Sudhir Agarawal, J. - (1.)AGGRIEVED by the non selection for the post of junior clerk and typist in the office of the Collaborate, Sant Kabir Nagar, the petitioner, Lal Ji Prasad has come up before this Court in this writ petition under Articles 226 of the Constitution of India Seeking a writ of certiorari for quashing the result dated 28-10- 1990 in so far as it pertains to the post of typist under Other Backing Class (hereinafter referred to as OBC) category and has further sought writ of mandamus commanding the respondent No. 1 to appoint him on the aforesaid post in accordance with law.
(2.)THE facts in brief as stated in the "writ petition are that in August, 1998 the respondent No. 1 issued an advertisement bearing No. 1 of 1998 inviting applications for the post of typist and junior clerks. THE petitioner applied. A written examination was conducted on 13-12-1998 wherein he appeared and was declared selected in February, 1999. THEreafter he was called for interview on 25-9-1999 and result was declared on 28-10-1999 wherein respondent No. 2, Udai Bhan Chand was shown selected against the vacancy reserved for OBC. THE petitioner claim to have secured higher marks than the respondent No. 2 in written and typing test, yet he has not not been selected and this is illegal and arbitrary. In the supplementary affidavit filed by the petitioner, it has been stated that as per the rules, the petitioner was awarded 8.08 marks in written test while respondent No. 2 was awarded 6.84 marks, and whereas the petitioner obtained 7.04 marks in typing. respondent No. 2 obtained 5.04. THE total marks obtained by the petitioner was 33.09 and that of respondent No. 2,32.45, yet respondent No. 2 has been selected showing illegality and arbitrariness on the part of respondent No. 1.
The respondent No. 1 has filed counter-affidavit opposing the writ petition and stating that as per rules, where typing test is essential, a candidate who has appeared in written test is allotted 20% marks. 33% Marks are allotted on the basis of the marks obtained in the qualifying examination. The candidates who appear in typing test and are found successful, having the minimum typing test are awarded 20% more in respect of written test since the typing test is only a qualifying test and not the basis of selection. A supplementary counter-affidavit has also been filed in which it is stated that in the written test, the petitioner secured 6.66 marks while respondent No. 2 secured 7.20. However, it is further said that typing test is an additional qualification but not the basis of selection.

The respondent No. 2 has filed his counter-affidavit as well as supplementary counter-affidavit stating therein that the petitioner has no right to challenge his appointment as the selection has been held by the respondent No. 1 in accordance with rules. In the supplementary counter-affidavit he has annexed his High School and Intermediate certificates showing that he has secured 315 marks in High School Examination, 1982 and passed in First division, while in Intermediate, 1984 examination has secured 251 marks and passed in second division. He has claimed that he is fully eligible and qualified for the aforesaid post and has secured highest marks, therefore, his selection is absolutely correct and the writ petition is liable to be dismissed.

(3.)THIS Court vide order dated 4-12-2006 directed respondent No. 1 to produce the record of selection which has been produced and perused by the Court.
Sri Ashok Khare, learned Senior Advocate submitted that it appears from the stand of respondent No. 1, that it did not award any marks in typing test and has proceeded on the basis that the incumbents should have secured minimum typing proficiency, whereupon, the marks obtained by the respective candidates in written test are to be increased by 20% and on the basis thereof the selection has been made. He submitted that the procedure adopted by the respondent No. 1 is contrary to rules inasmuch as it was incumbent upon the authority to award appropriate marks in typing test also and, thereafter prepare the merit list.