Allahabad High Court
Sanjay Kumar Singh vs State Of U.P. And Others on 11 May, 2012
Bench: Syed Rafat Alam, Chief Justice, Vikram Nath
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Chief Justice's Court
Case :- SPECIAL APPEAL No. - 766 of 2012
Petitioner :- Sanjay Kumar Singh
Respondent :- State Of U.P. And Others
Petitioner Counsel :- Hemant Kumar,Ashok Khare,Shrawan Kumar Ojha
Respondent Counsel :- C.S.C.,I.P. Srivastava
Hon'ble Syed Rafat Alam,Chief Justice
Hon'ble Vikram Nath,J.
This is an intra-court appeal arising from the order of the learned Single Judge dated 02.04.2012 dismissing the Writ Petition No. 4904 of 2003 filed by the appellant along with two others.
Pursuant to this Court's order dated 27.04.2012, a short counter affidavit has been filed on behalf of the State, wherein it has been stated that the selection was made under the provisions of the U.P. Group 'D' Employees Service Rules, 1985 (hereinafter referred to as the 'Rules'), as amended from time to time. It has also been stated that as per Rule 19 of the Rules, the vacancies were advertised in the newspaper and names were also called from the Employment Exchange. In the advertisement, it was not indicated that any preference will be given to the person who had earlier worked as daily wager. However, the candidate was required to furnish a certificate in case he had worked earlier. It has also been stated in the said affidavit that the candidature of the appellant along with others was duly considered but since the appellant could not compete with the other selected candidates, thereofre, he was not selected. In respect of respondent no. 6 - Suresh Chandra Dwivedi and respondent no. 13 - Gulab Kumar, it has been disclosed in the said affidavit that they were earlier working on daily wage basis/evagi basis. It has also been stated that Suresh Chandra Dwivedi - respondent no.6 had worked for about seven years and was ultimately selected under the general category, whereas respondent no.13 - Gulab Kumar had worked for 539 days and was selected under the Scheduled Caste category. It has also been stated that the appellant was engaged for 476 days only and, thus, he was not found successful by the Selection Committee and, thus, not given the appointment.
Shri Ashok Khare, learned Senior Counsel appearing on behalf of the appellant vehemently contended that the State respondents have not disclosed as to how the preference was given in terms of Government Order dated 30th November, 2002. His contention is that the manner in which the preference was given ought to have been disclosed.
On the other hand, learned Standing Counsel submits that the selection was made in the year 2002 and in the absence of any statutory provision providing for any preference, the appellant cannot claim such preference as a matter of right. Besides that, it is submitted that none of the candidates having lesser marks or lesser experience who were working as daily wagers/casual labour, has been given preference over the appellant and, therefore, the learned Single Judge has rightly dismissed the writ petition.
We have considered the submissions and are of the view that the benefit of Government Order dated 30th November, 2002, which provides for giving preference, could only be extended and claimed by a candidate if the other things amongst the candidates are found equal. In the case in hand, it is not the case of the appellant that any person having secured marks equal to the marks secured by the appellant have been given appointment denying the weightage of preference to the appellant.
Besides that, admittedly, the earlier selection of the appellant as daily wager/evagi basis was not on merit and, therefore, in our view, giving any weightage to the appellant would be violative of Article 14 of the Constitution of India, except that if everything is found equal, then preference is to be given to the candidate having experience of working.
In view of above, we do not find any error in the order of the learned Single Judge. The appeal, being without merit, is dismissed.
Order Date :- 11.5.2012
AHA
(Vikram Nath, J.) (S.R. Alam, C.J.)
