- (1.) DEVI Prasad Singh, J. This writ petition under Art. 226 of the Constitution of India has been preferred against the order of termination as well as denial on the part of the State Government to grant age relaxation for the petitioner's appointment, though she was selected and her name found place in the waiting list.
(2.) THE brief facts of the present case are that by an order dated 17. 3. 1986 (Annexure-1), the petitioner was engaged in the work-charge establishment on the consolidated salary of Rs. 250/ -. Since March, 1986, the petitioner has been continuing to discharge duty in the work-charge establishment in the cadre of Junior Clerk. In the year 1989, selection against the regular post of Junior Clerk was held and a select list was released. According to the petitioner's Counsel the petitioner was selected on the post of Junior Clerk, though it has been stated in the counter-affidavit that the petitioner's name was in the waiting list An appomtment letter dated 18. 7. 1991 (Annexure-2) was issued permitting the petioner to discharge duty. In consequence there of, the petitioner joined duty on An undertaking was given by the petitioner that her joining shall be subject to relaxation in age granted by the State Government. It appears that the matter was referred to the State Government for grant of relaxation in age but the State Government declined to grant such relaxation in age. An order was commu nicated by letter dated 27. 8. 1991 (Annexure-10 to the Counter affidavit), in conse quence whereof, by office memorandum dated 18. 9. 1991 (Annexure- 4 to the writ petition), the petitioner's services were terminated in pursuance to the power conferred by U. P. Temporary Government Servants (Termination of Service) Rules, 1975 (in short here in after referred to as "rules" ). Feeling aggrieved with the im pugned order of termination and denial on the part of the State Government to relax the age, present frit petition has been preferred. While assailing the impugned action of the State Government, it has been submitted by the petitioner's Counsel that the State Government has relaxed the age in regard to two persons, namely Komal Prasad and Ganesh Datt Mishra. Accordingly/the submission is that since the relaxation in age was granted with regard to two persons, it was incumbent on the part of the State Government to accord relaxation in age for the petitioner's regular appointment against regular vacancy. On the other hand, Mr. R. D. Shahi, learned Standing Counsel proceeded to submit that the petitioner's name was not found in the select list; rather she was in the waiting list, a copy of which has been filed as Annexure-6 to the counter-affidavit. Accordingly, the submission of the learned Standing Counsel is that the State Government was right in rejecting the petitioner's claim with regard to relaxation in age.
(3.) HOWEVER, while assailing the impugned action, the petitioner's Counsel stated that the matter as to whether the controversy relates to a person whose name finds place in the select list or waiting list shall not make any difference, once the right to livelihood is concerned, more so when wait listed person comes in the field of eligibility for appointment on account of arising of vacancy. Relax ation in age is granted to persons who are serving in the department like the petitioner and denying the same amounts to hostile discrimination. It has also been submitted that since the petitioner was selected in accordance with law by the newly constituted Selection Committee, even if her name was found place in the waiting list, denial of appointment only because of overage is neither reason able nor just and proper. The petitioner's Counsel has relied upon an Apex Court's decision reported in (2007)2 SCC 611, Yamuna Shunkar Sharma v. State of Rajasthan and others. I have considered the arguments, advanced by the parties' Counsel at length. It is not disputed that the petitioner has been serving in the work-charge establishment since 1986 continuously. He appeared in the regular test and succeeded to enroll herself in the waiting list. The persons whose names were found in the select list were appointed and thereafter the candidates whose names were found in the waiting list were considered. The petitioner's name was consid ered and an appointment order was issued subject to the rider that in case the State Government does not accord approval for relaxation in age, her services may be dispensed with. As discussed above, the State Government has declined to grant relaxation in age by the impugned order dated 27. 8. 1991. The order dated 27. 8. 1991 seems to be unreasoned and non-speaking order. The reason for rejection of the petitioner's claim for relaxation in age has not been assigned. What prompted the State Government to reject the petitioner's claim for relax ation in age does not emerge from the impugned order. Why the State Govern ment has granted relaxation in age to the persons whose names were found place in the original select list but denied the same benefit to the petitioner ? Once the petitioner was found fit for appointment keeping in view her name having found place in the waiting list, then the contrary decision taken by the State Government for grant of relaxation in age seems to be not justified. It is settled provision of law that right to life is a fundamental right and once the petitioner was found fit for appointment even if her name was in the waiting list, then her case was at par with the persons who were eligible on account of their names having found place in the original select list. Once a candidate who qualities in the test and whose name finds place in the waiting list and at later stage, on account of non-filling of vacancy from the persons whose names contain in the regular list, he or she is found eligible, then in such situation, the case of persons whose names contained in the waiting list comes at par with the persons whose names contained in the regular select list. Once a person qualifies for appointment or becomes eligible on account of non-joining of the persons whose names con tained in the regular list, then denial of opportunity to get appointment with differ ent treatment seems to be hostile discrimination and hit by Art. 14 of the Consti tution of India. It was incumbent on the part of the State Government to provide the same treatment to the petitioner for the purpose of relaxation in age as was given to two persons whose names have been referred hereinabove, may be their names having existed in the original select list.;