IN THE HIGH COURT OF UTTARANCHAL AT NAINITAL WRIT PETITION NO. 3197 (SS) OF 2001 Pooran Nath Goswami, S/o Sri Narain Nath Goswami, R/o Village and Post Office – Dangoli, District – Bageshwar. …………….Petitioner. Versus 1. The State of Uttaranchal through Secretary, Ministry of Revenue, Dehradun. 2. The Commissioner, Kumaun Division, Nainital 3. The District Magistrate, Pithoragarh. 4. The District Magistrate, Bageshwar. ……………Respondents. & WRIT PETITION NO. 1252 (SS) OF 2001 Pooran Nath Goswami, S/o Sri Narain Nath Goswami, R/o Village and Post Office – Dangoli, District – Bageshwar. …………….Petitioner. Versus 1. The District Magistrate/Collector, Bageshwar, 2. The Up-Ziladhikari Bageshwar, District Bageshwar. 3. The Tehsildar Bageshwar, District – Bageshwar. 4. Shri Laxman Singh Deo, S/o Shri Ghagi Chandra Singh, R/o Village Kunwari, District Bageshwar at present 2 posted as Patwari, Patti Chhetra Nandigaon, District Bageshwar. ……………Respondents. Dated: 08.08.2006 Hon’ble Rajesh Tandon, J. Heard Sri C.D. Bahuguna, Advocate for the petitioner and Standing Counsel for the respondents. 2. By the present writ petitions, the petitioner has prayed for a writ of mandamus commanding the respondents to treat the petitioner in the continuous service of the department on the post w.e.f. 16.1.1999 when his services were illegally terminated by the department authorities. 3. Briefly stated, in the year 1995, the District Magistrate, Almora wrote a letter to the Board of Revenue, U.P., Allahabad asking for approval of appointment of 20 posts of Patwari for District Almora and after obtaining approval from the Board of Revenue, U.P. Lucknow, the District Magistrate, Almora issued a notification, notifying 20 vacancies for the post of Patwari in the notice board and also advertised the vacancy of the said posts. 4. After notification of vacancies of the posts of Patwari about 2700 candidates appeared in Patwari School Examination in the month of September, 1995. The said examination was conducted by the District Authority under the supervision of the District Magistrate, Almora. 5. According to the case of the petitioner, on 28th October, 1995 physical test of 254 candidates was conducted. 3 Out of which, only sixty candidates could qualify and the petitioner was one of them. 6. Thereafter, interview of sixty candidates was conducted on 29.10.1995 out of which twenty candidates were selected for Patwari Training by the Board. The aforesaid Board consists of following:- (i) District Magistrate, Almora. (Chairman) (ii) C.D.O., Almora (Member) (iii) D.I.O.S. Almora (Member) (iv) Deputy Director Soil Conservation Almora, a Scheduled Caste Officer (Member) (v) Principal, Polytechnic Centre, Almora (Member) (vi) Statistical Officer, Almora. (Member) (vii) S.D.M. (LRO) Almora. (Member) (viii) S.D.M. (Sadar), Almora. (Member) (ix) Tehsildar, Almora (Member) (x) Senior Administrative Officer Sri B.C. Joshi. (Member) 7. On 8th January, 1996, the District Magistrate issued a list of candidates, who qualified in the Patwari Examination and the selected candidates were called for Patwari Training on 15.01.1996. 8. In pursuance of the aforesaid order, the petitioner went to Special Patwari Training School, Almora on 15.01.1996 for getting Patwari Training. The petitioner remained in training from January 15, 1996 till 30th December, 1996 i.e. for a period of about 12 month. During the course of training 4 various subjects were given to the trainees for passing the same. 9. The petitioner passed the physical training course and also secured good qualifying marks in the written examination. The result of the aforesaid examination was declared in January, 1997. 10. On completion of one year training, the petitioner became entitled for appointment as Patwari. He was appointed as Patwari on 23/26.12.1998 in Patwari Circle Kanda, District Bageshwar and joined the same day. 11. However, on 16.11.1999, services of the petitioner were terminated by order of the District Magistrate. The name of the petitioner stands at Serial No. 7 in the Final List. 12. The petitioner has submitted that since his appointment was made in accordance with the Lekhpal Service Rules, 1950 and after notifying the vacancy, it was not liable to be terminated without following the procedure of termination. Thereafter, by order dated 04.11.2000, the District Magistrate, Nainital and Pithoragarh were directed to appoint the petitioner on the post of Patwari. 13. In pursuance of the aforesaid order, the petitioner was appointed by the District Magistrate, Nainital on the post of Patwari at Dhari Circle in District – Nainital and he joined the said post in February, 2001. 14. The grievance of the petitioner is that since his services were illegally terminated by the District Magistrate, 5 Bageshwar on 16.11.1999, therefore, he is legally entitled to be treated to be in continuous service w.e.f. 16.11.1999 and for arrears of his salary w.e.f. 16.11.1999. The petitioner has further submitted that he deserves to be appropriately placed in the seniority list treating him to be in continuous service w.e.f. 16.11.1999 till the date of his re-instatement in the service, but he has yet not been considered for the same. 15. In the present case, a counter affidavit has been filed by the State. In paragraphs 6, 8, 14 and 17, it has been admitted that the petitioner was appointed on 23.12.1998 on temporary basis. The said paragraphs are quoted below:- “6. That the contents of para 10 of the writ petition as stated are wrong and not admitted. In reply it is most respectfully submitted that on 23.12.98 the petitioner was appointed on temporary basis against the post which was vacant due to the reason that the originally appointed Patwari Sri Ram Dutt Pandey was ordered to look after the work of Kanoongo for the certain period and as soon as the work of Ram Dutt Pandey is finished and he came back to hi post the appoint of the petitioner from the said temporary post has automatically came to an end. 8. That the contents of para 12 of the writ petition as stated are not admitted the detailed reply in this regard his already given in the preceding paras of this affidavit. However, it is stated that the post of Patwari against which the petitioner was appointed was not substantial post but was vacant for some limited period only. 14. That the contents of para 18 of the writ petition is highly misleading the true facts is that in the year 1996 6 the seniority list of trained patwari as per the result declared relates to the District Nainital in which his seniority is at serial no. 7 and in district Almora now the said district has been divided in two districts i.e. Almora & Bageshwar and the petitioner is a resident of erstwhile District Almora and his native place does not come within district Bageshwar. 17. That the contents of para 23 of the writ petition it is stated that as the petitioner has been appointed as Patwari at Dhari Circle, District–Nainital, the petitioner cannot get the benefit of previous appointment (purely on the temporary basis) in District Bageshwar. However, no junior to the petitioner has been posted in the District Bageshwar expect to those regarding whom the Hon’ble Court has pass the order or direction.” 16. Petitioner has referred the judgment of Allahabad High Court in Writ Petition NO. 31010 of 1999 Laxman Singh Vs. District Magistrate, which is Annexure No. 1 to the Rejoinder Affidavit, where similar controversy arose and by order dated 21.07.1999, one Laxman Singh who was terminated was set-aside on 24.04.2000 in the said writ petition No. 31010 of 1999. Operative portion of the aforesaid order is quoted below:- “This writ petition succeeds and is allowed. The order dated 21.7.1999 passed by District Magistrate, Bageshwar dismissing the petitioner from service, Annexure -1 to the writ petition, is quashed with all consequential benefits of service of the petitioner. The respondents are directed to reinstate the petitioner in service on the post of Patwari and pay his entire arrears of salary within two months from the date a certified copy of this order is served upon respondent no. 1.” 7 17. In the present case, after the termination dated 16.11.1999, further an order was passed on 04.11.2000 by which the petitioner was permitted to continue. The same is quoted below:- “la[;k %& tuin uSuhrky o fiFkkSjkx<+ esa fjDr iVokjh inksa ij tuin vYeksM+k ls o”kZ 1996 esa iVokjh izf’k{k.k izkIr vH;fFkZ;ksa dks fu;qfDr fn;s tkus ds lacU/k esaA egksn;%& mijksDr fo”k;d vkids la[;k 50@lkr&lewy@1999&2000] fn0 28 vxLr 2000 ,oa i= la[;k j&11614@lkr&20@1999&2000] fn0 16 vDVwcj 2000 ls izkIr tuin esa vYeksM+k ls o”kZ 1996 ls iVokjh izf’k{k.k izkIr fuEufyf[kr vH;fFkZ;ksa ds uke bl vk’k; ls izsf”kr fd;s tk jgs gSa fd d`i;k bUgsa vius tuin esa fjDr iVokjh inksa ij fuEukuqlkj vkj{k.k uhfr;ksa dk vuqikyu lqfuf’pr djrs gq, fu;qfDr iznku djus dk d”V djsaA dz0 la0 uke vH;FkhZ tuin dk uke 1- Jh iwju ukFk xksLokeh ¼fiNM+h tkfr½ uSuhrky 2- Jh izdk’k pUnz vuq0 tkfr fiFkkSjkx<+ 3- Jh y{e.k flag nso lkekU; oxZ fiFkkSjkx<+ 4- Jh mes’k pUnz flag lkekU; oxZ fiFkkSjkx<+ 5- Jh Hkk”dj tks’kh lkekU; oxZ fiFkkSjkx<+ 6- Jh /kufxjh xksLokeh fiNM+h tkfr fiFkkSjkx<+ 18. If the petitioner has already been given joining in pursuance of the selection made in the year, 1997 in respect of vacancy with regard to 20 posts of Patwari, District Almora and the petitioner was one of the candidate, who was declared to have been selected in the select list prepared by the District Magistrate on 8th January, 1996, after qualifies the Patwari test in accordance with the rules framed i.e. Lekhpal Rules, there is 8 no occasion to give break to the petitioner in the service from 1999 to 2000 i.e. between 16.11.1999 to 04.11.2000. 19. In view of the above, the matter is sent back to the District Magistrate, who shall consider the claim of the petitioner in accordance with the observations made above as well as in the light of the judgment of the Allahabad High Court dated 24.04.2000 in Writ Petition NO. 31010 of 1999 within a period of three months from the date of presentation of the certified copy of this order. WRIT PETITION NO. 1252 OF 2001 (SS) 20. In view of the fact that the petitioner has been permitted to continue, the order passed in Writ Petition No. 1252 of 2001 has already become infructuous. However, since the matter has been sent back to the District Magistrate, for reconsidering the order dated 116.11.1999 in view of the subsequent order dated 04.11.2000 by which the petitioner has been permitted to continue, it will be open for the respondent to pass the appropriate order in the light of the judgment of W.P. NO. 31010 of 1999. 21. Subject to above, both the writ petitions are disposed of. No order as to costs. (Rajesh Tandon, J.) 08.08.2006 Rathour