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2009 DIGILAW 2856 (ALL)

RAMESH SINGH v. STATE OF U. P.

2009-08-18

A.P.SAHI

body2009
JUDGMENT Hon’ble A.P. Sahi, J.—The petitioner prays for quashing of the order dated 14.12.2006 passed by the District Magistrate, Etawah, rejecting the claim of the applicant for being appointed as Shiksha Mitra against the advertisement dated 27.10.2005. 2. The petitioner along with respondent No. 5-Smt. Shiv Kumari applied for the post of appointment as Shiksha Mitra in terms of Government Order dated 10.10.2005; copy whereof is Annexure 4 to the writ petition. The Applications were processed and it is alleged by the Petitioner that the contesting Respondent deliberately provided incorrect mark-sheets which resulted in the award of higher marks to Respondent No. 5. Respondent No. 5, in fact, had only 47.04% marks whereas on account of the incorrect mark sheets and clerical error that had crept into, she was placed higher in merit than the petitioner indicating that she had obtained 57.40% marks. The petitioner was awarded an aggregate of 51% according to the Government Order. Respondent No. 5 was shown to have been selected. It is further relevant to point out that the Petitioner and Respondent No. 5 both had worked as Informal Instructor (Anudeshak) and, as such, according to Government Order dated 10.10.2005, these 2 candidates had to be given “first preference” as against the other candidates, who had applied. 3. The petitioner’s claim was not being considered, as such, the Petitioner approached this Hon’ble Court by filing Writ Petition No. 17943 of 2006 and a direction was issued on 3.4.2006 commanding the District Magistrate, Etawah, to decide the claim of the petitioner. A Contempt Petition was also filed for non-compliance of the said direction whereafter the District Magistrate decided the matter vide order dated 14.12.2006 impugned in the present petition. 4. I have heard Mr. Pankaj Kumar Srivastava, learned counsel for the petitioner, Sri A.K. Sharma for Respondent No. 5, the learned Standing Counsel for Respondent Nos. 1 to 3 and Sri K. Sahi for Respondent No. 6. 5. 4. I have heard Mr. Pankaj Kumar Srivastava, learned counsel for the petitioner, Sri A.K. Sharma for Respondent No. 5, the learned Standing Counsel for Respondent Nos. 1 to 3 and Sri K. Sahi for Respondent No. 6. 5. The finding recorded by the District Magistrate while disposing of the application is that so far as the incorrect projection of mark-sheets are concerned, the same was a clerical error which was corrected before the final selection list was published and the matter pertaining to the alleged forged mark-sheets was got inquired into and it was found that the correct mark sheets, which was submitted by Respondent No. 5, was cross-checked with the documents available in the institution from where Respondent No. 5 had passed the examination. The District Magistrate further found that since the petitioner and Respondent No. 5 both had worked as informal education teachers, therefore, according to Government Order dated 24.4.2006, a candidate, who had worked as informal education teacher for a longer period, would be entitled to be appointed as Shiksha Mitra. The District Magistrate, on facts, found that Respondent No. 5 had worked for a longer period as against the petitioner as an informal education teacher and, therefore, she was entitled to continue after having been selected as Shiksha Mitra. 6. Learned counsel for the Petitioner contended that Respondent No. 5 had attempted to obtain selections by manipulating her marks and that as a matter of fact while moving her application, had reflected the incorrect marks in her favour which resulted in her placement higher In merit as against the petitioner. The subsequent correction attempted by the authorities was only to help Respondent No. 5 to retain her selection. He further contends that the District Magistrate has wrongly concluded that Respondent No. 5 would be given preference over the petitioner. 7. Learned counsel for the respondent contended that she was correctly given the benefit of preference according to the Government Order dated 24.4.2006 and the error indicated in the projection of the marks by the said respondent at the time of moving her Application had been already rectified even before the final selections were made. 7. Learned counsel for the respondent contended that she was correctly given the benefit of preference according to the Government Order dated 24.4.2006 and the error indicated in the projection of the marks by the said respondent at the time of moving her Application had been already rectified even before the final selections were made. He contends that keeping in view the lower merit of Respondent No. 5 as against the petitioner, Respondent No. 5 was still entitled for being selected as she had a longer period of experience as an informal education teacher and, therefore, according to the Government Order dated 24.4.2006, she was rightly given the benefit. 8. I have considered the rival submissions and the matter now stands narrowed down to the question, as to whether while assessing the first preference claimed by the Petitioner and Respondent No. 5, the District Magistrate had rightly on an application of the Government Order dated 24.4.2006, come to the conclusion that Respondent No. 5 having a longer period of experience was entitled to be selected. The aforesaid issue is no longer res-integra. The question as to whether an informal education teacher is entitled to first preference or not as against the other candidates, has been settled by the Full Bench in the case of Daya Ram Singh v. State of U.P. and others, 2007 (3) AWC 2946 (FB). The words “first priority/first preference” has been interpreted to mean that the said preference is over and above the other candidates and, therefore, the word means priority or precedent and not mere preference. Accordingly, the Full Bench held that such informal education teachers, in spite of their low merit, would be entitled to first priority for being appointed. This was the law as existing on the date when the advertisement was issued in the present case in the year 2005. 9. It is undisputed that both petitioner and Respondent No. 5 had applied as against the advertisement dated 27.10.2005. The last date of applications in the said advertisement was also indicated therein and the proposal for appointment was made on 5.12.2005. Thus, the selection had also been completed by 5.12.2005. The Government Order dated 24.4.2006 came later on and was not in existence when the advertisement and selection in the present case was made. The last date of applications in the said advertisement was also indicated therein and the proposal for appointment was made on 5.12.2005. Thus, the selection had also been completed by 5.12.2005. The Government Order dated 24.4.2006 came later on and was not in existence when the advertisement and selection in the present case was made. The issue of the applicability of such a Government Order came up for consideration in respect of similar selections of the year 2005 in the case of Parvati Devi v. State of U.P. and others, 2007 (6) ADJ 384 . The Division Bench, while upholding the judgment of the learned single Judge, ruled that the Government Order dated 24.4.2006 would not apply retrospectively and even otherwise the Government Order dated 10.10.2005 did not provide for inter se first priority or preference on the strength of a longer experience. The Government Order dated 24.4.2006 would not apply retrospectively in the present case as well and the District Magistrate appears to have erred in applying the same. The said view has been approved by this Court in the case of Km. Rita Yadav v. State of U.P. and others, 2007 (2) ESC 788 (DB) and followed in Smt. Neelam Singh v. State of U.P. and others, 2008 (1) ADJ 712 (DB). 10. Apart from this, it is also evident that Respondent No. 5 first attempted to get herself selected on the strength of incorrect marks having been reflected. This conduct of Respondent No. 5 also cannot be appreciated. The fact of the correction of marks reflected in the selection has been admitted in the counter-affidavit. For all the reasons aforesaid and keeping in view the Division Bench decision in the case of Smt. Parvati Devi (supra), the order impugned is unsustainable. The impugned order dated 14.12.2006 (Annexure-7 to the writ petition) is quashed. The matter is remitted back to the District Magistrate, Etawah, to pass a fresh order in the light of the observations made hereinabove after considering the claims of the parties as expeditiously as possible but not later than 3 months from the date of production of a certified copy of this order before him. ————