Allahabad High Court
Ram Dhari Yadav And 7 Ors vs State Of U.P. And Anr on 9 December, 2019
Equivalent citations: AIRONLINE 2019 ALL 2843
Author: Ashwani Kumar Mishra
Bench: Ashwani Kumar Mishra
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 39 Case :- WRIT - A No. - 387 of 2015 Petitioner :- Ram Dhari Yadav And 7 Ors Respondent :- State Of U.P. And Anr Counsel for Petitioner :- V.K. Singh,D.K. Singh,H.P. Sahi Counsel for Respondent :- C.S.C. Hon'ble Ashwani Kumar Mishra,J.
Petitioners applied for appointment to the post of Ayurvedic Pharmacist pursuant to an advertisement published on 03.06.2014. This advertisement categorically specified that applications be got received in the concerned office by 15.06.2014. Petitioners submit that they send their applications through registered speed post between 04.06.2014 to 10.06.2014 and the applications were also received in the Directorate of Medical Services. It appears that similar advertisement were published by different departments and, therefore, the department of post inadvertently send petitioners' applications to Director, Medical Health instead of Director, Ayurvedic Services. It was for this reason that petitioners' application were not entertained on merits. Petitioners consequently approached this Court by filing Writ Petition No. 53055 of 2014, which came to be disposed of vide following orders were passed on 26.09.2014:-
"Heard Sri HP Sahi, learned counsel for the petitioners and learned standing counsel for the respondents.
The counsel for the petitioner submits that in a similar matter i.e. Writ A No. 47264 of 2014, the following orders have been passed.
"Supplementary affidavit filed today is taken on Heard counsel for the parties. With their consent, this writ petition is being disposed of finally without inviting counter affidavit.
Petitioners no.1 and 2 have completed their diploma in Pharmacy in the year 1992 and the petitioner no.3 in the year 1990. The respondents issued an advertisement on 2.6.2014 inviting applications for recruitment to the post of Ayurvedic Pharmacist. According to counsel for the petitioners, the advertisement prescribed 14.6.2014, as last date for receipt of the applications.
The case of the petitioners is that they made application on 5.6.2014 but on account of postal mistake, it was inadvertently delivered to Director General, Medical Health, Swasthya Bhawan. The petitioners made a representation in this regard before the Director, Ayurvedic who held an enquiry and whereupon, Chief Post Master, G.P.O. Lucknow, by his letter dated 9.7.2014 informed the Director Ayurvedic that by inadvertence the letter was delivered to wrong person. It is thus the contention of the petitioners that the mistake was of the postal department and the petitioners have been wrongly ousted from the counseling, which was done by the respondents.
The petitioners have now approached this Court for a writ of mandamus directing the respondents to include the names of the petitioners in the counseling list and after holding their counseling they be appointed on the post of Ayurvedic Pharmacist.
On the other hand, learned standing counsel submitted that under the advertisement, two modes were prescribed for sending the applications i.e. by post and by hand personally. He thus submits that the petitioners, who have chosen one of the prescribed modes, cannot complain of the postal delay as the post office was working as the agent of the petitioners. He further very fairly submitted that since the Director Ayurvedic has already called for information from the G.P.O. Lucknow and, therefore, he is competent to take decision in the matter.
After considering the submissions made by learned counsel for the parties and the material on record, I am of the opinion that interest of justice would be served in directing the respondent no.2 to take appropriate decision on the claim made by the petitioners for being permitted to participate in the counseling.
Accordingly, this writ petition is disposed of with liberty to the petitioners to file fresh representation alongwith certified copy of this order before respondent no.2. In the event, any such representation is made, respondent no.2 shall consider and decide the same in accordance with law expeditiously and preferably within next three weeks.
It is clarified that this Court has not adjudicated on the merits of the claim of the petitioners and it shall be examined by respondent no.2, while taking decision in the matter."
He claims the benefit of the aforesaid order. There is no dispute that the matter is similar to the aforesaid. In these circumstances, the writ petition is disposed of with liberty to the petitioners to file separate representations before respondent no. 2 alongwith certified copy of this order. In the event any such representation is made, respondent no. 2 shall consider and decide the same in accordance with law expeditiously within the next three weeks. It is clarified that this Court has not adjudicated on the merit of the claim of the petitioner and that shall be examined by respondent no. 2 independently while taking aforesaid decision keeping in mind the aforesaid court's order referred herein above.
With the aforesaid observations, the writ petition is disposed of."
It is pursuant to the aforesaid direction that the Director concerned has passed the order impugned dated 28.11.2014. This order records that petitioners applications had not been received in the office of respondent No.2 by the date specified, and therefore, their claim cannot be considered now as the recruitment exercise stands concluded. Petitioners specifically assert in para 36, 40 and 41 that various posts against the vacancies advertised on 03.06.2014 remains unfilled and their claim for appointment can be considered in light of the observations made by this Court. Reliance is also placed upon a Division Bench judgment of the Lucknow Bench of this Court in Rajnish Kumar Pandey and others Vs. State of U.P. and others (2014) 9 ADJ 64. After taking note of the Full Bench judgment in Neena Chaturvedi Vs. Public Service Commission and others (2010) 9 ADJ 152, the Division Bench proceeded to issue following directions:-
"16. A direction is issued in the nature of mandamus commanding the respondent no.2 to proceed to consider the claim of the appellants no.1, 2, 4, 5, 9, 10, 13, 15 and 16 in accordance with the judgment dated 8.9.2014 and pass appropriate orders thereon.
17. We have selected the aforesaid appellants for the relief prayed for on the fact that it is only these appellants who have filed their certificates from the post office indicating the dispatch of their applications and delivery thereof on 9.6.2014 which is prior to the last date of submission of application form.
18. So far as the other appellants are concerned, in the event they are able to establish by getting of any certificate from the Department of Post and Telegraph that there envelops had also been delivered prior to the cut off date in the same manner as in the case of the other appellants then in that event such appellants, apart from those mentioned above, would also be entitled to the same benefit under this judgment.
19. With the said observations and directions, the special appeal is allowed."
In the counter affidavit filed, it is asserted that process of recruitment has already been concluded and under the changed rules, vacancies are now required to be filled by the U.P. Subordinate Service Selection Board, Lucknow.
Though averments made in paragraph 36, 40 and 41 of the writ petition are denied but there is no categorical denial to the assertion that number of posts against the advertised vacancy remains unfilled.
In case any post still remain vacant against advertisement dated 03.06.2014, the claim of petitioners for appointment is liable to be considered in light of what has been observed by the Division Bench in Rajnish Kumr Pandey (Supra). If the vacancies have however been filled, the concerned authority shall specify so by taking a fresh decision in the matter. Required consideration would be made by the second respondent within a period three months from the date of presentation of a certified copy of this order. Order impugned dated 28.11.2014 shall remain subject to the fresh order to be passed by the authority concerned. With the aforesaid observations and directions, this petition stands disposed off.
Order Date :- 9.12.2019 Abhishek Singh