- (1.) S. Rafat Alam and Sudhir Agarwal, JJ. This intra court appeal arises out of the judgment of Hon'ble single Judge dated 5. 10. 2005 dismisisng the Writ Petitions No. 42041 of 2000, 1187 of 2002 and 23630 of 2003 preferred by the appellant Shiv Prakash Yadav and others (hereinafter referred to as 'petitioners')-
(2.) THE Special Appeals No. 1308 of 2005, 1410 of 2005 and 1411 of 2005 have been filed by the State of U. P. and others (hereinafter referred to as 'respondents') challenging the aforesaid judgment of Hon'ble single Judge being aggrieved by the findings recorded by Hon'ble single Judge on certain aspects particularly with reference to application of Section 3 (6) of U. P. Public Services (Reservation for Scheduled Castes, Schedules Tribes and Other Backward Classes) Act, 1994 (hereinafter referred to as '1994 Act') and despite the fact the writ petitions have been dismissed, the State of U. P. has prayed for setting aside judgment of the Hon'ble single Judge. The facts in brief giving rise to the present appeal are that an advertisement was made on 31. 8. 1998 advertising 43 posts of Village Development Officer for which after holding written examination and interview, the final result was published on 29. 5. 1999 wherein 19 candidates were declared to have qualified in general category. 13 in Other Backward Classes and 11 in the category of Scheduled Castes/scheduled Tribes. A waiting list was also prepared containing the names of 25 candidates. One person, who was in the wait list of O. B. C. category filed Writ Petition No. 42041 of 2000, Hart Ram Yadav v. State of U. P. and others, claiming that he has secured 48. 87 marks while another general category candidate namely Rajeev Naln Tiwari has secured 48. 23 marks. He (Hari Ram Yadav) has been placed on the top of the general category wait-list, though he ought to have been placed in the list of general category candidates in place of Rajeev Nain Tiwari by applying the provisions of Section 3 (6) of 1994 Act. The writ petition was allowed by judgment dated 27. 7. 2001 holding that the select list was in violation of Section 3 (6) of 1994 Act and consequently the authorities were directed to prepare a fresh select list. Two appeals, namely, Special Appeal Nos. 256 of 2002 and 264 of 2002 were filed by the general category candidates aggrieved by the judgment dated 27. 7. 2001 complaining that despite the fact that they were necessary and interested party, but without impleading them, the writ petition has been decided against them. Both these special appeals were allowed vide judgment dated 20. 5. 2002 and the judgment passed by Hon'ble single Judge was set aside. Matter was directed to be re-heard by the Hon'ble single Judge. Meanwhile, since some of the selected candidates who were issued appointment letters did not join, claiming appointment against the resultant vacancies, Sri Shiv Prakash Yadav filed Writ Petition No. 2258 of 2000 and another Writ Petition No. 23630 of 2003, was filed by one Munnu Ram before this Court which were disposed of on 17. 8. 2000 directing the competent authority to dispose of the application/representation of the petitioners within six weeks from the date of production of certified copy of the order. The representation, consequently, was considered and rejected by the Commissioner, Rural Development, U. P. holding that all the 13 candidates of O. B. C. having joined, no vacancy left for the candidates in the wait list of O. B. C. category and since both the aforesaid petitioners belong to O. B. C. category, they cannot be given appointment against the resultant vacancies which in fact did not occur against O. B. C. quota. Challenging the said order. Writ Petition No. 1187 of 2003 was filed by the petitioner-appellant Shiv Prakash Yadav and 4 others seeking following reliefs: (a) issue a writ, order or direction in the nature of certtorari quashing the order dated 5. 5. 2001 and 24. 5. 2001, (Annexures-3 and 3a to the writ petition) passed by learned Commissioner Rural Development, U. P. and District Development Officer, Varanasi relating to the petitioner No. 1 and petitioner No. 5, respectively; (b) Issue a writ, order or direction in the nature of mandamus directing the respondents to appoint the petitioners on the basis of fresh select list as per judgment dated 27. 7. 2001 passed by this Hon'ble Court in Civil Misc. Writ Petition No. 42041 of 2000, Hari Ram Yadav v. State of U. P. and others; (c) Award cost of the petition to the petitioner. It also appears that in the meantime the respondents pursuant to the order dated 27. 7. 2001 passed by the Hon'ble single Judge in Writ Petition No. 42041 of 2000, prepared a fresh select list on 6th May, 2002 and thereafter two persons namely Munnu Ram and Santosh Singh filed Writ Petition No. 23630 of 2003, claiming appointment on the post of Village Development Officer in according with select list prepared pursuant to the order dated 27. 7. 2001 of Hon'ble single Judge. All the aforesaid three writ petitions have been dismissed by the Hon'ble single Judge vide judgment impugned in these appeals on the ground that once a reserved category candidate has exercised his option to be treated as a reserved category candidate in such case provisions of Section 3 subsection (6) would not apply and, therefore, no relief can be granted to the petitioner.
(3.) AGGRIEVED by the judgment of the Hon'ble single Judge, the petitioners have filed the Special Appeal No. 1377 of 2005. It is contended that applying similar standards, the respondents held selection and no extra advantage was given to reserve category candidates. In these circumstances, merely, because the reserved category candidates have mentioned in their application forms that they belong to reserved category in order to avail the benefit of vacancies which are reserved for them, they cannot be denied right of consideration against unreserved vacancies. It is also contended that the issue is now squarely covered by a Division Bench judgment of this Court in Sanjeev Kumar Singh v. State of U. P. and others, 2007 (2) ALJ 86. Learned standing counsel, in effect, supported the contention of the petitioners insofar as the Hon'ble single Judge has held that Section 3 sub-section (6) cannot be applied to a candidate who has exercised his option to be considered as a reserved category candidate and contends that the said finding and reason assigned by the Hon'ble single Judge in the judgment in question is incorrect and liable to be set aside, but opposing the relief sought in the writ petition, he contended that in the written test, separate merit list was prepared for general and reserved category candidates and on the basis thereof interview was held, therefore, it cannot be said that till selection is over all the candidates were considered with identical standards. He submits that thus, the respondents have rightly refused benefit of Section 3 (6) in the case in hand and the order rejecting their representation is justified and in accordance with law. He also placed reliance on the Division Bench judgment of this Court in the case of Sanjeev Kumar Singh (supra ).;