NARENDRA NATH TRIPATHI Vs. STATE OF U P

JUDGEMENT

(1.) Heard Sri M.D. Singh 'Shekhar', learned Senior Counsel assisted by Sri Manoj Nigam, learned counsel for the petitioner and Sri S.K. Tyagi, learned counsel appearing for the respondent No. 3 and learned Standing Counsel for the State-respondents.

(2.) Special Appeal No. 1260 has been filed challenging the order of the learned Single Judge dated 15.7.2013 passed in Writ Petition No. 47826 of 1999. Special Appeal No. 1261 of 2013 has been filed against the order of the learned Single Judge dated 15.7.2013 in Writ Petition No. 21815 of 2002. Since both the appeals relate to the same question, they were clubbed together and are being disposed of in this common judgement.

(3.) The brief history of the case is that 34 vacancies of Sub Inspector in U.P. Excise Department were advertised to be filled up on 5.8.1989. The Selection was to be made on the basis of the written and viva voce test. The written test was held on 28th and 29th of December, 1989. The appellant having qualified in the examination appeared in the interview. A select list of 30 candidates against 34 vacancies was published. Neither the appellant nor the respondent No. 3, Akhilesh Kumar Gupta were placed in the 'select list' of 30 candidates. Long thereafter on 21.9.1998, the respondent No. 3 received a communication about his correct address and on inquiry, the respondent No. 3 found that a communication had been issued to him from the office of the Excise Commissioner, U.P. at Allahabad but the same had returned 'undelivered'. The respondent no. 3 thereafter made a representation on 3.10.1998 to the Excise Commissioner and a reminder was also sent on 3.11.1998. He also filed an Affidavit that he had never received any letter or communication about the selection to the post of Sub Inspector. An inquiry was held and the Chief Development Officer, Allahabad, who was nominated as the Inquiry Officer submitted a report on 15.3.1999. The Inquiry Committee arrived at a conclusion that the then Excise Commissioner and Assistant Excise Commissioner (Personal) were bent upon awarding appointment to the appellant and the above observation was justified by the Committee with reasons. However, no further action was taken on the report and in the mean time, one Manoj Kumar Tiwari, who had been placed at higher place in the 'select list' than that of respondent No. 3 and appellant filed Writ Petition No. 28409 of 1998 before this Court. The said writ petition was disposed of by the learned Single Judge on 21.8.1999 and against the said judgement, Special Appeal (Defective) No. 666 of 1999 was filed. The respondent No. 3 also filed writ petition challenging the appointment of the appellant on the ground that he had been placed at higher position in the merit list than that of the appellant. In the mean time, the Department sought to cancel appointment of the appellant and such action was challenged by appellant in a writ petition. Orders passed in both the writ petitions are impugned in these two special appeals.