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2014 DIGILAW 551 (UTT)

Khemraj Bhatt v. State of Uttarakhand

2014-12-04

SUDHANSHU DHULIA

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JUDGMENT : Sudhanshu Dhulia, J. 1. The petitioner – Khemraj Bhatt has filed the above two writ petitions before this Court seeking relief against the State Public Service Commission (hereinafter referred to as “Commission”) as well as against the State Authorities. 2. The petitioner was a candidate for the post of Assistant Registrar in State Universities for which two posts were advertised by the Commission vide advertisement dated 17.09.2010. One post was reserved for Scheduled Caste and another for the General category candidate. Admittedly, the petitioner was selected for the said post in a General category candidate. However, since his appointment was not being made earlier he filed a writ petition before this Court being WPSS No. 1170 of 2012 seeking following reliefs: I. Issue a writ order or direction in the nature of Mandamus directing the respondent no. 1 to issue appointment order of petitioner on the post of Assistant Registrar on the basis of his final selection dated 14.05.2011 by respondent no. 3. II Issue any other order or direction which this Hon’ble Court may deem fit and proper in the circumstances of the case. III. Award cost of the petition. 3. Meanwhile, the Commission itself on certain complaints made against the selection of the petitioner, which was regarding his qualifications and his eligibility to the post of Assistant Registrar. After giving the petitioner show cause notice, and hearing his reply, the Commission passed the impugned order dated 08.11.2012, which has been challenged by the petitioner in the second writ petition (WPSS No. 1791 of 2012). 4. Both these writ petitions are being disposed of by a common order, however, for the sake of convenience it must be stated that the facts, which have been narrated in the present order, pertains to the WPSS No. 1791 of 2012. 5. The petitioner was initially appointed on the substantive or a permanent post as a driver in the Treasury Department in the erstwhile State of Uttar Pradesh vide order dated 05.07.1992. There is no dispute that the initial appointment of the petitioner was on the post of a driver, which was substantive in nature. Thereafter in an accident, which happened while the petitioner was on official duty, where he sustained injuries in his spinal cord. Thereafter, it was difficult for him to drive vehicles, particularly on long distances. There is no dispute that the initial appointment of the petitioner was on the post of a driver, which was substantive in nature. Thereafter in an accident, which happened while the petitioner was on official duty, where he sustained injuries in his spinal cord. Thereafter, it was difficult for him to drive vehicles, particularly on long distances. He, therefore, made a request to the concerned authorities that he may be assigned clerical duties, considering his medical condition. An application was moved by the petitioner while he was serving in the erstwhile State of Uttar Pradesh and thereafter he was allocated to the Uttarakhand and he further made a representation on 25.07.2001 before the Authority concerned in Uttarakhand. Consequently, an order was passed by the Director, Treasury on 04.08.2001 assigning clerical duties to the petitioner. Considering that he is now assigned duty of Office Assistant/Clerk and the pay scale will be the same as was being given to him earlier on the post of driver i.e. 3050-4590. 6. According to the petitioner, at the relevant time, even the clerical cadre on which he was assigned the work i.e. Office Assistant had the same pay scale i.e. 3050-4590. Meanwhile, the petitioner name was mentioned in the inter se seniority list in the clerical employees, but in the year 2005, his name was removed from the seniority list of the employees working in the clerical cadre. Hence, the petitioner filed writ petition before this Court being WPSS No. 1896 of 2005, which was finally decided vide order dated 08.11.2012 whereby the writ petition was allowed and it was held by the learned Single Judge of this Court that there are provisions for change of cadre, particularly, keeping in mind the medical condition of the petitioner. The learned Single Judge of this Court also made a reference of a decision of Hon’ble Apex Court in Narendra Kumar Chandla Vs State of Haryana & others reported in (1994) 4 SCC 460 . The learned Single Judge of this Court has held that the petitioner has been rightly assigned the clerical cadre and it was wrong to remove his name from the seniority list of the employees of the clerical cadre. 7. It is brought to the notice of this Court by Mr. The learned Single Judge of this Court has held that the petitioner has been rightly assigned the clerical cadre and it was wrong to remove his name from the seniority list of the employees of the clerical cadre. 7. It is brought to the notice of this Court by Mr. B.D. Kandpal that an appeal has been filed against the said order (referred above) of the learned Single Judge of this Court, and the order has been stayed by the Division Bench of this Court vide order dated 09.04.2013. The said Special Appeal is still pending before the Division Bench of this Court. 8. Be that as it may the position as on today is that admittedly the petitioner was appointed as a driver in the Treasury Department. Initially he was performing the duties of Driver, but later on lighter duties were assigned to him, considering his medical condition and from 2001 onwards he has been performing clerical duties. 9. The Commission published an advertisement vide order dated 17.09.2010 by which they invited applications from the eligible candidates inter alia for the post of Assistant Registrar (two posts are there, one of general category and another is for Scheduled Caste category), for the said Universities. The petitioner also applied for the post of Assistant Registrar. 10. Admittedly, in the said advertisement the required qualifications for the post of Assistant Registrar were as follows:-. (a) that the candidate must be graduate having knowledge of writing letters in Hindi and English. (b) he must have experience of at least seven years of clerical work either in Government Office or in University. 11. The petitioner applied for the said post and subsequently he was selected. Since he was not being appointed, he filed a writ petition before this Court for seeking appropriate orders reference was already made above. Thereafter, a complaint was moved by one Mr. Ajay Singh Chauhan - respondent no. 4. According to the petitioner, respondent No. 4 was himself a candidate for the post of Assistant Registrar and having failed to qualify the test he had filed a complaint against him alleging that the petitioner does not have experience of seven years in clerical post, as he was a Driver and all the certificates and documents, which he has submitted to the Commission to this effect are forged and fabricated documents. It is for this reason that the State Public Service Commission itself was having a second thought in the matter. 12. Respondent No. 4 moved a complaint before the State Public Service Commission as well as the State Authorities and on enquiry from the State Authorities i.e. the Secretary of the State Public Service Commission vide letter dated 09.08.2011 wrote a letter to His Excellency, The Governor that the selection has been made in a very transparent method. The applicant has given required certificates and there is no reason for the Commission not to believe such certificates or to have doubt on the veracity of the documents submitted by the petitioner. The complaint was thus rejected at the level of Commission. Meanwhile, Additional Secretary of the State Government appointed Deputy Director Higher Education to enquire into the matter and thereafter he sought explanation from the Department of the petitioner i.e. Treasury Department as well as the Department of Accounts and Pension and came to the conclusion that the petitioner was appointed as a Driver in the year 1992. Thereafter, on temporary arrangement he was asked to assign his duty as Clerk in the year 2001 but he has always been drawing the salary of a Driver. 13. Thereafter, however, the Enquiry Officer referred to a writ petition filed by the petitioner before this Court being WPSS No. 1896 of 2005 wherein the petitioner has challenged his name be taken out from the list of the employees of Clerical cadre. As the case was pending before this Court, the Enquiry Officer did not take any decision as to the status of the petitioner. The fate of the writ petition and the fact that a Special Appeal has been filed against the order in the writ petition as already stated above. The petitioner himself moved an application before the Enquiry Officer stating that he has not been heard in the matter. The Enquiry Officer after giving hearing to the petitioner filed his report on 08.11.2012 in which he gave the following findings. (a) in the accounts and pension directorate, the petitioner has been issued an experience certificate to the effect that he has been performing duties as an Office Assistant and his name has been mentioned in the Office document as an Office Assistant. (a) in the accounts and pension directorate, the petitioner has been issued an experience certificate to the effect that he has been performing duties as an Office Assistant and his name has been mentioned in the Office document as an Office Assistant. (b) vide order dated 13.10.2006 of the Finance Department, the petitioner has been working as a Junior Assistant i.e. Data Entry Operator, which is a cadre post. 14. In the advertisement of the State Public Service Commission, the requirement is knowledge of writing letters in Hindi and in English and work experience of seven years in clerk cadre (either in Government Office or in University). The requirement is not that one has worked on a clerical post for seven years. Considering that the final conclusion derived by the Enquiry Officer is that he has been eligible as per the requirement given by the State Public Service Commission to the post of Assistant Registrar, as he had all the qualifications and experience as required for the said post. This enquiry report is dated 08.11.2012, however, it appears that the Additional Secretary of the Government vide his letter dated 30.07.2012 referring to the earlier report of the same Enquiry Officer which in any case is inconclusive and reference in which has already been made in the preceding paragraphs of this order, yet the Additional Secretary wrote to the State Public Service Commission that the work done by the petitioner cannot be said to be an experience on clerical post for seven years. In other words, he was not having a requisite qualification for the post of Assistant Registrar. On this recommendation/finding of the letter of the Additional Secretary, the Secretary, State Public Service Commission, who on an earlier occasion had rejected the complaint, finding it as baseless now states that the petitioner has submitted wrong certificates that he is not qualified for the post and he was actually does not have an experience of seven years. Therefore, his selection has been cancelled. 15. Both, the State Public Service Commission and the State Government, have defended the cancellation of the petitioner’s candidature before this Court. The private respondent No. 4 – Ajay Singh Chauhan has filed his counter affidavit. Therefore, his selection has been cancelled. 15. Both, the State Public Service Commission and the State Government, have defended the cancellation of the petitioner’s candidature before this Court. The private respondent No. 4 – Ajay Singh Chauhan has filed his counter affidavit. His case is that he too was a candidate for the post of Assistant Registrar in the General category and he was at serial No. 2 in the merit as the petitioner had obtained 486 marks and he had obtained 461 marks. Therefore, what he would like to argue is that if the candidature of the petitioner is now rejected then he was one who is liable to be selected on the said post. Apart from this he has rebutted the arguments of the petitioner regarding his eligibility and harped upon the fact that the petitioner was a driver and has always worked as a driver and the certificates submitted by him are fake. 16. Having heard at length counsel for the petitioner as well as counsel for the respondents and though respondent No. 4 is not present either in person or through his counsel yet his counter affidavit has been perused and the fact stated therein examined. This Court is of the opinion that the writ petitions are liable to be succeeded and must be allowed. 17. Not only was the petitioner eligible for the post of Assistant Registrar as per the requirement in the advertisement, but contrary to which is being alleged the petitioner has also not filed any forged and fabricated documents before the authority concerned. The eligibility certificate was given to him by the designated officer, as required under the law. What is most important is that the requirement was not that one has an experience of seven years on a clerical post. The advertisement only asked that such candidates who have experience of seven years of clerical work and must be a graduate with knowledge of Hindi and English. There is absolutely no doubt that the petitioner is a graduate. It is an admitted fact that the petitioner met with an accident, in any case this fact has not been denied by the respondents, and since 2001 he has been performing clerical duties is also not in dispute. 18. There is absolutely no doubt that the petitioner is a graduate. It is an admitted fact that the petitioner met with an accident, in any case this fact has not been denied by the respondents, and since 2001 he has been performing clerical duties is also not in dispute. 18. It is another matter that though initially the petitioner was shown to be a member of the clerical cadre but later on his name was deleted from the seniority list of the employees of the clerical cadre in the year 2005. The said order was challenged by the petitioner before this Court in a writ petition (referred above), which was allowed and subsequently, the State preferred an appeal before the Division Bench of this Court. The learned Division Bench has stayed the order of the learned Single Judge. So, that remains a separate issue. This Court is only concerned with the eligibility and as to whether the petitioner has experience in writing letters in Hindi and English as well as working as a Clerk for seven years. What is relevant would be that the Commission itself had initially rejected the complaint of respondent No. 4 finding it to be frivolous. There are two reports of the Enquiry Officer, who was appointed by the Additional Secretary of the State Government. The first enquiry report is dated 12.12.2011 and second enquiry report is dated 08.11.2012. 19. The first enquiry report of Deputy Director (Higher Education), Dehradun is inconclusive for the reasons that he has referred to writ petition (WPSS No. 1896 of 2005) and since at the time, the writ petition was still pending, he refrain to give any conclusive finding as to the eligibility of the petitioner. In the second enquiry report dated 08.11.2012, the Enquiry Officer has given a conclusive finding that petitioner had required experience of clerical work, including writing letters in Hindi and English and his certificates and documents were valid certificates, which he had submitted. Nothing further needs to be done after the said enquiry report of the Officer. 20. Unfortunately, however, before this report to be submitted, the Additional Secretary had already expressed her mind by writing a letter on 30.07.2012 to the Commission that the petitioner does not have the required experience and this letter was based on the first report of the Enquiry Officer, which in any case was inconclusive. 20. Unfortunately, however, before this report to be submitted, the Additional Secretary had already expressed her mind by writing a letter on 30.07.2012 to the Commission that the petitioner does not have the required experience and this letter was based on the first report of the Enquiry Officer, which in any case was inconclusive. Once the letter of the Additional Secretary of the Government of Uttarakhand reached the Commission, the impugned order itself clear that it has primarily relied upon the said letter of the Additional Secretary and held that the petitioner does not have required qualification and cancelled his candidature. 21. This Court finds that in the process, justice has not been done. The main enquiry report has not been examined either by the Government Authorities or by the State Public Service Commission and the impugned order has been passed. The conclusion, therefore, would be that the petitioner was selected by the State Public Service Commission on the post of an Assistant Registrar, after being duly selected, his candidature has been cancelled. His candidature has been cancelled without taking cognizance of the enquiry report dated 08.11.2012, which has a conclusive finding that the petitioner is eligible and has all the requirements for the post of Assistant Registrar and that his certificates are in order. 22. In view thereof, the writ Petitions succeeds. The impugned order dated 08.11.2012 passed by respondent No. 3 is hereby quashed. The respondents are hereby directed to forthwith give the appointment to the petitioner on the post of Assistant Registrar.