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2016 DIGILAW 854 (UTT)

Surendra Singh Panwar v. State of Uttarakhand

2016-11-19

SUDHANSHU DHULIA

body2016
JUDGMENT : 1. The petitioners before this Court are Graduates in Physical Education. All of them have a degree, which is known as Bachelor Degree in Physical Education (from hereinafter referred to as “BP.Ed.”). In a selection process initiated as far back as in the year 2004 for the post of Assistant Teacher – L.T. Grade (Physical Education), the required qualification, as per the advertisement was a Bachelor degree from recognized University and Diploma in Physical Education. Since the candidature of the petitioners were not being considered, as they were Graduates in Physical Education, which was not the requirement for the post of Assistant Teacher, as per the advertisement, they were constrained to file a writ petition before this Court, being WPSS No. 95 of 2009, in which initially an interim order was passed vide order dated 06.07.2009 by the learned Single Judge of this Court, but as it was not extended later, the petitioner (in WPSS No. 95 of 2009) filed an Special Appeal No. 240 of 2009 before the Division Bench of this Court. While considering the matter, the Division Bench of this Court in SPA No. 240 of 2009, summoned the records of WPSS No. 95 of 2009 as well and both the cases were heard and decided together by a common order dated 08.03.2010. The Division Bench of this Court held that the petitioners were also eligible since they were holding Degree in the same stream i.e. Physical Education. The operative portion of the same reads as under:- “Therefore, since the appellants have a higher qualification in the same stream as the prescribed qualification, in terms of the judgment rendered by the Apex Court in Jyoti K.K.’s case (supra), they are liable to be treated as eligible for consideration/appointment against the advertised posts of L.T. Grade Teachers in Physical Education. Ordered accordingly. Since the entire controversy, sought to be settled through Writ Petition (S/S) No. 95 of 2009, has been adjudicated upon by us through the instant order, we are of the view that Writ Petition (S/S) No. 95 of 2009 also deserves to be disposed of in terms of the conclusion recorded by us hereinabove. The aforesaid writ petition, with the consent of the learned counsel for the parties, is hereby accordingly taken up for final disposal today itself. The aforesaid writ petition is hereby allowed. The aforesaid writ petition, with the consent of the learned counsel for the parties, is hereby accordingly taken up for final disposal today itself. The aforesaid writ petition is hereby allowed. The petitioners in Writ Petition (S/S) No. 95 of 2009 shall be treated as eligible for consideration against the advertised posts of L.T. Grade Teacher in Physical Education. The respondents are, therefore, directed to consider the petitioners in the process of selection for the post of L.T. Grade Teacher in Physical Education in response to the advertisements referred to in the opening paragraphs of this order. Disposed of in the aforesaid terms.” 2. As a result of the above order in special appeal some of the BP.Ed. candidates were considered against 26 posts, which were for General category candidates, and were selected. Consequently, some of the Diploma Holders who were selected earlier had to be removed from the list of selected candidates. 3. The Diploma Holders, who were removed from the list of selected candidates filed a writ petitions before this Court and the learned Single Judge of this Court passed an interim order dated 08.10.2010 in favour of such petitioners and stayed the operation and effect of the order dated 28.09.2010 by which the services of the petitioners were removed. 4. Some of the Diploma Holders also preferred a review application before the Division Bench of this Court that had earlier allowed the special appeal of B.P.Ed. candidates vide its order dated 08.03.2010. The Division Bench in special appeal recalled its order dated 08.03.2010 and passed following order:- “...Inasmuch as the appeal was against modification of the interim order and, inasmuch as, we have noticed that before the interim order was passed, which was subsequently modified by the order under appeal, appointments were given, it would be futile to keep this appeal pending in this Court. On the other hand, we feel that the writ petition should be decided on its merit and, accordingly, after disposing of the appeal, we remit the matter to the learned Single Judge for deciding the writ petition on its merit, as quickly as possible. We, however, restrain the State Government from giving any further appointment to anyone, until disposal of the writ petition.” 5. We, however, restrain the State Government from giving any further appointment to anyone, until disposal of the writ petition.” 5. The matter was then heard by the single Bench and while hearing the matter a statement was made by the Additional Advocate General that about 193 vacancies of Assistant Teachers (Physical Education) are still lying vacant, and it was directed that the petitioners, who were having the Degree in Physical Education, may be considered against such vacancies. The operative portion of the judgment and order dated 13.10.2011 (passed in WPSS No. 95 of 2009 along with connected matters) reads as under:- “This Court on the last occasion had also asked from learned Additional Advocate General to apprise this Court as to whether there are vacancies of Assistant Teacher in the State of Uttarakhand and to this a statement has already been made by Additional Advocate General that there are 193 vacancies which have already been recorded above. Based on this, this court holds that the petitioners having Degree in Physical Education are qualified and they were wrongly made ineligible and therefore the writ petition no. (S/S) 95 of 2009 and writ petition no. 190 (S/S) of 2010 are allowed, as held earlier by the Division Bench of this Court in Special Appeal No. 240 of 2009, which is binding upon this Court. It further observes that the candidates who have already been selected shall not be removed in view of the said Hon’ble Apex Court decision in Jyoti K.K. Vs. Kerla Public Service Commission reported in 2[2002] Supp 1 JT 85/[2002] UJ 941, particularly in view of the fact which is now on record that there are 193 posts of Assistant Teacher L.T. Grade (Physical Education) already lying vacant on which such diploma holders who stand removed earlier can be adjusted. Since this matter has already been delayed, it is hoped and expected that appointment orders to the selected candidates, as determined by this Court as above, as early as possible. As such, Writ Petition (S/S) 912 of 2010 and Writ Petition No. (S/S) 925 of 2010 are also allowed and the impugned order dated 28.09.2010 is quashed, subject to the directions made above. No order as to costs.” 6. Against the said order the State Government filed special appeal, being SPA No. 95 of 2012 (along with five connected special appeals), which was disposed of vide order dated 19.07.2012. No order as to costs.” 6. Against the said order the State Government filed special appeal, being SPA No. 95 of 2012 (along with five connected special appeals), which was disposed of vide order dated 19.07.2012. The relevant portion of the said judgment reads as under:- “However, the fact remains that, in the instant appeals, a statement has been made by the State in its stay petitions to the effect that, when the combined list was prepared after the Division Bench held that the Degree Holders are also entitled to be considered, none of the writ petitions, respondents in this appeals, came within the list of selectees. This assertion, made in the affidavit filed in support of the Stay Application, has not been denied by filing an independent affidavit by any of the writ petitions. Be that as it may, that is a new fact brought to the notice of this Court in the appeals for the first time. The appellate court will not place any credence thereon. The logic conclusion would be that the State would be required to, once again, make a select list in respect of the posts, which were advertised and, in respect whereof, writ petitions had applied and, in the event, writ petitioners are not within the select list in respect of those advertised posts, they may be informed individually in that regard. The above exercise must be carried out within a period of three months from today, it is made clear that the exercise, as above, should be made only in respect to of the writ petitioners vis-a-vis those who have been selected and appointed and not in respect of any other Degree Holder. It is made clear that, in the event, it is found that any of the writ petitioners was entitled to be appointed for he should have been selected, he be given an appointment in a post that will fall vacant in future without disturbing the appointments already given to the Diploma Holders.” 7. The order of the Division Bench of this Court (referred above) in the special appeal was that the case of Degree Holders be considered afresh. However, it was again a specific direction of the Division Bench of this Court that Diploma Holders, who have already been selected, should not be disturbed. The order of the Division Bench of this Court (referred above) in the special appeal was that the case of Degree Holders be considered afresh. However, it was again a specific direction of the Division Bench of this Court that Diploma Holders, who have already been selected, should not be disturbed. After reconsideration of the matter, in terms of the directions of the Division Bench it was found that none of the present petitioners could make the cut off marks and were therefore not selected. All these petitioners have filed a fresh petition yet again. 8. The learned Chief Standing Counsel for the State has informed this Court that the matter regarding the Degree Holders was reconsidered and it was found that the last Degree Holder, who has been selected, was having 68.830 quality marks in the General category whereas the highest marks amongst the petitioners, is of Mr. Vimal Prakash (WPSS No. 2424 of 2015) who has scored maximum 62.736 quality marks. In other words, none of the present petitioners have reached the last cut-off-marks. Moreover, according to the learned Chief Standing Counsel, between 62.736 (maximum quality marks out of the present petitioners) and 68.830 (last selected candidate in General category), there are about 51 candidates in between, who all have higher marks than the petitioners. Therefore, the case of the petitioners cannot be considered in any manner, and they have been rightly left out. 9. In view of the above facts, no fault can be found with the selection. Hence, no relief can be granted to the petitioners. 10. Accordingly, all the writ petitions fails and is hereby dismissed.