# (State of U.P. and others v. Ashok

- **Citation:** (2005) 1 ILRA 189
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2005
- **Case number:** Civil Misc. Writ Petition No. 36070 of 2001
- **Bench:** R.B. Misra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-and-others-v-ashok-39783
- **Pages:** 7

## Headnote

Constitution of India-Arts. 14 and 226Discrimination
Appointment
seasonal
Collection
Amins-long
standing
experience and services ignored without
any
justification-persons
not
even
named in list being juniors to petitioner
outers Given appointments-such action
of
State
authorities,
to
be
hostile
discrimination-Impugned orders liable to
set aside.

Held: Para 18
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 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
190
I find that according to own disclosure of
the respondents six vacancies are still
available and many of the persons have
been given appointment on the strength
of the interim order or on compassionate
ground or on the closures of other units,
whereas, the petitioners' long standing
experience
and
services
have
been
ignored without any justification and
also
without
any
justification
the
persons not even named in the list,
enclosed
as
Annexure-CA-1
to
the
counter affidavit, being juniors to the
petitioners or being outsiders have been
given appointment, such action of the
respondents is hostile discrimination on
the
part
of
the
respondents.
The
appointment of Sri Ganesh Singh also is
giving occasion of discrimination vis-àvis the petitioners. The respondents
being State authorities have not acted in
all fairness and the way as they are
expected to do. Even the records, which
were produced before this Court for
perusal, were not systematic and are
creating doubt/suspicion. The attempt of
the respondents are not fair and much
could be, desired to be commented upon,
however, giving of comment on this
occasion is not relevant, only suffice to
say that the petitioners have been
treated discriminatorily and they have
been ignored from being considered for
appointment to the post of Seasonal
Collection Amins. There is complete nonapplication of mind on the part of the
District
Magistrate,
Mirzapur
and
completely on irrelevant points the
orders dated 23.08.2001, the impugned
in the present writ petition, have been
passed, which are not legally sustained,
therefore, these are set aside and the
writ petition deserves to be allowed. The
writ of mandamus is issued to the
respondents to consider the case of the
petitioners
and
pass
appropriate
reasoned and speaking order in respect
of giving appointment to the petitioners
to the post of Seasonal Collection Amin
within a period of two months from the
date of production of certified copy of
this order.

## Text

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1All] Laxman Singh V. The Director General, R.P.F. and others
189
subsequent
punishment
shall
be
implemented after the expiry of the first
punishment.

(3) Withholding of increment.-In
the case of withholding of increment as
punishment, the order shall state the
period for which the increment is to be
withheld and whether it shall have the
effect of postponing further increments."

9. It has been submitted on behalf of
the respondents that in AIR 1996 SC 736
(State of U.P. and others Vs. Ashok
Kumar Singh and another) the delinquent
police constable was charge-sheeted for
absenting himself from duty without leave
on several occasions, the decision and
concurrence of the High Court to the
findings of Tribunal on the issue of
modifying punishment of removal from
service of writ petitioner on the ground
that it was not commensurate to the
gravity of offence was held to be not
justified by the Supreme Court and the
punishment
of
removing
the
writ
petitioner was acknowledged to be legally
correct.

10. I have heard learned counsels for
the parties. Undisputedly, there is neither
any procedural fault nor any mistake in
the fact finding arrived at by the inquiry
officer, where the guilt against the
petitioner was proved, which has rightly
been
affirmed
by
the
competent
authority/disciplinary authority. In the
facts and circumstances, the competent/
disciplinary authority has rightly passed
the order of removal of the petitioner
from service. This Court is unable to
make analysis or to draw any inference in
respect of mitigating the quantum of
punishment
on
the
ground
of
disproportional, as there is nothing, which
shocks the conscience of the Court,
therefore, this Court is not inclined to
invoke its extraordinary discretionary
jurisdiction under Article 226 of the
Constitution to make any interference in
the fact finding arrived at by the
disciplinary authority.

11.

In
view
of
the
above
observations,
the
writ
petition
is
dismissed.
Petiton Dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 16.09.2001

BEFORE
THE HON'BLE R.B. MISRA, J.

Civil Misc. Writ Petition No. 36070 of 2001

Tribhuwan Dhar Mishra and others

 ...Petitioners
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri Lalji Pandey
Sri Vikas Budhwar

Counsel for the Respondents:
Sri S.P. Singh
S.C.

Constitution of India-Arts. 14 and 226Discrimination
Appointment
seasonal
Collection
Amins-long
standing
experience and services ignored without
any
justification-persons
not
even
named in list being juniors to petitioner
outers Given appointments-such action
of
State
authorities,
to
be
hostile
discrimination-Impugned orders liable to
set aside.

Held: Para 18
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 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
190
I find that according to own disclosure of
the respondents six vacancies are still
available and many of the persons have
been given appointment on the strength
of the interim order or on compassionate
ground or on the closures of other units,
whereas, the petitioners' long standing
experience
and
services
have
been
ignored without any justification and
also
without
any
justification
the
persons not even named in the list,
enclosed
as
Annexure-CA-1
to
the
counter affidavit, being juniors to the
petitioners or being outsiders have been
given appointment, such action of the
respondents is hostile discrimination on
the
part
of
the
respondents.
The
appointment of Sri Ganesh Singh also is
giving occasion of discrimination vis-àvis the petitioners. The respondents
being State authorities have not acted in
all fairness and the way as they are
expected to do. Even the records, which
were produced before this Court for
perusal, were not systematic and are
creating doubt/suspicion. The attempt of
the respondents are not fair and much
could be, desired to be commented upon,
however, giving of comment on this
occasion is not relevant, only suffice to
say that the petitioners have been
treated discriminatorily and they have
been ignored from being considered for
appointment to the post of Seasonal
Collection Amins. There is complete nonapplication of mind on the part of the
District
Magistrate,
Mirzapur
and
completely on irrelevant points the
orders dated 23.08.2001, the impugned
in the present writ petition, have been
passed, which are not legally sustained,
therefore, these are set aside and the
writ petition deserves to be allowed. The
writ of mandamus is issued to the
respondents to consider the case of the
petitioners
and
pass
appropriate
reasoned and speaking order in respect
of giving appointment to the petitioners
to the post of Seasonal Collection Amin
within a period of two months from the
date of production of certified copy of
this order.

(Delivered by Hon'ble R.B. Misra, J.)

1. Heard Sri Vikas Budhwar along
with Sri Lalji Pandey, learned Counsels
for the petitioners, and Sri S.P. Singh,
learned Standing Counsel for the State
respondents.

2. In this petition prayer has been
made
to
quash
the
order
dated
23.08.2001(Annexure-4
to
the
writ
petition)
passed
by
the
District
Magistrate, Mirzapur in compliance to the
order of this Court dated 03.01.2001
passed in Writ Petition No. 29271 of 1999
(Tribhuwan Dhar Mishra and others Vs.
State of U.P. and others) and also order
dated 23.08.2001 (Annexure-5 to the writ
petition)
passed
by
the
District
Magistrate, Mirzapur in compliance to the
order of this Court dated 03.01.2001
passed in Writ Petition No. 29259 of 1999
(Vijay Chand Shukla Vs. State of U.P. and
others), and further prayer has been made
for issuance of writ of mandamus
commanding the respondents to permit
the petitioners to discharge their duties as
Collection Amin and to extend the other
benefits as being given to the regular
Collection Amins. Petitioners have also
prayed
for
issuance
of
direction
restraining the respondents not to fill up
the existing 10 vacancies of Collection
Amins till the final decision of the present
writ petition.

3. It appears that the petitioner nos.
1,2, 3, 4 and 5 were appointed as Seasonal
Collection
Amin
with
effect
from
15.02.1986,
05.04.1986,
15.02.1986,
18.02.1986 and 28.12.1989 respectively
and they had worked satisfactorily as
Seasonal Collection Amin. According to
the petitioners, a list dated 07.03.1990
was prepared and finalized by the
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1All] Tribhuwan Dhar Mishra and others V. State of U.P. and others
191
Tehsildar and Sub Divisional Officer, in
which all the petitioners were included
and shown as Seasonal Collection Amin
in
Tehsil
Sadar,
District
Mirzapur,
however, for the reasons unknown, the
petitioners
were
disengaged
on
31.03.1994,
against
which
they
approached to the U.P. Public Services
Tribunal, where the learned Tribunal by
its order dated 23.03.1999 derived the
irrelevant conclusions, against which two
separate petitions, namely, Writ Petition
No. 29271 of 1999 and Writ Petition No.
29259 of 1999, were preferred, which
were clubbed together after exchange of
pleadings in reference to the order of this
Court (D.B.) dated 21.05.1993 passed in
Writ Petition No. 29158 of 1990 (Adya
Prasad Vs. U.P. Public Services Tribunal
and another), which was also affirmed by
the Supreme Court, the above two writ
petitions were disposed of on 03.01.2001
with
direction
to
decide
the
representations of the petitioners by the
District Magistrate. In compliance thereto,
the representations of the petitioners were
considered and illegally and erroneously
were rejected on 23.08.2001 by the
District Magistrate, Mirzapur. Hence the
present writ petition.

4. The main ground for rejection of
the representations by the impugned
orders is that the petitioners were not
putting sufficient number of days of
service and whatever vacancy became
available was to be fulfilled in view of the
provisions of the Uttar Pradesh Public
Services
(Reservation
for
Schedule
Castes;
Schedule Tribes and
Other
Backward Classes) Act, 1994 (U.P. Act
No. 4 of 1994), which came into effect
from 11th December, 1993, and the other
points for rejection of representations by
impugned orders are that more than about
35% of excess vacancies were fulfilled
and only 10 vacancies were available and
the seniority list of Seasonal Collection
Amin was got prepared, out of which
three posts from reserved category i.e. one
from backward class and two from
schedule
caste,
according
to
their
seniority were fulfilled, however, the
petitioners being placed at serial nos. 41,
67, 85, 53 and 101 could not be found
suitable for appointment to the post of
Seasonal Collection Amin.

5. In paragraphs-9 and 10 of the writ
petition it has been indicated on behalf of
the petitioners, as under:-

"9. That, here it would be relevant
to mention here that various persons who
had never performed and discharged their
duties as Seasonal Collection Amin, have
been extended the benefit of regularization
and were given regular charge of
collection Amins. The name of these
persons are Ashok Kumar Pandey, Jaya
Kant
Deubey,
Ghanshyam
Pandey,
Sanjeev Pandey, Ganesh Singh, Shyam
Dhar Tiwari, Durga Prasad Tewari,
Mishri Lal and Kailash Nath."

"10. That, all these persons whose
name has been indicated in the preceding
paragraphs have been appointed as
regular
Collection
Amins
without
undertaking
any
selection
process
whatsoever and at no point of time any
written
examination,
any
interview
whatsoever was held before offering
appointment to all these incumbents."

6. According to the petitioners, such
persons as shown in the paragraph 9 of
the writ petition without having worked in
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 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
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the
department
and
without
being
reflecting their names in the list, enclosed
as C.A.-1 to the counter affidavit, were
appointed.

7. In response to this in the counter
affidavit sworn by Sri S.P. Vishwakarma,
the averments made in the paragraph-9 of
the writ petition have not been denied. In
respect of one Sri Ganesh Singh, who has
been appointed in the year 1990, has been
given
regular
status,
whereas,
the
petitioners were appointed way back in
the year 1986, but they have been denied
for the same.

8. According to Para-12 of the writ
petition, Sri Ganesh Singh, who was
initially appointed as Seasonal Collection
Amin in the year 1990, has been given
regular status. Para-12 of the writ petition
reads as under:-

"12. That, one of the incumbents
whose name has been referred to in the
preceding paragraphs, namely, Ganesh
Singh
had
performed
as
Seasonal
Collection Amin and his appointment as
Seasonal Collection Amin was made in the
year 1990 i.e. after the appointment of
each and every petitioner and the said
Ganesh Singh has been extended the
benefit of regularization."

9.

In
response
thereto
the
regularization of Sri Ganesh Singh has not
been denied by the respondents in the
counter affidavit.

10. Counter affidavit has been filed
by Sri S.P. Vishwakarma, Tehsildar,
enclosing the seniority list of the
candidates of Seasonal Collection Amin,
who have worked as Seasonal Collection
Amin, upto 1992.

11. Affidavit of Sri Ram Singh
Gautam, Tehsildar, Sadar has also been
filed as well as the supplementary
affidavit by Sri Amrit Abhijit the then
District Magistrate, Mirzapur has also
been filed.

12. The paragraph-3 of the affidavit
of Sri Ram Singh Gautam, which has
been filed in compliance to the order of
this Court dated 16.09.2003, reveals as
under:-

"Before
bifurcation
of
district
Mirzapur there were 214 sanctioned post
of regular Collection Amins and after
creation of district Sonbhadra in the year
1989 out of 214 post, 56 posts of regular
Collection Amins was transferred to
district Sonbhadra and at present are only
158 sanctioned post of regular Collection
Amins in district Mirzapur. It is further
stated that in August, 2002 in pursuance of
the Govt. Order issued by the State Govt.
19 Grams of district Mirzapur have been
included in district Sonbhadra and as such
at present there is only 154 sanctioned
post of regular Collection Amins in district
Mirzapur out of which only 6 posts are
lying vacant and out of rest 148 posts, 13
posts have been filled up by direct
recruitment and for the last 15 years
number of Seasonal Collection Amins have
been appointed on regular basis against
74 post on the basis of their eligibility and
seniority. Apart from this 32 persons have
been appointed as Collection Amins
pursuant to the orders passed by the
Hon'ble Supreme Court/ Hon'ble High
Court and Hon'ble Tribunal from time to
time. It is also relevant to mention here
that
13
retrenched
employees
of
Agriculture Deptt. And 1 employee of Chal
Chitra Nigam, have also been appointed
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1All] Tribhuwan Dhar Mishra and others V. State of U.P. and others
193
as Collection Amins against 14 posts much
less sanctioned post. Apart from this 3
seasonal Collection Peons have been
promoted in accordance with law on the
post of Collection Amins. Further 12
persons have also been appointed as
Collection Amins under Dying in Harness
Rules and in this way at present out of
total sanctioned post, number of seasonal
Collection Amins have been appointed as
Collection Amins on regular basis under
more than 35% prescribed quota."

13. In paragraphs-8, 9 and 9 of the
affidavit of Sri Ram Singh Gautam it has
been indicated as under:-

"8. ....due to suspension of one Shri
Kamla Kant working as Collection Amin
in Tehsil Sadar, Mirzapur one post of
Collection Amin temporarily fell vacant
upon which one Jaya Kant Dube was
appointed as Collection Amin vide order
dated 18.8.1993 by the S.D.M. concerned.
After the reinstatement of Shri Kamla
Kant,
the
services
of
Shri
Dubey
automatically came to an end, against
which he filed a writ petition No. 44450 of
1993, in which an interim stay order was
passed on 26.9.1995 and in pursuance
thereof, he is still working."

"9. ........Shri Ghanshyam Pandey
was appointed in stop gap arrangement in
leave vacancy by the then S.D.M. Marihan
vide his order dated 20.8.1990 and
thereafter, his services were terminated
vide an order dated 30.3.1991, against
which he filed a writ petition no. 13942 of
1991 in the Hon'ble Court in which he
obtained an interim stay order dated
21.5.1993 and in compliance of which he
has been permitted to work. However,
prior to this he has also worked in stop
gap arrangement as Collection Amins
from 20.8.1990 to 30.9.1990, 1.10.1990 to
31.1.1991
and
from
7.2.1991
to
30.3.1991."

"9. ......in pursuance of the order
passed by this Hon'ble Court dated
24.8.1999 passed in Writ Petition No.
22765 of 1993 filed by one Shri Veer
Pratap Singh, the services of Shri Ganesh
Singh have been terminated by the then
D.M. Mirzapur vide his order dated
12.7.200, against which Shri Ganesh
Prasad filed a writ petition No. 31995 of
2000 in which an interim stay order dated
2.8.2000 has been passed by the Hon'ble
Court and in pursuance thereof, Ganesh
Singh is still working. However, at present
Shri Veer Pratap is not working in the
Deptt."

15. In paragraphs-4 and 5 of the
supplementary counter affidavit filed by
Sri Amrit Abhijit, District Magistrate,
Mirzapur in has been indicated as under:-

"4..........the persons whose name is
mentioned at Sl. No. 154and171,namely,
Sri Noor Mohd. As well as Sri Indra Mani
Tiwari, are not Seasonal Collection Amin.
From the records, it was further revealed
that Sri Noor Mohd. Khan who is at Sl.
No. 154 and related to Tehsil Marihan,
Mirzapur, has been temporarily appointed
as Collection Amin vide an order dated
2.7.1993 by the then S.D.M. Marihan. So
far as Sri Indra Mani Tiwari whose name
is at Sl. No. 171 and is related to Tehsil
Sadar, district Mirzapur, has also been
temporarily appointed as Collection Amin
by means of an order dated 4.1.1993 by
the then S.D.M. Sadar. From the records it
also transpired that since these two
persons are not working as Seasonal
Collection Amins rather they have been
temporarily appointed as Collection Amin
in the year 1993, therefore, their names
should not have been mentioned in the
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 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
194
gradation list finalized in the 2001 which
is meant for Seasonal Collection Amins
but due to inadvertence, names of these
two persons namely, Noor Mohd. Khan as
well as Indra Mani Tiwari were wrongly
mentioned in the gradation list of Seasonal
Collection Amins whereas their names
should have been mentioned in the list of
temporary Collection Amins."

"5............it is relevant to mention
here that when the above mistake
regarding mentioning the names of Sri
Noor Mohd. Khan at Sl. No. 154 as well as
name of Sri Indramani Tiwari at Sl. No.
171 in the gradation list of Seasonal
Collection Amins, was detected then the
deponent on 4.9.2003 passed an order in
this regard whereby it has been ordered
that since Sri Noor Mohd. Khan as well as
Sri Indra Mani Tiwari are not working as
Seasonal Collection Amins rather they are
working as temporary Collection Amins
since 1993 and are getting their salary
accordingly and as such their names are
deleted from the gradation list of Seasonal
Collection Amins so that their names may
be mentioned in the gradation/seniority
list of Temporary Collection Amins."

16. According to the petitioners,
when correspondences have revealed that
10 posts are lying vacant and same could
not be fulfilled in time by the general
candidates in the light of the provisions of
Act No. 4 of 1994, therefore, the stand of
the
respondents
are
misleading,
as
according to the petitioners 9 persons,
who are not at all named in the seniority
list of Seasonal Collection Amin updated
upto the year 1992, could be said to be
much juniors, who have not even worked
but were given regular appointment as
Seasonal Collection Amin and for which
no relevant reply has been given in the
affidavit of S.P. Vishwakarma. According
to the petitioners, it is very strange while
giving appointment to the persons named
in paragraph-9 of the writ petition how
the reservation quota, as indicated in the
Act No. 4 of 1994, was not applicable.
Since the above Act No. 4 of 1994 came
into operation w.e.f. 11th December, 1993,
the same was to be equally applicable to
the persons named in paragraph-9 of the
writ petition, whereas, the petitioners
were engaged way back in the year 1986
and large number of vacancies were
available, but their cases were not
considered for regularisation, therefore,
the respondents cannot legally argue that
because of Act No. 4 of 1994, which is
undisputedly not of retrospective effect,
can not apply to the earlier vacancies in
view of the decision of the Supreme Court
in 1998 (9) SCC 223 (B.L. Gupta Vs.
Municipal Corporation of Delhi).

17. According to the petitioners,
giving of appointment to the persons, who
have subsequently been engaged namely
juniors to them, is discriminatory and in
total disregard to the provisions of Article
14 of the Constitution.

18. According to the learned
Counsel for the petitioners, in paras-3 and
4 of the supplementary counter affidavit
of
Sri
Amrit
Abhijit,
the
District
Magistrate,
Mirzapur,
two
persons,
namely Noor Mohd. shown at serial no.
154 and Sri Indra Mani Tiwari shown at
serial no. 171, are said to be regularized
as
Collection
Amins
on
temporary
capacity, whereas, no post of temporary
Collection Amin has been provided as
conceived in U.P. Collection Amin Rules,
1974. Further, six following persons were
also
granted
absorption
as
regular
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1All] Tribhuwan Dhar Mishra and others V. State of U.P. and others
195
appointment
as
Seasonal
Collection
Amin, namely:-

Name
Position
From
(i)
Ashok Kumar
Pandey
Outsider
06.12.88
(ii)
Sanjeev Kumar
Pandey
Junior
13.04.93
(iii)
Ganesh Singh
Junior
26.08.93
(iv)
Ghanshyam
Pandey
Junior
30.07.96
(v)
Jaya
Kant
Dubey
Outsider
---
(vi)
Shyamdhar
Tiwari.
Outsider
---

Even as disclosed in the affidavit of
Sri Ram Singh Gautam six posts are still
in existence. According to the petitioners,
different stands in respect of giving
appointment to the different persons have
been taken by the respondents in different
counter affidavits and without any rhyme
or reason and without any proper
justification the appointment of outsiders
have been made and the services of the
petitioner have completely been ignored
and the interim order dated 21.04.2004
passed by this Court has not been
complied with.

18. I have heard learned Counsels
for the parties. I find that according to
own disclosure of the respondents six
vacancies are still available and many of
the persons have been given appointment
on the strength of the interiom order or on
compassionate ground or on the closures
of other units, whereas, the petitioners'
long standing experience and services
have
been
ignored
without
any
justification
and
also
without
any
justification the persons not even named
in the list, enclosed as Annexure-CA-1 to
the counter affidavit, being juniors to the
petitioners or being outsiders have been
given appointment, such action of the
respondents is hostile discrimination on
the
part
of
the
respondents.
The
appointment of Sri Ganesh Singh also is
giving occasion of discrimination vis-àvis the petitioners. The respondents being
State authorities have not acted in all
fairness and the way as they are expected
to do. Even the records, which were
produced before this Court for perusal,
were not systematic and are creating
doubt/suspicion. The attempt of the
respondents are not fair and much could
be, desired to be commented upon,
however, giving of comment on this
occasion is not relevant, only suffice to
say that the petitioners have been treated
discriminatorily and they have been
ignored
from
being
considered
for
appointment to the post of Seasonal
Collection Amins. There is complete nonapplication of mind on the part of the
District
Magistrate,
Mirzapur
and
completely on irrelevant points the orders
dated 23.08.2001, the impugned in the
present writ petition, have been passed,
which are not legally sustained, therefore,
these are set aside and the writ petition
deserves to be allowed. The writ of
mandamus is issued to the respondents to
consider the case of the petitioners and
pass appropriate reasoned and speaking
order in respect of giving appointment to
the petitioners to the post of Seasonal
Collection Amin within a period of two
months from the date of production of
certified copy of this order.

19.

In
view
of
the
above
observations/directions, the writ petition
is allowed.

No order as to cost.
Petition Allowed.
---------