Hon'ble Dr. Satish Chandra,J.
We have heard learned counsel for parties and perused the records.
This special appeal arises out of the judgment and order dated 21.1.2006 passed by a learned Single Judge in Writ Petition No. 6556 of 2006 (S/S) whereby it was held that the district authorities while bypassing the procedure prescribed under Rule 5(2) and Rule 19 of Chapter VI of U.P. Collection Amins Service Rules, 1974 drew up the seniority list by taking into consideration the amount of recovery effected by them. Learned counsel for appellants submitted that learned Single Judge in the impugned judgment has held that the higher recovery target cannot be made the criterion for preparation of seniority list and thus held the list prepared on that basis as erroneous and directed the authorities to re-draw the seniority list.
Moreover, the appointments made on the basis of higher recovery target was also kept in abeyance till the seniority list was re-drawn up. Being aggrieved by the said order, as the service of appellant who claims to have been selected on 19.2.2006 and given appointment on 1st March, 2006 was terminated on 28th December, 2006, has filed this Special Appeal mainly on the ground that even though in the writ petition, there was no prayer for quashment of selection process and the appellants were not given opportunity of hearing, (as they were not arrayed as a party), yet their selection has been quashed.
Learned counsel Sri Asit Chaturvedi in support of his submissions also cited three judgments of the Hon'ble Apex Court, namely, (1) 1995 (Supp.) Vol-1 SCC 179 (Ishwar Singh & others v. Kuldeep Singh & others); (2) 1996 Vol.-3 SCC 587 (J.Josh Dhanapaul v. S.Thomas & others) ; and (3) 1984 Vol. IV SCC 251, (Prabodh Verma & others v. State of U.P. & others) In support of his submission, he contended that in such cases the impugned judgment should be set aside and the matter may be remanded for a fresh consideration on merit, after giving opportunity of hearing to the affected parties before the learned Single Judge. Learned counsel also submitted that in one such special appeal, a coordinate Bench of this Court has granted interim order and pursuant thereto, the appellants are continuing in their service. Thus, they have served about five years till date.
On the other hand, learned State Counsel submitted that pursuant to the impugned judgment, the State Govt. has since drawn the seniority list and placed the respondent no.1 Dilip Kumar Srivastava at serial no. 30, whereas the appellants herein have been placed much below him at serial nos. 156, 14, 120 and 82.
On due consideration of rival submissions, we find that though the selection process took place way back on 19.2.2006 but respondent no.1 submitted his representation soon thereafter on 28.2.2006 and, thus, on the date of issuance of appointment letter i.e. on 1.3.2006 to appellants, the objection of the respondent no.1 was before the authorities. Thus, irrespective of the fact that the judgment was passed subsequently on 21.9.2006, the authorities should have considered the case of respondent no.1 and at that time, sufficient number of vacancies were available for accommodation, though it is a submission of learned counsel for appellants that recovery of appellants was 161% and 140% in two Fasali years, whereas the recovery of respondent no.1 was only 93% but the fact remains that both were in category 'A' as category 'A' started with recovery of 90% and onwards. That apart the respondent no.1 was senior to the appellants in joining except the appellant no.2. The date of joining as Seasonal Amin of respondent no.1 is 26th July, 1996, whereas the appellant no.1 joined on 1st August, 1992.
At this stage, as there is a consensus among the learned counsel for parties and particularly in view of the fact that the latest seniority list issued by the department, is also impugned in a pending Writ Petition No. 5889 of 2008, we set aside the impugned order dated 21.9.2006 and remand the matter to learned Single Judge with direction to re-consider this matter along with pending Writ Petition No. 5889 of 2008 afresh.
Thus, this special appeal is disposed of.
Order Date :- 4.5.2011 VB/-