Nov - High Court of Judicature at Allahabad
Nov - High Court of Judicature at Allahabad
Nov - High Court of Judicature at Allahabad
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3 All] Vinay Kumar Upadhyay V.St<strong>at</strong>e <strong>of</strong> U.P. and others 1037<br />
Counsel for the Petitioner:<br />
Sri Ashok Trip<strong>at</strong>hi<br />
Sri N.L. Srivastava<br />
Counsel for the Respondents:<br />
Sri D.K. Trip<strong>at</strong>hi<br />
Sri P.C. Shukla<br />
S.C.<br />
U.P. Collection Peon Service Rule-2004-<br />
Rle-5-Substantive appointmentpetitioner<br />
was denied as not achieved<br />
70% target <strong>of</strong> collection during four<br />
fasli-fasli means an year e.g. Ravi and<br />
Kharif-while petitioner has been<br />
awarded s<strong>at</strong>isfactory collection in four<br />
fasal-moreover for lessure collection<br />
peon can not be held directly<br />
responsible-order quashed-direction for<br />
reconsider<strong>at</strong>ion issued.<br />
Held pare 13<br />
Besides, the rule also required<br />
"s<strong>at</strong>isfactory service" in the "last four<br />
Fasals" and not "Fasali". The distinction<br />
between a "Fasali" and "Fasal" has been<br />
considered by this <strong>Court</strong> in Mithlesh<br />
Kumar and another Vs. St<strong>at</strong>e <strong>of</strong> U.P. and<br />
others, 2008 (2) ESC 1332 and this <strong>Court</strong><br />
held as under:<br />
"This <strong>Court</strong> finds th<strong>at</strong> though in the<br />
Rules one has to show his average<br />
recovery <strong>of</strong> <strong>at</strong> least 70% in the last four<br />
Fasals but the chart was submitted by<br />
Tahsildars not based on the Fasals but<br />
Fasalis i.e. the year which includes both<br />
the Fasals namely, Ravi and Kharif. The<br />
Selection Committee was also aware <strong>of</strong><br />
this fact th<strong>at</strong> it has to consider recovery<br />
performance <strong>of</strong> last four Fasals but<br />
thereafter it has clearly erred by not<br />
confining to consider performance with<br />
respect to recovery in last four Fasals but<br />
has taken the aforesaid chart to be<br />
correct without noticing the fact th<strong>at</strong> the<br />
chart (Annexure-CA-2) was prepared on<br />
the basis <strong>of</strong> last four Fasalis and not on<br />
the basis <strong>of</strong> last four Fasals. One Fasali<br />
year has more than one Fasal. It is not<br />
the entire Fasali year but last four Fasals<br />
performance ought to have been<br />
considered by the Selection Committee.<br />
It has considered performance <strong>of</strong> the<br />
candid<strong>at</strong>es beyond the period for which<br />
it is provided under Rule 5(1) <strong>of</strong> 1974<br />
Rules."<br />
Case law discussed-<br />
2008(2)ESC 1332, Special Appeal No. 294 <strong>of</strong><br />
2008, Manbodh Vs. St<strong>at</strong>e <strong>of</strong> U.P. and others<br />
connected with Special Appeal No. 398 <strong>of</strong><br />
2008.<br />
(Delivered by Hon'ble Sudhir Agarwal, J.)<br />
1. Heard Sri N.L. Srivastava, learned<br />
counsel for the petitioner and learned<br />
Standing Counsel appearing for<br />
respondents no. 1 to 3. The respondent no.<br />
4 was issued notice by registered post<br />
pursuant to this <strong>Court</strong>'s order d<strong>at</strong>ed<br />
13.10.2008. As per the <strong>of</strong>fice report the<br />
notice through registered post/AD sent on<br />
17.10.2008 and the <strong>of</strong>fice report d<strong>at</strong>ed<br />
13.07.2009 shows th<strong>at</strong> notice has been<br />
received unserved with post <strong>of</strong>fice report<br />
"refused". In the circumstances the<br />
service <strong>of</strong> notice is deemed sufficient.<br />
Neither any counter affidavit has been<br />
filed on behalf <strong>of</strong> respondent no. 4 nor<br />
any one has put in appearance on his<br />
behalf. Respondents no. 1 to 3 have filed<br />
counter affidavit and supplementary<br />
counter affidavit. Petitioner has also filed<br />
rejoinder affidavit and, therefore, as<br />
requested and agreed by learned counsels<br />
for the parties, this writ petition has been<br />
heard and is being decided finally <strong>at</strong> this<br />
stage under the Rules <strong>of</strong> the <strong>Court</strong>.<br />
2. By means <strong>of</strong> the present writ<br />
petition the order d<strong>at</strong>ed 03.10.2007 passed<br />
by the District Magistr<strong>at</strong>e, Sant Ravidas<br />
Nagar (Bhadohi) has been assailed<br />
whereby the represent<strong>at</strong>ion <strong>of</strong> petitioner<br />
against his supersession/non selection for<br />
substantive appointment on the post <strong>of</strong>