Heard Sri Surendra Kumar Tripathi, learned counsel for the petitioner and learned Standing Counsel for the State respondents.
By means of this petition the petitioner has prayed following relief :
"I. Issue a writ, order or direction in the nature of Certiorari thereby quash the impugned order dated 29 October 2016, passed by the District Magistrate, Unnao, which is contained as Annexure no. 1 to this writ petition.
II. Issue a writ, order or directions in the nature of Mandamus thereby direct to the opposite parties, to consider the claim of the petitioner for his regularization and confirmation on the post of Collection Amin from the date of his appointment on 30.10.1990 as per his service book record, & as per direction given by this Hon'ble Court in writ petition no. 10351 (S/S) of 1990 on 13.4.2016, and also provide same benefit as per given to same situated person from the final seniority list of adhoc Amins, District - Unnao, dated 29 November 2006.
III. Issue a writ, order or direction in the nature of Mandamus thereby direct to the opposite parties, to provide all consequential benefits to the petitioner accrued from his regularization as well as confirmation from the date of his continue service in the department, i.e. - from 25.10.1991."
The case set forth by the learned counsel for the petitioner is that the petitioner was initially appointed on the post of Seasonal Collection Amin on 6.2.1989. The petitioner has worked on the post of Seasonal Collection Amin and transferred to many places till year 1991. On 25.10.1991 the petitioner was appointed on the post of Collection Amin on ad-hoc basis in a pay scale of Rs. 950/-.
The attention has been drawn towards Annexure no. 3 which is a final order dated 13.4.2016 passed by this Court in the matter of the petitioner bearing Service Single No. 10351 of 1990 whereby this Court while disposing of the writ petition finally directed the opposite parties to consider the case of the petitioner for regular appointment on the post of Collection Amin and pass formal order in accordance with law as well as relevant rules. In compliance of the aforesaid order the District Magistrate, Unnao has passed order dated 23.8.2016 (Annexure no. 7) disposing of the representation of the petitioner saying that all the related issued have been sent to the State Government for proper guidelines and as soon as the guidelines are issued the appropriate order would be passed. The learned counsel has submitted that in the order dated 23.8.2016 the District Magistrate, Unnao has categorically indicated that the petitioner has worked on the post of Collection Amin on ad-hoc basis. However, vide order dated 20.9.2016 the guidelines have been issued by the State Government which is contained as Annexure no. 9 to the writ petition. The learned counsel has further drawn attention of this Court towards Annexure no. 11 which is a letter being issued by the Additional District Magistrate, Unnao addressed to all the Sub-Divisional Magistrates / appointing authority of Unnao enclosing therewith the final gradation list relating to the Collection Amins working at Unnao. In the aforesaid list names of total 38 Collection Amins are shown with their complete details. The name of petitioner finds place at serial no. 11. As per aforesaid final gradation list the petitioner has worked for four fasli years and the percentage of recovery of the petitioner is 73%. In the aforesaid list there is one Sri Vijay Kumar Srivastava s/o Sri Tulsi Ram at serial no. 14 who has also worked for four fasli years and his recovery is 81%.
Learned counsel for the petitioner has also drawn attention of this Court towards Rule 5 of the U.P. Collection Amins Rules, 1974 which provides source of recruitment. The Explanation appended to Rule 5(1)(d) clearly indicates that satisfactory work for the purpose of recruitment shall mean at least 70% realisation as per prescribed standard during the last four fasli years including good conduct throughout. On the strength of aforesaid Rule the learned counsel for the petitioner has submitted that even as per the authority concerned the petitioner has worked in four fasli years and his recovery percentage is more than 70%, to be more precise 73%, therefore, his services should have been regularized on the post in question.
Learned Standing Counsel has tried to defend the impugned order dated 27.10.2016 whereby the claim of the petitioner for regularisation has been rejected only for the three reasons that the petitioner was not appointed on the post of Collection Amin on ad-hoc basis, he has not worked in four fasli and his collection is below the standard so set up by the Rules. However, on being confronted showing the final gradation list wherein it has been categorically indicated that the petitioner has worked in four fasli years and his recovery percentage is 73%, the learned Standing Counsel could not explain the apparent error being made by the authority concerned while passing the impugned order. The learnd Standing Counsel has been again confronted showing Annexure no. 7 which is the order passed by the District Magistrate, Unnao on 23.8.2016 wherein it has been categorically indicated that the petitioner was appointed on ad-hoc basis on the post of Collection Amin then as to how it has been indicated in the impugned order that the petitioner was not appointed on ad-hoc basis, learned Standing Counsel again could not explain this factual anomaly. Not only the above, in para 23 of the counter affidavit it has been categorically indicated that the seniority list of ad-hoc Collection Amins was prepared on 29.11.2006 wherein the name of petitioner finds place at serial no. 11 meaning thereby the petitioner was ad-hoc Collection Amin. However, in para 21 of the counter affidavit it has been indicated that the petitioner was never appointed on ad-hoc post against any clear vacancy. Learned Standing Counsel could not explain these contradictory submissions of the counter affidavit.
Learned counsel for the petitioner has also submitted that one Sri Vijay Kumar Srivastava whose name finds place at serial no. 14 in the gradation list has been regularised but the petitioner who was senior to Sri Vijay Kumar Srivastava has not been regularized for no cogent reasons. On being confronted on the aforesaid point the learned Standing Counsel has drawn attention of the Court towards para 14 of the counter affidavit wherein this fact has been admitted that the name of petitioner finds place at serial no. 11 in the seniority list but he could not be regularised. However, Sri Vijay Kumar Srivastava whose name finds place at serial no. 14 in the gradation list has been regularized.
During the course of argument the learned counsel for the petitioner has produced the photocopy of the service-book of the petitioner for perusal of the Court. The bare perusal of the service -book clearly reveals that the petitioner was appointed on ad-hoc basis as Collection Amin on 25.10.1991 in the pay scale of Rs. 950/- and the last page of service-book reveals that on 1.7.2018 the petitioner was getting the pay to the tune of Rs. 37,200/-. The photocopy of the service-book is being taken on record.
Having heard learned counsel for the parties and having perused the material available on record, I find that the apparent error has been committed by the District Magistrate, Unnao while passing the impugned order dated 27.10.2016 which is Annexure no. 1 to the writ petition inasmuch as the petitioner was appointed and serving on the post of Collection Amin on ad-hoc basis, he has worked in four fasli years and his recovery percentage / realisation was 73%. Besides, one junior person to the petitioner namely, Sri Vijay Kumar Srivastava whose name finds place at serial no. 14 in the gradation list has admittedly been regularised by the Department, therefore, in view of para 19 of the judgment of Hon'ble Apex Court dated 13.12.2019 in re: Civil Appeal Nos. 9413-9414 of 2019 (Rajnish Kumar Mishra & Ors. vs. State of Uttar Pradesh & Ors. etc.) the petitioner should have been regularised w.e.f. the date his junior has been regularised. For the convenience para 19 of the aforesaid judgment is being reproduced herein below :
"19. In any case, we find that in view of the exception carved out in the case of Umadevi (supra) providing for onetime regularization of employees who have completed 10 years or above; the parity of similarly circumstanced employees who have been granted benefit in the case of Sheo Narain Nagar (supra) and the Rules amended in 2016 which provide a cutoff date of 31.12.2001, the appellants are also entitled for regularization of their services."
Accordingly, the impugned order dated 27.10.2016 passed by the District Magistrate, Unnao contained as Annexure no. 1 to the writ petition is set aside / quashed being arbitrary, discriminatory and unwarranted as well as passed without application of mind.
A writ in the nature of mandamus is issued commanding the concerning opposite party i.e. District Magistrate / Collector, Unnao to consider the claim of the petitioner for regularisation and confirmation on the post of Collection Amin w.e.f. the date when this benefit has been extended to the junior to the petitioner thereby the petitioner shall be extended consequential service benefits.
The opposite parties shall make compliance of this order within a period of 10 weeks from the date of production of certified / computer generated copy of this order before the District Magistrate, Unnao.
Writ petition is allowed.
No order as to costs.
Order Date :- 28.7.2021/Om (Rajesh Singh Chauhan, J.)