Court No. - 16
Case :- WRIT - A No. - 22861 of 2011 Petitioner :- Chotey Lal And Another Respondent :- State Of U.P. And Others Counsel for Petitioner :- Siddharth Khare,Ashok Khare Counsel for Respondent :- C.S.C.,Ravindra Singh
Hon'ble Prakash Padia,J.
1. Heard Sri Ashok Khare learned Senior Counsel assisted by Sri Kamlesh Kumar, learned counsel for the petitioners, Smt. Pravin Shukla and Sri Dharmendra Kumar Pandey, learned Standing Counsel for the respondent No.1 and none is present for respondent No.2 and 3.
2. The petitioners have preferred the present writ petition with the prayer to quash order the dated 9.3.2011 passed by the Cane Commissioner U.P. Lucknow and also the report dated 8.3.2011 submitted by the Joint Cane Commissioner Eastern Region Gorakhpur (Annexure 8 and 7 to the writ petition respectively). A further prayer was made to issue a Mandamus commanding the respondents to forthwith grant appointment to the petitioners as Cane Supervisor.
3. Facts in brief as contained in the writ petition are that an advertisement was issued by the Joint Cane Commissioner Eastern Region Gorakhpur/respondent No.3 on 8.8.1998 inviting the applications for making appointment against 91 posts of Cane Supervisor. Pursuant to the same, petitioners along with others submitted their application forms. The petitioner No.1 belongs from Scheduled Caste Category and petitioner No.2 belongs to Other Backward Class category. The petitioner applied under their respective reserved category. Both the petitioners have also claimed weightage of being retrenched employees and also weighatage in Sport Category. After the conclusion of selection proceedings the final select list was published on 5.3.1999. In the said list, the petitioners were found selected.
4. In place of granting appointment on the basis of selections, a notice was published in a Newspaper on 18.10.1999 declaring the cancellation of the result. The said cancellation was challenged before this Court by means of various writ petitions including Writ No.5651 of 2001 (Chandramani Singh Vs. State of U.P. and others),. The aforesaid writ petition were finally allowed by a Co-ordinate Bench of this Court vide judgment and order dated 1.5.2001
5. By the aforesaid judgment, the order impugned by which the result were cancelled was set aside and directions were issued to grant appointments to the selected candidates on the basis of declared result within a period of two months.
6. It is contended by Sri Ashok Khare, learned Senior Counsel for the petitioners that instead of granting appointments to the petitioners, the Deputy Cane Commissioner passed an order on 26.10.2002 whereby the names of the petitioners were deleted from the select list on the ground that petitioners had wrongly been granted weightage of being retrenched employees in the earlier declaration of the result.
7. Aggrieved by the order dated 26.10.2002, a writ petition had been preferred by the petitioners being Civil Misc. Writ Petition No.51040 of 2002 (Chotey Lal & Others Vs. State of U.P. & Others). The said writ petition was finally allowed by the learned Single Judge of this Court vide judgement and order dated 30.4.2010, copy of which is appended as Annexure 6 to the writ petition.
8. By the aforesaid judgement, directions were issued to the respondents to consider the case of the petitioners on the basis of their reduced marks and recalculate the merits, in case vacancies are available in the respective categories. After the aforesaid order was duly communicated by the petitioners before the Cane Commissioner as well as Deputy Cane Commissioner along with a representation, on 8.3.2011, Joint Cane Commissioner Eastern Region Gorakhpur/respondent No.3 submitted a report to the Additional Cane Commissioner (Administrative) U.P. In the said report, it is reiterated that in the initial declaration of the result, the petitioners were shown as having been selected after awarding them weightage of retrenched employee. However, while issuing the order dated 26.10.2002 such weightage had been excluded. Since it was found that the marks of weightage was wrongly awarded to the petitioners. It is contended that after the exclusion of the marks now the petitioner No.1 had secured 42.98 marks while the petitioner No.2 secured 37.77 marks. It is further contended in the report that last candidate appointed under the aforesaid categories had secured more marks than the petitioners.
9. It is contended by Sri Ashok Khare, learned Senior Counsel that report suffers from an error apparent in computation of marks. It is contended that insofar as the petitioner No.1 is concerned under the heading of 40% of the marks secured in written examination what is mentioned is 20.8 marks. However petitioner No.1 secured 78 marks i.e. 40% of the marks secured by him in the written examination worked out to 31.2 as such it is contended that the aggregate marks which was awarded i.e. 42.98 marks was totally incorrect and the same should be 52.38 marks. It is further contended that identical error also exists with regard to the computation of 40% marks secured by the petitioner No.2 in the written examination. The petitioner No.2 has been shown as having secured 56 marks in the written examination out of 150. 40% thereof have been calculated to be 14.93. In fact 40% of 56 marks is worked out 22.4 but wholly illegally the aforesaid marks were not awarded to the petitioner No.2 and petitioner No.2 illegally awarded total 37.77 marks. Although he was entitled for 45.24 marks in aggregate. It is further contended that on the basis of the report dated 8.3.2011, the Cane Commissioner U.P. passed order dated 9.3.2011 rejecting the representation of the petitioners.
10. In this view of the matter, it is argued by Sri Khare, learned Senior Counsel that the impugned order has been passed on the basis of complete misconstruction of the judgment of this Court dated 30.4.2010 It is further contended that it is wrong to say that the post of Cane Supervisor are not still in existence and now the aforesaid posts is within the purview of Public Service Commission. It is further contended that reason was assigned is erroneous. It is further contended that findings recorded in the order dated 8.3.2011 that the post of Cane Supervisor is become a dead cadre is false and incorrect.
11. A counter affidavit was filed by the respondents. It is contended in the counter affidavit that the order passed by the respondent No.3 are absolutely correct and valid order and does not call for any interference by this Court under Article 226 of the Constitution of India. It is further contended that the judgement delivered by this Court on 30.4.2010 passed in Writ Petition No.51040 of 2002 was duly and fully complied with. It is contended by the learned Standing Counsel that the calculations were rightly made by the Joint Cane Commissioner while submitting its report dated 8.3.2011. it is further contended that the petitioner No.1 Chote Lal was rightly awarded 78 marks out of 150 marks in the written examination as per procedure the petitioner became entitled for 40% marks in the written examination. The petitioner No.1 obtained 78 marks and 40% of the same come to 20.80 marks. The calculation as contained in paragraph 21 of the counter affidavit is as follows:-
78 x 40 = 20.8 150 Similarly it is contended that insofar as the petitioner No.2 is concerned the marks were also rightly calculated in his case also. It is further contended that the written examination was held about 150 marks. The petitioner No.2 obtained 56 marks out of 150 marks and 40% of the same becomes 14.93. The calculation has been done as follows:-
56 x 40 = 14.93 150
12. In view of the same, it is contended that it is wrong to say in the writ petition that the marks were wrongly calculated by the Joint Cane Commissioner while submitting his report dated 8.3.2011. It is further contended that earlier both the petitioners were wrongly awarded marks under the Heading Weightage treating them as retrenched employee but subsequently, it was found that the petitioners were not entitled for the weightage under the Heading retrenched employee.
13. No rejoinder affidavit is on record denying the allegations contained in the counter affidavit.
14. The basic arguments which was raised by Sri Khare learned Senior Counsel is that the marks were wrongly calculated by the Joint Cane Commissioner while submitting his report dated 8.3.2011. It is contended that after excluding the weightage the petitioner No.1 has been shown as having secured 42.98 marks while the petitioner No.2 has been shown as having 37.77 marks. It is further contended that the aforesaid calculation is based upon miscalculation. It is further contended that according to the norms for determination of the merits list, 40% marks secured in the written examination were required to be taken into account. The written examination was held aggregate 150 marks and the petitioner Nos.1 and 2 had secured 78 and 56 marks respectively out of 150 and 40% of the said marks of petitioner No.1 and 2 worked out to 31.20 and 20.40 respectively.
15. Heard learned counsel for the parties.
16. It appears that the calculation of marks as has been argued by Sri Khare learned Senior Counsel is absolutely incorrect as stated in the counter affidavit and also from the calculation, it is clear that petitioner Nos.1 and 2 was rightly awarded marks as has been calculated by the Deputy Cane Commissioner in its report dated 8.3.2011, 40% of the marks secured in the examination by petitioner Nos.1 and 2 were rightly shown as 20.80 and 14.93 respectively. Even otherwise from the calculation of the marks which petitioners obtained, it is clear that petitioner No.1 obtained 78 marks out of 150 marks and 40% of the marks awarded in the written examination came to 20.80 not 31.20. Similarly, in respect of petitioner No.2 obtained 56 marks out of 150 marks and 40% of the marks awarded in the written examination came to 14.93. The calculation has already been made in paragraph 11 of this judgment, it appears that the argument advanced by Sri Khare learned Senior Counsel that the petitioners were entitled for 31.20 and 22.40 marks respectively is absolutely incorrect. It appears that the aforesaid calculation was done on the basis of total marks i.e.150 marks but as per the procedure prescribed in the present case 40% would be calculated from the marks obtained by the petitioners out of 150 and not 40% of the marks obtained by the petitioners. Since the petitioners were not able to obtain qualifying marks as stated above, no further consideration is required whether the post of Cane Supervisor is still vacant or not.
17. In the facts and circumstance of the case, no relief could be granted to the petitioners.
18. The writ petition devoid of merits and is hereby dismissed.
19. No order as to costs.
Order Date :-26.4.2019 saqlain