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2022 DIGILAW 1088 (ALL)

Rohitash Kumar v. State of U. P.

2022-07-14

SAURABH SHYAM SHAMSHERY

body2022
JUDGMENT : 1. This writ petition is filed seeking following reliefs: "i. Issue a writ, order or direction in the nature of certiorari to quash the appointment of respondent no. 6 Ajay Kumar on the post of Gram Rojgar Sewak in Gram Panchayat Nagaliya Balloo, Block Pawasa, District Moradabad, made by the respondent no. 5 Gram Panchayat Moradabad on 04.04.2008 approved by the District Administrative Committee respondent no. 2 to 4 (Annexure no. 1 and 4 to the writ petition ii. Issue a writ, order or direction in the nature of Mandamus, commanding the respondent no. 1 to 5 to appoint the petitioner on the post of Gram Rojgar Sewak in Gram Panchayat Nagaliya, Block- Pawasa, District Moradabad and permit him for discharging his duty, accordingly." 2. Sri R.P.S. Chauhan, learned counsel for petitioner submits that ground to reject candidature of petitioner for appointment to the post of Gram Rojgar Sewak, was that his brother was a Member of concerned Gram Panchayat at relevant time, who though resigned but his resignation was accepted after the resolution was passed by Gram Panchayat rejecting candidature of petitioner. Learned counsel for petitioner heavily relied on para ( N ) of Government Order dated 23.11.2007, which is reproduced as under ^^N& lEcaf/k;ksa ds xzke jkstxkj lsod ds :i es j[kus ij jksd & dksbZ Hkh O;fDr] tks lacf/kr xzke iapk;r ds iz/kku] mi iz/kku] lnL; vFkok lfpo] iapk;r dk laca/kh gS xzke jkstxkj lsod ds :i esa ugh j[kk tk ldsxkA LkEcaf/k;ks dk rkRi;Z firk] ekrk] nknk] llqj¼fir` vFkok ekr` laca/kh½ iq=] ikS=] nkekn] iq=&o/kq] cgu] ifr] iRuh rFkk iq=h ls gSA^^ 3. Learned counsel for petitioner further contended that relation of ‘brother’ was not included within the purport of relatives of a candidate in above referred provision, therefore, the basis of resolution of rejecting candidature of petitioner on the ground that his brother was elected member of Gram Panchayat, though his resignation was accepted later on, was erroneous and contrary to above referred provision. Learned counsel further submits that the selected candidate has not joined the post and no further recruitment process was undertaken thereafter and post is still lying vacant. The respondents have accepted the averments made in para 8 of writ petition in their counter affidavit. 4. Learned counsel further submits that the selected candidate has not joined the post and no further recruitment process was undertaken thereafter and post is still lying vacant. The respondents have accepted the averments made in para 8 of writ petition in their counter affidavit. 4. Per contra, Sri P.K. Srivastava, learned Additional Chief Standing Counsel appearing for State-Respondents, submits that ‘brother’ is deemed to be included in above referred provision as well as it is a contractual appointment, initially for one year and could be extended from time to time. The averment made in para 8 of the writ petition is specifically denied and not accepted in counter affidavit. 5. Heard learned counsel for parties and perused the material available on record. 6. Learned counsel for petitioner has heavily relied on the relations mentioned in para ( N ) of Government order which does not include ‘brother’. It is not in dispute that brother of petitioner was a Member of Gram Panchayat at the relevant point of time, as his resignation from said elected post was accepted subsequently. 7. In the above referred para ( N ) word used is rkRi;Z , which means ‘purport’, as mentioned in “Vidhi Shabdavali”, Universal’s Law Dictionary (Reprint 2011), at page no. 746, which is not a synonym of words ‘means’ or ‘include’. Therefore, the list of relatives mentioned in Government Order dated 23.11.2007 cannot be considered to be exhaustive rather it is only enumerative. In the list of relation ‘sister’ is included. Therefore, an interpretation that ‘brother’ could not be included being not mentioned, would frustrate the very object of such bar, whereby the relatives of elected Pradhan, Up-pradhan, Member etc. of Gram Panchayat were barred to be appointed on the post of Gram Rojgar Sewak. Such interpretation would lead to absurd consequences, that a candidate, who is sister of elected Pradhan, Up-pradhan, Member etc. of Gram Panchayat, could not be selected on the post of Gram Rojgar Sewak but if the brother of same candidate is on similar position, he would be selected. This interpretation cannot be allowed. Therefore, even though the word ‘brother’ is not included in the list of relatives but considering that word ‘sister’ is included, in my view, in the list of relatives ‘brother’ is deemed to be included. 8. This interpretation cannot be allowed. Therefore, even though the word ‘brother’ is not included in the list of relatives but considering that word ‘sister’ is included, in my view, in the list of relatives ‘brother’ is deemed to be included. 8. The object of para ( N ) of Government Order dated 23.11.2007 is, not to appoint relatives of elected Pradhan, Up-pradhan, Member etc. of Gram Panchayat on the post of Gram Rojgar Sewak, therefore, even the brother of a candidate, who is in the said position is also deemed to be included in the aforesaid list of relatives. The list of relatives includes all the blood relations but not the ‘brother’, who is also a blood relation, therefore, it appears to be a bona fide mistake. The word ‘ rkRi;Z ’ (purport) means to include relations which may likely to influence the procedure of selection for the post of Gram Rojgar Sewak. Therefore, even if the ‘brother’ is not mentioned in the said list of relatives, this Court is of the view that ‘brother’ is deemed to be included, as he is also likely to influence the selection procedure as a ‘sister’ could influence. 9. Even otherwise, the recruitment in question was started in the year 2008 and this writ petition was filed in the year 2009, which is pending for a long time and meanwhile much water has flown, therefore, now at this stage, no relief, as prayed by petitioner, could be granted. 10. In view of above discussion, I do not find any merit in the argument of learned counsel for petitioner. Therefore, the prayers of the writ petition are rejected. 11. However, considering the submission of petitioner that presently the post of Gram Rojgar Sewak in concerned Gram Panchayat is vacant, as the selected candidate has joined some other service, in such event the respondents are directed to initiate fresh procedure for recruitment in accordance with procedure prescribed and petitioner is at liberty to participate and his candidature shall also be considered on merit. 12. With the aforesaid observations, this writ petition is finally disposed of.