# Vinay Kumar Upadhyay v. State of U.P. and others

- **Citation:** (2009) 3 ILRA 1036
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2009-08-12
- **Case number:** Civil Misc. Writ Petition No. 63052 of 2007
- **Bench:** Sudhir Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vinay-kumar-upadhyay-v-state-of-u-p-and-others-41459
- **Pages:** 6

## Headnote

U.P. Collection Peon Service Rule-2004Rle-5-Substantive
appointmentpetitioner was denied as not achieved
70% target of collection during four
fasli-fasli means an year e.g. Ravi and
Kharif-while
petitioner
has
been
awarded satisfactory collection in four
fasal-moreover
for
lessure
collection
peon
can
not
be
held
directly
responsible-order quashed-direction for
reconsideration issued.

Held pare 13

Besides,
the
rule
also
required
"satisfactory service" in the "last four
Fasals" and not "Fasali". The distinction
between a "Fasali" and "Fasal" has been
considered by this Court in Mithlesh
Kumar and another Vs. State of U.P. and
others, 2008 (2) ESC 1332 and this Court
held as under:

"This Court finds that though in the
Rules one has to show his average
recovery of at least 70% in the last four
Fasals but the chart was submitted by
Tahsildars not based on the Fasals but
Fasalis i.e. the year which includes both
the Fasals namely, Ravi and Kharif. The
Selection Committee was also aware of
this fact that it has to consider recovery
performance of last four Fasals but
thereafter it has clearly erred by not
confining to consider performance with
respect to recovery in last four Fasals but
has taken the aforesaid chart to be
correct without noticing the fact that the
chart (Annexure-CA-2) was prepared on
the basis of last four Fasalis and not on
the basis of last four Fasals. One Fasali
year has more than one Fasal. It is not
the entire Fasali year but last four Fasals
performance
ought
to
have
been
considered by the Selection Committee.
It has considered performance of the
candidates beyond the period for which
it is provided under Rule 5(1) of 1974
Rules."
Case law discussed-
2008(2)ESC 1332, Special Appeal No. 294 of
2008, Manbodh Vs. State of U.P. and others
connected with Special Appeal No. 398 of

## Text

1036 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
10. As noted above, in the present
case, the Tribunal rejected the application
of the Insurance Company for permission
under Section 170 of the Motor Vehicles
Act, 1988.

11. In view of the rejection of the
said application under Section 170 of the
aforesaid Act, it is evident that the
Appellant-Insurance
Company
can
challenge the impugned award only on the
grounds mentioned in sub-section (2) of
Section 149 of the Motor Vehicles Act,
1988. Such grounds are evidently in
respect of Issue Nos.2 and 3.

12. As noted above, in regard to
Issue Nos. 2 and 3, the Tribunal has
recorded findings of fact that on the date
of the accident, the vehicle in question
was insured with the Appellant-Insurance
Company, and the Driver of the vehicle in
question was having a valid and effective
licence.

13. Sri Saral Srivastava, learned
counsel
for
the
Appellant-Insurance
Company has not been able to point out
any error in the said findings recorded by
the Tribunal. The Appellant-Insurance
Company has failed to establish any
infirmity or illegality in the impugned
award on the grounds open to the
Appellant-Insurance Company to raise in
view of the provisions of sub-section (2)
of Section 149 of the Motor Vehicles Act,
1988.

14. Sri Saral Srivastava, learned
counsel
for
the
Appellant-Insurance
Company submits that the quantum of
compensation as determined by the
Tribunal is not correct as the Tribunal has
erred in applying multiplier of 15 and has
wrongly taken the monthly income of the
deceased as Rs.4,000/-.

15. In our opinion, as the application
of the Appellant-Insurance Company
under Section 170 of the Motor Vehicles
Act,1988 was rejected by the Tribunal, it
is not open to the Appellant-Insurance
Company to raise the question of quantum
of compensation, awarded by the Tribunal
in the impugned award. The pleas raised
in this regard by Sri Saral Srivastava,
learned
counsel
for
the
AppellantInsurance Company cannot, therefore be
considered.

16. In view of the above, we are of
the opinion that the appeal filed by the
Appellant-Insurance
Company
lacks
merits, and the same is liable to be
dismissed.

17. The appeal is, accordingly,
dismissed. However, on the facts and in
the circumstances of the case, there will
be no order as to costs.

18. The amount of Rs.25,000/-
deposited by the Appellant-Insurance
Company while filing the present appeal,
will be remitted to the Tribunal for being
adjusted towards the amount payable
under the impugned award.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.08.2009

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Civil Misc. Writ Petition No. 63052 of 2007

Vinay Kumar Upadhyay
...Petitioner
Versus
State of U.P. and others ...Respondents
3 All] Vinay Kumar Upadhyay V.State of U.P. and others
1037
Counsel for the Petitioner:
Sri Ashok Tripathi
Sri N.L. Srivastava

Counsel for the Respondents:
Sri D.K. Tripathi
Sri P.C. Shukla
S.C.

U.P. Collection Peon Service Rule-2004Rle-5-Substantive
appointmentpetitioner was denied as not achieved
70% target of collection during four
fasli-fasli means an year e.g. Ravi and
Kharif-while
petitioner
has
been
awarded satisfactory collection in four
fasal-moreover
for
lessure
collection
peon
can
not
be
held
directly
responsible-order quashed-direction for
reconsideration issued.

Held pare 13

Besides,
the
rule
also
required
"satisfactory service" in the "last four
Fasals" and not "Fasali". The distinction
between a "Fasali" and "Fasal" has been
considered by this Court in Mithlesh
Kumar and another Vs. State of U.P. and
others, 2008 (2) ESC 1332 and this Court
held as under:

"This Court finds that though in the
Rules one has to show his average
recovery of at least 70% in the last four
Fasals but the chart was submitted by
Tahsildars not based on the Fasals but
Fasalis i.e. the year which includes both
the Fasals namely, Ravi and Kharif. The
Selection Committee was also aware of
this fact that it has to consider recovery
performance of last four Fasals but
thereafter it has clearly erred by not
confining to consider performance with
respect to recovery in last four Fasals but
has taken the aforesaid chart to be
correct without noticing the fact that the
chart (Annexure-CA-2) was prepared on
the basis of last four Fasalis and not on
the basis of last four Fasals. One Fasali
year has more than one Fasal. It is not
the entire Fasali year but last four Fasals
performance
ought
to
have
been
considered by the Selection Committee.
It has considered performance of the
candidates beyond the period for which
it is provided under Rule 5(1) of 1974
Rules."
Case law discussed-
2008(2)ESC 1332, Special Appeal No. 294 of
2008, Manbodh Vs. State of U.P. and others
connected with Special Appeal No. 398 of
2008.

(Delivered by Hon'ble Sudhir Agarwal, J.)

1. Heard Sri N.L. Srivastava, learned
counsel for the petitioner and learned
Standing
Counsel
appearing
for
respondents no. 1 to 3. The respondent no.
4 was issued notice by registered post
pursuant to this Court's order dated
13.10.2008. As per the office report the
notice through registered post/AD sent on
17.10.2008 and the office report dated
13.07.2009 shows that notice has been
received unserved with post office report
"refused". In the circumstances the
service of notice is deemed sufficient.
Neither any counter affidavit has been
filed on behalf of respondent no. 4 nor
any one has put in appearance on his
behalf. Respondents no. 1 to 3 have filed
counter
affidavit
and
supplementary
counter affidavit. Petitioner has also filed
rejoinder affidavit and, therefore, as
requested and agreed by learned counsels
for the parties, this writ petition has been
heard and is being decided finally at this
stage under the Rules of the Court.

2. By means of the present writ
petition the order dated 03.10.2007 passed
by the District Magistrate, Sant Ravidas
Nagar (Bhadohi) has been assailed
whereby the representation of petitioner
against his supersession/non selection for
substantive appointment on the post of
1038 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
Collection
Peon
has
been
rejected
confirming selection and appointment of
respondent no. 4 for such appointment.

3. Learned counsel for the petitioner
submitted that he has not been selected
for substantive appointment on the post of
Collection Peon on the ground that in the
Fasali years 1410, 1411, 1412 and 1413
the percentage of recovery was 15.5, 75,
16.9 and 23.4 respectively resulting in
average recovery of 32.7 though as per
U.P. Collection Peon Service Rules, 2004
(hereinafter referred to as the "Rules,
2004") the average recovery ought to have
been at least 70%. The respondent no. 4
who was admittedly junior to the
petitioner but his recovery having been
noticed above 70% in the said Fasali
years,
was
selected
and
given
appointment to the post of Collection
Peon. It is submitted that under Rule 5 of
Rules, 2004 the criteria for selection for
regular appointment to the post of
Collection Peon in respect to Seasonal
Collection Peon is satisfactory service in
the last at least four "Fasals". The
explanation thereof further provides that
satisfactory service means good conduct
shown from beginning and in the last
"four Fasals" he has cooperated for
making recovery at least to the extend of
70% as prescribed by the Government. He
contended that the respondents no. 1 to 3
have erred in considering the record of
preceding four Fasali years instead of four
Fasals. Further that the petitioner has not
been found guilty or lacking coordination
or cooperation in making recovery to the
extent of 70% but since the recovery as a
matter of fact was less than 70% for that
purpose
the
petitioner
has
been
superseded. He pointed that Rule 5 of
Rule, 2004 required only cooperation on
the part of the petitioner since the
recovery as a matter of fact is the primary
duty of the Collection Amin to whom a
Collection Peon assist and, therefore, the
relevant considerations as contemplated
and provided in the Rules, 2004 have not
been taken into account.

4. Learned Standing Counsel relying
on
his
counter
affidavit,
however,
supported the selection of respondent no.
4 as well as the impugned order passed by
the District Magistrate, Sant Ravidas
Nagar (Bhadohi) and said that the same
has been passed in accordance with law.

5. Having considered the rival
submissions as well as the record I find
that the only issue up for consideration in
this case is whether the petitioner has
been considered and rejected for the post
of
Collection
Peon
on
relevant
considerations as provided under Rule 5
or not.

6. Rule 5 of Rules, 2004 reads as under:

^^5- lsok esa fofHkUu Jsf.k;ksa ds inksa ij HkrhZ fuEufyf[kr
lzksrksa ls dh tk;sxh%&
1⁄4,d1⁄2 ipkl izfr'kr p;u lfefr ds ek/;e ls lh/kh HkrhZ
}kjk]
1⁄4nks1⁄2 ipkl izfr'kr in ,sls lkef;d laxzg vuqlsodksa esa ls
ftUgksaus de ls de pkj Qlyha rd larks"ktud dk;Z fd;k
gks vkSj ftudh vk;q ml o"kZ dh igyh tqykbZ dks ftlesa
p;u fd;k tk; 45 o"kZ ls vf/kd u gks] p;u lfefr ds
ek/;e ls Hkjs tk;sxsaA
ijUrq ;fn mi;qZDr vH;FkhZ miyC/k u gks rks [k.M
1⁄4,d 1⁄2 ds v/khu 'ks"k fjfDr;ka lh/kh HkrhZ }kjk Hkjh tk;sxhaA

Li"Vhdj.k%& larks"ktud dk;Z dk rkRi;Z gksxk 'kq: ls vUr
rd vPNs vkpj.k dks lfEefyr djrs gq, vfUre pkj
Qlyksa ds nkSjku ljdkj }kjk fu;r fofgr Lrj ds vuqlkj
de ls de lRrj izfr'kr olwyh esa iw.kZ lg;ksx iznku
djukA**

7. A perusal of Rules shows that a
Seasonal
Collection
Peon
if
has
3 All] Vinay Kumar Upadhyay V.State of U.P. and others
1039
satisfactorily worked for at least "four
Fasals" and is not above 45 years of age
would have to be considered and if he
fulfils the above criteria, is entitled to be
selected for the post of Collection Peon.

8. The term "satisfactory service"
has been explained and it provides that
the Seasonal Collection Peon shall extend
"full cooperation for recovery in the last
four Fasals" according to the standard
prescribed by the State Government i.e. at
least 70% recovery. It nowhere provides
the Seasonal Collection Peon himself
would make recovery to the extent of
70% or at any other level.

9. In taking the aforesaid view I am
also supported by a Single Judge decision
of this Court in Civil Misc. Writ Petition
No. 2421 of 2006, Ishwar Chandra Vs.
District Magistrate, Khalilabad, Sant
Kabir Nagar and others decided on
22.08.2008. Though that was a case of
compulsory retirement but in respect to
duties of Collection Peon this Court held
that a Collection Peon is only required to
assist the Collection Amin and is not
responsible for the collection of dues
itself which is the primary duty of
Collection Amin.

10. The respondents in the counter
affidavit have nowhere pleaded or shown
as to how a Seasonal Collection Peon can
be held directly responsible for lesser
recovery. On the contrary, the U.P.
Collection Manual, Chapter IX para 61
provides for duties of the Collection Peon
and reads as under:

^^61- drZO;& ljdkjh cdk;ksa ds laxzg lEcU/kh vkns'kksa es
vehu ds vkns'kksa dk vuqikyu djuk pijklh dk ije~
drZO; gSA tc vehu ljdkjh /ku ysdj ;k=k dj jgk gks
;k vius {ks= esa :dk jgs] rc og pijklh mlds lkFk
jgsxkA fofHkUu izdkj dh dzwj dkydze vknsf'kdkvksa ds
fu"iknu ds fy, Hkh pijkfl;ksa dh lsokvksa dk mi;ksx fd;k
tk ldsxkA ,sls ekeyksa esa og Lo;a dksbZ laxzg ugha djsxkA
rglhynkj rFkk vU; ofj"b vf/kdkfj;ksa ds vkns'kksa ds
v/khu] ,dhd`r laxzg vehuksa ds v/khu] laxzg pijkfl;ksa dks
vU; drZO; lkSais tk;saxsA**

11. It shows that the Collection Peon
has to obey the orders given by the
Collection Amin and when the Amin is
travelling alone with Government revenue
or is staying in his area of jurisdiction, the
Collection Peon will always stay with him
so that his services may be utilised by the
Collection Amin. Para 61 Chapter IX
further provides very clearly that the
Collection Peon himself will not make
any recovery at all.

12. That being so, and in the light of
the statutory provisions contained in Rule
5, it is evident that the Collection Peon
himself is not at all responsible for any
recovery
whatsoever.
Hence
the
assumption on the part of the District
Magistrate, respondent no. 2 that the
petitioner having failed to make recovery
to the extent of 70% in the preceding four
Fasali years cannot be said to have failed
to satisfy the criteria of "satisfactory
service" is patently illegal and in the teeth
of the statute.

13. Besides, the rule also required
"satisfactory service" in the "last four
Fasals" and not "Fasali". The distinction
between a "Fasali" and "Fasal" has been
considered by this Court in Mithlesh
Kumar and another Vs. State of U.P. and
others, 2008 (2) ESC 1332 and this Court
held as under:

"This Court finds that though in the
Rules one has to show his average
recovery of at least 70% in the last four
1040 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
Fasals but the chart was submitted by
Tahsildars not based on the Fasals but
Fasalis i.e. the year which includes both
the Fasals namely, Ravi and Kharif. The
Selection Committee was also aware of
this fact that it has to consider recovery
performance of last four Fasals but
thereafter it has clearly erred by not
confining to consider performance with
respect to recovery in last four Fasals but
has taken the aforesaid chart to be
correct without noticing the fact that the
chart (Annexure-CA-2) was prepared on
the basis of last four Fasalis and not on
the basis of last four Fasals. One Fasali
year has more than one Fasal. It is not the
entire Fasali year but last four Fasals
performance
ought
to
have
been
considered by the Selection Committee. It
has considered performance of the
candidates beyond the period for which it
is provided under Rule 5(1) of 1974
Rules."

14. The above judgement was taken
in Special Appeal No. 294 of 2008,
Manbodh Vs. State of U.P. and others
connected with Special Appeal No. 398 of
2008, Dev Kumar Vs. State of U.P. and
others, decided on 17.07.2009 and the
Hon'ble Division Bench while dismissing
both the above appeals and confirming the
judgment under appeal held as under:

"In our considered opinion, the
learned Judge was perfectly justified in
arriving at the findings on the basis of
material
available
on
record
and
thereafter concluding that the selections
had been made contrary to the provisions
contained in Rule 5 (1) read with Rule 17
(A) of the Rules. In support of the
conclusion drawn, the learned Judge has
very succinctly and appropriately drawn
the distinction between the words "Fasal"
and "Fasali". The meaning of the said
words are defined in the Law Lexicon
1997 Edition at page 713, which read as
follows:-
"Fasl. (A.) Harvest; fasli-jyasti, faslkami. (M.) Addition or reduction in the
revenue on account of double crops, or
the loss of one. (Bad. Pow. iii. 99)
Fasli. Of or belonging to a harvest;
the Mahommadan official era. (Bad. Pow.
II. 13, 14)
Agricultural lease in which the word
'Fasli' is used unless there are indications
that the intention of the parties was to use
the word in its strict sense, should be held
to be for the agricultural year. (LR 2 A.
139 (Rev.)
Fasli or Fusli. What relates to the
seasons; the harvest year. (Mac. Mhn.
Law.) The name of an era instituted by
Akbar, who made the samwat year agree
with that of the hijra by arbitrarily cutting
649 years off from the former. This was
done in the year 963 of the hijra which
year was therefore also 963 fasli; but fasli
or harvest year was necessarily counted
according to the seasons while that of the
hijra is the lunar year of only 354 days.
Thus a difference of several years has
arisen between the hijra year and the fasli
year. (See also 1896 AWN 123).
Fasli-jasti (Tel.) An extra crop, one
more than usual; an extra cess imposed
on land bearing more than one annual
crop."
The aforesaid definitions would,
therefore, reflect that the word Fasal
means crop whereas the word Fasali is
related to the revenue year, which
ordinarily in the State of Uttar Pradesh
comprises of two harvest seasons - the
Kharif and the Rabi. Learned counsel for
the appellants could not point out any
material to the contrary to persuade us to
opine otherwise.
3 All] Aligarh Muslim University and another V.Industrial Tribunal and another
1041
We find no good reason to differ
from the view taken by the learned
Judge."
15. In the result, the writ petition is
allowed. The impugned order dated
03.10.2007 as well as the selection and
appointment of respondent no. 4 is hereby
quashed. The respondent no. 2 is directed
to reconsider the matter of appointment
on the post of Collection Peon of the
petitioner and the respondent no. 4 in
accordance with law and in the light of
the
observations
made
hereabove,
expeditiously, preferably within a period
of two months from the date of
production of a certified copy of this
order. There shall be no order as to costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 22.10.2009

BEFORE
THE HON'BLE RAN VIJAI SINGH, J.

Civil Misc. Writ Petition No. 34240 of 1997

Aligarh Muslim University, Aligarh and
another

...Petitioner
Versus
Industrial Tribunal(4), Agra and another

 ...Respondent

Counsel for the Petitioners:
Ms. Sunita Agrawal

Counsel for the Respondents:
S.C.
Sri J.J. Munir

U.P. Industrial Dispute Act-Section 6-ARestoration of Ex Party award published
on 20.04.95-publication of Notice Board
on 22.05.95-application for recall of
award moved on 25.10.96- allowed on
03.05.97
nowhere

in
restoration
application
on
date
of
knowledge
disclosed- in spite of registered notices
workman did not response- after expiry
of 30 days from the date of publication-
tribunal become "functus officio" at last
its
jurisdiction
to
entertain
any
application- restoration order set-a-side.

Held: Para 15

Under these facts and circumstances,
since the application for setting aside the
exparte award was filed after the expiry
of 30 days of its publication, therefore it
could not be entertained as the Tribunal
had become functus officio and lost its
jurisdiction to entertain any application.
Case law discussed:
AIR 1981 S.C. 606 14, (2005) 9 S.C.C. 331. 6
and 8, A.I.R. 1985 Supreme Court 294,
2005(2) U.P. L.B.E.C. 1751And 2 008(118)
F.L.R. 922.

(Delivered by Hon'ble Ran Vijai Singh, J.)

1. This writ petition has been filed
for issuing a writ of certiorari quashing
the orders dated 3rd May, 1997 and 22nd
August,
1997
passed
by
Industrial
Tribunal (4), Agra (respondent No. 1).
Vide order dated 3rd May 1997, the
Tribunal had allowed the restoration
application for setting aside an exparte
award dated 10th February, 1995 rendered
in Adjudication Case No. 204 of 1994,
whereas by the subsequent order dated
22nd August, 1997, the Tribunal had
rejected the petitioners' application to
recall the order dated 3rd May, 1997.

2. The facts giving rise to this case
are that the respondent no 2. claiming
himself to be a workman has raised an
industrial dispute. The dispute was
referred under Section 4-K of the U.P.
Industrial Dispute Act, 1947 (hereinafter
referred to as Act of 1947) The reference
was registered as Adjudication Case No.
204 of 1994 before the Industrial Tribunal
(4) Agra. The dispute referred was