Mandhata Sharma vs State Of U.P. & Others
2011 Latest Caselaw 4610 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 2
 

 
Case :- WRIT - A No. - 40702 of 2011
 

 
Petitioner :- Mandhata Sharma
 
Respondent :- State Of U.P. & Others
 
Petitioner Counsel :- Smt. Komal Khare,Somesh Khare
 
Respondent Counsel :- C.S.C.
 

 
Hon'ble Sudhir Agarwal,J.

1. The petitioner Mandhata Sharma aggrieved by the order dated 27th June, 2011 passed by District Magistrate, Budaun has filed this writ petition under Article 226 of Constitution of India seeking a writ of certiorari for quashing the said order and has also sought a mandamus directing respondent No.3 to permit the petitioner to work as Block Coordinator, Block Asafpur, District Badaun.

2. I have heard Sri Somesh Khare, learned counsel for the petitioner and Sri M.C.Chaturvedi, learned Chief Standing Counsel assisted by Sri C.S.Singh, learned Additional Chief Standing Counsel for respondents No.1 to 4 (hereinafter referred to as the "official respondent"). None appeared on behalf of respondent No.5. Office report dated 5.9.2011 with respect to service on respondent No.5 has been perused. RPAD sent to respondent No.5 has neither returned undelivered nor acknowledgement received back. The petitioner has also filed an affidavit stating that he tried to serve respondent No.5 personally but he refused. Under the Rules, service on respondent No.5 is deemed sufficient.

3. With the consent of learned counsel for the parties, I proceed to decide the matter finally at this stage under the Rules of the Court.

4. An advertisement was issued by the official respondents vide advertisement No.Sa.Bha.Mi/1227/2010-11 dated 11.8.2010 for appointment of 4 (four) District Coordinator and 18 (eighteen) Block Coordinator on contract basis for a period of 11 (eleven) months inviting applications from eligible persons. The candidates were required to mention clearly on the envelope, the post, district and name of the Block for which they are applying. The selection was to be made by Block Public Education Committee.

5. The petitioner was interviewed by the said Committee but not appointed for Block Asafpur. The respondent No.5 Sri Pal was appointed hence the petitioner filed writ petition No.26075 of 2011, which was disposed of vide judgment dated 10.5.2011 directing Collector to look into the grievance of the petitioner and pass appropriate order. Pursuant thereto the Collector passed the impugned order rejecting representation of the petitioner observing that Selection Committee having found that petitioner lacked knowledge of computer therefore his candidature was not considered. The relevant part of the order passed by Collector is reproduced as under:

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6. Learned counsel for the petitioner submitted that petitioner possessed computer awareness certificate issued by Laxmi Narayan Gramo Udyog Development Society, Bisauli registered with U.P. Administration, Government of U.P. and respondent No.5, who has been selected also possessed the same certificate of the same institute but he has been appointed while the petitioner has been rejected allegedly only on the ground that he lacked knowledge of computer, which shows that proceedings conducted by the respondents are patently illegal.

7. Considering the above submission, this Court issued an order on 23rd August, 2011 directing the respondents No.1 to 4 to file reply stating in what manner computer knowledge of candidates was examined by Selection Committee and they were also directed to produce relevant record before this Court.

8. The respondents, pursuant to the said order, appeared with record and had also filed a counter affidavit sworn by Sri Chandra Kant, Chief Development Officer, Badaun. It says that advertisement provides that candidates must possess knowledge of computer operation. Pursuant to the advertisement, 104 applications were received and after scrutiny 79 candidates were found eligible which included the petitioner. The interview letters were issued to the eligible candidates but only 64 actually appeared for interview on 12th January, 2011. The selection was held by a Committee consisting of Chief Development Officer, Badaun as Chairman. Sri Rajendra Pal, Senior Lecturer, District Institute of Education & Training, Badaun and Secretary, District Public Education Committee, Badaun i.e. District Basic Education as members. As a Special invitee, District Informatics Officer was also present at the time of interview. All the candidates were awarded marks separately by the Committee members (District Informatics Officer excluded) and thereafter average marking for each candidate was calculated. Based thereon, 18 persons were selected and the name of the petitioner was kept in waiting list for Block Asafpur. A select list as well as waiting list prepared by the Committee has been placed on record as Annexure C.A.5 which also contains an endorsement said to have been prepared by Dr. O.P.Rai, Secretary, District Public Education Committee wherein para 4 he said that such candidates who lacked computer knowledge after being examined by District Informatics Officer, NCC were not placed in the merit list.

9. The said list was approved by District Magistrate and thereafter appointments were made. The record of entire selection was also produced for perusal of this Court. In the entire record there was no document to show anything rejecting any candidate on the basis of his knowledge about computer operations. This fact may have been taken into consideration by the members of Selection Committee while awarding marks given to each candidate as is evident from the original record but it is clear that the entire record contains nothing to disclose anything about assessment of a candidate regarding his knowledge of computer operations.

10. When confronted this fact, learned Additional Chief Standing Counsel appearing for the respondents tried to refer to the endorsement made by Dr. O.P.Rai, Secretary that the candidates who lacked computer knowledge as examined by District Informatics Officer were not placed in the merit list. Admittedly there is nothing on record at least to show as to who those candidates were. When these facts were tried to be enquired from the Chief Development Officer, Chairman of the Committee, who was present in the Court, he tried to make certain statements which were not consistent with the stand taken by the respondents in the counter affidavit. In these circumstances, with the consent of learned counsel for the respondents, his statement had to be recorded by the Court on 13.9.2011 wherein he said as under:

The interview was held on 12th January, 2011. I am not sure how many copies of selection proceedings were prepared but most probably one copy was prepared. The custodian of the record was B.S.A.. B.S.A. did not take any action thereafter. On 13th January, 2011, the document, which was sent to the District Magistrate is Annexure C.A.5 and not Annexure C.A.7. The list was directly sent to District Magistrate by B.S.A. and it was not made available to me and does not contain my signature. This list of selected candidates (main list and waiting list) was signed by B.S.A. himself and presumably he summoned Mr. Rajendra Pal, Senior Lecturer, DIET though he is not posted in the office of B.S.A. The record does not contain any document to show which candidate possess knowledge of computer or not. The so called assessment of District Information Centre official has not been noticed anywhere in the record. The District Magistrate himself summoned the selected candidate as well as non appointed candidate and himself enquired into the fact whether they have knowledge of computer or not. Mr. Amit Gupta was the District Magistrate.

(emphasis by Court)

11. Once it is admitted that there is nothing on record to show that any candidate was specifically rejected on account of lack of knowledge about computer operations particularly, it is evident that reason assigned by District Magistrate in the impugned order by rejecting representation of the petitioner is palpably false, incorrect and perverse. It appears that District Magistrate did not apply his mind at all while rejecting representation of the petitioner, to the material on record, and has passed the order blindly without even going through the record.

12. At this stage learned counsel for the respondents submitted that District Magistrate passed the order after receiving instructions from the District Basic Education Officer, who was the Secretary of the Selection Committee.

13. If that be so, it is evident that the said officer also not only misdirected himself but misled the District Magistrate in giving this information about the present petitioner. The illegality on the part of the official respondents is further writ large from the fact that the petitioner has been placed second in merit list for Block Asafpur and that is why the person who secured higher marks has been shown in the list of selected candidates while the petitioner has been kept in waiting list. Keeping the petitioner in waiting list means that he was not rejected. Therefore the reason assigned for passing the impugned order looses ground and it demonstrates unfortunate manner in which this matter has been dealt with by the District Magistrate. Annexure CA-1 shows that for block Asafpur, there were four candidates namely the petitioner, respondent No.5, Neelesh Yadav and Sanjeev Kumar Sharma. Out of four, one Neelesh Yadav remained absent in interview. The petitioner secured in all 17.33 marks while respondent No.5 secured 18.67 marks. Accordingly, respondent No.5 was placed in the list of selected candidate while the petitioner was shown in the waiting list. There is nothing mentioned about assessment of candidate about his knowledge of computer operations. The list contains 79 names which included 15 absentees.

14. This is really unfortunate that officers holding such a responsible position like District Magistrate do not care to apply mind with concentration and seriousness and pass order assigning reasons which are not borne out from the record at all and are apparently perverse. Had the District Magistrate perused mind himself in this matter with more care and caution, probably this litigation could have been avoided. If the petitioner would have been informed of correct reason about his non selection, this Court would not have been burdened with this writ petition which has taken sufficient time due to sheer unmindful and reckless action of the respondent authorities. The impugned order as such cannot stand and has to be set aside.

15. However, by itself it does not mean that petitioner can be appointed on the post of Block Coordinator. Having gone through the record and pleadings, what transpire is that for the post of Block Coordinator, candidates applying for the particular block were considered block-wise. This is evident from Annexure-1 and 5 to the counter affidavit, if read together. There are 18 blocks for which applications were invited. The names of Blocks, the number of candidates who applied and those who actually attended interview are as under:

Sl.No.

Name of Block

Number of candidates called for interview

No. of candidates attended interview

1.

Salarpur

2.

Dataganj

3.

Mayau

4.

Bisauli

5.

Wazirganj

6.

Asafpur

7.

Islamnagar

8.

Junawai

9.

Dahgawan

10.

Sahaswan

11.

Gunnaur

12.

Rajpura

13.

Usawan

14.

Samrer

15.

Qadarchowk

16.

Ambiyapur

17.

Jagat

18.

Ujhani

Total

16. In the respective blocks, candidates who have secured highest marks have been placed in the select list for that block and the next candidate, if any, has been placed in the waiting list. That is how the select list has been prepared.

17. Learned counsel for the petitioner tried to challenge the selection on the ground that one Bhagwan Singh is at serial No.18, secured 16.67 marks but has been selected while the petitioner has been kept in waiting list. However, Sri Bhagwan was considered for block Bisauli while the petitioner was the candidate for block Asafpur and therefore there is no comparison. Considering the matter from this angle I do not find any apparent irregularity in the selection of respondent No.5 and appointment as Block Coordinator for the Block Asafpur.

18. This litigation could have been avoided if the District Magistrate would have passed the order on the petitioner's representation in correct perspective and assigning proper reason but for the reasons better known to him, he chose to mention something in his order which was ex facie perverse i.e. nonest, on account whereof this Court had to summon the respondents and this writ petition took sufficient time of this Court in examining the matter which has resulted in a situation that though the order passed by District Magistrate is patently illegal and vitiated, based on nonest fact and reason, selection as such of respondent no.5, is unspoiled, warrants no interference.

19. For the fault on the part of District Magistrate, and as stated by Chief Development Officer since District Basic Education Officer informed the District Magistrate for assigning the reason in the impugned order, the petitioner has to unnecessarily trouble himself in filing this writ petition and has suffered monetary loss as well as sheer harassment. The writ petition therefore is disposed of in the following manner:

I.The order dated 27.6.2011 passed by District Magistrate, Badaun is hereby quashed. The selection of respondent No.5 on the post of Block Coordinator for Block Asafpur however, warrants no interference since no illegality has been found therein.

II.The petitioner since has suffered this avoidable litigation only for the recklessness and unmindful order passed by District Magistrate, he is entitled for cost, which I quantify to Rs.20,000/- against respondents No.1 to 4.

III.The cost shall be paid at the first instance by respondent No.1 but it shall have liberty to recover the same from the concerned official(s) who passed the impugned order and the persons further found responsible in getting the said order passed; after making such enquiry as permissible in law.

Order Date :- 14.9.2011

KA