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ALLAHABAD HIGH COURT
Ajay Bhanot, J.
Vinay Kumar Upadhyay – Appellant
Versus
State of U.P. and Others – Respondents
Writ Appeal No. 69236 of 2015
Decided On : 11-01-2019
COLLECTION PEON - REGULARIZATION - SENIORITY - U.P. COLLECTION PEON SERVICE RULES, 2004 - RULE 5 - RECOVERY PERCENTAGE - CALCULATION - FOUR FASCIAL YEARS - HARVEST SEASONS - RABI AND KHARIF - DISTINCTION - CALCULATION OF RECOVERY PERCENTAGE - AVERAGE RECOVERY OF AT LEAST 70% - COLLECTION PEON NOT RESPONSIBLE FOR LOW RECOVERY - COLLECTION AMIN RESPONSIBLE FOR RECOVERY - COLLECTION PEON TO OBEY ORDERS OF COLLECTION AMIN - COLLECTION PEON NOT TO MAKE ANY RECOVERY - DISTINCTION BETWEEN FASAL AND FASLI - COLLECTION PEON ENTITLED TO REGULARIZATION FROM THE DATE HIS IMMEDIATE JUNIORS WERE REGULARIZED - FULL BACKWAGES AND OTHER CONSEQUENTIAL BENEFITS TO BE GRANTED - MANDAMUS ISSUED TO AUTHORITIES TO EXECUTE DIRECTIONS - COSTS IMPOSED ON RESPONDENTS IN FAVOUR OF PETITIONER.
Fact of the Case:
Petitioner, a Seasonal Collection Peon, challenged the order rejecting his claim for regularization as a Collection Peon w.e.f. 05.07.2007, the date his immediate junior was regularized. He sought grant of seniority, salary, and other consequential benefits w.e.f. 05.07.2007.
Finding of the Court:
The Court found that the petitioner was entitled to be regularized as a Collection Peon in 2007 against 50% quota of Seasonal Collection Peons, but his claim was ignored. The Court held that the authorities erred in considering the record of preceding four Fasali years instead of four Fasals. The Court further held that the Collection Peon is not responsible for any recovery whatsoever and hence the assumption that the petitioner failed to satisfy the criteria of "satisfactory service" was patently illegal and in the teeth of the statute. The Court also found that the petitioner's juniors were regularized on 05.07.2007 and there was no rationale or legal footing to deny regularization to the petitioner w.e.f. 05.07.2007.
Issues: 1. Whether the petitioner was entitled to be regularized as a Collection Peon w.e.f. 05.07.2007? 2. Whether the authorities erred in considering the record of preceding four Fasali years instead of four Fasals? 3. Whether the Collection Peon is responsible for any recovery whatsoever? 4. Whether the petitioner's juniors were regularized on 05.07.2007 and there was any rationale or legal footing to deny regularization to the petitioner w.e.f. 05.07.2007?
Ratio Decidendi: 1. The Court held that the petitioner was entitled to be regularized as a Collection Peon in 2007 against 50% quota of Seasonal Collection Peons, but his claim was ignored. 2. The Court held that the authorities erred in considering the record of preceding four Fasali years instead of four Fasals. 3. The Court held that the Collection Peon is not responsible for any recovery whatsoever and hence the assumption that the petitioner failed to satisfy the criteria of "satisfactory service" was patently illegal and in the teeth of the statute. 4. The Court held that the petitioner's juniors were regularized on 05.07.2007 and there was no rationale or legal footing to deny regularization to the petitioner w.e.f. 05.07.2007.
Final Decision: The Court allowed the writ petition, quashed the impugned order dated 29.03.2015, and directed the respondent authorities to reconsider the matter of appointment of the petitioner and respondent no. 4 in accordance with law and in the light of the observations made in the judgment. The Court also issued a mandamus to the respondent no. 2 to execute the following directions: (i) The petitioner shall be treated as a regularly appointed Collection Peon w.e.f. 05.07.2007. (ii) The respondent no. 2 shall pay to the petitioner full backwages and other consequential financial benefits from 05.07.2007 till the date of his regularization on 04.05.2013. (iii) The petitioner shall also be granted all other consequential service benefits like seniority from 05.07.2007. (iv) The pensionable service of the petitioner shall be reckoned w.e.f. 05.07.2007. (v) The directions shall be executed within a period of two months from the date of receipt of a certified copy of this order.
Ajay Bhanot, J.
1. By the order dated 29.3.2015 the claim of the petitioner to be regularized in service w.e.f. 05.07.2007 i.e. from the date his immediate junior was regularized as Collection Peon has been rejected. Aggrieved by the aforesaid order dated 29.03.2015 passed by respondent no. 2 the petitioner has filed the instant writ petition.
2. A further prayer has been made for grant of seniority, the salary and all other consequential benefits to the petitioner w.e.f. 05.07.2007.
3. Sri Bibhuti Narayan Singh, learned counsel for the petitioner submits that the petitioner was entitled for regularization of his service as a Collection Peon w.e.f. 05.07.2007. The person immediately junior to the petitioner in the seniority list was regularized on 05.07.2007 as a Collection Peon.
4. The respondent authorities rejected the claim of the petitioner for regularization w.e.f. 05.07.2007 on the foot that the petitioner failed to accomplish the seventy percent recovery in the four faslis preceding 05.07.2007. It is contended that the stand of the authorities is untenable in law. The law is consistent and settled by a number of authorities. In fact it was reiterated by this Court in the case of the petitioner as well. The petitioner is entitled for full backwages and other service benefits w.e.f. 05.07.2007. Various authorities relied upon by the learned counsel shall be cited in the later part of the judgment.
5. Per contra the learned Standing Counsel has called attention to the stand taken by the respondents in the counter affidavit in justifying the order dated 29.03.2015.
6. Heard learned counsel for the parties. Facts relevant for judgment in this case are beyond the pale of dispute.
7. The petitioner was engaged as Seasonal Collection Peon on 28.12.1990. A seniority list of the Collection Peons was drawn up. The seniority list has been appended to the writ petition. The seniority list so appended has not been disputed in the counter affidavit. The specific case of the petitioner is that a number of persons who were junior to the petitioner in the seniority list of Seasonal Collection Peons were regularized prior to the petitioner. The claim of the petitioner for regularization was arbitrarily rejected. The fact that juniors to the petitioner were regularized as Collection Peons w.e.f. 05.07.2007 is undisputed.
8. In the order dated 28.02.2013 the District Magistrate, Sant Ravidas Nagar (Bhadohi) records that sixteen Seasonal Collection Peons were regularized which included Sanjay Kumar Srivastava, Kallu Singh, Shiv Kumar Singh, Om Prakash Dubey, Pramod Kumar Lal, Rakesh Kumar Rai and Ashok Kumar Srivastava prior to the petitioner on 05.07.2007. The order further records that the aforesaid persons are junior to the petitioner in the seniority list.
9. In the counter affidavit filed by the respondents, it is asserted that the petitioner was not regularized on 05.07.2007 as the recovery percent of the petitioner was below seventy percent in the four faslis preceding the date of regularization of his juniors.
10. The case of the petitioner has a chequered history. The petitioner had to oscillate between this Court and the authorities on eleven occasions to realize his constitutional rights guaranteed under Articles 14 & 16 of the Constitution of India. The details of the writ petitions and the contempt petition instituted by the petitioner and the adamantine attitude of the authorities in repeatedly rejecting his claim on successive occasions will be revealed in the later part of the judgment.
11. The petitioner became entitled to be regularized as a Collection Peon in 2007 against fifty percent quota of Seasonal Collection Peons, but his claim was ignored. Being so aggrieved, the petitioner on the first occasion approached this Court. He instituted a writ petition which was registered as Civil Misc. Writ Petition No. 33728 of 2007, Vinay Kumar Upadhyay vs. State of U.P. and Others. The operative portion of the judgment and order pa
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