JUDGMENT A.P. Sahi, J.
1. The petitioners, who were seasonal collection amins, have challenged the order dated 30.6.2000 passed by the District Magistrate, Gorakhpur and have prayed for quashing of the same] with a further direction to the said respondent to appoint the petitioners against the permanent posts of regular collection amins in accordance with the provisions of U.P. Collection Amins Service Rules 1974. The challenge is on the ground that the impugned order is in violation of Rule 1974 as amended in the year 1992 referred to herein above and that there is no basis or evidence to show that the petitioners were provided sufficient work so as to satisfy the position laid down under Rule 5 of the aforesaid Rules. It has further been urged that the actions of the respondent are arbitrary and discriminatory being violative of Articles 14 and 19 of the Constitution of India inasmuch as the persons junior to the petitioners have been offered appointment as collection amins whereas the petitioners have been illegally left out.
2. It is admitted to the respondents that the petitioner did function as seasonal collection amins and the court has proceeded to examine the facts on the basis of Rules 1974, referred to herein above. Rule 5 provides that 35 % of the vacancies of permanent collection amin shall be filled up by selection from amongst such seasonal collection amin,
(a) who have worked satisfactorily for at least, four Fasalis.
(b) Whose age on the first day of July of the year in which selection is made does not exceed 45 years.
Provided also that if suitable candidates are not available, remaining vacancies shall be filled by general candidates through direct recruitment.
Explanation- Satisfactory work shall mean at least severity percent realisation as per prescribed standard during the last four Fasals including good conduct throughout.
6. In order to determine the rate of recovery of a candidate, according to the Rules, the respondents in their supplementary counter affidavit sworn by Sri Jagdamba Singh, which is in Hindi, have come out with a case that every seasonal ^collection amin is attached with a regular collection amin and 40% of the work of the regular collection amin is allocated to the seasonal collection amin. This fact indicating the aforesaid norms is contained in paragraph 5 of the affidavit referred to herein above. It has further been stated in the counter affidavit sworn by Sri Shashi Bhushan that the seasonal collection amins, according to their rate of recovery, are graded in three categories. This fact has been stated in paragraph 20 of the said counter affidavit, which is in Hindi, wherein it has been detailed that such collection amins, who give a minimum of 70% recovery are placed in category "Ka", those who give 60 to 69% of the recovery are placed in category "Kha" and those who recover up to 59% are placed in category "Ga".
7. The petitioners in the supplementary rejoinder affidavit dated 2.3.2005 have categorically stated in paragraph 10 that there was absolutely no evidence available with the respondents to show that the petitioners were allocated 40% of demand of the regular collection amin with whom they were attached and such calculation made by the respondents, as suggested in their affidavits, is founded on no basis. The respondents in their affidavits have asserted that petitioner no. 1, Ram Bhajan, has only 55% recovery in aggregate to his credit, petitioner no. 2, Nakdu Ram, has only 39.2% of the recovery to his credit and petitioner no. 3, Munna Lai, had 107% aggregate of recovery to his credit. The breakup has been given in the counter affidavit ask well as in the supplementary counter affidavit filed by respondents.
8. After having examined these facts, the Court vide order dated 26.4.2005 had directed the respondents to bring on record the fact^ as to who was the regular collection amin with whom petitioners were attached and as to what was the demand of recovery from such collection amin so as to enable this Court to find out as to whether 40% of the work/demand was allocated to the petitioners or not. This was necessary in order to assess the calculation of the extent of recovery of each of the individual petitioners according to the nonfts prescribed by the respondents themselves. The facts which have been disclosed in the affidavit filed by the respondents do not support the figures of recovery referred to in the impugned order dated 30.6,2000. The impugned order simply records that all the petitioners have had less than 59% recovery in the last four fasli years, as per the explanation appended to Rule 5 and as such petitioners' representation was being rejected. On the other hand, the facts disclosed in the affidavit of the respondents indicate that petitioner no. 1 had more than 59% recovery in the years 2002 and 2003 which had been indicated as 60% to 80% respectively. Similarly, petitioner no, 2 had 60% recovery in the year 1981 and petitioner no. 3 had more than 59% recovery in all the three years 1991, 1992 and 1993" which figures have been indicated 63%, 83% and 175% respectively. It is, thus, borne out from the affidavit filed by respondents themselves that the facts stated in the impugned order about the percentage of the recovery is incorrect and does not reflect any individual assessment of the petitioners separately. The impugned order, therefore, having proceeded on an erroneous assumption of facts, as is established from the record has to fall through.
9. The Apex Court in the decision of State of N.C.T. of and Anr. v. Sanjeev alias Bittoo, 2005 AIR SCW 1987 reflected on this issue in the following manner extracted from paragraph 16 of the said judgment :-
"...One can conveniently classify under three heads the grounds on which administrative action is subject to control by judicial review. The first ground is 'illegality1 the second ' 'irrationality', and the third 'procedural impropriety. These principles were highlighted by Lord Diplock in Council of Civil Service Unions v. Minister for the Civil Service (1984 (3) ALER 935), (commonly known as CCSU case). If the power has been exercised on a non-consideration or non-application of mind to relevant factors, the exercise of power will be regarded as manifestly erroneous. If a power (whether legislative or administrative) is exercised on the basis of facts which do not exist and and which are patently erroneous, such exercise of power will stand vitiated (See Commissioner of Income Tax v. Mahindra and Mahindra Ltd. ...."
10. Reflecting back to the factum of the allocation of the demand to the petitioners, a perusal of the supplementary counter affidavit of Sri Shashi Bhushan sworn on 11.5.2005 would leave no room for doubt that the aforesaid figure in respect of petitioner nos. 2 and 3 were not available at all. It was also not known to the respondents, as is admitted in the said affidavit, as to with which permanent collection amin were the said petitioners attached. So far as the case of petition no. 1 is concerned, the petitioners has filed a supplementary rejoinder affidavit stating therein that the petitioner was not attached with Qamrul Haq but was attached with one Sri Altaf Husain, who was permanent collection amin. It has further been stated that petitioner no. 1 had been attached with one Sri Suresh Chandra Dubey in 1406 fasli and despite of the order of the Tahsildar, petitioner no. 1 had not been given any recovery work. The letter dated 7.5.2005 sent by the Tahsildar Chauri Chaura, Gorakhpur to the Tahsildar, Judicial, Gorakhpur which has been appended as Annexure-3 to the supplementary counter affidavit, is a testimony to the aforesaid facts. The aforesaid facts, as admitted by the respondents themselves, indicate that there was no evidence available with the respondents in making the calculation of demand allocation of 40%. The exercise, if any, appears to have been taken only after the writ petition was filed when the respondents themselves-came to know that there were no such facts available, as relevant registers and forms, as referred to in the said letter dated 7.5.2005 of the Tahsildar, could not be made available. The aforesaid admitted facts, therefore, leave no room for doubt mat the impugned order dated 30.6.2000 proceeded on the basis of half-fed facts without collecting and assessing the materials on the basis of the norms prescribed under the Rules as admitted by the respondents. The impugned order, therefore, is vitiated on this score as well and is liable to be set aside for being not in compliance with the Rules.
11. Another notable feature of the impugned order is that it recites that the representations of the petitioners were already rejected on 23.12.1998 by the predecessor in the office ",of the then District Magistrate. However, the document which has been appended as Annexure-2 to the supplementary counter affidavit, which is in Hindi, indicates that the same was a report submitted by one Sri Ganga Prasad Pandey on which there is an endorsement that appropriate letter be issued accordingly. There is no separate order of the District Magistrate and, therefore, it has been very conveniently explained by the respondents that the order was passed on 30.6.2000 which is in accordance with the decision taken on 23.12.1998. Be that as it may, the only decision, which was communicated to the petitioners was 30.6.2000 which suffers from infirmities as indicated herein above,
12. Apart from the aforesaid facts, the impugned order no where| records any benefit of reservation to which the petitioners may be entitled. This aspect also deserves to be examined after having undergone the exercise of finding out the correct figure of demand and recovery in respect of the petitioners.
13. Accordingly, the writ petition succeeds and is allowed and the order dated 30.6.2000 is hereby quashed for the reasons recorded herein above with a direction to the District Magistrate, Gorakhpur, respondent no. 1 herein, to scrutinise the entire facts in the light of the observations made herein above and pass a reasoned and speaking order in respect of all the three petitioners as expeditiously as possible, preferably within a period of three months from the date of production of a certified copy of jthe^prder before him by petitioners.