ROHIT KUMAR NISHAD Vs. TRANSPORT COMMISSIONER LUCKNOW

JUDGEMENT

(1.) The petitioner was engaged on a class IV post in the transport department. Subsequently, pursuant to the provisions of U. P. Transport Department Enforcement Staff (Group 'D') Service Rules, 1979, a selection was held for promotion of Group 'D' staff to the post of enforcement constables sometimes in 1985. In the said selection, the petitioner was selected and was placed at serial No. 5 of the list on the basis of seniority along with one Kamta Prasad, who was placed at serial No. 1 of the said list. In the said list, the place of appointment was also indicated. According to the petitioner, the appointment was effected by a letter dated 28th May. 1985. Subsequently, by an order dated 25.6.1985, the petitioner was reverted along with said Kamta Prasad on the alleged ground that at Allahabad the post of enforcement constable was already filled up. Therefore, it was assured that separate orders would be passed in respect of the petitioner which is contained in Annexure-3. Subsequently, pursuant to a fresh selection held sometimes in April. 1990 after the Selection Committee was constituted in 1989, a fresh selection was made, in which the petitioner had participated but was not selected. The petitioner, therefore, challenges the said selection and prays for quashing thereof on the ground that he having been selected earlier and that there had been an earlier selection, there is no scope for a fresh selection,

(2.) Mr. Ravi Kant, learned counsel for the petitioner contends that in the counter-affidavit, it has been alleged that the selection held in 1985 was cancelled on account of irregularity in constitution of the Selection Committee. According to him, there was no irregularity in constitution of the Selection Committee and, therefore, the alleged cancellation is arbitrary and illegal and therefore cannot be sustained. He secondly contends that so long the said selection made in 1985 continues, the respondents cannot undertake a fresh selection without giving appointment to the petitioner selected earlier. He further contends that the alleged ground on which the petitioner was found unfit, is wholly a myth and therefore the petitioner should be allowed to join the promotional post with effect from the date since when his immediate juniors had joined the post on promotion.

(3.) Mr. K. R. Singh, learned standing counsel on the other hand contends that the selection having been cancelled and the petitioner having participated in the subsequent selection and having been found unsuccessful, he cannot turn round and question the validity of the selection. He further contends that the petitioner having not challenged the cancellation of the earlier selection, he cannot succeed in the present writ petition in obtaining the relief of cancellation of subsequent selection. It is also contended that the petitioner was found unfit on account of his being physically shorter than the prescribed height, therefore, he cannot claim any relief.