1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR -------------------------------------------------------- SPL. APPL. WRIT No. 938 of 2008 CHAINA RAM V/S STATE & ORS Mr. GR PUNIA, for the appellant / petitioner Mr. ALKESH AGARWAL & Mr. KL PRAJAPAT, for the respondent Date of Order : 18.11.2008 HON'BLE SHRI N P GUPTA,J. HON'BLE SHRI KISHAN SWAROOP CHAUDHARI,J. ORDER ----- The matter comes up for consideration on admission, however, at the request of learned counsel for the parties, the matter is finally heard at this stage itself. The appellant filed a writ petition praying for declaring the order, Annex.10, to be unjust, arbitrary, and unreasonable, for quashing the amended select list dated 15.5.2008, Annex.11, prepared pursuant to Annex.10, and also for setting aside the subsequent order, Annex.12, dated 27.5.2008, and has also prayed for being awarded 2 marks on the strength of diploma certificate, Annex.4. The factual averments of the writ petition are that pursuant to National Rural Employment Guarantee Act, 2 2005, scheme was floated for providing employment, pursuant thereto advertisement dated 21.1.2008 was issued, being Annex.1, for the post of Gram Rozgar Sahayak in every Gram Panchayat. The petitioner also applied. Various criteria were laid down for adjudicating the merit of the applicants. The criteria comprised of allotment of marks on different basis, like percentage of the academic qualifications, depending on different level of academic qualification, marks were earmarked for resident of particular place, district, Panchayat, etc. Then marks were earmarked for belonging to BPL category. Likewise, marks were earmarked for other qualifications also. After receipt of the applications, the provisional select list was prepared, being Annex.5, wherein the petitioner's name was mentioned at serial No.1 shown to have secured 62.46% marks, and in this list, the private respondent Kailashchand was shown at serial No.11, having secured 43.38% marks. After this list, the private respondent submitted representation produced as Annex.8 to the Chief Executive Officer contending inter-alia that he belongs to BPL category, having been selected in 2002 bearing No.3948510, he has not been awarded marks admissible for the candidate, belonging to BPL category. Thereupon, notice, Annex.9, was issued to the petitioner. The petitioner appeared, and replied thereto, and submitted that he is possessing the computer qualification, for which 3 2 marks were admissible, which have not been awarded to him, and therefore, if those 2 marks are awarded even if the private respondent is awarded 20 marks for belonging to BPL category, the merit position of the petitioner would not be disturbed, and therefore, his appointment should be continued. Learned Executing Officer vide Annex.10 negatived the petitioner's stand by holding that the petitioner did not give any description, about his possessing computer course, in the application for appointment, nor any document was enclosed. However, at the time of hearing, a photostat copy was produced. This, certificate was not recognized, for the reason, that it was produced subsequently, and being of a private institution, which cannot be taken to be beyond doubt. Thus, the petitioner was not awarded 2 marks, while 20 marks were given to private respondent. Thus, the private respondent secured 63.38% marks. Thus, direction was given for issuance of amended merit list. Inter-alia on these facts, the writ petition has been filed. The learned Single Judge has dismissed the writ petition by observing that although the petitioner has raised so many grounds for challenging the cancellation of his appointment. However, the petitioner does not belong to the said village, and since according to Annex.1, the first 4 preference is to be given to the candidate, who belongs to the said village, in which the appointments are to be made, and therefore, it was found that the contentions and grounds taken by the petitioner for the purpose of reassessment of his merit are irrelevant. Solely on this ground, the writ petition has been dismissed. In our view, once the merit criteria of award of marks has been prescribed, providing particular number of marks to be admissible, depending on the place of residence of the candidate to be a resident of headquarter, or the resident of particular village, or of the some other village of the same Panchayat, or so on, and then overall merit was prescribed to be prepared, that being the position, the relevant consideration could only be the admissibility of marks, depending on the place of residence. So far providing priority, being the first priority to be available to the person resident of the village as provided in condition No.3 of the advertisement is concerned, in our view, this is required to be considered to be confined to be made available in cases, where the two candidates otherwise stand at par on merit, then in that event, the first priority should be given to the person residing in same village. This condition No.3 can possibly not be interpreted to mean that 5 notwithstanding any merit position in the ultimate merit list prepared in accordance with the criteria prescribed, the appointment is to be given only to the person belonging to that particular village only. It is required to be grasped that if the meaning of the condition No.3 were to be as contemplated by learned Single Judge, then eligibility criteria on other considerations was required to prescribe only to be applied in the event of non- availability of any candidate from that particular village, and in that event again, the criteria for admissibility of marks on the basis of the candidate to be belonging to the particular village would not have been there. Thus, in our view, the reasons given for passing the impugned order cannot sustain. The net result is that the appeal is allowed. The impugned order is set aside. Since the matter has not been considered on merits by the learned Single Judge, we think it appropriate to remand the matter to learned Single Judge for deciding the writ petition on merits in accordance with law. The matter be listed before the learned Single Judge on 24.11.2008 for admission. Interim orders to continue till then. ( KISHAN SWAROOP CHAUDHARI ),J. ( N P GUPTA ),J. /tarun/