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JJ Aopettant Respondent No,4 Writ Appeal No.133 of 2009 Sunil Kumar Versus Respondents : State of Chhattisgarh and others r Appellants Respondents No.1 & 2 And WritAppeal No.224 6f2009 State of Chhattisgarh and another Versus Re?Bonclents : Ku. Manju Singh and others JUDGMENT FOR CONSIDERATION HON'BLE SHRI R.N. CHANDRAKAR. J Sd/- OhirendraMishra Jud&e 9 <u-f^- ^ Sd.'- R.N. Chandrakar Judge POST FOR JUDGMENT ON l^ NOVEMBER. 2009 Sd/- JUD&E 16.11.2009 &..M s*. 3 3 HIGH COURT OF CHHATTISGARH AT BILASPUR D.B. HON'BLE SHRI DHIRENDRA MISHRA. & HON'BLrSHRI R.N. CHANDRAKAR. JJ Appetlant ResBondent No.4 Writ Appeal No.133 of 2009 Sunil Kumar S/o Purushottam, aged about 24 years, at present working as Silai Prashikshak, in Central Jain, Ambikapur, District Surguja (CG) Resident of C/o Shri BK Dwivedi, Gali No.4, Shankar Nagar, Durg (CG) Versus Respondents 1. 2. 3. 4. Appellants Respondents No.1 & 2 2. State of Chhattisgarh, through the Secretary, Home Department, DKS Bhawan, Raipur (CG) The Inspector General Jail, Chhattisgarh, Raipur, District Raipur (CG) Bhupendra Kumar Dewangan S/o Dashrath Lal, R/o Near Sonika Shrinagar, Satyanarayan Mandir, Bramhanpara, Raipur (CG) Ku. Manju Singh D/o Shri P.L. Singh, aged about 32 years, R/o Behind Indira School Madhuban Road, Bilaspur (CG) Petitioner And WritADpealNo.224 of 2009 State of Chhattisgarh, Through -the Secretary, Home Department, DKS Bhawan, Raipur (CG) The Inspector General Jail, Chhattisgarh, Raipur, District Raipur (CG) Versus Respondents 1. Ku. Manju Singh, D/o Shri PL Singh, aged about 32 years, R/o Behind Indira School, Madhuban Road, Bilaspur (CG) Petitioner Bhupendra Kumar Dewangan S/o Dashrath Lal, R/o Near Sonika Shrinagar, Satyanarayan Mandir, Bramhanpara, Raipur (CG) Respondent No.3 Sunil Kumar, S/o Purushottam, Aged about 24 years, presentiy working as Silai Prashikshak, R/o C/o Shri BK Dwivedi, Gali No.4, Shankar Nagar, Durg (CG) Respondent No. 4 Presenh Mr. Malay Kumar Bhaduri, counsel for appellant Sunil Kumar. Mr. UNS Deo, Govt. Advocate for the State. Miss Farah Minhaj, counsel for respondent Bhupendra Kumar Dewangan. Mr. Rakesh Pandey, counsel for respondent Ku. Manju Singh. 3^ JUDGMENT (Delivered on]^7"November, 2009) Per Dhirendra Mi^ra. J 01. Writ Appeal No.133/09 preferred by appellant/respondent No.4 and Writ Appeal No.224/09 preferred by appellants/respondents No. 1 & 2, are being disposed of by this common judgment as the appellants hereln have impugned the legatity, validity and correctness of the impugned order dated 22 April, 2009 passed in W.P.(s)No.5007/08, whereby the aforesaid petition preferred by respondent-Ku. Manju Singh has been allowed and it has been held that she is entitted to be appointed in place of respondent- Sunil Kumar. (Parties hereinafter shall be referred to as per their description before the writ Court for the sake of convenience.) 02. Briefty stated, facts as prqjected from the impugned order are that applications were invited for appointment on the post of Sitai Prashikshak. As per advertisement, one seat was available in unresen/ed category for man and one for woman candidate. Grievance of the petitioner in the writ petition was that she being a woman candidate was entitled for appointment against the post reserved for woman, however, respondents No. 1 & 2 have appointed respondent No.3 Bhupendra Kumar Dewangan against one post of unreserved category for male candidate and respondent No. 4 Sunil Kumar against the post reserved for a woman candidate under the unreserved category. Thus, appointment of respondent No.4 is bad and contrary to the conditions of the advertisement and the same defeats ttie purpose of reservation for woman candidate. 03. Respondents No. 1 & 2 in their counter affidavit submitted that as per criteria fixed by the Selection Committee, 25 marks were fixed for practical examination and 25 marks for interview and out of total 50 marks, 25 marks were fixed as minimum qualifying/passing marks for appointment on the post of Siiai Prashikshak. Thre petitioner obtained 8 marks in practicai examination and 8 marks in oral interview and thus, she did not obtain the minimum qualifying marks and therefore, she could not be selected. 04. Respondent No-4, in his separate return, took a similar defence as that of respondents No. 1 fii 2. He also contended that after he 1^3s S-^I^iSKSg; 3^ submitted application for appointment along with other candidates, atl the candidates were cailed for written examination and thereafter, interview. The petitioner obtained only 16 marks out of total 50 marks, whereas respondent No.3 obtained 32 marks and respondent No.4 secured 31 marks. Since the petitioner obtained less than qualifying marks i.e. 25, she could not be selected and respondents No. 3 & 4 were appointed as per Clause 9 of the advertisement. 05. Mr. U.N.S. Deo, learned Govt. Ad'&ocate appearing for the State, submitted that the Director General (Prison) constituted a Three Members Selection Committee with DIG (Prison) as the President. After receiving the applications of the candidates, selection process was commenced. Total 50 marks, 25 marks for practicat examination & 25 for inten/iew, were fixed. The minimum 25 marks were required to be secured for being selected. Since the petitioner secured only 16 marks i.e. 8 out of 25 marks in practical examination and 8 out of 25 in interview, she did not qualify. Whereas respondent No-3-Bhupendra Kumar Dewangan obtained 32 marks and respondent No.4-Sunil Kumar obtained 31 marks. Refemng to Clause 9 of the advertisement, it was argued that appointment on the post of Silai Prashikshak would be governed by Chhattisgarh Civil Sewa (Mahitaon Ki Niyukti Hetu Vishesh Upbandh) Niyam, 1997 (in short 'the Rules, 1997'), which specifically provide that if no suitable woman candidate is available in selection process, then the vacant post would not be carried forward and it would be fitled up by male candidate. 06. Mr. Malay Kumar Bhaduri, learned counsel Tor appellant-Sunil Kumar, argued that petitioner Ku. Manju Singh did not obtain the minimum qualifying marks as fixed by the Selection Committee for appointment. Since no eligibte woman candidate was available for appointment against the post reserved for woman, respondent No-4-Sunil Kumar was given appointment on the basis of his performance in the written examination and oral interview, which is permissible as per the Rules, 1997. The direction to appoint the petitioner in place of respondent No.4 is not permissible under the law, particularly when, apart from the petitioner, other woman ia«.a«»6"a<6% •'3 / IS.aE candidates also applied for the same post and participate in the setection process. 07. We have heard learned counsel for the parties and perused the impugned order. 08. From perusal of the advertisement of Annexure P/2, it is clear that out of two posts advertised under unreserved category of Sital Prashiksha, one post was for man and other for woman candidate. Educational qualification and other eligibility have been given in Para-5 of the advertisement. Clause 9 of the advertisement mentions that provision of reservation for woman as per the Rules, 1997 would be made. If the 'post resen/ed for woman remains vacant on account of absence of woman applicant, in that case, the same may be filled in from man candidate of the same category. The advertisement does not mention that the candidate must secure minimum 25 marks out of 50 marks to be awarded in practical examination and oral interview to be conducted by the Selection Committee for becoming eligibie for appointment. Thus, in view of the fact that 12 woman candidates applied for the post, including petitioner Ku. Manju Singh, and also considering that the advertisement does not have any such condition of obtaining minimum qualifying marks in the practical examination and oral interview, we are of the opinion that the appointment of respondent No.4-Sunit Kumar against the vacancy reserved for woman, has rightly been set aside by the learned Single Judge and to that extent, the impugned order does not call for any interference. However, considering the fact that the petitioner and other 1 1 woman candidates also applied for the advertised post and participated in the selection process, it would have been appropriate to direct the respondents No. 1 & 2 to appoint suteble woman candidate from amongst the woman candidates, who participated in the selection process, according to their performance in the practical examination and oral interview, instead of issuing direction to appoint petitioner Ku. Manju Singh in place of respondent No.4 Sunit Kumar. 09. In the result, (a) Writ Appeal No.133/09 preferred by appellant-Sunil Kumar, being without substance, is dismissed. ^ (b) Writ Appeal No.224/09 preferred by the State/respondents No.1 & 2 is partty allowed. State/respondents No. 1 & 2 are directed to appoint suitabte woman candidate from amongst the woman candidates, who participated in the selection process, according to their performance in the practical examination and oral interview. No order as to costs. _ ?sa Sd/- Dhirendra Mishra Judge Sd./- R.N. Chaadrakar Judge V-l liaassa