HARI RAM YADAV Vs. STATE OF U P

JUDGEMENT

(1.) All these three writ petitions arise out of selections for the post of 'Village Development Officer' (in short VDO) initiated by advertisement dated 31.8.1998, for appointment in Department of Rural Development, Government of U.P. The selections were held under the U.P. Procedure for Selections for Direct Appointment for Group 'C Posts (Outside the Purview of U.P. Public Service Commission) Rules 1998 (in short the Rules of 1998). The results were published on 29.5.1999.

(2.) A Writ Petition No. 42041 of 2000 was filed by Sri Hari Ram Yadav for a direction to the respondents to consider the petitioner for appointment on the post of V.D.O., with highest marks in waiting list. The Writ Petition was allowed by a Single Judge of this Court on 27.7.2001 with the findings that the petitioner had participated in the selections as and Other Backward Class' (OBC) candidate for total 43 vacancies for the post of VDO advertised on 31.8.1998. He secured 48.87%' marks and was placed in the waiting lit of OBC candidates, drawn separately. The petitioner made a representation that two selected general category candidates did not join and since the petitioner had secured higher marks than the first candidate in the waiting list of the general candidates he was entitled to be appointed against one of these vacancies. In this writ petition, the merit list was brought on record and annexed with the Supplementary Counter Affidavit of Sri Tez Pratap Misra, Block Development Officer, Varanasi. From this list, the Court found that the last candidate in general category Sri Pawan Kumar Misra had secured 47.93 % marks, whereas the petitioner had secured 48.87% marks, in the list of candidates selected in OBC category and was placed at serial No. 14 in the list of selected candidates belong to OBC category. The Court found that the list was not prepared in accordance with Section 4 (6) of U.P. Public Services (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act 1994 (in short the U.P. Act No. 4 of 1994) which provides that the candidates belonging to reserved category, selected on merits should not be counted in the reserved quota. It was found that some of the OBC and SC candidates had secured higher marks than the general category candidates. The writ petition was consequently allowed and respondents were directed to offer appointment to the petitioner forthwith and to draw fresh select list in accordance with the Section 3 (6) of the U.P. Act No. 4 of 1994 and appoint the left out persons belong to reserved categories by making consequential orders, if necessary, by termination of services of the persons illegally appointed, due to non-compliance of the provisions of U.P. Act No. 4 of 1994 within a month from the date of receipt of the certified copy of the order.

(3.) This judgement in Writ Petition No. 42041 of 2000, was challenged in two Special Appeal Nos. 256 of 2002 and 264 of 2004 filed by appellants, who were selected in the general category. Out of the total of 8 appellants, 07 of them were selected as general category candidates in the main select list and two of them namely Akash Sawhany (appellant No. 2, in Special Appeal No. 256 of 2002), Rajeev Nath Tiwari (appellant No. 4, Special Appeal No. 264 of 2004) were selected from the waiting list. Both these appeals were allowed by Division Bench on the ground that learned Single Judge did not consider the judgement in Post Graduate Institute of Medical Education and Research, Chandigarh and Ors. v. K.L. Narasimha n this judgement, an observation was made at page 293 as follows;