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Daya Ram Singh v. State Of U.P. & Others - SPECIAL APPEAL No. 306 of 2007 [2007] RD-AH 4641 (16 March 2007)


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Chief Justice's Court

Special Appeal No. 306 of 2007

Daya Ram Singh vs. State of U.P. and others


Counsel for the appellant: Mr. Bhagwati Prasad.

Counsel for the respondents: Mr. G.C. Upadhyaya, SC &

Mr. K.S. Kuswaha


Hon'ble H.L. Gokhale, CJ

Hon'ble Ashok Bhushan, J

1. Heard Mr. Bhagwati Prasad, learned counsel for the appellant, Mr. G.C. Upadhyay, learned Standing Counsel appearing for the respondents no. 1 to 5 and Mr. K.S. Kuswaha, learned counsel appearing for respondent no. 6.

2. The appeal seeks to challenge the order dated 7.2.2007 passed by the learned Single Judge on the writ petition no. 6319 of 2007 which was filed by the appellant and which was dismissed by the learned Single Judge relying upon a judgment of Division Bench of this Court in Special Appeal No. 46 of 2007 in the case of Smt. Kanti Singh vs. State of U.P. and others.

3. The appellant herein was a candidate for the post of Shiksha Mitra. He claims to be an Instructor with good number of years of experience. There is one Vivekanand Pathak who is also an Instructor and who was a candidate in this selection process. There were 10 other candidates who were not Instructors, but who were also the candidates in the selection process.

4. A list was subsequently drawn as per the selection procedure in which one Vandana Pathak was shown at serial no. 1 with 63.5 marks. Sangeeta Yadav was shown at serial no. 2 with 60.1 marks. Then there were eight candidates. Thereafter Vivekanand Pathak's name came, who was shown with 47.2 marks therein and thereafter the appellant, Daya Ram Singh was shown with 47.05 marks.

5. The case of the appellant is that the Instructors have to have precedence in the matter of these selections under clause 4 of the Government Circular dated 10.10.2005.

6. The interpretation canvassed by Mr. Bhagwati Prasad, learned counsel appearing for the appellant is that under this clause what is provided is Variyata which means precedence, seniority or higher ranking and not mere preference.

7. The Government Officer who examined the marks list, prima facie, does not appear to have disputed this view but he has directed that the papers of this Vivekanand Pathak should be re-examined since he was held ineligible for the reason that the papers submitted by him were supposed to be incomplete.

8. The appellant filed the writ petition to challenge the decision of the concerned Government Officer who directed re-examination of the papers of Vivekanand Pathak. He however did not join Vivekanand Pathak as a respondent.

9. The learned Judge, however, did not go into this controversy between the appellant and Vivekanand Pathak, but observed that the appellant as an instructor (Anudeshak) did not have any precedence at all. The learned Judge referred to the judgment in the case of Smt. Kanti Singh vs. State of U.P. and others (supra) wherein it is held that under the scheme what is contemplated, is a preference and not a precedence. It was further held that for seeking preference one must have equal marks. Inasmuch as Daya Ram Singh, the appellant was at the bottom of the list. In terms of the marks, there was no question of having any preference and that is how the petition is dismissed.

10. This appeal is preferred against the aforesaid order of the learned Single Judge, inasmuch as the impugned order of the concerned Government Officer is on a controversy between the appellant and Vivekanand Pathak, we should have confined ourselves to that question alone.

11. However, Mr. Bhagwati Prasad makes a request which is supported by Mr. Upadhyay, learned counsel appearing for the Government that the provision of clause 4 of the aforesaid Government Circular dated 10.10.2005 requires to be clarified.

12. Mr. Upadhyay points out that after the aforesaid Circular of 10.10.2005, there are two other communications dated 24.4.2006 and 21th November, 2006. Thereunder it has been clarified that an Instructor has to be given a precedence even if he has lesser marks. He submits that whereas the Government Officer will be passing order relying upon these circulars, chances are that their decisions will be set aside by the High Court relying upon the judgment in Smt. Kanti Singh's case (supra). He submits that the judgment in Smt. Kanti Singh's case requires a reconsideration.

13. We have noted the submissions of both counsels as set out above.

14. We should have confined ourselves to the controversy between the appellant and Vivekanand Pathak, but as submitted by both the counsels,  the clause 4 of this Circular dated 10.10.2005 requires to be re-examined. The Division Bench which decided the case of Smt. Kanti Singh has not referred to the text of this particular rule.

15. This earlier Division Bench has been persuaded to take a view that the rule contemplates a preference and the judgment of the Apex Court in Secretary, A.P. Public Service Commission vs. Y.V.V.R. Srinivasulu reported in (2003) 5 SCC 341 was cited before it.

16. It is true that the Apex Court has in terms laid down in the judgment that a mere rule of preference is to give weightage to the additional qualification cannot be enforced as a rule of reservation or rule of complete precedence.

17. Prior to this observations appearing in this paragraph, the Apex Court has, however, commented on the rule which was under consideration and those observations are quite material. The Court as observed there is as follows:

"The rules do not provide for separate classification of those candidates or apply different norms of selection for them. The 'preference' envisaged in the rules, in our view, under the scheme of things and contextually also cannot mean, an absolute en bloc preference akin to reservation or separate and distinct method of selection for them alone."

18. When we look to the scheme under consideration, there is no difficulty in saying that for all other purpose, the conditions applicable to the other candidates are to apply to the instructors. However, before saying that, what the rule specifically states is as follows:

"The instructors-supervisors working in the non formal educational schemes shall be given a relaxation in the age limit to the extent of five years and they will be appointed by giving first precedence (Pratham Variyata)"

19. Thus, there is an element of an absolute en bloc preference akin to reservation in favour of instructors-supervisors in the scheme.

20. It appears that since the text of the particular rule was not examined by the Division Bench which decided Smt. Kanti Singh's case, it has taken another view while interpreting the rules.

21. The interpretation given by the Division Bench in Smt. Kanti Singh's case, if accepted will make the above referred clause otiose. The sentence appearing in this particular clause no. 4 namely that such candidates will be appointed on the basis of first precedence will have to be given a meaningful interpretation which does not appear to have been there in the Division Bench's judgment.

22. Inasmuch as this problem is likely to crop up time and again, we are of the view that the matter ought to be referred to a larger Bench.

23. We, therefore, refer the following question for determination by a larger Bench.

(i) What is the correct interpretation of clause no. 4 of the Government Circular dated 10.10.2005?

(ii) whether the decision rendered in Smt. Kanti Singh's case interpreting the said clause is based on correct preposition of law ?

24. The papers of the appeal be placed before the Chief Justice on administrative side for constituting a larger Bench.

25. The appellant in the meanwhile is directed to amend in the memo of appeal and join Vivekanand Pathak and at least Vandana Pathak and Sangeeta Yadav from the remaining candidates as respondents. The amendment be carried out on or before 28.3.2007.

26. Notice be issued and service be affected on the newly added parties making the same returnable on 16.4.2007.

27. We further add that in the meanwhile the District Magistrate may examine the papers of Vivekanand Pathak but will not issue any appointment order.

28. The State Government will file in the meanwhile all relevant circulars.  


RK/               (Chief Justice)

         (Ashok Bhushan,J)


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