Allowed

Bharat Singh Gurjar v. State Local Self Dept Anr.

Rajasthan HC26 Apr 2018CW/7349/2017

Case brief

AI extract

What is this about?

Petitioner, selected in direct recruitment via competitive exam, sought appointment despite lack of formal letter, claiming higher qualifications than promotional candidates. Court held administrative instructions valid due to missing statutory rules and allowed appointment reflecting qualification disparity.

What did the court decide?

Appointment letter to be issued to petitioner with consequential benefits admissible on a notional basis within six weeks.

Bharat Singh Gurjar Vs State Local Self Dept Anr. — Service and Employment | Rajasthan HC (2018)

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HIGH COURT OF JUDICATURE FOR RNASTHAN BENCH AT JAIBUR

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S.B. Civil Writs No. 734912017

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Bharat Singh Gurjar S/o Shri Hardayal Singh Gurjar, Aged About 32 Years, A-4, Sharda Colony, 80 Feet Road, Mahesh Nagar, Jaipur - 302019.

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Versus

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I. State Of Rajasthan Through Principal Secretary, Department QP Local %elf_ i;dve?fimgnt, Government Of * ,: 2:; . ,, *

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ajasthanyeci-etariat, <j Jaipur. .: * rr .; - --

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1. ~ecreta'iy, ' Rajasthan Nagar alika I..&d'ministrative 4 ech.dical) %I And (Subordinate Ministerial) erie$$ljelection I<p

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i:dommission, *ri G-3, Rajmahal Residency, Near CiQil Line Phatak, Jaipur.

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/ ?,&..f? -;+$2>* 6. s.>$g!cl %&C:i: < * .,..'?+ c.*"L &>>'/f 6 -.cLI &7+?.$ lr * . I-.. i.;_ ----Respondents ..%/'k ..>, + :@?':<%" . ,,! . '* ,> . 8 ,J ,., $ d.2 lL%h* 4%. .>eu +y%- .;-->$z'szL $ TP+$, = %.. _c..y_ .i -:.'<L\v < -- -<* **Yy;:_ >;A ,m-:.s* &;<+#? , ">.&.-, "' **%:j,;,;br+** ,i- <<pi *% For Petitioner(s) i~ < *. !: 'LA ;;,j ,- fJE.-~N- **c5):2_* ,: _b.&z.:._ ahawb Lx* 2 '-5' " "" P'~: -3 ,? .?: .',':.: k'll;"' . * -. For Respondent(s) .-jA3$2$&7 =;:.,.* sjDeep; &@ 1*7 a:? .ir. aa;l"~harma, . . . - . Dy. G. C. ,& < :y$"m "' **.<.a** " ,,% **,,by** ,.>::;,:, ;:A$" T"+ ,,&,\ .'.., ; " ,. ?; .el L , - ,-z,u . l.- ;. . -" 3"-/ .-- LL ..$;r ,, > LyLf2Jg?y&$ p,8t;ps,' ' A$> >:y;22- 7" .x,:i,-j';j' - -2 , ';j j, .- '3 .'@ -' $< 2 a:, HONIBLE MR. JUSTICE ~ECI+'N;~~R . . SINGH SIRADHANA i. . ! " i ,A>; > I& :. t:! c 2 9 .u " ? ,lo?td+&[p F i ,. ; ;-: @%%*$:: , .w2:- ,9\ -.&&:;J~ .j'- >;!< 26/04/2018 +. . < . - .,x , lx<,,;;:.e_** .-$-" G ,"* + 2 # $ r,: **J** **_xi_** t t('!$\ f:i: **_......-82>.+ * F ... . $t, j2idt Securing 58.98 t$f.ks, -, fkifitioq:er , ri 'was declared selected ->L;$ + ",% rr , ?..;;%:""" " ;.&.' .. 4 W3 . :i,, **_%,ye,_ z :,k,* ,:c..; 3~~.&;:e < ..>. :. . in the list of successful carididares dated **12** September, 2016, for Management); however, the petitioner has not been furnished with an appointment order, and therefore, has approached this Court praying for a direction to the respondents for issuance of appointment order for other selected candidates in the same select list have been facilitated with appointment orders.

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Briefly, the essential skeletal material facts are that the petitioner successfully participated in the recruitment process for*

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appointment to the post of Assistant Engineer (Solid Waste Management), in response to advertisement dated 30th December, 2015. It is pleaded case of the petitioner that he has acquired qualification of M. Sc. Envi.ropmenta1 Science and the syllabus of Competitive Examination for' A.En'. (Solid Waste Management) and M. Sc. Environmental Scj:ence, are coi-ri.mon i,n nature. For the petiti'oner was declared sccessful -in the select list dated = September, 2016, with rfier;it .number 47, having secured 58.98 marks in SBG (No!?-crea.my .Layer), he was called for document "'- . verification- on 28th SepternQei, 2016. Even afteQ'd6at process df * X ?. ir ,k, concluded, no appointment letter has been issued to the petitioner while appointment letters ha;$ beeb issued to 35 candidates out " . ? - ti c. % C'l. 'P "6 t'i it of the same select list & %@;,n&$' "....-A .. 3201.'7,..37 i '' $ ,,i; .Xi * Learned counsel fqr .. fhg . . .: &$ItiPners t -. - Mr: S. N. Kurnawat, **a,'*.. ',"r;: 1:* >i' *, .,:.$,. 3, .; 2. reiterating the pleadcds-fa.$!$.aild .: fs!:* ; :, gfo,~~~l& .+ +r ;;% s of the writ application ." " i z vigorously and ernphatic~ijly sser&d:th;$t in the entire process of ., i- selection right from su bmi.ss[pn . ' .af' .application form until its , < . $.I \ .,,:C y conclusion with issuance n .. -6s .. A ihs ':, sei&t il.sk dated 1.2" September, ,. ** " . $8 , 5,~; $$G-..~, > f , ' , t." 4 , .2&!,. r.$ 2016, wherein name at $.:;'.. thL % <. getiti.Gner,filids place at serial number A ' t,' ,,, " ' ., 7 J * ' ;t" ,i' '. * % &'$ 47; there was no dispwt.e,:$yor&h the hlme, as to qualifications, of the petitioner. Moreove~,~~pfi';dj~~~~r's GandFgature hams ne-ither been 5 ** % declined nor he has. been furnished with the reasons for not according him appointm,ent order. +

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Referring to opinion of a Coordinate Bench of this Court in the case of Mahendra Kumar ~aini & Ors. Vs. State of Rajasthan & Ors.:SBCWP No. 1199/2016, decided on 17~~ January, 2017; it is contended that the State-respondents have specifically taken stand that the posts 05 Assistant Engineer (Civil) as well as Assistant Engineer (Soiid Waste Management:), are to be filled up

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by direct recruitment and promotion in equal quota i.e. 50 %. According to learned counsel, qualification of candidates who are to be accorded appointment by promotion against 50% quota to the post of Assistant Engineer (Solid Waste Management), are required to be in possession of graduation or equivalent as would be evident from advertisement dated 30th December, 2015, whereas, the petitioner is in possession of Masters Degree in 32 Environmental Science after B.Sc. eree'i,niotechnology!' Thus, .& r. -4 ii -- I, .' -. the petitione. "I=' IS' in possession of far better;: and higher * Y, .>" ,,$S qualificatiqps, 'in the same "faculty than those who &e<,@igible for ,:bq ;.. %, " 5 "\ '&j. appointment to the same post by way of promotion aga-in%t 50% .*r-** quota. ;:.+2x %+ A: d <,,e.r** g_ py W r,r * -3 s ZL ,?Mr. S. N. ~~maa~~~,[email protected],$j L: ,'-n.A :fhthf-&.+$pmit .- +.: that respondents , >.:c. , f! * , :" % +: : 6-4 ;--, , "6 s' 4 "-. :;* -, * > i " % 7. 4 - -. 2 cannot substitute quaiiain,a.kcjri;I.n:gi~~~ ,". P1v$,+w$ sf$l s . their own will, whi-ms " , ' _ " :, $,I:; ff '; and fancies and that td6&ub's&Qd&nt '.,?.,, k. *. 7 -$@;;' . z -, I., tq;ptmpletion of recruitment ! L 1 * 1 **,$.,x,l_** *p p L;> +J;c +,- :,,;;=,A *<4 "3" process for the qualificatiqns o~-part&aiin ,+ '? candidates are to be ?I < > i< 6 " '.$A $$$ determined with referenke ' !toF fh.6,' relevant recruitment rules. , .A ; 4 " rJ,. :; 2, "tq,^**5%)%.?'</sup> k Further, qualifications a$d,&q 2-*.i em +.' .-- !Qe heebn?$.ith <respect to the rules and i.f *, **8 rf_** +.. i .,.% J? ! + .'$,.-a & -" -%?'..;r. . 1 a 9 .*.. - i. - +> ;.; Z -ff%f <$ ., :&+ I not the advertisemen~;ljv~~i'.g;.;?;ppI:ie,a;t(jns~.~~ In order to fortify his pi! &%<%%-:; \ 8%" **-7_** ""1: -A ~.+..*z Q;' " . v. <,-'-..-xP:<A_ **_v.-e.>x+Tyr stand, learned counsel h~~$.$3li@di,pq@;&~e %-a I*s. I.,. opinion of a Coordinate Bench of this Court in,~thZ:$a>se of 4A@saLn Ahmed Vs. State of % % 'i Rajasthan & Ors.: SBCWP No. 1335/2016, decided on 4th August, 2016, along with connected writ applications and adjudication by this Court in a batch of writ applications lead case being SBCWP No. 16517/2016 (Kailash Chand Meena & Anr. Vs. State of Rajasthan & Ors.), decided on loth October, 2016.

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In response to the notice of the writ application, the Staterespondents have filed their counter-affidavit, resisting the claim of the petitioner referring to Clause No. 5 (10) of the

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unless the draft rules are cleared by Government to encadre the post of Assistant Engineer (Solid Waste Management). The Staterespondents, in the counter-affidavit to the writ application (supra); did admit the facts as to qualifications so also equal quota for appointment to the post of Assistant Engineer (Solid Waste Management), by direct recruitment and promotion. The qualification for the in-service candidates, eligible for appointment "i .> ". i i! to the post of Assistarit rig,inberc (Solid '&.Waste Management), by < ,, ;h / -.* promotion, is graduation with B.E./B.Tec (Civil). -'.* **"2%'_** r% At this.fincture, kF it will be relevant to take notehfthe P- i text of ra %8 ! .- the opi"i& in the case of Mahendra Kumar Saini & Ok:'(supra), **7. .a<<.** ,-. which reads thus: d ". . -..% .,", .q,* " "Indisputably the,.,pds$j , of@.~n. (Solid Waste Management) .. . for which the pr.esknT .$pfqcess has begk'initiated by the >.> ,.!< :..*$ ;,,e , respondents pursuant+-to:,dverfie~~~id$ at.30-12-2015, is not included in t,&''5afi&duld ;Gp$iiided $0 Rajasthan + >& ' :,$;;: 3 ~ , Municipal (Adrninis.fqt.rye &.; , Tec'hnical) :. Service Rules,1963. The present petitioee&; qre serving. as J.En. (Civil) and holding qualification 'if B.E./B.T~c~~ %(Civil) and petitioner no.5 is holding additional ~ud$f&&ion!of Master's Degree in \ .$ ' fc ;.' * Environmental ninekcitii I ,, xi,h 4; er$Eib,e for the post of A.En. (Solid Waste anii$efi&nllt) a&-&& participated in the l.s,j i selection process p:~~suanfi+d&dBqt1:i'e,ent ,.I , i : dt.30-12-2015 and finds place in $)ik.?select % t I& i .' ,."**;>+ ,'s.:s '- ' The Scheme 0f&j,@s~~9$"$$$"een framed by the State Government .. .., .* in .,.v., "-. exercise <... ..v., ,.-. .- of power conferred by .. ." ?. .... . Sec.337 of the Rajasthn -& $c % MuhicipaIi,fies Act,2009. At the same time the State Government in exercise of power conferred u/S 328 read with 337 of the Act,2009 has accorded administrative & financial sanction with budget creating 50 posts of A.En. (Solid Waste Management) vide order dt.23-7-2015 and thereafter has initiated the process of selection pursuant to advertisement dt.30-122015 along with other posts which are included in the Schedule appended to the Rules,1963. The draft rules which has been placed for perusal certain amendments have been proposed under the Scheme of Rules,1963 at the same time the post of A.En. (Solid Waste Management) is included in the Schedule appended to the draft rules which according to the Schedule, 50% to be filled by direct

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recruitment & 50% by promotion and this Court considers it appropriate to quote the qualification for the post of ement) which reads as under :-

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Master's Master's Degree Degree in in Environmental Waste 50% by (Solid Waste Environmental Engineering after i Management) Promotion Management) Engineering bachelor's degree after either in Biobachelor's Technology or degree either Chemical or Civil in Bioor Mining or Technology, Environmental or Chemical, Civil, Textile . , r :P -* Mining, Engineering from t.- , ," . . " ..t. - $ , , f ! Enyironmental "' a University + 017: Textile established by {. ,.\ ..?. ninehh!n?,- ; law in India or cq& q$ - from 7 .;& <f.oreign 4 %-% \ Xi-,* J: rp. x+pp % 3 established by University ~'"q,ualif B.,' re'6olyjiied ication or .~~,.,~f law in India or e~uival'e.nt foreign theFeto. . ... qualification ~'-,!atc~~~f, . 5 -, .. .r.? ' > A , a :< ..recognized or ..j '"2 -.*I . .,,-- w. - ,; ..-.. , r .. ... , , e?uiyalent Y .., .&$< 5i """-< 4 . ; . , .:* r .-" ?.,, ' 8 ,thereto with 3 * ,5 ,",. . . ,o. i ;yeaTs. ,'jrf,$, .. & .:&> ,La. ,fl,%>$ ,+ 4, &C.. e: ~~~~~~ '$zAperience a ,?>l.f _8,--q\G~~g_ B ". ' $-c- , , 'c, %., &> :,>;<we** . c > u. 2 &,+ <.. ,', <*. ,!:$: > $, it+.? ,... p. F?'.J. A R ; "^' ,d.^.*5:** , #?. 1 .,Junior :,; '.;z. ; , .k , :e .; :, $.@, $$& 2 ~ 5 *::.,.1 > ,! T 1 1: , , :Engineer(SoIid , %: < : cy waste 5:i& !8..1; +:J< 1 EX ' "! a? ?: .. .<a&** , >. .~ Management) I '+$L $d + 6 ,# $ i 8" ii 7$j Ci i .,,$+ cjf It is informed fo rj thisi +-.+ CCUP~, %hat the matter is in ..- .e,,.. O.f,%"$ ;< i:i;.:;. '- active process and,;tip.+e~endm&t ,,.?, A d.Lws* d +.:: ..-... wi& beshade including the h. . " ..,, k ;, post of A.En. (S6li6 .lii &P -YVaj.$& a, ; . , dno$kient) **I%.* .$ r ili under the Scheme of Rules l~@i.+&j.fi , 'i. &qop+&$ .$issible time. Indjsputably'ihe;&~~~~f k T~,+ yrut.-?,~t. .& a- tijDg ~f;li$bilit </I"'.' < for the post . . - of A.En. (Solid Waste anaerfent) - J " --.' '- - "-..< . which has been presently notified % ;6y%~tkhdas.2r * :,, @ .$ res(kir$d&ts . :i .: t pursuant to advertisement dt.30-12-2015 are in conformity with the draft rules.

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The submission made by petitioner's counsel that in the absence of inclusion of the post of A.En. (Solid Waste Management) in the statutory rules the procedure of selection as prescribed under the Scheme of Rules,1963 cannot be adopted & is in contravention of the Scheme of Rules and violative of ~rt.14 of the Constitution is without substance for the reason that as long as there are no statutory rules governing the post in question the Government is competent to issue administrative instructions laying down the conditions of eligibility & the

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criteria to be followed in making appointment to the poslof A.En. (Solid Waste Management).

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It is true that the Government cannot amend or supersede the statutory rules by administrative instructions but if the rules are silent & as long as the post is not encadered under the Scheme of Rules, the administrative instructions can always be issued to hold the process of recruitment as in the instant case in the form of the draft rules of which reference has been made & taken note of by the recruiting authority in filling the post of A-En. (Solid Waste Management) and administrative instructions -& , being not in contravention of the statutoryp.. uli' ..ofqiof the pirovisions + of the L-zr- Constitutiotpin rhe considered opinion df' this-.Court the State Go~grnhent is competent to hold selecti6n;on the " -' ' &P draf: r$es/adminisirative instructions in the absence of * 3-. $4 ,"* stqtut,ory rules.

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cP, 2:s-r -. The submission made that the post of A.En. (olih Waste Management) becomes part of the post of the =F** A.En. (Civil) and that_pay: a$fkcf .Fheir future promotions of J.En. (Civil) isd.iith.6@$g:~s.$bs$gn,~e' .r.' f 6 hh$he reason that ::?: y ;,; A after the admin&t~$$ie;and:~%.ing c +-, ,, , ***.I** sij( ction %a i a:i has been accorded with bildgetC,tfi:6. ,- + post. .6fI A.Eh. (501 id Waste '+k .<,, ' p Management) has k$~gn~~&t&ed:.b$ $,',?+? :TL;;z3 .& ,$ .&. <-. $.,, **?lie** _$Y_ **_?,_** ~ State Government vide order the process has be>i-l;i;n~'$j&$e'd dt.23-7'2~~5'<(~~fix:.4fi2~~~6d -i . f . 3r * ''\ ,, : .'- .:.= 'a 3 .a. p :-.S~~"+I.,";...".C :piipki.iatit to advertisement "" :d only thereafter dt.30-12- 2015 & thd)pd$t2_if, I.* ,., ;@n,(ivil) & A.En. (Solid :.? 6 3 ~~6 4 $ Wastd Management) )are: sepurate posts & as regards promotion to the **pos~~bf~~~~&.;lt;oli.~aste** 22c< +&&; Management) xi i .l ;; ,& ,,r$$;! **3!*":" is concerned, unde~;~~::tQa$~~~~ule$:='~hht fw,:, will be filled in **.. -84 ?, g 6%. .& *-, :E4 future from .nicttil'id WUS$& Manhgpriient) *. & what has 9.- r ,. been alleged is **'!eqrpsf+rus** s -. and w'ithout , I ,. foundation, 8- ..:3 , ,.,: . vy,*; * deserves outright rej:e<$~og. I .. , **:P.*.l** >

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After hearing-~~~nsel_ . .f "% or ?=pmies, this court f in& no **substanceu;:~~&e;~'$~n+** p&fjdn and the same is accordingly dismissed."

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The petitioner has acquired the qualification of Ivl.Sc. in Environmental Science from Department of bniversity of I Rajasthan with 66%. In M.Sc. Environmental science; Solid Waste Management, Toxic Waste Management and Chemical Waste Management, are integral constituents of M.Sc. Environmental Science syllabus. That apart a certificate to this effect has also been issued by the Director, Indra Gandhi Centre

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for HEEPS, University of Rajasthan, Jaipur on lst September, 2017, reflecting equivalence of the course with Environmental Engineering.

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The factual matrix as to participation of the petitioner in the recruitment process and the petitioner has been declared successful, has not been disputed by the counsel for the Staterespondents. There is no reason advanced for not issuing %%,, ?k: '., T++"-\ 'f , -7 appointment letter .I ) to the'petittoner; 'Be thatas +.A ?"-.: it may, by now it I, .<, ''? a ; . . :i is well settled;&jat eligibility of a participatingLcandidate is to be .a ;. \a * '"3' !2 ':";- &? p examinedpnythe last date of submission of applica$on form in .:c.*l..,i" 8.* , %. terms of relevant recruitment rules and not with reference to advertisement inviting appli@['ntfom eligible candidates (Vide ,"yi ., $4 fepT,, g;? ., . " ..4'?1r Ranjeet Kumar VS, stae-,:&:@isSa'::? (20:17').a3 SCC 568). ." 4"' * ! A zi 2% , ." i ./, 'k, I - . ., $. .,:p :", ; In the case of h$a;d;-&ed'(:pr,a),,, . . . 2f s..7.s.,e qi2-,,,z: 8 Coordinate Bench of ', , r2.3 -,. . , L<',,.:<.T ., . , v.. . ' ; "1',, ,.' this Court while ex$.m:,rii a; **.,.<A** , . **,** n;g-: . -. ~[email protected] .,.$#.. ..:+ icz. similar controversy .:.a**_ ., ";:S;d$.$;r(; _l:>7<*17'2 *r&. observed thus: +;ttr%i !.s', 5% 7. '5 . . , *:~~~;;. 2 < " :I ; J:, .' ' 6 " 1 p AG k k > :: "In the instant case, t#s$;nder&ha& t:llj 2gz.: illegally substituted qualification of the i :, iq~~s$,.o:thereby i4, ,, .. petitioner have V!,L...~ been declared inelig,i$!$$abg$gy~Ii:@~a%son .,. .%,$& -2'" '<,.. r. , , should have been as exist under the-R,ule+.- **Tbq_ fi&i?(** the respondents j -;za ,j .,.~ 9: * F-2. cannot be said to'(b,e ,.+ prope?i,.undi .:a:% . 6:;fi - q~go$~drngly, all the writ petitions are allowk&~w'[~hi> &ecfion, respondents to qualif;cat;on of'efhk'f&$ifi&$i in reference to the Rules of 1963 as: = were -%> , **%_** existing..on ,-, % -d * t *#% t the last date of submission of applicaf ions. The respondents would not be guided by the qualification given in the advertisement. 5 If the petitioners are in possession of the qualification given under the Rules, then they would be eligible for the post. In pursuance to the interim order, they have already appeared in the selection process~thus their result be declared, if not already declared. If the petitioners remain aggrieved with any other issue then would be at liberty to take legal recourse for it.

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With the aforesaid, all the writ petitions are allowed with the direction aforesaid.

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A copy of this order be placed in each connected file."

¶28

Applying the principles deducible from the opinions supra in the backdrop of the factual matrix in the case at hand, it emerges that the petitioner successfully participated in the recruitment process for appointment to the post of Assistant Engineer (Solid Waste Management) and his name has been included in the select list at serial number 47 in the category of SBC (Non-creamy Layer). The petitioner is in possession of M.Sc. Degree in Environmental cicnce . .hft&r A Ir he' griduatkd ,in".io-echnology!' The - post to which,s(ei2cfion is made has not been encqdered as yet. -\ % ' ,a . -" Recruitment "rules have not been finalized. Thata';apart, the " h I .h.-, * qualification of in-service candidates under the 50% cju'ota for appointment to the post of - Assibstant Engineer (Solid Waste 8 ,+% .: - > * %! s . p %? - 3,' * --7 -< Management), by **p~~~~~in;Y.i.~~,CC:.i~~~~** * j * "" ' , . * ;- 4377 ; A,, ,. ,< . ' , , . p:. , 5- S,? ,, 5.i% ... .. C i_. e., . (Civil), whereas the petitioner is holding th&pu$liirjifi2ca$j;o ,<> . <., -%$-.<g8$aduatio&%,. y , 3.:: A- i n "B.Tecf'and - -.-+: f <:s$** ,: . ,; **b-** " has acquired degree of ' ~.~$~,.ih-~fii:ronpehtal **i** ' \ Science. **_I"_** _s3;.d:9';,.L "A._ ,+$ * **,;kiir** ?,, e **_I:_** .+ '. :$ ..-$ **L_be.vg,$;:">;,ii-P ,. * For the reasons andP~~isc~9Slans:afdresaid . kl - and in the singular rt. 9 & .( x factual matrix of the asefat.,h$Ad .go, do in view of the materials , /<, .X : W s &J;: ??.+ : :;f %.$ f<.r$> 2, available on record as 'w:el.l %s':keep.~~,g' i:ha view the fact that the -~ "A. ' < a'. kcfa:t >,, q:/i. jP,/ , t A, & * au' ' $ draft rules are yet to fn,alzdd.ja,nd: the p&$!d.ner is in possession of < . 2 i -*d; $$ ..-. I:,,, .;.I P" ';; *-2. g, far better and higher qg$ifigafih.~s in thg same faculty than inservice candidates who ate ~alsoeli~ib[e for the post of Assistant 1: Engineer (Solid Waste Management), under 50% quota by promotion; the claim of the petitioner merits acceptance.

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Accordingly, the writ application of the petitioner succeeds and is hereby allowed.

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The State-respondents are directed to accord appointment letter to the petitioner, if he is otherwise found eligible. Consequential benefits shall be admissible to the petitioner on notional basis.

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The respondents are directed to ensure compliance of this order as expeditiously as possible; preferably within six weeks from the date a certified copy of this order is presented.

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No Costs.

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(VEERENDR SINGH SIRADHANA),]

Bharat Singh Gurjar v. State Local Self Dept Anr.

Case brief

What is this about?

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Bharat Singh Gurjar v. State Local Self Dept Anr.

Case brief

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