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2019 DIGILAW 2024 (ALL)

Kant Tiwari v. State of U. P.

2019-08-29

ABDUL MOIN

body2019
ORDER : Abdul Moin, J. 1. Heard learned counsel for the petitioner and the learned Standing Counsel appearing for the respondents. 2. By means of the present petition, the petitioner has prayed for the following reliefs:- "1. ISSUE, a writ order or direction in the nature of CERTIORARI quashing the impugned order dated 10.11.2014 passed by the opposite party no. 2 contained as Annexure No. 1 to the writ petition. 2. ISSUE, a writ order or direction in the nature of MANDAMUS commanding the opposite parties to regularize the services of the petitioner on the post of collection Amin in District- Sultanpur from the date on which the juniors to him have been regularized with consequential benefit of service under 35% quota allocated for seasonal collection amins and pay him regular salary in accordance with law. 3. ISSUE other writ order or direction as is deemed fit and proper under the circumstances of the case. 4. Allow the Writ Petition with cost." 3. The case set forth by the petitioner is that he is working as Seasonal Collection Amin since 1.6.1988. His working has been intermittent on account of certain artificial break which has been created by the respondents. However, the work and conduct of the petitioner have always been appreciated. When a junior to the petitioner was regularized as Collection Amin and the case of the petitioner was not considered and the petitioner also meeting the requirement as specified under the rules for being regularized, he preferred Writ Petition (S/S) No. 413 of 2009 In re: Sri Kant Tiwari vs. State of U.P. and others. The said writ petition was disposed of by this Court vide judgment and order dated 21.1.2009, a copy of which is Annexure-3 to the writ petition, directing the respondents to consider the case of the petitioner for regularization. In pursuance thereof, the respondents rejected the claim of the petitioner by means of the order dated 16.3.2009 primarily on two grounds- (a) that the recovery made by the petitioner is below the criteria of 70% as envisaged in U.P. Collection Amin Service Rules 1985 as amended in the year 2004 and (b) that no incumbent junior to the petitioner has been given regular appointment on the post of Collection Amin. The rejection order dated 16.3.2009 compelled the petitioner to file a second writ petition namely Writ Petition No. 5986 (SS) of 2009 before the court. The rejection order dated 16.3.2009 compelled the petitioner to file a second writ petition namely Writ Petition No. 5986 (SS) of 2009 before the court. This Court, after considering both the grounds of rejection negated the same on the ground that so far as 70% recovery is concerned, taking into consideration the Division Bench judgment of this Court passed in Special Appeal No. 518 of 2000 In re: State of U.P. and others vs. Sri Surendra Singh decided on 15.9.2009, mere non achieving of target for collection, bereft of other relevant facts, cannot be a criterion for achieving efficiency for the purpose of regularization. The Court also considered that the District Magistrate while passing the order dated 16.3.2009 had not considered the fact that at the relevant time the district was hit by drought. So far as the other ground of no incumbent junior to the petitioner having been given regular appointment, this Court specifically referred to paragraph 24 of the supplementary counter affidavit dated 19.11.2012 filed by the Tahsildar Sadar, Sultanpur wherein it had been admitted by the respondents that an incumbent at Serial No. 156 of the seniority list, namely, Dev Narayan Upadhyaya has been given regular appointment w.e.f. 01.03.2006 while the name of the petitioner was at Serial No. 125 of the said seniority list. Thus the Court vide judgment and order dated 21.8.2014 had set-aside the order of rejection dated 16.3.2009 and directed the District Magistrate, Sultanpur to consider the matter of the petitioner's appointment as regular Collection Amin in view of the observations made in the said judgment and also in the case of Surendra Singh (supra) within three months. Copy of judgment and order dated 21.8.2014 is annexure 4 of petition. 4. Thereafter, the respondents No. 2 has passed the impugned order dated 10.11.2014, a copy of which is Annexure-1 to the writ petition, by which the claim of the petitioner for regularization has again been rejected. Aggrieved against the order dated 10.11.2014, present petition, a third in the series of litigation, has been filed. 5. 4. Thereafter, the respondents No. 2 has passed the impugned order dated 10.11.2014, a copy of which is Annexure-1 to the writ petition, by which the claim of the petitioner for regularization has again been rejected. Aggrieved against the order dated 10.11.2014, present petition, a third in the series of litigation, has been filed. 5. Learned counsel for the petitioner contends that a perusal of the impugned order dated 10.11.2014 would indicate that the Collector, Sultanpur has rejected the claim of the petitioner for regularization again primarily on the same grounds which were negated by the Court in the earlier judgment and order dated 21.8.2014 namely (a) the petitioner not having achieved the standard recovery of 70%; (b) there are still 44 persons who are senior to the petitioner for being regularized and that all posts are filled in and (c) that the petitioner is now aged more than 45 years. 6. Elaborating this, learned counsel for the petitioner submits that of the three grounds sought to be taken, two grounds have already been considered and negated by this Court vide judgment and order dated 21.8.2014 which has already attained finality inter-se the parties. With regard to the ground of petitioner being aged about more than 45 years, reliance has been placed on the D.O. letter dated 24.9.2004, a copy of which he been filed as Annexure-7 to the writ petition, to contend that the State Government is vested with the power of granting relaxation in age. It is also contended that the State Government has recently issued an order dated 22.2.2019, a copy of which is Annexure RA-4 to the rejoinder affidavit dated 15.7.2019, wherein again the age relaxation beyond the age of 45 years has been permitted provided the employee concerned fulfills the other conditions as specified for the purpose of regularization. 7. Learned counsel for the petitioner submits that from the aforesaid, it is apparent that the respondents are bent upon rejecting the claim of the petitioner on frivolous grounds and on the grounds which have already been negated by this Court and as such the same is nothing but an attempt to harass the petitioner whereby compelling him to approach the court of law repeatedly for redressal of his grievance. 8. 8. On the other hand, learned Standing Counsel on the basis of averments contained in the counter affidavit, argues that in terms of the regularization rules there is an age bar of 45 years beyond which the claim for regularization cannot be considered. It is contended that petitioner is aged more than 45 years and as such the impugned order of rejection was passed. So far as the other two grounds which are repetitive of earlier grounds which were taken in the order dated 16.3.2009 and which have been negated by the Court while delivering the judgment and order dated 21.8.2014, it is contended that as the petitioner has not achieved the standard recovery of 70% as required under the rules, consequently the impugned order has been passed. It is also contended that in terms of the impugned order as no vacancy is available, consequently there is no occasion for regularization of the petitioner. 9. Heard learned counsel for the parties and perused the record. 10. From the arguments of the contesting parties and from a perusal of the records it comes out that initially the claim of the petitioner for regularization on the post of Collection Amin had been rejected by the respondents vide order dated 16.03.2009 on two grounds namely that the recovery of the petitioner is below the standard criteria of 70% as well as that no incumbent junior to the petitioner has been given regular appointment on the post of Collection Amin. Upon a challenge being raised to the said order, this Court vide judgment and order dated 21.08.2014 set aside the impugned order of rejection by dealing with both the grounds namely that so far as 70% recovery is concerned, taking into consideration the Division Bench judgment of this Court in the case of Surendra Singh (supra) mere non achieving of target for collection, bereft of other relevant facts, cannot be a criteria for achieving efficiency for the purpose of regularization. So far as the other ground of there being no junior to the petitioner having been given regular appointment on the post of Collection Amin, this Court specifically considered paragraph 24 of the supplementary counter affidavit dated 19.11.2012 filed by the Tehsildar Sadar, Sultanpur wherein it had been admitted by the respondents that the incumbent of Serial No. 156 of the seniority list had been given regular appointment while the name of the petitioner found place at Serial No. 125 of the said seniority list meaning thereby that it was categorically admitted by the respondents that a junior of the petitioner had been regularized and the petitioner had not been regularized. In this view of the matter, the impugned order had been set aside by this Court through the aforesaid judgment. The respondents were also directed to consider the matter of the petitioner for regular Collection Amin in view of the observations made in the said judgment. 11. After consideration, the respondents have proceeded to pass the impugned order dated 10.11.2014 in which now three grounds have been taken namely that the petitioner has not achieved the standard recovery of 70%, there are 44 persons who are still senior to the petitioner for being regularized and that all posts are filled in and that the petitioner is now aged more than 45 years. 12. So far as the first ground is concerned i.e. the petitioner not having achieved the standard recovery of 70%, this Court vide judgment and order dated 21.08.2014 has specifically observed that the same would not be a relevant criteria taking into consideration the Division Bench judgment of this Court in the case of Surendra Singh (supra). It is also admitted by the contesting parties that the said judgment has attained finality inter se the parties. Thus, it was no longer open for the respondent no. 2 to take the same ground while rejecting the claim of the petitioner. 13. Even otherwise, this Court in the case of Dinesh Kumar Asthana Vs. Collector, Azamgarh and Ors. reported in (2001) 1 UPLBEC 867 after considering the provisions of Rule 5 of the Rules, 1974 has held as under:- "Necessary pleadings on this aspect are wanting. 2 to take the same ground while rejecting the claim of the petitioner. 13. Even otherwise, this Court in the case of Dinesh Kumar Asthana Vs. Collector, Azamgarh and Ors. reported in (2001) 1 UPLBEC 867 after considering the provisions of Rule 5 of the Rules, 1974 has held 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." 14. Thus, taking into consideration the aforesaid judgments in the case of Surendra Singh and Dinesh Kumar Singh (supra) it was no longer open for the respondents to have taken the same ground while rejecting the claim of the petitioner. 15. So far as the other ground of there being 44 persons who are still senior to the petitioner for being regularized and all the posts are filled in, suffice to state that the said ground was never taken before this Court in the earlier round of litigation. Even otherwise, this Court had categorically observed that in terms of the supplementary counter affidavit filed by the respondents themselves it had been admitted that one of the junior of the petitioner namely Sri Dev Narayan Upadhyay had been given regular appointment. Even otherwise, this Court had categorically observed that in terms of the supplementary counter affidavit filed by the respondents themselves it had been admitted that one of the junior of the petitioner namely Sri Dev Narayan Upadhyay had been given regular appointment. Thus, merely because there are 44 persons who are senior to the petitioner for being regularized and all posts are filled in, as alleged in the impugned order, cannot be considered to be a valid ground for rejection of the claim of the petitioner once admittedly, the respondents have regularized a junior of the petitioner Even otherwise, learned counsel for the petitioner has filed a copy of an order dated 14.09.2017 as annexure 5 to the rejoinder affidavit dated 15.07.2019 to contend that in district Sultanpur, to which the present controversy pertains, against 119 posts of Collection Amin, there are only 84 persons working and 35 posts are lying vacant. Thus, the said ground could not also validly have been taken by the respondents while rejecting the claim of the petitioner. A peculiar aspect of the matter is that the specific observation of this Court of Sri Dev Narayan Upadhyay, junior to the petitioner having been regularized, has been given a complete go bye by the respondent no. 2 while passing the impugned order dated 10.11.2014 which itself reflects the cavalier manner in which the respondent no. 2 has treated the final order inter se the parties as passed by this Court. 16. So far as the third ground of the petitioner now being aged more than 45 years and the age limit as specified under the rules being only 45, suffice to state that in terms of the D.O Dated 24.06.2004, the State Government is vested with the power of granting relaxation in age beyond the age of 45 years as specified under the rules. The said D.O is followed by another order dated 22.02.2019, a copy of which has been filed as annexure 4 to the rejoinder affidavit which also primarily talks about the respondents vested with the power of granting age relaxation beyond 45 years. The D.O Dated 24.06.2004 being of a date prior to issue of the impugned order dated 10.11.2014 as passed by the respondent no. 2 must very well have been in the knowledge of the respondent no. The D.O Dated 24.06.2004 being of a date prior to issue of the impugned order dated 10.11.2014 as passed by the respondent no. 2 must very well have been in the knowledge of the respondent no. 2, i.e. Collector, Sultanpur but again the same has not been referred to by the respondent no. 2 and conveniently ignored while proceeding to reject the claim of the petitioner for regularization. Thus, it is apparent that all the three grounds which have been taken by the respondent no. 2 while rejecting the claim of the petitioner through the impugned order dated 10.11.2014 are patently misconceived and also run contrary to the specific observations of this Court passed while delivering the judgment and order dated 21.08.2014 which, as already indicated above, has attained finality inter se the parties. Thus, it is clearly apparent that the power vested with the respondent no. 2 has been exercised in a whimsical, capricious, casual and cavalier manner without application of mind and without even considering the observations made by this Court while delivering the judgment and order dated 21.08.2014. 17. Thus, taking into consideration the aforesaid discussion, the writ petition deserves to be allowed and is allowed. A writ of Certiorari is issued quashing the impugned order dated 10.11.2014, a copy of which is annexure 1 to the petition. A writ of Mandamus is issued to the respondent no. 2 to consider the case of regularization of the petitioner w.e.f. the date when junior to the petitioner, namely Sri Dev Narayan Upadhyay was regularized, in accordance with rules including the D.O Dated 24.06.2004 and the subsequent order dated 22.02.2019 considering the admission on the part of the Tehsildar-Sadar, Sultanpur in the counter affidavit dated 19.11.2012 of a junior of the petitioner namely Sri Dev Narayan Upadhyay having already been given regular appointment and also considering that in terms of the order issued by the Collector, Sultanpur dated 14.09.2017, 35 posts of Collection Amin are still lying vacant. The said consideration shall be done within a period of three months from the date of receipt a certified copy of this order. 18. Before parting with the case and taking into consideration that this Court has already observed that the order dated 10.11.2014 as passed by the respondent no. The said consideration shall be done within a period of three months from the date of receipt a certified copy of this order. 18. Before parting with the case and taking into consideration that this Court has already observed that the order dated 10.11.2014 as passed by the respondent no. 2 rejecting the claim of the petitioner is capricious and passed in a cavalier manner and has also been passed without considering the specific observations as made by this Court in the judgment and order dated 21.08.2014 and the petitioner having repeatedly been compelled to approach this Court for the redressal of his grievances and this being a third round of litigation, this Court also proposes to impose cost against the petitioner. 19. In this regard, from a perusal of the discussion made above, it is apparent that the respondent no. 2, i.e. Collector, Sultanpur has adopted an adamant attitude while reiterating the earlier order despite the specific observations of this Court in the earlier round of litigations. It is thus apparent that the respondent no. 2 has not taken pain to look into the earlier judgment of this Court and primarily the same grounds have been reiterated in the impugned order as already indicated above. The Apex Court in the case of Commissioner, Karnataka Housing Board Vs. C. Muddaiah reported in (2007) 1 SCC 689 has considered the somewhat akin facts and observations that even if the Court's order is wrong and illegal, that is binding on the parties unless that order is challenged in the superior Court. The Hon'ble Supreme Court also held that if this principle is not adhered to by the State, there will be end of the rule of law. The relevant observations of the Hon'ble Supreme Court in this regard are reproduced below:- "32. We are of the considered opinion that once a direction is issued by a competent court, it has to be obeyed and implemented without any reservation. If an order passed by a court of law is not complied with or is ignored, there will be an end of the rule of law. If a party against whom such order is made has grievance, the only remedy available to him is to challenge the order by taking appropriate proceedings known to law. If an order passed by a court of law is not complied with or is ignored, there will be an end of the rule of law. If a party against whom such order is made has grievance, the only remedy available to him is to challenge the order by taking appropriate proceedings known to law. But it cannot be made ineffective by not complying with the directions on a specious plea that no such directions could have been issued by the Court. In our judgment, upholding of such argument would result in chaos and confusion and would seriously affect and impair administration of justice. The argument of the Board, therefore, has no force and must be rejected. 33. The matter can be looked at from another angle also. It is true that while granting a relief in favour of a party, the court must consider the relevant provisions of law and issue appropriate directions keeping in view such provisions. There may, however, be cases where on the facts and in the circumstances, the court may issue necessary directions in the larger interest of justice keeping in view the principles of justice, equity and good conscience. Take a case, where ex facie injustice has been meted out to an employee. In spite of the fact that he is entitled to certain benefits, they had not been given to him. His representations have been illegally and unjustifiably turned down. He finally approaches a court of law. The court is convinced that gross injustice has been done to him and he was wrongfully, unfairly and with oblique motive deprived of those benefits. The court, in the circumstances, directs the authority to extend all benefits which he would have obtained had he not been illegally deprived of them. Is it open to the authorities in such case to urge that as he has not worked (but held to be illegally deprived), he would not be granted the benefits? Upholding of such plea would amount to allowing a party to take undue advantage of his own wrong. It would perpetrate injustice rather than doing justice to the person wronged." 20. The Hon'ble Supreme Court in the case of Subrata Roy Sahara Vs. Union of India and Ors. Upholding of such plea would amount to allowing a party to take undue advantage of his own wrong. It would perpetrate injustice rather than doing justice to the person wronged." 20. The Hon'ble Supreme Court in the case of Subrata Roy Sahara Vs. Union of India and Ors. reported in (2014) 8 SCC 470 has held as to when the Court should impose cost to check the frivolous writ petition and the orders which are cause of explosion of dockets of the Court. As already observed above, the impugned order herein has been a cause of unnecessary and avoidable litigation had the respondent no. 2 applied his mind to the observations of this court in the earlier judgment. For the sake of convenience, the relevant observation of the Hon'ble Supreme Court in the case of Subrata Roy Sahara (supra) are being reproduced below:- "191. The Indian judicial system is grossly afflicted with frivolous litigation. Ways and means need to be evolved to deter litigants from their compulsive obsession towards senseless and ill-considered claims. One needs to keep in mind that in the process of litigation, there is an innocent sufferer on the other side of every irresponsible and senseless claim. He suffers long-drawn anxious periods of nervousness and restlessness, whilst the litigation is pending without any fault on his part. He pays for the litigation from out of his savings (or out of his borrowings) worrying that the other side may trick him into defeat for no fault of his. He spends invaluable time briefing counsel and preparing them for his claim. Time which he should have spent at work, or with his family, is lost, for no fault of his. Should a litigant not be compensated for what he has lost for no fault? The suggestion to the legislature is that a litigant who has succeeded must be compensated by the one who has lost. The suggestion to the legislature is to formulate a mechanism that anyone who initiates and continues a litigation senselessly pays for the same. It is suggested that the legislature should consider the introduction of a "Code of Compulsory Costs"." 21. Accordingly, taking into consideration the law laid down by the Hon'ble Supreme Court in the case of Subrata Roy Sahara (supra) this Court imposes cost of Rs. It is suggested that the legislature should consider the introduction of a "Code of Compulsory Costs"." 21. Accordingly, taking into consideration the law laid down by the Hon'ble Supreme Court in the case of Subrata Roy Sahara (supra) this Court imposes cost of Rs. 50,000/- on the State to be paid to the petitioner within a period of four weeks from the date of receipt of a certified copy of this order. It would be open for the State to recover the said cost from the officials who were lax and whose action has resulted in such avoidable litigation causing repeated harassment to the petitioner.