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2015 DIGILAW 80 (UTT)

KUMUD KALA v. STATE OF UTTARAKHAND

2015-02-25

SUDHANSHU DHULIA

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JUDGMENT : Hon’ble Sudhanshu Dhulia, J. (Oral) 1. The State Public Service Commission (from hereinafter referred to as “Commission”) had advertised certain vacancies for the post of Review Officer as well as Assistant Review Officer for the Secretariat (Uttarakhand) as well as for the Commission. It was a combined examination and selection for Review Officer/Assistant Review Officer for the above two Government bodies. The advertisement was issued on 28.02.2007. Out of which for the post of Review Officers in both the Government bodies posts were also reserved for women. The petitioner applied for the post of Review Officer as a woman candidate in the said examination. Initially there was a preliminary examination conducted on 22.11.2009. The selected candidates were called for main examination i.e. written examination on 3/4.09.2010 and for typing and computer efficiency test on 01.10.2010 to 04.10.2010. 2. It is an admitted case by the respondents that petitioner had qualified in the above examination as she had secured 200 marks. Nevertheless there were better candidates available than the petitioner and therefore the name of the petitioner did not figure in the final select list. The names, which were finally selected, were recommended for appointment by the Commission to the State Government. A letter dated 16.09.2011 sent to the Principal Secretary (Administration), Government of Uttarakhand by the Secretary, State Public Service Commission to that effect (Annexure No. 5 to the writ petition). In the said select list, which was for the post of Review Officer and Assistant Review Officer, at column No. 5 there were certain remarks in some cases. These remarks were that “the last date for verification of the documents is 25.08.2011, and by that time such selected candidates have not come forward for verification of their documents. Their appointment by the State Government, however, would only be done subject to the verification of those documents. Such remarks have been noticed by this Court in the 32 cases out of total of 205. 3. Apart from the above fact, the petitioner has drawn the attention of this Court towards two corrigendums (Annexure No. 4 to the writ petition), dated 16.11.2011 and 29.11.2011 respectively, issued by the Commission stating that certain selected candidates whose roll nos. Such remarks have been noticed by this Court in the 32 cases out of total of 205. 3. Apart from the above fact, the petitioner has drawn the attention of this Court towards two corrigendums (Annexure No. 4 to the writ petition), dated 16.11.2011 and 29.11.2011 respectively, issued by the Commission stating that certain selected candidates whose roll nos. and names have been given in the corrigendum have not been able to submit their documents for verification and they were given 15 days time to submit their documents for verification otherwise it was said that their candidature would be deemed to have been cancelled. 4. According to the petitioner, inter alia, three selected candidates, who are selected as a Review Officer in the Secretariat as women category candidates did not submit their documents either to the Commission or to the State Government. These selected candidates, who are admittedly selected on the posts reserve for women candidate in the above selection as Review Officer in the Secretariat are as follows:- a) Ms. Preeti Karnataka, b) Ms. Shivani Pasbola and c) Ms. Jaya Baloni 5. The reason why these selected candidates did not come forward for verification of the documents is also not difficult to locate, as a statement has been given in the Court by Sri Rakesh Thapliyal, learned counsel for the petitioner that out of these three candidates, two candidates, namely, Ms. Jaya Baloni, Ms. Shivani Pasbola have been selected as C.O. Mussoorie, Dehradun and Civil Judge (J.D.), Vikas Nagar, Dehradun respectively. This fact is admitted by Mr. Kandpal, learned counsel for the Commission. 6. It is also verified from the fact as stated by the counsel for the Commission that the last woman candidate selected for the post of Review Officer had obtained 201 marks i.e. only one mark higher than the petitioner and has declared selected as a Review Officer and has not joined either in Secretariat or in Commission. 7. The case of the petitioner is that since these selected candidates had not joined and since the last selected candidate in women category had obtained 201 marks, i.e. only one mark higher than the present petitioner, the respondent/Commission should have recommended the name of the petitioner for appointment on the post of Review Officer. 8. The counsel for the Commission Mr. 8. The counsel for the Commission Mr. Kandpal on the other hand submits that admittedly there was no “select waiting list”, nor was there any provision for any “waiting list” in the selection, as it was an examination conducted for more than one Department, and the general practice in such cases is that when selection is made for Multi Departments select waiting list is never prepared. There is also a Government Order dated 20.08.2005 in this regard which the Commission has to follow, it is urged. He further states that if the selected candidates have not joined in time then the posts, which have been so advertised, shall be carried forward and the fresh selection will be made. In the present case requisition for these posts have already been made to the Commission. 9. In the present matter since there have been certain vacancies, where selected candidates have not joined, the said posts were carried forward and the Commission has already received requisition from the State Government on 27.06.2013 and 06.07.2014 to make selection on such vacancies and further other vacancies as well, which have come up meanwhile. In view of this situation the Commission’s hands are tied up it cannot recommend the name of the petitioner for appointment. 10. The case of the petitioner on the other hand is not based on any of her claim on a select waiting list. Learned counsel for the petitioner Mr. Rakesh Thapliyal, submits that in the event the selected candidates had not joined or had not come forward for verification of the documents, which was a mandatory requirement, their names could not have been sent for appointment and recommending their names itself is illegal. Instead of sending the names of such candidates whose documents have not been verified and at least two of them are now selected in different departments and occupying higher posts and are not interested on the posts on which they are selected, the name of the petitioner was liable to be recommended. The petitioner has also relied upon RTI information which states that the last selected candidate had obtained 201 marks and the next candidate in the figure is having a Roll No. 117464, which is admittedly the roll number of the petitioner. 11. The petitioner has also relied upon RTI information which states that the last selected candidate had obtained 201 marks and the next candidate in the figure is having a Roll No. 117464, which is admittedly the roll number of the petitioner. 11. After hearing the rival submission of the parties the determination of this Court is that even though there was no provision for preparing a select waiting list, yet as the last selected woman candidate had not joined either before the Commission or even before the Government, a chance ought to have been given to the petitioner since she was the next qualified candidate. On these facts there is also a special equity in her favour. 12. Accordingly, the writ petition succeeds. A mandamus is hereby issued to the State Public Service Commission to recommend the name of the petitioner to the post of Review Officer/Assistant Review Officer in the Secretariat or in the Commission depending upon the marks received by the petitioner and subject to the objections, which the Commission or the State Government may call from the last selected and appointed candidate, in the said exam. 13. Let the needful be done within a period of six weeks from the date of production of a certified copy of this order. However, her salary will be given only from the date of joining. She will not be entitled for any benefit of past salary, however, her seniority shall be determined as in the case of other selected candidates.