HIGH COURT OF JUDICATURE AT ALLAHABAD WRIT - A No. - 51282 of 1999 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 Versus Counsel for Petitioner(s) : Sharad Kumar Srivastava, Syed Wajid Ali Counsel for Respondent(s) : C.S.C. Mohammad Suhail .....Petitioner(s) D.M.Allahabad And Others .....Respondent(s) 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 WRIA No. 51282 of 1999 2 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 WRIA No. 51282 of 1999 3 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 WRIA No. 51282 of 1999 4 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 WRIA No. 51282 of 1999 5 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 WRIA No. 51282 of 1999 6 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. September 24, 2026 Shubham Arya WRIA No. 51282 of 1999 7 (Anish Kumar Gupta,J.) Digitally signed by :- SHUBHAM ARYA High Court of Judicature at Allahabad