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Rajesh Kumar v. State Of U.P. And Others - WRIT - A No. 35941 of 2003 [2007] RD-AH 5140 (22 March 2007)


This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).


Court No. 31


Rajesh Kumar Vs. State of U.P. & others.


Hon'ble D.P. Singh, J.

Heard learned counsel for the petitioner, the learned Standing counsel and Shri D.S. Srivastava for the respondent no. 5.

This petition is directed against the selection of the respondent no. 5 to the post of Kalyan Karya Karta and seeks his appointment as being the second person in the select list.

The Soldier Welfare Board advertised one vacancy of Kalyan Karya Karta on 24.6.2003 and also of a Junior Clerk. The petitioner applied for Kalyan Karya Karta and appeared in the written test and was also called for interview on 24.7.2003. However, when the petitioner went for interview it was adjourned on the ground that respondent no. 5 had not reported for interview and, thus the Selection Committee fixed 2.8.2003 as the next date for interview. After the interview on 2.8.2003 the respondent no. 5 was selected and as such he was issued the appointment letter dated 4.8.2003. Thus, the present petition.

Learned counsel for the petitioner has urged that the appointment of such Kalyan Karta is governed by a Government order dated 12.12.1985 which prescribes that the Medical Category of the Ex. Army Man should not be less than "AYE" but the respondent no. 5 was discharged with the Medical Category "BEE" and, therefore, the appointment is vitiated. The fact that the appointment was governed by the Government order dated 12.12.1985 has not been denied by the State. However, the counsel for the respondent no. 5 contends that the said Government order would not apply after promulgation of Uttar Pradesh Procedure For Direct Recruitment For Group 'C' Posts (Outside the Purview of U.P. Public Service Commission) Rules, 2002. Initially in the counter affidavit the respondent no. 5 did not deny that the appointment is governed by the Government order dated 12.12.1985. However, through his supplementary affidavit he has raised the aforesaid stand. A perusal of the Rules 2002 shows that it applies only to those posts where the minimum qualification prescribed is Intermediate or its equivalent. Admittedly, the minimum qualification prescribed for the post is High School, thus, the contention of counsel for the respondent no. 5 cannot be accepted. It is not denied by him that he was discharged with the Medical Category "BEE" while the petitioner's discharge shows that he was discharged with Medical Category "AYE" thus, the respondent no. 5 did not hold the necessary Medical Category.

It is then urged that in accordance to the Government order only the residents of the District where the appointment has to be made are eligible to be considered and only if no eligible candidate is available, persons from other Districts falling in the same commissioner's jurisdiction would be entitled to apply. It is contended that the respondent no. 5 was resident of Varanasi while the appointment was to be made at Jaunpur. This factual averment is not denied, however, it is contended that all persons within the Commissioner's jurisdiction are entitled to apply. A perusal of clause (2) of the Government order shows that in case no person of the District where the appointment is to be made is available or is eligible, a person from other District within the same Commissionery could be considered. The petitioner is a resident of Jaunpur, he had applied and was eligible in accordance with the requirements of the Government order and, therefore, the candidature of the respondent no. 5 was against the Government order itself.

Much emphasis has been laid by the petitioner that in fact the entire proceeding of selection of the respondent no. 5 was fabricated because he never appeared for the written test. Though this allegation has been denied in the counter affidavit, the record of the selection proceedings was called for.

Having examined the record, it is apparent that all those candidates who appeared in the written test had signed the attendance sheet against their names except for those persons who were absent. A bare perusal of the attendance sheet shows that the name of respondent no. 5 was included subsequently and that too has not been signed by him. Further, all the names have been typed  except of the respondent no. 5 which is hand written. The explanation given by him that he was late for the examination and as such his name was hand written and he was not asked to sign the attendance register, does not appear to be plausible and the proceedings for selecting the respondent no. 5 appear to have been manipulated.

From the record, it is also evident that the respondent no. 5 was shown to have been awarded 71 out of 100 marks while the petitioner was awarded 58 out of 100 and since the consideration of the respondent no. 5 has been held to be illegal, his appointment letter dated 4.8.2003 is hereby quashed and the petitioner is the other person on the list, he is entitled to be appointed.

With the aforesaid directions, this petition succeeds and is is allowed. No order as to costs.

D/- 22.3.2007



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