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2017 DIGILAW 405 (UTT)

State of Uttarakhand v. Deepa Uniyal

2017-07-25

ALOK SINGH, K.M.JOSEPH

body2017
JUDGMENT : K.M. Joseph, J. 1. Appellants are the respondents in the writ petition. The writ petition was filed seeking the following reliefs: “(A). To issue a writ order or direction in the nature of mandamus declaring the action of the Respondent No. 2 and 4 in appointing the petitioner as Assistant Teacher L.T. Grade (Science) in “Kumaon Division” as arbitrary and illegal. (B). To issue a writ order or direction in the nature of mandamus commanding the Respondents, particularly Respondent No. 2 and 3 to correct the mistake and amend the petitioner’s appointment as Assistant Teacher L.T. Grade (Science) in “Garhwal Division” instead of “Kumaon Division”. (C). To issue a writ order or direction in the nature of mandamus commanding the Respondents to grant all consequential benefit to the petitioner.” 2. Learned Single Judge allowed the writ petition. Hence this Appeal. 3. We heard Mr. Pradeep Joshi, learned Standing Counsel for the State of Uttarkhand/appellants and Mr. Bhagwat Mehra, learned counsel for respondent no. 1. 4. The short facts, which are not in dispute are that on 30.09.2010 the respondent-Technical Board issued an advertisement inviting applications for filling up vacancies of Assistant Teachers both in Kumaon and Garhwal Regions. The writ petitioner was favoured with an order, appointing her in the Kumaon Region i.e. in Almora; the writ petitioner joined. Thereafter, she filed a writ petition in the year 2014. The case of the petitioner appears to have been that she has given first preference for Garhwal Region. A similarly situated person, namely, Vinita Rawat had filed a writ petition in the year 2012. It is her case also that the Technical Board had published the provisional merit list for Science. It is noteworthy that the petitioner had actually applied for selection as Assistant Teacher to teach Science subject. She had also given first preference for Garhwal region and she also had applied for consideration of the Kumaon region as the second preference. It is the further case that after inviting objections, the provisional list of candidates selected was made final and Annexure no. 3 final list was published. In that list also, the name of the writ petitioner figures as candidate, who is, as per her merit entitled to be selected for the Garhwal Region. It is despite the same, the complaint of the writ petitioner is that, she was given order of appointment in the Kumaon Region. 3 final list was published. In that list also, the name of the writ petitioner figures as candidate, who is, as per her merit entitled to be selected for the Garhwal Region. It is despite the same, the complaint of the writ petitioner is that, she was given order of appointment in the Kumaon Region. It is her case further that she joined at Kumaon. When she got the appointment order, she initially gave a representation. There was no action taken. Thereafter, she joined on 02.11.2011 and she gave another representation. That representation was given in the year 2013.Still further, according to her when she did not get relief, she approached this Court in the year 2014 and the writ petition was allowed as follows: “1. The petitioner was selected as an Assistant Teacher L.T. Grade (Science) in the selection process initiated by the State Government for appointment of Assistant Teacher in various Government Schools. The petitioner was selected and thereafter, appointed at a school, namely, Government Inter College Kulsivi, Almora in Kumaon Division. 2. The contention of the petitioner is that in the said selection process she had applied for Garhwal Division and she was selected for Garhwal Division and it is also an admitted fact that her name was in the final selection list for Garhwal Division, but her appointment was made in Kumaon Division vide letter dated 17.10.2011. 3. In the counter affidavit this position that the petitioner was selected for Garhwal Division was admitted by the respondents. 4. In this case, however, the petitioner was selected on vacant post of Assistant Teacher L.T. Grade, which was available in Kumaon Division. Considering the conduct of the petitioner that she promptly joined her services in Kumaon on 02.11.2011 and she is now regularly teaching in Kumaon Division and also for the fact, which is admitted by the State that the petitioner was selected for Garhwal Division and that she had promptly apprised the authority concerned on 27.10.2011 itself about her claim for Garhwal Division, her claim for appointment in Garhwal Division seems justified. 5. In view of the above, the writ petition is allowed. A mandamus is hereby issued to the Director of Education, Uttarakhand to forthwith shift the petitioner to an appropriate school in the Garhwal Division, as an Assistant Teacher L.T. Grade. 6. 5. In view of the above, the writ petition is allowed. A mandamus is hereby issued to the Director of Education, Uttarakhand to forthwith shift the petitioner to an appropriate school in the Garhwal Division, as an Assistant Teacher L.T. Grade. 6. Let the needful be done within a period of four weeks from the date of production of a certified copy of this order. No order as to costs.” 5. Learned Standing Counsel for the appellants would submit that actually what happened was as follows: One Smt. Kavita Uniyal had secured 156.75 marks. She wasthe last candidate to be appointed for the Garhwal region and for the Science subject. 6. What happened in relation to appointment of Kavita Negi, on which objection was taken, is as follows: After the original select list was used for filling up the vacancies after one year, one Kavita Negi secured 153.22 marks, who was in the waitlist prepared and she was offered appointment and that was taken. 7. In regard to the case of Vinita Rawat, who was a candidate like the writ petitioner, who joined in the Kumaon region and thereafter represented and approached this Court, the learned Standing Counsel would submit that no doubt the Director considered her representation, as was directed to be considered by this Court but he would submit that actually it is a wrong order, as she was not entitled. The reason is not far to seek, as according to him Kavita Uniyal, who had secured 156.75 marks was the last candidate entitled to be appointed in the Garhwal region. Both Vinita Rawat and the writ petitioner had secured lesser marks than Kavita Uniyal. 8. Per contra, Mr. Bhagwat Mehra, learned counsel for the writ petitioner would submit that actually the appointment of Kavita Negi from the waitlist and when she had only secured 153.22 marks was not justified. Both Vinita Rawat and the writ petitioner had secured lesser marks than Kavita Uniyal. 8. Per contra, Mr. Bhagwat Mehra, learned counsel for the writ petitioner would submit that actually the appointment of Kavita Negi from the waitlist and when she had only secured 153.22 marks was not justified. Actually the appointment should have been made from the main list and if this had been done, the writ petitioner, who had secured more marks than Kavita Negi would have got selected and he also referred to the merit list prepared by the recruiting body for Science both provisional and final and point out that name of the writ petitioner was included by the recruiting body and he also contends that the recruiting body, when it recommended the case of the writ petitioner for Garhwal region, prepared the select list knowing the number of vacancies for each of the Regions. He would also submit that the Director has, in fact, allowed the claim of Vinita Rawat even though Vinita Rawat got 156.16 marks whereas Kavita Uniyal got 156.75 marks. The writ petitioner has secured, according to her, 155.18 marks. It is lesser than Vinita Rawat. 9. We must consider first of all that admittedly the advertisement was issued purporting to act under the Uttaranchal Subordinate Education (Trained Graduate Grade) Service Rules, 2006 (from hereinafter referred to as the Rules). The post in question is to be filled up by direct recruitment. Rule 14 of the said Rules deals with determination of vacancies. It reads as follows: “14. The Regional Additional Director of Education of the concerned region shall determine the number of vacancies to be filled during the course of the year of recruitment as also the number of vacancies to be reserved for the candidates belonging to the Scheduled Castes, Scheduled Tribes, Other Backward Classes and Other Categories under Rule 6.” 10. Thereafter, Rule 15 (1) of the Rules reads as under: “15.(1) The Regional Additional Director of Education concerned shall provide the description of vacancies of Girl’s Schools (women’s branch) and Co-educational Schools (general branch) to be filled by direct recruitment, which have been determined under Rule 14, to the Director, School Education. Thereafter, Rule 15 (1) of the Rules reads as under: “15.(1) The Regional Additional Director of Education concerned shall provide the description of vacancies of Girl’s Schools (women’s branch) and Co-educational Schools (general branch) to be filled by direct recruitment, which have been determined under Rule 14, to the Director, School Education. Then the Director, School Education shall advertise the vacancies subject-wise in at least two leading daily news papers having wide circulation in the regions of the State and invite application for direct recruitment in the prescribed proforma as may be specified in the advertisement. Such advertisement shall, inter alia, mention the pay and allowances relating to the posts, academic qualification for appointment thereto, and maximum age and such other information as may be considered necessary.” 11. Therefore, the Rules contemplate the determination of number of vacancies. The vacancies are to be filled during the course of the year of recruitment. The number of vacancies to be reserved for the Scheduled Caste, Scheduled Tribe and Other Backward Classes and Other Categories are to be separately determined. He is to provide the description of vacancies to the Director. Then, the Director is to advertise the vacancies subject-wise and invite applications. The applications under Rule 15 is based on a proforma mentioned in the advertisement. Therefore, the appointment is to be made in respect of the vacancies which are reported with regard to the year of recruitment. Secondly, the advertisement is also to be made subject-wise. Having said this, we must also deal with one argument of Mr. Bhagwat Mehra, learned counsel for the writ petitioner. He would submit that the appointment of persons from the waitlist was not proper. It is only after giving an opportunity to the persons who are lower in the main list could they have gone to the waitlist. We are afraid this argument cannot be accepted for more reasons than one in the facts of this case. It is settled principle of law that there must be equal opportunity for all in regard to filling up of vacancies. The appointing authorities ordinarily cannot fill up the vacancies in excess of the advertised vacancies. There is no provision, which enables the appointing authority to fill up vacancies, which arise during the pendency of the select list. It is settled principle of law that there must be equal opportunity for all in regard to filling up of vacancies. The appointing authorities ordinarily cannot fill up the vacancies in excess of the advertised vacancies. There is no provision, which enables the appointing authority to fill up vacancies, which arise during the pendency of the select list. Once the appointments are made based on merit list, which is prepared subject-wise and option and the vacancies are exhausted, then there is no question of making any further appointments from the select list. It is, in this regard, we notice the affidavit, which was filed in the appeal, which was a compliance affidavit. Paragraph nos. 6, 7, 8 and 9 being relevant, we extract the same as under: “6. That it is relevant to state here that the quality point marks secured by the respondent/writ petitioner were only 155.2, though, the last selected general candidate (in Science), in Garhwal Division namely Miss. Kavita Uniyal (Roll No. 7111805214) had secured 156.75 quality point marks. A copy of the letter dated 19.3.2014 and merit list are being filed herewith and marked as Annexure no.-1 and Annexure no.-2 to this affidavit. 7. That it is pertinent to state here that after the exhaustion of the aforesaid select list, when some candidates did not join, after one year a wait list was prepared for the persons having lesser quality point marks than the selected candidates from the main list. It is stated here that Ms. Kavita Negi (Roll no. 7111605292), as had been mentioned in the letter dated 28.3.2014, annexed as Annexure no. CA-2 to the counter affidavit in the writ petition was a candidate in the wait list having 153.22 quality point marks and had been selected from the wait list. A copy of the wait list is being filed herewith and marked as Annexure no.-3 to this affidavit. 8. That it is submitted that the option submitted by the respondent/writ petitioner has exhausted as she has been given posting on the basis of main merit and there is not provision that the person selected and joined in pursuance to the main list will have option to change the place after publication of wait list. 9. 8. That it is submitted that the option submitted by the respondent/writ petitioner has exhausted as she has been given posting on the basis of main merit and there is not provision that the person selected and joined in pursuance to the main list will have option to change the place after publication of wait list. 9. That it is submitted that since the respondent/writ petitioner had joined on the basis of merit and the wait list candidates were invited after exhausting the main list and Smt. Kavita Negi is the candidate of wait list therefore the writ petitioner cannot claim that she be given joining in Garhwal Division on the basis of the selection of wait list candidate.” 12. Therefore, it would appear that the wait-list was prepared. Kavita Negi, who secured 153.22 marks (which is lesser than the marks obtained by the writ petitioner) was included in the waitlist. Some candidates to whom appointment was offered apparently did not join. This took place after a year and the persons in the waitlist were give appointment. We must notice here that the appointment of Kavita Negi is not called in question by the writ petitioner. The preparation of the waitlist is not also called in question as unauthorized. The waitlist is operated, as is well known to deal with cases of vacancies arising from non-joining of the candidates. In the circumstances, the case of Mr. Bhagwat Mehra that the offering of appointment to Kavita Negi in preference to the writ petitioner, having regard to the marks obtained by both is unjustifiable, cannot be sustained and we reject it. 13. In regard to the question related to the relief given to Vinita Rawat on the basis of representation filed, we take note of the fact that the Director has granted relief in favour of Vinita Rawat and no doubt, we are not oblivious of the differences between the case of Vinita Rawat and writ petitioner as Vinita Rawat came in the year 2012, no doubt after joining like the writ petitioner at Kumaon region but she came within one year whereas the writ petitioner came nearly after three years. We would, therefore, in this case direct that Annexure no. 5 be disposed of by the Director. When he disposes of the representation, he will do it strictly in accordance with law. We would, therefore, in this case direct that Annexure no. 5 be disposed of by the Director. When he disposes of the representation, he will do it strictly in accordance with law. He will take into consideration whether after providing for Kavita Uniyal, who admittedly secured more marks than the writ petitioner and who was also in the Science stream, there was any vacancy in the particular year of recruitment available for being filled up from direct recruits. Necessarily, as far as Vinita Rawat is concerned, she has secured more marks than the writ petitioner. We make it clear that the Director will not feel bound by the relief granted in the case of Vinita Rawat. In other words, since there cannot be perpetuation of error or illegality, in this jurisdiction, we direct that the Director will independently of the order passed in the Vinita Rawat’s case, apply its mind to the following relevant aspects: Firstly, the number of vacancies to be filled in that particular year. The merit list prepared for Science subject by the authorities. The option exercised by the writ petitioner and whether after providing for Kavita Uniyal, there remained any vacancy which could have been filled up by appointing the candidates selected by the Board for the Garhwal region. As already mentioned, the Director will not feel bound by the order passed in the case of Vinita Rawat and he will be free to take a decision in the case of the writ petitioner strictly as per law and a decision will be taken within a period of six weeks from the date of production of certified copy of this judgment. Judgment of the learned Single Judge will stand modified. 14. Appeal stands disposed of accordingly.