Hon'ble Mrs. Sunita Agarwal,J.
The present Special Appeal has been filed against the Judgment and Order dated 14.11.2011 passed by the learned Single Judge allowing Civil Misc. Writ Petition No. 46858 of 1999 filed by the petitioner-respondent.
We have heard Shri Pankaj Rai, learned Additional Chief Standing Counsel appearing for the respondents-appellants, and Shri Bhagwati Prasad, learned counsel for the petitioner-respondent.
With the consent of the learned counsel for the parties, the present Special Appeal is being finally disposed of at this stage.
From a perusal of the record, it appears that the petitioner-respondent was initially engaged as Seasonal Collection Amin in the Year 1991. The petitioner-respondent filed a Writ Petition before this Court being Civil Misc. Writ Petition No. 4585 of 1998 claiming relief for regularization of his services.
The said Writ Petition was decided by a learned Single Judge of this Court by the Order dated 11.2.1998, inter-alia, directing the Collector/District Magistrate, Allahabad to consider the case of the petitioner-respondent herein for regularization in the light of the Uttar Pradesh Collection Amins' Service Rules, 1974 as amended in 1992 (hereinafter referred to as "The 1974 Rules"), and pass appropriate orders within the period mentioned in the said Order dated 11.2.1998.
Pursuant to the said Order dated 11.2.1998, the Collector/District Magistrate, Allahabad by the Order dated 10.7.1998 decided the Representation of the petitioner-respondent herein.
Pursuant to the said Order dated 10.7.1998, the Sub-Divisional Magistrate, Phoolpur, Allahabad issued an Order dated 25.7.1998, inter-alia, stating that the petitioner-respondent was appointed on temporary basis on the post of Collection Amin in Pay-Scale 3200-4900 on the vacancy which had arisen consequent to the death of Surya Deo Mishra, Collection Amin.
It was further observed in the said Order dated 25.7.1998 that the appointment of the petitioner-respondent would be on probation for one year with effect from the date of taking charge of the post.
Subsequently, by the Order dated 5th October, 1999 passed by the Collector/District Magistrate, Allahabad, the services of the petitioner-respondent were terminated.
It was further provided that in lieu of notice, the petitioner-respondent would be given one month's pay and allowances etc., if any.
The said Order dated 5th October, 1999 referred to the Uttar Pradesh Temporary Government Servants (Termination of Service) Rules, 1975 (hereinafter referred to as "The Termination Rules, 1975").
The petitioner-respondent, thereupon, filed the aforementioned Civil Misc. Writ Petition No. 46858 of 1999. It was, inter-alia, prayed by the petitioner-respondent that the said Order dated 5th October, 1999 terminating the services of the petitioner, be quashed.
A learned Single Judge by the Judgment and Order dated 9.8.2007 allowed the said Writ Petition, namely, Civil Misc. Writ Petition No. 46858 of 1999.
The learned Single Judge in the said Judgment and Order dated 9.8.2007 held as under:
" Considering the fact that the petitioner was appointed on merit, on a permanent vacancy and that the impugned order does not indicate that the work and conduct of the petitioner was found to be in any way unsatisfactory during the period of probation, in my view, the passing of the impugned order dispensing with the services of the petitioner cannot be said to be justified in law, as the petitioner had been duly regularized in accordance with law, by the competent authorities under the relevant service Rules, As such the impugned order deserves to be quashed.
Accordingly this writ petition stands allowed. The impugned order dated 05.10.1999 passed by respondent no. 1 is quashed. The petitioner shall be entitled to all consequential benefits.
No order as to cost."
The respondents-appellants, thereupon, filed Special Appeal being Special Appeal (Defective) No. 141 of 2008 against the said Judgment and Order dated 9.8.2007 passed by the learned Single Judge.
The said Special Appeal was allowed by the Judgment and Order dated 18.2.2008 by the Division Bench. The Division Bench set-aside the said Judgment and Order dated 9.8.2007, and remanded the matter to the learned Single Judge for deciding afresh in view of the observations made in the said Judgment and Order dated 18.2.2008 taking into consideration the pleadings taken by the parties.
Relevant portion of the said Judgment and Order dated 18.2.2008 is reproduced below:
" Learned Standing counsel has submitted that the findings recorded by the learned Single Judge are not based on the pleadings taken by the parties respondent-petitioner had actually been promoted in contravention of the statutory rules and when it came to the knowledge of the appointing authority, a show cause notice dated 21.07.1999 was served upon him pointing out that tin the promotion quota there was only 17 vacancies and petitioner's name appeared at serial no. 29 in the seniority list of Seasonal Collection Amins. Therefore, he had been offered appointment in contravention of U.P. Collection Amin's Services Rules, 1974 amended in 1992(hereinafter referred to as "Rules 1974") which provides for to fill 35% vacancies by promotion. It has further been submitted that the respondent-petitioner did not contravent the said facts in his reply. However reliance has been placed upon the contents of the paragraph 7 of the counter affidavit before the learned Single Judge.
The issue as to whether the respondent-petitioner had been appointed in contravention of provisions of Rules 1974 has not been considered by the learned Single Judge at all.
In view thereof, it requires re-consideration by the learned Single Judge and after hearing learned counsel for respondent-petitioner we set aside the judgment and order dated 09.08.207 and remand the case to the learned Single Judge to decide afresh in view of the aforesaid observations taking into consideration the pleadings taken by the parties expeditiously."
Pursuant to the said Judgment and Order dated 18.2.2008, the matter was considered by the learned Single Judge.
On behalf of the petitioner-respondent herein, reliance was placed upon a Division Bench decision dated 14.12.2009 passed in Special Appeal (Defective) No. 85 of 2008, The Collector/District Magistrate, Allahabad and another Vs. Rajendra Prasad, whereby the Judgment of the learned Single Judge dated 25.7.2007 passed in Civil Misc. Writ Petition No. 46856 of 1999 filed by Rajendra Prasad, was upheld by the Division Bench.
Relying upon the said Division Bench Judgment dated 14.12.2009 passed in the case of Rajendra Prasad (supra), the learned Single Judge by the Judgment and Order dated 14.11.2011 allowed the aforesaid Writ Petition, namely, Civil Misc. Writ Petition No. 46858 of 1999 filed by the petitioner-respondent herein in terms of the Judgment and Order dated 25.7.2007 passed by the learned Single Judge in Civil Misc. Writ Petition No. 46856 of 1999 (Rajendra Prasad vs. The Collector/District Magistrate, Allahabad and another), and quashed the impugned Order dated 5.10.1999 passed by the Collector/District Magistrate, Allahabad, whereby the services of the petitioner-respondent had been terminated.
The respondents-appellants have, thereupon, filed the present Special Appeal seeing the reliefs as mentioned above.
We have heard Shri Pankaj Rai, learned Additional Chief Standing Counsel appearing for the respondents-appellants and Shri Bhagwati Prasad, learned counsel for the petitioner-respondent, and perused the record.
It is submitted by Shri Pankaj Rai, learned Additional Chief Standing Counsel appearing for the respondents-appellants that the Division Bench by the Judgment and Order dated 18.2.2008 while deciding the said Special Appeal (Defective) No. 141 of 2008, specifically directed that the learned Single Judge would decide the Issue as to whether the petitioner-respondent had been appointed in contravention of the provisions of the 1974 Rules.
It is submitted that despite the said specific directions given by the Division Bench, the learned Single Judge has not specifically dealt with the said Issue while passing the Judgment and Order dated 14.11.2011. It is submitted that the learned Single Judge has relied upon the Judgment and Order dated 14.12.2009 passed by the Division Bench in Special Appeal (Defective) No. 85 of 2008, and has observed that the said Division Bench "had considered the aspect as to whether the appointment had been made in accordance with the 1974 Rules", and on the said basis, allowed the aforesaid Civil Misc. Writ Petition No. 46858 of 1999.
It is submitted that the facts in Rajendra Prasad case were not identical to the facts of the case of the petitioner-respondent in regard to the question of validity of the appointment, and the learned Single Judge erred in not considering the facts of the case of the petitioner-respondent for deciding the question of validity of the appointment of the petitioner-respondent as per the directions given by the Division Bench in the said Judgment and Order dated 18.2.2008 passed in Special Appeal (Defective) No. 141 of 2008.
Shri Bhagwati Prasad, learned counsel for the petitioner-respondent submits that the facts of the case of Rajendra Prasad were identical to those of the case of the petitioner-respondent, and the learned Single Judge has rightly relied upon the Division Bench Judgment dated 14.12.2009 passed in Special Appeal (Defective) No. 85 of 2008.
We have considered the submissions made by the learned counsel for the parties.
The Division Bench Judgment dated 14.12.2009 passed in Special Appeal (Defective) No. 85 of 2008 pertaining to the case of Rajendra Prasad upheld the Judgment of the learned Single Judge.
The Division Bench held that even if the petitioner (Rajendra Prasad) was appointed on temporary basis, the order terminating his services could not have been passed under the Termination Rules, 1975 without giving a Show Cause-Notice.
The Division Bench further observed that the termination of the services of the petitioner (Rajendra Prasad) was not a termination simplicitor in view of the defence taken by the respondents-appellants-State that the appointment of the petitioner in the said case (Rajendra Prasad) itself was illegal, and thus, the termination was punitive in nature The Division Bench in the said Judgment and Order dated 14.12.2009 also noted that "the petitioner was regularized under 35% quota by the Sub-District Magistrate, in a permanent vacancy after considering his eligibility and performance. There was nothing to show that his performance had fallen below standard or was unsatisfactory during the period of probation".
The Division Bench in the Judgment and Order dated 18.2.2008 passed in Special Appeal (Defective) No. 141 of 2008 in regard to the case of the petitioner-respondent herein noted the submissions made by the learned Standing Counsel regarding promotion quota being of only 17 vacancies while the name of the petitioner-respondent appearing at Serial No. 29 in the Seniority-List of the Seasonal Collection Amins, and in the circumstances, the offer of appointment to the petitioner-respondent being in contravention of the 1974 Rules which provided for filling-up 35% vacancies by promotion.
Having noted the said submissions made by the learned Standing Counsel, the Division Bench in the Judgment and Order dated 18.2.2008 observed that the learned Single Judge had not considered the Issue as to whether the petitioner-respondent had been appointed in contravention of the provisions of the 1974 Rules.
Accordingly, the Division Bench set-aside the Judgment and Order dated 9.8.2007 passed by the learned Single Judge and remanded the matter to the learned Single Judge for deciding afresh.
It will thus be noticed that the Division Bench directed for consideration of the validity of the appointment of the petitioner-respondent in the light of the submissions made by the learned Standing Counsel before the Division Bench. The said submissions were evidently based on the averments made in the Counter Affidavit filed on behalf of the respondents-appellants in the Writ Petition.
The basic submission, as is evident from the Counter Affidavit and the Supplementary Counter Affidavit filed on behalf of the respondents-appellants in the Writ Petition, appears to be that while only 17 vacancies could be filled-up in promotion quota, the petitioner-respondent whose name appeared at Serial No. 29 in the Seniority-List of the Seasonal Collection Amins was given appointment on the post of Collection Amin, which was contrary to the 1974 Rules.
The Division Bench Judgment dated 14.12.2009 passed in Special Appeal (Defective) No. 85 of 2008 in respect of the said Rejendra Prasad, as noted above, proceeded on the basis that the petitioner in the said case had been regularized under 35% quota by the Sub-Divisional Magistrate in a permanent vacancy after considering his eligibility and performance.
The questions regarding the extent of promotional quota and the position of the petitioner in the said case in the Seniority-List were not considered in the said Judgment and Order dated 14.12.2009 passed in Special Appeal (Defective) No. 85 of 2008.
In the present case, the Division Bench in the Judgment and Order dated 18.2.2008 specifically directed the said aspect to be considered by the learned Single Judge after remand.
A perusal of the Judgment and Order dated 14.11.2011 passed by the learned Single Judge shows that the learned Single Judge has relied upon the Division Bench Judgment dated 14.12.2009 passed in the case of Rajendra Prasad, and has not specifically dealt-with the validity of the appointment of the petitioner-respondent in the light of the observations made by the Division Bench in the Judgment and Order dated 18.2.2008.
In view of the above, we are of the opinion that the present Special Appeal deserves to be allowed, and the same is accordingly allowed.
The Judgment and Order dated 14.11.2011 passed by the learned Single Judge is set-aside.
The matter is remanded to the learned Single Judge for deciding the Writ Petition afresh keeping in view the directions given in the Judgment and Order dated 18.2.2008 passed in Special Appeal (Defective) No. 141 of 2008 as also the observations made in the present Judgment herein-above.
However, on the facts and in the circumstances of the case, there will be no order as to cost.
Order Date :- 20.3.2012 Ajeet