1. Heard Sri R.C. Tiwari, learned counsel for the petitioners and learned Standing Counsel for the respondents.
2. One of the ground for non suiting the petitioners for substantive appointment on the post of Collection Amin is that the average recovery against the target determined by authorities concerned in the last four Fasals by petitioners is less than average 70% and, therefore, petitioners' service cannot be said to be satisfactory as contemplated under Rule 5 of U.P. Collection Amins' Service Rules, 1974 (hereinafter referred to as the "1974 Rules").
3. Learned counsel for the petitioners pointed out that in respect to other employees the respondents-authorities have taken into consideration the percentage of recovery and not percentage of target set by the authorities but in the case of petitioners they have been discriminated. He referred to the case of one Sri Vinod Kumar Srivastava, who is at serial No. 2 of the seniority list and in column No. 12 and 13 the percentage of recovery and percentage against target are mentioned. The column No. 12 and 13 in respect to Sri Vinod Kumar Srivastava and two petitioners are as under: Name Percentage of recovery Percentage against target Sri Vinod Kumar Srivastava 70.6 72.8 72.4 21.1 46.5 45.7 49.7
----
Akhilesh Kumar, petitioner no. 1 69.4 68.7 70.4 71.6 26.2 43.6 31.4 63.6 Pradeep Kumar Singh, petitioner no. 2 70.5 70.0 73.6 71.5 06.3 28.5 20.0 79.4
4. The decision taken by the authorities in respect to Sri Vinod Kumar Srivastava on page 88 of the paper book shows that he has been held suitable for promotion since in last four Fasals the average recovery in his case was found 70%, which reads as under: ^^pwWafd tuin ds lkef;d laxzg vehuksa dh vuqeksfnr vafre T;s"Brk lwph esa Jh fouksn dqekj JhokLro dh ekax vafre pkj Qlyksa esa vafdr gS] tks mu Qlyksa dh dk;Z vof/k ds fy, fofgr ekud ls de gSA ,slh fLFkfr esa vafdr ekax ds lkis{k vafre pkj Qlyksa esa dh xbZ olwyh ds vk/kkj ij fopkj fd;k x;kA vafre pkj Qlyksa ds nkSjku ekax ds lkis{k vkSlru 70 izfr'kr ls vf/kd dh olwyh dh xbZ gSA ,slh fLFkfr esa Jh fouksn dqekj JhokLro iq= jktsUnz izlkn fofu;ferhdj.k gsrq ik= ik;s x;sA**
5. Similar is the position in respect to Sri Mohammad Idu and Sri Shesh Bahadur, who are at serial No. 5 and 16 respectively in seniority list. Their recovery percentage in respect to columns No. 12 and 13 are as under: Name Percentage of recovery Percentage against target Sri Mohammad Idu 71.3 70.1 71.9 71.6 43.6 47.16 40.5 110.4 Sri Shesh Bahadur 71.3 72.5 74.6 71.3 29.5 10.1 67.6 78.25
6. Sri Mohammad Idu and Sri Shesh Bahadur have also been found suitable for substantive appointment on the ground that average recovery in their case is more than 70% but in respect to petitioners it is the recovery percentage against standard mentioned in column No. 13 is mentioned as is evident from para 23 of the counter affidavit which reads as under: ^^23- ;g fd ;kfpdk ds izLrj&26 esa of.kZr dFku Lohdkj ugha gS D;ksafd iwoZ esa mfYyf[kr gS fd nkjk flag o ';keujk;u dh fu;qfDr ekuuh; mPp U;k;ky; ds vkns'kksa @ funsZ'kksa ds v/khu fd;k x;k gS] bl dkj.k rnuqlkj gh ;kphx.k ds izdj.k esa Hkh fopkj ugha fd;k tk ldrkA ;kphx.k dh pkj Qlyksa esa vkSlr olwyh fuEuor~ gS%& dz0 Ukke lk0la0 vehu vafre pkj Qlyh dh dk;Z vof/k dk;Z fnol Lkk0la0 vehu dk ekud lk0la0 vehu dh olwyh ekud dk izfr'kr ekud dk vkSlr 1 2 3 4 5 6 7 8 1 vf[kys'k dqekj 6&6&96 ls 31&8&96 6&2&99 ls 31&3&99 3&2&2000 ls 31&3&2000 1&3&2001 ls 31&3&2001 87 54 58 31 174000 179999 193333 103333 45713 78973 59834 65740 26-2 43-8 30-9 63-6 38-4 2 iznhi dqekj 12&2&99 ls 31&3&99 13&9&99 ls 30&9&99 14&2&2000 ls 31&3&2000 12&10&2000ls 6&12&2000 48 18 47 56 159999 59999 156666 186666 10173 7619 18547 148363 6-3 12-6 11-8 79-4 32-7 mijksDrkuqlkj ;g fl) gS fd ;kphx.k }kjk vfUre pkj Qlyksa esa dh xbZ olwyh fu/kkZfjr ekud dk vkSlru 70 izfr'kr ls cgqr de gSA**
7. It is, therefore, apparent from the record that petitioners have been discriminated inasmuch as different standard has been applied in order to consider the petitioners' satisfactory service against others who have been held suitable for substantive appointment on the post of Collection Amin. In para 5 of the counter affidavit, the respondents have referred to Board of Revenue's order dated 04.08.2008 stating that it provides that 70% recovery should be considered against the target and not the net recovery.
8. It is interesting to note that even after the Board's circular dated 04.08.2008 which has been relied on by respondents, Annexure-CA-1 to the counter affidavit, it appears that they considered the cases of some other Seasonal Collection Amins, vide AnnexureCA-2 to the counter affidavit differently, i.e., by taking average of recovery and not that of target.
9. Moreover learned Standing Counsel could not explain as to how this Board's order dated 04.08.2008 could be applied to selections already made by respondents and that too on the basis of recovery of 70% to other persons without any reference to percentage against target.
10. Further what has been said by respondents in the impugned order is also contrary to this Court's decision in Writ Petition No. 47911 of 2006, Dara Singh Vs. State of U.P. and others, decided on 06.09.2006 wherein Rule 5 as amended in 2004 was applied in the case of petitioner in that case and this Court held: "By means of this amendment departure has been made from earlier perception of satisfactory work, as by amendment satisfactory work has been defined to mean at lest 70% average realization as per prescribed standard during the last four crops, including good conduct throughout. Here, in the present case 70% average realization during the last four crops has not at all been seen, rather, as per old Rules seventy per cent realization as per standard prescribed during the last four Fasals has been seen, and on the basis of the same claim of petitioner has been non-suited. Qua petitioner, realization for the last four crops, has been noted as 72.3%, 71.5%, 69.7% and 71.7%. In terms of the provisions as contained under sixth amendment to 1974 Rules, average realization being computed, it certainly comes to over and above 70%, as such petitioner's claim has been wrongly non-suited by applying the old Rules which existed prior to amended Rules i.e. Rules with fifth amendment. Consequently, writ petition succeeds and is allowed. The order dated 03.07.2006, to the extent it non-suits the claim of petitioner, is hereby quashed and set aside. Respondents are directed to consider the claim of petitioner as per provisions contained under Sixth Amendment to 1974 Rules, as also the observations made in this judgment, within two months from the date of receipt of a certified copy of this judgment, and in case claim of petitioner is accepted, then he may be placed over and above his juniors."
11. Considering the aforesaid decision, Sri Dara Singh has been held eligible for substantive appointment. That being so the petitioners are also entitled to be considered in the same manner and not on the basis of different criteria and that too which has been sought to be implemented by executive order issued by Board of Revenue without there being any specific provision in the Rules. Rules do not talk of average of target. Reading the same by Board of Revenue in a different manner by circular dated 04.08.2008 amounts to violation of Rule by executive order which is not permissible. It is well settled that an executive order cannot prevail over statutory rules. In Indra Sawhney and others Vs. Union of India and others, 1992 (Suppl) 3 SCC 217 the Apex Court held that though the executive orders can be issued to fill up the gaps in the rules if the rules are silent on the subject but the executive orders cannot be issued which are inconsistent with the statutory rules already framed. In Laxman Dundappa Dhamanekar and another Vs. Management of Vishwa Bharata Seva Smithi and another, JT 2001 (8) SC 171 also the same view was taken. In K. Kuppusamy and another Vs. State of T.N. and others, 1998 (8) SCC 469 the Court said that statutory rules cannot be overridden by executive orders or executive practice and merely because the government has taken a decision to amend the rules does not mean that the rule stood obligated. So long as the rules are not amended in accordance with the procedure prescribed under law the same would continue to apply and would have to be observed in words and spirit. In Chandra Prakash Madhavrao Dadwa and others Vs. Union of India and others, 1998(8) SCC 154 also the Apex Court expressed the same view holding that the executive orders cannot be conflicted and override the statutory rules of 1977.
12. In the circumstances, since the petitioners have not been considered at par with other candidates who have been selected for appointment on substantive post of Collection Amin, in my view, the writ petition deserves to succeed.
13. In the result, the writ petition is allowed. The impugned order dated 28.02.2009 is hereby quashed, in so far as it relates to petitioners. The respondents-competent authority is directed to reconsider them in the light of above observations/directions and the amended Rules without being influenced by any executive order issued by Board of Revenue making deviation in 1974 Rules. This exercise shall be completed by respondents within two months from the date of production of a certified copy of this order. The petitioners, if found selected, shall be given all consequential benefits from the date their juniors were given substantive appointment on the post of Collection Amin. No costs. Order Date :- 21.1.2011 AK