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Uttarakhand High Court · body

2012 DIGILAW 702 (UTT)

SHAILA JOSHI v. STATE OF UTTARAKHAND

2012-11-23

V.K.BIST

body2012
JUDGMENT Hon’ble V.K. Bist, J. Heard learned counsel for the parties. 2. By means of present writ petition, the petitioner has sought following reliefs:-. “(A) To issue a writ, order or direction in the nature of mandamus commanding the respondents to ouiard: due quality point marks to the petitioner for M.P.Ed. degree and con sider the petitioner’s candidature for trte post of Assistant Teacher (Physical Education) accordingly: (B) To issue a writ, orderor direction in the nature of mandamus commanding the respondent No. 2 to “appoint the petitioner” on the post of Assistant Teacher (Physical Education) along with all’ consequential benefits. (C) To issue any other writ, order or direction, which this Hon’ble Court may. deem fit and proper in the circumstances of the case. (D) Award the cost of the writ petition In favour of the petitioner:” 3. On 30-09-2010, the Director of ‘School Education-respondent No. 2 issued an advertisement whereby applications were invited for the selection of Assistant Teacher, L.T. Grade for different posts to be filled up in Garhwal and Kumaon Region. The petitioner applied for the post of Assistant Teacher (L,T, Grade) (Physical Education) with first priority for Kumaon Region and second priority for Garhwal Region and also submitted her first opti on for general category and second option for woman’ category, The last date of sbmission of the application form was 05-1l-2010. 4. In sub-clause (iii) of clause 2 of the advertisement dated 30.09. 2010 it was provided that the applicant must have completed requisite qualification before the date of advertisement. In sub-clause (iv) of clause 2 of the advertisenient dated 3O.09.2010, it was also provided that no quality points marks shall be given on the qualifications acquired after the date of issuance of advertisement. 5. At the time of advertisement, the petitioner was Post-Graduate in History. The petitioner appeared for the M,P. Ed examination in March/April 2010 and her result was declared on 10.07.2010, in which she was declared failed in one subject namely Biomechanics Applied, Kiensiology and Phys. of Exercise as she scored only 15 marks. Thereafter, she applied for recounting as provided under the Rules and on 19-09-2010 recounting was done in which her marks were changed from 15 to 62. She was declared passed in first division and her marksheet was given to her on 19.10.2010. 6. of Exercise as she scored only 15 marks. Thereafter, she applied for recounting as provided under the Rules and on 19-09-2010 recounting was done in which her marks were changed from 15 to 62. She was declared passed in first division and her marksheet was given to her on 19.10.2010. 6. After the issuance of marksheet, the petitioner submitted her application form alongwith all testimonials on 28.10.2010. The result of written examination was declared on 23.08.2011 in which, the total marks of written examination and quality points were given to the petitioner. But she was not given any quality points for M,P.Ed course whereas as per the advertisement, the petitioner should have been given quality points in the subject in which she scored more marks. Thereafter, the petitioner submitted her representation before the authority concerned but no decision was taken. Aggrieved by this, the petitioner filed this writ petition before this court. 7. Respondent Nos, 2 and 3 filed separate counter affidavit. The respondents came up with a case that on the date of publication of the advertisement i.e. 30.09.2010, the petitioner had not passed her M.P.Ed. degree course. As such, she was not awarded the quality pooints for her M.P. Ed. degree. It is further submitted that the petitioner was awarded quality points marks in respect to Post Graduation in History. They also came up with a case that the petitioner is entitled for quality point marks for one postgraduate degree. In their counter affidavit, the respondent Nos. 2 and 3 also submitted that in Clause 2(iv) of the advertisement dated 30-09-2010, it was specifically mentioned that for the purpose of calculating quality points, the candidates must possess, the Certificate/Degree on the date of publication of the advertisement. It is also submitted in the counter affidavit that in the present case, the petitioner passed, her M.P.Ed. degree course on, 19.10.2010 i.e. after publication of the advertisement, as such as per Clause 2[iv] of the advertisement, the petitioner was not entitled for quality points for herM.P.Ed. degree 8. The submission of the learned counsel for the petitioner is that since the petitioner’s result was corrected on 19.10.2010, the principle of relation back will applied and, it has to be asumed that the petitioner passed her Post Graduation degree in M.P.Ed on the date when the result was declared i.e. 10.07.2010. degree 8. The submission of the learned counsel for the petitioner is that since the petitioner’s result was corrected on 19.10.2010, the principle of relation back will applied and, it has to be asumed that the petitioner passed her Post Graduation degree in M.P.Ed on the date when the result was declared i.e. 10.07.2010. He submitted that respondents erred by not awarding her quality points for post graduation in M.P. Ed. 9. Learned counsel for the respondents Shri Rakesh Thapliyal as well as Shri Devesh Ghildiyal, Brief Holder for the State submitted that since the petitioner did not pass M,P.Ed degree on the date of advertisement, the petitioner has rightly been denied the quality point marks for that subject. They submitted that as a matter of right, the petitioner cannot claim marks for M.P.Ed. degree, as she has already been awarded marks for M.A. History. They also submitted that since the petitioner has not challenged the condition No. 2 (iv) of the advertisement, therefore, the claim of the petitioner cannot be accepted. Learned counsel for the respondents also submitted that the petitioner has not impleaded the last selected candidate in the present writ petition and as such petition is liable to be dismissed on the grcund of non-joinder of proper party. 10. I have heard learned counsel for the parties and have perused the papers available on record. 11. This case is not so simple as argued by the counsel for the respondents. The facts of the case are peculiar. It is true that on 10.07.2010, the result was declared in which the petitioner was declared failed as she was given 15 marks in one of the subjects. Thereafter, she immediately applied for recounting on 19.07.2010 and in recounting it was found that marks mentioned in result dated 10.07.2010 was not correct and in fact she scored 62 mkarks in that subject and the same was corrected. The fact is that when the result was declared on 10.07.2010, the petitioner was not failed as she scored 62 marks in that subject but wrongly shown as failed by the University. Infact incorrect marks were shown in her mark sheet. When the petitioner applied for recounting, the University corrected the marksheet and she was issued another marksheet declaring her first Division in M.P.Ed. course. Infact incorrect marks were shown in her mark sheet. When the petitioner applied for recounting, the University corrected the marksheet and she was issued another marksheet declaring her first Division in M.P.Ed. course. Thus, I hold that on 10.07.2010, the petitioner was not failed and it cannot be said that at the time of issuance of advertisement, the petitioner was not having the qualification of M.P.Ed. degree. 12. The writ petitioner has also annexed a copy of the certificate signed by the Director and Head Department of Physical Education arid Sports of the University of Dr, Babasaheb AmbedkarMarathwada University (Depts) in which it is mentioned that the marks of the petitioner were recounted on19.09.2010 itself but due to shortage of mark-memo stationary papers, marksheet was issued on 19.10.2010. This fact also shows that the petitioner passed M.P.Ed. degree prior to issuance of advertisement 13. Another submission of learned counsel for the respondents is that if the, petitioner is given appointment, the last selected candidate, who has not been impleaded as respondent would be oustedI have seen the order sheet. I find that on 13.10.2011, this court passed the interim order in this writ petition directing the respondent to keep one seat vacant for the petitioner for the post of Assistant Teacher (L.T. Grade) (Physical Education) (Women). In compliance of the said order, one post has not been filled up till date. Now, in case direction is issued in favour of the petitioner andafter getting quality points for M.P.Ed course, the, petitioner comes within the merit, she can be accommodated against that vacant post. In that event, any of the selected candidates will not be affected. 14. The petitioner has also filed a supplementary affidavit in which she has annexed a copy of advertisement dated 01.10.2012 in which, it is mentioned that the repondents have called many candidates from waiting list for being appointed against the seats which are still vacant with the respondents. Thus, no candidate will be affected by the outcome of this petition. 15. In view of the above discussion, the writ petition is allowed. Thus, no candidate will be affected by the outcome of this petition. 15. In view of the above discussion, the writ petition is allowed. The responclents are directed to award due quality points to the petitioner for M.P.Ed degree and consider her candidature for the post of Assistant Teacher (L.T. Grade Physical) (Physical Education), If it is found that, the petitioner has secured more marks than the last selected candidate, then in that event, the appointment shall be given to the petitioner without any delay. 16. All pending applications stand disposed of.