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2017 DIGILAW 390 (UTT)

BHUWAN CHANDRA PANT v. STATE OF UTTARAKHAND

2017-07-17

ALOK SINGH, K.M.JOSEPH

body2017
JUDGMENT K.M. Joseph, C.J. (Oral) Appellants are the petitioners in the writ petition. 2. The writ petition was filed seeking the following reliefs: “I. Issue a writ order in the nature of Certiorari quashing the select list dated 25-10-2016 subsequently published in the news paper (Annexure 5) to the extent the respondents have filled up the posts against the 10% quota available to the departmental candidates including the petitioners. II. Issue a writ order or direction in the nature of Mandamus directing the respondents to issue a separate select list for the departmental candidates according to the Uttarakhand Animal Husbandry Department, Live Stock Extension and Poultry Development Service rules, 2009, ignoring the condition of obtaining minimum passing marks as provided in the advertisement.” 3. The case of the petitioners is that an advertisement was issued as Annexure no. 2 to the writ petition dated 10.01.2015 inviting applications for the post of Livestock Extension Officers under the direct recruitment quota as well as under the quota fixed for departmental candidates. A total of 120 posts were advertised and, therefore, according to the petitioners, since under the Rules 10 percent posts were to be filled up from in-service hands, 12 posts were to be reserved. The further complaint of the petitioners, however, is that the minimum cut off marks have been fixed and, on the basis of the same, select list has been prepared and the petitioners have been found to be disqualified. The writ petition was dismissed. Hence, the petitioners are before us. 4. We heard Mr. Shakti Singh, learned counsel on behalf of the appellants and Mr. Hari Mohan Bhatia, learned Brief Holder on behalf of the State. 5. The matter arises under the Uttarakhand Animal Husbandry Department, Live Stock Extension and Poultry Development Service Rules, 2009. Rule 5 deals with the recruitment. It, inter alia, provides that recruitment to various categories of posts including recruitment to the post of Livestock Extension Officers will be done in the following manner: 85 percent posts are to be filled by direct recruitment. Rule 5 deals with the recruitment. It, inter alia, provides that recruitment to various categories of posts including recruitment to the post of Livestock Extension Officers will be done in the following manner: 85 percent posts are to be filled by direct recruitment. Thereafter, it is provided that 10 percent posts are to be filled by direct recruitment from amongst substantively appointed Departmental candidates who have put in five years’ continuous service in the Uttarakhand Animal Husbandry Department on the first day of the year of the recruitment and must have passed the Intermediate examination with Biology or Agriculture as one of the subjects of the Board of Intermediate Education and Examination, Uttarakhand or Board of Intermediate Education, Uttar Pradesh or an examination recognized by the Government as equivalent thereto. The proviso, however, provides that if sufficient number of eligible or suitable departmental candidates are not available for direct recruitment, the posts shall be filled by direct recruitment to be done by 85 percent. The rest 5 percent is to be filled by way of recruitment from retired Veterinary Dressers Grade-1 and Grade-2 with 15 years’ regular service in the Remount Veterinary Core of the Army with prior sanction of the Government. The posts of Senior Poultry Inspector and Farm Manager (Poultry) are to be filled on the basis of promotion. Rule 16 deals with the procedure for direct recruitment. Rule 17 deals with the procedure for recruitment by promotion. 6. At this juncture, it is necessary to consider the contentions of Mr. Shakti Singh, learned counsel for the appellants. He would submit that the law or the Rules contemplates filling up 10 percent posts of Livestock Extension Officer from in-service hands. The appellants have been working for more than five years and they have been doing almost the same job as a Livestock Extension Officer does. This is not an academic post. He would further submit that the Rules contemplate that the appointments shall be made to the extent of 10 percent from the in-service hands like the appellants. There is a quota. The quota must be adhered to. The appellants are eligible and suitable. Thereafter, there cannot be a further yardstick to cut down their right to be considered for the 10 percent quota. In this regard, he would rely on the judgment rendered in the case of Direct Recruit Class II Engineering Officers Association Vs. There is a quota. The quota must be adhered to. The appellants are eligible and suitable. Thereafter, there cannot be a further yardstick to cut down their right to be considered for the 10 percent quota. In this regard, he would rely on the judgment rendered in the case of Direct Recruit Class II Engineering Officers Association Vs. State of Maharashtra and others reported in 1990 (2) SCC 715 . Therein, the Court laid down, according to the appellants, that once there is a quota, the quota must be adhered to. There is also a case for the appellants that this matter has engaged the attention of this Court in a writ petition and the learned Single Judge observed that select lists must be prepared for the persons coming under 85 percent quota and for the departmental candidates. 7. On the other hand, the case of the State is that though under Rule 16 which provides for direct recruitment, there is no separate minimum fixed, in the year 2011, the Government amended the Rules, which provide for recruitment to Class-III posts, where recruitment is to be done without consulting thePublic Service Commission, that the person must have 45 percent in the written examination for the general candidates and 35 percent for the reserved category candidates. He further points out that as far as this recruitment is considered, in the advertisement issued, Clause 10(3) provides that a candidate must obtain 33 percent marks obtained by the first rank holder. 8. We should notice that there is no challenge to the advertisement. There is also no challenge to the 2011 Rules, which provides for the cut off marks. It is also necessary to notice the marks obtained by the writ petitioners. Writ petitioner no. 1 has obtained 13.5 marks; writ petitioner no. 2 has obtained 7.25 marks; writ petitioner no. 3 has obtained 7.25 marks and writ petitioner no. 4 has obtained 4.5 marks out of 100 marks. Therefore, one thing is clear that none of the appellants have secured minimum marks either going by the Rules or going by the Advertisement. The Rule maker has provided in the proviso to Rule 5 that if there are no sufficient qualified hands, the vacancies will be filled up by direct requirement under the 85 percent quota. Therefore, one thing is clear that none of the appellants have secured minimum marks either going by the Rules or going by the Advertisement. The Rule maker has provided in the proviso to Rule 5 that if there are no sufficient qualified hands, the vacancies will be filled up by direct requirement under the 85 percent quota. This itself shows that the Rule maker did not contemplate automatic right to the inservice hands to be appointed in the 10 percent quota as Rule 16 contemplates written examination. In view of the amendment brought about in the year 2011, it is very clear that the cut off marks have to be obtained. As already noticed, there is no challenge either to the advertisement or to the 2011 Rules. Therefore, if applying the minimum cutoff marks, the appellants are found ineligible and the vacancies lapsed in favour of the direct recruitment quota under the 85 percent quota, the action cannot be faulted at all. The argument of learned counsel for the appellants that they are doing the same job, the quota must be adhered to and they were suitable and eligible, are without merit. Suitability and eligibility of candidates are determined in the context of the Statutory Rules or the Government Orders that govern them. In this case since recruitment is to be done as direct recruitment and in view of the fact that they did not obtain the minimum cut off marks, there is no illegality involved in it. 9. Learned counsel for the appellants would refer to us the information provided under the Right to Information Act and would contend that many persons have been appointed as Livestock Extension Officers etc., though they did not obtain minimum marks. The marks obtained by them are produced. 10. There are two aspects. Firstly, it is not clear whether they were appointed after the 2011 Rules. Even assuming for a moment that they were appointed under the 2011 Rules, the Court cannot ignore the Rules and extend the same treatment to the appellants on the ground that others have been appointed. If others have been appointed illegally, the Court will not put its seal and implement any illegal procedure and countenance perpetuation of illegality. Therefore, there is no merit in this contention also. If others have been appointed illegally, the Court will not put its seal and implement any illegal procedure and countenance perpetuation of illegality. Therefore, there is no merit in this contention also. It may be true that in the earlier round, the matter was disposed of stating that separate list must be prepared, but in view of the fact that the Rules actually contemplate direct recruitment and not promotion in regard to these posts and also as the Rules contemplate lapsing of the 10 percent quota, if there are no qualified hands in favour of the persons coming under 85 per cent quota, the action is perfectly legal. 11. There is no merit in the appeal. Accordingly, the appeal will stand dismissed. There will be no order as to cost.