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2019 DIGILAW 1435 (ALL)

Ashok Kumar Singh v. State of U. P.

2019-05-24

SAURABH LAVANIA

body2019
ORDER : 1. Heard learned counsel for the petitioner and Dr. Udai Veer Singh, learned Addl. Chief Standing Counsel for the State-Respondents. 2. By means of the present writ petition, the petitioner has challenged the order dated 20.01.2018 and the order dated 28.08.2015. 3. At the very outset, the counsel for the petitioner submits that he is not pressing the reliefs with respect to the order dated 28.08.2015, as the grievance would be met out if the order dated 20.01.2018 is interfered by this Court and for not pressing the reliefs related to order dated 28.08.2015, the petitioner has moved Civil Misc. Application No. 18749 of 2019 dated 07.02.2019. 4. Considering the contents of the application and the submission of the counsel for the petitioner, the application is allowed. 5. The petitioner is permitted to incorporate necessary amendment in with respect to order dated 28.08.2015 during the course of the day. 6. Vide impugned order dated 20.01.2018, passed in compliance of Court's order dated 05.10.2017, the opposite party No. 3-District Magistrate, Lucknow rejected the representation/claim of the petitioner related to placement in seniority list of Collection Amin. 7. On merits, the submission of the counsel for the petitioner is that the selection process was initiated for direct recruitment for the vacant posts of Collection Amin in the year 1989 and therein the petitioner was declared successful and the select list was prepared in the year 1989 itself. The name of the petitioner finds place in the select list. 8. The selection was challenged before this Court by means of the Writ Petition No. 7906 (SS) of 1989 and on account of challenge made to the selection, the appointment to the selected candidates, whose names find place in the select list including the petitioner, was not given. The writ petition was dismissed vide judgment and order dated 03.02.1994 and thereafter, a decision was taken to issue the appointment orders vide order dated 31.10.1994. 9. Pursuant to the decision taken on 31.10.1994, the offer of appointment was provided to the petitioner in the year 1995. Pursuant to the order of appointment, the petitioner joined on 03.02.1995 on the post of Collection Amin. Other selected persons also joined pursuant to the decision/order dated 31.10.1994. 10. 9. Pursuant to the decision taken on 31.10.1994, the offer of appointment was provided to the petitioner in the year 1995. Pursuant to the order of appointment, the petitioner joined on 03.02.1995 on the post of Collection Amin. Other selected persons also joined pursuant to the decision/order dated 31.10.1994. 10. The counsel for the petitioner further submitted that during the intervening period the selections were held and some persons were appointed prior to the offer of appointment and joining of petitioner on the post of Collection Amin. The seniority of Collection Amin was prepared in which petitioner was placed below the persons who were selected in subsequent selection process. 11. In respect of dispute related with the placement of the petitioner in the seniority list, the petitioner moved several representations. The petitioner being aggrieved with his placement in seniority list filed a Writ Petition No. 23762 (SS) of 2017 before this Court and after considering the grievance of the petitioner, this Court vide judgment and order dated 05.10.2017 directed the District Magistrate to consider and decide the issue related to the dispute of seniority list of the petitioner by a reasoned and speaking order. 12. After the judgment and order dated 05.10.2017, the petitioner preferred representation dated 23.10.2017 and on the said representation the District Magistrate/opposite party No. 3 vide letter dated 04.12.2017 sought the report from the appointing authority i.e. Sub- divisional Magistrate, Sadar, Lucknow. 13. In response to the letter of the District Magistrate dated 4th December, 2017, whereby the District Magistrate sought report on the issue of the seniority of the petitioner, the SDM, Sadar, Lucknow submitted his favourable report/comments before the opposite party No. 3 vide letter dated 10.01.2018. Thereafter, the opposite party No. 3/District Magistrate, Lucknow passed the impugned order dated 20.01.2018. 14. Assailing the order impugned dated 20.01.2018, the submission of the counsel for the petitioner is that the impugned order is not in accordance with the provisions envisaged under Rule 5 of U.P. Government Servant Seniority Rules, 1991 (in short ‘Rules of 1991’). Thereafter, the opposite party No. 3/District Magistrate, Lucknow passed the impugned order dated 20.01.2018. 14. Assailing the order impugned dated 20.01.2018, the submission of the counsel for the petitioner is that the impugned order is not in accordance with the provisions envisaged under Rule 5 of U.P. Government Servant Seniority Rules, 1991 (in short ‘Rules of 1991’). Advancing his argument, he submits that the case of the petitioner is covered under the said Rules and according to the said Rules, the seniority has to be fixed as per the merit list prepared by the Selection Committee and even on the basis of the select list prepared by the Selection Committee, the seniority list has not been prepared and person placed at serial No. 15 has been placed above the petitioner though the name of the petitioner finds place at serial No. 9. 15. It has also been contended that the persons appointed in the subsequent selections have also been placed above the petitioner and those persons have also been promoted to the post of Revenue Inspector. 16. The decision of the District Magistrate dated 20.01.2018 on account of non- consideration of Rule 5 of the Rules of 1991 in its true spirit is liable to be interfered. Further submitted that in joining the post in the year 1995, the petitioner was not at fault, it is because of authorities and the writ petition challenging the selection, in which the petitioner was selected, the joining of the petitioner was delayed and accordingly he would not loose his seniority. 17. The next contention of the counsel for the petitioner is that while considering and passing the order impugned dated 20.01.2018, the District Magistrate/opposite party No. 3 has not considered the report/recommendation of the appointing authority-Sub-divisional Magistrate (S.D.M.) Sadar, Lucknow dated 10.01.2018. 18. The counsel for the petitioner drawn attention of this Court to para 30 of the writ petition in which a specific plea has been raised that while deciding the representation vide order dated 20.01.2018, the District Magistrate/opposite party No. 3 has not considered the recommendation/report dated 20.01.2018 and it has also been pleaded before this Court that the said para has not been specifically denied by the opposite parties in para-24 of the counter-affidavit. 19. 19. In support of his contention that the petitioner would not lost his seniority in the select list, the counsel for the petitioner placed reliance on the judgment of the Apex Court in the case of Pilla Sitaram Patradu and Others vs. Union of India and Others, (1996) 8 SCC 637 : AIR 1997 SC 250 . In the said case, the Apex Court after considering the facts of the case, observed as under:- "3. It is contended by the learned counsel for the petitioners that since the inter se seniority as Assistant Engineers was left open in the order, the directions given by the Tribunal to consider the case as Executive Engineer and determine his seniority on the basis of promotion, is not valid in law. We find no force in the contention. Once he is found to be eligible according to the rules, then his seniority is required to be determined as per the procedure prescribed in the rales in vogue. It is further contended that the fifth respondent was not qualified since he had not completed 8 years of required service. The Tribunal has recorded a finding that two years' period is relaxable in the case of the reserved candidates. The inter se seniority as Assistant Executive Engineer is required to be determined; he joined service in 1981 and, therefore, he did not have the requisite service. We find no force in the contention. Since he was selected by direct recruitment, he is entitled to be appointed according to rule. His appointment was delayed for no fault of his and he came to be appointed in 1981. he is. therefore, entitled to the ranking given in the select list and appointment made accordingly. Under these circumstances, we do not find any illegality in the order." The counsel for the petitioner further submitted that in view of the law laid down by the Apex Court in the case of Pilla Sitaram Patradu AIR 1997 SC 250 (supra) and Rule 5 of the Rules of 1991 as well as the recommendation of the appointing authority dated 10.01.2018, the interference in the order impugned is required. 20. Per contra, Dr. Udai Veer Singh, learned Addl. 20. Per contra, Dr. Udai Veer Singh, learned Addl. Chief Standing Counsel for the State-respondents, on the basis of the averments made in the counter-affidavit, submitted that the selection which held in the year 1989, was challenged before this Court and the writ petition challenging the selection process was dismissed on 03.02.1994 and thereafter, the selection held in the year 1989 was approved on 17.10.1994 and vide order dated 31.10.1994, the opposite party No. 3 issued the direction to the appointing authority to issue the appointment orders. 21. Pursuant to the order of District Magistrate dated 31.10.1994, the appointment order was issued to the petitioner and he joined on 3rd February, 1995. Accordingly to the date of joining, the petitioner has been placed in the seniority list and there is no illegality in placing the petitioner in the seniority list. The placement of the petitioner in the seniority list is just and proper and according to the Rule 5 of the Rules of 1991. 22. Considered the submissions made by the counsel for the parties and perused the record. 23. It appears from the record that the selection which could have been completed in the year 1989-1990 itself could not be completed on account of the fact that the same was challenged before this Court by means of the Writ Petition No. 7906 (SS) of 1989 and ultimately and the said writ petition was dismissed on 3rd February, 1994 and thereafter, the decision was taken by the District Magistrate/opposite party No. 3 to issue the appointment orders and pursuant to the said decision of the District Magistrate, the appointment order was issued to the petitioner and he joined on the post in issue on 03.02.1995. 24. According to the Rule 5 of the Rules of 1991, where the appointments are to be made only by direct recruitment the seniority inter se of the persons appointed on the result of any one selection, shall be the same, as it is shown in the merit/select list prepared by the Selection Committee constituted or prescribed under the Rules. The first proviso of the Rule 5 provides that a candidate would loose his seniority, if he fails to join without valid reasons where vacancy is offered to him. The first proviso of the Rule 5 provides that a candidate would loose his seniority, if he fails to join without valid reasons where vacancy is offered to him. The second proviso to Rules provides that persons appointed on the result of a subsequent selection shall be to the junior persons appointed on the result of previous selections. 25. In the instant case, the offer of appointment to the petitioner was given in the year 1995 i.e. after dismissal of Writ Petition No. 7906 (SS) of 1989 and immediately thereupon the petitioner joined on the post on 03.02.1995 and accordingly, the case of the petitioner does not fall in the first proviso to Rule 5. This aspect of the case as well as inter se seniority of the persons selected along with the petitioner in selection held in the year 1989, and in relation to which District Magistrate, Lucknow, passed the order dated 31.10.1994, as appears from the order impugned, has not been considered by the District Magistrate/ opposite party No. 3 while passing the order impugned dated 20.01.2018. 26. The statement of the counsel for the petitioner that the persons selected in subsequent selection have been placed senior to the petitioner in the seniority list, is not evident from the record, hence rejected. 27. It is apparent from the impugned order dated 20.01.2018 that while passing the same, the District Magistrate/opposite party No. 3 has not considered the report of the SDM, Sadar, Lucknow dated 10.01.2018, in which reference of the judgment of the Apex Court, referred above, has been made. 28. The District Magistrate while passing the order dated 20.01.2018 has only considered the date of appointment of the petitioner and held that the placement of the petitioner in the seniority is just and proper and rejected the representation and aforesaid has not been considered. 29. 28. The District Magistrate while passing the order dated 20.01.2018 has only considered the date of appointment of the petitioner and held that the placement of the petitioner in the seniority is just and proper and rejected the representation and aforesaid has not been considered. 29. The rejection of the claim of placement in seniority list of the petitioner by opposite party No. 3-District Magistrate vide order dated 20.01.2018, without considering the inter se seniority of the persons selected in the selection held in the year 1989, in which petitioner was selected, and without considering the report of S.D.M. Sadar, Lucknow dated 10.01.2018 as well as the fact that the petitioner was not at fault in joining on the post on 03.02.1995, appears to be unjust in the light of the Rule 5 of the Rules of 1991 itself. 30. Accordingly, interference is required in the order impugned dated 20.01.2018. 31. For the reasons aforesaid, the impugned order dated 20.01.2018 is hereby quashed. The matter is remanded back to the District Magistrate/opposite party No. 3 for re-consideration of the grievance of the petitioner and take a decision by reasoned and speaking order. It is expected from the opposite party No. 3 that while considering the grievance of the petitioner he would consider the recommendation of the appointing authority dated 10.01.2018 and the Rule 5 of the Rules of 1991 in the light of the facts of the present case and observation made hereinabove. The entire exercise be carried out within a period of two months from the date of production of certified copy of this order. 32. The writ petition is allowed with the aforesaid.