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2020 DIGILAW 1387 (ALL)

Shri Ram Yadav v. State Of U. P.

2020-11-26

J.J.MUNIR

body2020
JUDGMENT : 1. Heard Mr. Awadh Behari Singh, learned counsel for the petitioner and Mr. Manvendra Dixit, learned Standing Counsel appearing on behalf of the respondents. 2. The petitioner was a Collection Amin, when he instituted this writ petition on 19.12.2016. His appointment, however, was ad-hoc. Working against a sanctioned and vacant post of Amin, he was drawing a regular monthly salary, until he retired from service on 31.07.2018. The rights of the petitioner in this petition are traceable to and pegged at the time when the cause of action arose and he brought these proceedings. The petitioner calls in question an order of the District Magistrate, Deoria dated 08.10.2016, by which, his prayer, seeking regularization in service and appointment to the post of Collection Amin against which he was working, has been rejected. 3. The petitioner was initially appointed as a Seasonal Collection Amin on 09.01.1990. He filed a writ petition before the Lucknow Bench of this Court, being Writ Petition No. 430 of 1991 (SS), where an interim order was passed directing that till further orders, the respondents shall not terminate the petitioner's services, so as to create an artificial break, and further, that the petitioner be continued in service. On 30.11.1990, the petitioner was placed against the vacant post of Collection Amin, by an order made by the Joint Magistrate, Rudrapur, Deoria. This order was made by the Joint Magistrate in compliance with this Court's order dated 25.01.1991, and the petitioner was placed against the vacant post of one Ajay Kumar Singh, a Collection Amin, who had been transferred out. It is asserted by the petitioner that pending Writ Petition No. 430 of 1991 (SS), the Additional District Magistrate (Finance and Revenue) Deoria, cancelled the order dated 13.11.1995 passed by the Joint Magistrate. Thereupon, the petitioner made an amendment application in the pending writ petition before the Lucknow Bench of this Court, where a prayer was made to set aside the order dated 23.01.1996. By an interim order dated 11.04.1996 passed in Writ Petition No. 430 of 1996 (SS), this Court sitting at Lucknow, stayed the operation of the order dated 23.01.1996 passed by the Additional District Magistrate (Finance and Revenue) Deoria. By an interim order dated 11.04.1996 passed in Writ Petition No. 430 of 1996 (SS), this Court sitting at Lucknow, stayed the operation of the order dated 23.01.1996 passed by the Additional District Magistrate (Finance and Revenue) Deoria. Writ Petition No. 430 of 1991 (SS) came up for determination before this Court sitting at Lucknow on 21.04.2004 and by an order of that date, the writ petition was disposed of on the same terms and conditions as ordered in Civil Misc. Writ Petition No. 242 of 2001, Poshaki Lal & Others v. State of U.P. and Others, decided on 16.04.2001. A reference to the said decision shows that Poshaki Lal (Supra), in turn, gave effect to the decision in Mata Deen and others v. State of U.P. and others, 1996 (3) UPLBEC 2227 and ordered in the following terms : However, in case junior to the petitioners have been regularized as alleged, then the case of the petitioners will be considered with effect from the date of regularization of that junior considering the law that the right of the senior for consideration of regularization is superior in comparison to similarly circumstanced junior. In case the petitioners are still continuing he shall be allowed to continue till the regularization/appointment on the post of Collection Amin is considered with the direction given above. This writ petition is accordingly disposed of with the direction contained in the case of Mata Deen and others v. State of U.P. and others (Supra). 4. The result of the said orders were that the petitioner continued in service, drawing a monthly salary. It is asserted that he continued all this while on an ad-hoc basis. The final seniority list of Collection Amin was drawn by the Committee, on 09.04.2012. The U.P. Collection Amin Service Rules, 1974, for short “Rules of 1974” were amended in 2015 by the U.P. Collection Amin (Service) 7th Amendment Rules, 2015 For short “the 7th Amendment Rules”. It is pointed out that this seniority list did not carry the petitioner's name in the main part of the list. Instead, it carried at the foot of the list, a separate list of six Collection Amins including one Narsingh Mall, who were continuing in service under orders of this Court. The name of the petitioner figures at Sr. No. 5 of this separate appendage to the seniority list. Instead, it carried at the foot of the list, a separate list of six Collection Amins including one Narsingh Mall, who were continuing in service under orders of this Court. The name of the petitioner figures at Sr. No. 5 of this separate appendage to the seniority list. The list dated 09.04.2012 was forwarded by the District Magistrate to the Government, where age relaxation was granted on 13.06.2016. In consequence of this list being forwarded, juniors to the petitioner were appointed by the District Magistrate as regular Collection Amins on 25.07.2016 and were posted to different tehsils by the Additional District Magistrate (Finance and Revenue), Deoria vide order dated 30.07.2016. This order of the District Magistrate further excluded the petitioner. The petitioner made a representation in the matter on 05.01.2016 to the District Magistrate, requesting that his case for regularization be considered. This representation was not attended to. Accordingly, the petitioner filed Writ -A No. 32077 of 2016, claiming regularization in service as a Collection Amin. This Court disposed of Writ -A No. 32077 of 2016, vide order dated 18.07.2016 in terms of the following directions : In this view of the matter, this writ petition is disposed of with the consent of the learned counsel for the parties with a direction to the respondent no.2, Collector/District Magistrate, District Deoria to examine the claim of the petitioner for regularization in the light of the observations made above and in accordance with law within a period of four months from the date a certified copy of this order is received in his office. It is made clear that the Court has not adjudicated the claim of the petitioner on merit. 5. The District Magistrate, by the impugned order dated 08.10.2016, has rejected the petitioner's claim to regularize him as a Collection Amin. 6. Aggrieved, this writ petition has been filed. 7. A perusal of the impugned order shows that the petitioner's claim to regularization was rejected under the Rules of 1974 as amended by the 7th Amendment of 2015, on the ground that 35% quota prescribed under the Rules for Seasonal Collection Amins was already full by 25.07.2016. 6. Aggrieved, this writ petition has been filed. 7. A perusal of the impugned order shows that the petitioner's claim to regularization was rejected under the Rules of 1974 as amended by the 7th Amendment of 2015, on the ground that 35% quota prescribed under the Rules for Seasonal Collection Amins was already full by 25.07.2016. So far as the regularization under the U.P. Regularization of Ad-hoc (On posts outside the purview of Public Service Commission) Rules, 1979 for short “Rules of 1979”, as amended by the 3rd Amendment Rules, 2001, the petitioner was not eligible, because he was not an Ad-hoc Amin, but appointed in a Stop Gap arrangement, without being selected through any process prescribed by the Rules of 1974. 8. Mr. Awadh Behari Singh, learned counsel for the petitioner, submits that so far as first premise on which the impugned order is founded, it is flawed, inasmuch as all the Seasonal Collection Amin, who had been selected until 25.07.2016 for regularization, were juniors to the petitioner as Seasonal Collection Amin. It has been specifically asserted in Paragraph 7, 9 and 20 that Seasonal Collection Amins appointed, subsequent to 1990, have been regularized on different dates. The candidates placed from Sr. No. 23 onwards, in the seniority list of 7th July, are juniors and their services have been regularized. He submits, therefore, that there is no ground to refuse that quota earmarked for Seasonal Collection Amins, which was full by 25.07.2016. 9. On the other limb of the submission, it is urged that declining the petitioner's claim, holding his appointment to be one by way of Stop Gap arrangement, and not ad-hoc, is also without basis. The petitioner has continued against a vacant post as long as 28 years and an engagement that long cannot be said to be by way of Stop Gap arrangement. Learned counsel also submits that it is not merely by dint of a judicial order that the petitioner has continued for all these 28 years. The protection of the judicial order vanished after 21.04.2004, once Writ Petition No. 430 of 1991(SS) was disposed of. The continuance of the petitioner against a vacant post until he retired on 31.07.2018 was not ordered by any judicial interdict. It was the respondents who permitted the petitioner to continue all this while. 10. The protection of the judicial order vanished after 21.04.2004, once Writ Petition No. 430 of 1991(SS) was disposed of. The continuance of the petitioner against a vacant post until he retired on 31.07.2018 was not ordered by any judicial interdict. It was the respondents who permitted the petitioner to continue all this while. 10. Learned Standing Counsel has refuted the aforesaid submissions and pointed out that in Paragraph 11 of the counter affidavit, it is asserted that the petitioner continued in service under the umbrella of interim orders passed by this Court. There is no explanation as to how the petitioner continued after 21.04.2004, whereafter there is no interim order in operation, directing that the petitioner ought to continue in service. It is urged by learned Standing Counsel that the petitioner has not been selected in accordance with Rules, and thus, has no right to the post. His case does not fall under the purview of either the Rules of 1974 or the Rules of 1979. 11. This Court has considered the rival submissions advanced on both sides. The Court, on a perusal of the entire circumstances, finds that the petitioner had been permitted to continue, no doubt, at one point of time, under the umbrella of a judicial order, but not for the whole of his service. He was permitted by the respondents to continue in service, against a sanctioned post, drawing regular salary after 21.04.2004, without an interim order, protecting his interest by permitting him to continue in service. The petitioner retired on attaining the age of superannuation, and in the process, has rendered 28 years of service on the post of Collection Amin. To dub this kind of an appointment as ad-hoc and not Stop Gap, does not commend itself to this Court. A Stop Gap arrangement, by its nature, is something pro tem. It is not an arrangement which can continue or ought to continue over a period as long as 14 years. These 14 years was a period of time when the petitioner was allowed to continue as a Collection Amin, without the protection of a judicial order, interim or otherwise. It cannot, therefore, be gainsaid that the petitioner was not an ad-hoc employee, but a man who filled in Stop Gap. These 14 years was a period of time when the petitioner was allowed to continue as a Collection Amin, without the protection of a judicial order, interim or otherwise. It cannot, therefore, be gainsaid that the petitioner was not an ad-hoc employee, but a man who filled in Stop Gap. The District Magistrate has committed a manifest error to hold the petitioner's services to be a Stop Gap arrangement instead of an ad-hoc one. Ad-hoc means a kind of arrangement that is not in accordance with the Rules, particularly in the context of service jurisprudence. No doubt, the petitioner was not selected in accordance with the Rules, but he was allowed to continue for a total period of 23 years, of which, 14 were without the protection of a judicial order, interim or final. This kind of arrangement certainly qualifies as an ad-hoc arrangement; an ad-hoc appointment. 12. Learned counsel for the petitioner has drawn attention of this Court towards the fact that Narsingh Mall, who is similarly circumstanced as the petitioner, was also declined regular selection by the Selection Committee constituted under the Rules of 1974 and it was held by the Collector that his appointment was not ad-hoc, but one by way of a Stop Gap arrangement. This Court, in Writ -A No. 31326 of 2016, filed by Narsingh Mall, who is similarly circumstanced as the petitioner, held that the petitioner, having continued against a clear vacancy until time that he retired, his appointment is to be regarded as ad-hoc and being one made prior to 30.06.1998, entitled him to regularisation under the 3rd Amendment Rules, 1998. In the present case too, the petitioner has continued on an ad-hoc basis since 1995 against a clear vacancy, until he superannuated on 31.07.2018. 13. In opinion of this Court, his case would clearly fall within the purview of the 3rd Amendment Rules, 2001. The decision of learned Single Judge in Writ -A No. 31326 of 2016, allowing the writ petition and directing Narsingh Mall's regularization on the post of Collection Amin under the Rules of 2001, has been affirmed by a Division Bench of this Court in Special Appeal (Defective) No. 483 of 2018. The decision of the Division Bench in the case last mentioned, would, on principle also, apply to the petitioner’s case, as would the decision of learned Single Judge in Writ-A No. 31326 of 2016. 14. The decision of the Division Bench in the case last mentioned, would, on principle also, apply to the petitioner’s case, as would the decision of learned Single Judge in Writ-A No. 31326 of 2016. 14. Insofar as the petitioner's claim to regulation under the 7th Amendment Rules is concerned, a perusal of the last mentioned proviso those Rules shows that on the commencement of these rules as a one-time measure, 85% of the existing vacancies have to be filled up by selection from amongst the Seasonal Collection Amins otherwise eligible. The petitioner retired from service on 31.07.2018. 7th The Amendment Rules came into force on 01.10.2015, whereas the impugned order was passed on 08.10.2016. Thus, at the time when the District Magistrate made the impugned order, the petitioner's claim as a Seasonal Collection Amin was to be reckoned on the basis of a quota of 85%, and not 35%. A perusal of the impugned order shows that the District Magistrate proceeded on the supposition that there was a quota of 35% for appointment of Seasonal Collection Amins against the available vacancy in the cadre. She held that the available vacancy relative to the prescribed quota of 35% was full by 25.07.2016. The impugned order, therefore, proceeds on a reckoning of quota reserved for Seasonal Collection Amins far short of the prescribed 85%. The impugned order, therefore, is seriously flawed on this score as well. 15. In this view of the matter, this Court is of opinion that the impugned order passed by the District Magistrate, Deoria dated 08.10.2016, cannot be sustained and is liable to be quashed. 16. In the result, this writ petition succeeds and is allowed. The impugned order dated 08.10.2016 passed by the District Magistrate, Deoria is hereby quashed. It is ordered that the petitioner shall be treated to be regularized on the post of Collection Amin, under the 3rd Amendment Rules, 2001, which shall be done notwithstanding his superannuation on 31.07.2018. Moreover, the petitioner will also be entitled to his post-retiral benefits in accordance with the Rules of 1974. 17. There shall be no order as to costs.