Court No. - 33
Case:- WRIT - A No. - 5524 of 2019 Petitioner :- Chandra Mohan Srivastava Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Arvind Kumar Trivedi Counsel for Respondent :- C.S.C.
Hon'ble Ashwani Kumar Mishra,J.
Writ petitioner had earlier approached this Court by filing Writ Petition No.295 of 2019 which came to be disposed of vide following orders passed on 10.01.2019:
"Heard learned counsel for the petitioner and the learned Standing Counsel.
Learned Standing Counsel appearing for the second respondent states that subject to all contentions on merits being left open, the grievance of the petitioner pertaining to regularization on the post of Collection Amin shall be duly attended to and disposed of in accordance with law and bearing in mind the decision of the Court in Devki Nandan And 17 Others Vs. State of U.P. And 3 Others reported in 2018 (7) ADJ 334 with expedition and preferably within a period of two months from the date of presentation of a certified copy of this order.
Accordingly and without going into the merits or otherwise of the claim of the petitioner, this petition shall stand disposed of, in view of the statement made and noted above."
Claim of petitioner for regularization has consequently been considered and rejected by the District Magistrate, Kanpur Dehat vide order impugned dated 22.02.2019. This order records that petitioner's recovery in the four fasals was below 70% and that on the date of consideration of his claim i.e. 14.012.2016 he was above 45 years of age. Aggrieved by this order petitioner is before this Court.
According to petitioner, he was appointed as Seasonal Collection Amin in Akbarpur Tehsil of District Kanpur Dehat in July, 1992 and he continued to work as such. His name allegedly was placed at serial no.52 of the seniority list. In view of the amendment made in the U.P. Collection Amin Service Rules, 1974, 85% of vacancies on the post of Collection Amin were to be filled from Seasonal Collection Amin. The qualification for recruitment is otherwise specified in rule 5 of the Rules of 1974 and the explanation to rule 5 defines satisfactory work to extend full cooperation in atleast 70% realization as per the standard fixed by the Government during the last four fasals and good conduct throughout.
Counsel for the petitioner states that petitioner worked for atleast 26 years and denial of his claim for regularization is arbitrary.
Perusal of the order impugned would go to show that petitioner's recovery has been found less by the authorities. In last four fasals petitioner's recovery was assessed 69.91% which is fractionally short by the magical figure of 70%. So far as the petitioner's age being above 45 years on the date of consideration of his claim is concerned, this issue has already been examined by this Court in Devki Nandan and others vs. State of U.P. and others being Writ Petition No.54923 of 2017 and following directions have been issued:
"Resultantly, all the writ petitions are being disposed of by directing the competent authority under Rule 3 of Rules' 1992 to consider:-
1. Whether there should be relaxation in the matter of maximum age, in the context of Rules' 1992, for such candidates who fall within the zone of consideration on account of increase in quota to 85% (for Seasonal Collection Amin) and 100% (for Seasonal Collection Peon), by amendment of the relevant rules, as a one time measure; but have been excluded on account of being overage though they fulfill all other eligibility requirements of the Rules, for regular appointment.
2. Similarly, a simultaneous decision shall also be taken, in the context of Rules' 1992, with regard to petitioners and other similarly situated employees, whose candidature for regular appointment has been considered under the existing quota of 35% and 50% under the second proviso, but they have been denied regular appointment on being overage and their claims have been rejected by the State-respondents on the ground that there is no provision for grant of age relaxation under the recruitment rules.
3. For the purpose, the State-respondent would be requiring to place all relevant material before the Governor so that all attending circumstances are brought to his notice so as to form an opinion as to whether relaxation is to be granted or not; and the manner in which the said power is to be exercised.
The aforesaid exercise shall be completed expeditiously, preferably, within a period of two months from the date of presentation of this order before the competent authority.
Till such a decision is taken and appropriate guidelines are issued by the State- respondent in conformity with the decision of the Governor, the District authorities are restrained from making selection within the quota for regular appointment as provided under the second proviso as also under the fourth proviso of both the relevant recruitment rules, to the regular post of Collection Amins and Collection Peons.
With the above observations and directions, this bunch of writ petitions is disposed of."
It is not in issue that in compliance of the above directions a Government Order has been issued on 22.02.2019 granting age relaxation to such persons. This Government Order has been brought on record as Annexure-9 to the writ petition. The State Government has already accepted the plea of age relaxation. In such circumstance, petitioner's age being above 45 years cannot be a ground to deny consideration to his claim for regularization.
So far as petitioner's recovery having fallen short by magical figure of 70% is concerned, law in that regard has been examined by this Court in Service Single No.2751 of 2014 (Suresh Chand Mishra vs. State of U.P. and others), decided on 21.10.2016 and this Court observed as under in para 16 to 20:
"16. In the case of State of U.P. Throu. Prin. Secy. Deptt. Of Revenue Lko. & Ors. v. Pankaj Srivastava, Special Appeal Defective No. 845 of 2013 also the similar issue was raised. In the said case the claim of seasonal collection amin for regularization was rejected on the ground that he failed to achieve 70% prescribed norms for recovery. The Court held that the explanation of the said Rule-5 has to be harmoniously construed with the main provision which is made in the Rules, 1974. The principal requirement under the Rules was that a seasonal collection amin should have worked for at least four fasli and the extent of recovery needs to be assessed with reference to last four fasli during the period when he worked. The relevant part of the order reads as under:
"...However, the norms of 70% recovery, as clarified, must relate to the demand which was actually entrusted to the employee. The satisfactory performance has to be read with reference to the work, which is actually entrusted to the Seasonal Collection Amin.
Learned counsel appearing on behalf of the appellants has submitted that in the memo of appeal, the State has taken a ground that the respondent would not meet the norms of 70% with reference to the work which was entrusted to him."
17. The principle of law emanates from the above decision is that the recovery depends upon various factors and only recovery cannot be made sole criterion. It has to be considered along with other requirements mentioned in the Rules.
18. The explanation of Rule-5 of the Rules, 1974 has been harmoniously interpreted by this Court in a large number of cases. Reference of some of such cases has already been given hereinabove. The authorities have not paid due attention to the law laid down by this Court and they are rejecting the claim repeatedly on the same ground which has been held to be untenable by this Court long back in the year 2001.
19. I find that most of the claims of regularization of seasonal collection amins are primarily rejected on the ground of less recovery thus it is clear that the authorities do not consider the entire Rules and they have laid emphasis only on the explanation of Rule-5 of the Rules, 1974 and not on the main provision.
20. The Collector is a senior and experienced official and he must be presumed to know that the orders of the High Court have to be obeyed, such is our constitutional scheme. Ignoring the consistent view taken by this Court in the last more than 15 years, cannot be appreciated. If a law has been settled by a superior Court, the good governance requires that the officials must respect the law. The Rule of Law is foundation of a democratic society, and the judiciary is undoubtedly guardian of the Rule of Law."
The object on part of the State in offering 85% appointment as one time measure is to ameliorate to situation of Seasonal Collection Amins in the department, who have been continuing since long. Petitioner's working for several decades as Seasonal Collection Amin is not in dispute. There is no adverse remarks with regard to his working. His collection also is 69.91% in four fasals which is marginally short. Merely because petitioner has failed to achieve the magical figure of 70% would not mean that his otherwise satisfactory work and good conduct would be ignored in light of what has been observed in the case of Suresh Chand Mishra (supra). This Court finds that petitioner's services cannot be termed to be 'Not Satisfactory' only because his recovery in four fasals is slightly below 70%. The petitioner having continued since 1992 would clearly be entitled to be considered for regularization, particularly when his work and conduct throughout has remained good and recovery is also about 70% if principle of rounding off is applied. In such view of the matter and for the reasons, aforesaid, this Court finds that the order of the District Magistrate, Kanpur Dehat, dated 22.02.2019, denying consideration to petitioner's claim for regularization on the post of Collection Amin cannot be sustained.
Writ petition, consequently, succeeds and is allowed. Order dated 22.02.2019 is quashed. The District Magistrate, Kanpur Dehat shall consider petitioner's claim afresh, in light of the above observations, within a period of two months from the date of presentation of a copy of this order. In the event petitioner's claim is accepted, he shall be granted notional benefits from the date persons junior to him have been regularized.
Order Date :- 24.8.2021 Ashok Kr.