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2015 DIGILAW 1709 (ALL)

Vinod Kumar Sharma v. State of U. P.

2015-07-02

RAM SURAT RAM (MAURYA)

body2015
JUDGMENT Ram Surat Ram (Maurya), J. 1. Heard Sri Rakesh Pandey, along with Sri A.K. Tripathi, and Sri A.K. Sinha, Standing Counsel, for the review applicants/respondents and Sri V.K. Srivastava, Sri D.S. Khan and Sri R.M. Saggi, in opposition of review application, for the petitioners. Writ-A No. 76642 of 2011 was filed by Vinod Kumar Sharma and Chandrama Singh Yadav, for quashing the order of District Magistrate, Varanasi, dated 22.11.2011, regularizing services of Manoj Kumar, Rajesh Kumar, Anand Prakash Srivastava, Ajay Kumar Srivastava, Nitesh Kumar Singh, Sudhir Kumar Pandey and Manoj Kumar on the post of Collection Amin. Writ-A No. 71829 of 2011 was filed by Deependra Kumar Srivatsava, for quashing order of District Magistrate, Varanasi, dated 22/23.11.2011, regularizing services of Nitesh Kumar Singh, Sudhir Kumar Pandey and Ajay Kumar Srivastava, on the post of Collection Amin. Writ-A No. 75164 of 2011 was filed by Rajendra Kumar Gupta, Doodh Nath, Karunesh Bahadur Srivastava, Jitendra Kumar Rai, Ram Narain Yadav, Abdul Haseen Siddiqui and Ramesh Kumar Gupta for quashing order of District Magistrate, Varanasi, dated 22/23.11.2011, regularizing services of Nitesh Kumar Singh, Sudhir Kumar Pandey and Ajay Kumar Srivastava, on the post of Collection Amin. Writ petitions were consolidated and heard together and allowed by order dated 13.3.2013 and order of District Magistrate, dated 22.11.2011 was set aside and District Magistrate, Varanasi was directed to consider the petitioners and other candidates for regularization on the post of Collection Amin, according to eligibility list (Annexure-11) to Writ-A No. 76642 of 2011. 2. Thereafter, the petitioners of Writ-A No. 75164 of 2011 and the petitioner of Writ-A No. 71829 of 2011 filed applications for correction of order dated 13.3.2013, through their Counsel, Sri Vinod Kumar Srivastava, Advocate. In prayer clause of the correction applications, a long prayer was made but during arguments, it was argued that in paragraphs-9 and 10 of judgment dated 13.3.2013, in place of Annexure-11, Annexure-5 be written, as it was a typographical error. Bona fide relying upon statement of the Counsel that due to typographical error, number of annexure has been wrongly mentioned, correction applications were allowed. Now, Ajay Kumar Srivastava and Nitesh Kumar Singh have filed this application for review of the aforesaid order. 3. In order to appreciate, the controversy raised in review application, the facts of the cases are required to be mentioned again. Now, Ajay Kumar Srivastava and Nitesh Kumar Singh have filed this application for review of the aforesaid order. 3. In order to appreciate, the controversy raised in review application, the facts of the cases are required to be mentioned again. There were total 150 sanctioned posts of Collection Amins, in Collectorate of district Varanasi. According to Rule 5 of U.P. Collection Amins Services Rules, 1974 (as amended in 1992), 35% of total posts have to be filled up by regularization of Seasonal Collection Amins, (i) who have satisfactorily worked for four crop seasons (ii) who have not attained age of 45 years. The word "satisfactory work" has been defined as good conduct from beginning to end of service and 70% recovery in last four crop seasons. 4. In the year 2011, there were total 32 vacancy of the quota of Seasonal Collection Amins, out of which 8 posts were reserved for Schedule Castes, 6 posts were reserved for 'Other backward Classes' and 18 posts for General category. District Magistrate directed for regularization of services of Seasonal Collection Amins on the aforesaid posts. Officer In-charge (Collection) wrote letters dated 12.5.2011 to Sub-Divisional Magistrates of the district to submit their reports for regularization in prescribed proforma. Recovery details of four crop seasons were prescribed as (i) Rabi crop of 1415 F, (ii) Kharif crop of 1416 F, (iii) Rabi crop of 1416 F and (iv) Kharif crop of 1417 F. On the basis of reports submitted by all Sub-Divisional Magistrates of the district, a list of total 103 candidates was prepared, giving particulars of seniority numbers also of the candidates (filed as Annexure-11 to Writ-A No. 76642 of 2011). Selection Committee, constituted by District Magistrate, held meeting and prepared tentative Select List (filed as Annexure-1 to Writ-A No. 76642 of 2011) of 6 selected candidates on 8.9.2011 (including one Jai Shankar Pandey, who had attained age of 45 years) and invited representation/objections from eligible candidates on that list. After receiving representation, from the candidates, Selection Committee, held meeting and prepared final Select List (filed as Annexure-2 to Writ-A No. 76642 of 2011) of 7 selected candidates on 22.11.2011. This final Select List has been challenged in aforementioned writ petitions. 5. After receiving representation, from the candidates, Selection Committee, held meeting and prepared final Select List (filed as Annexure-2 to Writ-A No. 76642 of 2011) of 7 selected candidates on 22.11.2011. This final Select List has been challenged in aforementioned writ petitions. 5. All the petitioners raised common ground in their writ petitions that 70% recovery in last four crop seasons should be calculated, including the amount deposited by the defaulters, directly in treasury of Collector or concerned department/bank etc. after issue of recovery citation and not only on the basis of actual recovery done of Seasonal Collection Amins as held by this Court in Lal Bahadur Singh and others v. State of U.P. and others 2011 (113) RD 813 (Alld.). This Court, relying upon Lal Bahadur Singh's case (supra) held that after initiation of recovery proceeding, first step, which has to be taken by Collection Amin was to issue/serve citation for deposit on the defaulter. Format of citation requires the defaulter to deposit the amount in treasury. As such, after issue of recovery citation, the amount deposited by the defaulters, directly in treasury or concerned department/bank etc. was also required to accounted in the total recovery made by Seasonal Collection Amin, in order to consider his total recovery. While selection was made only on the basis of actual recovery done by Seasonal Collection Amins. As such selection list dated 22.11.2011 was found to be illegal and quashed by judgment dated 13.3.2013. 6. However, in paragraph-9 of the judgment, it has been mentioned that suitability list of 103 candidates as prepared by Selection Committee (filed as Annexure-11 to the writ petition) does not suffer from any defect and regularization ought to have been considered on its basis. In operative portion of the order (paragraph-10) also District Magistrate was directed to consider the claim of regularization of the petitioners and other candidates according to eligibility list (Annexure-11 to the writ petition). 7. Mention of Annexure-11 in paragraphs-9 and 10 of the judgment was contrary to findings/reasons recorded in judgment dated 13.3.2013, for allowing the writ petitions, as Annexure-11 to Writ-A No. 76642 of 2011, is a list of candidates, which was prepared on the basis of actual collection made by the candidates as mentioned in it. 7. Mention of Annexure-11 in paragraphs-9 and 10 of the judgment was contrary to findings/reasons recorded in judgment dated 13.3.2013, for allowing the writ petitions, as Annexure-11 to Writ-A No. 76642 of 2011, is a list of candidates, which was prepared on the basis of actual collection made by the candidates as mentioned in it. As stated above, Officer In-charge (Collection) through letters dated 12.5.2011 called for reports from Sub-Divisional Magistrates of the district, in prescribed proforma, giving recovery details of four crop seasons namely (i) Rabi crop of 1415 F, (ii) Kharif crop of 1416 F, (iii) Rabi crop of 1416 F and (iv) Kharif crop of 1417 F. On the basis of reports submitted by all Sub-Divisional Magistrates of the district, a list of total 103 candidates was prepared, giving particulars of their seniority numbers also, which was filed as Annexure-11 to Writ-A No. 76642 of 2011. This was an error of accidental slip in judgment dated 13.3.2013 and is liable to be corrected. 8. However, the correction applications, were allowed on incorrect facts, by order dated 12.7.2013. Annexure-5 to Writ-A No. 76642 of 2011, is not a list, which was considered by Selection Committee. Annexure-5 to Writ-A No. 76642 of 2011, has been prepared on the basis of recovery of four crop seasons namely (i) Kharif crop of 1416 F, (ii) Rabi crop of 1416 F, (iii) Kharif crop of 1417 F and (iv) Rabi crop of 1417 F. while four crop seasons namely (i) Rabi crop of 1415 F, (ii) Kharif crop of 1416 F, (iii) Rabi crop of 1416 F and (iv) Kharif crop of 1417 F, were required to be considered. Genuineness of Annexure-5 to Writ-A No. 76642 of 2011 has been denied by Ramjeet Maurya, Tahsildar (Sadar) Varanasi, in his affidavit filed along with recall application filed 2.7.2014. Thus the order dated 12.7.2013, correcting judgment dated 13.3.2013 is illegal and liable to be reviewed. 9. It may be mentioned that Manoj Kumar and others (the respondents in writ petitions), filed Special Appeal No. 446 of 2013 from judgment/order dated 13.3.2013, which was dismissed summarily, by order dated 22.3.2013. State of U.P. and others filed Special Appeal Defective No. 643 of 2014 from order dated 12.7.2013, which was dismissed summarily, by order dated 24.7.2014. 9. It may be mentioned that Manoj Kumar and others (the respondents in writ petitions), filed Special Appeal No. 446 of 2013 from judgment/order dated 13.3.2013, which was dismissed summarily, by order dated 22.3.2013. State of U.P. and others filed Special Appeal Defective No. 643 of 2014 from order dated 12.7.2013, which was dismissed summarily, by order dated 24.7.2014. Now, Ajay Kumar Srivastav, Nitesh Kumar Singh (the respondents of the writ petitions) have filed review application for review of the order dated 12.7.2013. State of U.P. has also filed an application for recall of the order dated 12.7.2013. As such this matter was again placed before this Court. By order dated 24.4.2015, this Court directed to list all the writ petitions together and the matter was heard in detail. On the basis of judgment of Supreme Court, in Kunhayarnmed v. State of Kerala AIR 2000 SC 2587 ., the Counsel for the petitioners, submitted that order of this Court dated 12.7.2013 has been merged in the order of Division Bench dated 24.7.2014 passed in Special Appeal Defective No. 643 of 2014 as such this Court would have no jurisdiction to review the order dated 12.7.2013. 10. Supreme Court, in Kunhayammed v. State of Kerala AIR 2000 SC 2587 , held as follows-To sum up, our conclusions are: "(i) Where an appeal or revision is provided against an order passed by a Court, Tribunal or any other authority before superior forum and such superior forum modifies, reverses or affirms the decision put in issue before it, the decision by the subordinate forum merges in the decision by the superior forum and it is the latter which subsists, remains operative and is capable of enforcement in the eye of law. (ii) The jurisdiction conferred by Article 136 of the Constitution is divisible into two stages. The first stage is upto the disposal of prayer for special leave to file an appeal. The second stage commences if and when the leave to appeal is granted and the special leave petition is converted into an appeal. (iii) The doctrine of merger is not a doctrine of universal or unlimited application. It will depend on the nature of jurisdiction exercised by the superior forum and the content or subject-matter of challenge laid or capable of being laid shall be determinative of the applicability of merger. (iii) The doctrine of merger is not a doctrine of universal or unlimited application. It will depend on the nature of jurisdiction exercised by the superior forum and the content or subject-matter of challenge laid or capable of being laid shall be determinative of the applicability of merger. The superior jurisdiction should be capable of reversing, modifying or affirming the order put in issue before it. Under Article 136 of the Constitution the Supreme Court may reverse, modify or affirm the judgment-decree or order appealed against while exercising its appellate jurisdiction and not while exercising the discretionary jurisdiction disposing of petition for special leave to appeal. The doctrine of merger can therefore be applied to the former and not to the latter. (iv) An order refusing special leave to appeal may be a non-speaking order or a speaking one. In either case it does not attract the doctrine of merger. An order refusing special leave to appeal does not stand substituted in place of the order under challenge. All that it means is that the Court was not inclined to exercise its discretion so as to allow the appeal being filed. (v) If the order refusing leave to appeal is a speaking order, i.e., gives reasons for refusing the grant of leave, then the order has two implications. Firstly, the statement of law contained in the order is a declaration of law by the Supreme Court within the meaning of Article 141 of the Constitution. Secondly, other than the declaration of law, whatever is stated in the order are the findings recorded by the Supreme Court which would bind the parties thereto and also the Court, tribunal or authority in any proceedings subsequent thereto by way of judicial discipline, the Supreme Court being the Apex Court of the country. But, this does not amount to saying that the order of the Court, tribunal or authority below has stood merged in the order of the Supreme Court rejecting the special leave petition or that the order of the Supreme Court is the only order binding as res judicata in subsequent proceedings between the parties. (vi) Once leave to appeal has been granted and appellate jurisdiction of Supreme Court has been invoked the order passed in appeal would attract the doctrine of merger; the order may be of reversal, modification or merely affirmation. (vi) Once leave to appeal has been granted and appellate jurisdiction of Supreme Court has been invoked the order passed in appeal would attract the doctrine of merger; the order may be of reversal, modification or merely affirmation. (vii) On an appeal having been preferred or a petition seeking leave to appeal having been converted into an appeal before the Supreme Court the jurisdiction of High Court to entertain a review petition is lost thereafter as provided by sub-rule (1) of Rule 1 of Order XLVII, CPC." 11. Supreme Court again in MRF Ltd. v. Manohar Parrikar (2010) 11 SCC 374 , held that in our view, the principle of merger essentially refers to the merging of the orders passed by the superior Courts with that of the orders passed by a subordinate Court. This Court in Shankar Ramchandra Abhyankar v. Krishnaji Dattatreya Bapat AIR 1970 SC 1 , has laid down the condition as to when there can be a merger of the orders of the superior Court with that of the orders passed by the lower Court. This Court stated, that, if any judgment is pronounced by the superior Court in the exercise of its appellate or revisional jurisdiction after issue of a notice and a full hearing in the presence of both the parties, then it would replace the judgment of the lower Court. Thus, constituting the judgment of the superior Court the only final judgment to be executed in accordance with law by the Court below. The merger is essentially of the operative part of the order and the principle of merger of the order of the subordinate Court with the order of the superior Court cannot be applied when there is no order made by the superior Court on merits and the controversy between the parties has not been looked into by the superior Court. 12. State of U.P. and others filed Special Appeal Defective No. 643 of 2014 from order dated 12.7.2013, which was dismissed by order dated 24.7.2014, without issue of notice. Now, Ajay Kumar Srivastav, Nitesh Kumar Singh (the respondents of the writ petitions) have filed review application for review of the order dated 12.7.2013. As such there is no merger and order of dismissal will not preclude this Court to correct the mistake apparent on face of record. In view of the aforesaid discussions order dated 12.7.2013 is reviewed and recalled. As such there is no merger and order of dismissal will not preclude this Court to correct the mistake apparent on face of record. In view of the aforesaid discussions order dated 12.7.2013 is reviewed and recalled. 13. Now, the question arise as to what order has to be passed, on the correction applications filed by some of the petitioners. As held in paragraph-7, (supra), that mention of Annexure-11 in paragraphs-9 and 10 of the judgment was contrary to findings/reasons recorded in judgment dated 13.3.2013, for allowing the writ petitions and were an accidental slip, as Annexure-11 to Writ-A No. 76642 of 2011, is a list of candidates, which was prepared on the basis of actual collection made by the candidates, as mentioned in it, while this Court directed to consider total recovery after issue of recovery citation, including the amount deposited by the defaulters, directly in treasury or concerned department/bank etc. In fact, in correction application also prayer was made in this respect. Supreme Court in Dwaraka Das v. State of M.P. AIR 1999 SC 1031 , Jayalakshmi Coelho v. Oswald Joseph Coelho AIR 2001 SC 1084 , State of Punjab v. Darshan Singh AIR 2003 SC 4179 : 2004 (16) AIC 336 (SC), and Srihari v. Syed Maqdoom Shah 2014 (143) AIC 33 (SC) : 2014 (107) ALR 368 (SC) : 2015 (126) RD 245 (SC) : (2015) 1 SCC 607 , held that inherent powers would generally be available to all Courts and authorities irrespective of the fact whether the provisions contained under section 152, CPC may or may not strictly apply to any particular proceeding to correct error of the nature of accidental slip. Supreme Court in Alil Mollah v. State of W.B. (1996) 5 SCC 369 , M.S. Ahlawat v. State of Haryana (2000) 1 SCC 278 , Nirmal Jeet Kaur v. State of M.P. (2004) 7 SCC 558 : 2004 (23) AIC 708 (SC), and Mayuram Subramanium Srinivasan v. CBI (2006) 5 SCC 752 , held that to perpetuate an error is no virtue but to rectify it is a compulsion of judicial conscience. 14. 14. The correction applications filed by the petitioners of Writ-A No. 75164 of 2011 and the petitioner of Writ-A No. 71829 of 2011 are allowed and following correction are made in the judgment dated 13.3.2013 "(I) First sentence of paragraph-9 which reads as "For the aforesaid discussion it is found that suitability list of 103 candidates as prepared by the Selection Committee (filed as Annexure-11 to the writ petition) does not suffer from any defect and regularization ought to have been considered on its basis." is deleted and shall be read as such. (II) In fourth line of paragraph-10 words "according to the eligibility (filed as Annexure-11 to the writ petition)" are deleted and in its place words "taking in to account of total recovery, after issue/service of recovery citation by Seasonal Collection Amin, including the amount deposited by the defaulters, directly in treasury or concerned department/bank etc." are replaced/substituted and be as read as such." 15. It has been brought on record that after order dated 13.3.2013, a fresh selection was made on 6.7.2013 and a list of 11 selected candidates was declared and on its basis appointments were made on 10.7.2013. District Magistrate/Selection Committee will re-examine matter/representation of the eligible persons for their appointments in the quota of Seasonal Collection Amin, within a period of three months from the date of presentation of certified copy of this order before him. In case, any other candidate is selected in pursuance of this order and is appointed then, his seniority will be re-affixed according to his original seniority as Seasonal Collection Amin. With the aforesaid directions, review application is allowed and order dated 12.7.2013 is recalled. The correction applications filed by the petitioners of Writ-A No. 75164 of 2011 and the petitioner of Writ-A No. 71829 of 2011 are allowed. Judgment dated 13.3.2013 is corrected as mentioned in paragraph-14 (supra). ………………