Allahabad High Court
Uma Kant Maurya vs District Magistrate Ballia And Others on 10 July, 2019
Equivalent citations: AIRONLINE 2019 ALL 1562
Bench: Vikram Nath, Pankaj Bhatia
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 55 Case :- SPECIAL APPEAL No. - 755 of 2011 Appellant :- Uma Kant Maurya Respondent :- District Magistrate Ballia And Others Counsel for Appellant :- L.P. Singh Counsel for Respondent :- C.S.C.,B.P. Singh,Illigible,K.S. Kushwaha,Mahesh Narain Singh Hon'ble Vikram Nath,J.
Hon'ble Pankaj Bhatia,J.
Case has been taken up in the revised call.
No one appears on behalf of the respondent No.5 although the name of Sri B.P. Singh, Advocate is printed from the side of the respondents.
Sri Sanjay Chaturvedi, learned counsel for the respondent Nos.2 and 7 has filed a short counter affidavit, which is taken on record.
Heard Sri L.P. Singh and Sri U.S. Maurya, learned counsel for the appellant and Sri Sanjay Chaturvedi, learned counsel representing respondent Nos. 2 and 7 and Sri Pankaj Rai, learned Additional Chief Standing Counsel for the State-respondents.
The facts, in brief, as argued by the learned counsel for the appellant is that the appellant was appointed on 12.9.2007 as a Shiksha Mitra and he completed his training, however, on a complaint made by the respondent no. 5, the appointment of the appellant was cancelled by means of an order dated 19.9.2008 and the appointment of the respondent no. 5 was approved.
The grievance of the appellant-petitioner is that in the merit list prepared, the appellant was higher on merit than the respondent no. 5 and further the respondent no. 5 did not have the requisite qualification to be appointed, however erroneously and by means of the illegal order dated 19.9.2008, the appointment of the appellant-petitioner has been cancelled and that of respondent no. 5 was restored.
The submission of the learned counsel for the appellant is that in terms of the Government Order as well as the advertisement issued, only the persons who were of 18 years of age and above and up to 35 years as on 1st July, 2005 could be appointed. It was further stipulated in the advertisement that a 5 years relaxation would be granted to handicapped, widows and divorced women. He thus submits that the maximum age as on 1st July, 2005 could be 40 years to be eligible for being considered for appointment.
It is submitted at the bar that as on 1st July, 2005, the age of the respondent no. 5 was above 40 years and thus she was not even eligible to be considered for appointment. Learned counsel for the appellant-petitioner has taken us through the order dated 19.9.2008, wherein it has been recorded that the date of birth of the respondent no. 5 is 1.7.1965 and as such on 1.7.2005, the date of the advertisement, the respondent no. 5 was above 40 years.
In this backdrop, the petitioner had challenged the order dated 19.9.2008. The learned Single Judge in the impugned order dismissed the writ petition with regard to the submission of the petitioner solely on the ground that the averment recording the respondent no. 5 being over age could not be substantiated by the petitioner. Learned counsel for the appellant-petitioner has submitted that the perusal of the order dated 19.9.2008 itself reveals that the date of birth of the respondent no. 5 was 1.7.1965 and as such there was no requirement of the petitioner having to adduce any evidence to substantiate that as on 1.7.2005, the respondent no. 5 was above 40 years. Learned counsel for the appellant-petitioner has relied upon the judgment of this Court in the case of Umesh Chandra Jaiswal v. State of U.P., decided on 19th November, 2007, wherein this Court had held as under :-
"Moreover, in the case in hand, the advertisement itself provides as under:-
7. Age- The candidates must be of 21 years of age and not more than 35 years of age on 1st July, 2006 i.e. they must have born after 02.07.1971 and not later than 01.07.1985.
10. As per the specific condition contained in the advertisement itself, the petitioner was overage and, therefore, could not have been allowed to appear in the recruitment for the post of Assistant Prosecution Officer. The mere fact that the respondents no. 2 and 3 permitted the petitioner to appear in the preliminary test would not operate as estoppal against the respondents from rejecting his candidature on the ground that he was overage since it is a condition with respect to eligibility and if some error has crept in, on account whereof the authorities permitted candidate to participate at some stage of selection, that would not operate as waiver or estoppal against the authorities for permitting the candidate to appear in selection despite the fact that he is not eligible. In the present case, the petitioner having been born on 01.07.1966 was clearly overage on 01.07.2006 and, therefore, in our view, his candidature has rightly been cancelled by the U.P. Public Service Commission and we do not find any fault or reason to interfere in the said decision of the Commission."
He has further relied upon the judgment of this Court in the case of Achhaibar Maurya v State of U.P., decided on 8th September, 2006, wherein this Court has held as under:-
"9. The apex Court has also approved the aforesaid principle and in Prabhu Dayal Sesma v. State of Rajasthan and Anr. has held as under:
In calculating a person's age, the day of his birth must be counted as a whole day and he attains the specified age on the day preceding the anniversary of his birthday.
10. The appellant having born on 1st July, the day of his birth is to be counted as a whole day and that being so, he completed one year of age on 30th June in the next year. Thus he attained 60 years of age on 30th June, 2003. That being so, he is not entitled for the benefit of extended employment up to 30th June inasmuch as Rule 29 as amended in 1987 clearly exclude such teachers who attain age of superannuation on 30th June."
Thus in sum and substance, the submission of the learned counsel for the appellant-petitioner is that the respondent no. 5 at whose instance and for whose benefit, the order dated 19.9.2008 had been passed, was not eligible as she was over age.
The learned Standing Counsel has placed before us a copy of the Full Bench Judgment of this Court dated 8th August, 2013 in Writ-A No. 26189 of 2012, whereby the Larger Bench of this Court had held as under while answering the questions referred to it:-
"[57] With regard to question (A), in view of the above discussion, we are of the opinion that the petitioners were not duly selected and even if they were selected, the selection will not confer a right upon them to claim appointment and for being sent for training as Shiksha Mitras in view of the ban imposed by the State Government by the GO dated 2nd of June, 2010. In other words, persons whose names even if recommended prior to 2.6.2010, will not acquire any right to claim a direction for appointment as Shiksha Mitra.
The question (B) is answered by holding that the case of Sonika Verma was decided on its peculiar facts and therefore, it will have no general application. The law laid down in the cases of Km. Rekha Singh and Pankaj Kumar are correct enunciation of law and we express our concurrence with them."
The judgment of the said case will not have any applicability to the facts of the present case inasmuch as the appellant-petitioner was appointed on 12.9.2007 i.e. prior to June, 2010.
We have perused the judgment dated 5.4.2011, whereby the learned Single Judge had dismissed the writ petition on the ground that the appellant-petitioner could not substantiate the argument regarding the respondent no. 5 being over age. In our respectful view, the learned Single Judge has clearly erred in dismissing the writ petition on the said ground as the order dated 19.9.2008 itself demonstrates that the date of birth of the respondent no. 5 was 1.7.1965 and clearly as on 1st July, 2005, she was above 40 years of age. In our respectful opinion, the judgment of the learned Single Judge is manifestly erroneous and is liable to be set aside. In view of the unrebutted facts on record, the appointment of respondent no. 5 could not be made as she was above the specified age.
In view of the findings recorded above, the order dated 5.4.2011 as well as the order dated 19.9.2008 are set aside. The consequences of setting aside will follow with respect to the services of the appellant-petitioner.
The appeal is allowed in terms of the judgment passed above.
Order Date :- 10.7.2019 SR [Pankaj Bhatia, J.] .... [Vikram Nath, J.]