# Anoop Kumar Rathore v. Chief Engineer, Jhansi Zone, P.W.D., Jhansi and others

- **Citation:** (2009) 1 ILRA 221
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2009-01-12
- **Case number:** Civil Misc. Writ Petition No. 51691 of 2006
- **Bench:** Rajes Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/anoop-kumar-rathore-v-chief-engineer-jhansi-zone-p-w-d-jhansi-and-others-41349
- **Pages:** 4

## Headnote

Constitution of India Art. 226-Right of
appointment-junior
clerk
postspetitioner obtained much higher marks
in
written
examination-than
other
selected candidates appointment denied
on lack of Hindi Typing experience-a
preferential
qualification-comes
in
picture only when the marks of other
candidates
are
equal-admittedly
petitioner obtained 39 marks where as
other candidature got only 31, 32, 33
etc.-denial of appointment-held-illegalconsequential direction given.

Held: Para 9

Perusal of the paragraphs 12 and 13 of
the
writ
petition
shows
that
the
petitioner has got 39 marks while other
selected candidates, namely, Sanjeev
Kumar, Umashankar Rakwar, Rajendra
Sharan
Rakwar,
Shishupal,
Vishnu
Kumar and Santosh Kumar obtained only
37.265, 36.40, 32.265, 32.355, 31.70 and
30.10 marks lower than the petitioner's
222 INDIAN LAW REPORTS ALLAHABAD SERIES [2009

marks and, therefore, the denial of the
selection
of
the
petitioner
by
the
respondents is wholly unjustified.
Case law discussed:

## Text

1 All] Anoop Kumar Rathore V. Chief Engineer, P.W.D., Jhansi Zone and others

221
not brought to the Division Bench
decision in Agricultural & Industrial
Syndicate, Ltd. (supra). Therefore, the
said judgement of the Hon'ble Single
Judge should be read subject to already
existing law as laid down earlier by the
aforestated Division Bench. Moreover,
the decision was rendered taking into
consideration the factual aspects of the
case rather the legal principle delineated
under section 6 of the Act, which is
apparent from the paragraphs-6 and 7 of
the report.

33. The decision delivered in Suraj
Bhan Vs. D.C. (supra) although supports
the contention of the petitioners but in
view of the Division Bench decision in
the case of Agricultural & Industrial
Syndicate,
Ltd.
(supra)
holding
otherwise, the decision of Division Bench
should be given preference and in my
considered view no such writ petition can
be issued. The said view is further
fortified by the decisions given in Deo
Nath Kewat Vs. DDC 1990 RD 117;
Neelam Chaudhary Vs. State of U.P.,
1999 RD 400 and Sazid and others V s.
Commissioner of Consolidation 1999
RD 468.

34.

Viewed
as
above,
the
preponderance of judicial opinion is that
in such matters the writ as claimed by the
petitioners for quashing the notification
issued under section 6 of the Act, cannot
be issued. It is not necessary for me to
discuss the other cases referred by the
learned counsel for the parties being
besides the issue involved.

35. In view of the above discussion,
I find no merit in the writ petition, the
writ petition is dismissed.

In the result, all the writ petitions are
hereby dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.01.2009

BEFORE
THE HON'BLE RAJES KUMAR, J.

Civil Misc. Writ Petition No. 51691 of 2006

Anoop Kumar Rathore
...Petitioner
Versus
Chief Engineer, Jhansi Zone, P.W.D.,
Jhansi and others
 ...Respondents

Counsel for the Petitioner:
Sri Indra Raj Singh

Counsel for the Respondents:
Sri B.P. Singh
Sri Ravi Ranjan
S.C.

Constitution of India Art. 226-Right of
appointment-junior
clerk
postspetitioner obtained much higher marks
in
written
examination-than
other
selected candidates appointment denied
on lack of Hindi Typing experience-a
preferential
qualification-comes
in
picture only when the marks of other
candidates
are
equal-admittedly
petitioner obtained 39 marks where as
other candidature got only 31, 32, 33
etc.-denial of appointment-held-illegalconsequential direction given.

Held: Para 9

Perusal of the paragraphs 12 and 13 of
the
writ
petition
shows
that
the
petitioner has got 39 marks while other
selected candidates, namely, Sanjeev
Kumar, Umashankar Rakwar, Rajendra
Sharan
Rakwar,
Shishupal,
Vishnu
Kumar and Santosh Kumar obtained only
37.265, 36.40, 32.265, 32.355, 31.70 and
30.10 marks lower than the petitioner's
222 INDIAN LAW REPORTS ALLAHABAD SERIES [2009

marks and, therefore, the denial of the
selection
of
the
petitioner
by
the
respondents is wholly unjustified.
Case law discussed:

(Delivered by Hon'ble Rajes Kumar, J.)

1. Heard Sri Indra Raj Singh,
learned counsel for the petitioner and
learned Standing Counsel.

2. By means of the present writ
petition
under
Article
226
of
the
Constitution of India, the petitioner has
prayed for quashing the impugned order
dated
26.08.2006
passed
by
the
respondent no.1, by which the claim of
the petitioner for the selection on the post
of Junior Clerk has been denied.

3. Brief facts giving rise to the
present writ petition are that in pursuance
of the advertisement dated 10.08.1998,
petitioner applied for the selection of
Junior Clerk, Petitioner appeared in the
written examination held on 13.12.1998.
By call letter dated 05.02.1999, the
petitioner was called to appear in the
typing test on 13.02.1999 and the result of
the written test was declared by the
respondents. However, the petitioner has
not been selected on the ground that on a
consideration of the marks of the typing
test which was considered to be the
essential qualification, the petitioner did
not qualify. Being aggrieved by the said
action, petitioner filed the writ petition no.
7660 of 1999 with the contention that the
qualification of the Hindi typing was
preferential qualification and not essential
qualification and the same could not be
considered for the purposes of selection
and the question for consideration of the
preferential qualification may only come
for consideration when the marks of two
candidates become equal. This Court vide
order dated 09.09.2005 has allowed the
writ petition and directed the respondents
to permit the petitioner to appear in the
interview. The petitioner appeared in the
interview and got 6.600 marks. The total
marks obtained by the petitioner thus
comes to 39.00. However, petitioner has
been denied selection by the impugned
order on the ground that as per the
Government Order Hindi Typing was
essential qualification and by mistake in
the advertisement it has been shown as
preferential qualification and since the
marks of nine candidates are higher than
the petitioner's marks, therefore, petitioner
is not eligible for selection. Being
aggrieved by the said order, petitioner
filed the present writ petition.

4. Learned counsel for the petitioner
contended that this Court in the earlier
writ petition has already held that Hindi
typing qualification was only preferential
qualification
and
not
essential
qualification and could be considered
only in a situation when the two
candidates could get equal marks. He
submitted that the order of this Court has
become final inasmuch as no appeal has
been filed against the said order. He
however, referred paragraphs 12 and 13
of the writ petition to show that on
exclusion of the typing marks, the marks
of the petitioner was higher than the other
six candidates, namely, Sanjeev Kumar,
Umashankar Rakwar, Rajendra Sharan
Rakwar, Shishupal, Vishnu Kumar and
Santosh Kumar who obtained only
37.265, 36.40, 32.265, 32.355, 31.70 and
30.10 marks while the petitioner obtained
39.00 marks excluding typing test and
therefore, the petitioner was entitled for
selection. He further submitted that the
averments made in paragraphs] 2 and 13
1 All] Anoop Kumar Rathore V. Chief Engineer, P.W.D., Jhansi Zone and others

223
of the writ petition has not been denied in
the counter affidavit which has been
replied vide paragraphs 13 and 14 of the
counter affidavit.

5. Learned Standing Counsel is not
able to dispute the averments made in
paragraphs 12 and 13. He however,
submitted that in the advertisement dated
10.08.1998 inadvertently the Hindi typing
qualification
has
been
shown
as
preferential qualification while it was the
essential qualification and the selection
was to be made after taking into account
the marks of Hindi typing also and if the
marks of the typing could be considered,
the position of the petitioner was lower to
the other candidates, who have been
selected and, therefore, the petitioner has
rightly not been selected.

6. Having heard the learned counsel
for the parties, I have perused the
impugned order and other documents
annexed with the writ petition.

7. This Court in Writ Petition No.
7660 of 1999, Anoop Kumar Rathore
Versus Superintending Engineer and
others decided on 09.09.2005 held as
follows:

"In
the
present
case,
the
advertisement clearly provided for
essential qualification and preferential
qualification.
Therefore,
preference
would come into play only if other
quality marks of different candidates
are equal. It is the petitioner's case that
on the basis of written examination his
name was placed at serial no.6 of the
merit list of OBC category candidates
therefore, he was required to be called
for interview. The respondents have
however taken a case that the petitioner
did
not
possess
the
minimum
qualification since he did possess the
minimum typing speed therefore, he
was not called for interview. It is also
their case that Hindi typing was an
essential qualification for the posts
advertised and also according to the
Rules of 1998. Since the advertisement
as issued has not been denied and no
corrigendum has been issued correcting
the qualifications required for such
posts this court is of the view that the
procedure for selection is governed by
the Rules of 1998 and that Hindi typing
was only a preferential qualification
required for selection only if other
marks of different candidates were
equal. Therefore, the respondents who
had declared the petitioner successful
in the written test had to prepare a
merit list thereof and invite the
successful candidates for interview. It
was only at that stage that preferential
qualification of Hindi typing would
play a part in the selection if marks of
different candidates were otherwise
equal.
For the aforesaid reasons this writ
petition deserves to be allowed. An
interim order dated 26.02.1999 was
passed in this writ petition wherein it
was provided that the selection and
appointment on the post of junior clerk
pursuant to the advertisement dated
10.08.1998 shall be subject to the result
of this writ petition. The respondent
no.1 is therefore, directed to permit the
petitioner to appear in the interview to
be held as per the provisions of the
1998
Rules
and
the
Selection
Committee/Interview
Board
may
consider the preferential qualification
inter se the successful candidates. Since
the interview has already been held
therefore, the respondent no.1 shall
224 INDIAN LAW REPORTS ALLAHABAD SERIES [2009

make arrangement to interview the
petitioner and make available the
records of the interview already held
before
the
Board
for
its
due
consideration.
This writ petition stands allowed
as above. No order is passed as to
costs".

8. The aforesaid order has become
inasmuch as it has not been shown that it
has been challenged. This Court has
already held that typing qualification was
only preferential qualification and not
essential qualification was only relevant
when the two candidates get the equal
marks. Therefore, it is not open to the
respondents to take the plea again that the
typing qualification was the essential
qualification. In the counter affidavit,
paragraphs 12 and 13 of the writ petition
has not been disputed.

9. Perusal of the paragraphs 12 and
13 of the writ petition shows that the
petitioner has got 39 marks while other
selected candidates, namely, Sanjeev
Kumar, Umashankar Rakwar, Rajendra
Sharan Rakwar, Shishupal, Vishnu Kumar
and Santosh Kumar obtained only 37.265,
36.40, 32.265, 32.355, 31.70 and 30.10
marks lower than the petitioner's marks
and, therefore, the denial of the selection
of the petitioner by the respondents is
wholly unjustified.

10. In the result, writ petition is
allowed. The impugned order dated
26.08.2006 is set aside and the respondent
no. 1 is directed to give the appointment
to the petitioner on the post of Junior
Clerk in pursuance of the advertisement
dated 10.08.1998 forthwith preferably
within a period of two weeks. However,
having
regard
to
the
facts
and
circumstances, the appointment shall be
given with prospective effect and the
petitioner may not be entitled to claim any
back wages.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.01.2009

BEFORE
THE HON'BLE SHABIHUL HASNAIN, J.

Civil Misc. Writ Petition No.55481 of 2006

Raisul Hassan

...Petitioner
Versus
State of U.P. and another ...Respondents

Counsel for the Petitioner:
Sri. Raj Kumar Khanna

Counsel for the Respondents:
Sri. Prem Chandra
S.C.

Constitution
of
India-Article
226Pension-petitioner retired from the post
of Store Keeper working in Nagar Nigam,
Moradabad-more than four years elapsed
even representation not decided-heldattitude of employer towards sick, poor
infirm
employee
should
be
alike
guardian-against
the
Constitution
mandate-direction for payment of all
dues within three months issued.

Held: Para 15

There is neither any inquiry pending
against the petitioner nor any other
disciplinary
proceedings
were
ever
initiated
against
him.
There
is
no
allegation of any embezzlement nor any
recovery for any loss caused to the
department. Charge has been handed
over to one Dashrath Lal on 28.2.2005
itself. Charge certificate is duly countersigned by Varishtha Nagar Swasthya
Adhikari, Moradabad. No dues certificate
have also been submitted, yet not a