Ashok Kumar Singh vs State of U.P. and Another

Hon''ble Sibghat Ullah Khan, J.—Heard learned counsel for the petitioner and learned standing counsel for the respondents.

This writ petition was dismissed as infructuous on 27.2.2009. Thereafter restoration application was filed on 7.9.2009. On the restoration application on 19.7.2011 and 28.7.2011 following orders were passed on the order sheet.

19.7.2011

It is shocking that this writ petition was dismissed as infructuous two and half years before (on 27.02.2009) still under interim order dated 23.01.1991 State authorities are benevolent enough to pay salary to the petitioner till date. Petitioner filed restoration application about two years before i.e. on 7.9.2009 but continued to receive the salary thereafter. Government officers are clearly in collusion with the petitioner in this open loot of Government money. I passed a general order which is reported in Pankaj Babu Vs. D.D.E. 2009 (75) ALR 22 and learned chief Standing Counsel was directed to supply copies of the said order to all the D.Ms. and D.I.O.S. In the said order I had directed that no such employee should be paid salary who was getting salary under interim order passed by this court in a writ petition which was more than 10 years old unless evidence of pendency of the writ petition was filed.

Put up on 22.7.2011.

On 22.07.2011 personal affidavit of the D.M. Kaushambi must be filed and the in charge of the Section concerned must be present in the Court. The salary of two and half years which has illegally been paid to the petitioner is to be recovered from the petitioner and the officer concerned in equal share. The D.M. in the affidavit must indicate that from the salary of which officer this amount shall be deducted.

Office is directed to supply a copy of this order free of cost to Sri Srichand, learned standing counsel present in court today.

28.7.2011

Affidavit of District Magistrate, Kaushambi has been filed in which it has been mentioned that enquiry has been entrusted to A.D.M. On enquiry from the Court, leanred standing counsel states that the A.D.M. is expected to submit his report by 05.08.2011. Accordingly, list on 09.08.2011. On the said date copy of the enqiury report of A.D.M. shall be brought on record. Till then no recovery shall be made. Office is directed to supply a copy of this order free of cost to learned standing counsel by 01.08.2011.

Thereafter arguments were finally heard on the restoration application as well as merit of the writ petition on 25.8.2011 and order was reserved. Order dated 25.8.2011 passed on the order sheet is quoted below:

Heard learned counsel for the parties on the restoration application as well as merit of the writ petition. Order reserved. Learned standing counsel states that on 12.8.2011 he has filed Supplementary affidavit annexing therewith copy of the inquiry report. Duplicate copy of the same has been placed on record. Office shall trace and place the original Supplementary affidavit on record.

Cause shown is sufficient. Delay in filing restoration application is condoned. Restoration application is allowed. Order dated 27.2.2009 dismissing the writ petition as infructuous is set aside.

This writ petition is directed against order dated 8.1.1991 passed by Sub Divisional Officer, Sirathoo, Allahabad. Annexure-3 to the writ petition is a communication issued by Tehsildar, Sirathoo stating therein that as per order of Sub Divisional Officer dated 8.1.1991 adhoc appointments of Ashok Kumar Singh, (petitioner), Abrar Ahmad and Suresh Kumar were cancelled and Banarsi Lal, Ram Lakhan Jaiswal and Ganga Deen were appointed as ad-hoc Collection Amins at their places. In this writ petition none of the newly appointed persons was impleaded.

In this writ petition stay order was passed on 23.1.1991 (on the order sheet) staying the operation of order dated 8.1.1991 passed by respondent no.2 until further order. Under the said interim order petitioner continued to work and received salary. Newly appointed persons Ganga Deen and Ram Lakhan applied for impleadment in this writ petition through application dated 28.4.1991. In para-4 of the affidavit filed in support of impleadment application it was stated that petitioner had absconded with state money whereupon a First Information Report (F.I.R.) was lodged. Counter affidavit to the impleadment application was filed by the petitioner. In para-6 of the counter affidavit it was stated that allegations in para-4 of the affidavit in support of impleadment applications were wrong and that it was the state whose money was alleged to have been misappropriated hence only State could seek legal redress against the petitioner. It was not specifically denied that F.I.R. had been lodged against the petitioner. In para-5 of the affidavit in support of impleadment application it was stated that newly appointed persons were senior to the petitioner. In para-7 of the counter affidavit petitioner did not deny the said fact.

In any case petitioner''s appointment was adhoc and he could not work indefinitely. According to Annexure-1 to the writ petition certificate issued by the Tehsildar dated 20.9.1989 petitioner had worked as Seasonal Collection Amin from 1.2.1987 to 31.3.1987 and from 13.4.1987 to 31.3.1988. Annexure-2 to the writ petition is order of S.D.O., Sirathoo, Allahabad dated 13.8.1990 appointing several persons including petitioner on adhoc basis. Petitioner was appointed on the post vacated by compulsory retirement of one Ram Shankar who was regular collection amin. Accordingly the appointment itself was bad in law and in any case it was by its very nature to continue until regular appointment was made.

It was only in 1992-93 that Rule 5 of U.P. Collection Amins'' Service Rules 1974 was amended and it was provided that 35% vacancies of Collection Amins shall be filled by Seasonal Collection Amins. Prior to that there was no such provision.

Moreover petitioner committed a fraud in continuing to receive the salary even after filing of the restoration application and coming to know of the dismissal of the writ petition. A person who commits fraud of such a magnitude is not entitled either to be appointed or to continue in service particularly on the post of Collection Amin which is a post of trust and person holding the said post is required to deal in making recovery from private persons/defaulters. A person who acts unjustly cannot invoke writ jurisdiction which is discretionary.

Accordingly, writ petition is dismissed. Salary since September, 2009 which has been paid to the petitioner shall be recovered from him like arrears of land revenue. The officers who are responsible for such payment shall be proceeded against departmentally and the salary received by the petitioner from March, 2009 till August, 2009 shall be recovered from the officers who are responsible for this bungling. Learned standing counsel has filed report of A.D.M. (Finance & Revenue), Kaushambi dated 5.8.2011 fixing the liability upon certain persons. However, it is quite possible that some higher officers may also be responsible for this utter-negligence.

Office is directed to supply a copy of this order free of cost to Shri S.P.Mishra, learned standing counsel for sending the same to the authority concerned including Chief Secretary, Government of U.P.

Allowed.

For orders see order of date passed on the memo of writ petition.

Above order recalled. Writ petition is dismissed on merit. For detailed order see order of date passed on separate sheets.