VIRENDRA KUMAR SRIVASTAVA Vs. STATE OF U P

JUDGEMENT

(1.) The petitioner was engaged on daily wage basis as a Junior Engineer in the Nagar Palika. Jaunpur. He worked some time in December. 1993. There was an advertisement published for recruitment for Junior Engineer, civil prescribing the age between 21 and 30 years with the stipulation that the period may be relaxed to the extent of 7 years maximum if a candidate has worked in any civil centralised service or the Palika to the extent of the period of service he has rendered continuously- Such a proviso was appended to the advertisement itself- This provision was in commensurate with Rule 9 proviso 1 of Part IV U. P. Palika (Centralised) Service Rules. 1966. The date of birth of the petitioner is not in dispute as being 2.11.1954 which calculates to 31 years 2 months as of LI.1986 being the cut off date provided in the said advertisement. If the petitioner has worked from December, 1983 till 1.2.1986. It will be exactly 2 years and a few days. If the two years is adjusted then definitely, the petitioner would be below 30 years at least by 8 months. Therefore, the petitioner's case cannot be rejected on the ground of being over aged for the purpose of recruitment pursuant to the said advertisement.

(2.) In this petition, it is alleged that the petitioner's case was not considered because of being over aged. The Nagar Palika had filed a counter-affidavit and represented by Shri Shasht Nandan. learned counsel which clearly supports the case of the petitioner. The petitioner had filed one writ petition earlier which is being Civil Misc. Writ Petition No. 8839 of 1987 which was disposed of on 3.11.1994 by a learned single Judge of this Court. The said order is Annexure-11 to the writ petition and perusal of the said order shows that the said writ petition was dismissed on the ground of mis-joinder of parties viz., that U. P. Public Service Commission and the District Magistrate being the appointing authority who were necessary parties though it was observed that the petitioner has a very good strong case to show that he has been denied of natural justice that he was entitled to age relaxation for his continuous service for more than 3 years before the impugned termination order as passed. Against the said order, the petitioner had preferred a Special Appeal being Special Appeal No. 876 of 1994. The said Special Appeal was disposed of by an order dated 31.1.1995 by dismissing the appeal with the liberty to the appellant to file a fresh writ petition on the same cause of action. Pursuant to the said liberty, the present writ petition has been filed impleadtng President. Nagar Palika, Jaunpur. Instead of District Magistrate who was an Administrator earlier and was substituted by the President, Nagar Palika, Jaunpur, as well as the U. P. Public Service Commission. Though the State Government had filed counter-affidavit in the earlier writ petition but no fresh counter-affidavit has been filed in the present writ petition. Be that as it may. Admittedly on record, it is found that the petitioner was engaged on daily wage basis in 1983 and has thereby served for exactly two years in the Palika on the cut off date, viz., 1.1.1986 and. therefore, by reason of first proviso to Rule 9 of the said rule, is entitled to relaxation of age to the extent of the said period of two years. If the credit is given to the said period, then the petitioner was well within age of 30 years as on the cut off date. Therefore, his case could not have been rejected on the ground of his being over aged. Mr. K. R. Singh. learned standing counsel has not pointed out from the earlier counter that the petitioner's case was rejected on merit or otherwise. It is also not so-recorded in the order dated 3.10.1994 passed in the earlier writ petition that the State Government had taken such stand. On the other hand, it appears from the said judgment, that the learned standing counsel was unable to produce the result of the Interview along with the ground for which the petitioner was considered unfit for absorption despite giving sufficient time and in that view of the matter adverse inference was drawn on the principle laid down under Section 115 of the Indian Evidence Act. The Court had found against the Government. It would be useful to quote the said finding for our present purpose as hereinafter : "Learned standing counsel contended that though from time to time, time was granted to the State to produce the result of the interview along with the grounds for which the petitioner was considered unfit for absorption but the State failed to produce those documents before the Court so there may be scope to draw adverse presumption against the State in view of the provisions of Section 115 of the Indian Evidence Act still then petitioner's present petition becomes non-maintainable on the ground of defects of necessary parties. It has been further contended that rulings cited by the petitioner do not hold good in view of the fact that there were cases of group 3 and group 4 employees who do not require to come through the U. P. Public Service Commission but the Junior Engineers are high officials and they cannot be appointed without being selected for the same by the U. P. Public Service Commission. Since the U. P. Public Service Commission has not been made a party, this Court cannot grant relief to the petitioner because for such relief those persons' presence are necessary as they are necessary parties within the meaning of Order I, Rule 9. Civil Procedure Code."

(3.) Despite such finding, the State Government did not choose to file counter-affidavit in the present writ petition or taken any step in respect of which adverse inference was drawn on the earlier writ petition so as to substantiate their case. Since no counter-affidavit has been filed in the present petition despite such a long period having lapsed and the record of the interview having not been produced, on the same analogy and reason, adverse inference can still be drawn as against the State in the present case. That apart, the allegation made in the writ petition having not been disputed and denied, the same are treated to have been admitted. The petitioner has alleged that his case was denied only on the ground of over-age and there was no other occasion to find him unfit for the purpose of absorption.