VIRENDRA KUMAR MISRA Vs. STATE OF UTTAR PRADESH

JUDGEMENT

(1.) A post of Stenographer grade-I fell vacant in the collectorate of Azamgarh on account of retirement of one Shri Mahadeo Prasad on 31.7.89. Another vacancy of Stenographer grade-II was created under the Sub-Divisional Magistrate, Budhanpur, Azamgarh. The respondents on 3.9.89 advertised in the news paper 'Aaj' for filling up the vacancy of Stenographer grade-I and grade-II by direct recruitment. The advertisement permitted that even those candidates could apply whose names were not registered in the employment exchange. The candidates were further informed that they should be personally present with their testimonials, etc. on 5.9.89 at 10 a.m. as their tests may be held at 12 p.m. on the same day. The petitioner was not registered in the employment exchange. He applied for direct recruitment. The respondent No. 4 constituted a selection committee under Rule 16 of the U. P. District Office (Collectorate) Clerk Grade Service Rules, 1980 (in brief rules). The test for direct recruitment was held on 5.9.89. On next day, the selection committee did not find any candidate, from grade-II, suitable for promotion as they could not qualify in the written test held on 6.9.89. The selection committee decided that since no departmental candidate was suitable to be promoted on the vacant post of Stenographer grade-I, the petitioner who on the test held on 5.9.89 was placed at serial number one may be appointed. The Additional District Magistrate forwarded the recommendation of the selection committee to the District Magistrate who appointed him on the same day, i.e., 6.9.89 as stenographer grade-I on temporary basis and confirmed him by order dated 8.9.90.

(2.) Respondent No. 5. Shyam Nath Chaurasia, who was found unsuitable for promotion made a representation to the Commissioner stating that the petitioner was attached as Hindi Stenographer to Collector. Azamgarh and worked from 1963 to 1989. He worked from 1969 to 1973 with Sub-Divisional Magistrate. Sadar. He worked as Hindi Stenographer to Collector from 1973 to 1975. He worked as Stenographer to Additional District Magistrate (Finance and Revenue from 1978. Since 1985 he was working on the newly created post of Stenographer to Additional District Magistrate (Executive) till the date he made representation. He further said in his representation that the District Magistrate. Azamgarh was interested in making appointment on the post of Stenographer grade-I which is clear from the fact that he was present at the time of written test of the respondent No. 5 and directed the Additional District Magistrate (Executive) to increase the speed of the dictation, therefore, the petitioner could not take the dictation properly nor could he convert the same into a proper type-written matter. On the same date, the petitioner was selected by direct recruitment. Since the respondent No. 5 was found unsuitable, he declared his intention of challenging the selection by a writ petition. The District Magistrate on corning to know of it, in order to bring pressure upon the respondent No. 5, transferred him and posted him in the court of Sub-Divisional Officer, Lalganj. When he approached the Collector to explain his difficulties, then the Collector told him that if he does not file a writ petition, then his transfer order to Lalganj will be stayed. He could not also dare to file a representation to the Commissioner out of fear of the Collector. He filed a representation to the Commissioner only after the Collector was transferred. He further stated that there were four candidates working as stenographer grade-II including him who were eligible for promotion as Stenographer grade-I. Out of the four departmental candidates, two candidates, namely, Shivanand and Shankar Ram did not participate in the selection and gave in writing that their candidature should not be considered for promotion to the post of Stenographer grade-I. The other two persons Adil Abbasi and respondent No. 5 appeared in the written test held by the Additional District Magistrate. Respondent No. 5 was rejected as he obtained zero marks in the written test. The Additional District Magistrate who had taken the written examination of respondent No. 5 was the same officer with whom he was working at the time of his written test. He claimed that the appointment of petitioner as well as entire selection process was contrary to the rules. It was claimed that as per Rule 5 (ii), promotion on the post of Stenographer grade-I could be made from amongst permanent Stenographers grade-II and if suitable persons were not available for promotion, only then the posts could be filled by direct recruitment. It was claimed that his work and conduct was always appreciated by his superior officers and he was awarded excellent entries in his character roll but the entries recorded In his character roll were not considered and he was illegally denied promotion to the post of Stenographer grade-I The respondent further claimed that till the respondents came to conclusion that no suitable candidate was available for promotion to the post of stenographer grade-I, they could not have resorted to appointment by direct recruitment. The representation filed by respondent No. 5 was allowed by the Commissioner by his order dated 27.11.91 and it was directed that he may, be promoted as Stenographer grade-I and the petitioner be reverted to the post of Stenographer grade-II.

(3.) This order of the Commissioner was challenged by the petitioner before this Court by means of Civil Misc. Writ Petition No. 37261 of 1991 which was allowed on 16.1.95 and the order dated 17.11.91 was quashed. The main reason for allowing the petition was that the Commissioner had passed the order without hearing the petitioner. The Commissioner was directed to decide the matter afresh keeping in view the observations made in the judgment and in accordance with law after giving opportunity of hearing to the petitioner and respondent No. 5. After the matter was remanded, the Commissioner reconsidered the entire matter and by his order dated 6.12.96 allowed the representation of respondent No. 5 and recording a finding that while the representation of respondent No. 5 was pending before him, the District Magistrate confirmed the petitioner. He held that the procedure for direct recruitment adopted by the respondents was illegal as proceedings for promotion and direct recruitment were taken up simultaneously which was contrary to rules and appointment by direct recruitment could have been made only when there was no suitable candidate available in Stenographer grade-II to be promoted on the post of Stenographer grade-I. He recorded a finding that on 31.8.89, a selection committee was constituted but there was no order on record appointing the selection committee nor any documents pertaining to selection are available which could show as to on what basis departmental candidates were rejected for promotion on the post of Stenographer grade-I. He held that the written test of respondent No. 5 was taken by Sri Chandrika Prasad Tewari, Additional District Magistrate (Administration) under whom Sri Chaurasia was working and not by Principal/Instructor of the Industrial Training Institute. The Commissioner observed that Sri Chandrika Prasad Tewari, the Additional District Magistrate himself had awarded entries in the character roll of the petitioner on 25.4.89 for the year 1988-89 which is quoted below :