Raja Ram Pandey vs The State of U.P. and Others

Devi Prasad Singh, J.—Present writ petition has been filed under Article 226 of the Constitution of India for issuance of a writ of mandamus to command the opposite parties to regularise the petitioner against the regular vacancy of Collection Amin in district Sultanpur.

In brief, the submission of the petitioner''s counsel is that the petitioner was appointed in the year 1970 as Seasonal Collection Amin. Since 1970, the petitioner has been continuously discharging duty as Seasonal Collection Amin. Right from 1990-1991, from time to time, several persons junior to the petitioner were regularised against the vacancy of regular Collection Amin under the Regularisation Rules but the petitioner''s case has not been considered by the respondents. Some of the Amins who were regularised in the year 1990-91 are Raja Ram, Ram Narayan, Ram Saran, Ranjeet etc.

Even after 1991, in the year 2004, five persons junior to the petitioner were regularised, namely Shri Ram Narayan, Raja Ram Ojha, Amar Bahadur Singh, Lallan Bhadur Singh and Vijay Prakash Singh.

Submission of Mr. Abid Ali, learned Counsel appearing on behalf of the petitioner is that from time to time, regularisation of juniors has been done but the petitioner''s name has not been considered for extraneous reasons, though he fulfils the requisite qualification and falls within the field of eligibility.

By order dated 2.1.2008, this Court directed the respondents to file an affidavit and show cause why the petitioner was not regularised though juniors have been regularised long back. An affidavit dated 8.5.2008 has been filed by the respondents, in which in paras 3, 5 and 6, it has been admitted that the juniors have been regularised but the reason for not regularising the petitioner''s services assigned is that the petitioner is aged about 59 years and a person possessing the age of 45 years or less can only be considered for regularisation. In response to the affidavit dated 8.5.2008, the petitioner''s counsel submits that in that in the year 1991, when juniors Raja Ram and others were regularised, the petitioner was aged about 43 years and his recovery was more than 70% and under Regularisation Rules, he was entitled for regularisation.

Nothing has been brought on record by the respondents to rebut the submission made by the learned Counsel for the petitioner that he was eligible and qualified for regularisation in the regular cadre of Collection Amin. Learned Standing Counsel has not invited any pleading on record which may indicate that the petitioner was not eligible for regularisation in the year 1991. The only ground raised by the respondents is that he is now aged about 59 years and cannot be considered for regularisation. It has also been submitted that the seniority list on the basis of which the petitioner prayed for regularisation is only a provisional one. However, the petitioner''s counsel submits that on the basis of the same seniority list, juniors were regularised. The petitioner''s name was serial No. 8 and the name of the juniors were at serial Nos. 14 and onward in the said seniority list.

I have considered the submissions advanced by the learned Counsel for the parties and perused the record.

Right to consider for regularisation is a fundamental right. However, when the regularisation is done in order of seniority subject to fitness, then supersession of seniors on unfounded grounds is also violative of Article 21 of the Constitution of India, i.e. right to livelihood. In case the petitioner was qualified for regularisation, then denial of regularisation by the respondents against regular vacancy is a highly arbitrary act and violative of Article 14 of the Constitution of India.

In view of above, it appears that the petitioner was superseded on unfounded grounds though he was entitled for regularisation against regular vacancy of Collection Amin in district Sultanpur. Present writ petition was filed in the year 1991 itself on account of high-handedness on the part of the respondents. In the year 1991, according to the petitioner''s counsel, the petitioner was aged about 43 years. In case the writ petition would have been decided earlier, naturally, the petitioner would have been regularised in the regular cadre of Collection Amin. Only because of pendency of the writ petition, the statutory right available to the petitioner for regularisation should not be thrown out. The petitioner''s counsel has invited the attention of this Court to the judgment and order dated 22.7.1992, rendered in writ petition No. 6860 of 1989 wherein this Court has directed to regularise the services of the incumbents keeping in view the length of service. The operative portion of the judgment and order dated 22.7.1992 is reproduced as under:

In view of what has been indicated herein above, the writ petition partly succeeds. A writ in the nature of mandamus commanding the opposite parties to absorb the petitioners on the basis of length of services as and when the regular vacancies arise, is issued. Opposite parties are further commanded not to appoint fresher on any vacancy till the petitioners'' services are regularised on regular vacancy. In the circumstances of the case there would be no order as to costs.

In view of above, merely because the writ petition was pending and during pendency of the writ petition, the petitioner has exceeded the age of 45 years, he should not be deprived from his statutory right which he would have availed in case the writ petition would have been disposed of in the year 1991 or 1992 when the same was filed. Merely because of the pendency of the writ petition, the litigants should not put to suffer for no fault on their part. In case because of pendency of the writ petition, a litigant is put to suffer because of age bar, it shall shake the peoples'' faith in the administration of justice.

Moreover, right to livelihood is a constitutionally protected right and in case the petitioner''s services would have been regularised in the year 1991 or 1992, as a consequence thereof, the petitioner would have availed higher salary, perks and may be other promotional avenues.

In view of above, the writ petition is allowed. A writ in the nature of mandamus is issued commanding the opposite parties to consider the petitioner''s case for regularisation in the cadre of Collection Amin from the date the juniors were regularised with all consequential benefits keeping in view the observations made hereinabove. While considering the petitioner''s case for regularisation, the respondents shall relax the age.

The writ petition is allowed accordingly. No order as to costs.