Court No. - 33
Case :- WRIT - A No. - 6680 of 2021 Petitioner :- Phool Chand Yadav And 2 Others Respondent :- State Of U.P. And 11 Others Counsel for Petitioner :- Girish Chandra Maurya Counsel for Respondent :- C.S.C.,Sanjeev Singh
Hon'ble Ashwani Kumar Mishra,J.
1. This petition is directed against an order dated 18.2.2021, passed by the District Magistrate, Basti, whereby contesting respondents have been selected for appointment to the post of Collection Amin in accordance with the 'U.P Collection Amins' Service Rules, 1974 (hereinafter referred to as the 'Rules of 1974') as amended vide 7th amendment Rules notified on 1.10.2015. The final seniority list dated 28.1.2021, on the basis of which this selection has been made, is also challenged in the present writ petition.
2. Certain facts needs to be noticed at the outset. Petitioners as well as contesting respondents were originally engaged in District Basti as Seasonal Collection Amin. Rule 5 of the Rules of 1974 provided that 35% vacancies on the post of Collection Amin would be filled from Seasonal Collection Amin in the manner prescribed. The authorities proceeded to undertake selection on the post of Collection Amin by erroneously calculating 35% vacancy against the total cadre strength instead of 35% against available vacancy. In the exercise so undertaken the private respondents Nos. 7 to 12 were selected. A challenge to their selection was laid on the ground that only 42 vacancies existed where as the authorities treated vacancy to be 79 and made selections accordingly. The matter ultimately came to this Court in Writ Petition No. 64917 of 2014, which was allowed on 3.4.2019. Relevant portion of the judgment dated 3.4.2019 is reproduced hereinafter:-
“Undisputedly the total cadre strength in district Basti stood at 102. The State respondents in their affidavit disclosed that 37 Collection Amins were already working at the relevant time and that consequently 42 vacancies existed. While these facts are not disputed the fundamental error which appears to have been committed by the respondents is evident when they worked out the 35% quota against 79 vacancies rather than the actual vacancies which were existing on the date when the Selection Committee formulated its recommendation. The actual and existing vacancies on that date undisputedly were 42. The Court notes from the language of Rule 5 that the percentage which is earmarked for Collection Peons and Seasonal Collection Amins is not made or correlated to the total cadre strength but "vacancies". In no part of Rule 5 is the percentage co-related to the total cadre strength. As this Court reads the two Provisos which were introduced in Rule 5 it is more than evident that they were principally promulgated in order to absorb Collection Peons and Seasonal Collection Amins who had been engaged by the respondents. It is in that view perhaps that the rule making authority prescribed that the percentages to be set apart for Collection Peons and Seasonal Collection Amins would have to be relatable to the number of vacancies which existed.
Neither the learned Standing Counsel nor Sri Singh have been able to justify the basis on which the respondents have computed the number of vacancies with respect to the total cadre strength. While computing the vacancies with reference to the figure of 79 the State respondents have undisputedly and evidently taken into consideration the number of posts (37) which already stood occupied and held by persons together with the vacancies then existing (42). It is on this basis that the percentage under the Second Proviso was calculated against 79 vacancies. As a result of this fundamental and basic error, even the reservation of seats has manifestly come to be tainted. In view of the above, this Court finds itself unable to sustain the recommendation as framed by the respondents.
The submission of Sri Indra Raj Singh with regard to a lack of locus is noticed only to be rejected for the following reasons.
If the computation of the number of posts which were to be set apart for absorption of Seasonal Collection Amins is itself faulty and unsustainable, it is manifest that the principles of reservation and the percentages prescribed for each category also cannot be saved. Since the reservation percentage also has been worked out against the number of 79, it is manifest that the seats set apart for reserved categories suffers from an inherent defect. Since the entire recommendation suffers from fundamental errors, the respondents would be obliged to initiate the entire process afresh and in accordance with the observations made hereinabove. The objection of locus therefore, does not sustain.
Accordingly and for all the aforesaid reasons while Writ-A No. 13774 of 2015 fails and is dismissed, Writ-A No. 64917 of 2014 shall stand allowed. The impugned order dated 30 October 2014 is quashed. The respondents shall revisit and reevaluate the claim of absorption afresh, in accordance with law and in light of what has been stated hereinabove.
The State shall endeavor to conclude the exercise with expedition and preferably within a period of three months from the date of presentation of a certified copy of this order.”
The above judgment was assailed in Special Appeal No.556 of 2019 but the same was dismissed on 9.5.2019.
3. As a consequence of the aforesaid orders passed by this Court, selections already undertaken by the District Magistrate, Basti vide order dated 30.10.2014 stood nullified. A fresh exercise for selection to the post of Collection Amin thereafter commenced as per the 7th amendment Rules which is impugned in the present writ petition.
4. The controversy raised in this petition centres around private respondent Nos. 7 to 12 who were earlier selected in 2014 and whose selection stood quashed by this Court in the aforesaid writ petition. According to the writ-petitioner since private respondents were selected in the year 2014 and had worked as Collection Amin, therefore, their period of working from 2014 to 2019 could not be clubbed towards their length of service as Seasonal Collection Amin. It is also submitted that this aspect of the matter had been referred to the State Government by the District Magistrate and the State Government vide Government Order dated 5.10.2020 has held that there is no provision for adding the services rendered as Collection Amin in the seniority list to be drawn of the Seasonal Collection Amin. Contention is that on account of such illegality, the period of working from 2014 to 2019 could not be counted but the respondents have erroneously added such working for determining seniority of private respondents.
5. Learned counsel for the respondents, on the other hand submits that the working of private respondents from 1.11.2014 to 3.4.2019 cannot be ignored altogether inasmuch as consequent upon the order passed by this Court setting aside their earlier selection the status of private respondents would be restored in law as it existed earlier i.e. Seasonal Collection Amin and their admitted working has rightly been added towards the length of seniority of Seasonal Collection Amin. Submission is that there is no illegality in the impugned action.
6. I have heard Sri Girish Chandra Maurya, learned counsel for the petitioners, learned Standing Counsel for the State-authorities and Sri Sanjeev Singh and Ram Prasad Yadav for private respondents and also perused the materials on record. The short question that arises for consideration before this Court is as to how the period of working of respondent nos. 7 to 12 from 1.11.2014 to 3.4.2019 is to be treated? Whether such working is to be counted as Seasonal Collection Amin or is to be entirely ignored.
7. The appointment on the post of Collection Amin is governed by the provisions of Rules of 1974. Rule-5 provides the source of recruitment. Under the Rule 35% vacancies on the post of Collection Amin are to be filled from Seasonal Collection Amin who fulfil the requisite eligibility in terms of Rule-5. The initial exercise was undertaken and the select list was drawn on 30.10.2014 in which respondent nos. 7 to 12 were selected and appointed as Collection Amin. The appointment offered to private respondent nos. 7 to 12 was quashed by this Court in Writ Petition No. 64917 of 2014 on the ground that the vacancies had not been correctly determined. The judgment of this Court dated 3.4.2019, in that regard, has attained finality with dismissal of Special Appeal No. 556 of 2019. As a consequence, the working of respondent nos. 7 to 12 cannot be treated as that of Collection Amin. It is, nevertheless admitted that these private respondents have worked from 1.11.2014 to 3.4.2019.
8. Prior to passing of the order dated 30.10.2014, the private respondent nos. 7 to 12 were working as Seasonal Collection Amin. The status of private respondents, therefore, would stand restored once their selection and appointment as Collection Amin stood nullified by this Court in Writ Petition No. 64917 of 2014. As a consequence, the status of private respondents No. 7 to 12 would be restored as Seasonal Collection Amin. The period of their working from 1.11.2014 to 3.4.2019, therefore, will have to be counted towards their working as Seasonal Collection Amin. This is what has been done by the authorities.
9. Even otherwise there was no fault on part of the private respondents which led to their selection and appointment being quashed in Writ Petition No. 64917 of 2014. The petition was allowed only on account of erroneous calculation of vacancy for which the working of private respondent nos. 7 to 12 from 1.11.2014 to 3.4.2019 cannot be excluded for determining their seniority for selection to the post of Collection Amin. The petitioners in their anxiety to dislodge their seniors are asking this Court to lay down an unjust proposition on facts and ignore the admitted working of private respondents which cannot be accepted.
10. The further argument of the counsel for the petitioners that working of the private respondents was in teeth of the interim order passed in Writ Petition No. 64917 of 2014, is equally misconceived. The interim order dated 2.12.2014 only restrained the respondents from acting upon the recommendation of the selection committee and there was no order restraining the private respondents from working. The interim order, therefore, cannot be read as denying the benefit of working to private respondents from 2014 to 2019.
11. It would also be worth noticing that the private respondents had approached this Court by filing Writ Petition No. 8455 of 2020 and a direction was issued by this Court to the District Magistrate, Basti to determine as to what would happen to their working from 1.11.2014 to 3.4.2019. It is pursuant to the order of this Court that the District Magistrate, Basti has taken a decision to include the services of private respondents from 1.11.2014 to 3.4.2019 as length of working as Seasonal Collection Amin.
12. The petitioners' contention that working of private respondents from 1.11.2014 to 3.4.2019 be ignored as such working was as Collection Amin virtually goes contrary to this Court's earlier judgment in Writ Petition No. 64917 of 2014. Once their working as Collection Amin pursuant to the order dated 30.10.2014 has been set at naught, their earlier position as Seasonal Collection Amin would have to be necessarily treated as restored. The period of working from 1.11.2014 to 3.4.2019 has therefore been rightly treated as services rendered in their capacity as Seasonal Collection Amin and has correctly been relied upon for the purposes of offering selection to them on the strength of their seniority.
13. Writ petition, therefore, lacks merit and is accordingly dismissed.
Order Date :- 29.7.2021 n.u.