Beena Devi vs State And Ors

Sharad Kumar Sharma, J

The petitioner in the writ petition had sought for the following relief:-

“ (a) Issue a writ, order or direction in the nature of mandamus commanding the respondents to extend the benefits of the judgment passed by this Hon’ble High Court in Writ Petition No. 2680/2017(S/S) “Smt. Satyawati vs. State of Uttarakhand and others” and to consider her case for promotion/appointment on the post of Supervisor in view of her selection, keeping in view the facts highlighted in the writ petition and further to declare that the condition for asking appointment letter of Aganbadi Karyakarti irrational, arbitrary and unreasonable and to quash the same after calling entire records from the respondents.

(b) Pass any other writ, order or direction, which this Hon’ble Court may deem fit and proper in the facts and circumstances of the case.

(c) Award the cost of the writ petition to the petitioner.”

The precise case of the petitioner in the writ petition is that the petitioner contends, that she has been working with the respondents as an Aganbadi Karyakarti, ever since her initial date of appointment i.e. on 13.06.1991. Having satisfactory rendered the services and since she was having the requisite qualification, she had responded to the advertisement, which was issued by the respondents on 05.07.2012, as published on 06.07.2012 in the daily newspaper; inviting the applications for undertaking the exercise of promotion to the post of Mukhya Sevika (Supervisor), in accordance with the eligibility criteria, educational qualification and as well as the resolution of the selecting body to be extended. Consequent to it a selection body was constituted on 28.12.2016, and on culmination of the selection process, the petitioner’s case is that the marks which she had obtained and as shown in the select list, which was thus published on 06.07.2012, her name was appearing at Serial No. 4 and the total marks, which she has obtained is shown to be 26. But still despite of the fact, that having placed at Serial No. 4 of the select list she was not provided with the appointment on the post of Supervisor, and hence she has contended, that her issue stands covered by the judgment rendered by this Court in Writ Petition (S/S) No. 2680 of 2017, “Smt Satyawati vs. State of Uttarkhand and others, which was decided by this Court vide its judgment dated 18.09.2017. This judgment was rendered in relation to the candidate whose name appears at Serial No.7 in the same select list dated 06.07.2012.

The learned counsel for the respondents have submitted that the grounds taken by respondent no.1 in the counter affidavit that the petitioner has been rendered non suited on the ground, that since she has secured equivalent marks as compared to that one of the candidates i.e. Tulsi Devi, and since Tulsi Devi being elder to the petitioner in age as per her recorded date of birth, she would be rather entitled to be considered for promotion in accordance with Rule 4 of the Rules, as applicable to the department and particularly the reference has been made by the learned Brief Holder to Rule 4 which is extracted hereunder:-

“(4) (3) () ()

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( )

”

In fact, if Rule 5 itself is taken into consideration at the behest of the contingencies where on the culmination of a process of selection and on total computation of marks obtained by the candidate, particularly when the two candidates are having equal marks, in that eventuality only the age of candidate i.e. the date of birth is to be taken into consideration and the candidate who is of a higher age who has an earlier date of birth, has to be considered for being appointed by way of promotion.

In response to this argument which has been raised by the learned counsel for the respondents, as supported in the pleading raised in para-6 in the counter affidavit, the counsel for the petitioner submits that this contention of the respondents’ counsel is not tenable at all for the reason being, that the comparison of eligibility marks by the respondents in para-6 of the counter affidavit qua the petitioner is that of comparing the marks obtained by the petitioner with that of on ‘Tulsi Devi’ who is alleged to be having a date of birth recorded as 08.05.1964, as compared to the petitioner, whose date of birth has been shown to be recorded as 15.05.1967, hence as per respondents case since Tulsi Devi and petitioner had equal marks, it would Tulsi Devi who would have preference of appointment as per age.

The counsel for the petitioner submits, that in fact the candidates who have been mentioned therein in the select list and Tulsi Devi having date of birth as 08.05.1964, her name was not at all even included in the select list, which had been published by the respondent on 06.07.2012 as her name doesn’t figure anywhere as amongst the 38 selected candidates and thus the contentions drawn from Rule 4 in order to make the petitioner ineligible despite of fact her name when it finds place at Serial No.4 is not sustainable because the other candidate who had obtained 26 marks i.e. equal to that of the petitioner is Smt. Sumangli Mamgai, but according to her date of birth since she was having a date of birth of 01.01.1968, quite obviously she ought to have been placed below the petitioner and that is what is being done in the select list of 06.07.2012.

In that eventuality, the very stand taken by the respondents in the counter affidavit is not sustainable and the petitioner in accordance to her recorded date of birth and in accordance with the marks obtained by her in the process of selection for promotion on the post of Supervisor and her placement at Serial No.4 in the select list, she deserved to be considered in accordance with the Rules, hence a writ of mandamus is issued to the respondents directing them to consider the claim of petitioner for the grant of promotion as a Supervisor, based on her placement in the merit list as compared to her date of birth with the other selected candidates included in the select list of 06.07.2012.

The denial as it has been substantiated by the respondents in the counter affidavit in para-6 will not create an embargo in considering the candidature of the petitioner to be considered for grant of promotion. It is expected that the respondent nos. 3 and 4 would complete the entire exercise of promotion of the petitioner within a period of six weeks from the date of production of certified copy of this judgment.

Subject to the above, the writ petition stands allowed.