Allahabad High Court
Mohd. Nadeem Jamal vs Pankaj Kumar And Others on 24 March, 2021
Bench: Manoj Misra, Prakash Padia
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 40
Case :- SPECIAL APPEAL No. - 884 of 2019
Appellant :- Mohd. Nadeem Jamal
Respondent :- Pankaj Kumar And Others
Counsel for Appellant :- Nafees Ahmad,Gautam,Salil Srivastava,Shashi Nandan
Counsel for Respondent :- C.S.C.,G.K. Singh,Indra Raj Singh,Manish Goyal,Samir Sharma,Yashwant Varma
Hon'ble Manoj Misra,J.
Hon'ble Prakash Padia,J.
We have heard learned counsel for the appellant; Sri Ashish Mishra for the respondents 2, 3 and 4; and the learned Standing Counsel for the respondent no.6.
The first respondent filed Writ-A No.41816 of 2005 questioning the order by which his services were dispensed with by the District and Sessions Judge, Saharanpur upon finding that he had been appointed in excess of the vacancy.
The first respondent filed writ petition by claiming that although seven appointments were made against three vacancies but as he was placed at Sl.No.2, even if reservation is applied, there could be no more than one post for reserved category and, therefore, he being at Sl.No.2 should be accorded appointment. The learned Single Judge during the course of hearing of the writ petition filed by the first respondent found it appropriate to direct the first respondent to implead the present appellant and another as respondents 6 and 7.
After service of notice upon the added respondents and upon finding that there was no real dispute that against three sanctioned posts of Stenographer, excess appointments were made and the service of those appointees who were appointed in excess of the sanctioned posts were rightly dispensed with, the learned Single Judge observed:-
"The only issue which remains for consideration is as to whether the writ petitioner, who was second in merit, was entitled to be appointed in preference to respondent nos. 6 and 7, who were at serial no.3 and 4 of the merit list but were members of Scheduled Caste and Other Backward Classes category respectively, or not."
After noticing the issue involved, the learned Single Judge proceeded to observe that out of three posts, the candidate empaneled at Sl.No.1, namely, Sri Vivek Kumar Singh, was not entitled to be disturbed as, admittedly, he was first in the order of merit and in so far as the remaining two posts were concerned, consideration had to be accorded to three persons, namely, the writ petitioner (Pankaj Kumar) and the respondents 6 and 7, namely, Ashok Kumar and Mohd. Nadeem Jamal (the appellant herein).
After examining the aforesaid issue, the learned Single Judge while passing the order impugned in this appeal held that the interest of justice would be served by requiring the District Judge Saharanpur to examine the issue of reservation against the advertised posts in the light of Act No.4 of 1994 and the roster provided therefor, after affording opportunity of hearing to the writ petitioner, Ashok Kumar and Mohd. Nadeem Jamal (the present appellant).
It appears from the counter affidavit that pursuant to the impugned judgment and order dated 17.05.2012 the appellant was heard by the Officer Incharge, Administration/Additional District Judge, Court No.2, Saharanpur and a report dated 21.08.2012 was submitted recommending three names for appointment on the post of Stenographer and the services of the rest being in excess of the vacancy was recommended for termination.
Sri Ashish Mishra, who has appeared for the High Court, has informed the Court that the appellant after being not selected pursuant to the order of this Court dated 17.05.2012 has filed a separate petition, namely, Writ-A No.46033 of 2012, therefore this special appeal is not maintainable as the order dated 17.05.2012 has already been implemented.
The learned counsel for the appellant has submitted that Writ-A No.46033 of 2012 was dismissed by order dated 09.02.2015 under the assumption that it had become infructuous. However, he has filed a restoration application.
Be that as it may, once the appellant has participated in the hearing pursuant to the impugned order passed by the learned Single Judge, the appellant has no right to question the correctness of the said order more so, because, the order only directs the District Judge concerned to examine the issue of reservation against the advertised posts in the light of Act No.4 of 1994 and to take a decision accordingly. In case the appellant is aggrieved by the decision taken thereafter, the appellant can challenge that decision. As the appellant has already challenged that decision in Writ-A No.46033 of 2012, the appropriate course for the appellant is to press the said writ petition, if so advised. The appeal is consequently dismissed without prejudice to the right of the appellant to pursue his Writ-A No.46033 of 2012.
Order Date :- 24.3.2021/AKShukla/-
