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2018 DIGILAW 104 (ALL)

Dharam Raj Singh v. State of U. P.

2018-01-10

VIVEK KUMAR BIRLA

body2018
JUDGMENT : Vivek Kumar Birla, J. Heard Sri Syed Wajid Ali, learned counsel for the petitioner as well as Ms. Shivi Mishra, learned Standing Counsel appearing for the State respondents and perused the record. 2. Pleading between the parties have been exchanged and with their consent, the present petition is being decided finally at the admission stage itself. 3. Present petition has been filed challenging the impugned order dated 6.5.2013 passed by the respondent no. 3. A further prayer in the nature of mandamus is made to direct the respondents to give benefits of the order dated 22.2.2013 and 8.4.2013. 4. By the order dated 22.2.2013 pursuant to the judgment and order of this Court dated 9.8.1999 passed in Writ Petition No. 33089 of 1999 (Dharam Raj Singh vs. State of UP and others), the petitioner was also afforded similar benefits as granted to one Arjun Lal Srivastava on the basis of order passed by this Court dated 2.12.1997 passed in Writ Petition No. 397 of 1996 (Or 39740 of 1996) (Arjun Lal vs. Deputy District Collector/Appointing Authority, Farenda, Maharajganj). The similar benefits were extended to the petitioner vide order dated 22.2.2013 and his monetary/service benefits were calculated vide order dated 8.4.2013. The aforesaid order was modified by the impugned order dated 6.5.2013 whereby the petitioner was treated to be appointed on temporary basis as Collection Amin vide order dated 29.9.2009 and on completion of two years' probationary period he was treated as confirmed w.e.f. 1.10.2011 and therefore, his date of confirmation was substituted from 5.12.2008 to 1.10.2011. 5. Submission of the learned counsel for the petitioner is that the authority has no power to review its orders as on sitting appeal and it is only some higher authority could modify that order and therefore, the order impugned herein is wholly illegal and without jurisdiction. It was next submitted that writ petition being Writ Petition No. 33089 of 1999 (Dharam Raj Singh vs. State of UP and others) was disposed of by this Court vide order dated 9.8.1999 with specific observation that since the case of the petitioner is on the better footing than that of Arjun Lal Srivastava, it is expected that similar treatment shall be accorded to the petitioner. On the strength of the aforesaid observations, submission is that the orders dated 22.2.2013 and 8.4.2013 are perfectly just and have been wrongly modified by the impugned order dated 6.5.2013. 6. Per contra, Ms. Shivi Mishra, learned Standing Counsel appearing for the State respondents submits that the orders dated 22.2.2013 and 8.4.2013 have rightly been modified in the light of the provisions of Collection Amin Service Regulations, 1974 and warrants no interference by this Court. 7. I have considered the rival submissions and perused the record. 8. From perusal of the record, I find that in the writ petition filed by Arun Lal Srivastava in the year 1996, the case was directed to be considered by the District Magistrate for regular appointment provided he comes within the zone of consideration of 35% of vacancy of Collection Amin and his termination order dated 29.11.1996 was kept in abeyance and it was made clear that since he has not actually worked since 29.11.1996, he shall not be entitled to receive pay for the period he remained out of job but the same will not be treated as break in service. The petitioner filed a writ petition being Writ Petition No. 33089 of 1999 (Dharam Raj Singh vs. State of UP and others), which was disposed of vide order dated 9.8.1999 with the observations that since the case of the petitioner is on a better footing that that of the junior Arjul Lal, it is expected that similar treatment shall be accorded to the petitioner. 9. A perusal of the aforesaid order clearly indicates that earlier also the petitioner had filed a writ petition being Writ Petition No. 14152 of 1993, which was decided vide order dated 24.4.1993 by which this Court issued the directions that similar treatment shall be given as has been given to Arjun Lal. It is also clear that claim of the petitioner was based on the fact that since Arjun Lal is junior to him and therefore, he is entitled for the same treatment and petition was disposed of with specific observation that since the case of the petitioner is on better footing than that of Arjun Lal, then similar treatment shall be accorded to the petitioner. In the impugned order, there is nothing to indicate that Arjun Lal was not junior to the petitioner, who has also been granted benefit by the direction of this Court. In the impugned order, there is nothing to indicate that Arjun Lal was not junior to the petitioner, who has also been granted benefit by the direction of this Court. The petitioner is admittedly senior to Arjun Lal Srivastava and was granted benefits as already observed by this Court. 10. In the counter affidavit also, nothing has been indicated that the case of the petitioner is different from that of his junior Arjun Lal Srivastava although illegality in the earlier orders, which allegedly has been modified by the impugned order, has been highlighted. Once the petitioner has been treated in the light of the treatment given to his junior Arjun Lal Srivastava by the order dated 22.2.2013 and consequential order dated 8.4.2013, I find no justification to withdraw that benefit by the impugned order dated 6.5.2013 as no distinction has been drawn from the case of his junior Arjun Lal Srivastava and the same is clearly against the respondent authorities apart from the fact that the impugned order dated 6.5.2013 was passed without affording opportunity of hearing to the petitioner and was prima facie contrary to the observations of this Court dated 9.8.1999 made in Writ Petition No. 33089 of 1999. 11. Petition thus stands allowed. The impugned order dated 6.5.2013 is quashed. The petitioner shall be entitled to the benefit as provided to him vide order dated 22.2.2013 and 8.4.2013. 12. No order as to costs.