Mithal Lal Yadav vs State of U.P. and Another

V.K. Shukla, J.—Petitioner has rushed to this Court with following prayer:

(i) A writ order or direction in the nature of certiorari quashing the impugned order dated 03.01.2011 passed by Respondent No. 2 Annexure No. 1 to the writ petition.

(ii) a writ order or direction in the nature of mandamus directing the Respondent No. 2 to allow the Petitioner for functioning the Petitioner as regular Collection Amin Tehsil Karchana District Allahabad after giving full benefit of Service and pay the salary regularly.

Petitioner before this Court was initially appointed as Seasonal Collection Amin under an order dated 01.09.1990. The said appointment of the Petitioner was brought to an end, which resulted in filing of writ petition 15712 of 1993 by the Petitioner alongwith the four other persons. In the said writ petition, initially an interim order was granted on 05.05.1993, whereby the writ Petitioners were permitted to continue until further orders. The said writ petition came to be finally decided under the judgment and order dated 14.10.1993 and the only relief granted to the writ Petitioners was that their claim for regular appointment within 35% quota provided for under the U.P. Collection Amins Rules as amended in the year 1992 be considered as and when vacancy within the said quota becomes available. It appears that final judgment of the case was not brought to the notice of the District Magistrate as a result whereof the Petitioners continued in employment as Collection Amin without any break up to the year 2003. However the District Magistrate on being informed of the order of this Court dated 14.10.1993, came to a conclusion that continuance of the Petitioners on the strength of the interim order dated 05.05.1993 which was passed in the writ petition No. 15712 of 1993 ceased to have legal effect inasmuch as the same order has been merged in the final judgment. The District Magistrate therefore vide order dated 06.05.1993 held that the Petitioners were not at all entitled to be continued in the employment and therefore, directed that their services be brought to an end immediately. The order dated 06.05.1993 was challenged by the present writ Petitioner before this Court by means of writ petition No. 22388 of 2003. The writ petition was decided in terms of the judgment and order the Hon''ble Single Judge dated 23.03.2006, passed in writ petition No. 32219 of 2003. Against this order of the Hon''ble Single Judge the Petitioner filed review/recall application being application No. 183187 of 2007. The said application has been dismissed under the judgment and order dated 01.05.2008. Against the said order in question Petitioner preferred Special Appeal No. 449 (D) of 2008 and this Court disposed of said Special Appeal with following observations:

In view of the aforesaid, we have no hesitation to hold that District Magistrate was justified in passing the order dated 06.05.2003, wherein the earlier continuance of the Petitioner as seasonal collection Amin without any break in terms of the interim order dated 05.05.1993 passed in writ petition No. 15712 of 1993, have been held to be illegal and the District Magistrate therefore, rightly directed that appointment as such be brought to an end. The District Magistrate has rightly held that once the writ petition has been finally decide the interim order merged in the final order and there was no direction in the final judgment for continuation of the Petitioner. We therefore, find no error in the order of the District Magistrate dated 06.05.2003. In view of the aforesaid conclusion as also in view of the reasons assigned in the judgment and order dated 23.03.2006 passed in writ petition No. 32219 of 2003 by Hon''ble Single Judge to the effect that regular appointment could only be claimed within 35% quota we affirm the order of Hon''ble Single Judge for the reasons which have been stated by us. We, however, make it clear that if vacancies within 35% quota are available for regular appointment, the claim of the Petitioner along with other such eligible seasonal collection Amins shall be considered irrespective of any of the observation made herein above.

The appeal is disposed of accordingly. After the said order has been passed by this Court District Magistrate, has proceeded to pass an order on 29.11.2008 non-suiting the claim of the Petitioner, at this stage again Petitioner had preferred Civil Misc. Writ Petition No. 66826 of 2008 and this Court has proceeded to pass following order:

The Sub-Divisional Magistrate, Karchhana has by his order dated 19.09.2008, passed consequential orders after the recall/review application was dismissed terminating the Petitioner''s services as there was no order by which the earlier order terminating Petitioner''s service was either stayed or quashed by this Court.

The District Magistrate, Allahabad has thereafter, in view of the direction issued by the Division Bench considered the Petitioner''s case and the recoveries and has passed a fresh order on 22.11.2008 observing that since recoveries made by the Petitioner in the last four fasali years in which he had worked i.e. Rabi 1413 Fasali, Kharif 1414 Fasali Rabi 1414 Fasli and Kharif 1415 Fasli were only 55%, 42%, 35% and 53% respectively and were less than 70% the Petitioner was not entitled for the regularization.

The order dated 06.08.2003 by which Petitioner''s services were terminated on the basis that he had continued even after termination of his service and dismissal of his writ petition, has not been set aside by any court. The observations of the Division Bench also have been carried out by the District Magistrate with the findings that the Petitioner''s recoveries were not satisfactory. The findings regarding the percentage of recoveries have not been challenged.

The Petitioner is now 57 years'' old. In the facts and circumstances in which the Petitioner had initially concealed the order of this Court and had continued in service and has also taken benefit of the subsequent interim order, no interference is required to be made in this writ petition. The finding regarding the percentage of recoveries is a finding of fact.

The writ petition is dismissed. Thereafter review application was moved by the Petitioner and sa review application has been rejected on 16.07.2010 by following order:

Heard Ms. Tulika Prakash, learned Counsel for the applicant-Petitioner in support of the grounds taken in the review petition.

She submits that the Petitioner did not conceal any information from the department. The department had wrongly computed the percentage of the recovery/collection made by the Petitioner. The Petitioner could not place before the court, the copy of the earlier order of the High Court and the documentary proof that the department was aware of the earlier order of the High Court.

The Petitioner was not regularized as collection amin as his recovery/collection was less than prescribed 70 % in the last four revenue years. The writ petition was dismissed. In special appeal, the court directed regular appointment under 35 % quota. The District Magistrate by fresh order had again found that the Petitioner''s recovery is much less than 70 %. The Petitioner could not substantiate in the court that the order of the District Magistrate was incorrect.

In this review application, there is no averment that the Petitioner''s recoveries were up to the minimum prescribed limit of 70 % for considering him for regularization.

The grounds taken in the review application do not make out any error apparent in my judgment.

The review application is rejected. Thereafter it appears that Petitioner has been representing the matter before District Magistrate and District Magistrate has passed order dated 03.01.2011. Petitioner at this stage has again rushed to this Court contending therein that order passed by the District Magistrate is bad in law and Petitioner should be permitted to function.

Sri R.K. Ojha, Advocate appearing with Sri Hari Om Tiwari, Advocate contended that Petitioner has been meted with arbitrary and discriminatory treatment, as such writ petition in question deserves to be allowed.

Countering the said submission learned Standing counsel on the other hand contended that Petitioner is trying to get closed chapter reopened in the garb of present writ petition.

After respective arguments have been advanced orders passed by this Court has been perused specially the order dated 05.01.2009 passed by this Court and the order dated 16.07.2010 and in view of finding recorded therein then there is no occasion for this Court for entertaining the writ petition preferred on behalf of the Petitioner, and further as rights of the Petitioner has already been adjudicated by this Court. Opinion formed by the District Magistrate is nothing but reiteration of the opinion which has been expressed by this Court on earlier occasion. Once right of the Petitioner has already been decided by this Court then Petitioner cannot legitimately claim that he has got any right to continue.

Consequently present writ Petitioner as it has been framed and drawn is dismissed.