State Of U.P. Through Secy. Rural ... vs Ajay Tripathi
2023 Latest Caselaw 6750 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Court No. - 2
 

 
Case :- SPECIAL APPEAL DEFECTIVE No. - 99 of 2020
 

 
Appellant :- State Of U.P. Through Secy. Rural Development And Others
 
Respondent :- Ajay Tripathi
 
Counsel for Appellant :- C.S.C.
 
Counsel for Respondent :- Devendra Pratap Upadhyay,Alok Kumar Tripathi,Gyanendra Singh,Ripu Daman Shahi
 

 
Hon'ble Devendra Kumar Upadhyaya,J.

Hon'ble Subhash Vidyarthi,J.

Heard Sri Prafull Yadav, learned counsel representing the appellants-State authorities and Sri Ripu Daman Shahi, learned counsel representing the sole respondent.

Office has reported a delay of 67 days in filing the special appeal.

Having heard learned counsel for parties and having regard to to the averments made in the application seeking condonation of delay, we are satisfied that delay has sufficiently been explained.

Accordingly, the application is allowed and delay in filing the special appeal is condoned.

By instituting the proceedings of this special appeal under Chapter VIII Rule 5 of the Rules of the Court, the appellant-State authorities have questioned the legality and validity of the judgment and order dated 13.11.2019 passed by learned Single Judge whereby Writ Petition No.3803 (S/S) of 2008 filed by the respondent-petitioner has been allowed and the order challenged before learned Single Judge has been quashed. Learned Single Judge has further issued direction to the District Magistrate, Barabanki to consider the claim of the respondent-petitioner for grant of appointment on the post of Stenographer in parity with Smt Suman Gautam.

Impeaching the judgment passed by learned Single Judge which is under appeal before us, learned State counsel has submitted that the findings recorded by learned Single Judge in his judgment and order are contrary to record and even contrary to the pleadings available on the proceedings of the writ petition inasmuch as that though learned Single Judge has found the case of respondent-petitioner at par with the case of Smt Suman Gautam, however such finding is not correct. It has also been argued by learned counsel representing the appellant-State-authoritis that in the facts and circumstances of the case the reason given by the District Magistrate while passing the order dated 20.06.2008 whereby the selection in question was cancelled, cannot be said to be arbitrary and as such learned Single Judge has erred in law in quashing the said order as well. On the aforesaid grounds, submission made on behalf of learned counsel for appellants is that the judgment passed by learned Single Judge cannot be permitted to be sustained and as such this special appeal deserves to be allowed.

Vehemently opposing the prayers made by learned counsel for appellant-State authorities, Sri Ripu Daman Shahi, learned counsel appearing on behalf of the respondent-petitioner has submitted that as a matter of fact the reasons given by the District Magistrate while passing the order dated 20.06.2008 are not sustainable as the same are not justifiable in the facts and circumstances of the case. He has further stated that the findings recorded by learned Single Judge in the judgment and order under appeal before us cannot be doubted for the reason that the said findings are based on perusal of the original records.  It has thus been argued that the respondent-petitioner is, in fact, not aware as to whether apart from conducting the written examination, further procedure for selection which comprised of a Stenography, Typing Test and Interview was followed in the case of Smt Suman Gautam or not. His further submission, thus, is that learned Single Judge has found that the case of the respondent-petitioner stands at the same footing as the case of Smt Suman Gautam and as such the judgment and order passed by learned Single Judge does not warrant any interference by this Court in this special appeal. His prayer thus is that special appeal should be dismissed.

We have given our anxious consideration to the rival submissions made by learned counsel representing the parties and have also gone through the records available before us on this special appeal.

On 07.08.1998 an advertisement was issued for filling up the posts of Stenographers in the office of the District Development Officer, Barabanki. There appears to be some dispute as to the number of vacancies advertised and such dispute has arisen on account of ambiguous description of the vacancies in the advertisement itself.

The advertisement contains a table, coloumn 5 whereof relates to total number of posts. In coloumn 5, total number of posts are indicated to be two in number (02), however, said coloumn also describes as if both the posts are open category posts. Coloumn 6 pertains to the vacancies relating to reserved category of Scheduled Castes and in the said coloumn, number of vacancy mentioned is one (01). Apparently, it seems, from a perusal of the table which is part of advertisement, that there were three vacancies which were advertised, however a categorical assertion has been made in the counter affidavit filed by the appellants in the proceedings of the writ petition before learned Single Judge that there were only two sanctioned posts of Stenographers in the office of District Development Officer, Barabanki, out of which one post has been reserved and the other has always been meant for open category candidates. Even in the writ petition the fact that only two posts were advertised for being filled up vide advertisement dated 07.08.1998, has been admitted.

Accordingly, we have no ambiguity in our mind that merely because of confusing description in the advertisement dated 07.08.1998, we can presume that it is not two but three vacancies were advertised. The vacancies advertised were, thus, two (02) in number.

Pursuant to the said advertisement, several candidates including the respondent-petitioner made their applications and they were accordingly subjected to written examination which was held on 13.12.1998. On the basis of said written examination, a combined merit list was prepared in which admittedly the respondent-petitioner was placed at serial no.1, however, this merit list prepared on the basis of marks obtained by the candidates in the written examination was not the final document on the basis of which the selection was to be completed. As per the rules, selection process consists of three stages, namely (1) written examination, (2) test in Stenography and Typing and, (3) interview. Thus, to term the merit list prepared on the basis of written examination as the final select list, is completely incorrect and not acceptable.

In the meantime, before the selection process could be completed, a writ petition bearing Writ Petition No.5683 (S/S) of 1998 was filed by one Sri Jadgish Sharan who belongs to open category and in the said writ petition, this Court passed an order on 07.01.1999 providing therein that till the next date of listing recruitment to one of the posts so far as Stenographer in the office of District Development Officer, Barabanki is concerned, shall remain stayed. Another Writ Petition No. 5332 (S/S) 1998 was filed by one Chandresh Kumar Srivastava with a prayer that these two posts which were advertised by means of the advertisement dated 07.08.1998 should be filled in by way of redeployment and in the said writ petition, this Court had passed an order on 26.11.1998 wherein it was provided that in case the petitioner of the said writ petition is eligible and he has been selected for the sanctioned post on the basis of government order dated 19.09.1996, his candidature shall be considered for the post on which he was working.

It appears that keeping in view the pendency of the aforesaid two writ petitions and the order dated 07.01.1999 as also the order dated 26.11.1998 passed by this Court in Writ Petition Nos.5683 (S/S) of 1998 and 5332 (S/S) of 1998, respectively, a decision was taken by the authorities concerned to defer the selection so far as the post available for open category candidates was concerned and further to continue the selection process so far as the post reserved for the reserved category of Scheduled Caste is concerned.

Accordingly, from a perusal of the averments made in the counter affidavit, which was filed by the appellant-State authorities before the learned Single Judge in the proceedings of the writ petition, it is apparent that the selection for one post reserved for Scheduled Caste proceeded and the candidates who were successful in the written examination falling in that category were subjected to Stenography and Typing Test and thereafter to interview and accordingly the selection for the post reserved for Scheduled Caste category was completed. In the selection against the post meant for being filled in from amongst the reserved category candidates belonging to Scheduled Caste, Smt Suman Gautam was appointed on 31.03.1999 and since then she has been working and discharging her functions.

The aforesaid facts are though clear from the enclosures which were annexed by the appellants while filing the counter affidavit before learned Single Judge including the notesheets, however, it appears that certain factual aspects of the matter escaped the attention of learned Single Judge as a result of which a finding has been given as if the respondent-petitioner was included in the same final select list out of which appointment of Smt Suman Gautam has been made. As a matter of fact, the said combined merit list comprised of those candidates who were declared successful in the written examination, that is the first stage of the selection and such list comprised of all candidates irrespective of the category to which they belonged to. Such merit list prepared on the basis of written examination cannot be termed to be final select list and thus, in our opinion, learned Single Judge has erred in law and fact in treating the said list to be the final select list which appears to be the reason why a direction has been issued by learned Single Judge to consider the claim of the respondent-petitioner for appointment against the post of Stenographer in parity with the appointment of Smt Suman Gautam.

From the facts as narrated above, we have no ambiguity in our mind that it is not that the respondent-petitioner and Smt Suman Gautam were included in the same final select list having been subjected to the complete selection process. The list as relied upon by learned Single Judge, as observed above, is the list depicting the merit position of all the candidates irrespective of the category to which they belonged which was prepared on the basis of written examination alone.

As is apparent from the records available before us even on this special appeal, further proceeding for selection so far as one vacancy meant for open category candidate is concerned, was deferred, however, the selection in respect of other vacancy meant to be filled in from amongst reserved category candidates belonging to Scheduled Caste was carried on which ultimately resulted in preparation of final select list of reserved category candidates from where the appointment of Smt Suman Gautam has been made. 

So far as the ground taken by learned counsel for appellant-State authorities in respect of the reasons indicated by the District Magistrate while passing the order dated 20.06.2008 are concerned, what we find is that the District Magistrate has noted chronological events in relation to the selection which started on publication of advertisement dated 07.08.1998 and has opined that so far as the appointment by way of redeployment is concerned, it was not permissible for the reason that the employee concerned Chandresh Kumar Srivastava who was claiming his appointment by way of redeployment, was not occupying the post equivalent to the post of Stenographer. The District Magistrate further proceeds to consider the fact that so far as the selection to the post meant for open category candidate is concerned, the same could not be completed on account of various factors for about ten years and as such after lapse of such a long period of time, it will not be appropriate to continue or restart the selection process which stood deferred way back in the year 1999 itself.

In our considered opinion, the reasons indicated by the District Magistrate while passing the order dated 20.06.2008 for cancelling the further selection process cannot be said to be so unreasonable which may result in conferment of any right on the respondent-petitioner to seek his appointment after completion of selection process which stood deferred way back in the year 1999 itself.

For the aforesaid reasons, we are unable to persuade ourselves to agree with the view taken by learned Single Judge while passing the judgment and order which is under appeal before us. 

The special appeal is, thus, allowed. The judgment and order dated 13.11.2019 passed by learned Single Judge in Writ Petition No.3803 (S/S) of 2008 is hereby set-aside.

However, there will be no order as to costs.

Order Date :- 2.3.2023

Renu/-