# Babundar Chaubey @ Babundar Prasad Chaubey v. State of U.P. & Ors

- **Citation:** (2020) 2 ILRA 1244
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-01-10
- **Case number:** Writ-A No. 52369 of 2016
- **Bench:** Piyush Agrawal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/babundar-chaubey-babundar-prasad-chaubey-v-state-of-u-p-ors-45651
- **Pages:** 7

## Headnote

A. Service Law- Regularization - U.P.
Collection Amins Service Rules, 1974;
U.P. Seasonal Collection Amin Rules,
1974: Rules 5, 17, 17-A - Petitioner has not
been considered for regularization even after
achieving the target prescribed u/Rule 5.

The Court reiterating the principle that 'last
four fasals' would mean all fasals in which
Seasonal Collection Amin has worked and does
not mean the four immediately preceding
fasals, has given liberty to the petitioner to
move a detailed representation before the
Collector
(authority
concerned)
with
the
direction to decide the same expeditiously and
in accordance with law. (Para 7, 10)

Writ petition disposed of. (E-4)

Precedent followed:

## Text

1244 INDIAN LAW REPORTS ALLAHABAD SERIES
or made permanent, merely on the
strength of such continuance, if the
original appointment was not made by
following a due process of selection as
envisaged by the relevant rules."

15. In Secretary to Government, School
Education Department, Chennai and others
Vs. Thiru R. Govindaswamy and others
(2014) 4 SCC 769, referring to Uma Devi
(supra) Court said that there is no fundamental
right in those who have been employed on daily
wages or temporarily or on contractual basis, to
claim that they have a right to be absorbed in
service. As has been held by this Court, they
cannot be said to be holders of a post, since, a
regular appointment could be made only by
making appointments consistent with the
requirements of Articles 14 and 16 of the
Constitution.

16. In Upendra Singh Vs. State of Bihar
and others, (2018) 3 SCC 680 referring to Uma
Devi (supra), Court said :

"Law pertaining to regularisation has
now been authoritatively determined by a
Constitution Bench judgment of this Court in
Secretary, State of Karnataka and Ors. vs.
Umadevi and Ors. (2006) 4 SCC 1. On the
application of law laid down in that case, it is
clear that the question of regularisation of daily
wager appointed contrary to law does not arise.
This ration of the judgment could not be disputed
by the learned Counsel for the Appellant as well."

17. In view of above authorities and
binding precedent of Supreme Court, prayer for
regularization de hors the rules, cannot be
considered and any direction issued by this Court
otherwise, which is contrary to the Statute, would
be impermissible.

18. In view of discussion made
hereinabove, I do not find the petitioner entitled
for relief sought for. The writ petition lacks
merits. Dismissed.
----------
(2020)02ILR A1244

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 10.01.2020

BEFORE

THE HON'BLE PIYUSH AGRAWAL, J.

Writ-A No. 52369 of 2016

Babundar Chaubey @ Babundar Prasad
Chaubey ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Dharmendra Kumar Tripathi

Counsel for the Respondents:
-----

A. Service Law- Regularization - U.P.
Collection Amins Service Rules, 1974;
U.P. Seasonal Collection Amin Rules,
1974: Rules 5, 17, 17-A - Petitioner has not
been considered for regularization even after
achieving the target prescribed u/Rule 5.

The Court reiterating the principle that 'last
four fasals' would mean all fasals in which
Seasonal Collection Amin has worked and does
not mean the four immediately preceding
fasals, has given liberty to the petitioner to
move a detailed representation before the
Collector
(authority
concerned)
with
the
direction to decide the same expeditiously and
in accordance with law. (Para 7, 10)

Writ petition disposed of. (E-4)

Precedent followed:
1. State of U.P. and others Vs. Pankaj
Srivastava, 2013 (11) ADJ 473 (Para 7, 9)

2. Suresh Chand Mishra Vs. State of U.P. and
others,
2016
(11)
ADJ
315
(Para
8)
2 All. Babundar Chaubey @ Babundar Prasad Chaubey Vs. State of U.P. & Ors.
1245
3. Rajesh Kumar Tripathi Vs. State of U.P., Writ
A No. 16121 of 2017, decided on 27.03.2019
(Para 9)

(Delivered by Hon'ble Piyush Agrawal, J.)

1. By means of the present writ petition,
the petitioner has prayed the following
amongst other relief:

"Issue a writ, order or direction in
the nature of mandamus, directing the
respondent
No.3
to
consider
the
regularization of the petitioner on the post of
Collection Amin under Rule 5 of U.P.
Seasonal Collection Amin Rules, 1974 as
amended from time to time, within stipulated
period, specified by this Hon'ble Court."

2. It has been averred that the petitioner
is working as Seasonal Collection Amin in
Tehsil Robertsgang, district Sonbhadra and has
completed the target as given to him by the
respondent authorities without any complaint.
It has been further averred that regularization
of the petitioner on the post of Collection
Amin under 35% quota in terms of the U.P.
Collection Amins Service Rules, 1974 has not
been considered till date pursuant to Rule 5 of
U.P. Seasonal Collection Amin Rules, 1974
(hereinafter referred to as the Rules) through
the petitioner has achieved the target of
74.62% in 4 fasals in the year 2016. His name
finds place at serial no. 29 of the seniority list
dated 28.6.2016 prepared as per Rules 17 and
17-A of the Rules. Hence the present writ
petition has been filed seeking mandamus for
issuing a direction to the respondents to
consider regularization of the petitioner on the
post of Collection Amin.

3. Learned counsel for the petitioner
submits that as per Rule 5 of the Rules the
work of the petitioner is not only satisfactory
but has also achieved his target of more than
70% as prescribed therein and his age being
less than 45 years is fit for consideration for
regularization on the said post.

4. Rebutting the submission of the
learned counsel for the petitioner, learned
standing counsel states that the petitioner has
not achieved the target of 70% for the 4 fasals
and, therefore, his claim for regularization on
the post of Collection Amin has not been
considered.

5. The Court has perused the records.

6. The records reveal that for
regularization of service of the petitioner on the
post of Collection Amin as per Rule 5 of the
Rules the work of the petitioner should be
satisfactory in the last 4 fasals and collection
should be attained recovery within the
prescribed norms, i.e. at least 70% whereas in
the case in hand the petitioner has attained
recovery of 74.62% as well as his work is also
satisfactory.

7. A Division Bench of this Court in the
case of State of U.P. and others vs. Pankaj
Srivastava (2013 (11) ADJ 473 has an
occasion to consider the similar controversy
and came to the conclusion that 'last four fasals'
would mean all fasals in which a Seasonal
Collection Amin has worked and does not
mean merely the four immediately preceding
fasals. The relevant part of the said judgment is
quoted below:

"In assessing the submission,
which is urged on behalf of the State, Rule
5 of the Rules, 1974, as it held the field at
the material time, has to be interpreted. As
noted earlier, the Rule contemplates
regularization of the Seasonal Collection
Amins against 35% of the vacancies. The
Rule prescribes the following conditions,
namely, (i) the Seasonal Collection Amins
1246 INDIAN LAW REPORTS ALLAHABAD SERIES
must have rendered satisfactory work in at
least four fasals; and (ii) the Seasonal
Collection Amins should not have attained
the age of 45 years by the 1st July of the
relevant year. The explanation states that
'satisfactory service' would mean that in
the
last
four
fasals,
the
Seasonal
Collection Amins should have attained the
recovery
in
accordance
with
the
prescribed norms of at least 70%. Now the
explanation has to be harmoniously
construed with the main provision which is
made
in
the
Rules
of
1974.
The
requirement of the Rules is that the
Seasonal Collection Amins should have
worked for at least four fasals. Where a
Seasonal Collection Amin has worked for
more than four fasals, in assessing
whether he has rendered satisfactory
performance within the meaning of the
explanation, the extent of recovery has to
be assessed with reference to the last four
fasals during which he has worked. In a
situation where the Seasonal Collection
Amin has worked for only four fasals,
obviously the recovery has to be assessed
with reference to those four fasals. Hence,
the expression 'last four fasals' would
mean the last four fasals out of the total
number of fasals in which the Seasonal
Collection Amin has worked. The last four
fasals does not mean that the Seasonal
Collection Amin must be actually working
on the date on which the Selection
Committee applies its mind to the claim
for regularization. Such a condition is not
found in the Rules and to introduce such a
condition, would amount to a modification
or amendment of the statutory rule, which
is impermissible for this Court. The Rule
has to be read as it stands. The learned
Single Judge was, in our opinion, correct
in holding that the ground which has
weighed with the Selection Committee was
extraneous to the Rules. ".

8. This Court in the case of Suresh
Chand Mishra vs. State of U.P. and others
reported in 2016 (11) ADJ 315; has held as
follows:

"7. It is contended on behalf of
the petitioner that the only ground in the
impugned order is that the petitioner has
failed to achieve 70% target hence his
regularization has been rejected. It is
stated that the said view taken by the
authority concerned is contrary to the law
laid down by this Court. He has placed
reliance on the following judgments:

1. State of U.P. & others v.
Pankaj
Srivastava,
Special
Appeal
Defective No. 845 of 2013, decided on
03.12.2013;

2. Pankaj Srivastava v. State of
U.P. and others, 2016(34) LCD 691;

3. Molhey Ram v. State of U.P.
and others, 2013(31) LCD 2367.

8. Learned counsel for the
petitioner has further urged that in the
year 1997 some of the juniors of the
petitioner were regularized. At that point
of time the average of recovery percentage
of the petitioner was 79%. My attention
has been drawn by the learned counsel for
the petitioner to a chart prepared in 2004
for regularisation of Seasonal Collection
Amins, wherein the average recovery of
Seasonal Collection Amins is recorded. In
the said chart the petitioner's average
recovery is 79%. This fact is also stated by
the petitioner in paragraph-12 of the
petition. He has also drawn my attention
to paragraph-9 of the writ petition
wherein it is stated that some juniors,
namely Suresh Kumar and Santosh Kumar
Srivastava, who had only 35% recovery,
were regularized without considering the
case of the petitioner. In support of the
said averment the petitioner has brought
on record a document as annexure-10 to
2 All. Babundar Chaubey @ Babundar Prasad Chaubey Vs. State of U.P. & Ors.
1247
the writ petition. It is also stated that
Santosh Kumar Srivastava, who is junior
to the petitioner, has been illegally
regularized. He did not fulfill the norms of
four fasli and he had completed only three
fasli even then he has been regularized.

9. Learned counsel for the
petitioner has further invited attention of
the Court to the reply of the statement of
fact made in paragraph 9 & 12 of the writ
petition, in paragraph-11 of the counter
affidavit, the said fact has not been
specifically denied, only a general and
evasive reply is given therein.

10. Learned Standing Counsel
submits that the petitioner's writ petition is
not maintainable as his earlier writ
petition was dismissed and in the review
petition only liberty was granted to file a
representation. No other submission has
been made.

11. I have heard learned counsel
for
the
parties,
considered
their
submissions and perused the record.

12. Concededly, the petitioner is
working since 1989. The Rule-5 of the
Uttar Pradesh Collection Amins' Service
Rules,
1974
provides
that
35%
appointment on the post of Collection
Amins shall be made from the Seasonal
Collection Amins. The petitioner has
brought on record his previous recovery
percentage which indicates that in the year
2004 when the list was prepared his name
was at Sl. No. 20 and his average recovery
percentage was above 77%. There is no
reason in the impugned order or in the
counter affidavit why the petitioner was
not considered at that point of time. The
Rule-5 of the Rules, 1974 is in the
following terms:

**izfrcU/k ;g gS fd iSarhl izfr'kr
fjfDr;kWa ,sls lhtuy dysD'ku vehuksa esa ls
p;u }kjk Hkjh tk;saxh&

d& ftUgksaus de ls de pkj Qlyksa
rd lUrks"ktud :i ls dk;Z fd;k gks;

[k& ftudh vk;q ml o"kZ dh igyh
tqykbZ dks] ftl o"kZ p;u fd;k tk;] 45 o"kZ ls
vf/kd u gks%

izfrcU/k ;g Hkh gS fd ;fn mi;qDr
vH;FkhZ miyC/k u gksa rks 'ks"k fjfDr;kWa lh/kh HkrhZ
ds ek/;e ls lkekU; vH;fFkZ;ksa }kjk Hkjh tk;saxh

Li"Vhdj.k& lUrks"ktud dk;Z dk
rkRi;Z gksxk 'kq: ls vUr rd vPNs vkpj.k dks
lfEefyr djrs gq, vfUre pkj Qlyksa ds nkSjku
fofgr Lrj ds vuqlkj de ls de lRrj izfr'kr
olwyhA"

13. The aforesaid Rule provides
the regularization of seasonal collection
amins against 35% of vacancies. It
contemplates following conditions:

(i) The seasonal collection amin
must have rendered services in at least
four fasli;

(ii) He should not be above 45
years by the first July of the relevant year.

14. It is true that the explanation
of the Rule-5 of the Rules, 1974 refers the
satisfactory services in the last four fasli
with the prescribed norms of at least
seventy
percent.
The
prescribed
percentage of the target of the recovery
came to be considered in several cases
before this Court, way back in the year
2001. A similar issue fell for consideration
in the case of Dinesh Kumar Asthana v.
Collector, Azamgarh and others, (2001) 1
UPLBEC 867. In the said case the Court
held that there may be various factors and
reasons when total extent of recovery in a
seasonal amin's area may not be achieved,
such as Government itself kept the
recovery in abeyance due to natural
calamity. Relevant part of the judgement
reads as under:

"Necessary pleadings on this
aspect are wanting. Even the Counter
Affidavit does not disclose that no person
1248 INDIAN LAW REPORTS ALLAHABAD SERIES
in the list prepared in the year 1993 has
been regularised whose recovery was
below the prescribed limit or that all
persons above such regularized persons
were inefficient and or had poor efficiency
on comparison. This Court has no means
to find out whether the recovery in a
particular year with respect to the
petitioner was low for reason other than
this own efficiency. It is very relevant
circumstance
while
considering
the
efficiency of Seasonal Collection Amin.
For example, recovery is not possible
beyond a certain limit for various factors
and reasons like-orders from Court, the
total extent of recovery to be made in one's
area and/or whether Government itself
kept recovery in abeyance due to famine,
flood, drought etc. These will be relevant
consideration to be taken into account and
a Seasonal Collection Amin, being put to
sufferance for reasons beyond his control,
cannot be non-suited for low recovery as it
does not reflect at all upon his efficiency."

15. The judgment in Dinesh
Kumar
Asthana
(supra)
has
been
consistently followed by this Court in the
case of Brijesh Kumar v. Collector/
District Magistrate, Mainpuri and others,
2001(3) ESC 1325; Suresh Chandra
Sharma v. State of U.P. and others, Civil
Misc. Writ Petition No. 56124 of 2009;
Molhey Ram v. State of U.P. and others,
2013(31) LCD 2367; Ramveer Singh v.
State of U.P. and others, Writ-A No. 27358
of 2004.

16. In the case of State of U.P.
Throu. Prin. Secy. Deptt. Of Revenue Lko.
& Ors. v. Pankaj Srivastava, Special
Appeal Defective No. 845 of 2013 also the
similar issue was raised. In the said case
the claim of seasonal collection amin for
regularization was rejected on the ground
that he failed to achieve 70% prescribed
norms for recovery. The Court held that
the explanation of the said Rule-5 has to
be harmoniously construed with the main
provision which is made in the Rules,
1974. The principal requirement under the
Rules was that a seasonal collection amin
should have worked for at least four fasli
and the extent of recovery needs to be
assessed with reference to last four fasli
during the period when he worked. The
relevant part of the order reads as under:

"...However, the norms of 70%
recovery, as clarified, must relate to the
demand which was actually entrusted to
the
employee.
The
satisfactory
performance has to be read with reference
to the work, which is actually entrusted to
the Seasonal Collection Amin.

Learned counsel appearing on
behalf of the appellants has submitted that
in the memo of appeal, the State has taken
a ground that the respondent would not
meet the norms of 70% with reference to
the work which was entrusted to him."

17.
The
principle
of
law
emanates from the above decision is that
the recovery depends upon various factors
and only recovery cannot be made sole
criterion. It has to be considered along
with other requirements mentioned in the
Rules.

18. The explanation of Rule-5 of
the Rules, 1974 has been harmoniously
interpreted by this Court in a large
number of cases. Reference of some of
such cases has already been given
hereinabove. The authorities have not paid
due attention to the law laid down by this
Court and they are rejecting the claim
repeatedly on the same ground which has
been held to be untenable by this Court
long back in the year 2001.

19. I find that most of the claims
of regularization of seasonal collection
amins are primarily rejected on the
ground of less recovery thus it is clear that
2 All. Babundar Chaubey @ Babundar Prasad Chaubey Vs. State of U.P. & Ors.
1249
the authorities do not consider the entire
Rules and they have laid emphasis only on
the explanation of Rule-5 of the Rules,
1974 and not on the main provision.

20. The Collector is a senior and
experienced official and he must be
presumed to know that the orders of the
High Court have to be obeyed, such is our
constitutional
scheme.
Ignoring
the
consistent view taken by this Court in the
last more than 15 years, cannot be
appreciated. If a law has been settled by a
superior Court, the good governance
requires that the officials must respect the
law. The Rule of Law is foundation of a
democratic society, and the judiciary is
undoubtedly guardian of the Rule of Law.

21. The Supreme Court in the
case of M/s East India Commercial Co.
Ltd. Calcutta and another v. Collector of
Customs, Calcutta, AIR 1962 SC 1893 has
held that the law laid down by the High
Court is binding on all authorities. The
Supreme Court has also held that although
there is no provision for the High Court in
the constitution like Article 141 which
provides that the judgements of the
Supreme Court are binding on all
authorities whether they are party or not.
The
Supreme
Court
has
extended
principles
of
Article
141
of
the
Constitution to the High Court also.
Relevant part of the judgement of the
Supreme
Court
in
M/s
East
India
Commercial (supra) is extracted herein
below:

"29...We, therefore, hold that the
law declared by the highest court in the
State is binding on authorities or tribunals
under its superintendence, and that they
cannot ignore it either in initiating a
proceeding or deciding on the rights
involved in such a proceeding. If that be
so, the notice issued by the authority
signifying the launching of proceedings
contrary to the law laid down by the High
Court
would
be
invalid
and
the
proceedings themselves would be without
jurisdiction."

22. In view of the above, it is
clear that if the law has been laid down by
the Court, the authority is bound by it
whether he is party in the said writ petition
or not. Since the law laid down by this
Court in the aforementioned case has not
been followed by the authority concerned
and neither the judgements have been
referred, the said order, as I find, needs to
be set aside. Accordingly, the impugned
order dated 04.03.2014 is set aside. "

9. Further this Court in Writ A No.
16121 of 2017 (Rajesh Kumar Tripathi vs.
State of U.P.) decided on 27.3.2019 had an
occasion to allow the writ petition in terms
of Pankaj Srivastava (supra), which reads
as under:

"In light of these principles as
enunciated by the Division Bench, the
Court finds itself unable to sustain the
order impugned. It was incumbent upon
the District Magistrate in terms of the
relevant rules to evaluate and consider the
working of the petitioner in all previous
fasals and not merely the four immediately
preceding fasals.

Accordingly, this writ petition
shall stand allowed. The impugned order
dated 31 January 2017 shall hereby stand
quashed. The matter shall in consequence
stand remitted to be District Magistrate
for reevaluation of the claim of the
petitioner in accordance with law and the
observations
made
hereinabove.
The
District Magistrate shall endeavour to
conclude the exercise of consideration
with expedition and communicate a final
decision to the petitioner in respect of his
claim for absorption preferably within a
1250 INDIAN LAW REPORTS ALLAHABAD SERIES
period of three months from the date of
presentation of a certified copy of this
order. "

10. Be that as it may, considering the
facts and circumstances of the case the
Court grant liberty to the petitioner to
move a detailed representation along with
a certified copy of this order for redressal
of his grievances taking all possible
grounds with supported documents before
the respondent no.3, who shall decide the
same in accordance with law by a
reasoned
and
speaking
order
after
affording an opportunity of hearing to the
petitioner, expeditiously preferably within
a period of three months from the date of
its receipt.

11. It is made clear that the Court has
not adjudicated the claim of the petitioner
on merits and the respondent no.3 is at
liberty to take
a decision on the
representation
of
the
petitioner
in
accordance with law.

12. With the aforesaid observation,
the writ petition is disposed of.
----------
(2020)02ILR A1250

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 05.02.2020

BEFORE

THE HON'BLE RAJNISH KUMAR, J.

Consolidation No. 301 of 1999

Bajrangi ...Petitioner
Versus
Joint Director Cons. Raebareli
 ...Respondent

Counsel for the Petitioner:
S.C. Padney, Ashok Kr. Mishra, Maneesh
Kumar Singh, Miss Navita Sharma, Navita
Sharma, V.D. Sharma

Counsel for the Respondent:
C.S.C., Vimal K. Verma

A . U.P. C & H Act, 1953-Sec-9A(2)-petitioners
objection-alleging-land
in
dispute-ancestral
property-hence filed application for partitiono.p nos. 4 & 5-alleging to have bought the said
land-vide regd. sale deed-as disputed land-self
acquired property of petitioners grand fathernot a joint hindu family property-petitioners
failed to discharge their initial burden of
proving-that it was acquired from the joint
nucleus of the joint hindu family-for the welfare
of the family-impugned orders-rightly passedno illegality-Petition Dismissed.

B. It is well settled proposition that even in the
Joint Hindu Family a member of said family can
acquire land for himself and unless it is proved
that the land was acquired by him in the
representative capacity out of joint family funds
for the benefit of the family it cannot be held to
be joint family land merely because it was
acquired by him when he formed joint family
with other members.

C. Held, since the petitioners were claiming
that land in dispute was acquired by the Joint
Hindu Family, therefore initial burden was upon
the petitioners to prove that it was acquired
from the joint nucleus of the Joint Hindu
Family. But the burden could not be discharged
by the petitioners and they could not prove
that it was purchased from the joint nucleus for
the welfare of the family, therefore, the plea of
the petitioners that the opposite parties no.4
and 5 were required to prove that the jointness
of the family has come to an end is
misconceived and not sustainable in the eyes of
law. In view the aforesaid discussions this
Court is of the considered opinion that the
judgment and order dated 22.06.1987 passed
by
the
Consolidation
Officer
and
dated
11.03.1999 passed by the Joint Director
Consolidation have rightly been passed in
accordance with law after considering the
material and evidence on record. This Court
does not find any illegality or error in the