# Ramesh Singh v. State of U.P. and others

- **Citation:** (2009) 2 ILRA 724
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2009-08-18
- **Case number:** Civil Misc. Writ Petition No. 6057 of 2007
- **Bench:** A.P. Sahi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ramesh-singh-v-state-of-u-p-and-others-41444
- **Pages:** 4

## Headnote

Constitution
of
India
Article-226-
.Selection of Shiksha Mitra- Respondent
No.5 got appointed proceeding forged
marks
sheet-stood
top
in
meritpetitioner as well as Respondent No.5
worked as Anudeshak under non formal
Education Scheme-authorities accepted
the
correction
of
mark
sheet
of
Respondent No.5 further in view of G.O.
24.04.06
-possess
longer
experience
under NFE as such got selected-heldwholly mis conceived G.O. relied by
authorities has no retrospective effect-
impugned
order
rejecting
claim
of
petitioner quashed with direction to D.M.
For
fresh
consideration
in
light
of
observations made by Court.

Held: Para-10

Apart from this, it is also evident that
Respondent No.5 first attempted to get
herself selected on the strength of
incorrect marks having been reflected.
This conduct of Respondent No.5 also
cannot be appreciated. The fact of the
correction of marks reflected in the
selection has been admitted in the
counter-affidavit. For all the reasons
aforesaid and keeping in view the
Division Bench decision in the case of
Smt. Parvati Devi (supra), the order
impugned
is
unsustainable.
The
impugned
order
dated
14.12.2006
(Annexure-7 to the writ petition) is
quashed. The matter is remitted back to
the District Magistrate, Etawah, to pass a
fresh
order
in
the
light
of
the
observations made herein above after
considering the claims of the parties as
expeditiously as possible but not later
than
3
months
from
the
date
of
production of a certified copy of this
order before him.
Case Law discussed:
2007 (2) ESC 788 (DB),
2007 (2) ESC 788 (DB),
2008 (1) ADJ 712 (DB).

## Text

724 INDIAN LAW REPORTS ALLAHABAD SERIES [2009

order dated 24.12.2008 passed by D.D.C.
shall not be given effect to.

8. Office is directed to supply a copy
of this order free of cost to learned Chief
Standing counsel within a week, who
must send it to the Commissioner/
Director of Consolidation for being
circulated
to
all
the
consolidation
authorities i.e. C.Os., S.O.Cs. ad D.D.Cs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.08.2009

BEFORE
THE HON'BLE A.P. SAHI, J.

Civil Misc. Writ Petition No. 6057 of 2007

Ramesh Singh

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

Counsel for the Petitioner:
Sri Pankaj Kumar Srivastava,
Sri P.C. Sharma
Sri Himanshu Upadhyay

Counsel for the Respondent:
Sri K. Shahi,
Sri V.K. Singh
Sri Anil Kumar Sharma
S.C.

Constitution
of
India
Article-226-
.Selection of Shiksha Mitra- Respondent
No.5 got appointed proceeding forged
marks
sheet-stood
top
in
meritpetitioner as well as Respondent No.5
worked as Anudeshak under non formal
Education Scheme-authorities accepted
the
correction
of
mark
sheet
of
Respondent No.5 further in view of G.O.
24.04.06
-possess
longer
experience
under NFE as such got selected-heldwholly mis conceived G.O. relied by
authorities has no retrospective effect-
impugned
order
rejecting
claim
of
petitioner quashed with direction to D.M.
For
fresh
consideration
in
light
of
observations made by Court.

Held: Para-10

Apart from this, it is also evident that
Respondent No.5 first attempted to get
herself selected on the strength of
incorrect marks having been reflected.
This conduct of Respondent No.5 also
cannot be appreciated. The fact of the
correction of marks reflected in the
selection has been admitted in the
counter-affidavit. For all the reasons
aforesaid and keeping in view the
Division Bench decision in the case of
Smt. Parvati Devi (supra), the order
impugned
is
unsustainable.
The
impugned
order
dated
14.12.2006
(Annexure-7 to the writ petition) is
quashed. The matter is remitted back to
the District Magistrate, Etawah, to pass a
fresh
order
in
the
light
of
the
observations made herein above after
considering the claims of the parties as
expeditiously as possible but not later
than
3
months
from
the
date
of
production of a certified copy of this
order before him.
Case Law discussed:
2007 (2) ESC 788 (DB),
2007 (2) ESC 788 (DB),
2008 (1) ADJ 712 (DB).

(Delivered by Hon'ble A.P. Sahi, J.)

1. The petitioner prays for quashing
of the order dated 14.12.2006 passed by
the District Magistrate, Etawah, rejecting
the claim of the applicant for being
appointed as Shiksha Mitra against the
advertisement dated 27.10.2005.

2. The petitioner along with
respondent
No.5-Smt.
Shiv
Kumari
applied for the post of appointment as
Shiksha Mitra in terms of Government
Order dated 10.10.2005; copy whereof is
Annexure No. 4 to the writ petition. The
2 All] Ramesh Singh V. State of U.P. and others

725
Applications were processed and it is
alleged
by
the
Petitioner
that
the
contesting
Respondent
deliberately
provided incorrect mark-sheets which
resulted in the award of higher marks to
Respondent No.5. Respondent No.5, in
fact, had only 47.04 % marks whereas on
account of the incorrect mark sheets and
clerical error that had crept into, she was
placed higher in merit than the petitioner
indicating that she had obtained 57.40 %
marks. The petitioner was awarded an
aggregate of 51 % according to the
Government Order. Respondent No.5 was
shown to have been selected. It is further
relevant to point out that the Petitioner
and Respondent No.5 both had worked as
informal Instructor (Anudeshak) and, as
such, according to Government Order
dated 10.10.2005, these 2 candidates had
to be given "first preference" as against
the other candidates, who had applied.

3. The petitioner's claim was not
being considered, as such, the Petitioner
approached this Hon'ble Court by filing
Writ petition No.17943 of 2006 and a
direction
was
issued
on
3.4.2006
commanding the District Magistrate,
Etawah, to decide the claim of the
petitioner. A Contempt Petition was also
filed for non-compliance of the said
direction
where
after
the
District
Magistrate decided the matter vide order
dated 14.12.2006 impugned in the present
petition.

4. I have heard Mr. Pankaj Kumar
Srivastava,
learned
counsel
for
the
petitioner,
Sri
A.K.
Sharma
for
Respondent No.5, the learned Standing
Counsel for Respondent Nos. 1 to 3 and
Sri K. Sahi for Respondent No.6.

5. The finding recorded by the
District Magistrate while disposing of the
application is that so far as the incorrect
projection of mark-sheets are concerned,
the same was a clerical error which was
corrected before the final selection list
was published and the matter pertaining to
the alleged forged mark sheets was got
inquired into and it was found that the
correct mark sheets, which was submitted
by Respondent No.5, was cross checked
with the documents available in the
institution from where Respondent No.5
had passed the examination. The District
Magistrate further found that since the
petitioner and Respondent No.5 both had
worked as informal education teachers,
therefore, according to Government Order
dated 24.4.2006, a candidate, who had
worked as informal education teacher for
a longer period, would be entitled to be
appointed as Shiksha Mitra. The District
Magistrate,
on
facts,
found
that
Respondent No.5 had worked for a longer
period as against the petitioner as an
informal education teacher and, therefore,
she was entitled to continue after having
been selected as Shiksha Mitra.

6. Learned counsel for the Petitioner
contended that Respondent No.5 had
attempted
to
obtain
selections
by
manipulating her marks and that as a
matter
of
fact
while
moving
her
application, had reflected the incorrect
marks in her favour which resulted in her
placement higher in merit as against the
petitioner. The subsequent correction
attempted by the authorities was only to
help Respondent No.5 to retain her
selection. He further contends that the
District
Magistrate
has
wrongly
concluded that Respondent No.5 would be
given preference over the petitioner.
726 INDIAN LAW REPORTS ALLAHABAD SERIES [2009

7.

Learned
counsel
for
the
respondent contended that she was
correctly given the benefit of preference
according to the Government Order dated
24.4.2006 and the error indicated in the
projection of the marks by the said
respondent at the time of moving her
Application had been already rectified
even before the final selections were
made. He contends that keeping in view
the lower merit of Respondent No.5 as
against the petitioner, Respondent No.5
was still entitled for being selected as she
had a longer period of experience as an
informal education teacher and, therefore,
according to the Government Order dated
24.4.2006, she was rightly given the
benefit.

8. I have considered the rival
submissions and the matter now stands
narrowed down to the question, as to
whether
while
assessing
the
first
preference claimed by the Petitioner and
Respondent No.5, the District Magistrate
had rightly on an application of the
Government Order dated 24.4.2006, come
to the conclusion that Respondent No.5
having a longer period of experience was
entitled to be selected. The aforesaid issue
is no longer res-integra. The question as
to whether an informal education teacher
is entitled to first preference or not as
against the other candidates, has been
settled by the Full Bench in the case of
Daya Ram Singh Vs. State of U.P. and
others, reported in 2007 (3) AWC 2946
(FB). The words "first priority/first
preference" has been interpreted to mean
that the said preference is over and above
the other candidates and, therefore, the
word means priority or precedent and not
mere preference. Accordingly, the Full
Bench held that such informal education
teachers, in spite of their low merit, would
be entitled to first priority for being
appointed. This was the law as existing on
the date when the advertisement was
issued in the present case in the year
2005.

9. It is undisputed that both
petitioner and Respondent No.5 had
applied as against the advertisement dated
27.10.2005. The last date of applications
in the said advertisement was also
indicated therein and the proposal for
appointment was made on 5.12.2005.
Thus, the selection had also been
completed by 5.12.2005. The Government
Order dated 24.4.2006 came later on and
was
not
in
existence
when
the
advertisement and selection in the present
case was made. The issue of the
applicability of such a Government Order
came up for consideration in respect of
similar selections of the year 2005 in the
case of Parvati Devi Vs. State of U.P. and
others, 2007 (6) ADJ 384. The Division
Bench, while upholding the judgment of
the learned single Judge, ruled that the
Government Order dated 24.4.2006 would
not
apply
retrospectively
and
even
otherwise the Government Order dated
10.10.2005 did not provide for inter se
first priority or preference on the strength
of a longer experience. The Government
Order dated 24.4.2006 would not apply
retrospectively in the present case as well
and the District Magistrate appears to
have erred in applying the same. The said
view has been approved by this Court in
the case of Km. Rita Yadav Vs. State of
U.P. and others, reported in 2007 (2) ESC
788 (DB) and followed in Smt. Neelam
Singh Vs. State of U.P. and others,
reported in 2008 (1) ADJ 712 (DB).

10. Apart from this, it is also evident
that Respondent No.5 first attempted to
2 All] Anita V. Indrawati and another

727
get herself selected on the strength of
incorrect marks having been reflected.
This conduct of Respondent No.5 also
cannot be appreciated. The fact of the
correction of marks reflected in the
selection has been admitted in the
counter-affidavit. For all the reasons
aforesaid and keeping in view the
Division Bench decision in the case of
Smt. Parvati Devi (supra), the order
impugned is unsustainable. The impugned
order dated 14.12.2006 (Annexure-7 to
the writ petition) is quashed. The matter is
remitted back to the District Magistrate,
Etawah, to pass a fresh order in the light
of the observations made herein above
after considering the claims of the parties
as expeditiously as possible but not later
than 3 months from the date of production
of a certified copy of this order before
him.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 07.08.2009

BEFORE
THE HON'BLE ARUN TANDON, J.

Criminal Misc. Writ Petition No. 399 of
2009

Anita

...Petitioner
Versus
Indrawati and others ...Respondents

Counsel for the Petitioner:
Sri Shashi Nandan
Sri P.P. Pandey

Counsel for the Respondent:
Sri Ravi Kant
Sri Arvind Srivastava, Sri Arun Kumar
S.C.

Constitution
of
India-Article
226-
Election of Nagar Panchayat-petitioner
obtains highest votes-but she was under
age-finding of fact recorded by election
Tribunal -held justified-writ Court cannot
re-appreciate the evidence-sitting as
appellate authority.

Held: Para 5:

This Court after examining the records of
the
proceedings,
as
they
stand,
is
satisfied that the finding of fact recorded
by the Election Tribunal qua the age of
the elected candidate Anita on the date
of submission of nomination paper,
being less that 30 years, is based on true
and correct appreciation of the evidence
led by the parties. Such findings of fact
needs no interference under Article 226
of the Constitution of India nor can be
reversed after re-appreciation of the
evidence I n exercise of power under
writ jurisdiction. Reference may be had
to the judgment of the Hon'ble Supreme
Court in the case of Birad Mal Singh vs.
Anand Purohit, reported in AIR 1988 SC,
1796, wherein the Hon'ble Supreme
Court had laid down the legal preposition
with regard to material to be examined
qua the age of the contestant. Judged on
the aforesaid principle, the finding of the
Tribunal that the petitioner wad undergo
on
the
relevant
date
needs
no
interference.
This
Court,
therefore,
records that on the date Anita had
submitted the nomination paper she was
below the prescribed age of 30 years and
therefore disqualified for contesting the
election. The declaration of her election
as null and void by the Election Tribunal
is accordingly upheld.

(B) Representation of people Act 1950Section 101 readwith Section 25 of U.P.L
Participation
Act
1916
Section
25election
of
President
of
Nagar
Panchayat-the candidate having highest
vote-declared disqualify being under
age-the Second position holder will not
be declared elected automatically.

Held Para-13: