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Smt. Sadhna Singh v. State Of U.P. And Others - WRIT - A No. 23647 of 2007 [2007] RD-AH 9698 (21 May 2007)


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Court No. 39

Civil Misc. Writ Petition No. 23647 of 2007

Smt. Sadhna Singh


State of U.P and others

Hon'ble V.K.Shukla,J.

Brief background of the case is that selection proceeding for the post of Shiksha Mitra was to take place for which advertisement was issued on 24.10.2005. Last date of moving application for selection and appointment of Shiksha Mitra was 16.11.2005. Petitioner applied for consideration her claim and it has been asserted that Smt. Lalita Tiwary had not applied by the last date and she submitted her application only on 18.11.2005. Meeting of Gram Shiksha Samiti took place on 17.11.2005 and there in all five applications were considered. Petitioner has contended that pressure was got exerted by one Smt. Lalita Tiwari  and she succeeded in getting her claim considered  no infirmity in the selection proceedings. It has been contended that on the strength of the same meeting was shown to have been held on 19.11.2005 and in spite of fact that there were  five applications, six applications were shown. It has been contended that marks were computed and adding 5% weightage marks available to physically Handicapped category candidate merit position of Smt. Lalita Tiwari is 55.05% while merit position of petitioner is 57.35%. Petitioner has contended that she was selected on the basis of merit, she was sent for training and she has been performing and discharging duties. Petitioner has contended that Civil Misc. Writ Petition No. 7133 of 2007 was filed by Smt. Lalita Tiwari and this Court on 09.02.2007 asked the District Magistrate, to decide the matter. Petitioner submits that thereafter the District Magistrate, has rejected her claim  and accepted the claim of Smt. Lalita Tiwari, respondent no. 4.  At this juncture present writ petition has been filed.

Sri W.H.Khan, learned counsel for the petitioner contended with vehemence that in the present case Government Order dated 24.04.2006 which has been made foundation and basis for non-suiting the claim of the petitioner was clearly applicable and attracted in the fact and circumstance of the present case as such claim of the petitioner could not have been non-suited as has been done in the present case.

From the side of the respondents Sri  Syed Wajid Ali, Advocate contended that Government Order dated 24.04.2006 is mere clarificatory in nature same will be applicable retrospectively and as such no infirmity is there in the impugned decision.  

Same arguments have been advanced by the learned Standing Counsel and Sri C.K. Rai, Advocate.

After respective arguments have been advanced factual position which is emerging  in the present case is that selection and appointment of Shiksha Mitra was to be made as per Government Order dated 10.10.2005. Weightage was accorded to Smt. Lalita Tiwari after computing average marks of her High School and Intermediate examination is 55.5% and to the same 5% marks were added as she was from Physically Handicapped quota and then her merit status came to 55.5%. Petitioner's merit status to the contrary without giving any weightage is 57.%% In this background petitioner has been selected and appointment letter was issued to her Smt. Lalita Tiwari has been extended the benefit of Government Order dated 24.04.2006, based on the same petitioners claim has been sought to be non-suited.

Division Bench of this Court in the case of Km. Rita Yadav Vs. State of U.P. and others decided on 15.03.2007, in Special Appeal No. 292 of 2007 [(2007) 2 E.S.C 788 has taken the view that Government Order dated 24.04.2006 shall apply prospectively, inasmuch as there is no specific indication made therein that it is to act retrospectively.  Relevant paragraphs 5 to 11 of the aforesaid Division Bench judgement is being quoted below.

"5. The appellant was selected to the post of a Shiksha Mitra. She has secured 64.46 marks as per the method provided for selection under the Government orders. The respondent No.6, who was second in the list, had obtained 64.40 marks and that is why the appellant came to be selected.

6. Now it so transpires that respondent No.6 represented to the authorities concerned on the basis of the Government clarification dated 24th April, 2006. His case is that he is a handicapped person and under the particular clarification, if it is, applied he would be getting 68.55 marks. Therefore, he should have been selected.

7. The authorities of the Government accepted this submission of the respondent No.6 and that is why the appointment of the petitioner came to be cancelled. Aggrieved by this decision, she filed a writ petition and the same has been dismissed by a learned Single Judge by the impugned order dated 31st January, 2007. Being aggrieved by that judgment and order, this appeal has been filed.

8. The learned counsel for the appellant points out that under the earlier Government circular dated 10th October, 2005, as far as the disabled persons, widows or divorced women are concerned, 10% marks were to be added to the marks that they have secured. At the time when the petitioner was selected this circular dated 10th October, 2005 was in force. The circular dated 24th April, 2006 has come to be issued subsequently whereunder a certain method has been provided for calculating this 10% marks. As per this clarification average of the marks of 10th standard and 12th standard are first to be calculated and then 10 marks is to be added. As per this calculation, respondent No.6 will be getting 68.55% marks. The submission of the appellant is that this circular, which is issued subsequent to the selection of the appellant cannot be applied retrospectively and that being the position, the observation of the learned Single Judge that the clarificatory orders always relate back is not correct.

9. The counsel for respondent No.6 submitted that circular was clarifying the position under the earlier circular. This being so, the learned Single Judge was right in taking the view that it will apply retrospectively.

10. In this connection, we must note that there is a recent judgment of the Apex Court in the case of Secretary, A.P. Public Service Commission vs. B. Swapna and others reported in 2005(2) E.S.C. (SC) 247 wherein the Apex Court has laid down that statutory rule is normally prospective unless it is expressly, or by necessary implication, made to have retrospective effect. There must be words in the Statute showing intention to affect existing right. If the rule is clear in its language then there is no difficulty. But if it is capable of two interpretations, it ought to be considered as prospective. In the present case, we have gone through this circular issued on 24th April, 2006. It undoubtedly states to begin with that the Government order dated 10th October, 2005 has led to some confusion with respect to the addition of the weightage that was provided thereunder. However, the Government clarificatory order does not say anything to provide that it will govern the selection made earlier or made from any particular date in the past. There is no indication in this subsequent circular that it is to act retrospectively. Inasmuch as there is no specific indication therein, as stated by the Apex Court, assuming that two interpretations are possible, the circular will have to be operated as prospectively.

11. In the circumstances, the view taken by the learned Single Judge, namely, that the circular will apply retrospectively is not correct."

Case in hand is squarely covered by the ratio of aforesaid judgement, as no benefit whatsoever can be extended to Smt. Lalita Tiwari, respondent no. 4 of the Government Order dated 24.04.2006, and computation had been rightly made as per the Government Order dated 10.10.2005 by awarding 10% weightage marks added to the marks which was secured by her.

In these circumstance and in this background order dated 27.03.2007 passed by District Magistrate, is hereby quashed and set aside. Writ Petition is allowed.

No order as to cost.

Dated 21st May, 2007




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