Court No. - 6
Case :- WRIT - A No. - 38364 of 2016 Petitioner :- Chintaman And 3 Others Respondent :- State Of U.P. And Another Counsel for Petitioner :- Siddharth Khare,Ashok Khare Counsel for Respondent :- C.S.C.
Hon'ble Yashwant Varma,J.
Heard learned counsel for the petitioners and the learned Standing Counsel.
This petition impugns the order dated 14 August 2015 in terms of which the prayer for regularisation as made by the petitioners in terms of the provision of Rule 5 of the U.P. Collection Amin Service Rules 1974 has come to be turned down.
The petitioners earlier appear to have filed a writ petition being Writ- A No. 8851 of 1996. In that petition an interim order operated as a consequence of which they continued to work as Seasonal Collection Amins. The said writ petition was ultimately disposed of on 10 October 2014 in the following terms:
“Accordingly, the writ petition is disposed of in the aforesaid terms with a direction to the respondents to consider the case of the petitioners for regularisation in terms of the observations made hereinabove. The aforesaid consideration shall be made within a period of three months from the date a certified copy of this order is produced before the competent authority. It is made clear that the disposal of this writ petition shall not entail ouster of the petitioners from service.”
Consequent to the directions issued by the Court, the District Magistrate, Jhansi on 14 August 2015 took cognizance of the representations made by the petitioners and proceeded to hold that since the District Level seniority list had been prepared the case of the petitioners would be duly considered along with all other Collection Amins in light of the provisions of Rule 5. The District Magistrate further noted in this order that the case of the petitioners for regularisation cannot be considered solely on the ground of their position in the seniority list since the recovery percentage of each candidate individually is also to be assessed. The exercise for considering regularisation/absorption was ultimately initiated and completed in August 2015.
The claim of the petitioners has been negatived by the impugned order principally on two grounds. The first ground taken by the respondents is that all the petitioners have attained an age of more than 45 years thus breaching one of the statutory conditions prescribed under Rule 5. The second ground which has weighed with the respondents is that none of the petitioners obtained a recovery percentage of 70% as envisaged under the aforementioned provision.
While insofar as the issue of the maximum age limit being breached is concerned, Sri Khare has orally referred to certain Government Orders in terms of which, according to him, a power stood vested in the State Government to relax this requirement, this Court does not deem it necessary to dwell on the aspect since no such Government Order has been brought to the attention of the Court in this case.
Insofar as the obtaining of the requisite recovery percentage is concerned, it is not disputed before this Court that the percentage of recovery effected by each of the petitioners in the last four Fasalis was less than the minimum requirement of 70%. What is however, contended is that on the date when the petitioners' claim was being considered in January 2015 at that time all the petitioners had in fact attained a recovery percentage of 70%. In view thereof, according to Sri Khare, their claim for absorption could not have been turned down on this score.
This Court finds itself unable to sustain this submission on the following two counts. Firstly in the order dated 14 August 2015, there is no definitive finding recorded by the District Magistrate with respect to the recovery percentage of the petitioners as obtaining on that date. Sri Khare seeks to draw sustenance in this respect solely from the recital in the order that the petitioners fell either in category A or category B of employees. This, in the considered view of the Court, cannot be viewed as a determinative finding with respect to the recovery percentage obtained by the petitioners especially since their claim for regularisation on that date had only been deferred for further consideration. Secondly the authority was obliged in law to consider the recovery percentage of each Collection Amin at the time when their claim for absorption was actually taken up for consideration. This was admittedly done in August 2015.
As noticed above, it is not disputed before this Court that on 14 August 2015 when the petitioners case was considered, none of them had obtained a recovery percentage of 70% in the last four Fasalis. Consequently the Court finds no ground warranting interference with the order impugned. The writ petition is dismissed.
At this stage Sri Khare submitted that since the petitioners are still working their claim for absorption in terms of Rule 5 may be considered by the respondents at the time when the case of other similarly situated Collection Amins is taken up for consideration. This Court only clarifies that this judgment shall not preclude the right of the petitioners, if so existing in law, to stake a claim for absorption in terms of Rule 5 at the appropriate stage.
Order Date :- 28.11.2018 LA/-