Irshad Ali, J.

1. Heard Sri A.P. Singh, learned Senior Advocate assisted by Sri Amarendra Pratap Singh, learned counsel for the petitioner and learned Additional C.S.C. for the respondent - State.

2. By means of present writ petition, the petitioner has prayed for issuance of a writ, order or direction in the nature of certiorari quashing the impugned order dated 03.09.2009, contained as Annexure-1 to the writ petition with a further prayer for issuance of a writ, order or direction in the nature of mandamus commanding the respondents, particularly, respondent No.2 to consider afresh and appoint the petitioner on the post of Collection Peon under 50% quota by counting the service rendered by him as Seasonal Collection Peon in Tehsil Malihabad, District Lucknow from the due date with all benefits of service.

3. Brief facts giving rise to the present writ petition are as under:

4. Submission of learned Senior Counsel for the petitioner is that the impugned order dated 03.09.2009 has been passed without any rhyme and reason and is malafide in nature and without any authority of law. He submitted that the impugned order is not legally sustainable as respondent No.2 has not computed the service rendered by the petitioner as Seasonal Collection Peon in Tehsil Malihabad, District Lucknow, however, the same is obligatory in view of Rule 15 of U.P. Collection Peon Service Rules, 2004.

5. He next submitted that the impugned order dated 03.09.2009 has been passed on surmises and conjectures and on the basis of imagination. He submitted that the petitioner is entitled for consideration of his claim for regular appointment on the post of Collection Peon under 50% quota by counting the services rendered by him as Seasonal Collection Peon.

6. He further submitted that the persons junior to the petitioner have been considered and appointed on the post of Collection Peon under 50% quota, however, regular appointment has been denied to the petitioner on extraneous consideration.

7. On the other hand, learned Additional CSC submitted that on 03.09.2009, a selection committee was constituted, which considered the cases of Seasonal Collection Peons for selection as Collection Peons and passed the impugned order dated 03.09.2009, which is just and valid.

8. He further submitted that in Tehsil BKT and District Lucknow, there are 29 sanctioned posts of Collection Peons out of which, 18 Collection Peons were working at the time of meeting of the said selection committee. Out of 18 working Collection Peons, one Collection Peon, namely, Sri Rajvir is in jail and 6 Collection Peons are working under the orders of this Court. 12 Collection Peons have been appointed through direct recruitment and one directly recruited Collection Peon, namely, Lt. Sri Pramod Kumar died and on his place, his wife Smt. Pratima Tewari has been granted appointment.

9. He next submitted that under the provisions contained under Rule 5(1) of Rules of 2004, 50% posts of Collection Peons are reserved for Seasonal Collection Amins. Rule 5(ii) provides that recruitment to the posts in service shall be made from amongst such seasonal Collection Peons, who have worked satisfactorily for at least four fasalies and whose age on the first day of July of the year in which selection is made not exceeds 45 years.

10. He further submitted that as per relevant government orders, 3% of the post of sanctioned strength of Collection Peons shall have been kept vacant and accordingly, in Tehsil BKT one post of Collection Peon is kept vacant, therefore, there are 10 vacancies against which selection has to be made.

11. He submitted that the duly constituted selection committee has considered the case of the petitioner for selection on the post of Collection Peon and found that the petitioner had worked for the following period:

He submitted that from aforesaid chart, it is clear that the petitioner has worked only for a period of one year three months and six days in Tehsil BKT. He worked as Seasonal Collection Peon between the period 11-02-1991 and 11-03-1991 for a period of one month and eighteen days in Tehsil Malihabad.

12. He further submitted that the date of birth of the petitioner as mentioned in High School Certificate is 23-03-1977, therefore, at the time when the petitioner started working at Tehsil Malihabad, he was minor and thus, the period of service rendered by him at Tehsil Malihabad cannot be calculated in the working period of the petitioner, therefore, the petitioner has worked for 3 & 1/2 fasali years.

13. In addition to aforesaid, he submitted that even if the said period is also included in the working of the petitioner, the seniority position of the petitioner will not be altered. The post of Seasonal Collection Peon is a Class IV / Group -D post under the service of the State, therefore, the minimum age limit prescribed for Class IV post employees in Group -D Employees Service Rules, 1985 shall be applicable and accordingly, in no manner the services rendered by the petitioner prior to his attaining the age of majority can be taken into account. He submitted that the writ petition being misconceived, is liable to be dismissed.

14. He further submitted that the submission of learned Senior Counsel for the petitioner that persons junior to the petitioner have been considered for regularization is also misconceived. In this regard, he has drawn attention of this Court towards Annexure-CA2.

15. He next submitted that in the final seniority list of Seasonal Collection Peons of Tehsil BKT dated 02.09.2009, name of the petitioner finds place at Sr. No.13 and submitted that the person, namely, Ram Kishore, who is at Sr. No.12 in the said list, has worked more than 01 year 05 months and 01 day than the petitioner and therefore, services rendered by the petitioner even including the services rendered at Tehsil Malihabad i.e. 48 days is less than him, therefore, no benefit can be granted to the petitioner.

16. He lastly submitted that since there are 10 posts of Seasonal Collection Peon and if regular selection on 10 posts is made, the petitioner will not be able to be regularized finding place at Sr. No.13 in the seniority list. He submitted that as per Government Order dated 08.11.2006, which provides criteria for regularization of Seasonal Collection Peons provides that the seniority list of Seasonal Collection Peons shall be prepared on the basis of their working days and it further provides that the meaning of satisfactory service is average 70% recovery in last four fasali years and since case of the petitioner is not covered under the said government order, the selection committee has rightly not recommended the name of the petitioner for regular selection.

17. In rebuttal, on the basis of rejoinder affidavit, submission of learned Senior Counsel for the petitioner is that the services rendered by the petitioner at Tehsil Malihabad has not been taken into account and his candidature has been wrongly rejected by the selection committee. He further submitted that there is no minimum or maximum age limit for engagement of Seasonal Collection Peon. He added that if the services rendered by the petitioner at Tehsil Malihabad are taken into account, it will come to 509 days and on the basis of the same, case of the petitioner is liable to be considered.

18. He further submitted that the petitioner got information through Right to Information Act, 2005 that there are 11 posts of Collection Peon available under 50% quota. He submitted that the statutory rules cannot be overrided by the Government Order and selection of the petitioner should be made on the basis of statutory rules.

19. In reply to submissions advanced by learned Senior Counsel for the petitioner, learned Additional CSC submitted that in the 2nd proviso to substituted Rule 5(ii) of U.P. Collection Peons Service (Second Amendment) Rules, 2016 it is provided that, " ....................... provided further that all the existing vacancies available on the date of commencement of U.P. Collection Peon's Service (Second Amendment) Rules, 2016 shall, only as one time measure, by filled by selection through the selection committee from amongst Seasonal Collection Peons, who possess the requisite qualifications prescribed in clause (ii) ....."

In furtherance of the said provision the final seniority list at the District Level was prepared and published, wherein the petitioner's name finds place at Sr. No.74. He submitted that the petitioner has not filed any objection against the said seniority list, therefore, the same attained finality in the eyes of law.

20. He further submitted that in Clause 2 of Government Order dated 08.09.2010, it has been prescribed that in future no further recruitment on Class-IV post (apart from Technical posts of Junior Category) would be made and all the Class-IV post falling vacant would be filled by out sourcing only. He submitted that a prohibition on all the appointments (except those to be made through Public Service Commission and under order passed by Hon'ble Court) was imposed vide Government Order dated 15.03.2012 with immediate effect. Subsequently, a relaxation from the Government Orders dated 08.09.2010 and 15.03.2012 was provided vide Government Order dated 07.10.2016 regarding recruitment of Seasonal Collection Peons on the post of Collection Peons to be made under regularization quota as provided in U.P. Collection Peon's Service Rules, 2004 as amended in year 2016. Thereafter, a Government Order dated 30.10.2017 was also issued, whereby the age relaxation provided under Government Order dated 30.05.2008 was quashed.

21. Thereafter, the Tehsildars of the District Lucknow sought guidance from the State Government for regularization of Seasonal Collection Peons as Collection Peons vide letter dated 14.03.2018 and a reminder in this regard was also sent on 07.04.2018 and in pursuance thereof, the State Government vide letter dated 13.06.2018 called a meeting on 10.04.2018 under the chairmanship of the Chief Secretary, wherein it was decided that the Seasonal Collection Amit is a Class - IV post and it was provided earlier that the Class - IV posts would be filled by way of out sourcing only. The U.P. Collection Peon's Service Rules, 2016 and Government Order dated 07.10.2016 be quashed and the Class - IV posts be filled in accordance with Government Order dated 08.02.2010.

22. In reply to aforesaid submissions, learned Senior Counsel for the petitioner submitted that regularization of Seasonal Collection Peons is to be made at Tehsil level and not at District level. He submitted that Government of U.P. vide Government Order dated 26.02.2019 has provided that rules continues to be in force and Government Order dated 07.10.2016 continues to hold field and rules cannot be changed by executive orders. He submitted that the State Government vide Government Orders dated 27.02.2019 and 22.02.2019 issued directions for regularization of Seasonal Collection Peons in accordance with rules and granted relaxation in age and the petitioner has not crossed the upper age limit.

23. In reply to aforesaid submissions, learned Additional C.S.C. on the basis of supplementary counter affidavit dated 14.11.2022 submitted that a notification dated 05.10.2016 has been issued by the State Government providing hat 100% regularization of Collection Peons will be made by selection through selection committee as a one time measure and in pursuance thereof, on the basis of recommendations of selection committee, selection of 48 Seasonal Collection Peons has been made on 10.12.2020 and in respect of regularization of 50% Collection Peons under the provisions contained in the rules, the consideration of the same is possible only by the selection committee constituted at district level.

24. He further submitted that the petitioner has worked on different dates and his name finds place at Sr. No.74 in the district level seniority list and in pursuance of Rules of 2016, the proceeding for 100% regularization on 48 posts of Collection Peons has been made and available Seasonal Collection Peons up to Sr. No.62 in the seniority list have been regularized.

25. I have considered the submissions advanced by learned counsel for the parties and perused the material on record.

26. On overall consideration of the matter and on perusal of material on record, it is reflected that from the chart narrated above, it is clear that the petitioner has worked only for a period of one year three months and six days in Tehsil BKT. He worked as Seasonal Collection Peon between the period 11-02-1991 and 11-03-1991 for a period of one month and eighteen days in Tehsil Malihabad. The date of birth of the petitioner as mentioned in High School Certificate is 23-03-1977, therefore, at the time when he started working at Tehsil Malihabad, he was minor and thus, the period of service rendered by him at Tehsil Malihabad cannot be calculated in the working period of the petitioner, therefore, the petitioner has worked for 3 & 1/2 fasali years.

27. Even if the period provided herein above is also included in the working of the petitioner, the seniority position of the petitioner will not be altered. The post of Seasonal Collection Peon is a Class IV / Group -D post under the service of the State, therefore, the minimum age limit prescribed for Class IV post employees in Group -D Employees Service Rules, 1985 shall be applicable and accordingly, in no manner the services rendered by the petitioner prior to his attaining the age of majority can be taken into account.

28. The objection taken by learned Senior counsel for the petitioner that persons junior to the petitioner have been considered and appointed on the post of Collection Peon under 50% quota, it is apparent on perusal of record that in the final seniority list of Seasonal Collection Peons of Tehsil BKT dated 02.09.2009, name of the petitioner finds place at Sr. No.13 and the person, namely, Ram Kishore, who is at Sr. No.12 in the said list, has worked more than 01 year 05 months and 01 day than the petitioner, therefore, services rendered by the petitioner even including the services rendered at Tehsil Malihabad i.e. 48 days is less than him, therefore, there appears to be no irregularity or illegality in the impugned order dated 03.09.2009, contained as Annexure-1 to the writ petition.

29. The writ petition lacks merit and is hereby dismissed.