# Shri Kant Tiwari v. State of U.P. &Ors

- **Citation:** (2019) 1 ILRA 849
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019
- **Case number:** Service Single No. 2391 of 2015
- **Bench:** Abdul Moin
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shri-kant-tiwari-v-state-of-u-p-ors-44485
- **Pages:** 9

## Headnote

850 INDIAN LAW REPORTS ALLAHABAD SERIES
C.S.C.

A. U.P. Collection Amin Service Rules
1985 as amended in the year 2004-
Seasonal
Collection
Amin.
Issues
closed upon earlier leg of litigation -
held
cannot
be
reopened.
Also,
ground of age - power to grant
relaxation exercised vexatiously, in
disregard of earlier judgement.

Claim of the Petitioner rejected on two
grounds- (a) recovery made by the
petitioner is below the criteria of 70% as
envisaged (b) no incumbent junior to the
petitioner
has
been
given
regular
appointment on the post of Collection
Amin- Challenged earlier through Writ
Petition- Court vide judgment and order
dated 21.8.2014 had set-aside the order
of rejection. Earlier order reiterated with
additional reason that now the petitioner
is now aged more than 45 years.

No longer open for the respondents to
have taken the same grounds while
rejecting the claim of the petitioner-Other
ground of there being 44 persons senior
to the petitioner for being regularized and
all the posts are filled in was never taken
before this Court in the earlier round of
litigation- third ground of the petitioner
now being aged more than 45 years and
the age limit as specified under the rules
being only 45- D.O Dated 24.06.2004 and
another order dated 22.02.2019 State
Government is vested with the power of
granting relaxation in age beyond the age
of 45 years - power vested with the
respondent no. 2 exercised in a whimsical,
capricious, casual and cavalier manner
without application of mind and without
even considering the observations made
by
this
Court
while
delivering
the
judgment and order passed in previous
Writ Petition- COSTS- when the Court
should impose cost to check the frivolous
writ petition and the orders which are
cause of explosion of dockets of the Court.
(Para 12,14,15,16,1718,19,20,21)

Writ Petition allowed with costs Rs.
50,000/-

Case Law Discussed/Relied Upon:-

## Text

1 All. Shri Kant Tiwari Vs. State of U.P. & Ors.
849
pertain to any collusive activity for defrauding
the Bank or any charge pertaining to
embezzlement. At best the charges would
indicate negligence or failure to attain the
highest standards of administrative ability
against the petitioner. Hon'ble the Supreme
Court in Union of India and others v. J.
Ahmed, reported in AIR 1979 Supreme Court
1022 has held that it is difficult to believe that
lack of efficiency or attainment of highest
standards in discharge of duty attached to
public office would ispo facto constitute
misconduct. The relevant paragraph is
reproduced hereinafter.

"11..................It is, however, difficult to
believe that lack of efficiency or attainment of
highest standards in discharge of duty attached
to public office would ispo facto constitute
misconduct. There may be negligence in
performance of duty and a lapse in performance
of duty or error of judgment in evaluating the
developing situation may be negligence in
discharge of duty but would not constitute
misconduct unless the consequences directly
attributable to negligence would be such as to be
irreparable or the resultant damage would be so
heavy that the degree of culpability would be
very high. An error can be indicative of
negligence and the degree of culpability may
indicate the grossness of the negligence.
Carelessness can often be productive of more
harm
than
deliberate
wickedness
or
malevolence........."

Applying the aforesaid judgment of Hon'ble
the Suprme Court in the present case, it can be
seen that dismissal of the petitioner from service
is, therefore, exorbitant and disproportionate to the
gravity of the charges particularly since there is no
allegation that the petitioner was involved in
active collusion with the borrowers for causing
financial loss to the Bank.

29. No other point was argued by
learned counsel for the parties.

30. In view of the aforesaid, it is
clear that not only are the enquiry
proceedings vitiated for non-observance
of the principles of natural justice
according a fair opportunity to the
petitioner to defend himself and on
account of violation of paragraph 68(2) of
the Service Rules, but also that the
punishment imposed is disproportionate
to the gravity of the charges.

31. It has been informed that during
pendency of the writ petition, the
petitioner has subsequently superannuated
from service and the service regulations
do not prescribe for holding of any
disciplinary
proceedings
after
superannuation. Therefore, in view of the
judgment of Hon'ble the Supreme Court
in
Bhagirathi
Jena
v.
Board
of
Directors, O.S.F.C. and others, reported
in (1999) 3 SCC 666 no remand for fresh
enquiry can be directed. 32. In view of
the aforesaid, the writ petition is allowed
and a writ in the nature of Certiorari is
issued quashing the impugned orders
dated
18.07.2005,
27.10.2005
and
03.08.2006 with consequential service
benefits to the petitioner.
----------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 29.08.2019

BEFORE
THE HON'BLE ABDUL MOIN, J.

Service Single No. 2391 of 2015

Shri Kant Tiwari ...Petitioner
Versus
State of U.P. &Ors. ...Respondents

Counsel for the Petitioner:
A.K. Pandey

Counsel for the Respondents:
850 INDIAN LAW REPORTS ALLAHABAD SERIES
C.S.C.

A. U.P. Collection Amin Service Rules
1985 as amended in the year 2004-
Seasonal
Collection
Amin.
Issues
closed upon earlier leg of litigation -
held
cannot
be
reopened.
Also,
ground of age - power to grant
relaxation exercised vexatiously, in
disregard of earlier judgement.

Claim of the Petitioner rejected on two
grounds- (a) recovery made by the
petitioner is below the criteria of 70% as
envisaged (b) no incumbent junior to the
petitioner
has
been
given
regular
appointment on the post of Collection
Amin- Challenged earlier through Writ
Petition- Court vide judgment and order
dated 21.8.2014 had set-aside the order
of rejection. Earlier order reiterated with
additional reason that now the petitioner
is now aged more than 45 years.

No longer open for the respondents to
have taken the same grounds while
rejecting the claim of the petitioner-Other
ground of there being 44 persons senior
to the petitioner for being regularized and
all the posts are filled in was never taken
before this Court in the earlier round of
litigation- third ground of the petitioner
now being aged more than 45 years and
the age limit as specified under the rules
being only 45- D.O Dated 24.06.2004 and
another order dated 22.02.2019 State
Government is vested with the power of
granting relaxation in age beyond the age
of 45 years - power vested with the
respondent no. 2 exercised in a whimsical,
capricious, casual and cavalier manner
without application of mind and without
even considering the observations made
by
this
Court
while
delivering
the
judgment and order passed in previous
Writ Petition- COSTS- when the Court
should impose cost to check the frivolous
writ petition and the orders which are
cause of explosion of dockets of the Court.
(Para 12,14,15,16,1718,19,20,21)

Writ Petition allowed with costs Rs.
50,000/-

Case Law Discussed/Relied Upon:-

1. Writ Petition No. 5986 (SS) of 2009

2. Dinesh Kumar Asthana Vs. Collector,
Azamgarh and Ors, (2001) 1 UPLBEC 867

3. Karnataka Housing Board Vs. C. Muddaiah
,(2007) 1 SCC 689

4. Subrata Roy Sahara Vs. Union of India and
ors, (2014) 8 SCC 470 (E-3)

(Delivered by Hon'ble Abdul Moin, J.)

1. Heard learned counsel for the
petitioner and the learned Standing
Counsel appearing for the respondents.

2. By means of the present petition,
the petitioner has prayed for the following
reliefs:-

"1. ISSUE, a writ order or direction
in the nature of CERTIORARI quashing
the impugned order dated 10.11.2014
passed by the opposite party no.2
contained as Annexure No.1 to the writ
petition.

2. ISSUE, a writ order or direction in
the nature of MANDAMUS commanding
the opposite parties to regularize the
services of the petitioner on the post of
collection Amin in District- Sultanpur
from the date on which the juniors to him
have been regularized with consequential
benefit of service under 35% quota
allocated for seasonal collection amins
and pay him regular salary in accordance
with law.
1 All. Shri Kant Tiwari Vs. State of U.P. & Ors.
851

3. ISSUE other writ order or
direction as is deemed fit and proper
under the circumstances of the case.

4. Allow the Writ Petition with cost."

3. The case set forth by the
petitioner is that he is working as
Seasonal Collection Amin since 1.6.1988.
His working has been intermittent on
account of certain artificial break which
has been created by the respondents.
However, the work and conduct of the
petitioner have always been appreciated.
When a junior to the petitioner was
regularized as Collection Amin and the
case of the petitioner was not considered
and the petitioner also meeting the
requirement as specified under the rules
for being regularized, he preferred Writ
Petition (S/S) No.413 of 2009 In re: Sri
Kant Tiwari vs. State of U.P. and others.
The said writ petition was disposed of by
this Court vide judgment and order dated
21.1.2009, a copy of which is Annexure-3
to
the
writ
petition,
directing
the
respondents to consider the case of the
petitioner for regularization. In pursuance
thereof, the respondents rejected the claim
of the petitioner by means of the order
dated
16.3.2009
primarily
on
two
grounds- (a) that the recovery made by
the petitioner is below the criteria of 70%
as envisaged in U.P. Collection Amin
Service Rules 1985 as amended in the
year 2004 and (b) that no incumbent
junior to the petitioner has been given
regular appointment on the post of
Collection Amin. The rejection order
dated 16.3.2009 compelled the petitioner
to file a second writ petition namely Writ
Petition No. 5986 (SS) of 2009 before the
court. This Court, after considering both
the grounds of rejection negated the same
on the ground that so far as 70% recovery
is concerned, taking into consideration the
Division Bench judgment of this Court
passed in Special Appeal No.518 of 2000
In re: State of U.P. and others vs. Sri
Surendra Singh decided on 15.9.2009,
mere
non
achieving
of
target
for
collection, bereft of other relevant facts,
cannot be a criterion for achieving
efficiency
for
the
purpose
of
regularization. The Court also considered
that the District Magistrate while passing
the order dated 16.3.2009 had not
considered the fact that at the relevant
time the district was hit by drought. So far
as the other ground of no incumbent
junior to the petitioner having been given
regular
appointment
,
this
Court
specifically referred to paragraph 24 of
the supplementary counter affidavit dated
19.11.2012 filed by the Tahsildar Sadar,
Sultanpur wherein it had been admitted by
the respondents that an incumbent at
Serial No.156 of the seniority list,
namely, Dev Narayan Upadhyaya has
been given regular appointment w.e.f
01.03.2006 while the name of the
petitioner was at Serial No.125 of the said
seniority list. Thus the Court vide
judgment and order dated 21.8.2014 had
set-aside the order of rejection dated
16.3.2009 and directed the District
Magistrate, Sultanpur to consider the
matter of the petitioner's appointment as
regular Collection Amin in view of the
observations made in the said judgment
and also in the case of Surendra Singh
(supra) within three months. Copy of
judgment and order dated 21.8.2014 is
annexure 4 of petition.

4. Thereafter, the respondents No.2
has passed the impugned order dated
10.11.2014, a copy of which is Annexure1 to the writ petition, by which the claim
of the petitioner for regularization has
again been rejected. Aggrieved against the
852 INDIAN LAW REPORTS ALLAHABAD SERIES
order dated 10.11.2014, present petition, a
third in the series of litigation , has been
filed.

5. Learned counsel for the petitioner
contends that a perusal of the impugned
order dated 10.11.2014 would indicate
that the Collector, Sultanpur has rejected
the
claim
of
the
petitioner
for
regularization again primarily on the same
grounds which were negated by the Court
in the earlier judgment and order dated
21.8.2014 namely (a) the petitioner not
having achieved the standard recovery of
70%; (b) there are still 44 persons who are
senior
to
the
petitioner
for
being
regularized and that all posts are filled in
and (c) that the petitioner is now aged
more than 45 years.

6. Elaborating this, learned counsel
for the petitioner submits that of the
three grounds sought to be taken, two
grounds have already been considered
and negated by this Court vide judgment
and order dated 21.8.2014 which has
already attained finality inter-se the
parties. With regard to the ground of
petitioner being aged about more than
45 years, reliance has been placed on
the D.O. letter dated 24.9.2004, a copy
of which he been filed as Annexure-7 to
the writ petition, to contend that the
State Government is vested with the
power of granting relaxation in age. It is
also
contended
that
the
State
Government has recently issued an
order dated 22.2.2019, a copy of which
is Annexure RA-4 to the rejoinder
affidavit dated 15.7.2019, wherein again
the age relaxation beyond the age of 45
years has been permitted provided the
employee concerned fulfills the other
conditions as specified for the purpose
of regularization.

7. Learned counsel for the petitioner
submits that from the aforesaid, it is
apparent that the respondents are bent
upon rejecting the claim of the petitioner
on frivolous grounds and on the grounds
which have already been negated by this
Court and as such the same is nothing but
an attempt to harass the petitioner
whereby compelling him to approach the
court of law repeatedly for redressal of his
grievance.

8. On the other hand, learned
Standing Counsel on the basis of
averments contained in the counter
affidavit, argues that in terms of the
regularization rules there is an age bar of
45 years beyond which the claim for
regularization cannot be considered. It is
contended that petitioner is aged more
than 45 years and as such the impugned
order of rejection was passed. So far as
the other two grounds which are repetitive
of earlier grounds which were taken in the
order dated 16.3.2009 and which have
been
negated
by
the
Court
while
delivering the judgment and order dated
21.8.2014, it is contended that as the
petitioner has not achieved the standard
recovery of 70% as required under the
rules, consequently the impugned order
has been passed. It is also contended that
in terms of the impugned order as no
vacancy is available, consequently there is
no occasion for regularization of the
petitioner.

9. Heard learned counsel for the
parties and perused the record.

10. From the arguments of the
contesting parties and from a perusal
of the records it comes out that
initially the claim of the petitioner for
regularization
on
the
post
of
1 All. Shri Kant Tiwari Vs. State of U.P. & Ors.
853
Collection Amin had been rejected by
the respondents vide order dated
16.03.2009 on two grounds namely
that the recovery of the petitioner is
below the standard criteria of 70% as
well as that no incumbent junior to the
petitioner has been given regular
appointment on the post of Collection
Amin. Upon a challenge being raised
to the said order, this Court vide
judgment and order dated 21.08.2014
set aside the impugned order of
rejection by dealing with both the
grounds namely that so far as 70%
recovery is concerned, taking into
consideration
the
Division
Bench
judgment of this Court in the case of
Surendra Singh (supra) mere non
achieving of target for collection,
bereft of other relevant facts, cannot
be a criteria for achieving efficiency
for the purpose of regularization. So
far as the other ground of there being
no junior to the petitioner having been
given regular appointment on the post
of
Collection
Amin,
this
Court
specifically considered paragraph 24
of the supplementary counter affidavit
dated
19.11.2012
filed
by
the
Tehsildar Sadar, Sultanpur wherein it
had been admitted by the respondents
that the incumbent of Serial No. 156
of the seniority list had been given
regular appointment while the name of
the petitioner found place at Serial No.
125 of the said seniority list meaning
thereby that it was categorically
admitted by the respondents that a
junior of the petitioner had been
regularized and the petitioner had not
been regularized. In this view of the
matter, the impugned order had been
set aside by this Court through the
aforesaid judgment . The respondents
were also directed to consider the
matter of the petitioner for regular
Collection Amin in view of the
observations
made
in
the
said
judgment.

11.

After
consideration,
the
respondents have proceeded to pass the
impugned order dated 10.11.2014 in
which now three grounds have been taken
namely that the petitioner has not
achieved the standard recovery of 70%,
there are 44 persons who are still senior to
the petitioner for being regularized and
that all posts are filled in and that the
petitioner is now aged more than 45 years.

12. So far as the first ground is
concerned i.e the petitioner not having
achieved the standard recovery of 70%,
this Court vide judgment and order dated
21.08.2014 has specifically observed that
the same would not be a relevant criteria
taking into consideration the Division
Bench judgment of this Court in the case
of Surendra Singh (supra). It is also
admitted by the contesting parties that the
said judgment has attained finality inter se
the parties. Thus, it was no longer open
for the respondent no. 2 to take the same
ground while rejecting the claim of the
petitioner.

13. Even otherwise, this Court in the
case of Dinesh Kumar Asthana Vs.
Collector, Azamgarh and Ors reported
in
(2001)
1
UPLBEC
867
after
considering the provisions of Rule 5 of
the Rules, 1974 has held as under:-

"Necessary pleadings on this aspect
are wanting. Even the Counter Affidavit
does not disclose that no person in the list
prepared in the year 1993 has been
regularised whose recovery was below
the prescribed limit or that all persons
854 INDIAN LAW REPORTS ALLAHABAD SERIES
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."

14. Thus, taking into consideration
the aforesaid judgments in the case of
Surendra Singh and Dinesh Kumar Singh
(supra) it was no longer open for the
respondents to have taken the same
ground while rejecting the claim of the
petitioner.

15. So far as the other ground of
there being 44 persons who are still senior
to the petitioner for being regularized and
all the posts are filled in, suffice to state
that the said ground was never taken
before this Court in the earlier round of
litigation. Even otherwise, this Court had
categorically observed that in terms of the
supplementary counter affidavit filed by
the respondents themselves it had been
admitted that one of the junior of the
petitioner namely Sri Dev Narayan
Upadhyay
had
been
given
regular
appointment. Thus, merely because there
are 44 persons who are senior to the
petitioner for being regularized and all
posts are filled in, as alleged in the
impugned order, cannot be considered to
be a valid ground for rejection of the
claim of the petitioner once admittedly,
the respondents have regularized a junior
of the petitioner Even otherwise, learned
counsel for the petitioner has filed a copy
of an order dated 14.09.2017 as annexure
5
to
the
rejoinder
affidavit
dated
15.07.2019 to contend that in district
Sultanpur,
to
which
the
present
controversy pertains, against 119 posts of
Collection Amin, there are only 84
persons working and 35 posts are lying
vacant. Thus, the said ground could not
also validly have been taken by the
respondents while rejecting the claim of
the petitioner. A peculiar aspect of the
matter is that the specific observation of
this Court of Sri Dev Narayan Upadhyay,
junior to the petitioner having been
regularized, has been given a complete go
bye by the respondent no. 2 while passing
the impugned order dated 10.11.2014
which itself reflects the cavalier manner
in which the respondent no. 2 has treated
the final order inter se the parties as
passed by this Court.

16. So far as the third ground of the
petitioner now being aged more than 45
years and the age limit as specified under
the rules being only 45, suffice to state
that
in
terms
of
the
D.O
Dated
24.06.2004, the State Government is
vested with the power of granting
relaxation in age beyond the age of 45
years as specified under the rules. The
said D.O is followed by another order
dated 22.02.2019, a copy of which has
been filed as annexure 4 to the rejoinder
affidavit which also primarily talks about
the respondents vested with the power of
1 All. Shri Kant Tiwari Vs. State of U.P. & Ors.
855
granting age relaxation beyond 45 years.
The D.O Dated 24.06.2004 being of a
date prior to issue of the impugned order
dated 10.11.2014 as passed by the
respondent no. 2 must very well have
been in the knowledge of the respondent
no. 2, i.e Collector, Sultanpur but again
the same has not been referred to by the
respondent
no.
2
and
conveniently
ignored while proceeding to reject the
claim of the petitioner for regularization.
Thus, it is apparent that all the three
grounds which have been taken by the
respondent no. 2 while rejecting the claim
of the petitioner through the impugned
order dated 10.11.2014 are patently
misconceived and also run contrary to the
specific observations of this Court passed
while delivering the judgment and order
dated 21.08.2014 which, as already
indicated above, has attained finality inter
se the parties. Thus, it is clearly apparent
that the power vested with the respondent
no.
2
has
been
exercised
in
a
whimsical,capricious, casual and cavalier
manner without application of mind and
without even considering the observations
made by this Court while delivering the
judgment and order dated 21.08.2014.

17. Thus, taking into consideration the
aforesaid discussion, the writ petition
deserves to be allowed and is allowed. A writ
of Certiorari is issued quashing the impugned
order dated 10.11.2014, a copy of which is
annexure 1 to the petition. A writ of
Mandamus is issued to the respondent no. 2
to consider the case of regularization of the
petitioner w.e.f the date when junior to the
petitioner,
namely
Sri
Dev
Narayan
Upadhyay was regularized, in accordance
with rules including the D.O Dated
24.06.2004 and the subsequent order dated
22.02.2019 considering the admission on the
part of the Tehsildar-Sadar, Sultanpur in the
counter affidavit dated 19.11.2012 of a junior
of the petitioner namely Sri Dev Narayan
Upadhyay having already been given regular
appointment and also considering that in
terms of the order issued by the Collector,
Sultanpur dated 14.09.2017, 35 posts of
Collection Amin are still lying vacant. The
said consideration shall be done within a
period of three months from the date of
receipt a certified copy of this order.

18. Before parting with the case and
taking into consideration that this Court
has already observed that the order dated
10.11.2014 as passed by the respondent
no. 2 rejecting the claim of the petitioner
is capricious and passed in a cavalier
manner and has also been passed without
considering the specific observations as
made by this Court in the judgment and
order dated 21.08.2014 and the petitioner
having repeatedly been compelled to
approach this Court for the redressal of
his grievances and this being a third round
of litigation, this Court also proposes to
impose cost against the petitioner.

19. In this regard, from a perusal of
the discussion made above, it is apparent
that the respondent no. 2, i.e Collector,
Sultanpur has adopted an adamant attitude
while reiterating the earlier order despite
the specific observations of this Court in
the earlier round of litigations. It is thus
apparent that the respondent no. 2 has not
taken pain to look into the earlier
judgment of this Court and primarily the
same grounds have been reiterated in the
impugned order as already indicated
above. The Apex Court in the case of
Commissioner, Karnataka Housing Board
Vs. C. Muddaiah reported in (2007) 1
SCC 689 has considered the somewhat
akin facts and observations that even if
the Court's order is wrong and illegal, that
856 INDIAN LAW REPORTS ALLAHABAD SERIES
is binding on the parties unless that order
is challenged in the superior Court. The
Hon'ble Supreme Court also held that if
this principle is not adhered to by the
State, there will be end of the rule of law.
The relevant observations of the Hon'ble
Supreme Court in this regard are
reproduced below :-

"32. We are of the considered
opinion that once a direction is issued by
a competent court, it has to be obeyed and
implemented without any reservation. If
an order passed by a court of law is not
complied with or is ignored, there will be
an end of the rule of law. If a party
against whom such order is made has
grievance, the only remedy available to
him is to challenge the order by taking
appropriate proceedings known to law.
But it cannot be made ineffective by not
complying with the directions on a
specious plea that no such directions
could have been issued by the Court. In
our
judgment,
upholding
of
such
argument would result in chaos and
confusion and would seriously affect and
impair administration of justice. The
argument of the Board, therefore, has no
force and must be rejected.

33. The matter can be looked at from
another angle also. It is true that while
granting a relief in favour of a party, the
court
must
consider
the
relevant
provisions of law and issue appropriate
directions
keeping
in
view
such
provisions. There may, however, be cases
where
on
the
facts
and
in
the
circumstances, the court may issue
necessary directions in the larger interest
of justice keeping in view the principles of
justice, equity and good conscience. Take
a case, where ex facie injustice has been
meted out to an employee. In spite of the
fact that he is entitled to certain benefits,
they had not been given to him. His
representations have been illegally and
unjustifiably turned down. He finally
approaches a court of law. The court is
convinced that gross injustice has been
done to him and he was wrongfully,
unfairly and with oblique motive deprived
of those benefits. The court, in the
circumstances, directs the authority to
extend all benefits which he would have
obtained had he not been illegally
deprived of them. Is it open to the
authorities in such case to urge that as he
has not worked (but held to be illegally
deprived), he would not be granted the
benefits? Upholding of such plea would
amount to allowing a party to take undue
advantage of his own wrong. It would
perpetrate injustice rather than doing
justice to the person wronged."

20. The Hon'ble Supreme Court in
the case of Subrata Roy Sahara Vs.
Union of India and ors reported in
(2014) 8 SCC 470 has held as to when the
Court should impose cost to check the
frivolous writ petition and the orders
which are cause of explosion of dockets
of the Court. As already observed above,
the impugned order herein has been a
cause of unnecessary and avoidable
litigation had the respondent no. 2 applied
his mind to the observations of this court
in the earlier judgment. For the sake of
convenience, the relevant observation of
the Hon'ble Supreme Court in the case of
Subrata Roy Sahara (supra) are being
reproduced below:-

"191. The Indian judicial system
is grossly afflicted with frivolous
litigation. Ways and means need to be
evolved to deter litigants from their
compulsive
obsession
towards
senseless and ill-considered claims.
1 All. Vimlesh Kumar Sharma Vs. Central Administrative Tribunal Circuit Bench Lko & Ors. 857
One needs to keep in mind that in the
process of litigation, there is an
innocent sufferer on the other side of
every
irresponsible
and
senseless
claim. He suffers long-drawn anxious
periods
of
nervousness
and
restlessness, whilst the litigation is
pending without any fault on his part.
He pays for the litigation from out of
his savings (or out of his borrowings)
worrying that the other side may trick
him into defeat for no fault of his. He
spends
invaluable
time
briefing
counsel and preparing them for his
claim. Time which he should have
spent at work, or with his family, is
lost, for no fault of his. Should a
litigant not be compensated for what
he
has
lost
for
no
fault?
The
suggestion to the legislature is that a
litigant who has succeeded must be
compensated by the one who has lost.
The suggestion to the legislature is to
formulate a mechanism that anyone
who
initiates
and
continues
a
litigation senselessly pays for the
same.
It
is
suggested
that
the
legislature
should
consider
the
introduction of a "Code of Compulsory
Costs"."

21.

Accordingly,
taking
into
consideration the law laid down by the
Hon'ble Supreme Court in the case of
Subrata Roy Sahara (supra) this Court
imposes cost of Rs. 50,000/- on the State
to be paid to the petitioner within a period
of four weeks from the date of receipt of a
certified copy of this order. It would be
open for the State to recover the said cost
from the officials who were lax and
whose action has resulted in such
avoidable litigation causing repeated
harassment to the petitioner.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 03.09.2019

BEFORE
THE HON'BLE ANIL KUMAR, J.
THE HON'BLE SAURABH LAVANIA, J.

Service Bench No. 22973 of 2016

Vimlesh Kumar Sharma ...Petitioner
Versus
Central Administrative Tribunal Circuit
Bench Lko &Ors. ...Respondents

Counsel for the Petitioner:
Mohammad Babar Khan

Counsel for the Respondents:
Anurag Srivastava

A. Validity of Select List - only six
months.
Thereafter,
it
was
not
considered for providing appointment.
Prior to the period of validity of the
select list, neither it was acted upon nor
it was approved by the competent
authority A candidate whose name finds
place in the select list has no legal right
to get appointment.

B. Post of Store-Keeper, against which
the selection process was initiated and
the petitioner was declared successful, is
not vacant.

As the validity of the list was only for six
months and after lapse of six months, the
same was not considered for providing
appointment to the petitioner-Different select
lists and therefore the claim of the petitioner
on the ground of parity is unsustainable- Prior
to the period of validity of the select list, in
issue, was neither acted upon nor it was
approved by the competent authority-Post of
Store-Keeper, against which the selection
process was initiated and the petitioner was
declared successful, is not vacant- A candidate
whose name finds place in the select list has
no legal right to get appointment.