1. Heard learned counsel for petitioner and learned Standing Counsel for respondents.
2. The instant writ petition has been filed praying for following relief(s):
"1. Issue, writ order or direction in the nature of certiorari quashing the impugned order dated 11.09.2020 passed by the opposite party no. 3 contained as Annexure no. 1 to the writ petition.
2. Issue, a writ order or direction in the nature of mandamus commanding the opposite parties to regularize the services of the petitioner on the post of collection Amin in District-Shrawasti from on date on which he become eligible with consequential benefit of service and pay him salary regularly in accordance with law.
3. Issue, other writ order or direction as is deemed fit and proper under the circumstances of the case.
4. Allow the writ petition with cost."
3. The case set forth by the petitioner is that the petitioner has been working since the year 1994 as a Seasonal Collection Amin. After having worked for sufficiently long time the petitioner filed Writ Petition No. 4120 (SS) of 2014 in re: Keshari Kumar & another vs State of U.P. & others praying for their regularisation. This Court vide order dated 05.01.2018, a copy of which is annexure 4 to the petition, disposed of the petition permitting the petitioners to make a fresh representation to the District Magistrate raising their grievances and the District Magistrate was required to consider the same in accordance with law within specified time. In the said petition the petitioner was petitioner no. 2.
4. In pursuance thereof the competent authority passed the order dated 28.04.2018, a copy of which is annexure 6 to the petition, whereby the claim of the petitioner was rejected on the ground that as per rules the standard recovery fixed is 70% while the petitioner has only attained the recovery of 54% and thus does not fall within the ambit of the rules for regularisation.
5. The petitioner being aggrieved with the said order filed Writ Petition no. 13275(SS) of 2018 in re: Surendra Kumar Tiwari vs State of U.P. & others and this Court vide order dated 13.07.2020, a copy of which is annexure 7 to the petition, placing reliance on the division bench judgement of this Court passed in Special Appeal No. 518 of 2000 in re:State of U.P. & others vs Sri Surendra Singh set aside the impugned order and remanded back the matter to the District Magistrate, Shravasti to decide afresh the claim of the petitioner by means of a reasoned and speaking order. In pursuance thereof the District Magistrate Shravasti has passed the impugned order dated 11.09.2020 a copy of which is annexure 1 to the petition whereby the claim of the petitioner for regularisation has again been rejected.
6. Learned counsel for petitioner contends that a perusal of the said order would indicate that the competent authority has proceeded to reject the claim of the petitioner solely on the ground that the petitioner is now aged more than 45 years and as per rules governing the regularisation, the maximum age limit is 45 years. It has further been contended by the competent authority that considering that the petitioner is overage, the other grounds for the purpose of regularisation are not being gone into.
7. Learned counsel for petitioner contends that impugned order rejecting the claim of regularistion of the petitioner on the ground of the petitioner being overage is contrary to the government order dated 22.02.2019, a copy of which is annexure 11 to the petition, whereby the government has relaxed the age limit for Seasonal Collection Amin for the purpose of regularisation provided that they fulfill certain conditions as specified under the rules for the purpose of regularisation.
8. Placing reliance on the said government order, learned counsel for petitioner contends that once the government order was well in existence at the time of passing of the impugned order dated 11.09.2020, consequently the competent authority was required to consider the government order for the purpose of regularisation and could not have rejected the claim of the petitioner straightaway on the ground that the petitioner is overage and thus after considering the aforesaid government order, the other conditions which are applicable for the purpose of consideration for regularisation should also have been gone into and thereafter the competent authority could have passed the order in this regard.
9. However, disregarding the government order dated 22.02.2019, the competent authority has passed the impugned order which is legally unsustainable in the eyes of law. It is also contented that the petitioner has unnecessarily been dragged into litigation in order to challenge the impugned order dated 11.09.2020 which at the first instance, considering the government order dated 22.02.2019, should have been considered and had the same been considered, the instant litigation could have been avoided.
10. On the other hand learned Standing Counsel on the basis of averments contained in the counter affidavit argues that as per rules the petitioner was aged more than 45 years, which is maximum age limit specified under the rules, consequently there was no occasion for the competent authority to have gone into the other aspects of the matter i.e. whether the petitioner fulfills the other terms and conditions required for the purpose of regularisation and as such the order has rightly been passed. However he does not dispute the existence of government order dated 22.02.2019, rather a copy of the government order dated 22.02.2019 has itself been annexed as annexure CA-1 to the counter affidavit.
11. Heard learned counsel for parties and perused the record.
12. From the perusal of record it is apparent that initially the petitioner had approached this Court in the year 2014 praying for his regularisation. The said writ petition has been disposed of vide order dated 05.01.2018 by which the competent authority was directed to decide the representation of the petitioner. The said representation has been rejected by an order dated 24.04.2018 on the ground that the standard recovery prescribed under the rules is 70% which the petitioner has failed to achieve.
13. Being aggrieved, the said order was challenged by means of second petition which was allowed vide judgement and order dated 13.07.2020 and the rejection order was quashed. Subsequent thereto the District Magistrate, Shravasti has passed the impugned order dated 11.09.2020 whereby the claim of the petitioner has been rejected solely on the ground that as per the rules the maximum age limit is specified as 45 years while the petitioner is aged more than 45 years and as such his claim for regularisation has been rejected without going into the other grounds which are required for consideration for regularisation.
14. Admittedly, the government has issued order dated 22.02.2019 whereby the age relaxation for eligible Seasonal Collection Amin has been given i.e. those collection amins who fulfill the other conditions for regularisation but are aged more than 45 years, then age relaxation in their case needs to be considered. Despite the government order being dated 22.02.2019 the District Magistrate Shravasti has passed the impugned order dated 11.09.2020 rejecting the claim of the petitioner on the ground of being overage i.e. being above the age of 45 years without considering the government order dated 22.02.2019 which incidentally was issued one and half year prior to the impugned order dated 11.09.2020. It is thus apparent that District Magistrate Shravasti has proceeded to pass the impugned order with patent non-application of mind to the extent that even the government order which has been issued in this regard has been completely disregarded and ignored. The same has thus resulted in this unnecessary litigation at the expense of the petitioner and even wasting the precious judicial time of the Court. Thus an action which should have been taken by the competent authority themselves after considering the government order dated 22.02.2019 has not been done and conveniently ignoring the same, the impugned order has been passed which is unsustainable in the eyes of law and rather passed in a casual and cavalier manner.
15. Considering the aforesaid discussion the writ petition is allowed. the impugned order dated 11.09.2020, a copy of which is annexure 1 to the petition is quashed. The competent authority is directed to consider the claim of the petitioner for regularisation in accordance with rules and considering the government order dated 22.02.2019 within a period of three months from the date of receipt of certified copy of this order.
16. Before parting with the case and taking into consideration that this Court has already observed that the order dated 11.09.2020 as passed by the respondent no. 3 rejecting the claim of the petitioner is capricious and passed in a casual and cavalier manner and has also been passed without considering the government order dated 22.02.2019 and the petitioner having repeatedly been compelled to approach this Court for the redressal of his grievances and this being a third round of litigation, this Court also proposes to impose cost against the respondents.
17. In this regard, from a perusal of the discussion made above, it is apparent that the respondent no. 3, i.e Collector/District Magistrate, District Shravasti has adopted a casual attitude while passing the impugned order totally ignoring the government order dated 22.02.2019 which has a direct bearing on the case. It is thus apparent that the respondent no. 3 has not taken pains to look into the relevant rules and government orders. The Apex Court in the case of Commissioner, Karnataka Housing Board Vs. C. Muddaiah reported in (2007) 1 SCC 689 has considered somewhat akin facts and observed that even if the Court's order is wrong and illegal, that is binding on the parties unless that order is challenged in the superior Court. The Hon'ble Supreme Court also held that if this principle is not adhered to by the State, there will be end of the rule of law. The relevant observations of the Hon'ble Supreme Court in this regard are reproduced below :-
"33. The matter can be looked at from another angle also. It is true that while granting a relief in favour of a party, the court must consider the relevant provisions of law and issue appropriate directions keeping in view such provisions. There may, however, be cases where on the facts and in the circumstances, the court may issue necessary directions in the larger interest of justice keeping in view the principles of justice, equity and good conscience. Take a case, where ex facie injustice has been meted out to an employee. In spite of the fact that he is entitled to certain benefits, they had not been given to him. His representations have been illegally and unjustifiably turned down. He finally approaches a court of law. The court is convinced that gross injustice has been done to him and he was wrongfully, unfairly and with oblique motive deprived of those benefits. The court, in the circumstances, directs the authority to extend all benefits which he would have obtained had he not been illegally deprived of them. Is it open to the authorities in such case to urge that as he has not worked (but held to be illegally deprived), he would not be granted the benefits? Upholding of such plea would amount to allowing a party to take undue advantage of his own wrong. It would perpetrate injustice rather than doing justice to the person wronged."
18. The Hon'ble Supreme Court in the case of Subrata Roy Sahara Vs. Union of India and ors reported in (2014) 8 SCC 470 has held as to when the Court should impose cost to check the frivolous writ petition and the orders which are cause of explosion of dockets of the Court. As already observed above, the impugned order herein has been a cause of unnecessary and avoidable litigation had the respondent no. 3 applied his mind by considering government order dated 22.02.2019. For the sake of convenience, the relevant observation of the Hon'ble Supreme Court in the case of Subrata Roy Sahara (supra) are being reproduced below:-
"191. The Indian judicial system is grossly afflicted with frivolous litigation. Ways and means need to be evolved to deter litigants from their compulsive obsession towards senseless and ill-considered claims. One needs to keep in mind that in the process of litigation, there is an innocent sufferer on the other side of every irresponsible and senseless claim. He suffers long-drawn anxious periods of nervousness and restlessness, whilst the litigation is pending without any fault on his part. He pays for the litigation from out of his savings (or out of his borrowings) worrying that the other side may trick him into defeat for no fault of his. He spends invaluable time briefing counsel and preparing them for his claim. Time which he should have spent at work, or with his family, is lost, for no fault of his. Should a litigant not be compensated for what he has lost for no fault? The suggestion to the legislature is that a litigant who has succeeded must be compensated by the one who has lost. The suggestion to the legislature is to formulate a mechanism that anyone who initiates and continues a litigation senselessly pays for the same. It is suggested that the legislature should consider the introduction of a "Code of Compulsory Costs"."
19. Accordingly, taking into consideration the law laid down by the Hon'ble Supreme Court in the case of Subrata Roy Sahara (supra) the Court imposes cost of Rs. 50,000/- on the State to be paid to the petitioner within a period of three months from the date of receipt of a certified copy of this order. It would be open for the State to recover the said cost from the officials who were lax and whose action has resulted in such avoidable litigation causing repeated harassment to the petitioner.
Order Date :- 18.8.2021/J.K. Dinkar