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Smt. Kamlesh Sachan v. UPSC - WRIT - C No. 33878 of 1998  RD-AH 1894 (10 August 2005)
Civil Misc. Writ Petition No. 33878 of 1998
Smt. Kamlesh Sachan and another vs. U.P. Public Service Commission,
Allahabad and others.
Hon'ble R.K.Agrawal, J.
Hon'ble Rajes Kumar, J.
The two petitioners before this Court, namely, Smt. Kamlesh Sachan and Naresh Baboo appeared in the Upper Subordinate Services Examination, 1988 conducted by the U.P. Public Service Commission, Allahabad. They belonged to the Other Backward Classes category and have applied for the benefit of the reserved category candidates. The written examination was held in May, 1990 and its final result was declared on 28th July, 1992. The U.P. Public Service Commission had drawn a merit list on the basis of the aggregate marks obtained in the final result. However, the allotment of the post was made according to the merit and preference given by the candidates at the time of interview. The U.P. Public Service Commission while allotting the various posts had taken into consideration the direction given by the State Government as contained in G.O. No. 736/40/1-31-13(4) dated February 19, 1981 and its subsequent clarification contained in G.O. No. 22/20/82/Ka-2 dated 11th April, 1991, 19th December, 1991 and 16th April, 1992, according to which reserved category candidates were allotted posts along with the general candidates who had qualified on their merit at par with general candidates without availing of any concession permissible for reserved category candidates. In such cases, according to the Commission such meritorious candidates of the reserved category who had qualified with general candidates were allowed to avail general vacancies considering their preferences. In this way, the petitioners were allotted the post of Assistant Labour Officer as per their merit and preference in the list of general candidates. However, the candidates who had obtained lower merit in the list of reserved category were allotted the post of Block Development Officer, which is a higher post as compared to the Assistant Labour Officer. The petitioners feeling aggrieved approached this Court by means of the present writ petition for redressal of their grievances. According to them respondent nos. 3 to 7 were placed in the merit list at serial nos. 54, 53, 52, 51 and 50 in the Other Backward Classes category candidates whereas they were placed at serial nos. 210, 209, 208, 207 and 206 respectively in the merit list of general category candidates. The petitioners were placed at serial nos. 25 and 40 in the merit list of Other Backward Classes category candidates and at serial nos. 147 and 149 respectively in the merit list of general category candidates. According to the petitioner even though under the Government orders referred to above they were entitled to be considered along with the candidates of general category, yet as the various posts in the Upper Subordinate Services have been earmarked for the different categories, they ought to have been considered, both under the general category candidates and also under the reserved category candidates, on the post carrying better pay scale.
The writ petition was taken up on 24th October, 1998 when the Court granted the learned standing counsel appearing for the U.P. Public Service Commission and the learned standing counsel appearing for the State three weeks time to file counter affidavit and it was directed to be listed for admission/final disposal in the week commencing 23rd November, 1998. However on 10th September, 1999 the Court issued notices to the private respondents 3 to 7 while permitting the petitioners to serve them personally in addition of normal mode of service. The notices were issued by registered post on 20th September, 1999 and dasti notices were also given to the petitioner for service upon the private respondents 3 to 7. The office has put a service report on the order sheet on 19th July, 2005 that neither acknowledgement nor undelivered notices have been received back from respondent nos. 3 to 7. An affidavit of service has also been filed in which it has been stated that the petitioners had send notices personally through registered post on 20th September, 1999. In view of the office report as also affidavit of service filed by the petitioners, service upon respondents 3 to 7 is taken to be sufficient. In spite of service upon private respondent nos. 3 to 7 no body has appeared on their behalf.
We have heard Sri P.N.Saxena, learned senior counsel assisted by Sri S.K.Pal on behalf of the petitioner, Sri M.A.Qadeer, learned counsel appearing for the U.P. Public Service Commission and Sri M.R.Jaiswal, learned standing counsel for the State respondents.
Learned counsel appearing for the petitioners submitted that the position of the petitioners in the merit list prepared for the candidates appearing for the Other Backward category was much above than respondent nos. 3 to 7 being at serial nos. 25 and 40 whereas respondent nos. 3 to 7 were placed from serial nos. 54 to 50 in the reverse order and therefore, they ought to have been allocated posts carrying higher pay scale. It was not correct on the part of the Commission to consider their claim only in the general category candidates and not in the Other Backward Classes category candidates. In support of his plea, he has relied upon a decision of the Apex Court in the case of Anuraj Patel vs. U.P. Public Service Commission and others (Civil Appeal No. 4794 of 1998) decided on 29th September, 2004 wherein similar claim made by the petitioner as in the present case in respect of Upper Subordinate Service (Preliminary) Examination conducted by the U.P. Public Service Commission in the year 1990 has been upheld. As the matter stands concluded by the Apex Court in the aforementioned case, the petitioners' claim appears to be justified.
In view of the foregoing discussions, the writ petition succeeds and is allowed. The U.P. Public Service Commission is directed to reconsider the claim of the petitioners in accordance with the merit in the reserved category of Other Backward Classes and readjust their allotment viz-a-viz respondent nos. 3 to 7 within a month from the date of production of a certified copy of this order. However, it is made clear that the petitioners shall not be entitled for the arrears of salary pursuant to reallocation of the post but the services rendered by them on the original post would be counted for the purposes of seniority and other purposes.
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