KUNWAR PRASAD Vs. REGIONAL TRANSPORT OFFICER

JUDGEMENT

(1.) The petitioner alleges that in the merit list for selection and appointment of class IV employees, the petitioner was placed at waiting list at Serial No. 5. Mr. R.K. Nigam, learned Counsel for the petitioner contends that all the candidates had obtained equal marks and the list was prepared on merit-cum-seniority basis. The petitioner was the seniormost candidate among the five candidates in the waiting list by reason of the date of birth. The candidates at Serial Nos. 1 and 2 have since been taken in service, overlooking the case of the petitioner. According to him, the petitioner should have been taken in before the candidates at Serial Nos. 1 and 2 could be taken in.

(2.) Mr. R.K. Saxena, learned Standing Counsel submits that a counter affidavit has since been filed but the same is not on the record. The office was directed to trace out the same, while the copy was taken on the record. From paragraph 6 of the same, it appears that the person at Serial No. 4 got 16 marks whereas the persons at Serial Nos. 1, 2, 3 and 5 got 17 marks. Thus these four persons having got 17 marks, they should have been appointed on the basis of the date of birth. Admittedly, the petitioner also got 17 marks. It is apparent from paragraph 6 of the counter-affidavit that the date of birth of the petitioner was 1st January, 1966 while the persons at Serial Nos. 1 and 2 had got the date of birth as 7th February, 1969 and 31st December, 1977 respectively. Thus it appears from the statement made in paragraph 6 of the counter-affidavit aforesaid that the petitioner had a claim to be placed at Serial No. 1 and the preference of being taken before Serial Nos. 1 and 2. In such circumstances, on the basis of admitted position, it appears that the petitioner's case has been overlooked illegally in preference of those at Serial Nos. 1 and 2. Thus there has been a discrimination. No ground has been pointed out from the counter affidavit as to the reason or justification of the discrimination meted out towards the petitioner.

(3.) In the circumstances, the writ petition is allowed. In case the persons at Serial No. 1 Sri Ramesh Kumar Pandey and at Serial No. 2 Mr. Anil Kumar had been taken form the waiting list, in that event the petitioner shall also be taken in, if necessary by adjusting him even by way of ad hoc appointment subject to adjustment against a regular vacancy as soon available with effect from date not later than three weeks form the date of production of a certified copy of this order to the concerned respondents. By an order dated 28th May, 1999, one post was directed to be kept vacant by this Court. The same may also be taken note of No cost.