Sabhajeet Yadav, J.@mdashThe controversy involved in this writ petition is that in absence of any statutory Rules or Government Order or Circular, for determination of seniority of Seasonal Collection Peons working in the revenue department of Government of Uttar Pradesh, how their seniority can be determined ? What would be the basis for determination of their inter se seniority? As to whether their date of appointment would be a legitimate and the reasonable basis for determination of seniority or the number of working days of such Seasonal Collection Peons in their whole service career would be a reasonable basis for determination of their seniority. Beside this the other questions incidental to their services are also involved for consideration of this Court.
2. The brief fact of the case having material bearing with the question in controversy involved in the case is that the petitioner was Seasonal Collection Peon in Tehsil Soraon, district Allahabad. He was first time appointed as such on 9.2.1982, thereafter, he was engaged as Seasonal Collection Peon in each fasli years and continued as such till 1995. In the year 1996 first time the Respondent No. 2 did not engage the petitioner as Seasonal Collection Peon and the juniors to the petitioner were engaged and retained in service. Feeling aggrieved against the aforesaid action of Respondent No. 2, he filed writ petition before this Court, which was numbered as Civil Misc. Writ Petition No. 6315 of 1996 decided on 3.6.1996 whereby this Court has directed that the Respondent No. 2 Up-Ziladhikari, Soraon, Allahabad will consider the candidature of petitioners who were three in number before giving employment to other persons in accordance with law. The aforesaid order is also Annexure-2 to the writ petition. In compliance of the aforesaid order dated 3.9.1996 the Respondent No. 2 again appointed the petitioner as Seasonal Collection Peon, since then the petitioner was permitted to work continuously in each and every season on the said post upto 31.3.2000. The petitioner has also filed a seniority list of Tehsil Soraon, district Allahabad dated 31.3.2000 wherein his name finds place at Serial No. 19 which contains the name of twenty persons.
3. On 20.4.2000 the Respondent No. 2 has passed an order wherein it is mentioned that in the anticipation of approval by Collector of the district for engagement in the next fasli year to be ended by 30th June, 2000, a list containing the names of fifteen Collection Peons has been prepared and published and persons included in the list were directed to join their services. It is also mentioned in the order that this order has been passed keeping in view the order passed by this Court in the writ petition filed by Seasonal Collection Peons, but no particulars of any writ petition has been mentioned. The order passed by this Court also not been mentioned. The petitioner''s name does not find place in the aforesaid list of fifteen Seasonal Collection Peons. Feeling aggrieved against the aforesaid action of the Respondent No. 2 Sub-Divisional Officer, the petitioner has moved application/representation before Sub-Divisional Officer, Soraon on 6.6.2000 and 8.8.2000 whereby it is submitted that petitioner has already filed a writ petition before this Court referred above which has been disposed of on 3.9.1996. In pursuance of the order passed by this Court, the petitioner has been continuously permitted to work in each and every fasli year but the order dated 20th April, 2000 has been passed excluding the name of petitioner and persons junior to him have been included in the aforesaid list. It has also been mentioned in the aforesaid application that he may be permitted to work on the post of Seasonal Collection Peon and he may be regularised and absorbed as regular Collection Peon but respondents did not paid any heed over the matter, therefore, the petitioner has been compelled to file instant writ petition before this Court seeking direction for appointment as Seasonal Collection Peon in the next coming fasli year inasmuch as regularisation of his service as regular Collection Peon against regular vacancy.
4. On 16.10.2000 while granting time for filing counter-affidavit in the writ petition within a period of six weeks as interim measure Hon''ble Mr. Justice S. Harkauli has been pleased to observe as under :
"In the meantime before considering any new person for appointment on the post of Seasonal Collection Peon the candidature of the petitioner will be considered and will not be rejected except by a reasoned order. For further interim relief the matter will be considered on the next date of listing."
5. On receipt of notice of interim order passed in the writ petition the Respondent No. 2 has filed a detail counter-affidavit. In Paragraph 4 of the counter-affidavit while denying the correctness of averments of Paragraph 2 of the writ petition and in reply thereto it has been stated that the Seasonal Collection Peons are engaged on the basis of direction given by Commissioner and District Magistrate for specific span of time and when the aforesaid period expires the services of Seasonal Collection Peons automatically came to an end. The petitioner was also engaged as Seasonal Collection Peon for particular span of time and it is incorrect to say that he is continuously working as Seasonal Collection Peon. In Paragraph 6 of counter-affidavit it has been mentioned that the petitioner was engaged in pursuance of different orders issued by competent authority from time to time as and when the work for Seasonal Collection Peon was required lastly upto 1995. The petitioner was working for specific season as Seasonal Collection Peon, when that specific season was over, petitioner''s engagement was also over and for future engagement fresh engagement order is required to be passed by the competent authority for next specific season. After 1995 no fresh order was issued by the competent authority in favour of the petitioner for his engagement in the next season and as such the petitioner has approached this Court. As a result of order passed by this Court, the competent authority has issued fresh order in favour of petitioner to engage him as a Seasonal Collection Peon for next particular span of time in ordinary circumstances prevailing prior to order dated 3.9.1996 passed by this Court and not on the basis of seniority. The petitioner has been permitted to work as Seasonal Collection Peon upto 31.3.2000 with artificial break in his service.
6. In paragraph 8 of the counter-affidavit it has been stated that vide order dated 25.2.1997 passed by this Court a direction has been given to the respondents to engage Seasonal Collection Peons in accordance with seniority and notification dated 8.1.1996 till regular selection for Collection Peon is made, hence, the respondents have carefully prepared a seniority list of Seasonal Collection Peons on the basis of number of working days of Seasonal Collection Peons during their whole service career. It was further stated that the petitioner''s name does not finds place in the select list of Seasonal Collection Peons prepared on 20.4.2000 within fifteen persons included in the list because all fifteen Seasonal Collection Peons were senior to the petitioner. His name is mentioned at Serial No. 19 in the seniority list. The copy of order of High Court dated 25.2.1997 and the copy of seniority list prepared in compliance of the High Court''s order dated 25.2.1997 is being filed and marked as Annexure CA-1 and CA-2 to the counter-affidavit. In Paragraph 15 of the counter-affidavit it has been specifically stated that there are total 30 sanctioned posts of Collection Peons in Tehsil Soraon, district Allahabad against which 28 regular Collection Peons are working and only two sanctioned posts are lying vacant which are also reserved by the High Court''s order dated 5.8.1991 till regular appointments are made. It is alleged that the copy of Court''s interim order dated 5.8.1991 is filed as Annexure-3 to the counter-affidavit but no such copy is in fact on record as Annexure CA-3. It is also asserted that in view of these facts and circumstances, the Seasonal Collection Peon cannot be regularised.
7. It appears that in compliance of interim order dated 16.10.2000 passed in the instant writ petition the petitioner''s representation dated 31.10.2000 has been decided by Sub-Divisional Officer, Soraon, Allahabad vide order dated 27.11.2000, a copy of which has been filed by the petitioner as Annexure-1 to the rejoinder-affidavit.
8. On 5.11.2004 after hearing Counsel for petitioner and respondents this Court has passed an order directing Sri Krishna Kumar Gupta, the then Sub-Divisional Officer, Soraon, district Allahabad who has passed the order dated 27.11.2000 and the present Sub-Divisional Officer, Soraon to be present in the Court in person on the date fixed by the Court i.e. 3rd December, 2004. In compliance of the aforesaid direction Sri Krishna Kumar Gupta, the then Sub-Divisional Officer, Soraon and Sri Alok Singh, the present Sub-Divisional Officer, Soraon, Allahabad were appeared before the Court in person alongwith a supplementary counter-affidavit filed in the writ petition. Along with supplementary counter-affidavit the Government Order dated 8th January, 1996 and judgment and order dated 16th January, 1995, rendered in Writ Petition No. 40104 of 1994, Jawahar Lal and Ors. v. District Magistrate, Kanpur Dehat and Ors. have also been filed. In this supplementary counter-affidavit also in Paragraphs 7, 8, 9 and 10 the respondents have reiterated the averments earlier made in main counter-affidavit. In Paragraph 11 it has been further stated that despite earlier appointment as Seasonal Collection Peons if they do not achieve the target of realisation of Government dues while working with Seasonal Collection Amins, their further engagement are discontinued. In case of poor realisation/collection of dues they can be discontinued even in the mids of their engagement. In Paragraph 10 of the supplementary counter-affidavit it has been stated that the post of Seasonal Collection Peon is not independent post rather the same is attached with Seasonal Collection Amins. In case the Seasonal Collection Amins fail to realise Government dues according to fixed target, their services are terminated and the services of Seasonal Collection Peons are also terminated with the Seasonal Collection Amins.
9. Heard learned Counsel for petitioner Sri Kripa Shanker and learned Standing Counsel for respondents.
10. I have given thoughtful consideration to the submissions made by learned Counsels for the parties and have also gone through the records. A bare perusal of judgment and order, dated 25.2.1997, rendered in Civil Misc. Writ Petition No. 3607 of 1996, Amrit Lal and Ors. v. State of U.P. and Ors., reveals that the aforesaid decision was rendered by learned Single Judge of this Court in terms of another decision rendered by this Court in Jawahar Lal v. District Magistrate, Kanpur Dehat 1995 (2) ESC 38. The aforesaid decision rendered in Jawahar Lal''s case (supra) has also been brought on record in supplementary counter-affidavit filed by respondents as Annexure SCA-2. In the aforesaid case the petitioners who were Seasonal Collection Peons have filed writ petition claiming their regularisation on the post of Collection Peons against the vacant posts. In paragraph 2 of the judgment it has been held that Seasonal Collection Peons are normally attached with Seasonal Collection Amins for realisation of Government dues. They are normally appointed during the seasons when the collections of Government dues are made. The work of Seasonal Collection Peon is not of permanent nature. Their appointments are made due to exigencies of work. In Paragraph 4 of the judgment some observation of Apex Court made in the case of Maharashtra State Co-operative Cotton Growers'' Marketing Federation Ltd. and Anr. v. Maharashtra State Cooperative Cotton Growers'' Marketing Federation Employees'' Union and Anr. AIR 1994 SC 1046 has also been noticed wherein their Lordships of Supreme Court has held that by nature of employment, temporary seasonal employees can be made permanent only as a permanent seasonal employee and not as permanent perennial employees. Since at relevant point of time no rule for regularisation of Seasonal Collection Peons was existing, therefore, by taking note of rules relating to Collection Amins known as U.P. Collection Amins Rules, 1974 as amended from time to time latest by 5th Amendment Rules, 1992 and the judgment of this Court rendered by Hon''ble Mr. Justice R.B. Mehrotra in Writ Petition No. 45819 of 1993, Bachchan Lal v. Pargana Adhikari, Khaga, Fatehpur and Ors., wherein a direction has been given to the Government for making the Rules in the matter of appointment of Seasonal Collection Peons by considering every aspect relating to the service of Seasonal Collection Peons, this Court in Paragraph 10 of the judgment observed as under :
"10. Hon''ble R.B. Mehrotra, J. in Writ Petition No. 45819 of 1993, Bachchan Lal v. Pargana Adhikari, Khaga, Fatehpur and Ors., noted this situation regarding appointment of Seasonal Collection Peons and expressed the opinion that the Government should frame Rules, similar to Rules which are applicable to Seasonal Collection Amins for appointment to the post of Collection Amins, for the persons who are working as Seasonal Collection Peons. It was observed that the Government may fill up the vacancies on the basis of seniority of such persons who are working as Seasonal Collection Peons for a long time and the appointment to the post of Collection Peons may be made to the extent of 50 per cent of those Collection Peons who had been working for a long time. The Court also noted the letter of the Board dated 8.5.1974 which provided that the Seasonal Collection Peons whose work has been good may be given preference in the appointment to the post of Collection Peons taking into consideration their seniority and their conduct. They may further be given relaxation in age while considering their eligibility for selection."
11. It appears that on the basis of decision rendered by the Hon''ble Mr. Justice R.B. Mehrotra, the Government of Uttar Pradesh issued an order dated 8th January, 1996 which has been filed as Annexure SCA-1 to the Supplementary Counter Affidavit wherein in the source of recruitment on the posts of Collection Peon the provisions have been made to the effect that :
(a) 50% vacancies are to be filled up by direct recruitment method ;
(b) Remaining 50% vacancies are to be filled up by the Seasonal Collection Peons by way of selection on the basis of suitability and experience of work provided that they had worked for four seasons satisfactorily and their age does not exceed 45 years on 1st July in the year of selection. In case of nonavailability of candidates from amongst the Seasonal Collection Peons the remaining vacancies are liable to be filled up through direct recruitment method.
12. From the perusal of the aforesaid decisions rendered by this Court and Government order dated 8th January, 1996 there is nothing to show that how the seniority list of Seasonal Collection Peons can be prepared and what would be criteria for preparation of seniority list of Seasonal Collection Peons. Neither the aforesaid decisions nor the Government order has touched the aforesaid field and the same is still lying unoccupied. So long as necessary statutory Rules or Government order occupying the field is not made the authorities cannot be left to run the affairs in their subjective and whimsical approach and hotchpotch manner. Certain objective criteria must be evolved to administer the affairs otherwise large number of persons would be subjected to favouritism, nepotism and other sort of manipulations inasmuch as discriminatory treatment in the hands of State functionaries. While deciding the case in question this Court cannot shut its eyes to the present state of affairs prevailing throughout the State of Uttar Pradesh. The present case in an example of such whimsical acts of respondents whereby the seniority of Seasonal Collection Peons working in the Tehsil Soraon, District Allahabad has been determined by Sub-Divisional Officer, Soraon on the basis of number of working days of Seasonal Collection Peons through out their service career. The basis of determination of seniority was not made the date of their first appointment.
13. It is pertinent to note that the post of Seasonal Collection Peons are not independent post rather they are attached to the Seasonal Collection Amins with whom they have to work. They are also not directly responsible for collection of Government dues rather they have to assist in collection of Government dues with the Seasonal Collection Amins who are responsible for collection of Government dues in accordance with the target fixed for them. Therefore, the Seasonal Collection Peons cannot be held responsible for failure to achieve target by Seasonal Collections Amins with whom they are attached. Neither Seasonal Collection Amins nor Seasonal Collection Peons attached with them can work for any more period on their own accord rather their engagement are dependent upon the exigencies of work from time to time, therefore, they cannot be blamed for their working to the lesser period. If their engagements are not made, it is not possible for them to work and exceed their working days. In case the number of working days may be made criteria for determination of their seniority it would be open for the authorities to favour the persons to whom they like on subjective basis and on account of such favour the number of their working days may be enhanced and contrary to it other Seasonal Collection Peons who may not be able to get favour of authorities comparatively their number of working days would be lesser. Thus, the criteria for determination of seniority on the basis of working days would generate favouritism, nepotism and arbitrariness, therefore, unless it is found that the work and conduct of the Seasonal Collection Peons are wholly unsatisfactory or they are guilty of proved misconduct or convicts of criminal case, their services cannot be dispensed with during mids of season simply because of seasonal in nature. Although the status of seasonal collection peons working for long time cannot be elevated at par with regular employees but there must be some sort of security in the tenure of their service. Therefore, while determining the seniority the date of their first appointment would be a reasonable criteria and on that basis their length of service may be counted. Only those period may be deducted from the length of their service for which appointing authority passes specific order by affording opportunity of hearing to them in consonance of principles of natural justice and fair play only on the grounds in which certain period of services of regular employees are not counted towards continuity of service while determining their seniority and some other grounds such as when they abandons the service or voluntarily relinquished the work of particular fasli years in which they asked for. In other situation they cannot be blamed to work in a particular fasli years unless asked for. This continuity of service may not be misunderstood in term without any break in service rather it may be understood in the term of seasonal nature of their work. It means the engagement in each and every consecutive season as and when it begins.
14. It is also necessary to make it clear that having regard to the lowest status of service as seasonal collection peons since they are not required to work independently rather they have to work on dictate of Seasonal Collection Amins with whom they are attached and they have to assist in their working towards realisation of Government dues, therefore, it would be unjust and unfair to attribute the inefficiency and unsatisfactory work and conduct of Seasonal Collection Amins upon the seasonal collection peons with whom they are attached unless it is shown that seasonal collection peons have not worked according to the directions of Seasonal Collection Amins with whom they are attached and for that purpose the Seasonal Collection Amins have lodged some complaints against the work and conduct of such seasonal collection peons and after inquiry made by any superior employee of Collection Department by affording reasonable opportunity of hearing to the concerned employee in consonance with the principle of natural justice and fair play, if it is found that the work and conduct of such seasonal collection peon is not satisfactory, only in that event of the matter, his work and conduct is to be treated unsatisfactory.
15. It is well common in all the services where there exist either statutory rule or Government order the seniority is determined on the basis of date of appointment. In cases of regular service, it is determined on the basis of date of substantive appointment. The member of service appointed on substantive basis earlier in point of time is treated to be senior to those who are appointed on substantive basis on later date. Similarly, amongst the ad hoc appointees also the inter se seniority is determined on the basis of date of such appointment, meaning thereby the person appointed on ad hoc basis earlier point in time is to be treated as senior from those who are appointed later on. Therefore, the seniority of seasonal employees also cannot be made exception to the well-known norms of service jurisprudence. The criteria of number of working days for determination of seniority is foreign and unknown to the service jurisprudence. It does not stands to reasons and cannot be held to be reasonable basis for determination of seniority of Seasonal Collection Peons and accordingly the same is liable to be struck down by this Court.
16. Now coming to the facts and circumstances of the case in question, it transpires that while preparing the seniority list of Seasonal Collection Peons of Tehsil Soraon, district Allahabad working upto 31.3.2000 the criteria of number of working days by the aforesaid time has been made basis for determination of seniority and their ranking in the seniority list. The list is Annexure-3 to the writ petition in which the names of only 20 persons have been included and in the seniority list dated 31.3.1999, which has been filed as Annexure CA-2 to the counter-affidavit the names of 47 Seasonal Collection Peons have been included. In both the seniority list, the petitioner''s name finds place at Serial No. 19. In the seniority list dated 30.5.2000, which contains the names of 20 Seasonal Collection Peons who have worked upto 31.3.2000, five columns were prepared. First column pertains serial number, second column pertains to the name of persons, third column pertains to date of appointment at first time, fourth column pertains to number of fasli in which Seasonal Collection Peons were permitted to work and fifth column pertains to number of working days in their whole service career. The date of appointment of petitioner who has been placed at serial number 19 has been given as 9.2.1982 and in the fourth column 20 has been mentioned indicating that he has been permitted to work for 20 fasli. In fifth column the working days 1897 have been mentioned indicating the fact that in whole service career of 18 years by that time and working for 20 fasli he has been permitted to work 1897 days. Contrary to it, Sri Ram Surat whose name finds place at serial number 5 was appointed first time on 1.2.1983 and he has been permitted to work 21 fasli, his total of number of working days were 2587. At serial number 8 the name of Sri Hari Lal has been mentioned who has been appointed first time on 10.2.1982 although he has been permitted to work for 22 fasli years but his total working days were reached to 2386. At Serial No. 9 the name of Sri Amrit Lal has been mentioned who has been appointed first time on 1.3.1984 and permitted to work for 21 fasli. His total number of working days are 2298. At serial number 10 the name of Sri Chhotey Lal has been mentioned. He has been appointed on 10.2.1982 although he has been permitted to work for 22 fasli and his total working days has been mentioned as 2301. It is not understandable why he has been placed below Sri Amrit Lal who was appointed on 1.3.1984 after the date of appointment of Sri Chhotey Lal and has also been permitted to 22 fasli for more than one fasli than Sri Amrit Lal and also he has worked for three days more than Sri Amrit Lal. At serial number 11 the name of Sri Hari Ram has been mentioned who has been appointed on 10.2.1982 and permitted to work 21 fasli for 2250 days. At serial number 14 the name of Sri Indra Narain has been mentioned who has been appointed first time on 1.2.1983 and has been permitted to work 20 fasli. His number of working days are 4041 but he has been placed at serial number 14 below the rank of persons who have been permitted to work lesser number of days. At serial number 15 the name of Sri Babu Lal has been mentioned who has been appointed first time on 10.2.1982 and permitted to work 19 fasli for a period of 2024 days. At serial number 16 the name of Sri Ram Sajiwan has been mentioned who was appointed on 10.2.1982 and permitted to work for 19 fasli for a period of 1986 days. At serial number 18 the name of Sri Ram Murat has been mentioned who was appointed on 5.2.1983 and has been permitted to work 19 fasli for a period of 1952 days.
17. From the aforesaid facts and figures it is clear that while preparing the seniority list neither the date of first appointment nor the number of fasli has been made basis and strictly adhered to rather the number of working days in whole service period has been made basis. In some cases the number of working days were also ignored. The aforesaid facts and Annexure-3 of the writ petition have not been disputed by the respondents in the counter-affidavit. The persons named at Serial Nos. 5, 8, 9, 10, 11, 14, 15, 16, 17 and 18 in the aforesaid list are engaged first time on seasonal basis after the engagement of the petitioner but they have been shown as senior to the petitioner without any reasonable basis and without any known norms, therefore, the preparation of this seniority list is wholly arbitrary and illegal and does not stands to reasons and satisfy the norms of reasonableness.
18. From the perusal of Annexure-1 of the writ petition which is a report dated 16.11.1997 in connection of satisfactory work of Seasonal Collection Peons of Tehsil Soraon it reveals that in the aforesaid list also the petitioner''s name finds place at serial number 20 and his services were also found satisfactory in the fasli mentioned in the list. This fact has also not been disputed by the respondents in the counter-affidavit.
19. From the perusal of Annexure-2 of the counter-affidavit which is a seniority list of Collection Peons working in Tehsil Soraon, district Allahabad upto 31.3.1999. It appears that in the first column the serial number has been given, in the second column the name of candidate has been mentioned, in the third column the name of caste has been mentioned, in the fourth column the number of fasli in which the persons were permitted to work has been given, in fifth column the date of birth has been mentioned. After column five by including 6, 7, 8 columns the working days have been given. In column 6 the number of working days prior to year 1987 have been mentioned. In column 7 the number of working days subsequent to the year 1987 have been mentioned. In column 8 the total number of working days throughout whole service career have been mentioned. In this seniority list it is not understandable as to why the cut off date in the year 1987 has been mentioned. It is also not known as to why against the names of persons their caste has been mentioned and no justification for such entry has been given in counter-affidavit too. It appears that this seniority list has been prepared by the authorities for pertain oblique motive and extraneous considerations by adopting novel device, therefore, the same cannot stands to reasons and reasonableness which is core of Article 14 of the Constitution of India. In this list the date of first appointment as Seasonal Collection Peon has not been mentioned. In this seniority list the petitioner''s name finds place at Serial No. 19 and the persons at Serial No. 6 Ram Surat, Serial No. 8 Hari Lal, Serial No. 9 Amrit Lal, Serial No. 10 Chhotey Lal, Serial No. 11 Hari Ram, Serial No. 14 Indra Narain, Serial No. 15 Babu Lal, Serial No. 16 Ram Sajiwan, Serial No. 17 Mahesh Chandra, Serial No. 18 Ram Murat who were appointed after the appointment of petitioner have been ranked above the petitioner in the aforesaid seniority list. Besides this it is also relevant to note that the petitioner has been shown to work for 18 fasli by 31.3.1999 and persons placed at Serial Nos. 15, 16, 17 and 18 have been shown to work only 17 fasli but they have been placed above in the seniority list only on account of fact that they have been permitted to work few days more than that of petitioner. The preparation of such seniority list on the basis of number of working days as held earlier is based on whimsical and subjective approach of Respondent No. 2. Although in the counter-affidavit the justification sought to have been given by the respondents for preparation of aforesaid seniority list at the strength of Government order dated 8.1.1996 and judgment and order of this Court dated 25.2.1997 but the same is wholly misconceived and misplaced. As observed earlier that there is no indication either in the aforesaid judgment of this Court or in the Government order as to how the seniority list of Seasonal Collection Peons is to be prepared and what would be criteria of preparation of such seniority list. Therefore, the seniority list contained in Annexures-3 and 4 of the writ petition and Annexure-2 of the counter-affidavit is wholly arbitrary, illegal and liable to the struck by this Court and accordingly the same are quashed. Since the order of Sub-Divisional Officer, Soraon dated 27.11.2000 contained in Annexure-1 to the rejoinder-affidavit deciding the representation of petitioner has also been passed on the same basis, therefore, the same cannot sustain. It is also because of the reason that aforesaid order does not finds support either from the decision earlier rendered by this Court or from the Government order dated 8.1.1996, therefore, the findings recorded by Sub-Divisional Officer, Soraon in this regard in the order dated 27.11.2000 is wholly misplaced and misconceived and based on non-existent fact and not sustainable at all. Accordingly the same is quashed.
20. On a conspectus of the whole issue it is clear that the date of first appointment as Seasonal Collection Peons should be most appropriate criteria for determination of inter se seniority amongst the seasonal collection peon and accordingly the same is held to be criteria for determination of seniority. If the aforesaid principle would have been applied correctly the name of Sri Ram Surat placed at Serial No. 5 in the seniority list dated 30.5.2000 contained in Annexure-3 to the writ petition which was prepared on the basis of working of seasonal collection peon upto 31.3.2000 which finds place at Serial No. 6 in Annexure CA-2 and at Serial No. 6 in Annexure-4 to the writ petition which was prepared vide order dated 20th April, 2000 who have been appointed on 1.2.1983, would have been ranked below the petitioner who was admittedly appointed on 9.2.1982. Similarly the name of Sri Hari Lal appointed on 10.2.1982 placed at Serial No. 8, Sri Amrit Lal placed at Serial No. 9, Sri Chhotey Lal placed at Serial No. 10, Sri Hari Ram placed at Serial No. 11, Sri Indra Narain placed at Serial No. 14. Sri Babu Lal placed at Serial No. 15. Sri Ram Sajiwan placed at Serial No. 16, Sri Mahesh Chandra placed at Serial No. 17 and Sri Ram Murat placed at Serial No. 18 who were appointed subsequent to the appointment of the petitioner would have ranked below the petitioner in the seniority list contained in Annexures-3 and 4 of the writ petition as well as Annexure CA-2 to the counter-affidavit. In case the correct principle would have been applied while preparing the aforesaid seniority list and passing the order dated 20th April, 2000 contained in Annexure-4 to the writ petition, the name of petitioner would have been certainly included in the list of 15 seasonal collection peons who were selected for their fresh engagement in the year 2000 and onward. Therefore, the petitioner is entitled to be treated to have been engaged in the aforesaid fasli to be ended by 30th June, 2000 and onward in subsequent fasli uptill now at par with his juniors who were engaged and included within 15 seasonal collection peons vide order dated 20th April, 2000. He is entitled to be treated as such for the purpose of determination of his seniority and other benefits of service for consideration of his regular selection as and when it becomes due on occurrence of vacancy against sanctioned post of collection peon.
21. It is also pertinent to mention here that in the Government Order dated 8th January, 1996 in the source of recruitment in Clause (b) the provision has been made to the effect that 50% vacancies of collection peons are to be filled up from amongst the seasonal collection peons by way of selection on the basis of "suitability and working experience" and further provision has been made to the effect that provided they had worked for 4 seasons satisfactorily and their age does not exceed 45 years on 1st July in the year of selection. In this connection it is necessary to make it clear that since like regular employee the service record including character roll and confidential reports and service book of seasonal collection peons are not prepared, therefore, it would be impracticable to assess the suitability of seasonal collection peons in absence of such service records. At the best only this much is possible to have certain records of engagement of seasonal collection peons engaged from time to time, therefore, instead of making selection on the basis of "suitability and experience of work" the "seniority subject to satisfactory work" should be best suited criteria for their selection. This criteria of "seniority subject to satisfactory work" alongwith the criteria that seasonal collection peon must have worked for 4 seasons satisfactorily and their age does not exceed 45 years on the 1st July in the year of selection would be appropriate to meet the ends of justice. The criteria of "suitability and experience of work" would also encourage favouritism, nepotism and other sort of corruption in the process of selection of seasonal collection peon and would result dissatisfaction and frustration amongst the seasonal collection peons who are working for more than 20-24 years and waiting their turn of regular selection, therefore, in order to minimize the aforesaid favouritism, nepotism, castism and other sort of corruption inasmuch as discriminatory treatment and arbitrariness, the criteria of selection should be seniority subject to satisfactory work provided they had worked for 4 seasons satisfactorily and their age does not extend 45 years on the 1st July in the year of selection. Thus, to that extent the Government order dated 8th January, 1996 is to be held unreasonable and arbitrary and the same is also unworkable having regard to the nature of post held by seasonal collection peons and work performed by them. On examining the matter from different angle also on one hand the expression "working experience" without any further description and detail and without anything more is vague term and cannot be easily understandable in the objective manner by all the authorities concerned throughout the State of Uttar Pradesh as such the possibility of interpreting the aforesaid term in a different and subjective manner by different persons cannot be ruled out which may also results indiscriminatory treatment amongst the similarly situated persons and can be abused in the manner indicated above. Therefore, on this count also the aforesaid criteria of selection on the post in question cannot be held to be a reasonable criteria. Apart from it in paragraph 10 of the judgment in Jawahar Lal''s case while taking note of another decision rendered by another learned Judge of this Court in Bachchan Lal''s case it was observed that the Government may filled up the vacancies on the basis of seniority of such persons who are working as seasonal collection peons for long time and the appointment to the post of collection peons may be made to the extent of 50% of those collection peons who had been working for a long time. Therefore, while issuing the aforesaid Government order dated 8.1.1996 as indicated above the Government has made attempt to dilute the observation made by this Court in respect of seniority as one of the "dominant criteria" for holding selection from amongst the seasonal collection peons. Therefore, I have no hesitation to hold that the aforesaid expression "suitability-cum-working experience" used in the Government order dated 8.1.1996 runs contrary to the aforesaid decisions earlier rendered by this Court, therefore, on this count also the same is held to be not sustainable at all. Accordingly, the same is liable to be quashed to that extent.
22. Now next question arises for consideration is as to whether the petitioner is entitled for regularisation or not? In order to answer this question it is to be noted here that in paragraph 15 of the main counter-affidavit the statement of fact has been made on behalf of respondents that at present there exist no sanctioned post vacant for regularisation/regular selection of seasonal collection peons, therefore, in absence of vacant sanctioned post the blanket direction for holding regular selection in 50% quota cannot be given rather only this much is to be observed that as and when regular vacancy comes on the post of collection peon the selection may be held in each and every year and while holding such selection the criteria laid down in the Government order dated 8.1.1996 to extent of observation made above and "seniority subject to satisfactory work and conduct" may be strictly adhered to. In case it is found that the petitioner has worked 4 fasli satisfactorily and has not exceed 45 years of maximum age limit by 1st July in the year of selection, he would be considered on the basis of "seniority subject to satisfactory work and conduct". It is also necessary to be noted here that in the counter-affidavit filed on behalf of respondents, there is no indication at all as to whether the work and conduct of the petitioner has ever been found unsatisfactory throughout his whole service career and his services were dispensed with on account of any reasons as indicated in the earlier part of the judgment, therefore, the claim of petitioner cannot be rejected on any other ground which is not available on record. While making his selection on regular basis the period in which he was precluded to be engaged in the service on seasonal post may be treated to have been engaged in aforesaid faslies in which his juniors were engaged by preparing fresh seniority list as indicated in the earlier part of this judgment and in aforesaid seasons he may be treated to be in continuous service. So long as the regular selection is not made on the post in question in aforesaid quota of seasonal collection peons, the petitioner may be given work as seasonal collection peon prior to his juniors engaged as such.
23. Before I proceed to consider another question, it is necessary to point out that engagement of seasonal collection peons for short duration in a year is prevailing practice throughout the State of Uttar Pradesh. Although their engagement depends upon the exigencies of work only on seasonal basis for collection of Government revenue and other dues recoverable as arrears of land revenue but the persons engaged for short duration in the Government job would not feel any job security, therefore, the authorities are also required to examine this aspect of the matter and explore the possibility of ensuring better job security to such seasonal employees by giving them comparatively more working period in their engagement in a season. If it is found feasible the authorities can also limit the excess number of seasonal employees by reducing their strength as warranted by works available for them but it does not mean that Government may reduce the strength of seasonal employees by removing the persons already working in the department rather the efforts should be made to make regular selection of persons already working as seasonal basis and by restricting fresh engagement of the new persons. In this process the working strength of seasonal employees can be reduced to the extent of norms fixed by the Government.
24. Now another question arises for consideration is that seasonal collection peons working for long time if not regularised/given regular selection on any grounds including non-availability of vacancies in their prescribed quota and not holding of selection within 45 years of their maximum age limit what would be their fate. In this connection it is to be noted that in the Government order dated 8.1.1996 there is no indication at all as to what would be the fate of such seasonal collection peons who may become overage on having attained more than 45 years of age as seasonal collection peons. The scheme contained in the aforesaid Government order is very cryptic and does not comprehend the details of other situation like; if such seasonal collection peon becomes unsuccessful in such regular selection or if the selection is not held within their maximum age limit for want of vacancy in the aforesaid prescribed quota or any other justified reason as to whether after attaining 45 years of age, their services would be dispensed with or they would be continue to be engaged on seasonal basis till attaining their age of superannuation upto 60 years and as to whether they would be entitled to get any other service or post retiral benefits. Therefore, it would be desirable to issue some directions to the Government to examine these aspects of the matter and make a time frame scheme in this regard but before I proceed to issue such direction it is to be noted that although the Court is conscious about the ambit/contents and scope of judicial review under Article 226 of the Constitution of India and also restraints and circumspections to be observed by the Court but at the same time Court cannot shut its eyes to the present state of affairs prevailing throughout the State of U.P. vis-a-vis sufferings of people like petitioner and other similarly situated persons who are working as seasonal collection peons since long back and have rendered their valuable services to the State for more than a period of two decades. After 57 years of independence of the country and 55 years of resolution of constituent assembly adopting the Constitution it would not be open to any democratic Government to sit idle and not take care of vulnerable conditions of suffering mass like petitioner and similarly situated other persons working as seasonal collection peons in revenue department throughout the State of Uttar Pradesh for whom the justice, social, economic and political ; equality of status and opportunity and living with dignity are only the dreams and castle in air and could not become reality of life. At this juncture it would be appropriate to refer some provisions of directive principles of State policy contained in Part IV of the Constitution of India. Article 38 of the Constitution of India provides that the State shall strive to promote the welfare of people by securing and protecting as effectively as it may a social order in which justice, social, economic and political, shall inform all the institutions of the national life. The State shall, in particular strive to minimize the inequalities in income, and endeavour to eliminate inequalities in status, facilities and opportunities, not only amongst individuals but also amongst groups of people residing in different areas or engaged in different vocations. Article 39(a) provides that the State shall in a particular, direct its policy towards securing that the citizens, men and women equally, have the right to an adequate means to livelihood ; Article 41 of the Constitution of India provides that the State shall, within the limits of its economic capacity and development, make effective provision for securing the right to work, to education and to public assistance in cases of unemployment, old age, sickness and disablement, and in other cases of undeserved want. Article 43 further provides that the State shall endeavour to secure, by suitable legislation or economic organisation or in any other way, to all workers, agricultural, industrial or otherwise, work, a living wage, conditions of work ensuring a decent standard of life and full enjoyment of leisure and social and cultural opportunities and, in particular, the State shall endeavour to promote cottage industries on an individual or co-operative basis in rural areas. In view of the provisions of Article 37 of the Constitution of India which is also part of directive principle of state policy and contained in Part IV of the Constitution of India, the provisions contained in Part IV of the Constitution of India are not enforceable by any Court, but the principle therein laid down are, nevertheless, fundamental in the governance of the country, and it shall be duty of the State to apply these principles in making laws.
25. In this context I would like to quote certain observations of Supreme Court made in the case of
"712. The Fundamental Rights and the Directive Principles constitute the conscience of our Constitution. The purpose of the Fundamental Rights is to create an egalitarian society, to free all citizens from coercion or restriction by society and to make liberty available for all. The purpose of the Directive Principles is to fix certain social and economic goals for immediate attainment by bringing about a non-violent social revolution. Through such a social revolution the Constitution seeks to fulfil the basic needs of the common man and to change the structure of our society. It aims at making the Indian masses free in the positive sense. Without faithfully implementing the Directive Principles, it is not possible to achieve the Welfare State contemplated by the Constitution.
713. Part IV of the Constitution is designed to bring about the social and economic revolution that remained to be fulfilled after independence. The aim of the Constitution is not to guarantee certain liberties to only a few of the citizens but for all. The Constitution visualises our society as a whole and contemplates that every member of the society should participate in the freedoms guaranteed. To ignore Part IV is to ignore the sustenance provided for in the Constitution, the hopes held out to the Nation and the very ideals on which our Constitution is built. Without faithfully implementing the Directive Principles, it is not possible to achieve the Welfare State contemplated by the Constitution. A society like ours steeped in poverty and ignorance cannot realise the benefit of human rights without satisfying the minimum economic needs of every citizen of this country. Any Government which fails to fulfil the pledge taken under the Constitution cannot be said to have been faithful to the Constitution and to its commitments."
26. In para 1015 of the judgment His Lordship Hon''ble Mr. Justice A.N. Ray (as he then was) pleased to observe as under :
"1015. The Directive Principles are also fundamental. They can be effective if they are to prevail over Fundamental Rights of a few in order to subserve the common good and not to allow economic system to result to the common detriment."
27. In para 2002 of the judgment His Lordship Hon''ble Mr. Justice Y.V. Chandrachud (as he then was) pleased to observed as under :
"2002. Our Constitution aims at brining about a synthesis between ''Fundamental Rights'' and the ''Directive Principles of State Policy'', by giving to the former a pride of place and to the latter a place of permanence. Together, not individually, they form the core of the Constitution. Together, not individually, they constitute its true conscience."
28. At this juncture I would like to quote further few paragraphs of the decision of Apex Court rendered in
"66. An activist Court, spearheading the movement for the development and extension of the citizen''s constitutional rights, for the protection of individual liberty and for the strengthening of the socio-economic fabric in compliance with declared constitutional objectives, will need to move with a degree of judicial circumspection. In the centre of a social order changing with dynamic pace, the Court needs to balance the authority of the past with the urges of the future. As far back as 1939, Judge Learned Hand (52 Harvard Law Review 361 (1939)) observed that a Judge "must preserve his authority by cloaking himself in the majesty of an over-shadowing past ; but he must discover some composition with the dominant needs of his times". In that task the Court must ever be conscious of the constitutional truism that it possesses the sanction of neither the sword nor the purse and that its strength lies basically in public confidence and support, and that consequently the legitimacy of its acts and decisions must remain beyond all doubt. Therefore, whatever the case before it, whatever the context of facts and legal rights, whatever the social and economic pressures of the times, whatever the personal philosophy of the Judge, let it not be forgotten that the essential identity of the institution, that it is a Court, must remain preserved so that every action of the Court is informed by the fundamental norms of law, and by the principles embodied in the Constitution and other sources of law. If its contribution to the jurisprudential ethos of society is to advance our constitutional objectives, it must function in accord with only those principles, which enter into the composition of judicial action and give to it its essential quality. In his perceptive Lectures entitled "The Warren Court : Constitutional Decision as an Instrument of Reform" [Harvard University Press (1968), p. 21)], Professor Archibald Cox pointedly observes :
"Ability to rationalise a constitutional judgment in terms of principles referable to accepted sources of law is an essential, major element of constitutional adjudication. It is one of the ultimate sources of the power of the Court--including the power to gain acceptance for the occasional great leaps forward which lack such justification. Constitutional Government must operate by consent of the governed Court decrees draw no authority from the participation of the people. Their power to command consent depends upon more than habit or even the deserved prestige of the justices. It comes, to an important degree, from the continuing force of the rule of law--from the belief that the major influence in judicial decisions is not fiat but principles which bind the Judges as well as the litigants and which apply consistently among all men today, and also yesterday and tomorrow."
67. There is great merit in the Court proceeding to decide an issue on the basis of strict legal principle and avoiding carefully the influence of purely emotional appeal. For that alone gives the decision of the Court a direction which is certain, and unfaltering, and that particular permanence in legal jurisprudence which makes it a base for the next step forward in the further progress of the law. Indeed, both certainty of substance and certainty of direction are indispensable requirements in the development of the law, and invest it with the credibility which commands public confidence in its legitimacy."
29. This Court while deciding the bunch of Special Appeal in
30. In this context it is also necessary to point out that having regard to the nature of engagement, which is based on subjective approach of the authorities by way of back door entry without publication and advertisement of vacancy prior to such engagement as seasonal collection peons and tenure of engagement and job performed by seasonal collection peons, it would not be appropriate to issue any direction for framing scheme of regularisation of seasonal collection peons as framed for daily wage/muster role employees of various department of the Government of Uttar Pradesh. The Government order dated 8.1.1996 has already made some provisions for filling up 50% vacancies of collection peons by way of selection from amongst the seasonal collection peons which would be sufficient to meet the ends of justice in the manner indicated in the earlier part of this judgment but since the Government order already enforced does not comprehend the situation on attaining the age of 45 years by seasonal collection peons who may be unsuccessful in the aforesaid process of selection or the vacancies for such selection may not occur during the eligibility period of such seasonal collection peons. In this connection it is necessary to observe that Government may frame such scheme providing such seasonal collection peons to continue further even as seasonal collection peons uptill the period they attained the age of superannuation of 60 years or as fixed by the Government the age of superannuation for regular collection peons and other Class IV or Group-D employees of Government of Uttar Pradesh.
31. Now next question arises for consideration as to whether such seasonal collection peons, who may attain the age of 60 years or age of superannuation as fixed by the Government from time to time for such category of employees, would be entitled for any post retiral benefits like any regular employee. In this regard it is necessary to observe that since the matter of post retiral benefits of service and other service conditions are creature of service contract or statutory rules or executive instructions to be issued by the Government from time to time governing the term and condition of service of such class of Government employees, therefore, it would not be proper to accord any such post retiral benefit or other sort of service benefit which is admissible to the regular employee alone, to the seasonal collection peons. However, having regard to the valuable services rendered by such seasonal collection peons to the Government in their whole service career and life it would not be appropriate and just to relieve such seasonal collection peons on attaining their age of 60 years or age of superannuation to return their home with empty hands without any purse and perquisite with them. In this regard it is desirable and necessary for the Government to consider the claim of such seasonal collection peons and accord them some allowances in lump sum as post retiral benefits and allowance otherwise there would be nothing to justify a democratic Government in Welfare State towards its faithfulness and commitments in the Constitution.
32. Thus, in view of observations made above following directions are issued :
(1) The seniority of seasonal collection peons throughout the State of Uttar Pradesh shall be determined on the basis of their first engagement/ appointment as seasonal collection peons in the manner indicated in the body of judgment.
(2) While making regular selection in the 50% prescribed quota of seasonal collection peons the seniority subject to satisfactory work and conduct of seasonal collection peons shall alone be criteria for making such regular selection in the manner indicated in the body of judgment.
(3) So long as regular selection is not made, the petitioner as well as other similarly situated persons may be given engagement on seasonal basis by strictly observing the rule of seniority as indicated in the body of judgment. The senior person should be given first engagement as and when occasion comes in the next fasli and junior person may be given engagement/appointment later on. The engagement of senior person can only be ignored on the grounds mentioned in the body of judgment and not otherwise,
(4) The authorities are directed to consider the feasibility of ensuring better job security to the seasonal employees by enhancing their working period/duration in the season and may also consider to limit numbers of seasonal employees to the extent warranted by works available for them by reducing their strength in the manner indicated in the body of judgment, this is to be done without removing any existing incumbents as indicated in the judgment.
(5) On occurrence of regular vacancy against sanctioned post of collection peons the selection may be held in each and every year without any fail.
(6) The Government is directed to constitute the Committee consisting of Revenue Secretary, Chairman of U.P. Board of Revenue, Finance Secretary and Legal Remembrancer of the Government or their nominee within a period of one month from the date of production of certified copy of this judgment before Secretary, Revenue Department, Government of U.P.
(7) The Committee so constituted is directed to make a time-frame and comprehensive scheme contemplated under this judgment after examining the grievances of seasonal collection peons throughout State of Uttar Pradesh and petitioner as well as other employees'' union chooses to espouse the cause of such seasonal collection peons are permitted to make a comprehensive and detail representation before the Government or Committee and the Committee as well as Government is directed to decide such representation by considering the grievances of seasonal employees within a period of two months from the date of constitution of such Committee.
(8) The Committee is directed to formulate a comprehensive scheme for seasonal collection peons in connection of their engagement, determination of their seniority, the period for which job may be given to them in each year inasmuch as the scheme for their regular selection as indicated in the body of judgment and further necessary provision in connection of their continuance after attaining the age of 45 years and till attaining the age of superannuation as fixed by the Government from time to time to regular employees of such category of post. The Committee is further required to consider a lump sum amount, which may be given to such seasonal collection peons who attains their age of superannuation as fixed by the Government from time to time, as post retiral allowance as indicated in the body of judgment.
(9) The Committee so constituted is directed to submit its report within further period of one month to the Government and employees'' union representing the cause of such seasonal collection peons may be given copy of such report of the Committee within a period of one month after preparation of report and employees union are at liberty to make any further representation before concerned department of the Government and the Government is further directed to consider the report of Committee as well as representation of employees'' union, if made before the Government within a further period of two months and Government is directed to pass reasoned order on the proposal and report of such Committee. The aforesaid exercise may be completed by the Government within a period of six months from the date of production of certified copy of this order to the Secretary of Revenue Department of the Government.
33. The Registrar General of High Court, Allahabad is directed to communicate this order by supplying certified copy of judgment of this Court to the Secretary of Revenue Department of the Government of Uttar Pradesh as well as Chairman of Uttar Pradesh Board of Revenue and Legal Remembrancer of Government of Uttar Pradesh within a period of one month.
3. With the above observations and directions, the writ petition is disposed of finally. There shall be no order as to costs.
