SANGEETA DEVI Vs. STATE OF U P

JUDGEMENT

(1.) HEARD learned counsel for the petitioner and learned Standing Counsel for the opposite parties. Petitioner has challenged the order by which her representation dated 8th September, 2006 was decided on 18.12.2006. The contention of the petitioner was rejected. The order has been annexed as annexure No.1 to this writ petition. The facts as set out in the writ petition are that the petitioner applied for appointment on the post of Anganbari Sahayika. Advertisement for the same was issued on 17.12.2005. The allegation of the petitioner is that in pursuance of the advertisement the petitioner and the opposite parties No.6 applied. The petitioner was selected and the name of the opposite party No.6 was kept under waiting list. A complaint was made on 8.9.2006 to the District Magistrate, Pratapgarh that the petitioner was not the resident of village Kalakankar, Pratapgarh and instead she was resident of village Kodari, District- Raebareily. On the basis of this complaint, the opposite party No.3 cancelled the appointment of the petitioner, who challenged the same in a writ petition being writ petition No.8489 (S/S) of 2006. Hon'ble Court passed the orders that the petitioner may represent her case before the District Magistrate who was directed to pass appropriate orders after hearing all the parties. The operative portion of the order is being quoted here for convenience:- "...The writ petition is accordingly allowed and the order dated 8.9.2006 is hereby quashed. However, it will be open for the opposite parties to proceed afresh after giving an opportunity to the petitioner and then decide as to who is the rightful claimant of the post and then that candidate should be given appointment in accordance with law, within a period of two months from the date a certified copy of this order is produced before the competent authority." The District Magistrate decided the representation as mentioned above and rejected the contention of the petitioner. He further appointed Km. Neelu, who is, opposite party No.6, on the said post. The argument of the petitioner is that her representation has wrongly been decided and the appointment of opposite party No.6 has been given against the judgment of Hon'ble Supreme Court. He further argued that even if the petitioner's appointment was to be cancelled by the District Magistrate, the opposite party No.6 could not have been given the appointment directly by the District Magistrate. According to him, the District Magistrate should have advertised the post again and started the process de-novo inviting fresh applications from all concerned. In support of this contention he has cited the judgment reported in 1993 Supp. (1) Supreme Court cases 714 (Dr. Prit Singh Vs. S. K. Mangal and others). I have gone though the judgment and respectfully come to the conclusion that the ratio laid down in the said judgment is not applicable to the present case because of the specific directions of the High Court, which has already been narrated above in the writ petition No.8489 (S/S)of 2006. Learned Standing counsel, on the other hand, has pointed that normally if the appointment of the petitioner was to be rejected then the procedure for fresh appointment should have been adopted but in the present case, the Hon'ble Court while directing the opposite party to decide the representation had categorically clarified to find out as to who was the rightful claimant to the post and then the candidate would be given appointment in accordance with law. In the present case, if de-novo process had to be started then it would mean inviting applications afresh from the open public which could include the rightful claimant which was to be given appointment under the directions of the Court. In the present facts and circumstances of the case, it would only mean that if a waiting list candidate fulfilled all the criteria of appointment then in the resultant vacancy created due to termination of the petitioner was to be given only to the wait listed candidate. The order of Hon'ble High Court could not be interpreted in any other manner hence the contention of the petitioner that even if services of the petitioner was to be terminated, the opposite party No.6, the wait listed candidate could not have been given appointment is misconceived. In fact, the appointment of opposite party No.6 has been made under the directives of the Court. The petitioner has not been able to prove that she was not given any opportunity of hearing and that she was able to prove her domicile to be that of Kalanakar, Pratapgarh on the relevant date. The representation has been decided by a speaking order which clearly shows that the petitioner was heard in detail and the relevant document along with Parivar Register was also seen by the District Magistrate. In view of above discussions, the petition appears to be misconceived and devoid of merit, hence dismissed. No order as to costs.