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2011 DIGILAW 2793 (ALL)

JAVED AHMAD v. STATE OF U. P.

2011-12-09

PANKAJ NAQVI

body2011
JUDGMENT Hon’ble Pankaj Naqvi, J.—Heard Shri D.S.P. Singh, learned counsel for the petitioner and learned standing counsel appearing for the respondents. 2. By means of the present petition, the petitioner has challenged the order dated 26.5.2010 passed by the Principal, District Institute of Education and Training, Sarnath, Varanasi (hereinafter referred to as the DIET) - respondent No. 3 whereby and wherein the candidature of the petitioner, as OBC candidate for selection to Special BTC Examination, 2006 (Urdu), has been rejected both against the OBC and General Categories. 3. Pursuant to an advertisement dated 12.9.2006 applications were invited for selection of eligible candidates for two years Special BTC training (Urdu) in respect of district Varanasi. The total number of selection to be made were 70, out of which 35 were to be filled by male and the remaining 35 by female candidates. Out of the aforesaid 35 male candidates, 17 were to be filled from general candidates, 10 from OBC and 8 from Scheduled Caste candidates respectively. 4. The petitioner applied against the aforesaid advertisement as a OBC candidate and was accordingly called for counselling on 14.11.2006. 4 OBC candidates in view of their merit were shown to be selected in the general category and one general candidate Imran Khan did not join, as is apparent from the interim list (Annexure 3 to the writ petition) resulting in five vacancies.. 5. Being aggrieved with his non-selection the petitioner preferred Civil Misc. Writ Petition No. 25922 of 2008 and this Court vide order dated 29.9.2008 disposed of the same with the following directions : “The petitioners have no legal right to be considered on these 5 vacant seats. However, the seats should not be left unfilled hence respondent No. 1 may direct the Principal, Zila Shiksha Avam Prashikshan Sansthan, Varanasi to consider the case of the petitioners, if they are otherwise eligible alongwith other eligible candidates for training against the said seats. It is made clear that this court has not directed that the petitioners be given training rather all the eligible candidates, may be considered in accordance with law for filling up the vacancies in accordance with law for filling up the vacancies which have remained unfilled.” 6. It is made clear that this court has not directed that the petitioners be given training rather all the eligible candidates, may be considered in accordance with law for filling up the vacancies in accordance with law for filling up the vacancies which have remained unfilled.” 6. In furtherance of the said order dated 29.9.2008 an order dated 19.11.2008 was passed (Annexure 6 to the writ petition) wherein it was stated that the vacant five seats in the general (male) category have now been reduced to three after the process of reshuffling was carried out and that resulted in three vacancies in general (male) category, which have been filled up from amongst the next eligible candidates in the order of merit and accordingly, there are no available vacancies in general (male) category wherein the candidature of the petitioner can be considered. In other words, all left over vacancies in general (male) category have been filled up. 7. Once again the petitioner being aggrieved against the order dated 19.11.2008 preferred yet another Civil Misc. Writ Petition No. 61655 of 2008, which came to be disposed of on 2.4.2010. Operative portion of the order dated 2.4.2010 reads as under: “Having heard learned counsel for the parties and having examined the records I am of the considered opinion that the writ petition may be disposed of by providing that the Principal, DIET, Varanasi may consider the claim of the petitioner against the vacancies within the General Category, if any, having regard to the quality point marks received by the last candidate selected in General Category. The aforesaid exercise may be completed within six weeks from the date a certified copy of this order is filed before him.” 8. Accordingly, in terms of the aforesaid order dated 2.4.1010 the case of the petitioner was again examined on 26.5.2010 (Annexure 10 to the writ petition) and it was found that there are no available vacancies, both in OBC (male) and general (male) category whereagainst the candidature of the petitioner could be considered in view of the merit index obtained by him, hence the present writ petition. 9. 9. A counter-affidavit has been filed on behalf of the Principal, DIET - respondent No. 3 wherein it is inter alia stated that in compliance of the order of this Court dated 29.9.2008 seven candidates had been selected and that four vacancies of general (male) candidates have arisen in view of the fact that their selections have been cancelled on the ground of forged certificates and, therefore, these vacancies are ad hoc in nature inasmuch as on an earlier occasion one Km. Rehana Begum Ansari, whose selection had been cancelled on the ground of forged certificates preferred Civil Misc. Writ Petition No. 52994 of 2007, which came to be allowed on 12.5.2010 granting relief to her and, therefore, no fresh selection was resorted to in respect of such ad hoc vacancies. It is further stated in the counter-affidavit that, as present petitioner had preferred Civil Misc. Writ Petition No. 61655 of 2008 and that in terms of the order dated 2.4.2010 passed in the said writ petition and also Civil Misc. Writ Petition No. 43142 of 2010 the petitioner after reshuffling was provisionally selected against the vacancy of general (male) as a OBC candidate subject to final decision of the writ petition as OBC candidate. In paragraph 7 of the counter-affidavit the respondents have disclosed a chart of the selected candidates, 10 OBC candidates and 17 general (male) candidates and as the merit index obtained by the petitioner is 161.07 and the last general candidate selected is having an index of 165.91, therefore, there are no available vacancies in general category where the petitioner’s candidature could be considered. It is further stated that Special BTC examination, 2006 (Urdu) was of the year 2006 and the selection process was completed in 2006 itself and more than four years have elapsed and the training of the selected candidates has been completed and they have also appeared in their examinations and thereafter appointed as Assistant Teachers in the primary institutions, but it was only in terms of the order dated 2.4.2010 in Civil Misc. Writ Petition No. 61655 of 2008 and Civil Misc. Writ Petition No. 43142 of 2010 that the petitioner has been provisionally selected subject to final order of the writ petition. The order permitting provisionally selection of the petitioner, as OBC candidate, as against the general (male) after reshuffling, is annexure 4 to the counter-affidavit. 10. Writ Petition No. 61655 of 2008 and Civil Misc. Writ Petition No. 43142 of 2010 that the petitioner has been provisionally selected subject to final order of the writ petition. The order permitting provisionally selection of the petitioner, as OBC candidate, as against the general (male) after reshuffling, is annexure 4 to the counter-affidavit. 10. Rejoinder-affidavit has been filed on behalf of the petitioner wherein it is stated that reshuffling of the vacant seats of the general candidates is perfectly valid because the cancellation of candidature amounts to a vacancy, which is to be treated as never filled. It is further stated that four seats are still lying vacant in the general category after cancelling the candidature of four candidates from the general category on 16.9.2008 for which there was direction by this Court on 29.9.2008 in Civil Misc. Writ Petition No. 25922 of 2008 and order dated 2.4.2010 in Civil Misc. Writ Petition No. 61655 of 2008. It is further stated that four candidates, whose candidatures have been cancelled, have not filed any writ petition challenging the cancellation of their selection. 11. The sole issue to be adjudicated by this Court is as to whether the petitioner, who was a OBC candidate, can claim the consideration of his candidature against the vacant general (male) seats, on the basis of merit index obtained by him. 12. The undisputed fact, which emerges from the record, is that as against 35 general (male) category, 17 vacancies were to be filled up by general (male) candidates and 10 by OBC (male) candidates respectively. Order dated 29.9.2008 passed by this Court in Civil Misc. Writ Petition No. 25922 of 2008 only permitted the petitioner for the consideration of his case, if he was otherwise eligible for training against the vacant seats. A perusal of the said order also reveals that this Court had not directed that the petitioner be given training, rather all eligible candidates be considered in accordance with law for filling up the vacancy, which has remained unfilled. 13. A perusal of the said order also reveals that this Court had not directed that the petitioner be given training, rather all eligible candidates be considered in accordance with law for filling up the vacancy, which has remained unfilled. 13. Pursuant to the said order dated 29.9.2008 the case of the petitioner was considered on 19.11.2008 and it was found that after reshuffling, as against five vacant seats out of general (male) candidates, three seats were vacant and the said vacant seats have been filled up from amongst the eligible candidates in order of merit and thus, there are no available vacancies in which the petitioner can be considered. 14. Similarly, order dated 2.4.2010 passed in Civil Misc. Writ Petition No. 61655 of 2008 directed the respondents to consider the case of the petitioner against the vacancies within the general category, having regard to the quality point marks received by the petitioner and that of the last candidate selected in general category (male) within a stipulated period. 15. From a perusal of order dated 2.4.2010 it is manifestly clear that the candidature of the petitioner was to be considered only against the vacancies, if any, within the general category (male) and having due regard to the quality point marks received by the petitioner and that of the last candidate selected in general category. The respondents while considering the candidature of the petitioner in terms of the order dated 2.4.2010 have clearly stated in the impugned order that there are no available vacancies in general (male) category as well as OBC (male) category where the candidature of the petitioner could have been considered, as all the seats have been duly filled up. This position is clearly reflected in the chart (annexure 7 to the counter-affidavit). 16. Pertinent to state here that the last general (male) candidate has secured a merit index of 165.91, whereas merit index obtained by the petitioner is 161.07 (page 25 of the writ petition). It is alleged that even though the candidates mentioned at serial Nos. This position is clearly reflected in the chart (annexure 7 to the counter-affidavit). 16. Pertinent to state here that the last general (male) candidate has secured a merit index of 165.91, whereas merit index obtained by the petitioner is 161.07 (page 25 of the writ petition). It is alleged that even though the candidates mentioned at serial Nos. 1, 2, 3 and 15 of the general (male) candidates, mentioned at page 5 of the counter-affidavit, have accepted their order of cancellation on the ground of forged testimonials, the said vacancies, if any, were and are liable to be filled up strictly on the basis of merit index obtained by the candidates in order of merit and cannot straight away be offered to the petitioner without considering the case of other eligible candidates who were higher in merit than the petitioner. Thus, the petitioner has no legal right to claim selection against the vacant seats on the basis of merit index obtained by him. 17. Shri D.S.P. Singh, learned counsel for the petitioner vehemently urged that in view of the provisional selection of the petitioner pursuant to the order dated 7.8.2010, which is annexed as Annexure 4 to the counter-affidavit, the petitioner was sent for training and is now said to have completed his training and only his result is to be declared, therefore, keeping in view this fact this Court may give an appropriate direction to the respondents to declare the result of the petitioner. 18. Once this Court has come to the conclusion that the petitioner had no legal right to claim his selection in respect of the vacancies within general (male) category on the basis of the merit index obtained by him and also in view of the fact that the orders passed by this Court earlier on 29,9,2008 in Civil Misc. Writ Petition No. 25922 of 2008 and dated 22.4.2010 in Civil Misc. Writ Petition No. 61655 of 2008, had no where given an interim protection to the petitioner, as is stated in the order of the Principal, DIET dated 7.8.2010, then the petitioner cannot derive any benefit from the order dated 7.8.2010. Writ Petition No. 25922 of 2008 and dated 22.4.2010 in Civil Misc. Writ Petition No. 61655 of 2008, had no where given an interim protection to the petitioner, as is stated in the order of the Principal, DIET dated 7.8.2010, then the petitioner cannot derive any benefit from the order dated 7.8.2010. A perusal of the order dated 7.8.2010 would indicate that the provisional selection of the petitioner has been made against the vacancy of general (male) category as OBC candidate and that too subject to final decision of the pending writ petition when, in fact, no such interim protection was given even by this Court in the instant petition. Thus, the alleged training undergone by the petitioner being dehors the law will have to be ignored by this Court. Accordingly, the petitioner cannot stake his claim on the strength of provisional selection granted to him vide order of the Principal, DIET dated 7.8.2010. The petitioner shall be deemed to have accepted the said order with all the risks and consequences attached to it. 19. This Court under Article 226 of the Constitution of India cannot countenance in law a direction, which is in the teeth of law, as otherwise the Court would become instrumental in perpetuating an illegality, which is forbidden in law. 20. Thus, on the facts of the present case, this Court finds that the petitioner has not made out a case for interference under Article 226 of the Constitution and the same is, accordingly, dismissed. No order as to costs. —————