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2014 DIGILAW 43 (UTT)

JAINENDRA KUMAR CHAUHAN v. STATE OF UTTARAKHAND

2014-02-18

ALOK SINGH

body2014
JUDGMENT Hon’ble Alok Singh, J. Vide notification dated 14th December, 2011, annexure No.2 to the writ petition, applications were invited for the post of Assistant Teachers, Primary School. One seat was reserved for ex-service man quota. Petitioner as well as respondent No.6 applied against the reservation for ex-service man quota. In the select list prepared by the respondents, name of the petitioner was placed at serial No.19 while name of the respondent No.6 was placed in waiting list at serial No.1. Later on candidature of the petitioner was cancelled on the ground that on the date of submission of the application form for the post of Assistant Teacher, petitioner was not discharged from the Indian Air Force and was working with the Air Force. Therefore, he cannot be treated as ex-service man. Consequently, respondent No.6 was picked up from the waiting list and was given appointment. Feeling aggrieved, petitioner has approached this Court by invoking Article 226 of the Constitution of India by way of present petition. 2. I have heard Mr. Davesh Bishnoi, learned counsel for the petitioner, Mr. Subhash Upadhyaya, learned Standing Counsel for respondent Nos. 1 to 5 and Mr. Niranjan Bhatt, Advocate for respondent No. 6 and have carefully perused the record. 3. The petitioner while remaining with the Indian Air Force did his B.A. and M.A. as private student in the year 2000 and 2003 and did B.Ed. course as regular student after obtaining approval from the authorities. Petitioner applied for the post of Assistant Teacher, Primary School pursuant to the advertisement dated 14th December, 2011, annexure No. 2 to the writ petition, against the ex-service man quota. Undisputedly, before issuing of the notification inviting applications for the post of Assistant Teacher, Primary School dated 14th December, 2011, petitioner had applied to the authorities to discharge him from the Indian Air Force and no objection certificate was issued on 11th April, 2011, annexure No.5 to the writ petition, prior to the issuance of the notification inviting applications for the post of Assistant Teachers. 4. Perusal of annexure-5, no objection certificate dated 11th April, 2011, would reveal that petitioner was permitted to register his name with the Employment Exchange or to appear in any competitive examination and to accept any civil post in Central / State Govt. orginisation. Consequently, petitioner applied for the post pursuant to the advertisement dated 14th December, 2011 and got selected. Perusal of annexure-5, no objection certificate dated 11th April, 2011, would reveal that petitioner was permitted to register his name with the Employment Exchange or to appear in any competitive examination and to accept any civil post in Central / State Govt. orginisation. Consequently, petitioner applied for the post pursuant to the advertisement dated 14th December, 2011 and got selected. This Court in the case Bharat Singh Vs. State of Uttarakhand and others, 2014(1) UAD, 635. Writ Petition No. 595 (SS) of 2013 decided on 19.11.2013 in similar facts and circumstances of the case has held that since petitioner was given no objection by the Army Authorities to appear in the examination for any civil post, therefore, petitioner ought to have been considered against the quota reserved for the ex-serviceman post. In the present case, petitioner was granted permission vide annexure No.5 to the writ petition to apply for any civil post with the condition that he would be discharged. Therefore, petitioner ought to have been considered for the post of Assistant Teacher, Primary School under the ex-service man quota and he ought to have been appointed pursuant to the select list. However, it was not done and hurriedly appointment order was issued in favour of respondent No. 6. 5. Consequently, writ petition is allowed. Mandamus is issued to the respondents to consider the petitioner under the ex-service man quota and to provide him appointment on the post of Assistant Teacher, Primary School pursuant to the select list. In the peculiar facts and circumstances of the case, since respondent No.6 was given appointment in the year 2012 and is still working on the post of Assistant Teacher, Primary School, I do not deem fit to cancel the appointment of the respondent No.6. Mr. Subhash Upadhyaya, learned Standing Counsel for the State does not dispute that still vacancy is available. As such, petitioner shall be given appointment on the post of Assistant Teacher, Primary School, within four weeks positively.