Court No. - 43
Case :- WRIT - A No. - 61467 of 2013 Petitioner :- Mustafa Ali Respondent :- State Of U.P.And 3 Ors. Counsel for Petitioner :- A.A.Siddiqui Counsel for Respondent :- C.S.C.
Hon'ble Ashwani Kumar Mishra,J.
Heard learned counsel for the petitioner and Sri Amar Nath Singh, learned Standing Counsel for the State authorities.
Petitioner retired as Lekhpal and at the relevant point of time was posted at district Allahabad. A special adverse entry was awarded to him on 7.4.2007 by the Sub Divisional Magistrate, Soraon, Allahabad, which is contained in Annexure-1 to the writ petition. This order records that in connection with State Assembly Elections the exercise for preparation of voter list was on and on the relevant date i.e. 7.4.2007 at 8.15 AM it was found that number of photographers were sitting idle without any work entrusted to them. Upon query the concerned S.D.M. was informed that Lekhpals have not come, and therefore, they are not in position to perform the requisite work. It is on this ground that special adverse entry has been awarded to the petitioner. Petitioner made a representation against the aforesaid adverse entry in the year 2011 by submitting that special adverse entry of the year 2007 was never communicated to him and also that he was never assigned election duty, and therefore, the question of his absence would not arise. After noticing such contention of the petitioner the District Magistrate, Allahabad has referred to the order of the Sub Divisional Magistrate dated 7.4.2007 as per which petitioner was found negligent in performing duty relating to State Assembly Elections and that petitioner otherwise was not taking interest in the election related works and ultimately rejected petitioner's representation vide order dated 3.9.2011. Petitioner thereafter preferred an appeal before the Commissioner, Allahabad Division, Allahabad, which was also rejected vide order 20.6.2013. Thus aggrieved, petitioner is before this Court.
Learned counsel for the petitioner submits that except to level charge against the petitioner, the specific reply of the petitioner that he was not assigned any election related work has not been dealt with. Petitioner's entry otherwise for the respective year 2007-08 was satisfactory. It is for this reason that adverse entry has been imposed and that writ petitioner has been denied benefit of ACP also.
Learned Standing Counsel has attempted to justify the orders passed by the authorities.
Perusal of the order passed by the District Magistrate, Allahabad, rejecting petitioner's representation as well as the order of Commissioner, Allahabad rejecting his appeal clearly reveal that petitioner's reply in the matter has not been examined by the authorities concerned. There is no observation or finding in the orders of the authorities holding that petitioner was assigned election duty. The District Magistrate, Allahabad apparently has not applied his mind to the specific contention made by the petitioner. The order of Commissioner also suffers from same infirmity.
In the counter affidavit although it is stated that petitioner was served with copy of order awarding special adverse entry and that petitioner was also present in all review meetings, but there is no specific order or material brought on record by the respondents which could show that any specific duty was assigned to him regarding photography for preparing voter identity card in assembly elections. In the absence of any specific order assigning duty to petitioner in the elections, it would not not be open for the respondents to award any special adverse entry to the petitioner. In that view of the matter, this writ petition is liable to succeed.
Consequently, the writ petition succeeds and is allowed. Orders dated 7.4.2007, 3.9.2011 and 20.6.2013 stand quashed. Since petitioner has already retired way back and has been made to suffer for fairly long, I am not inclined to remit the matter back to the authorities concerned. The rights of the petitioner to be considered for benefits under ACP scheme would also be processed and released.
Order Date :- 29.4.2019 Ashok Kr.