Allahabad High Court
U P Subordinate Services ... vs Pooja Saxena And 11 Others on 11 May, 2023
Bench: Sunita Agarwal, Vikas Budhwar
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2023:AHC:101630-DB
Court No. - 29
Case :- SPECIAL APPEAL No. - 302 of 2023
Appellant :- U P Subordinate Services Selection Commission
Respondent :- Pooja Saxena And 11 Others
Counsel for Appellant :- Siddharth Singhal
Counsel for Respondent :- Prashant Shukla
Hon'ble Mrs. Sunita Agarwal,J.
Hon'ble Vikas Budhwar,J.
Heard learned counsel for the parties and perused the record.
This appeal is directed against the order of the learned Single Judge dated 05.04.2023 where the writ petition seeking to challenge the select list issued by the respondent- Commission namely the U.P. Subordinate Services Selection Commission for the post of Health Worker (Female), had been disposed of on the very first day without calling for the counter affidavit though the counsel for the respondent- Commission had appeared before the Court concerned.
It is pertinent to note that the writ petition was filed by five persons who could not qualify the selection, on the premise that they were entitled for consideration for selection in the EWS category and their candidature in the said category was required to be considered by the Commission in view of the judgment of the Apex Court in the Special Leave Petition (Civil) Diary No.5089 of 2023.
To assail the decision of the learned Single Judge, it is demonstrated before us by the learned Advocate appearing for the appellant- Commission that out of five petitioners, three namely petitioner No.2, Sadhna Mishra, petitioner No.4, Mandvi Devi and the petitioner No.5, Vandana Tiwari neither claimed benefit of EWS category in the application form nor submitted the documents supporting the claim of the said category alongwith the verification application. The copies of the application forms and the verification slips of these three petitioners have been placed alongwith the affidavit accompanying the stay application. It is further demonstrated that the petitioner No.1 namely Pooja Saxena though sought benefit of EWS category, but did not possess the requisite certificate on the last date of submission of the application form which was filed on 05.01.2022 and the issue in this regard has not been adjudicated by the learned Single Judge. As regards the petitioner No.3, it is sought to be submitted that even the certificate submitted by her dated 05.02.2021 was not valid.
Be that as it may, having noted the fact that the learned Single Judge decided the writ petition challenging the select list without calling for the counter affidavit to make the factual inquiry on the issue raised in the writ petition, we are of the considered opinion that without entering into the claim of the appellants with regard to the entitlement of the writ petitioners (five in number) for EWS category, we find that the judgment and order dated 05.04.2023 wherein the direction has been issued to consider the claim of four petitioners (excluding the petitioner No.4) in EWS category in the selection in question, is liable to be set aside.
With due respect to the learned Single Judge, while setting aside the judgment and order dated 05.04.2023 for the error committed therein, the matter is sent back to the Writ Court for fresh consideration after exchange of the affidavits of the parties.
Sri Siddharth Singhal, learned Advocate appearing for the appellant- Commission undertakes to file counter affidavit within a period of two weeks from today. Two weeks thereafter is granted to file rejoinder affidavit.
Let the writ petition be placed before the Writ Court for decision on merits.
The appeal is, accordingly, allowed.
Order Date :- 11.5.2023
P Kesari
