Kamlesh Yadav vs State Of U.P. Through Chief ...
2022 Latest Caselaw 8636 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 6
 

 
Case :- WRIT - A No. - 6453 of 2010
 

 
Petitioner :- Kamlesh Yadav
 
Respondent :- State Of U.P. Through Chief Secy.Govt.Of U.P. Lucknow And Ors.
 
Counsel for Petitioner :- Jitendra Narain Mishra
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Irshad Ali,J.

1. Heard learned counsel for the petitioner and learned A.C.S.C. for the respondent - State.

2. By means of present writ petition, the petitioner has prayed for issuance of writ of mandamus commanding the opposite parties to grant relaxation in height eligibility by 1.6 c.m. to the petitioner and permission to appear in interview for appointment on the post of Assistant Operator in accordance with the un-amended U.P. Radio Subordinate Service Rules, 1982 (for short, "Rules of 1982").

3. The petitioner underwent two years specialized Wireless Mechanic-cum-Operator Training from U.P. Police I.T.I. He secured 83.85% marks in the said training. An advertisement was issued on 07.09.2001 for appointment on the post of Assistant Operator and a vacancy for 890 posts was advertised. A corrigendum was issued on 12.09.2001 with regard to the said advertisement.

4. The petitioner applied for the appointment to the post of Assistant Operator. In the advertisement, no relaxation was provided to the posts of Assistant Operator who possess training certificate in the specialized courses of Wireless Mechanic-cum-Operator, therefore, several writ petitions were filed along with leading Writ Petition No.6866 (S/S) of 2001, wherein direction was issued to the respondents to keep 7 posts vacant and it was observed that they may issue letter to the petitioner to appear in the interview.

5. Similar order was passed in Writ Petition No.6865 (S/S) of 2001. Writ Petition No.1027 (S/S) of 2001 assailing the advertisement dated 07.09.2001 and corrigendum dated 12.09.2001 was filed to the extent that merit list of the candidates to be called for interview shall be prepared on the basis of marks obtained in high school examination or equivalent examination.

6. In Writ Petition No.7173 (S/S) of 2001, an interim order was passed directing that all those candidates who had applied for appointment on the post of Assistant Operator and possess Industrial Training Institute Certificate from U.P. Police Industrial Training Institute, shall be called for interview. Call letter was issued to the petitioner requiring him to appear in physical test and interview. In the advertisement, 171 vacancies were advertised.

7. Some of the candidates filed Writ Petition No.5810 (S/S) of 2004 challenging the advertisement dated 17.08.2004 to the extent that that merit list of the candidates to be called for interview shall be prepared on the basis of marks obtained in high school examination or equivalent examination.

8. Notification was issued amending the U.P. Police Radio Subordinate Service Rules, 1982 whereby preferential clause in Rule 8 was deleted and some new provision was inserted. Some candidates were appointed on the post of Assistant Operator, which was assailed by filing Writ Petition No.3784 (S/S) of 2005 challenging the advertisement issued again.

9. Vide aforesaid writ petition, the petitioner(s) assailed advertisement dated 21.04.2005 and sought direction commanding the opposite parties to complete the selection process for appointment on the post of Assistant Operator invited vide advertisement dated 07.09.2001 and 16.08.2004 in accordance with un-amended rules.

10. The petitioner also filed Writ Petition No.8165 (S/S) of 2006 for consideration of his claim under un-amended Rules of 1982. This Court was pleased to pass an order on 27.05.2005 in Writ Petition No.3784 (S/S) of 2005 staying the selection process and issued direction that the selection process may continue and directed that 38 posts of Assistant Operator be kept vacant. The writ petitions were finally decided by means of a common judgment dated 18.09.2009 with a direction to the opposite parties to consider the claim of petitioners within a period of three months by constituting a selection committee and to give them the benefit of un-amended Rules of 1982. It was further directed that the age bar should not come in the way of the petitioners for considering their candidature.

11. Criminal Misc. Case No.6811 (C) of 2010 was filed for non-compliance of the judgment against the opposite parties. Thereafter, the petitioner and other candidates were called for physical test and interview to be held on 23.08.2010, wherein the petitioner and other candidates appeared on 26.08.2010 but the petitioner was debarred from appearing in the interview since he was found to be 1.6 c.m. less in height than minimum requirement.

12. Learned counsel for the petitioner submitted that amended Rule 8 of aforesaid rules prescribes relaxation in conditions for appointment. He further submitted that for consideration of relaxation clause, the petitioner submitted representation before respondent No.4, which is lying pending consideration and no order whatsoever has been passed till date.

13. His further submission is that the post on which the petitioner has been called for physical test is a post of official duty in the office nor in the field, therefore, in case petitioner's height is 1.6 c.m. less, it can be relaxed and he can be granted appointment on the post of Assistant Operator. His further submission is that due to grant of relaxation to the petitioner, there shall be no injustice on the part of respondents in providing appointment on the aforesaid post. He next submitted that the petitioner is also having two years' training experience from U.P. Police Industrial Training Institute (I.T.I.) for Wireless Mechanic-cum-Operator and in case his case is considered for appointment, no prejudice shall be caused upon the department.

14. On the other hand, by inviting attention of this Court upon paragraph 10 of the counter affidavit, learned A.C.S.C. submitted that the petitioner does not have requisite criteria for appointment, therefore, his claim was not considered for appointment. His next submission is that the petitioner is less in height, therefore, he does not come under the ambit of consideration for appointment as Assistant Operator.

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

16. On perusal of relaxation provision provided under Rule 8 of Rules of 1982, it is apparent that there is power given to the appointing authority to relax under the qualification. The petitioner is also having training of two years for Mechanic-cum-Operator from U.P. Police I.T.I., which is preferential qualification for appointment on the post of Assistant Operator.

17. In the opinion of this Court, in case the height of the petitioner is relaxed, their shall be no harm to the department in engaging the petitioner on the post of Assistant Operator.

18. In view of reasons recorded above, this writ petition succeeds and is allowed.

19. The respondents are directed to consider the claim of the petitioner on the point of relaxation in height and to process further selection of the petitioner on the post of Assistant Operator within a period of two months from the date of production of a certified copy of this order.

Order Date :- 1.8.2022

Adarsh K Singh