- (1.) D. K. Seth, J. In writ petition No. 32378 of 1993 an interim order was passed on 10th September, 1993. On 7th October, 1993 an application for vacating the interim order was filed. On the said application direction for filing rejoinder-affidavit to the accompanying counter-affidavit was issued Rejoinder has accordingly been filed. By order dated 7th October, 1993 the applica tion was directed to be listed on 1-11-1993. For some reason or the other the applica tion could not be disposed of and is now been placed before this Court. Mr. Saxena learned Counsel for the respondent presses the said application vehemently. Hearing of the said application would in effect decide the main issues. By consent, therefore, the main matter is taken up for hearing.
(2.) THE facts giving rise to the present case inter alia was that the petitioner was selected in terms of an advertisement for the post of tubewell Assistant. THE procedure for such selection was laid down in a circular contained in Annexure-CA-1 to the writ petition No. 15647 of 1993. It is alleged that the petitioner was so selected pursuant to the said procedure contained in Annexure-CA 1. But subsequently the selection was sought to be cancelled by an order dt. 11-1-1993 (Annexure-4 to the writ petition No. 15647 of 1993) ( here in after referred to as the first writ petition ). THE said order con tained in Annexure-4 to the first writ peti tion was challenged by means of the first writ petition and an interim order was ob tained staying the operation there of. f on 8th August, 1995. By reason of the said interim order the petitioner was given appointment by an order dt. 15th May, 1993 which is Annexure-6 to the writ petition No. 32378 of 93 (here in after referred to as the second writ petition ). Subsequently by an order dt. 5th August, 1993 the respondent No. 3 was directed to take over charge in respect of the tubewell in which the petitioner was sought to be appointed. This order has been chal lenged by means of the second writ petition. Mr. S. K. Saxena learned Counsel for the respondent. No. 3 contends that at the moment neither the petitioner nor the respondent No. 3 are working. The said statement is not disputed by the learned Counsel for the petitioner Mr. A. K. Singh. Learned counsel for the respon dents contends that since the petitioner was selected wrongly, therefore, the order can celling the selection is legal and valid. The said order even if presumed to be passed without giving an opportunity and on that account if it is held to be wrong still then the same cannot be set aside in order to restore an order passed wrongly earlier. He relies on the decision in the case of Municipal Board Juspur v. District Magistrate, Al lahabad Civil Journal 287 in support of his contention.
(3.) MR. A. K. Singh on the other hand contends that the respondents had selected the petition on the basis of the certificate which has never been alleged to be in-genuine with their eyes open. Therefore, after having selected on the basis of the said certificate they are estopped from cancell ing the selection since there was no fault on the part of the petitioner. As it appears from Annexure-CA 1, to the first writ petition that the same provided in clause (3) of para 2 that an additional ten marks would be available to the qualified son of the person on whose land the tubewell is sunk. Admittedly, as pleaded in the writ petition by the petitioner, the owner of the plot is one Moolpal Singh. The petitioner is the son of one Ram Gopal. The petitioner alleges in paragraph 6 that he was recommended by the said Moolpal Singh. He insists his selec tion on the basis of the said certificate granted by Moolpal Singh. Thus, on facts it is apparent that the petitioner was not the son of the person on whose land the tubewell was sunk. The said clause does not include anyone else other than a son. Since the provision being specific and clear it is not possible to read something else in the said provision. Therefore, admittedly the petitioner is not entitled to the said ten marks. In case his selection is cancelled on the ground that after deduction of the said ten marks he could not be selected, in that event, the same cannot be said to be illegal. The question of giving hearing in such a case does not arise. Inas much as, in the present case since on the basis of the certificate itself the petitioner was not eligible to obtain the said ten marks the decision to deduct ten marks would not be altered even if hearing is given to the petitioner. The said clause can by no stretch of imagination could be al tered by any other materials unless it is claimed that the petitioner is eligible under the clause as qualifying son of the owner of the plot on which the tubewell was sunk. It is not the case of the petitioner that he claims to be the son of the owner. In the case of Municipal Board Jaspur (supra) this Court had held that "it is tried law that in exercise of the jurisdiction under Article 226 of the Constitution, the court does not quash an illegal order to bring up an illegal order. " In the present case the quashing as has been observed above is also not of illegal one. Therefore, in the present case it would be of quashing of a legal order to bring up an illegal order. Therefore, following the ratio decided in the said case of Municipal Board, Jaspur (supra) by a Division Bench I am not inclined to interfere with the order im pugned in the first writ petition cancelling the selection of the petitioner by means of Annexure-4 there to. By reason there of. f the second writ petition cannot be maintained since the subsequent appointment was given by the order dated 15th May, 1993 by which appointment was given pursuant to the order passed in the first writ petition. Therefore, the petitioner cannot have any grievance by reason of the order dated 5th August, 1993 being Annexure-9 to the second writ petition.;