Bheem Chand Yadav v. State of U.P. and others which was allowed by this Court vide ju
Case Details
Neutral Citation No. - 2023:AHC:173532 Court No. - 37 Case :- WRIT - A No. - 2846 of 2020 Petitioner :- Bheem Chand Yadav Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Awadhesh Kumar Yadav,Pranvesh,Syed Wajid Ali Counsel for Respondent :- C.S.C. Hon'ble Abdul Moin,J. 1. Heard Sri Syed Wajid Ali, learned counsel for the petitioner and learned Standing Counsel appearing for the respondents. 2. Under challenge is the order dated 14.1.2020 passed by the respondent
Decision
No.3, a copy of which has been filed as Annexure-12 to the writ petition, whereby the claim of the petitioner for regularisation has been rejected. 3. Bereft of the unnecessary details, facts as set forth by the learned counsel for the petitioner are that the petitioner was appointed as Seasonal Collection Peon on 30.9.2000. Two seniority lists were issued by the respondents, one in the year 2010 the other in the year 2012 in which the date of appointment of the petitioner was indicated as 30.9.2000. In the year 2016, another seniority list has been issued wherein the date of appointment of the petitioner was indicated as 4.8.2003. The services of the petitioner were terminated vide order dated 17.12.2016. Being aggrieved by the same, the petitioner filed Writ-A No.9637 of 2017 In re: Bheem Chand Yadav vs. State of U.P. and others which was allowed by this Court vide judgment and order dated 20.11.2019, a copy of which is Annexure-8 to the writ petition, whereby this Court gave a specific finding that the date of appointment of the petitioner has to be treated as of the year 2000. The writ Court also set-aside the order of termination dated 17.12.2016 and required the competent authority to consider the claim of the petitioner for regularisation as per Rule-5 of the Uttar Pradesh Collection Peon Service Rules, 2004 (hereinafter referred to as 'the 2004 Rules'). 4. The respondents, after considering the claim of the petitioner, have passed the order impugned dated 14.1.2020 whereby, apart from various grounds, the claim of the petitioner has again been rejected by contending that as the Government Order dated 29.8.2001 has been issued per which no fresh appointment could be made on the post of Seasonal Collection Peon and the date of appointment of the petitioner being 4.8.2003, as such his appointment itself is void ab-initio and he is not entitled for regularisation under the 2004 Rules. 5. The argument of learned counsel for the petitioner is that once this Court while passing the earlier judgment and order dated 20.11.2019 specifically gave a finding of fact that the date of appointment of the petitioner is to be treated as of the year 2000, consequently the respondents cannot be allowed to sit over the finding of this Court and in turn place reliance on a seniority list to contend that the date appointment of the petitioner is of the year 2003 in order to indicate that the date of appointment of the petitioner being subsequent to the issuance of the Government Order dated 29.8.2001 would be void ab-initio so as to deprive the petitioner of the benefit of regularisation under the 2004 Rules. It is contended that the order impugned thus merits to be set-aside with a further direction to the respondents to consider the claim of the petitioner for regularisation in terms of Rule 5 of the 2004 Rules. 6. On the other hand, learned Standing Counsel on the basis of the averments contained in the counter affidavit, argues that upon a perusal of the record and considering the directions issued by this Court vide judgment and order dated 20.11.2019, the case of the petitioner was considered afresh and it was found that the petitioner has been appointed on 4.8.2003, which is subsequent to the Government Order dated 29.8.2001 which strictly prohibited any appointment to be made on the post of Seasonal Collection Peon and consequently once the appointment of the petitioner itself is subsequent to the Government Order dated 29.8.2001, as such the petitioner would not be entitled to be considered for regularisation under the 2004 Rules. However, learned Standing Counsel does not dispute that the judgment of this Court dated 20.11.2019 has attained finality. 7. Having heard the learned counsel for the parties and having perused the record what emerges is that the petitioner had been appointed as Seasonal Collection Peon. His services had been dispensed with by means of an order dated 17.12.2016 on the ground that the petitioner's appointment as Seasonal Collection Peon was contrary to the Government Order dated 29.8.2001. A challenge was raised to the order dated 17.12.2016 by filing a writ petition before this Court... 8. This Court while delivering the judgment and order dated 20.11.2019, after perusal of the record, was of the view that once the date of appointment of the petitioner continued to be indicated as of the year 2000 in the seniority list of the years 2010 and 2012, consequently simply because in the seniority list issued in the year 2016 his date of appointment was indicated as 4.8.2003, the same would not enable the respondents to treat the appointment of the petitioner as of the year 2003 and accordingly gave a finding that the date of appointment of the petitioner should be treated as of the year 2000 and that based on the Government Order dated 29.8.2001, the claim of the petitioner for regularisation cannot be denied. In this view of the matter, the termination of the petitioner dated 17.12.2016 was set-aside and the respondents were directed to consider the case of the petitioner for regularisation in accordance with the 2004 Rules. 9. The respondents have passed the order dated 14.1.2020 whereby again they placed reliance on the Government Order dated 29.8.2001. They have indicated in the impugned order that as the appointment of the petitioner is subsequent to the Government Order dated 29.8.2001, as such his appointment has to be treated as void ab-initio and consequently he cannot be considered for the purpose of regularisation under the 2004 Rules. 10. The order impugned merits to be set-aside solely on the ground that once this Court, while delivering the judgment and order dated 20.11.2019 in the earlier round of litigation between the same parties i.e. petitioner and the respondents, gave a specific finding that initial appointment of the petitioner has to be treated as of the year 2000, consequently, once the aforesaid judgment attained finality inter-se between the parties and the same having not been challenged by filing a special appeal or even otherwise, the respondents cannot be allowed to sit over the same and give a finding contrary to it by treating the date of appointment of the petitioner as 4.8.2003, as has been indicated in the order impugned. 11. Keeping in view the judgment of this Court dated 20.11.2019 and specific finding having been given by this Court that the date of appointment of the petitioner should be treated as of the year 2000, consequently the respondents have patently erred in rejecting the claim of the petitioner for regularisation by means of the order impugned dated 14.1.2020 by indicating that the date of appointment of the petitioner is subsequent to the Government Order dated 29.8.2001. 12. In view of the aforesaid discussion, the writ petition is allowed. The order impugned dated 14.1.2020, Annexure-12 to the writ petition, is set-aside. The matter is remitted to the competent authority to consider the case of the petitioner for regularisation afresh in accordance with the 2004 Rules. Let such consideration be made within a period of two months from the date of receipt of a certified copy of this order. Order Date :- 28.8.2023 Rakesh Digitally signed by :- RAKESH MEHTA High Court of Judicature at Allahabad