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Uttarakhand High Court · body

2013 DIGILAW 318 (UTT)

Mohindra Singh Bisht v. State of Uttarakhand

2013-06-12

SUDHANSHU DHULIA

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Judgment Sudhanshu Dhulia, J. 1. Heard Mr. Rajendra Dobhal, Senior Advocate assisted by Sanjay Raturi, Advocate for the petitioners and Mr. Rakesh Thapaliyal, Advocate for the Uttarakhand Technical Education Board, Mr. D.S. Patni, Advocate for Pey Jal Sansthan Evam Nirman Vibhag, Uttarakhand, Mr. Pankaj Purohit, Advocate for respondent nos. 5, 6, 9, 11, 12, 14 & 15 and Mr. Sanjeev Singh, Advocate for the interveners. 2. Since the present bunch of writ petitions involve common question of law and fact, hence all these writ petitions are being decided together by this common judgment. 3. However, for the sake of convenience, the facts related to WPSS No.785/2012 filed by Smt. Mohindra Singh Bisht are being taken into consideration. The respondents had issued an advertisement dated 04.05.2012 calling for eligible candidates for appointment, inter alia, on the post of Junior Engineers in Electrical/Mechanical trades. All the petitioners were candidates for appointment on the post of Junior Engineers in various departments of the State of Uttarakhand and the examination was to be conducted by the Uttarakhand Technical Education Board (hereinafter referred to as the Board). The present dispute though limits itself for recruitment to one department i.e. Uttarakhand Pey Jal Sansthan Evam Nirman Vibhag, which has been impleaded as respondent no.3 and the other candidates have also been impleaded, who according to the petitioner have been wrongly selected. 4. The principle ground of the petitioners is that the advertisement was issued on 04.05.2012 calling for eligible candidates for the posts of Junior Engineers in various departments. There were 28 posts of Junior Engineers (Electrical/Mechanical) in the Pey Jal Sansthan Evam Nirman Vibhag, out of which, 2 posts each were reserved for Scheduled Castes and Other Backward Classes. Meaning thereby, there were 24 posts for the General category candidates. The petitioners appeared in the written examination and were declared successful, and subsequently the respondents published a list of successful candidates on 28.03.2012 in which the petitioners’ name figure. The total number of successful candidates was 30. 5. In response to the said list, all the petitioners were declared successful and were asked to report for the purpose of joining with all their testimonials. The total number of successful candidates was 30. 5. In response to the said list, all the petitioners were declared successful and were asked to report for the purpose of joining with all their testimonials. According to the petitioners, the required documents were supplied by them, but surprisingly another select list was published on 19.05.2012 and 06.06.2012 whereby not only the seats were reduced from 28 to 19, but also the names of the petitioners did not figure in the second select list. Feeling aggrieved, the present writ petitions have been filed. 6. The necessary party, i.e. Pey Jal Sansthan Evam Nirman Vibhag has filed its counter affidavit. The contention of the Pey Jal Sansthan Evam Nirman Vibhag is that the department was constrained to reduce the seats for the reasons that firstly, a policy decision has been taken by the department by which 75% of the existing posts of Junior Engineers in the department is to be converted to that of Additional Assistant Engineers which were then liable to be filled by way of promotion from the existing Junior Engineer and hence only 25% posts of Junior Engineers were to be filled by direct recruitment. Meaning thereby, there are 73 total sanction posts of Junior Engineers and in this way, 55 posts (i.e. 75% of total sanction posts) are to be filled by promotion and 25% (i.e. 19 posts) can only be filled by direct recruitment. The second reason given by the Pey Jal Sansthan Evam Nirman Vibhag is that initially the reservation policy was not properly adopted and when the department realized that the reservation for Scheduled Castes and O.B.C. has to be fixed properly, therefore, the seats were reduced from 28 to 19 resulting which the General category candidates have been removed from the list. Both the aforesaid submissions given by the Pey Jal Sansthan Evam Nirman Vibhag have also been adopted by other respondents. Mr. D.S. Patni, Advocate for Pey Jal Sansthan Evam Nirman Vibhag has also submitted that it was condition stipulated in the advertisement that the number of seats can be increased or decreased. 7. After hearing the learned counsel for Pey Jal Sansthan Evam Nirman Vibhag, the Court is of the opinion that though the seats can be decreased or increased, but for doing so, there must be some cogent and plausible reasons. 7. After hearing the learned counsel for Pey Jal Sansthan Evam Nirman Vibhag, the Court is of the opinion that though the seats can be decreased or increased, but for doing so, there must be some cogent and plausible reasons. The reasons given by the Pey Jal Sansthan Evam Nirman Vibhag are not reasonable. In fact, they are arbitrary. This Court is hence of the opinion that the submissions of respondents are liable to be rejected for the reasons that once an advertisement is issued and the number of total seats have been declared in the advertisement, the seats cannot be reduced or decreased, unless there was some cogent and plausible reasons to reduce/decrease the seats. The ground taken by the respondents that the seats was reduced in view of the policy decision taken by the department is not plausible for the reason that the Government Order dated 29.03.2011, which states that 75% of the posts of Junior Engineers are to be converted to that of the Additional Assistant Engineers and now to be filled by promotion, was issued way back in March, 2011 whereas the advertisement in question was issued on 04.05.2012. The Government Order dated 29.03.2011 (on which the Pey Jal Sansthan Evam Nirman Vibhag relies) was issued before the date of advertisement in question. Such stand taken by the respondents cannot be accepted as the Government Order cannot supercede the regulations/rules. The Regulations, in fact which govern the service condition of the employees, came into force on 24.06.2011 (Annexure-CA-2 to the counter affidavit filed by the Pey Jal Sansthan Evam Nirman Vibhag) by which a new category of posts i.e. Additional Assistant Engineer has been created and 75% posts of Junior Engineer has to be filled by way of promotion from the post of Additional Assistant Engineer. Therefore, the said regulations came into force subsequent to the advertisement in question and it is a well settled position of law that the ‘rules of the game’ cannot be changed after the game has started. 8. The other submission of the respondents that the change is due to the reservation being made now, is also not acceptable. In the advertisement itself, it was clearly stated that out of the total 28 vacancies, 02 posts were reserved for O.B.C. category and 2 posts for S.C. category and rest of the posts i.e. 24 posts for General category. The other submission of the respondents that the change is due to the reservation being made now, is also not acceptable. In the advertisement itself, it was clearly stated that out of the total 28 vacancies, 02 posts were reserved for O.B.C. category and 2 posts for S.C. category and rest of the posts i.e. 24 posts for General category. Therefore, the reservation was already applicable in this recruitment process. No plausible reasons have been given by the Pey Jal Sansthan Evam Nirman Vibhag as to why the percentage of reservation has been increased. Therefore, it is clear that this increase in the reservation is arbitrary on the part of the respondents. There is total arbitrariness on the part of the respondents in as much as once the advertisement is issued inviting applications for 28 post of Junior Engineer (out of which, 2 seats each were reserved for Scheduled Castes and O.B.C.), such seats cannot be changed. 9. In the light of aforesaid, the writ petitions are hereby allowed. The select lists dated 28.03.2012 and 06.06.2012 are hereby quashed. A mandamus is issued directing the respondents to publish a fresh select list, within a period of eight weeks from the date of production of a certified copy of this order, keeping in view of the above determination, namely, that the existing vacancies as per the advertisement dated 04.05.2012 shall not be changed and thereafter, the appointment shall be made accordingly. 10. In view of the determination already made above, the connected writ petitions are hereby allowed. No order as to costs.