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2009 DIGILAW 2586 (ALL)

MANBODH, ETC v. STATE OF U. P. AND OTHERS, ETC

2009-07-17

A.P.SAHI, C.K.PRASAD

body2009
JUDGMENT By the Court.—These special appeals raise common question of law and fact and, therefore, are being disposed of by a common judgment. 2. We have heard Shri R.K. Shukla, holding brief of Shri Shailendra for the appellant in Special Appeal No. 294 of 2008; Shri V.D. Yadav, counsel for the appellant in Special Appeal No. 398; Shri Sudhir Kumar Chandraul for Mithlesh Kumar and Muztuba Husain, respondents No. 10 and 11 in Special Appeal No. 294 and 11 and 12 in Special Appeal No. 398 of 2008, and Shri Ghanshyam Dwivedi, Standing Counsel for the respondent State and its authorities. 3. These special appeals under Chapter VIII Rule 5 of the Allahabad High Court Rules, 1952 have been preferred against a common judgment dated 8.2.2008 passed by a learned Judge in Civil Misc. Writ Petition No. 5932 of 2006, whereby the order dated 29.12.2005 whereunder the appellants were declared to have been selected as Collection Amins, has been quashed at the instance of Mithlesh Kumar and Muztuba Hussain, petitioners-respondents No. 10 and 11 in Special Appeal No. 294, and 11 and 12 in Special Appeal No. 398 of 2008 (hereinafter referred to as the ‘petitioners’). 4. Brief facts giving rise to present controversy are that selections were to be held for appointment of regular Collection Amins from amongst the Seasonal Collection Amins in accordance with the U.P. Collection Amins Service Rules, 1974 (hereinafter referred to as the ‘Rules’), which provide that 35 per cent of the vacancies shall be filled up by regular appointment from Seasonal Collection Amins. There were 17 posts of Collection Amins lying vacant in 2004. An advertisement was published on 24th December, 2004 for recruitment against the said vacancies of Collection Amins. These Collection Amins are enjoined with the duty of collection of land revenue as per Rule 208 of the U.P. Zamindari Abolition and Land Reforms Rules, 1952 and the manner in which they have to proceed for collection of land revenue and maintain records are further provided in Rules 222-A to Rule 234-E of the said Rules of 1952. 5. The appellants in both the appeals and the petitioners were all aspirants for appointment on the post of Collection Amin, as they were working as Seasonal Collection Amins. 5. The appellants in both the appeals and the petitioners were all aspirants for appointment on the post of Collection Amin, as they were working as Seasonal Collection Amins. The relevant rules, which have been extracted and quoted in the impugned judgment of the learned Judge, provide that such Seasonal Collection Amins, who have a minimum average of 70 per cent collection in the last 4 Fasals, would be considered for regular appointment. Selections were conducted and the appellants herein came out successful. The said selections were challenged by the petitioners on the ground that selections were made contrary to the aforesaid Rules and the manner of computation of merit of the candidates vis-a-vis minimum of 70 per cent collection, was incorrectly made as a result whereof, selections were vitiated. The petitioners also claimed that they were senior to the appellants and, therefore, they ought to have been considered and selected as against the appellants. 6. The learned Judge, upon appreciation of facts which emerged from the pleadings of the parties, recorded a finding of fact that the Selection Committee, instead of calculating the average recovery percentage of 70 per cent of the last 4 Fasals, travelled beyond the Rules and based the calculation on the strength of the figures for more than 4 Fasals. The learned Judge also found that the recovery percentage subsequent to 30th June, 2005 could not have been taken into account. 7. Learned counsel for the appellants urged that the learned Judge has recorded the engagement of the appellants for one Fasal in 1408 and 1409 Fasali whereas in 1406 and 1407 Fasali, they were engaged for both Fasals. They urged that the calculation was, therefore, correctly made by the Selection Committee and that the learned Judge has erroneously construed the calculation to be beyond the Rules. 8. Learned Standing Counsel as well as the learned counsel for the petitioners urged that the proceedings, which have been recorded and relied upon by the learned counsel for the appellants dated 29th October, 2005, clearly indicate that the appellants had worked for more than 4 Fasals but while making calculation and the basis made for selection, the Selection Committee has recorded its conclusion on the basis of 4 Fasalis. In view of this, the contention raised on behalf of the appellants cannot be accepted. 9. In view of this, the contention raised on behalf of the appellants cannot be accepted. 9. We have given our anxious consideration to the submissions advanced and have also perused the records particularly the proceedings of the Selection Committee dated 29th of October, 2005. 10. A perusal of the proceedings of the Selection Committee would leave no room for doubt that the Selection Committee has proceeded to consider the collection average of the past 4 Fasalis, which obviously is not in accordance with the Rules. Not only this, the appellants could not successfully assail the finding of the learned Judge which also records the consideration of the collection of 1412 Fasali in addition to the aforesaid 4 Fasali years. 11. In our considered opinion, the learned Judge was perfectly justified in arriving at the findings on the basis of material available on record and thereafter concluding that the selections had been made contrary to the provisions contained in Rule 5 (1) read with Rule 17 (A) of the Rules. In support of the conclusion drawn, the learned Judge has very succinctly and appropriately drawn the distinction between the words “Fasal” and “Fasali”. The meaning of the said words are defined in the Law Lexicon 1997 Edition at page 713, which read as follows : “Fasl. (A.) Harvest; fasli-jyasti, fasl-kami. (M.) Addition or reduction in the revenue on account of double crops, or the loss of one. (Bad. Pow. iii. 99) Fasli. Of or belonging to a harvest; the Mahommadan official era. (Bad. Pow. II. 13, 14) Agricultural lease in which the word ‘Fasli’ is used unless there are indications that the intention of the parties was to use the word in its strict sense, should be held to be for the agricultural year. (LR 2 A. 139 (Rev.) Fasli or Fusli. What relates to the seasons; the harvest year. (Mac. Mhn. Law.) The name of an era instituted by Akbar, who made the samwat year agree with that of the hijra by arbitrarily cutting 649 years off from the former. This was done in the year 963 of the hijra which year was therefore also 963 fasli; but fasli or harvest year was necessarily counted according to the seasons while that of the hijra is the lunar year of only 354 days. Thus a difference of several years has arisen between the hijra year and the fasli year. This was done in the year 963 of the hijra which year was therefore also 963 fasli; but fasli or harvest year was necessarily counted according to the seasons while that of the hijra is the lunar year of only 354 days. Thus a difference of several years has arisen between the hijra year and the fasli year. (See also 1896 AWN 123). Fasli-jasti (Tel.) An extra crop, one more than usual; an extra cess imposed on land bearing more than one annual crop.” 12. The aforesaid definitions would, therefore, reflect that the word Fasal means crop whereas the word Fasali is related to the revenue year, which ordinarily in the State of Uttar Pradesh comprises of two harvest seasons—the Kharif and the Rabi. Learned counsel for the appellants could not point out any material to the contrary to persuade us to opine otherwise. 13. We find no good reason to differ from the view taken by the learned Judge. 14. There is no merit in both the appeals, they fail and are accordingly dismissed but without any order as to costs. ————