MOHAMMAD SUHAILversusD.M.ALLAHABAD AND OTHERS

          HIGH COURT OF JUDICATURE AT ALLAHABAD
                        WRIT - A No. - 51282 of 1999

Mohammad Suhail
                                                            .....Petitioner(s)
                                   Versus

D.M.Allahabad And Others
                                                          .....Respondent(s)

Counsel for Petitioner(s)       : Sharad Kumar Srivastava, Syed Wajid
                                  Ali
Counsel for Respondent(s)       : C.S.C.

Court No. - 34

(SN.23)

                 HON'BLE ANISH KUMAR GUPTA, J.

1. Heard Sri Wajid Ali, learned counsel for the petitioner and Sri
Devendra Prasad, learned Standing Counsel for the State.

2. The instant petition has been filed by the petitioner challenging the
impugned orders dated 21.07.1999 and 20.11.1999, passed by the District
Magistrate, whereby the services of the petitioner were terminated as
Collection Amin, taking resort to Uttar Pradesh Temporary Government
Servants (Termination of Service) Rules, 1975 (herienafter referred to as "
the Rules, 1975").

3. The briefly stated facts of the case are that the petitioner herein was
initially engaged as Seasonal Collection Amin on 09.11.1994. Thereupon,
vide order dated 12.05.1999, after assessing the eligibility of the
petitioner herein in terms of Rule 5 of the UP Collection Amins' Service
Rule, 1974 (herienafter referred to as "the Rules, 1974"), appointed the
petitioner on the post of Collection Amin, though temporarily, vide
appointment letter dated 12.05.1999. Pursuant thereto, the petitioner
herein has joined on 13.05.1999. Thereupon, on 21.07.1999, a show-cause
notice was issued to the petitioner that since the collection of the
petitioner was good in the district concerned and the list of the highest
collection of the Seasonal Collection Amin was prepared, in which the
name of the petitioner was at Serial No. 2, thus, treating the aforesaid list
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erroneously as Seniority List, in terms of the order passed by the District
Magistrate, the petitioner herein was appointed as Collection Amin
against 35% quota of the Seasonal Collection Amin.

4. Later, the District Magistrate realized while considering the
candidature of the petitioner, the wrong list has been considered, i.e., the
list of highest collection amount by the Seasonal Collection Amin, instead
of the Seniority List, which was required to be considered in terms of
Rule 5 and thereafter, the Seniority List was finalized on 30.06.1999 and
it was found that the name of the petitioner finds place at Serial No. 45 in
the Seniority List and since there were total 17 vacancies, at the relevant
time, in the district for the post of Collection Amin, 35% thereof comes to
6 posts. Therefore, the petitioner ought not to have been considered at all
against those 6 posts in view of his name was reflected at Serial No. 45 in
the Seniority List. Accordingly, the aforesaid show-cause notice was
issued calling upon the explanation of the petitioner with regard to his
seniority and eligibility in terms of Rule 5 of 1974 rules. The aforesaid
notice was duly served upon the petitioner.

5. In response to the aforesaid show-cause notice, the petitioner submitted
his reply on 27.07.1999, raising the questions with regard to the validity
of the Seniority List finalized on 30.06.1999 and he has also demanded
the copy of the seniority list to be provided to him as well as the report of
the Selection Committee on the basis of the earlier published list, wherein
the name of the petitioner was found at Serial No. 2.

6. The similar request was again made by the petitioner on 10.08.1999 as
well as on 19.10.1999. Thereupon, since the petitioner has not submitted
its proper reply to the show-cause notice, by resorting to the Rules, 1975,
the services of the petitioner were terminated vide order dated
20.11.1999, passed by the Sub-Divisional Magistrate, Karchana. Being
aggrieved, the instant writ petition was filed by the original petitioner
herein.

7. Vide order dated 07.12.1999, this Court stayed the operation of the
impugned order dated 20.11.1999. Pursuant thereto, the petitioner
continued to work as Collection Amin and later, vide order dated
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04.03.2018, the services of the petitioner were confirmed and later, the
petitioner has attained the age of superannuation on 30.06.2021 and
subsequently, the original petitioner has died on 30.05.2023. Thereupon,
the wife of the original petitioner, namely, Rubina Hashmi, was
substituted in the instant petition vide order dated 02.07.2024.

8. Learned counsel for the petitioner submits that it is undisputed in the
instant case that the collection of the petitioner in the last four fasli was
highest to make him eligible for appointment as Collection Amin.
However, with regard to his Seniority List, he submits that in the list,
which was considered for giving him appointment, he was at Serial No. 2
and thereafter, after following the due procedure against 35% quota of
appointment from the Seasonal Collection Amin, the appointment of the
petitioner was made vide appointment letter dated 12.05.1999. There is no
allegation in the instant case against the petitioner that the petitioner has
played any fraud while securing such appointment. The appointment was
made by following the due procedure. If any error has been committed
while making such appointment, that was not on the part of the petitioner,
but on the part of the department, which is being alleged in the show-
cause notice issued to the petitioner.

9. After the show-cause notice issued by the respondents, the petitioner
has repeatedly asked the copies of both the Seniority Lists, on the basis of
which the selection of the petitioner was made and the other, which was
later finalized after the appointment of the petitioner. The copies of the
aforesaid Seniority List were never provided to the petitioner and thus,
without granting any sufficient opportunity to defend himself, the
impugned termination order has been passed by the respondents, taking
resort to the Rules, 1975, which was not applicable in regard to the
appointment of the petitioner, as the appointment of the petitioner was
against the permanent vacancy and appointment was a regular one,
though initially was made temporarily for being probation period of 2
years, in terms of Rule 22 of 1974 Rules.

10. Thus, the appointment of the petitioner cannot be treated as a
temporary appointment for the purposes of 1975 Rules. Therefore, the
impugned termination order was bad and the same was also stayed by this
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Court. Pursuant thereto the petitioner has completed his service till his
superannuation. His services were also confirmed and after retirement, the
petitioner was entitled for all the retiral dues available to the petitioner,
including the pension, which has not been granted by the respondents, and
subsequently, after the death of the original petitioner, his wife has been
substituted. She is also entitled for the arrears of retiral dues, pensionary
benefits available to her husband as well as the family pension available
to the petitioner.

11. Per contra, learned Standing Counsel for the State submits that while
ascertaining the eligibility for appointment of the petitioner, instead of
consideration of the Seniority List, a list of highest collection of the
Seasonal Collection Amin was erroneously taken into consideration, in
which the petitioner was found at Serial No. 2, and thus, erroneously he
was considered as senior and has been given appointment following Rule
5 of 1974 Rules against 35% quota of Seasonal Collection Amin.

12. The aforesaid mistake was immediately after the appointment of the
petitioner was realized. After realizing, the District Magistrate has
finalized the Seniority List of the Seasonal Collection Amins working in
the district on 30.06.1999. Immediately thereafter, the notices were issued
to the petitioner to reply how his appointment is justified on the basis of
the his seniority, because in the Seniority List so finalized on 30.06.1999,
the petitioner was placed at Serial No. 45 and only 6 posts against 35
posts per 35% quota were to be filled up. Thus, only 6 persons in the
Seniority List so finalized were eligible and were required to be given
appointment and despite the opportunity granted to the petitioner, the
petitioner failed to respond to the aforesaid show-cause notice.

13. In such view of the matter, since the services of the petitioner were
temporary, which is reflected in the appointment letter itself, his services
were terminated taking resort to the 1975 Rules. Therefore, there was no
illegality in the impugned termination order.

14. It is further submitted by learned Standing Counsel for the State that
once the Authorities have realized their mistake and it is always open to
the State Authorities to correct their mistake at any stage after an
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erroneous appointment was given to a candidate, therefore, learned
Standing Counsel for the State submits that there is no illegality in the
impugned order. Hence, he seeks dismissal of the instant petition.
However, he is not in a position to dispute the subsequent confirmation of
the petitioner and his completion of service till the age of superannuation
due to the interim orders passed by this Court.

15. Having heard the rival submissions so made by by learned counsel for
the parties, this Court has carefully gone through the records of the case.
The facts of the case have already been noted hereinabove in great detail.

16. The first question which arises for determination of this Court is
whether the impugned order passed by respondent no. 3, taking resort to
the 1975 Rules is justified in law by treating the appointment of the
petitioner as temporary?

17. Rule 2 of 1975 Rules reads as under:

     "Rule 2. Definition.- In these rules "temporary service" means
     officiating or substantive service on a temporary post, or
     officiating service on a permanent post under the Uttar
     Pradesh Government."

18. The aforesaid Rule 2 defines the temporary service, means the
officiating or substantive service on a temporary post or officiating
service on a permanent post. Undisputedly, the appointment of the
petitioner was against the permanent post and it was in the nature of a
regular appointment. The word "temporary" was used in the appointment
letter only for the purpose that initially, for 2 years, such appointments are
to be treated as appointment on probation. In such view of the matter, the
aforesaid appointment of the petitioner cannot be treated to be a
temporary appointment or a temporary service within the meaning of Rule
2 of the 1975 Rules. Thus, once the service of the petitioner was not a
temporary service within the meaning of Rule 2 of the 1975 Rules, it was
not open for the respondents to take resort to the 1975 Rules at all and on
this ground alone, the impugned order is not sustainable.

19. The second question which arises for the determination is whether the
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                               6


State Authorities can cure their mistakes if a wrong appointment has been
made without the eligibility of a candidate in terms of the rules of
appointment, which in the instant case is Rule 5 of the 1974 Rules?

20. The 1974 Rules provides that against 35% of the total vacancies of the
Collection Amin are required to be filled up from the Seasonal Collection
Amins working in the district on the basis of their Seniority List and their
competence, which is to be determined to be 70% collection in the last
four fasli.

21. In the instant case, it is undisputed that the petitioner was having more
than 70% collection in the last four faslis rather his collections were 2nd
highest. However, while considering the seniority, while making the
initial appointment to the petitioner, a list of highest collection of
Seasonal Collection by the Seasonal Collection Amins had been
erroneously taken into consideration, wherein the name of the petitioner
was found at Serial No. 2. Later, it was realized that the petitioner was
much junior and he is placed at Serial No. 45 in the seniority list so
finalized after the appointment of the petitioner. Therefore, the petitioner
was not eligible to be appointed against 35% quota for want of seniority.
In such circumstances, there is no manner of doubt once an irregular
appointment has been made of a candidate who is not eligible to be
appointed, that appointment can be cancelled by the State Authorities.
However, such cancellation is required to be done after giving due
opportunity to defend and following the procedure provided under Article
311(2) of the Constitution of India.

22. In the instant case, though initially the respondents have tried to give
the show-cause notice and call for the response, but for want of the
necessary response from the the petitioner, in undue haste, the
respondents have chosen a shortcut while resorting to the 1975 Rules,
which was otherwise not available to them. They could have passed the
reasoned order even after no explanation was given by the petitioner after
granting him due opportunity and providing all the documents available,
which were repeatedly demanded by the petitioner, which has not been
given to the petitioner, though it has been referred that the same was
asked to be seen by the petitioner in the office, which the petitioner did
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                                                                   7


                                    not choose to. In such circumstances, it would have been open for the
                                    respondents to pass a reasoned order in this regard, which they have failed
                                    to.

                                    23. In such circumstances, the instant writ petition is allowed. The
                                    impugned order dated 20.11.1999 is hereby quashed. All consequential
                                    benefits, which were available to the original petitioner as well as to the
                                    substituted petitioner, who is the wife of the original petitioner, shall be
                                    accorded in accordance with rules within a period of three months from
                                    the date of production of certified copy of this order.



                                                                                      (Anish Kumar Gupta,J.)
                                    September 24, 2026
                                    Shubham Arya




Digitally signed by :-
SHUBHAM ARYA
High Court of Judicature at Allahabad