- (1.) Heard learned Counsel for petitioners and Sri D.S.P. Singh appearing for respondents and learned Standing Counsel. It appears that petitioners who are working as Munsarim Reader in the Court of Additional District Judge, Bulandshahar challenging the selection of respondent No. 4 on the ground that there was no criteria for the purpose of holding examination. The rule only provides seniority-cum-merit, therefore, marks bifurcated for the purposes of written test, interview and other service records cannot be held and criteria for selection itself is bad. Further submission has been made according to Rules that if there was only one vacancy then maximum five candidate should have been called for consideration but ten candidate have been called for the purposes of promotion on the post of Sadar Munsarim. Further submission has been made that marks bifurcated for the purposes of service record/Hindi letter drafting, English letter drafting, written test and interview are not provided under the Rules 1946.
(2.) Sri Vinod Sinha, learned Counsel appearing for petitioners has placed reliance upon a judgment of this Court in Sayyed Muttaqui Raza v. District Judge, Banda and others,1999 ALLLJ 2650 and has placed reliance upon paragraph 14 of the said judgment. The same is being quoted below:-- 14. A very plausible, forceful and pertinent submission was made by learned Counsel for the petitioner to which the respondents had virtually no reply, that if the provisions of section 20(3) or the Rules of 1947 are found to be applicable, in that event, the petitioner cannot be by passed in the matter of promotion unless, as has been held in the decisions in Hari Mohan Lal and Iqbal Bahadur Srivastava the respondent No. 4 was found to be a person of outstanding merit, and, if the Rules of 1994, as amended in 1998, are applied in that event, the petitioner being senior most, was entitled to be promoted to the post of Sadar Munsarim, unless his claim was rejected as being unfit. It appears that the learned District Judge, Banda was swayed away with the finding of the committee that the previous record of Deen Bandhu Awasthi, respondent No. 4 was better than that of the petitioner. The yardstick applied by the learned District Judge is not enough to satisfy the requirement either of Rule 20(3) of the Rules of 1947 or of the Rules of 1994, as amended in the year 1998. The petitioner is admittedly senior to respondent No. 4. His seniority could not be disregarded simply because the character roll of the two officials is only of degree and not of kind. As held in Hari Mohan Lal's case the note of Rules 20(3) of the Rule of 1947 emphasizes that the difference between the two must be of a category, i.e., junior is found of 'outstanding merit' while the senior is not, the criterion of 'seniority subject to rejection of unfit' in the matter of promotion postulates that given the minimum necessary merit requisite for efficiency, competency as well acknowledge of rules, the senior, even though less meritorious shall have priority and a comparative assessment of merit is not required be made. The committee constituted by District Judge, as well as the District Judge himself have not come to the conclusion that the respondent No. 4-Deen Bandhu Awasthi was a person of outstanding merits and, therefore, he could not be appointed. If the criteria of seniority subject to rejection of unfit is applied in that event, the question of comparison of tractor rolls of various employees did not arise. The petitioner was not found to be unfit. In the absence of a finding of petitioner being unfit, he being the senior most employee, his claim could not be ignored. On the other hand, his seniority was to be respected. There can be no escape from the finding that the promotion of Deen Bandhu Awasthi-respondent No. 4 stands faulted on account of the fact that the petitioner who admittedly is senior to him has been denied the promotion in an arbitrary manner on insufficient and untenable grounds.
(3.) On the other hand, Sri Amit Sthalekar, learned Counsel appearing for - respondents has paled reliance upon a judgment of Apex Court in Om Prakash Shukla v. Akhilesh Kumar Shukla and others, 1986 AIR(SC) 1043 and reliance has been placed upon para. 23 of the same judgment. The same is being quoted below:-- 23. Moreover, this is a case where the petitioner in the writ petition should not have been granted any relief. He had appeared for the examination without protest. He filed the petition only after he had perhaps realised that he would not succeed in the examination. The High Court itself has observed that the setting aside of the results of examinations held in the other districts would cause hardship to the candidates who had appeared there. The same yardstick should have been applied to the candidates in the District of Kanpur also. They were not responsible for the conduct of the examination.;