Tehsil Jansath during the period May, 1993 to February, 1995, however, the record relating to payment of emoluments to the Seasonal Collection Amins of Tehsil Jansath alone was produced. The said record does not contain the name of the petitioner for the period May, 1993 to February, 1995. The name of the petitioner has been incorporated for the first time on 15.12.1995 and not on 17.5.1993 as claimed by the petitioner.
The learned counsel for the petitioner has submitted that the petitioner had been working from 17.5.1993 and his actual number of working days was 2534; the petitioner had collected the revenue during the said period and had also deposited the same in the Tehsil ; the respondents have not produced the entire record as required by the Court vide order dated 15.10.2003. The next submission is that the impugned order had been passed cancelling the order of giving regular appointment to the petitioner as Collection Amin without furnishing the inquiry report which was made the basis of the impugned order. As such adequate opportunity was not afforded and the impugned order would thus be violative of principles of natural justice and fair play. It is also submitted that by the impugned order the seniority of the petitioner has also been affected as he has been placed at Sl.No.57 from Sl.No.48 in the seniority list of the Seasonal Collection Amins which order could not have been passed without giving a show cause notice to that effect. It is further submitted that the relevant records relating to the collection of revenue and deposits thereof in the Tehsil has not been taken into consideration before passing the impugned order. As such the impugned order stands vitiated in law because such evidence would be relevant and material for deciding the claim of the petitioner.
A perusal of the impugned order dated 12.9.2003 indicates that a show cause notice was given to the petitioner but despite request of the petitioner, copy of the inquiry report was not supplied. Only an opportunity was given to peruse the same. Further the impugned order does not indicate as to whether the material evidence relating to the appointment, the payment of emoluments and the deposits of the collection were examined by the Deputy Collector, Budhana before passing the impugned order. In that view of the matter, the impugned order stands vitiated as being violative of the principles of natural justice and fair play.
Admittedly the petitioner was working as Seasonal Collection Amin and his name was included in the seniority list. If based upon the number of days his seniority was affect from Sl.No.48 to Sl.No.57 his case could have been considered for subsequent vacancies which could have arisen for the post of regular Collection Amins. This apparently has not been done and according to the petitioner he has not been offered any work as Seasonal Collection Amin after the passing of the impugned order dated 12.9.2003 although the petitioner has been keen to continue to work as Seasonal Collection Amin and also claims to have submitted several representations in that regard.
In view of the above discussion, this petition deserves to be allowed. Accordingly the impugned order dated 12.9.2003 is hereby quashed. Matter is remitted to the Deputy Collector, Tehsil Budhana, District Muzaffar Nagar for passing a fresh order after affording due opportunity to the petitioner and after considering the material evidence referred to above in this order before passing fresh orders. This exercise may be undertaken within a period of two months from the date of production of a certified copy of the order."
4. In deference to the aforesaid order dated 17.11.2011, the matter was relegated to the respondent No.4-Sub Divisional Magistrate, Tehsil-Budhana, District- Muzaffarnagar, U.P. to take the decision on the basis of the observations made by the writ Court. The Sub Divisional Magistrate concerned again rejected the claim of the petitioner vide order dated 01.02.2012 taking note to the fact that petitioner was placed at Serial No.57 of the seniority list, while persons upto Serial No.48 alone were appointed as Collection Amin but on account of certain manipulation, seniority of the petitioner was altered and he was appointed as Collection Amin. The aforesaid order dated 01.02.2012 passed by the respondent-authority was subject matter of challenge before this Court in WRIT - A No.-27010 of 2012 (Navneet Kumar Kamboj Vs. State of U.P. Thru. Its Secy. and Others) wherein learned Single allowed the petition vide judgment and order dated 12.3.2019 and set aside the order impugned dated 01.02.2012 with following observations:-
" Learned counsel for the petitioner submits that even if the averments made in the order impugned is accepted, yet the authorities were obliged to consider petitioner's claim as per their own order since petitioner was stated to be placed at Serial No. 57 of the seniority list. Contention is that subsequent recruitment has been undertaken on various occasions, but petitioner's claim has clearly been overlooked. It is stated that neither the enquiry report has been served upon the petitioner nor he has been afforded any opportunity and the earlier direction of this Court continues to remain flouted. It is also stated that petitioner was not even engaged as seasonal collection amin thereafter.
Although counter affidavit has been filed in which averments made in the writ petition have been denied but there is no record placed to show that either enquiry report was furnished to the petitioner or his claim has been dealt with. It has not been shown that petitioner was not eligible in terms of the appropriate rule for regularization of his services. It is also not averred that no person below serial no. 57 of seniority list is yet to be appointed.
From the materials placed on record this Court finds that neither any enquiry report has been furnished to the petitioner nor his claim for appointment has been examined in terms of direction already issued by this Court. Even if respondents' contention that petitioner was placed at serial no. 57 is correct, yet authorities were obliged to conside petitioner's claim as per his correct placement in the seniority list. Substantial period has expired without there being any consideration of petitioner's claim in that regard.
In view of the fact that direction issued by this Court in the earlier writ petition of the petitioner has not been complied with and his claim for appointment in terms of Rule 5 of the U.P Collection Amin Rules, 1974 has not been dealt with as per seniority maintained by the respondents themselves, the order impugned cannot be sustained.
The writ petition accordingly succeeds and is allowed. Order impugned dated 1st February, 2012 stands quashed. The respondents shall proceed to pass a fresh order within a period of two months from the date of presentation of a certified copy of this order. In case any person below the petitioner, as per seniority list maintained by the respondents themselves has been appointed, the claim of the petitioner would also be considered from that date."
5. In compliance of the aforesaid order dated 12.3.2019 passed by learned Single Judge, the matter was relegated to the respondent-Authority to pass a fresh order and Sub Divisional Magistrate concerned had again rejected the claim of the petitioner vide a detailed order dated 22.05.2019 and the same was challenged in the aforesaid petition i.e. WRIT - A No.- 9363 of 2019 and the same has been allowed by the learned Single Judge vide order dated 9.8.2023 which is subject matter of challenge in the instant appeal.
6. Learned Standing Counsel for the appellant-respondents submits that while passing the impugned judgment and order dated 09.08.2023, learned Single Judge has committed manifest error by quashing the order dated 22.05.2019 and further upholding the order dated 07.07.2003 and granting all consequential benefits along with reinstatement and salary with effect from 2003. In continuance to the same, he submits that learned Single Judge has ignored the findings of facts that the respondent-authorities have passed the orders by rejecting the claim of the petitioner on 12.09.2003, 01.02.2012 and 22.05.2019, respectively for different reasons. Finding of facts recorded therein could not be disturbed in writ jurisdiction. While questioning the legality and validity of the order impugned, he submits that learned Single Judge has erred in returning the finding to the effect that once the order dated 12.09.2003 cancelling the permanent appointment of the petitioner was quashed by order passed by this Court on 17.11.2011 in WRIT - A No. - 45984 of 2003 (Navneet Kumar Kamboj Vs. State of U.P. & Others), the appellants/respondents were required to pass a consequential order for taking work from the petitioner. The said finding is also perverse and not based on any evidence. Further, learned Standing Counsel, in support of his submissions, has placed reliance upon a complaint dated 13.06.2016 made by the petitioner before the Hon'ble Lok Ayukta, Uttar Pradesh and perusal of the same itself provides that the petitioner is a Sabhasad. The relevant portion of the aforesaid complaint is extracted hereinbelow:-
"1. ?? ?? ??????? ????? ????? ????? ???? ????? ????? ????? ???? ?????????? ?? ??? ?????? ????? ?? ?????? ?? ?? ????? ????? 10 ?? ??????? ????? ?? ???????? ?? ??????? ????????? ?? ?? ???????? ??? ???? ???? ???"
7. In this backdrop, learned Standing Counsel for the appellant-respondents submits that order dated 9.8.2023 passed by learned Single Judge is liable to be set aside as the petitioner admittedly worked as Sabhasad of the Municipality concerned and he was also running the commercial shop. As such it cannot be said that he was not gainfully employed.
8. We have proceeded to examine the record and find that so far as the placement of the petitioner-respondent in the seniority list of Seasonal Collection Amin is concerned, the same has very much been considered by writ Court while passing the order dated 17.11.2011 in Writ A No.45984 of 2003 filed by the petitioner, wherein the writ petition was allowed and the order dated 12.09.2003 passed by the Sub Divisional Officer concerned was set aside. Moreover, the learned Single Judge has further considered the same in detail while passing the order dated 12.3.2019 in Writ A No.27010 of 2012, wherein the learned Single Judge has proceeded to allow the writ petition with observations that neither any enquiry report has been furnished to the petitioner nor his claim for appointment had been examined in terms of direction already issued by the writ Court. The respondent-authorities were under obligation to consider the petitioner's claim as per his correct placement in the seniority list. Even otherwise, the petitioner had not been permitted to work as Seasonal Collection Amin and therefore, such finding of fact cannot be upset at this stage.
9. After considering the submissions made by the learned counsels for the parties and upon perusing the impugned judgment and order, we notice that the same has been rendered by the learned Single Judge with cogent and justifiable reasons. In an Intra-Court Special Appeal, no interference is usually warranted unless palpable infirmities or perversities are noticed on a plain reading of the impugned judgment and order. In the facts and circumstances of the instant case, on a plain reading of the impugned judgment and order, we do not notice any such palpable infirmity or perversity. As such, we are not inclined to interfere with the impugned judgment and order.
10. However, so far as the engagement of the respondent-petitioner as Sabhasad in the Municipality is concerned, before learned Single Judge no such objection was raised that he is not entitled for salary since 07.07.2003 and therefore, qua this aspect no finding was returned by learned Single Judge but contrarily, learned Single Judge has observed that the petitioner was restrained not to carry out or even permitted to be engaged as Seasonal Collection Amin and therefore, out-rightly the claim of the petitioner-respondent cannot be denied merely on the basis of 'no work no pay'. Equity and justice would be subserved in modifying the order dated 09.08.2023 passed by learned Single Judge to the extent that the petitioner-respondent is entitled to only 50% of the arrears of salary with effect from 07.07.2003. Accordingly, we modify the order of learned Single Judge dated 09.08.2023 to the aforesaid extent.
11. The appeal stands disposed of to the extent as modified hereinabove.
Order Date :- 7.5.2024
Sachin
