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2023 DIGILAW 287 (ALL)

State of U. P. v. Atul Kumar Srivastava

2023-01-28

RAMESH SINHA, SUBHASH VIDYARTHI

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JUDGMENT Heard Shri Vivek Shukla, learned Standing Counsel for State-petitioner and Shri Pramendra Kumar Singh, learned counsel for the respondent no.1. 2. The instant writ petition has been filed by the State of U.P. against the judgement and order dated 21.09.2017 passed by the State Public Services Tribunal, Indira Bhawan, Lucknow (hereinafter referred to as "the Tribunal") in Claim Petition No.1652 of 2016 filed by the respondent no.1-Atul Kumar Srivastava which was allowed. 3. Briefly stated, facts of the case are that respondent no.1 was appointed as Collection Amin on 15.07.1994, for 89 days. Thereafter he was given further appointment on 24.10.1994 for 60 days. By means of an order dated 10.02.1995, respondent no.1 was appointed on a temporary basis with effect from 10.02.1995 to 08.05.1995. The respondent no.1 filed Writ Petition No.1587 (S/S) of 1995 and on 24.05.1995 this Court passed an order that "if the post is vacant and there is nothing against the petitioner, he may be permitted to work on the said post till such time a duly selected incumbent is made available." The petitioner/ respondent no.1 continued to serve in furtherance of the aforesaid order passed by this Court and he also filed a Writ Petition No. 212 (S/S) of 1988 claiming for regularization of his services. A Committee of four Officers recommended that respondent no.1 was working continuously for the past 17 years and he fulfilled the conditions for regularization. It would be appropriate to regularize his services, if he withdrew his writ petition. 4. Accordingly, the petitioner withdrew his writ petition and a recommendation was made for regularization of his services and by means of an order dated 11.03.2013 passed by the Sub- Divisional Magistrate, Sadar, Lucknow, the petitioner's services were regularized with effect from 14.10.1995. 5. However, on 28.08.2015, the District Magistrate, Lucknow passed an order cancelling the order that was passed by the Sub-Divisional Magistrate, Sadar, Lucknow. 6. Then, respondent no.1 challenged the order dated 28.08.2015 passed by the District Magistrate, Lucknow by filing a Claim Petition before the Tribunal and the Tribunal held that the appointing authority of respondent no.1 was Sub- Divisional Magistrate, Sadar, Lucknow in accordance with the provisions contained in the U.P. Regularisation of Ad hoc Appointments (on Posts outside the Purview of the Public Service Commission) Rules, 1979 (hereinafter referred to as "the Rules, 1979"). The Sub-Divisional Magistrate, Sadar, Lucknow was competent to regularize the services of the petitioner and there was no defect in the regularization order passed by the Sub-Divisional Magistrate, Sadar, Lucknow. 7. The Tribunal further held that the order dated 28.08.2015 had been passed by District Magistrate, Lucknow without giving an opportunity of hearing to the petitioner and the order passed by the District Magistrate, Lucknow was without jurisdiction. Accordingly, the Tribunal set aside the order dated 28.08.2015 passed by the District Magistrate, Lucknow. 8. Assailing the aforesaid order passed by the Tribunal the learned Standing Counsel has submitted that since the Tribunal came to a conclusion that the order dated 28.08.2015 had been passed without giving an opportunity of hearing to the petitioners and for the reason that the District Magistrate, Lucknow had no jurisdiction to pass the order, it was necessary that the Tribunal should have left an opportunity for the Competent Authority to pass a fresh order, after giving an opportunity of hearing to the petitioner. 9. Per contra, the learned counsel for respondent no.1 has submitted that the Tribunal has allowed the Claim Petition not on the sole ground of violation of principles of natural justice and lack of jurisdiction. 10. A perusal of the order dated 21.09.2017 passed by the Tribunal indicates that after having examined the entire material on record, the Tribunal recorded the findings that the petitioner's services had been regularized by the Sub-Divisional Magistrate, Sadar, Lucknow in accordance with the Rules, 1979 and Council Order No. 6313/2 collection laxzg dated 23.08.2005. The order of Regularization was passed by the Competent Authority, after making consultation with the Sub- ordinate Officers and there was no legal error in it. 11. A copy of the recommendation of a four Member Committee is available on record in which the Committee recommended that respondent no.1 was continuously working on the post for 17 years and he fulfilled all the requirements for regularization of services. 12. Therefore, we find that the order of the Tribunal was passed after considering the merits of the case and there appears to be no illegality in it. In view of the aforesaid discussions we find no merit in the writ petition. 13. The Writ Petition lacks merit and is, accordingly, dismissed.