Research › Search › Judgment

Allahabad High Court · body

2016 DIGILAW 3515 (ALL)

SURESH CHAND MISHRA v. STATE OF U. P.

2016-10-21

P.K.S.BAGHEL

body2016
JUDGMENT Hon’ble P.K.S. Baghel, J.—The petitioner is a Seasonal Collection Amin. He has instituted this writ proceedings for issuance of a writ of certiorari to quash the order passed by the Collector, Sitapur dated 04th March, 2014, whereby his claim for regularization has been rejected. 2. The salient and necessary facts of the case are; the petitioner was initially engaged as a Seasonal Collection Amin on 05th July, 1989. He made an application for consideration of his regularization under 35% quota in terms of the Uttar Pradesh Collection Amins’ Service Rules, 1974 (for short, “the Rules, 1974”). When his case was not considered, the petitioner preferred a writ petition alongwith four other persons i.e. Writ Petition No. 3009 (S/S) of 1996 (Lalit Kumar Misra and others v. State of U.P. and others) for a direction upon the respondents to consider them for regularization. In the said writ petition an interim order was granted on 7.6.1996 and a direction was issued for petitioners’ consideration under the provisions of the Rules, 1974. The said writ petition was finally disposed of on 29.4.1999. 3. It is stated that the order of this Court was not complied with and the petitioner was compelled to file a contempt petition i.e. Civil Contempt Case No. 950 (C) of 1999. In the said contempt petition the respondents filed a counter-affidavit, wherein it was stated that the petitioners shall be re-considered for regular appointment/regularization on the posts of Collection Amin. In view of the said statement made by the respondents in their counter-affidavit, the contempt petition was consigned to the record. 4. It is further stated that the petitioner moved a fresh representation dated 12.8.2006 in the light of the directions of this Court in the aforementioned writ petition and the contempt petition. The said representation was disposed of on 26.9.2006 and his case was rejected on the ground that the petitioner does not fulfill the requisite recovery of 70 per cent, therefore, he was not found eligible for regularization. 5. It is also stated that aggrieved by the said order the petitioner preferred Writ Petition No. 7495 (S/S) of 2008, however, the said writ petition was dismissed on 16.7.2012 by a cryptic order. 5. It is also stated that aggrieved by the said order the petitioner preferred Writ Petition No. 7495 (S/S) of 2008, however, the said writ petition was dismissed on 16.7.2012 by a cryptic order. Feeling aggrieved therefrom, the petitioner filed a review petition i.e. Review Petition Defective No. 359 of 2012, which was disposed of with liberty to the petitioner to move a representation before the authority concerned raising his grievance. 6. In compliance of the order in the review petition, the petitioner moved a fresh representation before the Collector for his regularization. The impugned dated 4.3.2014 came to be passed rejecting the case of the petitioner on the ground that the petitioner has failed to achieve 70% target of recovery and his recovery was merely 35.8% hence he is not entitled for regularization. 7. It is contended on behalf of the petitioner that the only ground in the impugned order is that the petitioner has failed to achieve 70% target hence his regularization has been rejected. It is stated that the said view taken by the authority concerned is contrary to the law laid down by this Court. He has placed reliance on the following judgments: (i) State of U.P. and others v. Pankaj Srivastava, 2013(11) ADJ 473 (DB)(LB); (ii) Pankaj Srivastava v. State of U.P. and others, 2016(34) LCD 691; (iii) Molhey Ram v. State of U.P. and others, 2013(31) LCD 2367. 8. Learned counsel for the petitioner has further urged that in the year 1997 some of the juniors of the petitioner were regularized. At that point of time the average of recovery percentage of the petitioner was 79%. My attention has been drawn by the learned counsel for the petitioner to a chart prepared in 2004 for regularisation of Seasonal Collection Amins, wherein the average recovery of Seasonal Collection Amins is recorded. In the said chart the petitioner’s average recovery is 79%. This fact is also stated by the petitioner in paragraph-12 of the petition. He has also drawn my attention to paragraph-9 of the writ petition wherein it is stated that some juniors, namely Suresh Kumar and Santosh Kumar Srivastava, who had only 35% recovery, were regularized without considering the case of the petitioner. In support of the said averment the petitioner has brought on record a document as annexure-10 to the writ petition. He has also drawn my attention to paragraph-9 of the writ petition wherein it is stated that some juniors, namely Suresh Kumar and Santosh Kumar Srivastava, who had only 35% recovery, were regularized without considering the case of the petitioner. In support of the said averment the petitioner has brought on record a document as annexure-10 to the writ petition. It is also stated that Santosh Kumar Srivastava, who is junior to the petitioner, has been illegally regularized. He did not fulfill the norms of four fasli and he had completed only three fasli even then he has been regularized. 9. Learned counsel for the petitioner has further invited attention of the Court to the reply of the statement of fact made in paragraph 9 & 12 of the writ petition, in paragraph-11 of the counter-affidavit, the said fact has not been specifically denied, only a general and evasive reply is given therein. 10. Learned Standing Counsel submits that the petitioner’s writ petition is not maintainable as his earlier writ petition was dismissed and in the review petition only liberty was granted to file a representation. No other submission has been made. 11. I have heard learned counsel for the parties, considered their submissions and perused the record. 12. Concededly, the petitioner is working since 1989. The Rule-5 of the Uttar Pradesh Collection Amins’ Service Rules, 1974 provides that 35% appointment on the post of Collection Amins shall be made from the Seasonal Collection Amins. The petitioner has brought on record his previous recovery percentage which indicates that in the year 2004 when the list was prepared his name was at Sl. No. 20 and his average recovery percentage was above 77%. There is no reason in the impugned order or in the counter-affidavit why the petitioner was not considered at that point of time. The petitioner has brought on record his previous recovery percentage which indicates that in the year 2004 when the list was prepared his name was at Sl. No. 20 and his average recovery percentage was above 77%. There is no reason in the impugned order or in the counter-affidavit why the petitioner was not considered at that point of time. The Rule-5 of the Rules, 1974 is in the following terms: **izfrcU/k ;g gS fd iSarhl izfr'kr fjfDr;kWa ,sls lhtuy dysD'ku vehuksa esa ls p;u }kjk Hkjh tk;saxh& ¼d½ ftUgksaaus de ls de pkj Qlyksa rd lUrks"ktud :i ls dk;Z fd;k gks;A ¼[k½ ftudh vk;q ml o"kZ dh igyh tqykbZ dks] ftl o"kZ p;u fd;k tk;] 45 o"kZ ls vfèkd u gksA izfrcU/k ;g Hkh gS fd ;fn mi;qDr vH;FkhZ miyC/k u gksa rks 'ks"k fjfDr;kWa lh/kh HkrhZ ds ekè;e ls lkekU; vH;fFkZ;ksa }kjk Hkjh tk;saxhA Li"Vhdj.k&lUrks"ktud dk;Z dk rkRi;Z gksxk 'kq: ls vUr rd vPNs vkpj.k dks lfEefyr djrs gq, vfUre pkj Qlyksa ds nkSjku fofgr Lrj ds vuqlkj de ls de lRrj izfr'kr olwyhA** 13. The aforesaid Rule provides the regularization of seasonal collection amins against 35% of vacancies. It contemplates following conditions: (i) The seasonal collection amin must have rendered services in at least four fasli; (ii) He should not be above 45 years by the first July of the relevant year. 14. It is true that the explanation of the Rule-5 of the Rules, 1974 refers the satisfactory services in the last four fasli with the prescribed norms of at least seventy percent. The prescribed percentage of the target of the recovery came to be considered in several cases before this Court, way back in the year 2001. A similar issue fell for consideration in the case of Dinesh Kumar Asthana v. Collector, Azamgarh and others, (2001) 1 UPLBEC 867 . In the said case the Court held that there may be various factors and reasons when total extent of recovery in a seasonal amin’s area may not be achieved, such as Government itself kept the recovery in abeyance due to natural calamity. Relevant part of the judgement reads as under: “Necessary pleadings on this aspect are wanting. In the said case the Court held that there may be various factors and reasons when total extent of recovery in a seasonal amin’s area may not be achieved, such as Government itself kept the recovery in abeyance due to natural calamity. Relevant part of the judgement reads as under: “Necessary pleadings on this aspect are wanting. Even the Counter-affidavit does not disclose that no person in the list prepared in the year 1993 has been regularised whose recovery was below the prescribed limit or that all persons above such regularized persons were inefficient and or had poor efficiency on comparison. This Court has no means to find out whether the recovery in a particular year with respect to the petitioner was low for reason other than this own efficiency. It is very relevant circumstance while considering the efficiency of Seasonal Collection Amin. For example, recovery is not possible beyond a certain limit for various factors and reasons like-orders from Court, the total extent of recovery to be made in one’s area and/or whether Government itself kept recovery in abeyance due to famine, flood, drought etc. These will be relevant consideration to be taken into account and a Seasonal Collection Amin, being put to sufferance for reasons beyond his control, cannot be non-suited for low recovery as it does not reflect at all upon his efficiency.” 15. The judgment in Dinesh Kumar Asthana (supra) has been consistently followed by this Court in the case of Brijesh Kumar v. Collector/District Magistrate, Mainpuri and others, 2001(3) ESC 1325; Suresh Chandra Sharma v. State of U.P. and others, 2010(1) ADJ 655 ; Molhey Ram v. State of U.P. and others, 2013(31) LCD 2367; Ramveer Singh v. State of U.P. and others, Writ-A No. 27358 of 2004. 16. In the case of State of U.P. Throu. Prin. Secy. Deptt. Of Revenue Lko. and others v. Pankaj Srivastava, Special Appeal Defective No. 845 of 2013 also the similar issue was raised. In the said case the claim of seasonal collection amin for regularization was rejected on the ground that he failed to achieve 70% prescribed norms for recovery. The Court held that the explanation of the said Rule-5 has to be harmoniously construed with the main provision which is made in the Rules, 1974. In the said case the claim of seasonal collection amin for regularization was rejected on the ground that he failed to achieve 70% prescribed norms for recovery. The Court held that the explanation of the said Rule-5 has to be harmoniously construed with the main provision which is made in the Rules, 1974. The principal requirement under the Rules was that a seasonal collection amin should have worked for at least four fasli and the extent of recovery needs to be assessed with reference to last four fasli during the period when he worked. The relevant part of the order reads as under: “...However, the norms of 70% recovery, as clarified, must relate to the demand which was actually entrusted to the employee. The satisfactory performance has to be read with reference to the work, which is actually entrusted to the Seasonal Collection Amin. Learned counsel appearing on behalf of the appellants has submitted that in the memo of appeal, the State has taken a ground that the respondent would not meet the norms of 70% with reference to the work which was entrusted to him.” 17. The principle of law emanates from the above decision is that the recovery depends upon various factors and only recovery cannot be made sole criterion. It has to be considered alongwith other requirements mentioned in the Rules. 18. The explanation of Rule 5 of the Rules, 1974 has been harmoniously interpreted by this Court in a large number of cases. Reference of some of such cases has already been given hereinabove. The authorities have not paid due attention to the law laid down by this Court and they are rejecting the claim repeatedly on the same ground which has been held to be untenable by this Court long back in the year 2001. 19. I find that most of the claims of regularization of seasonal collection amins are primarily rejected on the ground of less recovery thus it is clear that the authorities do not consider the entire Rules and they have laid emphasis only on the explanation of Rule-5 of the Rules, 1974 and not on the main provision. 20. The Collector is a senior and experienced official and he must be presumed to know that the orders of the High Court have to be obeyed, such is our constitutional scheme. 20. The Collector is a senior and experienced official and he must be presumed to know that the orders of the High Court have to be obeyed, such is our constitutional scheme. Ignoring the consistent view taken by this Court in the last more than 15 years, cannot be appreciated. If a law has been settled by a superior Court, the good governance requires that the officials must respect the law. The Rule of Law is foundation of a democratic society, and the judiciary is undoubtedly guardian of the Rule of Law. 21. The Supreme Court in the case of M/s East India Commercial Co. Ltd. Calcutta and another v. Collector of Customs, Calcutta, AIR 1962 SC 1893 , has held that the law laid down by the High Court is binding on all authorities. The Supreme Court has also held that although there is no provision for the High Court in the constitution like Article 141 which provides that the judgements of the Supreme Court are binding on all authorities whether they are party or not. The Supreme Court has extended principles of Article 141 of the Constitution to the High Court also. Relevant part of the judgement of the Supreme Court in M/s East India Commercial (supra) is extracted herein below: “29...We, therefore, hold that the law declared by the highest Court in the State is binding on authorities or tribunals under its superintendence, and that they cannot ignore it either in initiating a proceeding or deciding on the rights involved in such a proceeding. If that be so, the notice issued by the authority signifying the launching of proceedings contrary to the law laid down by the High Court would be invalid and the proceedings themselves would be without jurisdiction.” 22. In view of the above, it is clear that if the law has been laid down by the Court, the authority is bound by it whether he is party in the said writ petition or not. Since the law laid down by this Court in the aforementioned case has not been followed by the authority concerned and neither the judgements have been referred, the said order, as I find, needs to be set aside. Accordingly, the impugned order dated 4.3.2014 is set aside. 23. Since the law laid down by this Court in the aforementioned case has not been followed by the authority concerned and neither the judgements have been referred, the said order, as I find, needs to be set aside. Accordingly, the impugned order dated 4.3.2014 is set aside. 23. The matter is remitted to the authority concerned to consider the case of the petitioner afresh in the light of the law laid down by this Court in the aforementioned cases. The said exercise shall be completed by the Collector expeditiously, preferably within four months from the date of communication of this order. 24. The writ petition is, accordingly, allowed. 25. No order as to costs.