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Allahabad High Court · body

2017 DIGILAW 2094 (ALL)

STATE OF U. P. v. SATYANAM

2017-09-06

ARUN TANDON, RITU RAJ AWASTHI

body2017
JUDGMENT By the Court.—Cause shown for the delay in filing of the appeal is to the sanctification of the Court. 2. Delay is condoned. 3. This intra Court appeal is directed against the judgment and order of the learned Single Judge dated 7.2.2012 passed in Civil Misc. Writ petition No. 1555 of 2008. 4. Facts relevant for deciding the appeal are as under: 5. An advertisement was published by the competent authority for appointment as Jail Warden in the U.P. Police Service on 20.4.2006. The petitioner applied in response to the said advertisement. It is not in dispute that the petitioner belongs to other backward class category and a certificate in that regard was also enclosed alongwith the application. The petitioner was successful and after training an appointment letter was issued in favour of petitioner on 11.11.2006. The petitioner joined at Central Jail, Kanpur. 6. While he was performing his duties as such he was served with a show-cause notice dated 16.7.2007 wherein it was alleged that the petitioner has been selected within the other backward class category with sub category home guards. The certificate of having experience of working as home guard on verification was found to be untrue, therefore, the petitioner must show-cause as to why his appointment may not be cancelled. The petitioner submitted reply to the show-cause notice and contended that he had not applied within the sub category of home guards. He had claimed benefit of reservation only within the category of other backward class. Not being satisfied with the reply, the appointment of the petitioner has been terminated vide order dated 11.10.2007. It is against this order that the petitioner filed Civil Misc. Writ Petition No. 1555 of 2008. 7. The learned Single Judge under the order impugned in this appeal has been pleased to hold that the order of termination was bad as the petitioner had been dismissed on a charge of misconduct committed. It has been held that the respondent had failed to establish by any material evidence that a fraud had been played by the petitioner on the department, mere allegation of fraud would not suffice. It has further been recorded that the petitioner could have been dismissed from service on the charge of misconduct only after departmental enquiry which has not taken place. It has further been recorded that the petitioner could have been dismissed from service on the charge of misconduct only after departmental enquiry which has not taken place. For all the aforesaid reasons, the learned Single Judge has been pleased to set-aside the order of termination dated 11.10.2007. 8. The State is not satisfied and, therefore, has approached this Court by means of the present intra Court appeal. 9. A Division Bench of this Court had required the counsel for the State-appellant to produce the original merit list pertaining to the candidates selected within the category of other backward class as well as candidates selected within the sub category of other backward class i.e., home guards. 10. The relevant records have been produced before the Court and have been examined in presence of the counsel for the petitioner. 11. We find that the last candidate selected within the category of other backward class had secured 44 marks. No person below the said merit has been appointed within the category of other backward class as Jail Warden. The petitioner had, admittedly, secured 39 marks, therefore, he is much below in merit than the last selected candidate within other backward class category. 12. We further find on record that there is a certificate of petitioner having worked as home guard earlier and the name of the petitioner finds mention in the select list prepared for the persons belonging to category of other backward class, sub category home guards. It is, therefore, clear that the appointment to the petitioner had been offered on the basis of inclusion of his name in the list of other backward class category, sub category home guards and not within the category of other backward class. 13. Once we reach to the said conclusion the issue of petitioner having filed the home guard certificate or not looses all significance. 14. 13. Once we reach to the said conclusion the issue of petitioner having filed the home guard certificate or not looses all significance. 14. If the entire case set up by the petitioner is accepted on its face value that he had not filed any certificate for having worked as home guards or that he had not claimed benefit of having worked as home guards earlier; then the net result would be that the petitioner would be liable to be considered amongst the candidates belonging to same category, namely, other backward class without any preference to his having worked as home guards earlier and in that circumstance, we find that the last selected candidate had secured 44 marks while the petitioner had only received 39 marks. The only conclusion which could be drawn is that the appointment to the petitioner could not have been offered within the said category of other backward class. 15. The aforesaid aspect of the matter has escaped the attention of the learned Single Judge while setting aside the termination order. 16. In the facts of the case, no departmental proceeding was required to be held. 17. The records reflect that the petitioner does not fall within the zone meritorious candidates entitled to be appointed. Therefore, the cancellation of said order did not warrant any interference by the writ Court under Article 226 of the Constitution of India. 18. Writ Courts are not meant to perpetuate illegal appointments. 19. For all the aforesaid reasons, the judgment and order of the learned Single Judge is set-aside. 20. Writ petition is dismissed. 21. This special appeal is allowed.