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STATE OF U.P. AND OTHERS versus RUDAL PRASAD

High Court of Judicature at Allahabad

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State Of U.P. And Others v. Rudal Prasad - WRIT - A No. 50714 of 2003 [2005] RD-AH 1423 (26 May 2005)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

Court No. 3

           Civil Misc. Writ Petition No.   50714   of  2003.

          State of U.P. and others. ........................................... Petitioners.

Versus

          Rudal Prasad. ........................................................... Respondent.

         -------------

Present:

  (Hon'ble Mr. Justice Amitava Lala and Hon'ble Mr. Justice Sanjay Misra)

Appearance:

For the Petitioners : Addl. Chief Standing Counsel.

For the Respondent : Sri R.C. Dwivedi, &

Sri Tarun Verma.

---------

Amitava Lala, J.-- In this writ petition the challenge has been thrown by the State against the order passed by the State Public Services Tribunal dated 10th September, 2003. The order is as follows:-

"In the light of observation made above the claim petition is allowed and the impugned order dated 3.7.1998 as contained in Annexure-1 to the claim petition is hereby quashed. The O.P. No. 3 is directed to regularise the service of the petitioner and appoint him on the post of regular Collection Amin from the date of the regularisation and appointment of his junior Sri Rajendra Prasad with all consequential service benefits within a period of 45 days from the date of receipt of the copy of the judgement.

There is no order as to costs."

By challenging such order the State contended that the Tribunal had no jurisdiction or authority to pass such mandatory order of regularisation of service of the private respondent herein. Although no such specific law is available under The U.P. Public Services (Tribunal) Act, 1976 but by virtue of Section 4 and Section 5 particularly Sub-section (6) under Section 5 of the said Act, a declaration can be made by the Tribunal to bind the appropriate party in respect of any claim affecting his interest adversely for making representation and shall have the same effect as a declaration made by a Court of law.

Learned Counsel appearing for the State has cited four judgements being AIR 2001 SC 4004 (Union of India and another Vs. Ashutosh Kumar Srivastava), AIR 1992 SC 2303 (The Administrator of Dadra and Nagar Haveli, Silvassa Vs. H.P. Vora), 1999 (9) SCC 53 (Chief Administrator-cum- Joint Secretary to the Govt. of India and another Vs. Dipak Chandra Das) and AIR 1988 SC 1069 (Union Public Service Commission Vs. Hiranyalal Dev and others). The ratio of all the three judgements is that the tribunal can not act as a selector of the selection process in respect of the appointment, promotion, seniority and other parts, which are relevant under service jurisdiction. Tribunal can at best issue a direction upon such authority for the purpose of doing the needful. It can not assume role of the authorities. In a specific case as reported in AIR 1988 SC 1069 (supra) we find that the Supreme Court held more or less similar with the factual circumstances in issuing direction to appoint one with effect from the date, on which the other was appointed. Supreme Court said that the Tribunal could not have substituted itself in the place of selection committee and made the selection as if the Tribunal itself was exercising such power. We have got the point on the basis of submissions of the State, the petitioner. On the other hand, if we find the submissions of the contesting private respondent, one part would be very clear. The learned Counsel has contended before this Court that there is no embargo upon the Tribunal in not passing an order as it has passed herein. The order for consideration was made previously when it was not adhered properly, the Tribunal was forced to pass an order giving direction to regularise the private respondent.

We have discussed more about the power of the Tribunal in above paragraphs. Let us consider the factual part of this case. According to the private respondent, he is eligible to be regularised along with his juniors in the permanent post of Amin from the list of Seasonal Collection Amins. He said, his case is totally governed by The Uttar Pradesh Collection Amins Service Rules, 1974. Since he is working as a Seasonal Collection Amin much prior to the amendment of the rules in 1992. He has to get benefit of the same but not as per amended rule being dated 23.10.1992. On the other hand, it has been argued by the State that question of giving regular appointment is only available by way of amendment in connection with the Seasonal Collection Amins already in the list, but in doing so the criteria under Rule 5 of Rules, 1974 has to be clearly followed. Rule-5 says that 75% of the vacancies shall be filled up by the selection from amongst the Seasonal Collection Amins, provided they have worked satisfactorily for at least four Fasals and the age on the first day of July of the year of the selection the persons should not exceed 45 years of age. In the explanation it has been said that satisfactory work shall mean at least 70% realization as per prescribed standard during the last four Fasals including good conduct throughout.

Now, therefore, the question arises whether the persons in the list will be given regular appointment as per seniority or as per the seniority-cum- merit in view of Rule-5 above subject to suitability of the vacancies. According to us, since there was no scope of regular appointment prior to the amendment of the said rule on 23.10.1992, one can not say that as a matter of course ignoring the conditions his service will be regularised. We are very candid on the point that selection hereunder is in the nature of regular appointment not regularisation of the service. Rule-5 is in Part-III of the Rules, 1974, which prescribes for recruitment. Therefore, unless one is recruited, his seniority can not be counted. Even there is a case of regularisation from the irregular  service, perennial nature and continuously doing for a considerable period, seniority might be counted but that too after regularisation it will be effective from the date of initial appointment. Therefore, either selection or regular appointment or regularisation is the basic criteria for the purpose of determining the scope of seniority. On the other hand, if the seniority relates to other parts then such parts can not be ignored by the court of law when the person named in a place above the place of the other selectees junior to him.

In any event, we are not going to decide this issue. We are only concerned about the propriety of the order passed by the tribunal, therefore, in totality we are of the view that the matter will be remanded back to the Tribunal for the purpose of taking decision in the light of the judgement and order passed by this Court upon giving fullest opportunity of hearing preferably within a period of one month from the date of communication of this order. Thus, we set aside the order impugned herein passed by the Tribunal, all the points are kept open for the purpose of taking decision by the Tribunal afresh. The Tribunal will not be influenced in the merit but on the propriety alone as indicated above by this Court. The writ petition is, accordingly, disposed of.

However, no order is passed as to costs.      

(Justice Amitava Lala)

    I agree.

(Justice Sanjay Misra)

Dated:26.05.2005.

SKT/50714-03.  


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