AMRESHWAR PRATAP SAHI,J. - (1.) Heard Sri Rajeev Misra, learned counsel for the petitioner, Sri B.D. Pandey, learned counsel for the respondent nos. 1 to 3 and Sri V.K. Misra, learned counsel for the respondent no. 4.
(2.) Affidavits have been exchanged between the parties. The matter had been taken up by us on 24th August, 2017 and we had passed the following order :- "Heard Sri Rajeev Misra, learned counsel for the petitioner and Sri B.D. Pandey, learned counsel for the respondent nos. 1 to 3. The respondent no. 4, whose appointment is under challenge, is represented by Sri V.K. Misra, who has filed the counter affidavit and whose name is shown in the cause list. The matter has been taken up in the revised call but the learned counsel for the respondent no. 4 is not present. We have heard the arguments and what we find is that the issue involved is as to whether for the post of Medical Officer in the respondent-University, the respondent no. 4 was eligible and was holding the qualification of three years of experience or not. The University has filed a counter affidavit and in paragraph no. 24, it is categorically admitted that the working experience of the respondent no. 4 is short by six months and seven days. It is also admitted in paragraph no. 27 but at the same time, it has been asserted that the Selection Committee in its wisdom after perusal of the documents had relaxed the said shortage of experience of the respondent no. 4 and had recommended her for being appointed. We may also put on record that according to the said counter affidavit, the Selection Committee which interviewed the candidates on 24th February, 2005, prepared a panel of three candidates namely, the petitioner, the respondent no. 4 and one more candidate, Dr. Brahaspati Narayan. This fact has been stated in paragraph no. 6 of the counter affidavit. The said recommendations of the Selection Committee was approved by the Vice Chancellor as the respondent no.4 had been placed at serial no. 1 of the recommendation. Sri Rajeev Misra, learned counsel for the petitioner has urged that the advertisement nowhere indicates any power conferred on the Selection Committee to relax the qualification of three years experience which has to be construed as a minimum requirement of three years experience. It is also submitted that in the absence of any such power conferred or recital contained in the advertisement, no such relaxation could have been granted by the Selection Committee for which reliance has been placed by the learned counsel for the petitioner on the decision of Hon'ble the Apex Court in the case of Miss Shainda Hasan v. State of Uttar Pradesh and others (1990) Volume 1 UPLBEC page-750 para-5. It is, therefore, the issue of possession of three years experience and relaxation which has to be answered by both the respondents namely the University and the respondent no. 4 on the aforesaid submissions advanced. As prayed by Sri B.D Pandey, learned counsel for the respondent nos. 1 to 3, put up on 28th August, 2017."
(3.) Today, all the learned counsel for respective parties have been heard by us and the arguments that have been advanced leave no room for doubt that the selection and appointment of the respondent no. 4 as a Medical Officer in the Deen Dayal Upadhyaya Gorakhpur University, Gorakhpur was made by purportedly relaxing the experience of three years. We had noticed these facts in the order extracted herein above.;