RAMA SHANKER YADAV Vs. STATE OF U P

JUDGEMENT

(1.) HEARD learned counsel for the parties. This writ petition has been filed by seven petitioners. Petitioners claim that they were appointed as Seasonal Collection Amins on 27.01.1976 (petitioners No.1 to 3), 01.05.1976 (petitioners No.5 to 7) and 03.02.1976 (petitioner No.4). In Para-8 of the writ petition, it is mentioned that there were 22 sanctioned posts of Seasonal Collection Amins in Tehsil Farenda District Maharajganj, out of which eight were lying vacant for about a year; that the vacancies had occurred due to promotion of seven persons, who were working as Collection Amin to the post of Naib Tehsildar and the 8th post had fallen vacant due to retirement of one Collection Amin. The allegations in Para-8 of the writ petition are self contradictory. In the first sentence, it is mentioned that that there were 22 sanctioned posts of Seasonal Collection Amins. In the next sentence, it is mentioned that seven posts of Collection Amins became vacant due to promotion of seven Collection Amins to the post of Naib Tehsildar. Obviously, promotion is made to the post of Naib Tehsildar from amongst Regular Collection Amins. Seasonal Collection Amins are never promoted to the post of Naib Tehsildar. The whole case of the petitioner falls due to this contradictory statement in the same para. However taking a charitable view in favour of the petitioners, it may be assumed that the word ''Seasonal' in Para-8 of the writ petition has wrongly been typed and actually petitioners meant to say that there were 22 sanctioned posts of Collection Amins (Regular). Thereafter, it is mentioned that Tehsildar Farenda submitted report on 01.02.1990 to S.D.M. (Para-9). Thereafter in Para-10, reference is made to U.P. Collection Amins Service Rules as amended in 1984 particularly Rule-14. Thereafter in Para-12, it is mentioned that Tehsildar proposed (through proposal dated 01.02.1990) the names of the petitioners and one Sri Haridwar for the appointment on the post of Collection Amin (Regular) against the clear vacancies as referred in earlier paragraph (Para-8). In Para- 13, it is mentioned that S.D.M. approved the proposal through order dated 09.02.1990 for appointment of the petitioners and Haridwar as Regular Collection Amin. It is further stated that proposal was made on the ground that petitioners and Haridwar were senior most Collection Amins (here again it appears that petitioners intended to state that they were senior most Seasonal Collection Amins). Thereafter, D.M. Maharajganj through order dated 31.03.1990 terminated the services of the petitioners and Haridwar on the ground that their appointments were illegal and irregular. Earlier also petitioners had filed Writ Petition No.10010 of 1990 against their termination order. In the said writ petition an ad interim mandamus was issued on 18.04.1990 directing the respondents not to give effect to the termination order dated 31.03.1990 or to show cause. Thereafter, it is mentioned in Para-18 that in view of interim order of this Court dated 18.04.1990, D.M. recalled its order dated 31.03.1990 through order dated 10.09.1990 and directed the S.D.M. to take further action. Thereafter in Para-19, it is mentioned that Writ Petition No.10010 of 1990 was finally disposed of on 06.11.1997 by the following order (which is complete judgment): "HEARD learned counsel for the parties. The order dated 18.04.1990 is hereby confirmed. With these observation, this petition is disposed of. (06.11.1997)" It has been stated in Para-21 of the writ petition that petitioners were also confirmed by S.D.M. on 13.03.1991. There was no such allegation in the W.P. No.10010 of 1990. Thereafter, services of the petitioners were terminated through order dated 08.11.1995 purported to have been passed under U.P. Temporary Government Servant (Termination of Services) Rules, 1975. Against the said order petitioners filed W.P. No.32381 of 1995. The said writ petition was allowed on 26.05.2004. Copy of judgment is Annexure-10 to the writ petition. In the judgment of the said writ petition dated 26.05.2004, it is mentioned on Page71 of the Paper Book that: "The order of termination was stayed by the Division Bench of this Court." (W.P. No.10010 of 1990) "It has been stated in the writ petition that above order of stay is still in operation." The said writ petition of 1990 had already been disposed of on 06.11.1997, i.e. seven years before the decision of writ petition of 1995 but the said fact was not brought to the notice of the Court on 26.05.2004 when the writ petition of 1995 was decided. In the judgment dated 26.05.2004, it was observed that even if appointment is against the Rules, notice is to be given to employee concerned before terminating the service. Reference was also made to the Supreme Court authority reported AIR 1998 SC 3261, Basudeo Tiwary Vs. S.K. University. Ultimately, writ petition was allowed. Termination order dated 06.11.1995 was set aside and it was kept open to the respondents to pass appropriate order in accordance with law. It appears that in the writ petition of 1995, no stay order was granted. In Para- 36 of the writ petition, it is mentioned that after the judgment dated 26.05.2004 in the writ petition of 1995, petitioners sent applications to the authorities concerned on 09.06.2004 requesting that the petitioners be permitted to join their posts. Similarly in Para-37 of the writ petition, it has been stated that petitioners also approached the authorities and requested that they might be taken back in service. From these averments, it is clear that till then petitioners were not working. Thereafter contempt petition was also filed. Thereafter matter was decided on 19.04.2006 and S.D.M., Farenda cancelled the appointments of the petitioners. The said orders (Annexures 14 to 20) have been challenged through this writ petition. Various reasons have been given in the impugned orders for holding that the initial appointments of the petitioners dated 09.02.1990 were illegal and in violation of provisions of U.P. Collection Amins Service Rules, 1974. It has been mentioned that detailed procedure is prescribed for filling up 35% posts of Collection Amins from Seasonal Collection Amins and for that selection committee is to be constituted. Admittedly, this procedure was not followed before appointing the petitioners. It is also mentioned in the impugned order that all the vacancies had been filled through Seasonal Collection Amins instead of 35%. Regarding confirmation order dated 13.03.1991, it is mentioned in the impugned order that confirmation could not be granted before completion of two years and the petitioners had completed only one year and 22 days, which was against Rule 22 of the above Rules. However, in the end right of the petitioners was protected and it was observed that in future whenever vacancies arose, petitioners would be considered for appointment under 35% quota. In this writ petition also, no stay order was granted. The order of termination is perfectly in accordance with law. The appointments of the petitioners were utterly illegal. Even provision of 35% quota for Seasonal Collection Amins was introduced in 1992-1993 by amending Rule 5 of the Rules of 1974. Admittedly no advertisement was made before the appointment and no selection procedure was followed. Merely on the basis of recommendation of Tehsildar, appointments were made hence appointments were illegal. Accordingly, writ petition being utterly devoid of merit is dismissed.