- (1.) S. K. Phaujdar, J. The matter had to be heard ex-pane on 4-12-1996 and 11-12-1996 for the reasons as shown in the orders recorded on those dates.
(2.) THE petitioner approached the court for a writ in the nature of certiorari for quashing the appointment of Naresh Kumar Lohani (respondent No. 5) as con tained in annexure-6 to the writ petitionand for a direction on the respondent Nos. 1 to 4 that the petitioner be appointed as Routine Grade Clerk (in short, RGC) in place of respondent No. 5. It is the case of the petitioner that the State Government had constituted Uttar Pradesh Jal Nigam (for short, Nigam) under Section 3 of the U. P. Water Supply and Sewerage Act, 1976. The petitioner was appointed as an apprentice trainee under the Regional Chief Engineer (Hills) under the Nigam at Dehradun in 1983 and by a letter dated 13-8-1984. He was given an ap pointment as an RGC in the office of the Executive Engineer, Temporary Project Division, of the Nigam at Almora. The ap pointment was initially given for the period of 2 months w. e. f; 1-8-1984. He worked upto 30th September, 1984and was also allowed to work as an RGC thereafter. He was given an assurance that his services would be regularised under the Nigam. The con cerned Executive Engineer also recom mended for regularisation of his service. There was a direction by the Superintending Engineer (Projects) that the matter of regularisation of the service of the petitioner be considered at the time when the RGC would be appointed afresh. The petitioner continued in his work and seni many representations to the Nigam for his regularisation. A substantive vacancy oc curred in the post of RGC with the promo tion of the existing incumbent Anand Singh Rawat. Another post of RGC fell vacani with the promotion of Smt. Kamla Tewari, There were other posts also in that grade which fell vacant under the Nigam. The petitioner asserted that he was eligible and tit for being regularised against one of such posts. A test was held for appointment tc the post of RGC and without prejudice to his rights otherwise, the petitioner took the test on 10th May, 1985. "when the results were declared. The petitioner was shown in the second place according to merit the test was conducted by a selection committee consisting of three members, namely, Ex ecutive Engineer (Construction Division] Almora, Executive Engineer (sic), Almora and the Executive Engineer (Temporarj Project Division), Almora, the result was duly published in the notice board of the respondents on 12th May, 1985 and a copj of the result was sent to the Superintending Engineer, Construction Division, Uttai Pradesh, Jal Nigam, Almora. A recommen dation was made in the forwarding letter that the petitioner should be given priority in appointment as he had worked as an apprentice for a year. On 25-5-1985 undei certain unavoidable conditions, the petitioner had to take leave and even there after he fell ill. He submitted medical certifi cates and applied for medical leave uptc 30th June, 1985. When he reported to his office on 30th June, 1985, he was informed that the appointment in office had beer made and the two persons who were ap pointed against the two vacancies were Mithilesh Kumar Upadhya and Narest Kumar Lohani. This Naresh Kumar Lohan; is respondent No. 5 in this writ petition. The petitioner went on to say that he approached the Superintending Engineei (Projects) and submitted before him that his services were wrongly terminated. It was contended in the writ petition that Sr: Naresh Kumar Lohani could not have beer appointed as he was shown at the bottom ol the merit list and the Superintending En gineer had arbitrarily appointed him. A copy of the letter of the Executive Engineei indicating the result of the test and the names of the candidates in order of merit was filed as Annexure-4 to the writ petition. The name of Sri P. K. Tripathi came in the second position indicating his total marks as 104. The name of M. K. Upadhya (who was appointed) was in the first position with the same total marks. The remarks column indi cated that the petitioner had obtained higher marks in the written test and had passed Hindi Typing test but could not pass English typing test. A recommendation was there against his name that because this applicant had worked as an apprentice clerk and had also been working for about one year as a regular ROC. he should be given a priority. The name of Naresh Kumar Lohani was in the fifth position with 90 marks to his credit. It was indicated in the remarks column that Lohni's name came from the Employment Exchange. He got the pass marks in the written test and had also passed Hindi and English typing tests. A counter affidavit was filed on be half of Nigam. It was accepted that the petitioner was deputed as an apprentice trained clerk, as asserted. It was stated that the petitioner left the training incomplete on his own will on 31-7-84 and did not com plete the said training period of one full year. In terms of the relevant Govt. Order he had no claim of being absorbed in regular service as RGC even after completion of apprenticeship. He had worked as an RGC till 31-1-85 only against a temporary vacan cy and it was clearly indicated to him that his temporary appointment could be ter minated at any point of time without further notice. It was admitted that two posts of RGC fell vacant and those were filled in by the Superintending Engineer and the stop gap arrangements, A copy of the letter of the Executive Engineer on which the petitioner claimed to have been shown in the second position was described to be a false one. The letter in its nature being a confidential one, the petitioner could have no access to it. It was stated that after the selection process the two candidates found most suitable were given appointment and the same could not be challenged. Along with the counter af fidavit the Nigam had appended annexure A-3 which is a photocopy of the result of the test and interviews of the candidates which, according to the Nigam, would clarify the entire position.
(3.) LEARNED counsel for the petitioner had laid stress only on this Annexure A-3 appended to the counter affidavit of the Nigam. This annexure-A. 3 indicated the marks obtained in different tests by the can didates including the present petitioner and the aforesaid Naresh Kumar Lohani (respondent No. 5 ). It appears that the can didates were tested under four heads: TESt FULL MARKs Written Test Hindi Typing Test English Typing test Generaltest -------------------- Total Marks --------------------- The first candidate Mithilesh Kumar Upadhya obtained 48, 28, 11 and 17 with a total of 104 marks against the aforesaid full marks, respectively. Sri Pramod Kumar Tripathi, the petitioner, obtained 71, 17, 3 and 13, respectively, with a total of 104 marks. Sri Naresh Kumar Lohani obtained 41, 27, 12 and 10, respectively, with a total marks of 90. However, these marks were assessed differently giving full marks of 40, 50, 50 and 10 to written test, Hindi typing, English typingand General test respective ly. The marks obtained by the candidates were reassessed according to the percentage and the marks of the petitioner were this assessed at 29, 17, 6 and totaling 57, while those of Naresh Kumar Lohani were as sessed at 17. 27. 24 and 4 totalling 72, Under the revised assessment of marks N. K, Lotiani got a better position than the petitioner and was selected. This revision as per annexure. As was done because a Government order No. 27/2/1974 personal II dated 11-10-1979 dictates that the total marks in Hindi typing should be 50. There was a note that it was collected from the planning department that the English typingalso would have 50 full marks for the test. There was no indication in the order that the full marks in written test was reduced from 100 to 40 and the percentage of marks obtained by the candidates was accordingly reduced. It appearsand that was the argument of the learned counsel for the petitioner, that by manipulating the total marks without any legal foundation the marks obtained by the petitioner was brought down as 'he total marks in which he had fared better were brought down ar bitrarily only to accommodate R. K. Lohani. The learned counsel submitted a copy of the Government Order dated 27-2-19/4 as referred to in annexure A-3 to the counter affidavit. It was indicated in clause 12 there of that for direct recruitment an applicant should have passed the inter mediate examination of the Board provided that for the purpose of typing a candidate should have a speed of 25 words per minute. In clauses 16 (4) it was indicated that the typing test in Hindi should be for 50 marks. There was nothing to indicate, that English Typing was a condition for appointment as RGC or that the full marks there of was fixed at 50.;