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Allahabad High Court · body

2015 DIGILAW 2646 (ALL)

ARJUN PRASAD PATEL v. STATE OF U. P.

2015-08-28

MAHESH CHANDRA TRIPATHI

body2015
JUDGMENT Hon’ble Mahesh Chandra Tripathi, J.—Heard Shri Pankaj Kumar Srivastava, learned counsel for the petitioner and Shri S.C. Pathak, learned Standing Counsel for the respondents. 2. By means of present writ petition, the petitioner has prayed for quashing the impugned order dated 1.12.2012 and the order dated 5.10.1999 passed by the District Magistrate, Allahabad-respondent No. 2. He has further prayed for direction to the respondents not to interfere in his peaceful functioning and to give his salary regularly month to month basis and provide all the benefits of service and other emoluments. 3. It appears from the record that the petitioner was engaged as Seasonal Collection Amin in Tehsil Soraon, District Allahabad in the year 1991. Since he was not regularized in service, he filed a Writ Petition No. 4585 of 1998. The said writ petition was disposed of on 11.2.1998 with direction to the District Magistrate, Allahabad to consider the claim of petitioner for regularization in service as per Collection Amins Rules, 1974 as amended in 1992 and pass appropriate orders within two months. In pursuance thereof, the District Magistrate, Allahabad passed an order on 10.7.1998 accepting the claim of the petitioner and directed that the petitioner be regularized and appointed as Collection Amin. By the order dated 25.7.1998 the Sub Divisional Magistrate, Phoolpur, District Allahabad appointed the petitioner as Collection Amin on one year probation under the U.P. Collection Amin’s Services Rules, 1974 against the substantive vacancy, though his appointment was temporary. The petitioner joined on the said post on 27.7.1998 and his probation had come to an end on 26.7.1999. 4. By the order dated 5.10.1999, the petitioner’s services had been dispensed with in accordance with U.P. Temporary Government Servant (Termination of Services) Rules, 1975 only on the ground that his services were not further required. The petitioner filed another Writ Petition No. 46858 of 1999. This Court allowed the said writ petition on 9.8.2007 and quashed the order dated 5.10.1999. The petitioner was held entitled to all consequential benefits. Against said order the District Magistrate, Allahabad filed Special Appeal (Defective) No. 141 of 2008, which was allowed on 9.8.2007 and the order dated 9.8.2007 was set aside and the matter had been remanded back to the learned Single Judge for decision afresh in the light of the observations made in the said judgment and order, taking into consideration the pleadings taken by the parties. 5. 5. When the matter came up for consideration before the learned Single Judge, the petitioner relied upon the decision of the learned Single Judge in the case of Rajendra Prasad v. The Collector/District Magistrate, Allahabad and the decision of the Division Bench of this Court dated 14.12.2009 passed in Special Appeal (Defective) No. 85 of 2008 (The Collector/District Magistrate, Allahabad and another v. Rajendra Prasad) whereby the Division Bench has dismissed the Special Appeal and upheld the judgment of the learned Single Judge passed in the case of Rajendra Prasad on the ground that the case of the petitioner is similar to the case of Rajendra Prasad. The judgment passed in Collector/District Magistrate, Allahabad and others v. Rajendra Prasad (supra) is reproduced hereinafter : “Heard Sri M.S. Pipersania, learned standing counsel appearing for the State-respondents. Sri Gyan Bahadur Singh Patel, appears for the petitioner-respondent. In this Special Appeal pending since 22.1.2008, learned standing counsel wants to file some additional documents. The prayer is rejected at the stage of hearing of this appeal. The District Magistrate, Allahabad is aggrieved by the judgment dated 25.7.2007 by which this Court held that the order by which the petitioner’s services as collection peon were terminated as a temporary employee was illegal inasmuch as the petitioner was appointed on permanent vacancy, and that the impugned order did not indicate that the work and conduct of the petitioner was found to be in any way unsatisfactory during the period of probation. It was further held by the learned Judge that at the time of passing of the impugned order, dispensing with the services of the petitioner, the petitioner was duly regularized in accordance with law, and thus the competent authority was required to act in accordance with the relevant service rules to terminate his services. It is stated by the learned standing counsel for the appellants that the petitioner-respondent was appointed under the threat of contempt, of non- compliance of the order dated 11.2.1998 in writ petition No. 4585 of 1998 by which the District Magistrate/Collector was required to consider the petitioner’s claim for regularization. The petitioner was appointed by the Sub Divisional Magistrate, Handia, Allahabad on 25.7.1998 as Collection Peon on probation. The petitioner joined on 27.7.1998. The petitioner was appointed by the Sub Divisional Magistrate, Handia, Allahabad on 25.7.1998 as Collection Peon on probation. The petitioner joined on 27.7.1998. His probation period ended on 26.7.1999, however, he was permitted to continue to work, and that thereafter by order dated 5.10.1999, he was removed on the ground that his services were no longer required. It is submitted by the learned standing counsel relying on para 2- (a) of the counter-affidavit filed in the writ petition that in accordance with U.P. Collection Amin Service Rules, 1974 as amended in the year 1992, the seniority list of seasonal collection amins is prepared in accordance with length of service and merit, and accordingly lists A, B and C were prepared. The petitioner’s representation was decided on 30.9.1998 after which he was appointed on probation for a period of one year, and that thereafter in the list prepared on the basis of seniority/merit, it was found that the petitioner was not eligible to be regularized under 35 % quota. A notice was given to the petitioner on 21.7.1999, and that thereafter by order dated 5.10.1999 his services were terminated. The petitioner was regularized under 35 % quota by the Sub District Magistrate, in a permanent vacancy after considering his eligibility and performance. There was nothing to show that his performance had fallen below standard or was unsatisfactory during the period of probation. The submission of the learned standing counsel that the petitioner was not eligible to be appointed cannot be a ground of termination, without any show-cause notice and departmental enquiry after he was regularized on substantive vacancy. If there was any illegality in the appointment and regularization of the petitioner, the procedure provided in the U.P. Government Servants (Discipline and Appeal) Rules, 1999 was required to be followed. Sri Pipersania, learned standing counsel submits that though the petitioner had not taken a ground and has not disclosed the notice dated 21.7.1999 sent to him and which is specifically mentioned in the counter-affidavit, we do not find that the mention of the notice dated 21.7.1999, which is not annexed with the counter-affidavit would make the position any different. Even if the petitioner was appointed on temporary basis, the order terminating his services could not have been passed under the U.P. Temporary Government Servant (Termination of Service) Rules, 1975, without giving a show-cause notice. Even if the petitioner was appointed on temporary basis, the order terminating his services could not have been passed under the U.P. Temporary Government Servant (Termination of Service) Rules, 1975, without giving a show-cause notice. On the facts stated in reply the termination is not a termination simplicitor on the ground that his services were no longer required, as a temporary Government employee. The defence taken by the appellants-State is that the petitioner’s appointment itself was illegal and thus the order is punitive in nature. We do not find any error in the judgment of the learned Single Judge holding that a person appointed by the appointing authority on substantive post on the basis of his work and conduct, could not have been terminated under the Rules of 1975. The special appeal is dismissed.” 6. Following the judgment dated 25.7.2007 passed in Writ Petition No. 46856 of 1999 filed by Rajendra Prasad, which was upheld by the Division Bench in Collector/District Magistrate, Allahabad and others v. Rajendra Prasad (supra), the Writ Petition No. 46858 of 1999 filed by the petitioner was allowed on 9.8.2007 and the order dated 5.10.1999 was set aside. Against the said order, the Collector/District Magistrate filed Special Appeal No. 484 of 2012 which had been allowed vide order dated 20.3.2012 and the matter had been remanded back to the learned Single Judge for deciding the writ petition afresh. The Division Bench has observed as follows: “We have considered the submissions made by the learned counsel for the parties. The Division Bench Judgment dated 14.12.2009 passed in Special Appeal (Defective) No. 85 of 2008 pertaining to the case of Rajendra Prasad upheld the Judgment of the learned Single Judge. The Division Bench held that even if the petitioner (Rajendra Prasad) was appointed on temporary basis, the order terminating his services could not have been passed under the Termination Rules, 1975 without giving a Show-cause-Notice. The Division Bench further observed that the termination of the services of the petitioner (Rajendra Prasad) was not a termination simplicitor in view of the defence taken by the respondents-appellants-State that the appointment of the petitioner in the said case (Rajendra Prasad) itself was illegal, and thus, the termination was punitive in nature. The Division Bench further observed that the termination of the services of the petitioner (Rajendra Prasad) was not a termination simplicitor in view of the defence taken by the respondents-appellants-State that the appointment of the petitioner in the said case (Rajendra Prasad) itself was illegal, and thus, the termination was punitive in nature. The Division Bench in the said Judgment and Order dated 14.12.2009 also noted that “the petitioner was regularized under 35% quota by the Sub-District Magistrate, in a permanent vacancy after considering his eligibility and performance. There was nothing to show that his performance had fallen below standard or was unsatisfactory during the period of probation”. The Division Bench in the Judgment and Order dated 18.2.2008 passed in Special Appeal (Defective) No. 141 of 2008 in regard to the case of the petitioner-respondent herein noted the submissions made by the learned Standing Counsel regarding promotion quota being of only 17 vacancies while the name of the petitioner-respondent appearing at Serial No. 29 in the Seniority-List of the Seasonal Collection Amins, and in the circumstances, the offer of appointment to the petitioner-respondent being in contravention of the 1974 Rules which provided for filling-up 35% vacancies by promotion. Having noted the said submissions made by the learned Standing Counsel, the Division Bench in the Judgment and Order dated 18.2.2008 observed that the learned Single Judge had not considered the Issue as to whether the petitioner-respondent had been appointed in contravention of the provisions of the 1974 Rules. Accordingly, the Division Bench set-aside the Judgment and Order dated 9.8.2007 passed by the learned Single Judge and remanded the matter to the learned Single Judge for deciding afresh. It will thus be noticed that the Division Bench directed for consideration of the validity of the appointment of the petitioner-respondent in the light of the submissions made by the learned Standing Counsel before the Division Bench. The said submissions were evidently based on the averments made in the Counter-affidavit filed on behalf of the respondents-appellants in the Writ Petition. It will thus be noticed that the Division Bench directed for consideration of the validity of the appointment of the petitioner-respondent in the light of the submissions made by the learned Standing Counsel before the Division Bench. The said submissions were evidently based on the averments made in the Counter-affidavit filed on behalf of the respondents-appellants in the Writ Petition. The basic submission, as is evident from the Counter-affidavit and the Supplementary Counter-affidavit filed on behalf of the respondents-appellants in the Writ Petition, appears to be that while only 17 vacancies could be filled-up in promotion quota, the petitioner-respondent whose name appeared at Serial No. 29 in the Seniority-List of the Seasonal Collection Amins was given appointment on the post of Collection Amin, which was contrary to the 1974 Rules. The Division Bench Judgment dated 14.12.2009 passed in Special Appeal (Defective) No. 85 of 2008 in respect of the said Rejendra Prasad, as noted above, proceeded on the basis that the petitioner in the said case had been regularized under 35% quota by the Sub-Divisional Magistrate in a permanent vacancy after considering his eligibility and performance. The questions regarding the extent of promotional quota and the position of the petitioner in the said case in the Seniority-List were not considered in the said Judgment and Order dated 14.12.2009 passed in Special Appeal (Defective) No. 85 of 2008. In the present case, the Division Bench in the Judgment and Order dated 18.2.2008 specifically directed the said aspect to be considered by the learned Single Judge after remand. A perusal of the Judgment and Order dated 14.11.2011 passed by the learned Single Judge shows that the learned Single Judge has relied upon the Division Bench Judgment dated 14.12.2009 passed in the case of Rajendra Prasad, and has not specifically dealt-with the validity of the appointment of the petitioner-respondent in the light of the observations made by the Division Bench in the Judgment and Order dated 18.2.2008. In view of the above, we are of the opinion that the present Special Appeal deserves to be allowed, and the same is accordingly allowed. The Judgment and Order dated 14.11.2011 passed by the learned Single Judge is set-aside. In view of the above, we are of the opinion that the present Special Appeal deserves to be allowed, and the same is accordingly allowed. The Judgment and Order dated 14.11.2011 passed by the learned Single Judge is set-aside. The matter is remanded to the learned Single Judge for deciding the Writ Petition afresh keeping in view the directions given in the Judgment and Order dated 18.2.2008 passed in Special Appeal (Defective) No. 141 of 2008 as also the observations made in the present Judgment herein-above. However, on the facts and in the circumstances of the case, there will be no order as to cost." 7. Thereafter, learned Single Judge found that the impugned order had been passed without giving any opportunity of hearing to the petitioner. The said Writ Petition No. 46858 of 1999 was disposed of on 11.10.2012 relegating the matter to the District Magistrate, Allahabad to pass a fresh order after giving opportunity of hearing to the petitioner. By the impugned order the District Magistrate, Allahabad has rejected the representation of the petitioner dated 16.11.2012 stating that the order dated 5.10.1999 passed by the then District Magistrate, Allahabad is legal and no interference and modification is required to be made in the order. 8. Learned counsel for the petitioner submits that the petitioner was engaged as Seasonal Collection Amin in the office of respondent No. 3 in the year 1991. When his services were not regularized by the respondents, he filed a Writ Petition No. 4583 of 1998, which was disposed of on 11.2.1998 with direction to the Collection/District Magistrate, Allahabad to consider the case of petitioner for regularization. The District Magistrate passed an order on 10.7.1998 for regularization of the petitioner as Collection Amin. The Sub Divisional Magistrate, Phoolpur appointed the petitioner as Collection Amin on 25.7.1998 for one year probation. The petitioner joined on 27.7.1998 and his probation period had come to an end on 26.7.1999. By the order dated 5.10.1999 the petitioner was removed from service on the ground that his services were no longer required. The petitioner filed the Writ Petition No. 46858 of 1999, which was allowed on 9.8.2007. The District Magistrate, Allahabad filed the Special Appeal Defective No. 141 of 2008, which was allowed and the matter was remanded back to learned Single Judge. 9. The petitioner filed the Writ Petition No. 46858 of 1999, which was allowed on 9.8.2007. The District Magistrate, Allahabad filed the Special Appeal Defective No. 141 of 2008, which was allowed and the matter was remanded back to learned Single Judge. 9. Learned counsel for the petitioner submits that when the matter came up for consideration before learned Single Judge, the petitioner relied the judgment of learned Single Judge dated 25.7.2007 passed in Writ Petition No. 46856 of 1999 (Rajendra Prasad v. The Collector/District Magistrate, Allahabad) and the judgment passed by the Division Bench of this Court dated 14.12.2009 in Special Appeal Defective No. 85 of 2008 (Collector/District Magistrate, Allahabad and another v. Rajendra Prasad) whereby the Division Bench has upheld the judgment of learned Single Judge passed in case of Rajendra Prasad on the ground that the case of petitioner is similar to the case of Rajendra Prasad. The said Writ Petition No. 46858 of 1999 filed by the petitioner was allowed on 20.3.2012. Against the said order, the District Magistrate filed Special Appeal No. 484 of 2012, which was allowed on 20.3.2012 and the matter was remanded back to learned Single Judge. The said writ petition was finally disposed of on 11.10.2012 and the matter was relegated to the District Magistrate, Allahabad to pass a fresh order.. 10. Learned counsel for the petitioner submits that the order dated 5.10.1999 passed by the District Magistrate, Allahabad, by which the petitioner’s services as Collection Peon were terminated as a temporary employee, was illegal inasmuch as the petitioner was appointed on permanent vacancy and that the impugned order did not indicate that the work and conduct of the petitioner was found to be in any way unsatisfactory during the period of probation. At the time of passing of the impugned order dispensing with the services of the petitioner, the petitioner was duly regularized in accordance with law and thus the competent authority was required to act in accordance with the relevant service rules to terminate his services. 11. It is submitted that the writ petitions filed by Rajendra Prasad and Arjun Prasad were allowed by the same learned Single Judge by similar orders although of different dates. 11. It is submitted that the writ petitions filed by Rajendra Prasad and Arjun Prasad were allowed by the same learned Single Judge by similar orders although of different dates. The Writ Petition No. 46858 of 1999 filed by the petitioner was allowed by order dated 9.8.2007 whereas that the Writ Petition filed by Rajendra Prasad was allowed on 25.7.2007 and similar reliefs were extended to both the petitioner and Rajendra Prasad. The Collector filed separate intra-Court appeals against the judgment in the two cases. The Special Appeal filed in the case of the petitioner being Special Appeal No. 141 (D) of 2008 was allowed vide order dated 18.2.2008, and the matter was remitted to the learned Single Judge for afresh decision after taking into consideration the validity of the appointment of the petitioner under the U.P. Collection Amin’s Services Rules, 1974. However, the appeal filed in the case of Rajendra Prasad was dismissed by the Division Bench vide judgment and order dated 14.12.2009. The Division Bench had considered the aspect as to whether the appointment had been made in accordance with the 1974 Rules. 12. Learned counsel for the petitioner submits that for the purpose of regularizaing the services of Collection Amin, three types of list were prepared namely A, B, and C. The recovery of the petitioner was always satisfactory and his name was shown in A (Ka) List (above 70% recovery) at serial No. 29 while the names of Rajendra Prasad and Saroj Mani were shown in B (Kha) List (recovery 60-69%) but they have been appointed and are still working on the same post, whereas the claim of the petitioner has been rejected without going through the material available on record. In fact the claim of the petitioner ought to have been considered alongwith Rajendra Prasad. The seniority list has been brought on record as Annexure A to the supplementary-affidavit. 13. Learned counsel for the petitioner submits that the case of Rajendra Prasad referred to above, and the case of the present petitioner Arjun Prasad were identical in nature as both were appointed on the same date and they had been regularised on the same day and their services were terminated by a similar order of the same date. As such the petitioner in the present case would be entitled to the same benefits as extended to Rajendra Prasad (supra). 14. Shri SC. As such the petitioner in the present case would be entitled to the same benefits as extended to Rajendra Prasad (supra). 14. Shri SC. Pathak, learned Standing Counsel, on the other hand, submits that the petitioner was appointed by the Sub Divisional Magistrate, Phoolpur, Allahabad on 25.7.1998 as Collection Amin on one year probation. The petitioner joined on 27.7.1998. His probation period ended on 26.7.1999, however, he was permitted to continue to work, and that thereafter by order dated 5.10.1999, he was removed on the ground that his services were no longer required. 15. It is submitted by the learned Standing Counsel that in accordance with U.P. Collection Amin Service Rules, 1974 as amended in the year 1992, the seniority list of seasonal collection amins is prepared in accordance with length of service and merit, and accordingly lists A, B and C were prepared. The petitioner’s representation was decided on 30.9.1998 after which he was appointed on probation for a period of one year, and that thereafter in the list prepared on the basis of seniority/merit, it was found that the petitioner was not eligible to be regularized under 35 % quota. A notice was given to the petitioner on 21.7.1999, and that thereafter by order dated 5.10.1999 his services were terminated. 16. I have carefully considered the submissions advanced by the learned Counsel for the parties and find that the petitioner was regularized under 35 % quota by the Sub District Magistrate, in a permanent vacancy after considering his eligibility and performance before preparation of the seniority list. The appointment of the petitioner was made alongwith Rajendra Prasad, who was also terminated and his termination order was set aside by this Court vide judgment and order dated 25.7.2007. Against the said judgment, the District Magistrate, Allahabad preferred Special Appeal Defective No. 85 of 2008, which was dismissed by the Division Bench on 14.12.2009 and in compliance of the aforesaid judgments, Rajendra Prasad has been again appointed and he is still working on the said post. There was nothing to show that his performance had fallen below standard or was unsatisfactory during the period of probation. The submission of the learned standing counsel that the petitioner was not eligible to be appointed cannot be a ground of termination, after he was regularized on substantive vacancy. There was nothing to show that his performance had fallen below standard or was unsatisfactory during the period of probation. The submission of the learned standing counsel that the petitioner was not eligible to be appointed cannot be a ground of termination, after he was regularized on substantive vacancy. If there was any illegality in the appointment and regularization of the petitioner, the procedure provided in the U.P. Government Servants (Discipline and Appeal) Rules 1999 was required to be followed. 17. The petitioner has categorically stated in para-4 of the supplementary-affidavit that his recovery was always satisfactory and his name was shown in A (Ka) List at serial No. 29 while the names of Rajendra Prasad and Saroj Mani were shown in B (Kha) List but they have been appointed and are still working on the same post, whereas the claim of the petitioner has been rejected. In para-19 of the counter-affidavit the respondents have admitted that the name of the petitioner was in List-Ka at serial No. 29 in the seniority list and the name of Rajendra Prasad and Saroj Mani was in List-Kha. 18. In Reetu Marbles v. Prabhakant Shukla, 2009 (12) TMI 851 (SC), the Supreme Court held that the employee did not place any material or evidence to show that he was not gainfully employed during 15 years when he was out of service of the company. The Labor Court having found termination illegal and unjustified in not granting any back wages at all. Therefore the employee is entitled to 50% of back wages from the date of termination of service till reinstatement. 19. Recently Hon’ble Supreme Court allowed Civil Appeal No. 4370 of 2015 (Raj Kumar Dixit v. M/s. Vijay Kumar Gauri Shanker, Kanpur Nagar), on May 12, 2015 filed against the judgment and order dated 2.7.2014 passed by the High Court of Judicature at Allahabad, in Writ Petition No. 19573 of 2010, whereby the High Court quashed the judgment and order of the Labour Court, Kanpur, in Adjudication Case No. 66 of 2009 dated 3.7.2009, wherein the Labour Court directed the reinstatement of the appellant-workman in his post alongwith 50% back wages. The High Court modified the Award by granting compensation of Rs. 2 lakhs to be paid to the appellant-workman in place of the Award passed by the Labour Court. The High Court modified the Award by granting compensation of Rs. 2 lakhs to be paid to the appellant-workman in place of the Award passed by the Labour Court. Hon’ble Supreme Court held in operative portion of the judgment as follows : “The High Court has erred in its decision, both on facts and in law in setting aside the order of reinstatement with 50% back wages to the workman. It is the workman who was aggrieved with regard to the non- awarding of 50% back wages and this aspect of the matter has not been considered by the High Court while interfering with the Award of the Labour Court and awarding compensation in lieu of the reinstatement and back wages. Therefore, the appeal must succeed in this case. The High Court in awarding compensation to the workman has erroneously held that the order of reinstatement passed in favour of the appellant-workman is illegal and void ab initio in law without assigning valid and cogent reasons and therefore, the same is liable to be set aside as there has been a miscarriage of justice. The grounds urged by the appellant in this case are well founded and we accordingly pass the following order: The Appeal is allowed. The impugned judgment and order passed by the High Court of Judicature at Allahabad in Writ Petition No. 19573 of 2010 dated 2.7.2014 is hereby set aside and the Award passed by the Labour Court in awarding reinstatement with 50% back wages from the date of termination till the date of passing the Award by the Labour Court is restored. We further direct the respondent-firm to pay full back wages to the workman from the date of passing of the Award by the Labour Court till the date of his reinstatement in service. The order shall be complied with by the respondent-firm within six weeks from the date of receipt of copy of this order.” 20. In view of above, the impugned orders dated 1.12.2012 and 5.10.1999 passed by the District Magistrate, Allahabad-respondent No. 2 cannot be sustained and are accordingly set aside. 21. The writ petition is allowed. The order shall be complied with by the respondent-firm within six weeks from the date of receipt of copy of this order.” 20. In view of above, the impugned orders dated 1.12.2012 and 5.10.1999 passed by the District Magistrate, Allahabad-respondent No. 2 cannot be sustained and are accordingly set aside. 21. The writ petition is allowed. A writ of mandamus is issued directing the respondents concerned to reinstate the petitioner in service alongwith continuity of service and other consequential benefits of service including seniority, regular increments and payment of salary as revised from time to time admissible to his post within a period of two months from the date of production of a certified copy of the order passed by this Court before the concerned authority. But in given facts and circumstances of the case, it would be appropriate in the interest of justice to direct the respondents to make payment of 50% salary to the petitioner as back wages from the date of his dismissal till the date of reinstatement. Thereafter the petitioner shall be entitled to his full salary as and when it becomes due to him. The arrears of salary shall be paid to the petitioner within three months.