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2005 DIGILAW 2239 (ALL)

INDRA DEO NARAIN SINGH v. STATE OF UTTAR PRADESH

2005-11-18

SABHAJEET YADAV

body2005
JUDGMENT Hon’ble Sabhajeet Yadav, J.—Feeling aggrieved against the orders dated 1.7.1987 and 25.9.1989, contained in Annexures-1 and 2 of the writ petition respectively, the petitioners have filed above noted writ petition seeking writ in the nature of certiorari for quashing the same. The order dated 1.7.1987 was in the shape of circular issued by Secretary, U.P. Board of Revenue, Anubhag-2 Lucknow, wherein it has been stated that the persons who had been appointed after 1.5.1983 on ad hoc basis their services cannot be regularised under the provisions of U.P. Regularisation of Services (on the Post beyond the purview of U.P. Public Service Commission Regularisation) Rules, 1979 as amended in the year 984, therefore, their services were directed to be tenninated in view of rule 8 of the aforesaid regularisation Rules. It was also mentioned in the order that 12 Collection Amins who have been appointed after 1.5.1983 on ad hoc basis in the concerned district, they cannot be given benefit of aforesaid regularisation Rules. Accordingly an impugned order dated 25.9.1989, has been passed by Sub-Divisional Officer, Sadar, Deoria contained in Annexure-2 of the writ petition after affording opportunity of hearing to the individual persons. The petitioners of the instant writ petition have challenged both the orders referred hereinabove. 2. The challenge of petitioners against the aforesaid order rests on the fact that petitioners No. 1 to 3 were initially appointed as Seasonal Collection Amins with effect from 7.1.1976, 19.1.1976 and 17.1.1976 respectively by the respondents. According to them their work and conduct were excellent as they were appointed again and again for both the seasons of Rabi and Kharif and they continued to work for more than 4 Fasli. Similarly the petitioners No. 4, 5 and 6 who are members of Scheduled Caste were appointed respectively in the year 1977, 1983 and 1976 as Seasonal Collection Amins by the orders of Sub-Divisional Officer, Deoria. They have also served more than 4 Fasli. It is also alleged that the petitioners were senior-most Collection Amins as shown in the gradation list of Collection Amins. Accordingly a proposal was made to appoint the petitioners No. 4,5 and 6 against substantive vacancies as Collection Amins on ad hoc basis by Tehsildar, Deoria on 23.4.1989 which was approved by Sub-Divisional Officer, Deoria on 27.4.1989. Thereafter they were appointed as such. The proposal is on record as Annexure-4 of the writ petition. Accordingly a proposal was made to appoint the petitioners No. 4,5 and 6 against substantive vacancies as Collection Amins on ad hoc basis by Tehsildar, Deoria on 23.4.1989 which was approved by Sub-Divisional Officer, Deoria on 27.4.1989. Thereafter they were appointed as such. The proposal is on record as Annexure-4 of the writ petition. It is also alleged that the appointment of petitioner No. 1 was made in place of Sri Jeetu Prasad who retired as Regular Collection Amin. The petitioner No. 2 was appointed in place of Sri Gauri Shanker Pandey who retired as regular Collection Amin and petitioner No. 3 took place of Sri Brij Kishore Pandey who was promoted and posted as Naib Tehsildar. Similarly the appointment of petitioner No. 4 was made in place of Sri Hari Nandan Pandey who retired as permanent Amin, petitioner No. 5 was appointed in place of Sri Mathura Prasad who was promoted on the post of Naib Tehsildar and the appointment of petitioner No. 6 was made in place of Sri Sukhdeo Prasad who retired as permanent Collection Amin. The appointment of petitioners No. 1 to 6 were made on 27.4.1989 against substantive vacancies on temporary and officiating basis by the competent authority in accordance with the Clause-3 of Rule-20 of U.P. Collection Amin’s Services (IVth Amendment) Rules, 1984 which confers power upon competent authority to make such ad hoc/officiating appointments and such appointments can continue for a period of one year or till the next selection held whichever is earlier. It is further stated that in pursuance of their appointment made on 27.4.1989, the petitioners joined their duties in the area assigned to them on 27.4.1989 and since then they are working as on ad hoc or officiating basis against substantive vacancies of Collection Amins. The work and performance of petitioners have been found most satisfactory and no complaint was made against their work and conduct during the course of the employment as Collection Amins. It is further sated that neither any regular selection was made on the post held by the petitioners nor the period for which the petitioners were appointed have expired. Before expiry of aforesaid period the appointments of the petitioners were cancelled by Addl. It is further sated that neither any regular selection was made on the post held by the petitioners nor the period for which the petitioners were appointed have expired. Before expiry of aforesaid period the appointments of the petitioners were cancelled by Addl. Collector, Deoria vide his order dated 21st June, 1989 merely on the ground that in view of order/circular dated 1.7.1987, petitioners ad hoc/officiating appointment against the substantive vacancy are illegal and petitioners cannot be allowed to continue as Collection Amins against substantive vacancies. No opportunity of hearing whatsoever was however afforded to the petitioners before passing such order. The petitioners have challenged the aforesaid order dated 21.6.1989 passed by respondent No. 3 as well as consequential order dated 29.6.1989 passed by respondent No. 4 by means of writ petition of 1989 Indra Deo Singh v. Additional District Magistrate, Deoria, which was admitted by the Division Bench of this Court on 20.7.1989 and the operation of order dated 21-6-1989 and 26.6.1989 was stayed. It was however left open to the respondents to pass fresh order after affording opportunity of hearing to the petitioners. Certified copy of interim order dated 20.7.1989 alongwith the application dated 26.7.1989 was sent by the petitioners through registered post to the respondent No. 4 requesting him for compliance of the interim order of this Court dated 20th July, 1989 and to pass a fresh order after affording the opportunity of hearing to the petitioners. Thereafter, respondent No. 4 has passed the impugned order on 25.9.1989, contained in Annexure-2 of the writ petition, whereby the petitioners services were terminated in compliance of Board order, dated 1.7.1987 merely on the ground that petitioners were appointed after 1.5.1983. According to the petitioners the impugned order dated 25.9.1989 has been passed by the respondents without affording any opportunity of hearing to them. 3. It is further stated that U.P. Regularisation of Ad hoc Appointment (on Posts outside the Purview of the Public Service Commission) (Amendment) Rules, 1989 has come into force providing benefit of regularisation to the ad hoc employees appointed upto 1st October, 1986 but has excluded the regularisation of Seasonal Collection Amins in wholly arbitrary manner. Thus besides seeking relief of quashing of the impugned orders the petitioners have also sought relief of re-instatement and regularisation of service ignoring the cut-off dates mentioned in the aforesaid regularisation Rules. 4. Thus besides seeking relief of quashing of the impugned orders the petitioners have also sought relief of re-instatement and regularisation of service ignoring the cut-off dates mentioned in the aforesaid regularisation Rules. 4. A detailed counter affidavit, sworn on 9th January, 1998 has been filed in the writ petition, whereby the averments made in the writ petition have been denied and claim of petitioners has been disputed. The stand taken by the respondents in pith and substance have been stated in paragraphs 3,4,6,7,10,11,12,14 and 17 of the counter-affidavit sworn by Sri Vijay Nath Pandey posted as Tehsildar, Sadar District Deoria. For ready reference the aforesaid paragraphs of counter-affidavit are quoted as under : “3. That before giving parawise reply of the writ petition it is stated that the petitioners were working as Seasonal Collection Amins from time to time in tehsil and district Deoria. While the petitioners were working as Seasonal Collection Amins certain posts fell vacant of Collection Amins. Since the regular appointments could not be made on the said post it was decided to take the work from the petitioners of Collection Amins till the regular selection is made on the post. A true copy of the order dated 27.4.1989, passed by the Sub Divisional Officer in pursuance of the order is being filed herewith and marked as Annexure No. C.A.-1 to this counter affidavit. However, on the directions received from the Board of Revenue in the Collectorate directing the concerned officer not to fill up the post of Collection Amins by direct appointment on ad hoc basis or in time gap arrangements, the services of the petitioners were dispensed with in pursuance of the directions of the Board of Revenue contained in the order passed by the Additional Collector, Deoria. A true copy of the orders’ dated 21st June, 1989 and 29th June, 1989 are being filed herewith and marked as Annexures C.A. 2 and 3 to the counter affidavit. 4. That the contents of paragraph 1, 2 and 3 of the writ petition as stated are not admitted. As stated above, the petitioners were appointed as Seasonal Collection Amins from time to time during the collection season for the period as approved by the Commissioner of the Division their services were terminated after the additional collection was made in the area during the season. As stated above, the petitioners were appointed as Seasonal Collection Amins from time to time during the collection season for the period as approved by the Commissioner of the Division their services were terminated after the additional collection was made in the area during the season. It is pertinent to mention here that it was only under the circumstances stated above, they were given purely ad hoc appointment on the post of Collection Amins but in view of the directions received from the Board of Revenue their services dispensed with, and no right accrued to the petitioners to claim their continuation on the post of Collection Amins. The Collection Amin Service Rules prescribed a complete procedure for appointment of candidates on the post of Collection Amins through direct recruitment as well as from amongst the Seasonal Collection Amins. The petitioners have never applied for their appointment on regular basis and have not faced any selection and, therefore, there was no question of their being regularised on the post of Collection Amins on regular basis. 6. That the contents of paragraph 5, 6, 7 and 8 of the writ petition as stated are not admitted. In reply it is submitted that since 6 posts were fell vacant of Collection Amins and no regular selection was held it was decided to take the work from amongst the Seasonal Collection Amins. However, the Board of Revenue did not approve the decision and directed the District Magistrates not to appoint Seasonal Collection Amins straightaway on the post of Collection Amins except in accordance with the provisions contained in the service rules, and further directed to remove the Seasonal Collection Amins from the post of Collection Amins and take the work from them in the capacity of Seasonal Collection Amins. 7. That in reply to the contents of paragraph 9 of the writ petition it is stated that the services of the petitioners were dispensed with in view of the directions received from the Board of Revenue through Collector. However, they are continuing to work under the orders of this Hon’ble Court though they were initially appointed for a period of 6 months even if the termination order is found to be bad. They have no right to continue after the expiry of the period of 6 months from the date of their initial appointment dated 27.4.1989. 10. However, they are continuing to work under the orders of this Hon’ble Court though they were initially appointed for a period of 6 months even if the termination order is found to be bad. They have no right to continue after the expiry of the period of 6 months from the date of their initial appointment dated 27.4.1989. 10. That in reply to the contents of paragraph 14 and 15 of the writ petition, it is stated that the order dated 25.9.1989 was passed after the Hon’ble Court directed to pass an order after affording an opportunity of hearing to the petitioners. The then Sub-Divisional Magistrate passed a detailed order cancelling the stop gap ad hoc appointment of the petitioners. A copy of the order has already been filed as Annexure-2 of the writ petition. It is wrong to say that the case of the petitioners was not considered by the then Sub-Divisional Magistrate. 11. That in reply to the contents of paragraph 16 of the writ petition it is stated that the Hon’ble Court in its order dated 20.7.1987 left it open for the respondents to pass a fresh order after affording an opportunity of hearing to the petitioners, but the petitioners as observed by the Sub-Divisional Magistrate in the order, did not point out anything illegal in their termination On the contrary, they sought their regularisation on the said post. As stated above, the regularisation can only be done after following the procedure prescribed for the said purpose and since the selection committee was not constituted to examine the claim of the petitioners they could not be regularised against the provisions of the rules and the then Sub-Divisional Magistrate was justified in passing the order of cancellation of their appointments made in April, 1989. 12. That in reply to the contents of paragraph 17, 18 and 19 of the writ petition, is stated that as and when the regular selection will be held, the claim of the petitioners will also be looked into by the selection committee and if they fulfil the requirement of the rules and stand better to their counter parts there is no reason why they will not be regularised, but as there was an interim order for continuation of these persons no regular selection could be held so far for the post held by the petitioners. 14. 14. That the contents of paragraph 22, 23 and 24 of the writ petition as stated are not admitted. It is wrong to say that the claim of the Seasonal Collection Amins have not been looked into by the Authorities. The quota prescribed for recruitment from amongst the Seasonal Collection Amins can only be filled up through them and, therefore, the averments made in paras under reply contrary and are not admitted. The services of the petitioners are governed by the service rules framed in Collection Am in Services. 17. That the contents of paragraph No. 27 of the writ petition as stated are not admitted In reply it is submitted that after the cancellation of the appointment of the petitioners on the post of Collection Amin, they were treated as Seasonal Collection Amins and the work was being taken from them in the said capacity, it is only by virtue of interim order now they are continuing on the said posts held by them.” 5. I have heard Sri R.N. Tripathi, learned counsel for the petitioners and the learned Standing Counsel for the respondents and also perused the records. 6. Having gone through the submissions made by learned counsel for the parties and perusal of records it is necessary to point out that it is not in dispute that the petitioners were working as Seasonal Collection Amins. A proposal was made by the Sub-Divisional Officer concerned to appoint the petitioners on ad hoc and officiating basis against the substantive vacancies for a period of six months. The proposals were communicated to the Board of Revenue by the authorities concerned which was disapproved by the Board of Revenue as indicated in the impugned order contained in Annexure-1 of the writ petition on the ground that the ad hoc appointments were made after 1st May, 1983, which was cut-off date provided in U.P. Regularisation of Ad hoc Appointments (on Post outside the Purview of the Public Service Commission) (Amendment) Rules, 1985, which was in force on the date of Circular issued by Secretary, U.P. Board of Revenue that is on 1.7.1987, whereby a direction has been issued by the Secretary not to continue such ad hoc appointment rather the services of Ad hoc appointee should be terminated in view of Rule 8 of aforesaid Rules. In pursuance of such direction initially the services of the petitioners were terminated on 21.6.1989 and 29.6.1989, which were challenged by the petitioners by filing a writ petition before this Court, wherein on 20.7.1989 this Court has stayed the operation of impugned orders dated 21.6.1989 and 29.6.1989. However, it was left open to the respondents to pass fresh order after affording opportunity to the petitioners. Thereafter, the petitioners have moved representation before the authorities concerned alongwith the copy of interim order passed by this Court. Thus after going through the representations and affording opportunity of hearing to the petitioners the order dated 25.9.1989 has been passed by Pargana Adhikari, Sadar, Deoria, who was competent authority at the relevant point of time, whereby proposal of ad hoc and officiating appointment of petitioners dated 27.4.1989, was cancelled and services of petitioners on ad hoc basis were terminated and they placed to work as seasonal basis. 7. From the perusal of impugned order dated 25.9.1989, contained in Annexure-2 of the writ petition it appears that vide proposal letter of Tehsildar, Deoria dated 27.4.1989 the petitioners were appointed for a period of six months) or till regular selection is held whichever is earlier in officiating capacity, which was directed to be cancelled by Addl. District Magistrate, Deoria on 21.6.1989. In pursuance of which order dated 29.6.1989 was passed. It transpires from the order dated 25.9.1989 that the aforesaid order of Addl. District Magistrate was passed in pursuance of Circular issued by U.P. Board of Revenue whereby officiating/ad hoc appointment on the post of Collection Amins were prohibited and banned by the Board of Revenue for simple reason that there exist statutory rules of recruitment of Collection Amins against substantive vacancies on regular basis. Besides this Circulars are also available to engage Amins on seasonal basis to cater the need of department from time to time as and when occasion arises on account of increase of works, therefore, no occasion arises to bye pass the statutory rules of regular recruitments by making ad hoc/officiating appointment against substantive vacancies of Collection Amins. Thus, after affording opportunity of hearing to the petitioners, vide impugned order dated 25.9.1989, the proposal dated 27.4.1989 was annulled, the petitioners were permitted to work as a Seasonal Collection Amins. Thus, no fault can be found in the impugned order on this score. 8. Thus, after affording opportunity of hearing to the petitioners, vide impugned order dated 25.9.1989, the proposal dated 27.4.1989 was annulled, the petitioners were permitted to work as a Seasonal Collection Amins. Thus, no fault can be found in the impugned order on this score. 8. Besides this, from the perusal of amended provision of Clause (3) of Rule 20 of U.P. Collection Amin’s Services (IV Amendment) Rules, 1984, whereby Clause (3) in the Rule 20 has been inserted in the original rule and quoted in paragraph 7 of the writ petition. It is necessary to point out that under the aforesaid newly amended rule the appointing authority is empowered to make appointment to the ordinarily grade of service from the list referred to in Rules 17 and 18, if no candidate borne on the list is available, he may make appointment in such vacancies from amongst the persons eligible for appointment under these Rules. Such appointment shall not last for a period exceeding one year or beyond the next selection under these Rules whichever be earlier. 9. From close scrutiny of the aforesaid amended rule it is clear that if the candidates of select list prepared for direct recruitment under Rule 17 of the Rules and for promotion under Rule 18 of the Rules existing at the relevant point of time in the year 1984 were not available the appointing authority was empowered to make officiating appointment for a period not more than one year, or till the regular selection is made whichever is earlier against substantive/clear vacancy of Collection Amins but this Rule does not empower to continue such officiating appointments beyond the aforesaid period or to permit them for any other purpose of regularisation against substantive vacancies. The purpose of aforesaid amendment was very much clear to cater the need and meets the exigencies of service required for such officiating appointment as it is well settled that if statutory rule is available for making regular recruitment/appointment the resort should not be made to by pass the aforesaid statutory rules of recruitment by ignoring the same for such selection and appointment and to make appointment contrary to the statutory rules, that is why the Board of Revenue has issued direction, contained in Annexure-1 of the writ petition, whereby the ban have been imposed for making ad hoc appointment against substantive vacancies of Collection Amins and following the directions contained in the Circular of Board of Revenue the Addl. District Magistrate has passed the initial order of termination which was challenged by the petitioner in a writ petition referred hereinbefore and in pursuance of directions of this Court the impugned order dated 25.9.1989 has been passed by the Pargana Adhikari, Sadar, Deoria, contained in Annexure-2 of the writ petition. 10. Having regard to the facts and circumstances of the case, I do not find any illegality in the order impugned in the writ petition passed by Pargana Adhikari, Deoria. The petitioners have already been permitted to work as Seasonal Collection Amins as they did not appear in the regular selection held for the posts of regular Collection Amins. Thus, they cannot be regularised in the service at the strength of that proposal made for their ad hoc appointment on 27.4.1989, which was only for a period of six months permitting the petitioners to work in officiating capacity against the substantive vacancies of Collection Amins on ad hoc basis. Assuming: for the sake of arguments, if the proposal of officiating/ad hoc appointment of petitioners dated 27-4-1989 would have been accepted by the superior authorities of the department it would have lost its efficacy on expiry of period of six months even if the regular selection would not have been held earlier to the aforesaid period of six months. Thus, on account of their continuance in service on officiating or ad hoc basis, the petitioners could not claim their regularisation in absence of any statutory rules of regularisation to regularise such service of petitioners in the aforesaid period. Similarly, under sub-rule (3) of Rule 20 of amended rules of Collection Amins also the petitioners cannot claim their regularisation. Thus, on account of their continuance in service on officiating or ad hoc basis, the petitioners could not claim their regularisation in absence of any statutory rules of regularisation to regularise such service of petitioners in the aforesaid period. Similarly, under sub-rule (3) of Rule 20 of amended rules of Collection Amins also the petitioners cannot claim their regularisation. Learned counsel for the petitioners has also failed to substantiate his submission that cut off date fixed in U.P. Regularisation of Ad hoc Appointment (on Post outside the Purview of Public Service Commission) Rules, 1979, 1985 and 1989 as arbitrary and without any purpose. Thus, on this count also the petitioners are not entitled for any relief claimed in the writ petition. 11. Learned counsel for the petitioners has also placed reliance upon the decisions of Vikramaditya Pandey v. Industrial Tribunal and another, 2001 (1) E.S.C. 190 (SC), Shyam Narain & others v. State of U.P. through Secretary Public Works Department & others, in Writ Petition No. 3214 of 1988, decided on 30th April, 1993 by Lucknow Bench of this Court, Chandra Prakash Tewari and others v. Collector/D.M. Unnao and others in Writ Petition No. 8330 of 1989, decided on 15th July, 1991 by Lucknow Bench of this Court and Narendra Kumar Upadhyaya and others v. State of U.P. and others in Special Appeal No. 378 of 1997, decided on 29th October 2001, by Division Bench of this Court. In my opinion, the facts of the instant case is different and distinguishable from the facts and circumstances of the cases referred in the aforesaid decisions relied upon by learned counsel for the petitioners, therefore, the aforesaid decisions can be of no assistance to the case of the petitioners. 12. However before parting with this judgment, it is necessary to point out that having regard to the seniority and length of services rendered by petitioner as Seasonal Collection Amins, their case of regular selection may be considered by respondents under 35% quota reserved for selection and appointments from amongst seasonal collection amins against the substantive vacancies occurred at relevant time when such provisions have been made under relevant rules of recruitment of Collection Amins. Their claim for aforesaid selection and appointment shall not be defeated on account of pendency of above noted writ petition and observation made hereinbefore. Their claim for aforesaid selection and appointment shall not be defeated on account of pendency of above noted writ petition and observation made hereinbefore. In case the petitioners have been permitted to continue on the substantive vacancy of Collection Amins, they may be adjusted against their quota of 35% vacancy reserved for them in the turn of their seniority as having regard to the fact that they are continuing against such vacancy, in that eventuality it cannot be said that their work as Seasonal Collection Amins in the aforesaid requisite period is not satisfactory particularly when they have been permitted to work continuously on officiating basis against the substantive vacancies of Collection Amins. Besides this, their age for eligibility and their selection year shall be treated to be year of occurrence of vacancies because of the simple reason that their claim for selection and appointment might have been ignored on account of pendency of instant writ petition and on account of their continuance at the strength of interim stay order passed in the instant writ petition, at the time when the vacancies were occurred in their 35% quota of selection of seasonal Amins on regular basis. It can not be presumed that during the pendency of writ petition no vacancy occurred in the aforesaid quota. It is also not the case of respondents in the counter-affidavit that their claim of selection has ever been considered in the aforesaid quota of selection from amongst seasonal Collection Amins. 13. In view of the aforesaid discussions and observations made herein before, the writ petition is disposed of finally. Order Accordingly.