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2017 DIGILAW 610 (ALL)

UMESH CHAND JAIN v. STATE OF U. P.

2017-02-21

ASHOK KUMAR, V.K.SHUKLA

body2017
JUDGMENT : 1. Umesh Chand Jain son of Sugan Chand Jai, Seasonal Collection Amin, is assailing the validity of the order dated 19.11.2016 passed by the learned Single Judge in Civil Misc. Writ Petition No. 67045 of 2014 (Umesh Chandra Jain v. State of U.P. and others) wherein learned Single Judge has refused to quash the order dated 14.11.2000 and order dated 26.07.2014 passed by the Chairman/Secretary Board of Revenue, U.P. Lucknow. 2. Brief background of the case is that appellant was appointed as Seasonal Collection Amin in the Department on 10.03.1986. Appellant further claims that his work and recovery has always been upto the mark, and being senior most Seasonal Collection Amin in the District Agra, he was appointed on ad-hoc basis on a substantive post of Collection Amin on 16.01.1996. Appellant has been claiming that in the seniority list of the Seasonal Collection Amin, his name figured at Serial No. 20 and incumbents who have been placed below him, have been regularized, and in this background Civil Misc. Writ Petition No. 34118 of 1996 had been filed and therein directives were issued to consider the claim of the appellant. Learned Single Judge has mentioned in the order that representation of the appellant was disposed of with the direction that he was entitled for salary. Appellant filed another Civil Misc. Writ Petition No. 14669 of 1997 claiming regularization and said writ petition was finally decided on 20.04.2000. Pursuant to the directive issued by this Court, claim of the appellant has been turned down vide order dated 14.11.2000. Order dated 14.11.2000 has once again been subjected to challenge by the appellant in Civil Misc. Writ Petition No. 13291 of 2001 (Umesh Chand Jain v. D.M. and others) and said writ petition was allowed on 10.04.2014 with the following direction:- "The petitioner is a Seasonal Collection Amin. He has been engaged as such on 10.3.1985 under the Collector, Agra. In 1995, a seniority list was published of the Seasonal Collection Amins, in which the petitioner was shown at serial no. 20. The petitioner apprehended that juniors to him may be regularized, therefore, he filed a representation before the authorities which was not being considered, which necessitated the filing of Writ Petition No. 14667 of 1997. In 1995, a seniority list was published of the Seasonal Collection Amins, in which the petitioner was shown at serial no. 20. The petitioner apprehended that juniors to him may be regularized, therefore, he filed a representation before the authorities which was not being considered, which necessitated the filing of Writ Petition No. 14667 of 1997. The said writ petition was disposed of by order dated 20.4.2000 issuing a direction to decide the representation of the petitioner, which was not again being decided, therefore, the petitioner was compelled to file a Contempt Petition No. 3724 of 2000, in which notices were issued. Pursuant to the issuance of notice, the Collector vide order dated 14.11.2000 decided the representation of the petitioner. The Collector took two grounds, first that the petitioner's collections were below the norms and he was not at the stage of seniority where he can be considered. Learned counsel for the petitioner has filed the document for fasli year kharif 1405 in which the petitioner's collection has been shown to be Rs. 1,277/- whereas the criteria fixed was Rs. 1,166/-. Therefore, the collection for kharif of fasli year 1405 was much more than the norm fixed by the authorities. Further, the second ground of the Collector is that the petitioner is down in the seniority. The petitioner on that matter submits that in the seniority list of 1995 he was placed at serial no. 20, but in the seniority list of 2009 he has been placed at serial no. 52 which is practically impossible as the petitioner will only go higher in seniority list with the passage of time and cannot come down in the seniority list. That apart, the petitioner has constantly been agitating the matter for regularization, but for one reason or another his claim would not be considered. In the Counter affidavit it has been stated that as and when the proceedings will be initiated to regularize the Seasonal Collection Amin, the claim of the petitioner would also be considered. On this, it is submitted that number of appointments have been made, but the petitioner's claim has constantly been ignored. Learned counsel for the petitioner submits that as on today there are 39 posts available under the 35% quota of Seasonal Collection Amin to be regularized on the post of Collection Amin, as such, the claim of the petitioner cannot be ignored. Learned counsel for the petitioner submits that as on today there are 39 posts available under the 35% quota of Seasonal Collection Amin to be regularized on the post of Collection Amin, as such, the claim of the petitioner cannot be ignored. Learned Standing Counsel on the other hand submits that the petitioner has crossed the age of 45 years, as such, without relaxation by the State Government his claim cannot be considered. The crossing of the age bar is during the pendency of the writ petition. It is submitted that the petitioner has crossed the age of the 45 years in the year 2008 whereas the writ petition is pending since 2001, therefore, the age bar should not be the only criteria for denying the claim of the petitioner for regularization. In case the petitioner has crossed the age, then the matter may be referred to the appropriate authority for relaxing the age. Upon the aforesaid facts and circumstances, the petitioner is entitled to regularization as regular Collection Amin and authority concerned is directed to decide the claim of the petitioner in view of the observation made above within a period of three months from the date a certified copy of this order is presented before the authority concerned. Subject to the aforesaid direction, the writ petition is allowed. " 3. Pursuant to the order passed by this Court, claim of the appellant has once again been considered and turned down, and such action once again impelled the appellant to be before this Court by preferring Civil Misc. Writ Petition No. 67075 of 2014 and thereafter claim of appellant has been turned down after exchange of pleadings, accordingly, appellant is before this Court by means of present Special Appeal. 4. Sri D.K. Srivastava, learned counsel for the appellant contended with vehemence that in the present case once learned Single Judge in the past had proceeded to pass order for regularizing the appellant then there was no other option left, but to regularize the appellant and further once appellant has worked for more than a decade, then in all eventuality he ought to have been regularized, as per the judgment rendered in the case of State of Jharkhand and others v. Kamal Prasad and others (2014) 7 SCC 223 . 5. 5. Learned Standing Counsel on the other hand contended that rightful observation has been made by the learned Single Judge, as such no interference be made. 6. After respective arguments have been advanced, factual situation on which there is no dispute that appellant has crossed the age of 45 years, as such, without relaxation by the State Government his claim of being appointed on regular basis cannot be considered. Learned Single Judge on the earlier occasion had also clearly proceeded to pass order that in case appellant has crossed the age of 45 years, then matter be referred to the appropriate authority for relaxing the age and further mention has also been made that appellant is entitled to regularization as regular Collection Amin, and authority is directed to consider the claim of appellant in view of the observation made above within a period of three months from the date of certified copy of this order is presented before the authority concern. It is true that order passed by the learned Single, makes a mention that appellant is entitled for regularization as regular collection amin, but it is also equally true that once directives are issued to consider and decide the claim of appellant, then certainly it implicits in itself that claim of appellant has to be dealt with in accordance with law. 7. This much fact is also reflected that thereafter claim of appellant has been considered and categorical mention has been made that there was no vacancy for Seasonal Collection Amin under of 35% quota to be filled up by way of regularization and there are incumbents 39 in number, who are already occupying the post and consequently there is no vacancy. 8. Before us on this aspect of the matter that there are 35 posts meant for seasonal collection amin, and already as against said quota 39 persons are available, then there being no challenge on this aspect of the matter, the inevitable conclusion is that there existed no post against the quota meant for Seasonal Collection Amin. Once post in question is not falling within 35% quota meant for seasonal collection amin, then certainly, claim of appellant cannot be considered. 9. Once post in question is not falling within 35% quota meant for seasonal collection amin, then certainly, claim of appellant cannot be considered. 9. The appellant belongs to General Category and the Seasonal Collection Amins kept under the seniority list of the year 2004 upto Serial No.9 belonging to the General Category have been regularized and as the appellant's stage of seniority had not reached, there was no occasion for consideration of the claim of the appellant. Again in the seniority list of the year 2011 i.e. dated 30.5.2011, the appellant's name was shifted to Serial No.53, according to the total period of work rendered by him on the post of Seasonal Collection Amin. As per the seniority list dated 30.5.2011, the claim of the appellant was considered by the order impugned dated 26.7.2014 and was rejected on the ground that there was no vacancy in the quota for regularization of 35% on the post of Seasonal Collection Amin and all the posts which fell in the said quota were filled up. 10. The record categorically indicates that the appellant, at no point of time, had challenged the seniority lists dated 7.12.2004 & 30.5.2011. It is also not disputed that the appellant's stage of seniority had not reached for his claim to be considered pursuant to the seniority lists dated 7.12.2004 & 30.5.2011. It is also not disputed that no vacant post existed in the quota for regularization as recorded in the order impugned. In view of the above, the reason given in the order impugned regarding rejection of the claim of the appellant for regularization on account of non-availability of vacancy is clearly justified. 11. Reliance placed upon the judgment of the Apex Court in the case of State of Jharkhand (Supra) is of no consequence inasmuch as the matter of regularization on the post of Regular Collection Amin is governed by the Rules of 2004. The services of Collection Amins are required for recovering various government dues. Regular Collection Amins are appointed on the basis of test in accordance with the provision contained in U.P. Collection Amins Service Rules 1974. There are sanctioned post under Rule 4 of the Rules of regular Collection Amins, whereas vacancies for Seasonal Collection Amins are created by the Commissioner of Division according to the need. Regular Collection Amins are appointed on the basis of test in accordance with the provision contained in U.P. Collection Amins Service Rules 1974. There are sanctioned post under Rule 4 of the Rules of regular Collection Amins, whereas vacancies for Seasonal Collection Amins are created by the Commissioner of Division according to the need. Amendment has been introduced in the year 1992 in U.P. Collection Service Rules 1974, whereby Rule 5 has been amended by providing that 35% vacancies of regular Collection Amins shall be filled up from Seasonal Collection Amins, who have worked satisfactorily for not less than 4 faslis and who have not crossed the age of 45 years. Explanation has been added providing/defining satisfactory work. Once the consideration of claim of Seasonal Collection Amin for regularization on the post of Regular Collection Amin is to be dealt with in the manner prescribed, no other route can be chosen, till the said Rules stands. 12. Consequently, Special Appeal stands dismissed, but we make it clear that liberty that has been accorded to appellant by learned Single Judge stands as it is.