# Awadesh Narain Singh v. State Of U.P. & Ors - **Citation:** (2016) 4 ILRA 913 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2016-02-19 - **Bench:** Dr. Dhananjaya Yeshwant Chandrachud, C.J. Yashwant Varma - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/awadesh-narain-singh-v-state-of-u-p-ors-43703 - **Pages:** 4 ## Headnote Service Law - Recruitment and Absorption - Seasonal Collection Amins - U.P. Collection Amins Service Rules, 1974 - Rule 5 (Second Proviso) - Quota for absorption - Interpretation of "35% quota" - Whether applicable to existing vacancies or total cadre strength - Uttar Pradesh Collection Amin's Service (Seventh Amendment) Rules, 2015 - Fourth Proviso - One-time measure - Distinction between cadre strength and vacancies. Recruitment and Absorption - Seasonal Collection Amins sought regular appointment/absorption against 35% quota under the second proviso to Rule 5 of the U.P. Collection Amins Service Rules, 1974. Their claim was rejected on the ground that the quota was required to be applied to the total cadre strength of Collection Amins in the district and not to the number of vacancies existing at the relevant time. Rule 5 (Second Proviso) - Held that on a holistic reading of Rule 5, the expression "service" refers to the entire cadre of U.P. Collection Amins in the district. The 35% quota envisaged under the second proviso to Rule 5 is required to be calculated with reference to the total cadre strength and not with reference to the fluctuating number of vacancies available from time to time. Applying the quota to vacancies alone would result in distortion and breach of the prescribed percentage. Uttar Pradesh Collection Amin's Service (Seventh Amendment) Rules, 2015 - Further held that the distinction is made explicit by the fourth proviso to Rule 5, introduced by the Seventh Amendment Rules, 2015, which specifically links 85% reservation to the "existing vacancies" as a one-time measure. Where the rule-making authority intended the quota to operate on vacancies, it has done so expressly. Fourth Proviso- Judgment of the learned Single Judge upheld. However, clarified that the claims of the appellants may be independently considered under the fourth proviso to Rule 5, if otherwise eligible. Special Appeals dismissed with the above clarification. Case listed ## Text 4 All. Awadesh Narain Singh Vs State Of U.P. & Ors. 913 applicant no. 1 denies to be the legally wedded wife of respondent no. 2 and having regard to the alleged conduct of respondent no. 2, issuance of notice to respondent no. 2 is hereby dispensed with. 11. Although the civil suit is instituted by the applicants themselves before the Civil Judge (S.D.) Sitapur and any indulgence by this Court under Section 24 of the C.P.C. and that too at the stage when the suit proceedings are at the stage of evidence may not be in the fitness of things but looking to the peculiar facts and circumstances of the case where the applicant no. 1 claims herself to be married to a different person and the respondent no. 2 being denied to be the lawful husband coupled with other allegations made in this application, it is desirable to invoke the jurisdiction vested in this Court under Section 24 of the Code of Civil Procedure. 12. In the interest of justice, the proceedings of civil suit no. 521 of 2014 are accordingly transferred from Civil Judge (S.D.) Sitapur to the Family Court, Lucknow where the case shall be registered and tried. The applicants shall file a copy of this order before the Civil Judge (S.D.) District Sitapur within two weeks who shall forthwith pass necessary order for transfer of the paper book with due notice to respondent no. 2 and the parties shall accordingly appear before the Family Court, Lucknow to co-operate with the proceedings. It is also clarified that the proceedings are maintainable at the instance of applicant no. 1 and her father having no locus to contest the case may be deleted from the array of plaintiffs, however, he may be allowed pairvi only. 13. Accordingly, the transfer application is hereby allowed. The necessary steps for transfer of the proceedings with due notice to the parties shall be carried out not later than one month from today. In case, there be any grievance to the respondent no. 2 against this order, it is open for him to seek an opportunity of hearing by filing an application for re-call. 14. It is further directed that the Family Court, Lucknow shall make an earnest endeavour to decide the suit proceedings expeditiously and preferably within a period of one year from the date a certified copy of this order is filed before the Court concerned. ---------- APPELLATE JURISDICTION CIVIL SIDE DATED: ALLAHABAD 19.02.2016 BEFORE THE HON'BLE DR. DHANANJAYA YESHWANT CHANDRACHUD, C.J. THE HON'BLE YASHWANT VARMA, J. Special Appeal No.- 93 Of 2016 & Special Appeal No.- 95 Of 2016 Awadesh Narain Singh ...Appellant Versus State Of U.P. & Ors. ...Respondents Counsel for the Appellant: 914 INDIAN LAW REPORTS ALLAHABAD SERIES Sanjeev Singh Counsel for the Respondents: C.S.C. Service Law - Recruitment and Absorption - Seasonal Collection Amins - U.P. Collection Amins Service Rules, 1974 - Rule 5 (Second Proviso) - Quota for absorption - Interpretation of "35% quota" - Whether applicable to existing vacancies or total cadre strength - Uttar Pradesh Collection Amin's Service (Seventh Amendment) Rules, 2015 - Fourth Proviso - One-time measure - Distinction between cadre strength and vacancies. Recruitment and Absorption - Seasonal Collection Amins sought regular appointment/absorption against 35% quota under the second proviso to Rule 5 of the U.P. Collection Amins Service Rules, 1974. Their claim was rejected on the ground that the quota was required to be applied to the total cadre strength of Collection Amins in the district and not to the number of vacancies existing at the relevant time. Rule 5 (Second Proviso) - Held that on a holistic reading of Rule 5, the expression "service" refers to the entire cadre of U.P. Collection Amins in the district. The 35% quota envisaged under the second proviso to Rule 5 is required to be calculated with reference to the total cadre strength and not with reference to the fluctuating number of vacancies available from time to time. Applying the quota to vacancies alone would result in distortion and breach of the prescribed percentage. Uttar Pradesh Collection Amin's Service (Seventh Amendment) Rules, 2015 - Further held that the distinction is made explicit by the fourth proviso to Rule 5, introduced by the Seventh Amendment Rules, 2015, which specifically links 85% reservation to the "existing vacancies" as a one-time measure. Where the rule-making authority intended the quota to operate on vacancies, it has done so expressly. Fourth Proviso- Judgment of the learned Single Judge upheld. However, clarified that the claims of the appellants may be independently considered under the fourth proviso to Rule 5, if otherwise eligible. Special Appeals dismissed with the above clarification. Case listed 1. Awadesh Narain Singh v. State of U.P. & Ors., Special Appeal No. 93 of 2016, and 2. Baliram Singh & Anr. v. State of U.P. & Ors., Special Appeal No. 95 of 2016 3. Neutral Citation No. 2016:AHC:37419-DB, decided on 19.02.2016. (Delivered by Hon'ble Dr. Dhananjaya Yeshwant Chandrachud, C.J. & Hon'ble Yashwant Varma, J.) 1. The appellants, who are all seasonal collection amins, were seeking absorption in terms of the provisions of the U.P. Collection Amins Service Rules, 1974. Claiming consideration by virtue of the provisions of the second proviso to Rule 5, the appellant had earlier approached this Court by filing a Writ Petition1 which came to be disposed of on 14 February 2011 calling upon the Collector & District Magistrate to consider their claim for regular appointment against the 35 % quota as provided under the 1974 Rules. Pursuant to the directions of the Court, the Collector turned down the claim of the appellants by an order dated 19 September 2011. This order formed 4 All. Awadesh Narain Singh Vs State Of U.P. & Ors. 915 subject matter of challenge in the writ proceedings from which the present appeal emanates. The learned Single Judge has negatived the contention of the appellants that they were entitled to a regular appointment against the 35% quota. Hence the present appeal. 2. The order of 19 September 2011, negatived the claim of the appellants on the ground that there were no vacancies against which the appellants could be offered regular appointment. The order records that the total strength of Collection Amins in district Ballia was 115. It held that applying the quota to the total strength of the district it was apparent that only 5 vacancies existed. In the selection process, three candidates belonging to the Other Backward Class and one candidate belonging to the general category were offered regular appointment. One post had been left vacant and was liable to be filled by a candidate belonging to the Other Backward Classes. The appellants not falling in the zone of eligibility were accordingly not offered appointment. 3. Learned counsel for the appellants has contended that the rules as amended by the Uttar Pradesh Collection Amin's Service (Seventh Amendment) Rules 2015 envisage a reservation of 35% of the vacancies being earmarked to be filled from amongst seasonal collection amins. It was submitted that the number of seasonal collection amins who were liable to be absorbed and granted regular appointment must necessarily be worked out by applying the quota of 35% to the vacancies as existing at the time of recruitment. It was contended that the Collector & District Magistrate has clearly erred in working out the number of vacancies liable to be offered to seasonal collection amins by applying the quota to the total number of posts in the district. 4. We are unable to appreciate or accept the above submission. Upon a holistic reading of the provisions of Rule 5, we are of the opinion that the Collector has correctly applied the 35% quota with reference to the total number of posts of collection amins in the district. 5. Rule 5 lays forth the process for recruitment to posts in the service. The expression "service" has been defined under the Rules to mean 'the Uttar Pradesh Collection Amins' Service'. The expression "substantive appointment" has been explained to mean an appointment, not being an ad hoc appointment on a post in the cadre of the service. Upon a conjoint reading of the above provisions it is apparent that the 35% quota envisaged under the second proviso to Rule 5 must necessarily be applied to the entire cadre strength, comprising the total number of collection amins in the district. Accepting the submission of the appellant, would clearly lead to a situation where the percentage of vacancies which are liable to be set apart for seasonal collection amins itself being exceeded and breached. 6. Our conclusion that the second proviso to Rule 5 clearly relates to the total cadre strength of the cadre in district is further fortified from a reading of the fourth proviso to Rule 5 which stands introduced by virtue of the Uttar Pradesh Collection Amin's Service (Seventh Amendment) Rules 2015. The fourth proviso reads as follows:- "Provided further that after the commencement of the Uttar Pradesh Collection Amin's Service (Seventh) Amendment Rules, 2015, only as one time measure, 85 per cent 916 INDIAN LAW REPORTS ALLAHABAD SERIES of the existing vacancies on the date of commencement of these rules, shall be filled by selection, from amongst such seasonal collection amins who possessed requisite qualifications as prescribed in second proviso to sub-rule (1) of rule 5." (emphasis supplied) 7. A reading of the fourth proviso clearly shows where the rule making authority sought to link the percentage of seats to the existing vacancies for being offered to seasonal collection amins, a clear and unambiguous provision was made in respect thereof. It is for this reason that the fourth proviso links the percentage to 'existing vacancies'. 8. For the aforesaid reasons, we find that the learned Single Judge was correct in his conclusion that the 35% quota is to be worked out with reference to the total cadre strength of collection amins and could not be made to depend upon the fluctuating number of vacancies that may be available at different points of time. We are in agreement with the conclusion and findings so recorded by the learned Single Judge on this score and in consequence find no merit in the present Special Appeal. 9. We however clarify that neither this order nor the judgment rendered by the learned Single Judge would come in the way of the consideration of the claim of the appellants in light of the fourth proviso to Rule 5 which earmarks 85% of the existing vacancies to be filled by selection from amongst such seasonal collection amins who possess the requisite qualifications. 10 Subject to the aforesaid observations, the judgment rendered by the learned Single Judge is affirmed. 11. The Special Appeals stands disposed of. --------- APPELLATE JURISDICTION CIVIL SIDE DATED: LUCKNOW 25.04.2016 BEFORE THE HON'BLE AMRESHWAR PRATAP SAHI, J. THE HON'BLE ATTAU RAHMAN MASOODI, J. Special Appeal No.- 153 Of 2016 Mahendra Pratap Bhatt ...Appellant Versus Smt. Saroj Mahana ...Respondent Counsel for Appellant: A.S. Rai, Govind Kumar Saxena