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2007 DIGILAW 1863 (ALL)

PRAMILA SINGH v. STATE OF UTTAR PRADESH

2007-07-12

ASHOK BHUSHAN

body2007
JUDGMENT Hon’ble Ashok Bhushan, J.—Heard learned counsel for the petitioner Sri Vijay Prakash Tewari appears for respondent No. 5, Sri R.P.S. Kushwaha appears for respondent No. 4. Learned Standing Counsel has accepted notice on behalf of respondent Nos. 1, 2 and 4. 2. With the consent of the parties, the writ petition is being disposed of finally. 3. By this writ petition, the petitioner has prayed for quashing the order dated 16.6.2007, by which the District Magistrate has upheld the selection of respondent No. 5 on the ground that her merit index is more than the petitioner. 4. For selection of Shiksha Mitra, both the petitioner and respondent No. 5 were applicants. The respondent No. 5 in the merit position was shown to have secured 54.4% average marks and the petitioner secured 50.3% average marks. Both the petitioner and respondent No. 5 claimed their selection on the basis of their experience in the non-formal education. The petitioner claimed that she has worked as instructor since 1990 to 2000, whereas the respondent No. 5 claimed working in non-formal education from 1992 to 2000. 5. The District Magistrate after hearing both the parties, passed the impugned order on the ground that respondent No. 5 has secured 54.4% on the merit hence, her selection is valid. The District Magistrate also noticed the contention of both the parties regarding their experience in non-formal education but he has neither returned a finding as to whose experience was more nor has based his order on the said basis. The District Magistrate in the impugned order has relied on the judgment in the case of Kanti Singh Yadav v. State of U.P., 2007 (2) ADJ 271 . 6. Learned counsel for the petitioner contended that petitioner has more experience and in view of the Full Bench decision of this Court in the case of Daya Ram Singh v. State of U.P and others, 2007(5) ADJ 369, the petitioner was required to be selected. Sri V.P. Tiwari, learned counsel for the respondent No. 5 refuting the contention of learned counsel for the petitioner, contended that it is the respondent No. 5, who had larger experience in the non-formal education. Hence, even on the ground of experience of respondent No. 5 was entitled to be selected. 7. I have considered the submissions and perused the record. 8. Hence, even on the ground of experience of respondent No. 5 was entitled to be selected. 7. I have considered the submissions and perused the record. 8. The District Magistrate has based his decision on the basis of merit of average of the High School and Intermediate Examinations and relied upon the Division Bench decision in the case of Kanti Singh Yadav (supra). Although the issue was raised before the District Magistrate by both the parties, claiming that they have larger experience in non-formal education but District Magistrate has not recorded any finding as to whose experience was larger and based his decision on the average of High School and Intermediate Examination. 9. The Full Bench in its decision in the case of Daya Ram Singh (supra), has laid down that the Supervisors, who have worked in the non-formal education scheme, will be appointed even if they have less number of marks. The Government Order dated 24.4.1996 was also examined by the Full Bench and it was held that amongst the instructors/supervisors, who have put in longer years of service, will be preferred. Following was held by the Full Bench in paragraph 13 of the aforesaid judgment : “13. In the present case, what we have to examine is as to whether what is provided, is a mere preference or a first priority. In the event, the rule provides a mere preference, it will mean that the candidates concerned will have to have equal marks to begin with and then one amongst so many, will be given a preference. As against that, if there is an en bloc priority given to a category, that will have to be preferred irrespective of the marks obtained. The word Variyata has been defined in the Oxford Hindi into English Dictionary, as priority or precedence. Besides from the two Government Circulars, which are referred to above and which were issued subsequently, i.e. one dated 21.11.2005 and the latter dated 24.4.2006, the intention has been further clarified. As we have noted, the Government Circular dated 21.11.2005, gives the clarification specifically stating that an Instructor/Supervisor, who has worked in the non-formal education Scheme, if available and if having the other conditions of eligibility, and it falls in the prescribed category of reservation, will be appointed, even if he is having less number of marks. As we have noted, the Government Circular dated 21.11.2005, gives the clarification specifically stating that an Instructor/Supervisor, who has worked in the non-formal education Scheme, if available and if having the other conditions of eligibility, and it falls in the prescribed category of reservation, will be appointed, even if he is having less number of marks. The Government Circular of 24.4.2006, clearly states that amongst the Instructors/Supervisors, one who has put in longer years of service, will be preferred. In the earlier Government Circular dated 10.10.2005, these who had passed B.Ed./LT., were to be given the preference while stating that the word used was Adhimanyata (preference). That clause has been removed and the terms used in Clause No. 4, are Prathama Variyata, which will mean first priority’ or ‘precedence’. The provisions contained in this Clause, when read with the clarification dated 21.11.2005, clearly lead to the inference that the Instructors/Supervisors, who have worked in the non-formal education Scheme ought to be preferred en bloc with priority over the others, if such persons are available.’’ 10. In view of the pronouncement of the Full Bench in the case of Daya Ram Singh (supra), the District Magistrate was required to consider all materials on record and while coming to a conclusion, it ought to have recorded a finding as to whose experience was larger. The same having not been done, the order of the District Magistrate deserves to be set aside and the matter is remitted to the District Magistrate for passing a fresh order in the light of the observations made herein above. 11. In view of the fact that respondent No. 5 has already been appointed and working as Shiksha Mitra, status-quo as existing, shall be maintained till the order is passed by the District Magistrate. The District Magistrate shall take decision expeditiously within a period of two months from the date of production of a certified copy of this order. With the aforesaid direction, the writ petition is disposed of. ————