# Satendra Kumar Sharma v. State of U.P. and others

- **Citation:** (2005) 2 ILRA 561
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2005
- **Case number:** Civil Misc. Writ Petition No. 473 of 2001
- **Bench:** Vikram Nath
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/satendra-kumar-sharma-v-state-of-u-p-and-others-40488
- **Pages:** 9

## Headnote

Constitution of India-Article 14, 16Reservation for O.B.C.-Vacancies for the
post
of
village
Development
officer
advertised-considering
the
excess
strength of Backward Cost candidatesreservation for S.C./S.T. candidates only
provided-after
final
selectioncancellation
by
government
on
the
pretext-No reservation for OBC givensubsequent
advertisement
providing
27% reservation to O.B.C. also by
abolishing the quota of S.T.-held-illegalconsidering
sufficient
representationapplicability
of
further
reservation
increasing representation ignoring the
meritorious
candidate-appointing
less
meritorious-merit is prime and cannot be
ignored-except accordance with law.

Held: Para 19 & 22

It appears that the respondents while
issuing the advertisement considered the
representation of each category in the
existing
strength
and
accordingly
provided for the required reservation in
Schedule Caste and Schedule Tribes.
There is no dispute that vacant post of
Village Development Officer in district
Auraiya were being filled up for the first
time after the applicability of the 1994
Act. Reservation policy is meant for
providing sufficient representation to the
Other Backward Class or the other
reserved categories but where there is
already sufficient representation, the
applicability of reservation to increase
the representation cannot be applied by
appointing less meritorious candidates.
The consistent stand is that merit is
prime and cannot be ignored except in
accordance with law.

In my considered opinion once an
advertisement has been issued then the
selection have to be made strictly in
accordance
with
the
terms
of
the
advertisement until and unless the same
is contrary to the Rules. It has been
sought
to
be
argued
that
if
advertisement has been issued contrary
to the Act or Rules then it cannot be
sustained and the Act or Rules will
prevail. In my view the advertisement
was in accordance with the Act and
Rules and which have to be read and
interpreted
in
the
light
of
the
constitutional provisions as held in the
case of R.K. Sabharwal (supra) Indra
Sawhney (supra) and Bal Mukund Sah
(supra) The advertisement had been
correctly issued taking into consideration
the strength of the cadre of the Village
Development Officers in district Auraiya.
In the present case, the number of total
posts
remained
the
same;
the
reservation for Other Backward Class
could not have been introduced nor the
post reserved for Schedule Tribe could
be cancelled otherwise it would be doing
violence to the fundamental principles of
reservation as on the one hand there
would be excessive representation of
Other Backward Class and on the other
hand
there
would
never
be
any
repre

## Text

2 All] Satendra Kumar Sharma V. State of U.P. and others

 561
13. From a perusal of the Appendix
it is clear that a reasonable time is to be
allowed to the employee to submit his
written statement and also to inform
regarding personal hearing. In my opinion
three days time cannot be said to be
reasonable time and all the more when the
petitioner was in a different district,
where the charge sheet was served on
07.04.2000 and 10.04.2000 was the date
fixed. Even the Inquiry Report was
submitted on 13.04.2000 in less than a
week from the date of service. A
reasonable time in my opinion would be
at least 15 days or two weeks time. In my
view reasonable time from the date of
service of charge sheet was not allowed to
the petitioner to submit his written
submission and to defend himself. He
could therefore not avail of the further
opportunity
of
personal
hearing,
producing witnesses and documents and
also to cross-examine the prosecution
witnesses in the inquiry. The inquiry is
therefore, vitiated in law being in
contravention of the procedure prescribed
under Rule 14 and Appendix I of the 1991
Rules.

14. The contention of the learned
Standing Counsel that petitioner did not
even furnish any proper explanation to the
show cause notice issued to him cannot be
accepted in as much as the scope of
defence in the inquiry and in the scope in
reply to show cause are quite distinct and
different. In the inquiry the petitioner
would have had the opportunity to lead
evidence, to prove his illness and also
cross-examined the prosecution witnesses
to disprove the charge levelled against
him. It would still be possible that the
Inquiry Officer may still have found the
petitioner guilty of the charge but it would
be a different satisfaction based upon
evidence of both sides. The disciplinary
authority
has
rejected
the
medical
certificates as fake without opportunity to
the petitioner to prove their correctness.
In the inquiry the petitioner would have
had the opportunity to establish their
correctness. Since there has been no
finding by the Inquiry Officer on the
genuineness or otherwise of the medical
certificates
their
rejection
by
the
disciplinary authority amounts to denial
of opportunity.

15. As a result of the inquiry being
vitiated the order of dismissal and also the
appellate order also stands vitiated and are
liable to be set aside.

16. Accordingly, the writ petition
succeeds and is allowed. The impugned
order dated 15.05.2000 and 10.01.2002
are set aside. It would however, be open
to
the
respondents
to
proceed
in
accordance with law and pass appropriate
orders afresh. There shall be no order as
to costs.
Petition Allowed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 26TH MAY, 2005

BEFORE
THE HON'BLE VIKRAM NATH, J.

Civil Misc. Writ Petition No. 473 of 2001

Shridhar Dwivedi

...Petitioner
Versus
State of U.P. and others ...Respondents
With
Civil Misc. Writ Petition No. 2740 of 2001

Dheer Singh Gihar

...Petitioner
Versus
State of U.P. and others ...Respondents
562 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
Counsel for the Petitioner:
Sri Indra Raj Singh
Sri Vinod Kumar Singh
Sri Yogesh Kumar Saxena

Counsel for the Respondents:
Sri P.C. Shukla
S.C.

Constitution of India-Article 14, 16Reservation for O.B.C.-Vacancies for the
post
of
village
Development
officer
advertised-considering
the
excess
strength of Backward Cost candidatesreservation for S.C./S.T. candidates only
provided-after
final
selectioncancellation
by
government
on
the
pretext-No reservation for OBC givensubsequent
advertisement
providing
27% reservation to O.B.C. also by
abolishing the quota of S.T.-held-illegalconsidering
sufficient
representationapplicability
of
further
reservation
increasing representation ignoring the
meritorious
candidate-appointing
less
meritorious-merit is prime and cannot be
ignored-except accordance with law.

Held: Para 19 & 22

It appears that the respondents while
issuing the advertisement considered the
representation of each category in the
existing
strength
and
accordingly
provided for the required reservation in
Schedule Caste and Schedule Tribes.
There is no dispute that vacant post of
Village Development Officer in district
Auraiya were being filled up for the first
time after the applicability of the 1994
Act. Reservation policy is meant for
providing sufficient representation to the
Other Backward Class or the other
reserved categories but where there is
already sufficient representation, the
applicability of reservation to increase
the representation cannot be applied by
appointing less meritorious candidates.
The consistent stand is that merit is
prime and cannot be ignored except in
accordance with law.

In my considered opinion once an
advertisement has been issued then the
selection have to be made strictly in
accordance
with
the
terms
of
the
advertisement until and unless the same
is contrary to the Rules. It has been
sought
to
be
argued
that
if
advertisement has been issued contrary
to the Act or Rules then it cannot be
sustained and the Act or Rules will
prevail. In my view the advertisement
was in accordance with the Act and
Rules and which have to be read and
interpreted
in
the
light
of
the
constitutional provisions as held in the
case of R.K. Sabharwal (supra) Indra
Sawhney (supra) and Bal Mukund Sah
(supra) The advertisement had been
correctly issued taking into consideration
the strength of the cadre of the Village
Development Officers in district Auraiya.
In the present case, the number of total
posts
remained
the
same;
the
reservation for Other Backward Class
could not have been introduced nor the
post reserved for Schedule Tribe could
be cancelled otherwise it would be doing
violence to the fundamental principles of
reservation as on the one hand there
would be excessive representation of
Other Backward Class and on the other
hand
there
would
never
be
any
representation of the Schedule Tribes.
Case law discussed:
2000 (1) SCC-168
2000 (4) SCC-640
1995 (2) SCC-747
1994 (3) AWC-1292
2002 (8) SCC-98
2002 (10) SCC-269

(Delivered by Hon'ble Vikram Nath J.)

1. Both the above writ petitions have
challenged the same selection and are
therefore
being
heard
and
decided
together.

2. Writ Petition No. 473 of 2001 has
been filed for quashing the selection dated
22.12.2000 by the District Development
2 All] Shridhar Dwivedi V. State of U.P. and others

 563
Officer, Auraiya in so far as it relates to
the selection of respondents no.5 to 8 in
the Other Backward Class quota and
further for a direction that the petitioner
may
be
appointed
as
Village
Development Officer pursuant to the
selection dated 22.12.2000.

3. Writ Petition No. 2740 of 2001
has been filed for quashing the same
selection
for
the
post
of
Village
Development Officer in so far as it relates
to increasing the number of posts reserved
for schedule caste category from 3 to 4
and cancelling the one post reservation for
schedule tribes category.

4. An advertisement was issued by
the District Development Officer Etawah
on 10.08.1998 for filling up the posts of
Village Development Officer in District
Etawah
and
Auraiya.
The
present
petitions are confined only to the selection
relating to the District Auraiya. In respect
of district Auraiya the advertisement
mentioned total vacancy of 18 posts out
of which three were reserved for Schedule
Caste candidates and one post reserved
for Schedule Tribe candidate. There was
no reservation for Other Backward Class.
This clearly indicated that there were 14
posts to be filled up from amongst the
general category candidates.

5. Pursuant to the advertisement the
petitioner in Writ Petition No. 473 of
2001 applied as a general category
candidate and the petitioner in Writ
Petition No. 2740 of 2001 applied in the
Schedule Tribe category. They received
letters dated 10.02.1999 to appear before
the selection committee for interview on
25.2.1999.
The
petitioners
appeared
before the selection committee and were
found suitable. The result was published
on 13.3.1999 in which the petitioner
Shridhar Dwivedi was found selected at
Sl. No.7 in general category and petitioner
Dheer Singh Gihar was selected in
Schedule Tribe category. The results of
all the 18 posts were declared. There were
14 candidates in general category, three in
Schedule Caste category and one in
Schedule Tribe category.

6. This selection dated 13.3.1999
was cancelled by the State Government
vide order dated 10.05.1999 on account of
alleged irregularities in the interview and
direction was issued to hold fresh
interview of the candidates who had
qualified in written examination held on
13.12.1998 through a newly constituted
Selection Committee. This cancellation
was challenged before this Court in Writ
Petition No. 24307 of 1999 and Writ
Petition No.23161 of 1999. This Court
vide
judgment
dated
25.05.2000
dismissed both the writ petitions and
directed that the selection process be
completed within a period of four months
from the date of receipt of the judgment
as directed by the State Government from
the stage of interview.

7. Fresh interview letter was issued
on 14.09.2000 and the interviews were
held on 22.09.2000. Pursuant to the
interview held on 22.09.2000 results were
declared in which petitioner Shree Dhar
Dwivedi was placed at Sl.No.2 in the
waiting
list
of
general
category
candidates. A perusal of the result
indicates that in the general category 9
candidates have been selected (instead of
14); there is a waiting list of two
candidates of general category; five
candidates have been selected in the Other
Backward Class and there is a waiting list
of one candidate. Four candidates were
564 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
selected in Schedule Castes category, and
one candidate in waiting list and a note
has been made in the end that there could
not be any reservation for Schedule Tribe
category.

8. The petitioner in Writ Petition
No. 473 of 2001 has challenged the
selection of five Other Backward Classes
candidates made in the result dated
22.12.2000 mainly on two grounds; firstly
that as per the advertisement there was no
reservation made for the Other Backward
Class and therefore, the selection of
respondents 5 to 8 in the Other Backward
Class even though they had lesser marks
than the petitioner was illegal and
secondly that out of total sanctioned cadre
of 75 posts of Village Development
Officer, in district Auraiya, representation
of perons of the Other Backward Class
already working was in excess of the
maximum
reservation
quota
and
therefore, selection of additional five
under reserve category further increased
their representation and it thus violated
the fundamental principles of reservation
and was also violative of Article 14 and
16 of the Constitution.

9. Counter affidavit has been filed
by respondents 5 to 8 and also the State
respondent. The defence taken by the
respondents is that in the advertisement it
was mentioned that the number of posts
could
be
decreased
or
increased,
therefore, the reservation for Other
Backward Class for five posts could be
made and has been rightly made. It is
stated by the respondent in the counter
affidavit that out of total 18 posts
advertised applying 27% reservations, 5
posts would fall in the Other Backward
Class quota and therefore, rightly these
posts have been reserved for Other
Backward Class.

10. The petitioner in Writ Petition
No. 2740 of 2001 has challenged the
impugned action of the respondents in
abolishing
the
reservation
for
the
Schedule Tribe category on the ground
that once reservation is made and an
advertisement is issued the same cannot
be abolished; secondly the reservation for
Schedule Tribe candidates had been made
keeping in mind the total strength of the
cadre of Village Development Officer
further the petitioner was called for
interview even in the second round along
with three other candidates and therefore
while declaring the result the reservation
could not have been done away with.

11. Heard learned counsel for the
petitioner in both the writ petitions and
learned Standing Counsel for State
respondents
and
also
the
counsel
appearing for respondents 5 to 8 in Writ
Petition No. 473 of 2001.

12. There is no issue with regard to
the number of posts or merit of the
candidate
or
that
any
procedural
irregularity having been committed in
making the selection. The only question is
as
to
whether
pursuant
to
the
advertisement dated 10.08.1998, which
did not provide for any reservation for
any Other Backward Class, respondents
could
make
reservation
for
Other
Backward Class and secondly cancel the
reservation of one post of Schedule Tribe
and add it in the posts already reserved for
Schedule Castes thereby increasing the
number of posts from 3 to 4, while
declaring the result after taking fresh
interview pursuant to the order of State
Government. It is admitted that even the
2 All] Shridhar Dwivedi V. State of U.P. and others

 565
order
of
State
Government
dated
10.05.1999
canceling
the
previous
selection
in
which
there
was
no
reservation for Other Backward Class
candidates, did not direct that five seats be
reserved for Other Backward Class or
increase the number of posts reserved for
Schedule Caste. In case the State
Government wanted to alter the vacancies
in accordance with the reservation policy
in that event it would have cancelled the
previous advertisement and would have
directed to issue fresh advertisement or
would have directed in the order dated
10.5.1999 itself that as the reservations
had not been correctly made, therefore,
the same may be applied in accordance
with the vacancies advertised and not the
strength of the cadre which clearly
indicates that the reservation had been
correctly indicated in the advertisement.
But the State Government did not pass
any order in this respect.

13. In continuation of the same
contention it may be noted that with
regard to Schedule Tribe reservations also
there was no such indication of doing
away with the reservation. It is only at the
foot of the impugned results that a note
has been made that reservation cannot be
applied.

14. The learned counsel for the
private as well as the State respondents
have sought to argue that reservation in
accordance with U.P. Act No. 4 of 1994
i.e. U.P. Public Services (Reservation for
Scheduled Castes, Scheduled Tribes and
Other Backward Classes) Act, 1994 (in
short referred to as the 1994 Act) was
being applied for the first time in the
selection of the Village Development
Officer as after coming of the said Act of
1994 no selection for the post of Village
Development Officer had taken place and
the present selection was the first
selection and therefore by mistake the
reservation for Other Backward Class
could not be made and it is for this reason
that in the final results the quota was
rightly
applied
to
the
vacancies
advertised.

15. The concept of reservation at the
first
instance
has
to
take
into
consideration
the
candidates of the
reserved category already working. If
there is already sufficient representation
when reservation is being introduced the
manner and method of calculating the
reserved
seats
should
take
into
consideration the entire strength of the
cadre and not apply directly on the
vacancies available. This should be
necessarily followed for two reasons.
Firstly that there is already sufficient
representation therefore to avoid any
excessive representation of any particular
class would be violative of Article 14 and
16 of the Constitution. Secondly to make
sure that while filling up the vacant posts
more meritorious candidates are not left
behind and candidates with lesser marks
and merit are given appointment, as this
would again be violative of Articles 14
and 16 of the Constitution. It is only when
once the cadre is represented as per the
reservation and the roster/ quota rota is
settled the vacancies arising subsequently
may be filled up accordingly. Merit
cannot be ignored to give advantage of
excessive reservation.

16. This view finds support from the
decision of the Apex Court in the case of
Indra Sawhney Vs. Union of India
reported in 2000(1) SCC 168 (para 50
and 65) and State of Bihar Versus Bal
566 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
Mukund Sah reported in 2000(4) SCC
640 (para 23).

17. In both the above judgments the
Apex Court has held that the same
principle underlying Article 335 of the
Constitution
will
apply
to
Other
Backward
Class.
Efficiency
of
administration is paramount and cannot
be ignored. It flows from Article 14 and
16 of the Constitution.

Further the Apex Court in the case of
R.K. Sabharwal Versus State of Punjab
reported in 1995(2) SCC 747 in clear
terms
provides
the
principles
for
application of reservation vis a vis cadre
and vacancies. Para 6 of the said
judgment reads as under:

"6. The expressions ''posts' and
''vacancies', often used in the executive
instructions providing for reservations,
are rather problematical. The word ''post'
means an appointment, job, office or
employment. A position to which a person
is
appointed.
''Vacancy'
means
an
unoccupied post or office. The plain
meaning of the two expressions make it
clear that there must be a ''post' in
existence to enable the ''vacancy' to
occur. The cadre-strength is always
measured by the number of posts
comprising the cadre. Right to be
considered for appointment can only be
claimed in respect of a post in a cadre. As
a
consequence
the
percentage
of
reservation has to be worked out in
relation to the number of posts, which
form the cadre-strength. The concept of
''vacancy' has no relevance in operating
the percentage of reservation."

Further the Apex Court explained in
detail in para 10 of the said judgment the
law relating to filling up vacancies. It
reads as under:

"10. We may examine the likely
result if the roster is permitted to operate
in respect of the vacancies arising after
the total posts in a cadre are filled. In a
100 point roster, 14 posts at various
roster points are filled from amongst the
Scheduled Caste / Scheduled Tribe
candidates. 2 posts are filled from
amongst the Backward Classes and the
remaining 84 posts are filled from
amongst the general category, suppose all
the posts in a cadre consisting of 100
posts are filled in accordance with the
roster by 31.12.1994. Thereafter in the
year 1995, 25 general category persons
(out of the 84) retire, again in the year
1996, 25 more persons belonging to the
general category retire. The position
which would emerge would be that the
Scheduled Castes and Backward Classes
would claim 16% share out of the 50
vacancies, if 8 vacancies are given to
them then in the cadre of 100 posts the
reserve categories would be holding 24
posts thereby increasing the reservation
from 16% to 24%. On the contrary if the
roster is permitted to operate till the total
posts in a cadre are filled and thereafter
the vacancies falling in the cadre are to
be filled by the same category of persons
whose reirment etc, caused the vacancies
then the balance between the reserve
category and the general category shall
always be maintained. We make it clear
that in the event of non-availability of a
reserve candidate at the roster point it
would be open to the State Government to
carry forward the point in a just and fair
manner."

18. Thus it is clear that the
advertisement had been correctly issued
2 All] Shridhar Dwivedi V. State of U.P. and others

 567
showing the reservation on the whole
strength / cadre. If any contrary view is
taken without filling up the roster there
will never be any reservation for Schedule
Tribes.

19. It is also not the case of the
respondents that there was a calculation
mistake
in
fixing
the
number
of
reservation category posts and therefore,
because of this calculation mistake there
was change in the number of reserved
category post. In the present case, 27%
reservation has been introduced in the
results being calculated on the total
number of vacancies advertised. There are
already more than 27% Other Backward
Class candidates working against the total
strength of Village Development Officer
in District Auraiya. There was no
justification to bring in 27% further from
the advertised vacancies. The State
Government in its counter affidavit has
not
disputed
regarding
there
being
sufficient representation. However, the
State has tried to make out the case that
since the other 22 Village Development
Officer appointed earlier and working
were not selected as reserved category
candidate
but
as
general
category
candidate, therefore, out of 18 advertised
post the reservation of 27% for Other
Backward Class has been rightly applied.
The Standing Counsel has referred to
certain correspondence after the second
round interview had been held, whereby
State made queries regarding reservation
for Other Backward Classes. The said
correspondence is of no help in view of
the law laid down by the Apex Court in
R.K. Sabharwal (supra). This argument
cannot be accepted. It is directly in
conflict with the concept of reservation as
enshrined in the Constitution as well as
the ratio laid down by the Apex Court It
appears that the respondents while issuing
the
advertisement
considered
the
representation of each category in the
existing
strength
and
accordingly
provided for the required reservation in
Schedule Caste and Schedule Tribes.
There is no dispute that vacant post of
Village Development Officer in district
Auraiya were being filled up for the first
time after the applicability of the 1994
Act. Reservation policy is meant for
providing sufficient representation to the
Other Backward Class or the other
reserved categories but where there is
already
sufficient
representation,
the
applicability of reservation to increase the
representation cannot be applied by
appointing less meritorious candidates.
The consistent stand is that merit is prime
and
cannot
be
ignored
except
in
accordance with law.

20. The other contention raised by
learned
counsel
for
the
private
respondents is that as the advertisement
itself contained a stipulation that the
number of vacancies could be increased
or decreased therefore the respondents
were fully justified in making reservations
for the Other Backward Class by
adjusting four posts of general category
and one post of Scheduled Tribes. In reply
the contention of learned Counsel for
petitioner is that this change in the result
did not either increase or decrease the
vacancies but was in fact application of
the reservation for Other Backward Class
which did not figure in the advertisement
nor did the government issue any
direction in that regard. It is further urged
that this was malafide exercise of power
to favour a particular class and increase
their representation in the cadre beyond
the sanctioned and permissible limit.
568 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
21. Learned counsel for the
respondent relied upon the following
decisions in support of the above
contention:

(1) 1994(3) AWC 1292
(Rakesh Kumar Tripathi V. High
Court of Judicature)
(2) 2002(8) SCC 98
(Indian Railway class II Officers
Federation V.Anil Kumar Singh)
(3) 2002 (10) SCC 269
(Suvidya Yadav v. State of Haryana)

None of these decisions apply to the
facts of the present case. In all these cases
the total number of vacancies was varied.
In none of the cases there was change in
the applicability of the reservation policy.
Even otherwise in view of the discussion
made
in
the
earlier
question
this
contention looses its significance.

22. In my considered opinion once
an advertisement has been issued then the
selection have to be made strictly in
accordance
with
the
terms
of
the
advertisement until and unless the same is
contrary to the Rules. It has been sought
to be argued that if advertisement has
been issued contrary to the Act or Rules
then it cannot be sustained and the Act or
Rules will prevail. In my view the
advertisement was in accordance with the
Act and Rules and which have to be read
and interpreted in the light of the
constitutional provisions as held in the
case of R.K. Sabharwal (supra )Indra
Sawhney (supra) and Bal Mukund Sah
(supra) The advertisement had been
correctly issued taking into consideration
the strength of the cadre of the Village
Development Officers in district Auraiya.
In the present case, the number of total
posts remained the same; the reservation
for Other Backward Class could not have
been introduced nor the post reserved for
Schedule
Tribe
could
be
cancelled
otherwise it would be doing violence to
the fundamental principles of reservation
as on the one hand there would be
excessive
representation
of
Other
Backward Class and on the other hand
there would never be any representation
of the Schedule Tribes. .

23. In view of the facts and
circumstances,
I
do
not
find
any
justification for applying 27% reservation
against the same advertisement in second
round selection when in the first round
there was no such reservation and neither
any candidate challenged the same nor the
State Government directed for introducing
reservation. That apart undisputedly there
was sufficient representation of the Other
Backward Class in the cadre of Village
Development Officer already working in
District Auraiya.

In the result, the Writ Petition No.
473 of 2001 succeeds and is allowed. The
selection of respondents 5 to 8 pursuant to
the result dated 22.12.2000 in the Other
Backward Class reserved quota is set
aside and the respondents are directed to
fill up the vacancy by general category
candidate as per the advertisement dated
10.08.1998 strictly in accordance with the
merit of the general category. However if
any of the respondents 5 to 8 fall in the
merit and qualify for appointment they
may be continued and their seniority shall
stand in accordance with the merit list.
Since admittedly, the petitioner was at
Sl.No.2 in the waiting list of the general
category candidate he is declared selected
and may be given appointment against the
said selection.
2 All] Shridhar Dwivedi V. State of U.P. and others

 569
24. The connected Writ Petition No.
2740 of 2001 filed by Dheer Singh who
was a Schedule Tribe candidate and had
been selected in the first selection in 1999
but in the second selection, the reserved
post itself has been converted into
schedule caste post also deserves to be
allowed and respondents are directed to
declare the result for one schedule tribe
post pursuant to the interview held in
September 2000 and if the petitioner is
found successful he shall also be entitled
to
be
appointed
against
the
same
selection.

There shall be no order as to costs.
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ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 05.05.2005

BEFORE
THE HON'BLE VIKRAM NATH, J.

Civil Misc. Writ Petition No. 52752 of 2000

Ram Das Singh

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

Counsel for the Petitioner:
Sri N.K. Saxena
Sri Deepak Saxena

Counsel for the Respondents:
S.C.

Constitution of India, Article 226-Date of
Birth-Petitioner's date of birth recorded
in
service
record
as
26.2.1939subsequently corrected by the Executive
Engineer in pursuance of direction issued
by the writ court-Executive Engineer by
order dt. 2.9.98 informed the petitioner
about the age of Superannuation on
28.2.99-Superintending Engineer after
the retirement held the correction made
by executive engineer without any basishence
corrected
as
26.2.1939-heldwithout Notice-the change in date of
birth cannot be made-direction issued
for entire consequential benifits.

Held: Para 7

Having considered the submissions made
and also the facts and circumstances of
the
case
in
my
opinion
once
the
petitioner has retired from service on
28.02.1999 treating his date of birth to
be 26.02.1941 and the order correcting
the date of birth having admittedly been
passed by the Executive Engineer after
enquiry and upon consideration of the
material placed before the Executive
Engineer, there is no justification for
again changing the date of birth after
retirement of the petitioner and that to
without notice to the petitioner. The
order dated 17.02.2001 has been passed
after retirement of the petitioner and
without
notice
to
the
petitioner,
therefore, cannot be sustained and is
liable to be set aside.

(Delivered by Hon'ble Vikram Nath, J.)

1. This petition has been filed
seeking direction to the respondents to
pay pension, gratuity, GPF Transfer
allowance already sanctioned and other
post retiral benefits due to the petitioner.

Heard learned counsel for the parties.

2. The petitioner was working as
Seench Paryavekshak in the irrigation
department. According to him his date of
birth is 26.02.1941 and, therefore, under
the Service Rules he was to retire on
28.02.1999 being the last date of the
month in which he completed the age of
superannuation. This date of birth had not
been correctly recorded in the service
records accordingly the petitioner made a
representation to the respondent no. 4 for
correction of the date of birth. However as