# Dr.Rakesh Kumar Mishra and others v. State of U.P

- **Citation:** (2011) 3 ILRA 1418
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2011-01-14
- **Bench:** Uma Nath Singh, D.K Arora
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dr-rakesh-kumar-mishra-and-others-v-state-of-u-p-42041
- **Pages:** 3

## Headnote

Constitution
of
India,
Article
226Selection-preference to local candidate
go by to merit-if local candidate much
below in merit in comparison of outside
candidates-no right to question the
mode of selection-petition dismissed.

Held: Para 9

Thus, priority or precedence would not
mean a reservation for local candidates
nor would it mean drawing of a separate
merit list for them. It is only on the
comparative assessment on merit of
local candidates vis-a-vis outsiders that
the local candidates if otherwise found
eligible but left behind with narrow
margin may get priority and sympathetic
consideration in comparison with the
outsiders. But in the instant case, the
selected candidates secured 50 marks
and above whereas the petitioners have
obtained the marks only within the
range of 30. Thus, in that case, they
would not be entitled to get any priority
over the outsiders.
Case law discussed:
Civil Appeal Nos.5757-5759 of 2002 (State of
U.P. & another vs. Om Prakash and others);
[2007 (25) LCD 1427]

## Text

1418 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
and Reconciliation Centre of this Court.
After compromise between the parties, it
would be futile to permit criminal case
pending against the applicants to continue
any further. As parties have come to
terms, it shall be sheer waste of time of
the Court, if the criminal proceeding
pending
against
the
revisionist
is
permitted to reach its logical end without
any hope for a result in favour of the
prosecution. In these circumstances the
revision deserves to be allowed.

12. The revision is allowed. The
impugned
summoning
order
dated
14.1.2011 is quashed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 02.12.2011

BEFORE
THE HON'BLE UMA NATH SINGH,J.
THE HON'BLE D.K ARORA,J.

Service Bench No. - 1347 of 2010

Dr.Rakesh Kumar Mishra and others

 ...Petitioner
Versus
State
of
U.P.
Through
Principal
Secy.Medical and Health Lko.

 ...Respondents

Counsel for the Petitioner:
Sri L.P.Singh

Counsel for the Respondents:
C.S.C.
Sri A.K. Vishwakarma
Sri Asit Kumar Chaturvedi
Sri Prashant Singh Atal

Constitution
of
India,
Article
226Selection-preference to local candidate
go by to merit-if local candidate much
below in merit in comparison of outside
candidates-no right to question the
mode of selection-petition dismissed.

Held: Para 9

Thus, priority or precedence would not
mean a reservation for local candidates
nor would it mean drawing of a separate
merit list for them. It is only on the
comparative assessment on merit of
local candidates vis-a-vis outsiders that
the local candidates if otherwise found
eligible but left behind with narrow
margin may get priority and sympathetic
consideration in comparison with the
outsiders. But in the instant case, the
selected candidates secured 50 marks
and above whereas the petitioners have
obtained the marks only within the
range of 30. Thus, in that case, they
would not be entitled to get any priority
over the outsiders.
Case law discussed:
Civil Appeal Nos.5757-5759 of 2002 (State of
U.P. & another vs. Om Prakash and others);
[2007 (25) LCD 1427]

(Delivered by Hon'ble Uma Nath Singh,J.)

1. We have heard learned counsel
for parties and perused the pleadings of
writ petitions.

2. This order shall also dispose of
connected Writ Petition No.1614 (S/B) of
2010 as both the writ petitions impugn the
same cause of action, namely, the exercise
of selection process completed pursuant
to the advertisement dated 23.06.2010
(Annexure-2 to the writ petition).

3. Learned counsel for petitioners
submitted that as per condition no.1 of the
advertisement, the candidates of the
district concerned are to get priority/
precedence over other candidates in the
selection, whereas in the instant case the
local candidates have not been given any
priority and instead the outsiders have
3 All] Dr.Rakesh Kumar Mishra and others V. State of U.P.
1419
been selected for appointment on the
posts in question, namely, Ayush Medical
Officer and Pharmacist.

4. Learned counsel also submitted
that condition no.1 should not be
interpreted to read as preference, but it is
to be read only as 'priority' and, thus, a
separate merit list should have been
drawn for the local candidates at district
level.

5. On the other hand, learned
counsel for respondents submitted that in
the selection process, merit is to be given
preference and once the advertisement has
been issued for the entire State, applicants
from outside the district, particularly from
neighbouring
districts
can
not
be
prevented in any manner from applying
and participating in the selection process.

6. Beside, learned State Counsel,
Shri Sanjay Bhasin also submitted that the
last selected candidate in the general
category has obtained 53 marks, the
O.B.C. Candidate has secured 50 marks,
and the candidate selected for Pharmacist
44 marks, whereas all the petitioners have
remained within 30 marks.

7. On due consideration of rival
submissions, we do not find any force in
the contentions of learned counsel for
petitioners. Priority/precedence does not
mean that merit should be given a
complete go by, particularly in the
selection process for appointment on the
specialized and technical posts, like
Medical Officers and Pharmacists. Thus
the submission in regard to drawing of a
separate select list for local candidates
does not find favour with the Court.

8. The Hon'ble Apex Court in Civil
Appeal Nos.5757-5759 of 2002 (State of
U.P. & another vs. Om Prakash and
others) has held that the word 'preference'
would mean that when the claims of all
candidates who are eligible and who
possess
the
requisite
educational
qualification
prescribed
in
the
advertisement are taken for consideration,
and when one or more of them are found
equally
positioned,
then
only
the
additional qualification may be taken as a
tilting factor, in favour of candidates visa-vis others in the merit list prepared by
the Commission. But preference does not
mean en bloc preference irrespective of
inter-se
merit
and
suitability.
This
judgment has been considered by a Full
Bench of this Court in Daya Ram Singh
vs. State of U.P. [2007 (25) LCD 1427]
wherein it has been held as under:

"The word 'Variyata' has been
defined in the Oxford Hindi into English
Dictionary, as priority or precedence.
Besides
from
the
two
Government
Circulars, which are referred to above
and which were issued subsequently, i.e.,
one dated 21.11.2005 and the latter dated
24.4.2006, the intention has been further
clarified.
As
we
have
noted,
the
Government Circular dated 21.11.2005,
gives the clarification specifically stating
that an Instructor/ Supervisor, who has
worked in the non-formal education
Scheme, if available and if having the
other conditions of eligibility, and if falls
in the prescribed category of reservation,
will be appointed, even if he is having less
number of marks. The Government
Circular of 24.4.2006, clearly states that
amongst the Instructors/ Supervisors, one
who has put in longer years of service,
will
be
preferred.
In
the
earlier
Government Circular dated 10.10.2005,
1420 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
those who had passed B.Ed./ L.T., were to
be given the preference while stating that
the
work
used
was
Adhimanyata
(preference). That clause has been
removed and the terms used in Clause
No.4, are Prathama Variyata, which will
mean 'first priority' or 'precedence'. The
provisions contained in this Clause, when
read
with
the
clarification
dated
21.11.2005, clearly lead to the inference
that the Instructors/ Supervisors, who
have worked in the non-formal education
Scheme ought to be preferred en bloc with
priority over the others, if such persons
are available."

9. Thus, priority or precedence
would not mean a reservation for local
candidates nor would it mean drawing of
a separate merit list for them. It is only on
the comparative assessment on merit of
local candidates vis-a-vis outsiders that
the local candidates if otherwise found
eligible but left behind with narrow
margin may get priority and sympathetic
consideration in comparison with the
outsiders. But in the instant case, the
selected candidates secured 50 marks and
above whereas the petitioners have
obtained the marks only within the range
of 30. Thus, in that case, they would not
be entitled to get any priority over the
outsiders.

10. Thus, we may hold that 'priority',
in the present context would mean
precedence of the local candidates who
are not left behind with a wide margin in
the merit, but are positioned at a
reasonable
distance,
in
comparative
assessment vis-a-vis the outsiders.

11. Thus, the writ petitions are
dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 05.12.2011

BEFORE
THE HON'BLE PRADEEP KANT,J.
THE HON'BLE S.V. SINGH RATHORE,J.

Service Bench No. - 1468 of 2011

Surendra Vikram Singh
 ...Petitioner
Versus
State
of
U.P.Through
Prin.
Secy.
Appointment Deptt. Lko. and other

 ...Respondents

Counsel for the Petitioner:
Sri Ashwani Kumar
Sri Adarsh Saxena

Counsel for the Respondents:
C.S.C.
Sri Manish Kumar

U.P. Higher Judicial Services Rule 1975placement
in
seniority-petitioner's
batchmates recommended for officiating
promotion-ignoring petitioner due to
adverse entry 1994-95 on 27.03.2000but approved subsequent on 18.08.2001Regular promotion on 13.04.2005 givenin tentative seniority list published on
03.03.2011-petitioner placed at serial
no. 455-but in revised list got placed at
Serial no. 678-un-communicated adverse
entry can not be ground for super
seating-once placed properly-hardly any
occasion to disturb such placementdirection issued accordingly.

Held: Para 27

As
per
the
own
criteria/principles
determined by the Seniority Committee,
this was a case which will fall in the third
category
viz.
where
the
officiating
promotion was denied because of the
presence of the adverse entry, which
entry was not to be taken into account
and
consequently
the
officiating
promotion was given. The Seniority