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AKHILESH MISHRA versus D.M./COLLECTOR DISTRICT MATHURA & OTHERS

High Court of Judicature at Allahabad

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Akhilesh Mishra v. D.M./Collector District Mathura & Others - WRIT - A No. 31997 of 2002 [2007] RD-AH 3368 (28 February 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

Court No.12

1. Civil Misc. Writ Petition No. 31997 of 2002

Akhilesh Mishra                                                      ................Petitioner

Vs.      

       

The District Magistrate, Mathura & others        ...............Respondents.

And

    2. Civil Misc. Writ Petition No.26220 of 1996

Akhilesh Mishra                                                      ................Petitioner

Vs.      

       

The District Magistrate, Mathura & others        ...............Respondents.

                 ..........

Hon'ble Ran Vijai Singh J.

Petitioner has filed two writ petitions. Writ Petition No. 26220 of 1996 has been filed by the petitioner with the prayer to issue a writ of mandamus directing the respondents not to interfere in peaceful functioning of the petitioner as Collection Amin at Circle Mathura on the basis of appointment letter dated  15.5.1996. In this writ petition at the admission stage an interim order was passed on 2.9.96 by this Court directing the respondents not to interfere in the functioning of the petitioner unless any written order of termination is passed. That order has yet not been vacated.

This writ petition was tagged at the time of admission with Writ Petition No.22527/96. The writ petition no.22527 of 1996 was disposed of by this Court on 10.8.2000 directing the respondents to decide the representation of petitioner in view of the judgment passed by this Court in the case of Jawahar Lal and others Vs. the District Magistrate Kanpur Dehat and others reported in 1995(2) ESC page 38 (All) . Pursuant to the same a speaking order was passed on 18.1.2002 by the Sub Divisional Officer, Mathura by which he has directed the petitioner to continue as Seasonal Collection Amin and further directed that after the expiry of term  of appointment he should deposit entire record relating to the collection with the office of Wasil -Wakinavis. This order has been challenged by the petitioner through Writ Petition No. 31997 of 2002. Counter affidavits have been filed in both the writ petitions.

The case of the respondents are that the petitioner was engaged as Seasonal Collection Amin and not against any substantive post in accordance with the Rule meant for the selection of Collection Amins. The appointment was made for the respective Fasli (1403) and there after he has been engaged from  time to time in the

2.

Fasli seasons. However, from the perusal of the impugned order it transpires that the petitioner has continuously worked pursuant to the order of this Court dated 2.9.1996 in W.P. No.26220 of 1996.

The  petition No. 31997 of 2002 has been filed for quashing the order dated 18.1.2002 and also for issuing a writ of mandamus directing the respondents to regularize the services of the petitioner as collection Amin.

So far as the first prayer is concerned , it has to be seen whether the petitioner's appointment was made against the substantive vacancy or he was engaged as Seasonal Collection Amin. Learned counsel for the petitioner has submitted that the appointment of the petitioner was made in the substantive capacity against the regular  vacancy. From the appointment letter which has been brought on record as Annexure-3 to the writ petition it transpires that this order was issued by Tahsildar, Mathura after the order of Sub Divisional Officer dated 15.5.96. The order dated 15.5.96 has not been brought on record by the petitioner. However, the same has been brought on record by learned Standing Counsel though Annexure-CA-1. From the perusal of the same it transpires that the petitioner's engagement was made on seasonal basis in 1403 Fasli i.e. (in the year 1996) along with several other persons.

Learned Standing Counsel has submitted that even if it is assumed that the appointment was made against the substantive vacancy even then that should have been made in accordance with the  provisions contained in U.P. Collection Amin Services Rules 1974 but the procedure as required under Rule has not been followed therefore, the alleged appointment becomes void ab initio, otherwise also even in terms of appointment letter no right flow in his favour as service could be terminated at any time without any notice and the present writ petition is not maintainable.

The petitioner has not brought on record any material showing that his appointment was made against the substantive vacancy only after following the procedure of the Rules of 1974. Therefore, I find force in the submission of learned Standing Counsel in saying that the petitioner's appointment was made on seasonal basis and not against substantive vacancy. Therefore, this part of the order passed  by Sub Divisional Officer do not call for any interference under Article 226 Constitution of India.

So far as the second prayer is concerned,  this is with regard to the regularization of the petitioner's service. There is a provision under Rule  5  of the U.P. Collection Amin Service Rule 1974 that while making regular selection 35% vacancies should be filled up  from amongst the eligible  seasonal Collection Amins. Rule 17-A of the aforesaid Rule also provides for preparation of eligibility seniority list

3.

for the said purpose.

Learned counsel for the petitioner has submitted that the action of the respondents are arbitrary, illegal and without application of mind in ignoring the petitioner's regularization and not payment of regular salary inspite of the admitted petitioner's regular working. Learned counsel for the petitioner has stated in para 13 of the writ petition that number of juniors have been regularized and the petitioner has been ignored. In support of his submissions he has invited the attention of the Court towards seniority list issued by the Tahsildar Annexure-5 to the writ petition in which petitioner's name finds place at Sl. No.8 whereas the names of Satish Chandra and Chandrapal finds place at Sl. No.9 and 10. Learned Standing Counsel has invited the attention of the Court towards Rule 17-A of U.P. Collection Amin Services Rule 1974 which is reproduced below:

"(17.(A) Seasonal Collection Amino ke chayan ki prakriya:- Collector Seasonal Collection Amino ki jo niyam 5 ke up niyam(1) ke pratham parantuk ke adhin chayan ke liye patra ho yek suchi taiyar karega aur unake se  santoshjanak karya ke adhin jile me  seasonal collection amin ke pad par unki sewa awadhi ke adhar par apekshit sankhya me chayan karega."

From the aforesaid Rule it transpires that the seniority list has to be prepared by the Collector at District level. Learned  Standing Counsel has further invited the attention of the Court towards para 14 of counter affidavit wherein it is stated that only three persons Sri Vimal Kumar, Hira Lal and Satish Chandra have been appointed on regular basis and name of them finds place at Sl.  No.20,25 and 49. Whereas the petitioner's name find place at Sl. No.95.

From the perusal of Annexure-5 of the writ petition it transpires that Vimal Kumar and Hira Lal are senior to the petitioner even in the seniority list issued by Tahsildar Annexure-5 to the writ petition as their names find place at serial no. 2 and 5. So for as the case of Satish Chandra is concerned, he is below to the petitioner.  Therefore even if the case of learned Standing Counsel taken to be true, it is no where mentioned that how Satish Chandra had been placed at Sl. No.45 who was below to the petitioner and the petitioner's name has been placed at Sl. No.95 in the alleged seniority list prepared at District level as alleged in para 14 of the counter affidavit. The said seniority list has not been brought by the respondents on the record for the best reasons known to them but this needs consideration by the competent authority. Prima facie it is a case of revision of alleged seniority list.

So far as the regularization of the petitioner's service is concerned since there is a complete procedure prescribed under the Rule of 1974 for appointment of seasonal Collection Amin on regular basis and that aspect of the matter has also not

4.

been considered in detail by Sub Divisional Officer while passing the order dated 18.1.2002, therefore, it is provided that District Collector shall examine the grievance of the petitioner.

Here at this juncture learned counsel for the petitioner has submitted that petitioner has been working continuously without any break as Collection Amin after the interim order passed by this Court on 2.9.96 and even after the order dated 18.1.2002 the respondents have never stopped him from working and he is still working as Collection Amin on regular basis but he has not been paid salary for the period for which he has worked.  Therefore, the petitioner should have been paid salary as admissible to regular Collection Amin as the respondent cannot take work without pay as BEGAR. Although the submissions made by learned counsel for the petitioner carries weight but this is a disputed question fact therefore, it is provided that the petitioner may file a fresh representation before the District Magistrate with regard to the revision of seniority list, payment of regular salary for the period for which he has worked regularly  and for  regularization of his services.  If such representation is filed along with certified copy of this order within a period of one month the same shall be decided by the Collector with reasoned order within a period of two months from the date of production of certified copy of this order.

Suffice to say if the District Collector finds that petitioner has wrongly been placed at Sl. No. 95 in seniority list and desires to alter the appointment of any person below to the petitioner in the seniority list in that event he may also here the affected person or persons.

With this observation both the  writ petitions are disposed of.

Dt.28.2.2007

Hsc/


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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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