- (1.) H. L. Gokhale, C. J. The appeal is admitted and by consent, heard forthwith. Heard Mr. R. C. Singh, learned counsel for the appellant and Sri Santosh Kumar Misra, learned counsel for the respondent No. 1 and learned standing counsel appearing for the respondent Nos. 2, 3 and 4 and Sri Anuj Kumar, learned counsel for the respondent No. 5.
(2.) THE appellant herein is the candidate for the post of Shiksha Mitra to be selected for school at village Ghatail Chheti in District Deoria. THE ranking of the candidates was done as per the rules whereafter the appellant was placed at No. 1 with 60. 70% and one Nirja Yadav was placed at No. 2 with 56. 85% and respondent No. 1 was placed at No. 3 with 55. 50%. In this scenario, normally the appellant should have been selected but she was denied appointment on the ground that she was not residing in the village concerned and the requirement for the selection is that the person concerned has to be resident of the concerned village. THE District Magistrate went into controversy, accepted the submissions of the appellant and passed an order that she ought to have been given appointment and an order was passed on 4th August, 2006 which led to filing of Writ Petition No. 45672 of 2006 by respondent No. 1. THE learned single Judge went into the matter and recorded finding that the rule requires the appointee to be the resident of the village concerned and also held that the appellant-respondent in the writ petition is not resident of the village concerned and, therefore, not entitled to be appointed. Being aggrieved by the order of the learned single Judge, this appeal has been preferred. We have gone through the requirement for appointment for the post of Shiksha Mitra as laid down in the Government order dated 26th May, 1999. The relevant clause is 3 (ii ). This clause when translated into English from Hindi reads as follows: " Before taking the decision, Village Education Committee of the village concerned, where the school is situated, will decide the names of the persons, male or female. In the event, no eligible person is found in the village concerned, the eligible male or female candidate from the Nyaya Panchayat will be selected/ Learned counsel appearing for the respondent No. 4 submits that this rule requires that the concerned person has to be from the village where school is situated.
(3.) LEARNED counsel for the appellant undoubtedly disputes this proposition. Our reading of this rule is that undoubtedly there is an element of preference for a candidate who belongs to the village concerned and if no such eligible candidate is found from the concerned village, then field of selection can be enlarged. However, this rule does in clear terms exclude a candidate who is not the resident of the concerned village. The rule does provide for preference but does not provide for any exclusive right in favour of the candidates from the village concerned. So far as the facts of the present appellant are concerned, she was married sometimes in the month of May, 2004 and this fact has not been disputed by the respondenta inasfnuch as even in her application dated 26th May, 2006 she has clearly accepted that the appellant was married in this Yillage. There is a dispute of the entries in the family register. The appellant has relied upon an entry which is made subseauent to the date of selection. The date of selection was 22nd November, 2005. The appellant was earlier residing in her father's village. The extract of her father's village issued sometimes in November, 2004, has been relied upon by the respondent. Now, if it is adrnitted position that the appellant is married into the Yillage in May, 2004. It is auite natural that the proper entry in the family register was not made at that time, but a little later. The learned single Judge has decided the writ petition against the appellant on the ground that probably the ceremony of sending a married girl to her husband's place (gaana) had not taken place. Now, it is matter of conjectures. The fact remains that the appellant was married in that Yillage and in any case the rule does not exclude the candidature of a candidate on this ground. This being the. position, in any view learned single Judge has committed an error in interfering with the order passed by the District Magistrate. His construction of the rule and decision on facts are both erroneous. We have been shown that the appellant has passed her High School examination in second division and Intermediate examination in first division and was therefore, giving better ranking. This , being the position we fail to understand as to what is wrong if a better candidate was selected.;