- (1.) S. N. Srivastava, J. Challenge in this writ petition is focused on the appointment letter dated 5-12-1990, passed by Mukhya Nagar Adhikari Nagar Nigam, Lucknow-respondent No. 2 issued to opposite party No. 5 appointing him as foreman in the R. R. Workshop, Nagar Nigam. Lucknow. The relief sought in the writ petition, besides being for a writ of certiorari quashing the appointment of the respondent No. 5 and recommendation of the Selection Committee dated 7-7-2000, is for a writ of mandamus directing the opposite parties to appoint the petitioner on the aforesaid post on account of his being the only qualified and eligible candidate as per the service Rules.
(2.) THE dispute in the present petition centers round the appointment on the post of foreman in R. R. Workshop (Health Department) by direct recruitment in Nagar Nigam, Lucknow. This post was advertised by Additional Mukhya Nagar Adhikari by the order dated 14-5-2000. According to the advertisement, the requisite qualification prescribed was certificate from I. T. I. and experience of 10 years as Mechanic/turner in the workshop. THE age prescribed for the post in the advertisement was between 18 to 30 with relaxation of five years to the applicants of reserved category. The petitioner, it would appear from the record, applied for the post. It would further appear that in his case, the Commissioner vide order dated 27-6-1998, had relaxed the rigours of age subject, of course to the postulates that the relaxation so granted was applicable to direct recruitment only. On 7-7-2000, interview was held and petitioner was permitted to appear before the selection committee but by the impugned order (Annexure-1 to the writ petition), the opposite party No. 5 was given appointment as foreman. It is this order of appointment, which has been Impugned in the instant petition. Learned Counsel for the petitioner began his submission urging that opposite party No. 5 was not equipped with requisite qualification and that experience of 10 years as Mechanic/turner in the workshop as postulated in the advertisement was also lacking and further that either prior to or on the date of selection, none of the conditions relating to experience or qualification had been relaxed by the Commissioner in the case of opposite party No. 5 and therefore. It is further argued, the appointment of the opposite party No. 5 was made without any authority in law. It was next canvassed that selection committee was not constituted properly Inasmuch as it had one Ashok Yadav Assistant Engineer. Nagar Nigam. Lucknow, as one of the members against whom petitioner had already represented prior to selection alleging mala fides without eliciting any response. It has been next canvassed that the necessary requirements for eligibility for the post of foreman according to rules was 10 years experience as Mechanic/turner in workshop attended with requirement of writing or reading vernacular language while in the case of opposite party No. 5 this qualification was lacking. According to learned Counsel, opposite party No. 5. who held B. E. degree in Mechanical Engineering was not qualified to be considered for selection on the post of foreman by reason of being not a Mechanic having certificate of I. T. I. and requirement of experience of 10 years as Mechanic/turner in workshop was also wanting. Besides the above submissions, as stated supra, the learned Counsel also canvassed that the petitioner had made a representation alleging mala fides against opposite party No. 4 Deepak Yadav. Assistant Engineer, Nagar Nigam, Lucknow, on the ground that contempt proceeding had been drawn at the instance of the petitioner which was pending in the Court of law. Quintessentially, the learned Counsel attributed non- selection of the petitioner due to mala fides of opposite party No. 4 alongwith other grounds. Per contra, Sri Umesh Chandra learned senior advocate in vindication of the selection and appointment of opposite party No. 5 contended that opposite party No. 5 had higher qualification and thus was better placed than petitioner and his selection in preference to petitioner was based on merits further urging that petitioner's claim was considered and disallowed. On the date of hearing, a supplementary affidavit came to be filed. Relying on the said affidavit, the learned Counsel contended that the Commissioner had granted relaxation in respect of work experience on the recommendations of Nagar Ayukta, Nagar Nigam, Lucknow, made in favour of petitioner dated 20-5-2002 and 20-5-2003 and 2-3-2006 and in view of the order of the Commissioner dated 16-5-2006, the appointment of opposite party No. 5 was validly made. The learned Counsel also produced a letter dated 17-12-2000 from a perusal of which it would transpire that Nagar Nigam had decided to convert the post advertised in the advertisement into reserved post for scheduled caste only and on the basis of this letter, he urged that it was in this background that the petitioner was rightly eschewed from consideration for appointment on the post of foreman. The learned Counsel for the opposite parties further contended that selection committee was rightly constituted and allegations of mala fides leveled against Ashok Yadav, one of the members of the selection committee was without any valid basis being born of pent up feelings and gratuitous out- bursts of a vanquished person.
(3.) I have bestowed my anxious consideration to the arguments advanced across the bar and have also gone through the materials on record. From a perusal of the record, it would transpire that this Court by means of order dated 24-1-2006, directed the opposite parties-State authorities to produce original record for perusal of the Court. Ostensibly, the order having yielded no response, the Court further directed to produce the record on 8- 2-2006, 20-2-2006, 28-2-2006, 23-3-2006 and lastly on 27-4-2006. All these orders also yielded no response from the Nagar Nigam nor any record was produced. It would further transpire from the record that Deepak Yadav, respondent No. 4 filed counter-affidavit in the connected Writ Petition No. 14 (22) 2000, P. K. Chaturvedi v. State of U. P. , but no counter-affidavit was filed by him in the present petition in which serious allegations of mala fides had been leveled by the petitioner vide averments contained in para 26 of the writ petition. In this factual matrix, it is axiomatic that the respondent No. 4 has nothing to say against the allegations and therefore, the averments, by reason of remaining uncontroverted have to be treated as correct in view of law laid down by the Apex Court in its decision in AIR 1973 SC 627; 1982 (2) SCC 471.;