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RAJVEER SINGH & OTHERS versus COLLECTOR, ETAH & OTHERS

High Court of Judicature at Allahabad

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Rajveer Singh & Others v. Collector, Etah & Others - WRIT - A No. 49346 of 1999 [2007] RD-AH 10177 (25 May 2007)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

Reserved

Civil Misc. Writ Petition No.49346 of 1999

Rajveer Singh and others                ..... Petitioners

Versus

Collector, Etah and others              ...... Respondents

Hon'ble Sabhajeet Yadav, J.

Petitioners are seasonal collection amins, working as such since last several years, they have filed abovenoted writ petition seeking relief in the nature of writ of certiorari quashing the order dated 10.11.99 passed by Collector, Etah annexures-4, 5 and 6 of the writ petition and for quashing the seniority list dated 30.10.99 prepared by Collector, Etah contained in annexure-8 of the writ petition and entire selection proceeding held on that basis. A further relief in the nature of mandamus has been sought for directing the Collector, Etah to prepare a fresh seniority list on the basis of length of service rendered by individual seasonal collection amins and thereafter to undertake selection proceeding to fill up all existing 22 vacancies on the post of collection amins from amongst the seasonal collection amins strictly in accordance with U.P. Collection Amins Service Rules 1974 as amended in the year 1992.  

2. The relief sought for in the writ petition rests on the assertions that the petitioners no.1, 2, 4, 5, 6, 7 and 8 belong to other backward class while remaining petitioners belong to general category. The date of first appointment as seasonal collection amin of petitioner nos. 1 to 13 is 19.6.76, 20.1.81, 8.2.83, 4.2.82, 5.6.84, 5.6.84, 21.1.86, 18.5.85 1.6.86, 25.6.89, 1.6.90, 3.3.92 and 21.9.95 respectively and each of the petitioners have completed substantial length of service while working as seasonal collection amins as on 31.3.99 the total length of working of petitioners no.1 to 13 comes to:-

"Petitioners' name Length of Service

1. Rajveer Singh 10 years, 8 month and 9 days

2. Rajpal Singh 10 years, 4 months and 18 days

3. Girish Babu 9 years 5, months and 1 day

4. Rohan Lal 9 years 3, months and 10 days

5. Ram Swaroop 8 years, 10 months 3 days

6. Ram Das Verma 7 years, 4 months and 27 days

7. Jaipal Singh 7 years, 8 months and 20 days

8. Geetam Singh 7 years, 6 months and 20 days

9. Yogendra Singh 7 years, 4 months and 21 days

10. Devendra Singh 6 years, 1 month and 19 days

11. Pratap Singh 4 years, 11 months and 29 days

12. Hariom 3 years, 9 months and 10 days

13. Veeresh Kumar 1 year, 8 months and 24 days

3. It is further stated that even subsequent to 31.3.99 all the petitioners except petitioner no.2 have been working as seasonal collection amins. The last extension of appointment as seasonal amin granted to all petitioners except to petitioner no.2 was so granted on 18.5.99/20.5.99 and in pursuant thereto all the petitioners except petitioner no.2 were continuously working as seasonal collection amins till 30.9.99. The work and conduct of each of the petitioners have been fully satisfactory and there does not exist any complaint with regard to their working or conduct. The recovery percentage of petitioners has also been satisfactory and same has been in excess of 75% of the recovery certificate issued to them for collection. It is also stated that the petitioners are required to recover the amount on the basis of recovery certificates issued to them and in absence of recovery certificates no recovery whatsoever can be effected by the petitioners and all the petitioners are posted in rural areas and the recovery required to be effected by them is recovery towards loan, revenue and canal or tubewell irrigation charges and some nominal portion of such recovery comprises of other dues. It is further stated in the writ petition that in contrast to aforesaid, seasonal collection amins posted in urban areas are required to effect recovery of various nature on the basis of recovery certificates issued to them for realisation of dues of miscellaneous category. The recovery certificates issued to the seasonal collection amins posted in urban areas or semi urban areas are always for in excess of the recovery certificates issued to the seasonal collection amins posted in rural areas so that the total amount recovered by collection amins posted in urban areas or semi urban areas is in excess of the amount recovered by collections amins posted in rural areas. This is on account of the simple reason that collection amins posted in urban areas or semi urban areas are issued recovery certificates for realisation of larger amount in comparison to recovery certificates issued to the collection amins posted in rural areas for realisation. Thus, by way of necessity the percentage of recovery is percentage of amount recovered by individual collection amins in co-relation with recovery certificates issued to them and there can be no possibility for making any comparison of the amount recovered by collection amins posted in rural areas with the amount recovered by collection amins posted in urban or semi urban areas.

4. It is further stated in the writ petition that respondents no.2 to 9 have also been working as seasonal collection amins. The respondent no.2, 3 and 6 belong to general category, respondents no.4, 5 and 8 belong to O.B.C. and respondents no.7 and 9 belong to scheduled caste.   The respondents no. 2 to 9 are much junior than the majority of petitioners on account of their having been appointed on the dates subsequent to the petitioners so also said persons having lesser length of total service to their credit in comparison to the length of service rendered by petitioners. The date of initial appointment of respondent no.2 to 10 is 4.8.92, 13.11.91, 1.6.92, 1.3.87, 4.6.92, 23.5.97, 4.6.92, 4.6.92 and 24. 1. 82 respectively. Thus the length of service of respondents no.2 to 10 may be computed as under:-

Sl.No. Respondents Length of Service

1. Dharmendra Rr.Singh 5 years, 9 months and 22 days

2. Neeraj 5 years, 4 months and 7 days

3. Pramod Kumar 5 years, 7 months and 10 days

4. Bhoop Singh 5 years, 10 months and 26 days

5. Sanjeev Kumar 4 years, 8 months and 16 days

6. Khoob Singh 1 year

7. Kunwarpal 5 years, 5 months and 5 days

8. Hridesh Kumar 4 years, 6 months and 18 days

9. Premshanker Sharma 9 years, 11 months and 4 days.

5. It is stated in the writ petition that the recruitment to the post of collection amin is governed by U.P. Collection Amin Service Rules 1974. These rules were amended in the year 1992. Rule 5 of 1974 rules as amended in the year 1992 provides that 35% of posts would be filled up by selection from amongst seasonal collection amins who have worked satisfactorily for minimum 4 fasali years and whose age on 1st July of the year of recruitment is less than 45 years. The said rules also contains the explanation that the satisfactory service apart from good conduct means a minimum 70% of recovery for the last 4 fasali. Rule 6 makes applicable reservation in favour of schedule castes and schedule tribes and other backward class in accordance with Government orders issued from time to time in this regard. On a relevant date the reservation in favour of schedule caste and schedule tribe and other backward classes' candidates in Public Service is provided for by U.P. Public Services (Reservation in favour of schedule castes and schedule tribes and other backward classes Act 1994) U.P. Act No.4 of 1994, wherein there exist 27% reservation in favour of other backward classes candidates. It is also stated that Rule 17A prescribes procedure for selection for the seasonal collection amins under which Collector is required to prepare a list of seasonal collection amins fulfilling the eligibility conditions specified under Rule 5 and thereafter select requisite number of persons on the basis of seniority or length of service subject to satisfactory service. It is stated that despite the rules having been amended in the year 1992 making provision for appointment from amongst seasonal collection amins, District authorities did not take any action whatsoever for making appointment from amongst seasonal collection amins for past 7 years. Feeling aggrieved by inaction of District authorities the petitioners have approached this Court by filing a writ petition no.35621 of 1998. The said writ petition was decided on 19.11.1998, whereby a direction was issued that when regular recruitment take place the respondents should consider the claim of petitioners for regular appointment against 35% vacancies reserved for seasonal collection amins on the basis of seniority subject to satisfactory work as provided under the rules.

6. It is further stated that on 10.11.99 two orders have been passed by Collector, Etah. By means of the first order the Collector, Etah has rejected the representation pertaining to petitioner No.1, 2, 3 ,5, 6 and 9 to 12 while second order pertains to petitioner no.4. While rejecting the said representations only 8 posts were allocated in the quota of seasonal collection amins out of total 22 vacancies and in proceedings so undertaken the petitioners were not regularised and Collector, Etah has granted 8 appointments to the respondents no.2 to 9 by means of identical order of appointment dated 10.11.99. Despite best efforts the petitioners have not been able to obtain copy of appointment orders pertaining to respondents no.2 to 9. A true copy of one said order of appointment dated 10.11.99 pertaining to Hridesh Kumar son of Sri Sonpal is on record as Annexure-6of the writ petition which demonstrates that some selection committee was constituted which has conducted the process of selection on 3.11.1999 and on that basis the order of appointment dated 10.11.99 was issued. It is further stated that total number of sanctioned posts of collection amins in District Etah are 136 and 35% posts required to be filled up from amongst seasonal collection amins is in reference to the total number of posts existing in the cadre of collection amins in the district. The said 35% has no co-relation with the number of existing vacancies in the cadre of collection amins. Thus 35% thereof would come to 48 posts, accordingly, all 22 vacant posts of collection amins in the District Etah would be covered by 35% posts required to be filled up from amongst the seasonal collection amins and there does not exist any justification for Collector, Etah to limit the proceedings for selection only for 8 out of aforesaid 22 vacancies of regular collection amins. The view of Collector on that count is wholly erroneous and contrary to the Rule 5 of 1974 Rules as amended in the year 1992.

7. It is further stated in the writ petition that Collector, Etah has prepared seniority list on the basis of recovery percentage worked out with regard to each seasonal collection amin for the last 4 fasali years with reference to norms of Rs.1 lac per month and thereafter person having highest percentage has been placed at serial no1 followed by other seasonal collection amins with their percentage in descending order. A true copy of the seniority list so prepared on 30.10.99 is on record as Annexure-8 of the writ petition. It is stated that the aforesaid principle evolved by the Collector, Etah for determining the seniority position of seasonal collection amins is totally unjustified and there does not exist any justification for determining seniority position on the basis of percentage of recovery. The seniority list with regard to seasonal collection amin is required to be prepared on the basis of length of total service rendered by each such seasonal collection amin and there can be no other yardstick for determination of seniority position except perhaps the date of initial appointment. Thus, the entire selection proceeding including the appointments granted to the respondents no.2 to 9 is vitiated on account of incorrect preparation of seniority list. The seniority list so prepared on 30.10.99 had never been published by Collector Etah nor any objections were invited against the same. Thus, the petitioners have no opportunity whatsoever to object the seniority list as prepared by Collector, Etah on the basis of which selection was held on 3.11.99 and thereafter the order of appointments were issued on 10.11.99.

8. It is further stated that even otherwise there does not exist any justification for determining the recovery percentage with reference of target of recovery fixed generally for collection amins, the recovery percentage necessarily has co-relation with the amount for which the recovery certificate has been issued and determination of recovery percentage with reference to norm generally prescribed for all collection amins also loses sight of the  facts that a collection amin posted in urban area or semi urban area have more recovery certificates on the basis of which he is required to recover in comparison to collection amins posted in rural area. In this connection an order dated 9.2.99 passed by Board of Revenue has been filed as Annexure-9 of the writ petition, wherein the Board of Revenue itself directed that the efficiency of a collection amin cannot be determined only on the basis of norms prescribed but it should be based on existing recovery certificate, therefore, the entire selection proceeding is vitiated on account of the fact that percentage of recovery determined by Collector, Etah has been totally diverged from the amount for which recovery certificate has been issued to individual collection amins.

9. It is also stated that even on the basis of defective seniority list prepared by Collector, Etah on 30.10.99 appointments have not been granted in order of seniority for example appointments granted to persons at serial no.1, 2, 4 to 8, 10 and 42 from the said list, even according to said defective list the placement of petitioner no.13 is at serial no.23 and that of petitioner no.9 is at serial no.37. Thus the entire selection has been conducted in arbitrary and discretionary manner, as such cannot be sustained. It is further stated that there does not exist any material adverse to the petitioners in their service record on the basis of which petitioner can be held unsuited for appointment. It is also stated that the respondent no.10 has been granted appointment against substantive vacancy of collection amin in the month of August 1999 even without holding any selection and even without considering other seasonal collection amins including the petitioners for appointment. Sri Prem Shanker Sharma respondent no.10 is junior to the petitioners no. 1 and 2. His total length of service is less than petitioners no.1 and 2. There does not exist any justification for grant of appointment to the respondent no.10 without considering the case of other seasonal collection  amins including the petitioners.

10. A detail counter affidavit has been filed in the writ petition by Sri Ravi Prakash Srivastava, Tehsildar, Etah on behalf of respondents, wherein the assertions made in the writ petition almost have been denied and disputed. In para 4 of the counter affidavit it has been stated that the petitioner no. 2 Sri Rajpal Singh has died and other petitioners have been permitted to work as seasonal collection amins lastly by 30.9.99 and thereafter they were not deputed to work on account of their low percentage of realisation of the Government dues. In para 7 of the counter affidavit it has been stated that the petitioners were provided recovery demand of sufficient amount. In para 10 of the counter affidavit it has been stated that according to the rules of Uttar Pradesh Collection Amins Service Rules, 1974 as amended in the year 1992 against total 22 vacancies of regular collection amins in 35% quota of seasonal collection amins only 8 vacancies could be allocated in the selection in question. In para 11 of the counter affidavit it is stated that the date of first appointment of respondents no. 2 to 10 is 4.6.90, 13.11.91, 1.6.90, 1.3.87, 4.6.90, 23.5.97, 4.6.90, 4.6.90 and 24.11.91 respectively. In para 19 of the counter affidavit it has been stated that the selection for regular appointment of respondents no.2 to 9 has been made by duly constituted selection committee in accordance with the provisions of law and letter of appointments on regular basis have been issued to them on 10.11.99. While making reply of para 47 and 48 of the writ petition in para 22 of the counter affidavit it is stated that the seniority list of seasonal collection amins was prepared on 3.11.99 on the basis of working period of seasonal collection amins and their work appraisal and efficiency. The petitioners were not found eligible and suitable for regularisation. In para 24 of the counter affidavit it is stated that the regularisation has been done according to the circular issued by U.P. Board of Revenue. In para 25 of the counter affidavit it is stated that seasonal collection amins are given sufficient amount of letter of demand. However the prescribed target for collection amins of rural area is lesser to the collection amins of urban area. In para 28 of the counter affidavit it is stated that the selection/regularisation has been done on the basis of seniority list prepared on 3.11.99 and petitioners regularisation have been rejected due to the reason that they were not found suitable for regularisation. In para 30 of the counter affidavit in connection of Sri Prem Shanker Sharma respondent no.10 it has been stated that his regularisation was done on 6.7.99 but on that date he became over age as he has attained more than 45 years of age due to which a permission was sought from the Board of Revenue for relaxation of his age and after obtaining such permission his regularisation has been done w.e.f. 6.7.99. Thus in view of these facts and circumstances of the case, the respondents have tried to justify the action taken by the Collector, Etah. Along with counter affidavit a circular of Board of Revenue dated 25th February 1995 has been filed  as Annexure-C.A.-1 and a seniority list of seasonal collection amins dated 3.11.99 has also been filed as Annexure-C.A.-2 of the counter affidavit.

11. Heard Sri Ashok Khare, learned Senior Counsel assisted by Sri Aditya Kumar Singh for the petitioners and learned Standing Counsel for the respondents.

12. On the basis of rival submissions of learned counsel for the parties several questions arise for consideration which will be referred and to be dealt with in seriatum hereinafter. The first question which arises for consideration is as to whether 35% quota allocated to the seasonal collection amins under U.P. Collection Amins Service Rules 1974 as amended in the year 1992 can be computed against the total strength of service cadre of collection amins in the district or against the available vacancies for particular year of recruitment and as to whether it is treated to be reservation in favour of seasonal collection amins in selection on the post of collection amins? Since both the questions are intermixed, therefore, it would be useful to decide  together. In this connection first of all it would be useful to refer the provisions of Rule 5 of U.P. Collection Amins Service Rules 1974 as amended by 1992 Amendment Rules as under:-

"5. Source of recruitment:- [(1) Recruitment to posts in the ordinary grade of the service shall be made on the result of a competitive examination as provided in Part V of these rules:

Provided that subject to availability of suitable candidates, up to fifteen per cent of the vacancies shall be filled by promotion from amongst such substantively appointed collection peons-

(a) who have passed at least High School Examination of the Board of High School and Intermediate Education, Uttar Pradesh or an Examination recognized by the Government as equivalent thereto; and

(b) Who have worked in the Collection Organisation of the Revenue Department for a period of at least six Fasals:

Provided further that thirty-five per cent vacancies shall be filled by selection from amongst such Seasonal Collection Amins-

(a) Who have worked satisfactorily for at least four Fasals:

(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 atleast seventy per cent realisation as per prescribed standard during the last four Fasals including good conduct throughout]."

13. From a bare reading of proviso Second of Rule 5 (1) it indicates that 35% vacancies shall be filled up by selection from such seasonal collection amins who have satisfactorily worked for a minimum four fasals and whose age on 1st July of year in which selection is made does not exceed 45 years. A further provision has been made to the effect that if a suitable candidates are not available, remaining vacancies shall be filled by general candidates through direct recruitment.  An explanation is also added to the aforesaid proviso which explains the meaning of satisfactory service apart from good conduct means a minimum 70% realisation as per prescribed standard for the last four fasals. Thus, from bare reading of the aforesaid rules it is clear that the aforesaid quota in favour of seasonal collection amins has been allocated under the rules is not against the total strength of cadre of service in the district, rather it is against the available vacancies in a particular selection year. Therefore, the assertion of the learned counsel for the petitioners in this regard appears to be misconceived for simple reason that if it is treated to be against total cadre strength of collection Amins in the district, it would lead to an anomalous situation resulting  which the quota allocated to direct recruitment would be choked for considerable long time due to fact that the quota for seasonal collection Amins has been created first time in the year 1992 and earlier to it there was no such quota in the said cadre and all the posts are manned by direct recruits and promotees as stood while amendment in said Rules came into being. In case the vacancies which would come subsequently thereto would fall and would be adjusted in 35% quota of seasonal collection Amins. The result would be that all eligible and desirous candidates in the quota of direct recruitment and promotion would be deprived of to be considered for the post until the quota of seasonal collection Amins are not filled up according to the cadre strength in the district. Therefore,  in order to avoid this anomalous situation, it would be necessary to have such harmonious interpretation of said Rules which will make every provision of the rule effective and workable. Thus, in my opinion, computation of vacancies in the quota of seasonal collection amins was required to be done on available vacancies in the aforesaid recruitment in question and not against the total strength of cadre in the district. The submission of learned counsel for the petitioner that the vacancies ought to have been computed and determined at the total cadre strength of 136 posts of collection amins in the district appears to be misplaced, therefore has to be rejected.

14. In this connection it is also necessary to point out that there is a distinction between reservation and prescription or allocation of different quota in respect of different categories of persons in the source of recruitment. The concept of prescription of different quota for various categories of persons is well known in service jurisprudence and providing such quota is not new rather it is in vogue in service rules and often found in the matter of promotion where promotional posts are filled up from various categories of posts in feeder cadre, the employer fixes a quota for each category, so that the promotional quota would be equibalanced and at the same time each category of person in the feeder category would get opportunity of being considered for promotion. Such device of prescription of different quota for different category of persons is found in the larger interest of administration as well.

15. In this connection a reference can be made to a decision of  Hon'ble Apex Court in Kuldeep Kumar Gupta and others Vs. H.P. State Electricity Board and others (2001) S.C.C.475, wherein while considering the question in a slightly different context whether providing a quota in promotional cadre, can be said to be reservation within the meaning of Article 16(4) of the Constitution in para 6 of the decision Hon'ble Apex Court has held as under:

"But we fail to understand as to how providing a quota for a specified category of personnel in the promotional post can be held to be reservation within the ambit of Article 16(4). Providing a quota is not new in the service jurisprudence and whenever the feeder category itself consists of different category of persons and when they are considered for any promotion, the employer fixes a quota for each category so that the promotional cadre would be equibalenced and at the same time each category of persons in the feeder category would get the opportunity of being considered for promotion. This is also in a sense in the larger interest of the administration when it is the employer, who is best suited to decide the percentage of posts in the promotional cadre, which can be be earmarked for different category of persons. In other words this provision actually effectuates the constitutional mandate engrafted in Article 16(1), as it would offer equality of opportunity in the matters relating to employment and it would not be the monopoly of a specified category of persons in the feeder category to get promotions. We, therefore, do not find any infraction of the constitutional provision engrafted in Article 16(4) while providing a quota in the promotional cadre, as in our view it does not tantamount to reservation."

16. Thus, in view of the aforesaid settled legal position on the question in issue, it is clear that prescription of 35% quota for seasonal collection Amins in selection of collection Amins does not tantamount to reservation, therefore, while making selection on the said post the determination and computation of vacancies in 35% quota for seasonal collection Amins could not be done at the strength of total posts in cadre of Amins in the district, rather it is to be done in respect of available vacancies in particular recruitment year only, therefore, out of 22 substantive vacancies on the post of collection amins the computation and determination of 8 vacancies cannot be found faulty on that score.

17. Now next question arises for consideration is whether the procedure adopted for holding selection of respondents No.2 to 9 is correct or not? In this connection it is necessary to examine Rule 17-A of the Collection Amins Service Rules which reads as under:-

"17-A. Procedure for selection of Seasonal Collection Amins- The Collector shall prepare a list of seasonal Collection amins who are eligible for selection under the first proviso of sub-rule (1) of rule 5 and select from amongst them, the required number of candidates on the basis of seniority or the length of their service on the post of Seasonal Collection Amin in the district subject to satisfactory work."

18. A bare reading of Rule 17-A of the said rules it is clear that for the purpose of holding selection the Collector shall have to prepare a list of seasonal collection amins containing requisite number of candidates who are eligible for selection under the first proviso of sub-rule (1) of rule 5, on the basis of seniority or the length of their service on the post of seasonal collection amins in the district subject to satisfactory work, therefore, the select list has to be prepared from amongst the eligible candidates under Rule-5(1) of the rules to the extent of required numbers on the basis of seniority or the length of service on the post of seasonal collection amins who have satisfactory work and conduct as required under said rules. Now further question arises for consideration that as to how the seniority or length of service of seasonal collection amins can be determined? In this regard it is necessary to point out that Rule 21 of 1974 rules deals with the seniority of substantively appointed collection amins and it has nothing to do with the seniority of seasonal collection amins and virtually there is no provision under Rule of 1974 on the basis of which seniority or length of service of seasonal collection amins can be determined, therefore, it is to be examined as to whether the Government has issued any executive order, circular or administrative instruction in this regard?

19. In this connection, it is necessary to point out that Board of Revenue has issued a Circular dated 25th February 1995 addressed to all Divisional Commissioners and District Magistrates in continuity of earlier circulars issued in connection for appointment and assessment of works and conduct and punishment of seasonal collection staff. By the  aforesaid circular it has been provided that in earlier circular letter dated 13.1.1988 the seasonal Collection Amins were classified in three categories on the basis of appraisal of their work and conduct and it was directed to prepare three lists of collection amins. In list 'Ka' only those seasonal collection amins were to be included whose realisation is in excess of prescribed standard and they were to be reappointed in the next fasali on preferential  basis and in the list 'Kha' the names of those seasonal collection amins were to be included whose realisation/recovery is at the par with the prescribed standard and have also good conduct, they were also required to be given reengagement or reappointment for the next fasali. On exhausting the candidates contained in the list 'Kha' a third list was directed to be prepared containing the name of those seasonal collection amins whose realisation and recovery is below the prescribed standard and their conduct is also not satisfactory and it was directed that the candidates included in list 'Ga' shall not be reengaged/reappointed in next fasali  in any of the circumstances. It was further provided that on availability of substantive vacancies on the post of collection amins the candidates belonging to list 'Ka' shall be given regular appointment on the basis of their seniority/merit position and thereafter in absense of availability of candidates in list 'Ka' the candidates belonging to the list 'Kha' shall be considered for such regular appointment and it was further required that the name of only those seasonal collection amins shall be included in the list 'Ka' whose recovery is more than 70% from the prescribed standard and in category 'Kha' whose recovery is 60 to 69 percent of prescribed standard and list 'Ga' shall include the names of only those seasonal collection amins whose recovery is below 59% of prescribed standard. The persons whose name finds place in list 'Ga' shall not be given reappointment in any of the circumstances. Although the aforesaid circulars have been issued by the Board of Revenue from time to time but there is nothing to indicate in the counter affidavit that instructions contained therein has ever been observed or implemented by the Collector of the district concern and such lists of seasonal collection amins on the basis of work appraisal have in fact been maintained.  Besides this, in my opinion, the aforesaid three lists so prepared on work appraisal basis could have some relevance for reappointment or re-engagement as seasonal collection amins but the same can not be made basis for regular selection of seasonal collection amins against substantive vacancies of collection amins, contrary to the provisions of Rule 17-A of 1974 Rules. That apart, the aforesaid circular letter dated 25.2.1995 contained in Annexure C.A.-1 of the counter affidavit does neither provide any rule or provision for determination of seniority nor provide rule or provisions for determination of length of service of seasonal collection amins, therefore, in any view of the matter the selection in question could not be made solely based upon the aforesaid circular. Thus, the question still remains to be answered,  as to how the seniority or length of service of seasonal collection amins can be determined? In this connection it is necessary to point out that since engagement of seasonal collection amins is not on perennial basis, therefore, the rule for determination of seniority like regular employees or even adhoc employees engaged for perennial work does not apply, thus only course is open for the authorities to determine length of service of seasonal collection amins by computing their whole period of service or engagement as seasonal collection amins from the date of their initial appointment or engagement and while doing so, it shall not be open for the authorities to eliminate the names of those collection amins, whose recovery or realisation is less than prescribed standard or norms, i.e. below 59% realisation of prescribed standard  as indicated in circular issued by the Board of Revenue dated 25.2.1995 because of the simples reason that the regular selection of collection amins cannot be made on the basis of  classification of seasonal collection amins made in circular dated 25.2.1995 from amongst three lists so prepared on seasonal work appraisal basis. Therefore, in my opinion, the  length of service of seasonal collection amins can be computed only by taking into account of entire service period irrespective of aforesaid classification and thereafter the selection has to be made on the basis of seniority or length of service subject to satisfactory work.

20.   The satisfactory work has been explained in the explanation given under Rule 5(1) of 1974 Rules, which means 70% realisation as per prescribed standard during last four fasals including good conduct throughout. Now question arises for consideration is that as to whether 70% realisation as per prescribed standard would be assessed on the basis of any notional standard prescribed for the purpose or it would depend upon the actual demand notice or recovery certificate or citation given to individual collection amin? In this connection learned counsel for the petitioners has submitted that the aforesaid 70% realisation as per prescribed standard should not be on any notional amount or target fixed for realisation rather it should be on the basis of demand/recovery certificates made available to the concern individual collection amin. While elaborating his submission, learned counsel for the petitioners has urged that the petitioners are required to recover the amount on the basis of recovery certificates issued to them and in absense of recovery certificates no recovery whatsoever can be effected by the petitioners and all the petitioners are posted in the rural areas and recovery required to be effected by them is recovery towards loan, revenue and canal or tubewell irrigation charges and some nominal portion of such recovery comprises of other dues. In contrast to it, seasonal collection amins posted in urban areas are required to effect recovery of various nature on the basis of recovery certificates issued to them for realisation of dues of miscellaneous category. The recovery certificates issued to the seasonal collection amins posted in urban areas or semi urban areas is always for in excess of the recovery certificates issued to the seasonal collection amins posted in rural areas. Thus total amount recovered by seasonal collection amins posted in urban areas or semi urban areas is in excess of the amount recovered by seasonal collections amins posted in rural areas, therefore, by way of necessity the percentage of recovery must have  co-relation with recovery certificates issued to them and there can be no possibility for making any comparison of the amount recovered by collection amins posted in rural areas with the amount recovered by collection amins posted in urban or semi urban areas. Although the submission of learned counsel for the petitioners appears to have some substance but at the same time it cannot be accepted as it stands, therefore, requires examination.

21. Although it is no doubt true that the percentage of recovery has co-relation with the amount for which recovery certificate has been issued, thus determination of recovery percentage with reference to norms generally prescribed for all collection amins also loses sight of the fact that collection amins posted in urban areas or semi urban areas have more recovery certificates on the basis of which they can recover more amount in comparison to collection amins posted in rural areas but in case the same may be made solely dependent on the issue of recovery certificate and 70% realisation is computed only on that basis, there would be probabilities of favouritism, nepotism and other chances of manipulation as the individual collection amin who has to be favoured would be given recovery certificate of huge amount. In that event of the matter it would be most probable that he can achieve high target of more than 70 or 80% realisation in comparison to the collection amin, who has been given recovery certificate of lesser amount and in that eventuality he would not be in a position to realise even 50% of the amount sought to be recovered by him as per prescribed standard or norms. Therefore, in my opinion, in order to strike a balance between both the situations and in order to eliminate the chances of favouritism, nepotism and manipulation it would be necessary that a minimum standard/target should be fixed for all the collection amins generally and recovery certificate of sufficient amount shall be provided to them within reasonable duration so that they may be able to realise the amount to the extent of prescribed norms in that event of the matter, the percentage of recovery shall be computed on the basis of aforesaid target fixed provided the recovery certificate given to the collection amins within reasonable time is for sufficient amount.

22. Now coming to the facts of the case again it appears that in para 8 and 25 of the counter affidavit although this fact has been admitted that different standard, norms and target for recovery have been prescribed for the seasonal collection amins of urban and rural areas but there is nothing to indicate in the circular of Board of Revenue dated 25th February 1995, contained in Annexure-C.A.-1 of the counter affidavit that such differentiation has also been made for re-engagement of seasonal collection amins in urban and rural areas and no other executive order or circular has been shown to me in this regard, therefore, it means that both the categories of seasonal collection amins are governed by different set of rules entailing different treatments.  Besides this, there is nothing to indicate that the aforesaid circular has provided any guidelines for determination of seniority or length of service of seasonal collection amins. Thus as indicated herein before the aforesaid circular cannot be made basis for regularisation and regular selection of seasonal collection amins under 35% quota of appointment against the regular and substantive vacancies contrary to the provisions of Rule-17-A of the aforesaid rules, which in clearest term provides criteria for selection, seniority or length of service of seasonal collection amins. As stated in para 22 of the counter affidavit that admittedly the seniority list of seasonal collection amins dated 3.11.99 has been prepared on the basis of seniority and work appraisal i.e. efficiency in realisation, as contained in Annexure C.A.-2 of the counter affidavit, which transpires that aforesaid seniority list dated 3.11.99 has been prepared by the Collector, Etah on the basis of recovery percentage worked out with regard to each seasonal collection amins for last four fasalies and thereafter persons having highest percentage has been placed at Sl. No. 1 irrespective of their length of service followed by other seasonal collection amins with their percentage in descending order. In my opinion, as indicated herein before the seniority list cannot be prepared on the basis of work appraisal or efficiency towards realisation of Government dues or other dues that is on the basis of percentage of recovery and a distinction has to be drawn between seniority list, eligibility list and select list, but a bare perusal of impugned seniority list dated 3.11.99 it appears that while drawing the aforesaid list, the Collector, Etah has mixed up aforesaid three lists into one single list as contained in Annexure C.A.-II to the counter affidavit, such seniority list is not known in service jurisprudence and is contrary to every canons of law, thus cannot be sustained. In my opinion, the seniority or length of service can be computed only on the basis of total period of services rendered by seasonal collection amins from the date of their first appointment till the date of determination, therefore, the determination of seniority of seasonal collection amins and holding selection on the basis of said seniority list dated 3.11.99 is not sustainable in the eye of law.  

23. Besides this, as asserted in the writ petition that even on the basis of defective seniority list prepared by Collector on 3.11.99 appointment/regularisation have not been made in order of seniority. For example appointments/regularisation made to persons at serial no. 1,2,4 to 8, 10 and 42 from the said list, even according to defective seniority list the placement of petitioner no. 13 is at serial no. 23 and that of petitioner no.9 is at serial no. 37. From the perusal of seniority list contained in Annexure C.A.-2 of the counter affidavit, it appears that one Sri Khoob Singh respondent no. 7 was first time appointed on 23.5.97 and he has worked only for four fasals during the period of two calender years by the time selection in question took place. He has been shown as a candidate belonging to the Scheduled caste. His recovery percentage in the first fasali is 76.57%, second fasali 73.56%, third fasali 63.23% and fourth fasali 63.29%. Except two fasals, he could not achieve the target of 70% realisation as per prescribed standard during last four fasals as given in explanation of Rule 5(1) of Rules of Recruitment, as such despite his gradation at serial no. 7 in the impugned seniority list, since he could not achieve the minimum prescribed standard, norm of realisation during the last four fasals, therefore, in my considered opinion, he could not be selected/regularised unless the rules of recruitment is relaxed in favour of candidates belonging to the reserved category of Scheduled caste provided the power of such relaxation is available under the rules itself, so also with the case of Sri Hridesh Kumar respondent No.9 who also appears to be reserved category candidate of schedule caste, his placement in defective seniority list dated 3.11.1999 at serial No.41. Against his name his recovery percentage for last four fasals has been given, wherein it appears that in any of the aforesaid fasals he could not achieve the target of 70% minimum prescribed standard of realization, thus could not be held suitable for regularization. Therefore, in my opinion, the select list prepared on the basis of aforesaid seniority list and from amongst the candidates, who could not achieve the minimum target of 70% realisation prescribed under the explanation of Rule 5(1) of Rules cannot be sustained and same is liable to be quashed. Accordingly the seniority list dated 3.11.99 prepared by Collector, Etah inasmuch as the selection and appointment of respondents no. 2 to 10 dated 10.11.99 are hereby quashed.

24. In this connection, it appears that Rule-31 of 1974 Rules empowers the Government to relax certain conditions of the service if the Government is satisfied that operation of these Rules caused undue hardship in any particular case. In my opinion, the Rules of Recruitment is quite distinct and distinguishable from the other conditions of service as held by Hon'ble Apex Court in Keshav Chandra Joshi and others Vs. Union of India and others, AIR 1991 S.C. 284 and  J. & K. Public Service Commission, etc. Vs. Dr. Narinder Mohan and others, AIR 1994 S.C. 1808, as such explanation of Rule 5(1) of Rules, which provides conditions for recruitment cannot be relaxed in exercise of powers under Rule 31 of the said rules, therefore, unless the explanation appended to Rule 5(1) of 1974 Rules is amended despite applicability of reservation policy in such recruitment under Rule-6 of said Rules, I am of considered opinion, that the candidates belonging to reserved category if not fulfilled requisite eligibility condition and norms of suitability, they cannot be selected for regular appointment in the aforesaid quota of seasonal collection amins.

25. At this juncture, I would like to point out further that no Rule or Government order or any circular has been brought to my notice regarding any target of realisation fixed for regular collection amins and the aforesaid target fixed for realisation for regular selection of seasonal collection amins has any rational nexus with them or not. Government should examine the aforesaid aspect of the matter also. In case there appears any hardship in smooth operation of aforesaid Rules of recruitment, it is open for the rule making authority to lower down the aforesaid minimum target fixed for realisation for seasonal collection amins for selection on regular basis in the aforesaid quota and it is further open to the rule making authority to fix different and lesser target for realisation for reserved categories of candidates so that the vacancies available in their reserved quota may be filled up but so long as the aforesaid Rules are not amended, the existing Rules have to be strictly adhered to while making selection and appointment.

26. Therefore, in view of forgoing discussions and observations, the Collector, Etah is directed to prepare fresh seniority list according to the observations made herein above and further directed to prepare the eligibility list for the purpose of fresh selection against the aforesaid eight vacancies of collection amins in the quota of seasonal collection amins. The petitioners shall also be considered provided they would satisfy the prescribed standard or norms under the Rules by ignoring their non-extension after 30.9.99. In case the persons of reserved category would not achieve the target of realisation as prescribed under the Rules, it shall be open for the respondents to get the relevant rules amended but unless the aforesaid rules are amended the selection and regularisation in the said quota shall be made strictly in accordance with the Rules. Registrar General is directed to send a copy of this judgment to the Secretary, Law/Legal  Remembrancer Government of U.P. and Chairman, U.P. Board of Revenue, Allahabad/Lucknow forthwith for information and necessary action.

27. In view of aforesaid observations and directions, the writ petition succeeds and allowed to the extent indicated herein before.

Dt.25.5.2007

S.L/


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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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