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2017 DIGILAW 416 (UTT)

DEV KUMAR LINGWAL v. STATE OF UTTARAKHAND

2017-07-27

ALOK SINGH, K.M.JOSEPH

body2017
JUDGMENT Hon. K. M. Joseph, C.J. (Oral) 1. Appellants are the writ petitioners. In fact, appellant no. 1 is son of appellant no. 2. Appellant no. 1 and respondent no. 6 were candidates for selection to the post of Assistant Accountant in Treasury Department. The prayer sought in the writ petition, is as follows: “1. A writ, order or direction in the nature of Certiorari so as to quash the appointment of the respondent no. 6 who has been wrongly and illegally selected and appointed on the post of Assistant Accountant for the aforesaid cases. 2. A writ, order or direction in the nature of Mandamus directing respondents 1 to 4 and 7 to act in terms and accordance with law by considering the candidature of the petitioner on the aforesaid post of Assistant Accountant as advertised in which the power has appeared and also passed successfully. 2A. A writ or order or direction in the nature of Certiorari and Mandamus quashing the act of respondent nos. 1 to 4 and 7 by declaring the said act of respondents no. 1 to 4 and 7 of declaring result of the computer test in a wrongful and illegal in view of the same being not in conformity of Article 14 and 16 of the Constitution of India. This Hon’ble Court may also be further please to direct respondents no. 1 to 4 and 7 to fill the vacant post which still continue to exist by appointing petitioner no. 1 and other similarly place candidates on such vacant posts.” 2. Initially, there were two prayers but subsequently, prayer 2A was added by way of amendment, on amendment application being allowed. Learned Single Judge noted the case of the appellant to be that appellant no. 1 had typed more key depression than respondent no. 6. Appellant no. 1 and respondent no. 6 secured equal marks namely 135.50. As per Rules, when two persons secured equal marks, older one would be selected. As respondent no. 6 was older than appellant no. 1, he was selected. Learned Single Judge did not find any merit in the contention of the appellants and accordingly, dismissed the writ petition. 3. We heard Mr. B.K. Pal, Advocate for the appellants, Mr. C.S. Rawat, Addl. Chief Standing Counsel for the State of Uttarakhand, Mr. Prashant Khanna, Advocate for respondent no. 6 and Mr. Rajendra Dobhal, Sr. Advocate with Mr. Learned Single Judge did not find any merit in the contention of the appellants and accordingly, dismissed the writ petition. 3. We heard Mr. B.K. Pal, Advocate for the appellants, Mr. C.S. Rawat, Addl. Chief Standing Counsel for the State of Uttarakhand, Mr. Prashant Khanna, Advocate for respondent no. 6 and Mr. Rajendra Dobhal, Sr. Advocate with Mr. Shubhang Dobhal, Advocate for respondent no. 7. 4. Learned counsel for the appellants would submit that actually, appellant no. 1 had typed more than 5000 key depression and selection must be made on the basis of merit. Action of the respondents is discriminatory and arbitrary and merit cannot be sacrificed by providing that when two candidates secured equal marks, then older must be selected. He would also submit that discretion cannot be exercised extraneously. He would further submit that actually, appellants have also amended the writ petition and sought prayer 2A, which according to him, is challenge to the provision itself. He would also rely on different judgments & orders passed by Hon’ble Apex Court and other High Courts. The first order, on which reliance is placed, passed in the case of Krishan Yadav Vs. State of Haryana reported in 1992 Supp. (2) SCC 118, which we notice is an interim order. Second is the judgment passed by High Court of Mysore reported in 1972 (1) Mys. LJ 563. The decision of the said Court involved challenge to the validity of the selection on the ground that there has been reservation for scheduled castes in excess of what should have been legitimately reserved for them. We do not see how it can assist the appellant’s case. Third is the judgment passed by learned Single Judge of Karnataka High Court reported in 1981 (3) SLR 270, which related to selection made to the post of English typist in Karnataka Public Service Commission. The contention there was that under the Rules there was no provision for holding typing test and if marks awarded in the typing test was excluded, petitioner would have secured more marks. Learned Single Judge took the view that there was no power to the Commission to hold typing test and it was contrary to the Rules made under Article 309, therefore, it could not be upheld. Fourth decision cited by learned counsel for the appellants is the judgment of Hon’ble Apex Court in Civil Appeal No. 7571 of 2011. Learned Single Judge took the view that there was no power to the Commission to hold typing test and it was contrary to the Rules made under Article 309, therefore, it could not be upheld. Fourth decision cited by learned counsel for the appellants is the judgment of Hon’ble Apex Court in Civil Appeal No. 7571 of 2011. This we notice essentially arose under the Right to Information Act. Hon’ble Apex Court proceeded to hold as under: “26. We however agree that it is necessary to make a distinction in regard to information intended to bring transparency, to improve accountability and to reduce corruption, falling under section 4(1)(b) and (c) and other information which may not have a bearing on accountability or reducing corruption. The competent authorities under the RTI Act will have to maintain a proper balance so that while achieving transparency, the demand for information does not reach unmanageable proportions affecting other public interests, which include efficient operation of public authorities and government, preservation of confidentiality of sensitive information and optimum use of limited fiscal resources.” 5. Per contra, Mr. C. S. Rawat, Addl. Chief Standing Counsel would submit that action was in terms of the advertisement and under the advertisement, it was mentioned that all those persons, who punched 5000 or more key depression per hour will be awarded 50 marks equally. 6. A selection for public employment must be held on pre announced and established norms. The advertisement in this case specifically provided that those, who punched 5000 or more key depression will be awarded 50 marks equally. Appellant no. 1 participated in the selection process. He was fully aware of the fact that even if he typed more than 5000 key depression, he would get only 50 marks. Therefore, the contention of the appellant that he punched more key depression than respondent no. 6 is totally irrelevant. Arbitrariness, illegality and injustice are not a matter, which are divorced from law. In fact, arbitrariness itself would necessarily occur, if norms announced are deviated from and violated. In other words, if the Authorities acted contrary to the advertisement and it attempted to give more marks to the appellant no. 1 on the basis that the punched more key depression than respondent no. 6, then it would be in clear breach of the terms of the advertisement. Therefore, we find absolutely no merit in the said contention. In other words, if the Authorities acted contrary to the advertisement and it attempted to give more marks to the appellant no. 1 on the basis that the punched more key depression than respondent no. 6, then it would be in clear breach of the terms of the advertisement. Therefore, we find absolutely no merit in the said contention. As far as criteria adopted that if two candidates secured equal marks, then candidate older in age would be placed in higher merit, it is a matter, which is governed by the Rules itself. If that is so, we cannot accept the case of the appellant that there is discrimination or discretion was exercised extraneously. Equally without merit is the contention that merit cannot be sacrificed, as the concept of merit is not an absolute concept. Merit is a matter which is to be judged in the context of rules, orders and advertisement. 7. Another contention of the learned counsel for the appellants is that appellant no. 2, father of appellant no. 1, sought information under the Right to Information Act regarding marks obtained but it was not disclosed. The contention of the appellants is that having typed more key depression than respondent no. 6, appellant no. 1 should have got more marks and we do not find any force in this contention, particularly when the facts have been brought on record by way of filing counter affidavit. In the counter affidavit, it is stated that appellant no. 1 and respondent no. 6 secured equal marks and as respondent no. 6 is older in age, he was selected. 8. An attempt was made, at stage of writ petition and that too by way of amendment to seek the prayer, sought in prayer 2A which we have already extracted. In our view, relief sought in prayer 2A cannot be granted having regard to the principle that appellant no. 1 has subjected himself to the procedure, which was announced under the advertisement and having been unsuccessful under the terms of the advertisement, which was followed by the Authorities, he cannot raise the question regarding the Rules. We notice that in fact, judgment of learned Single Judge does not reflect any argument based on validity of Rules. In fact, Rules, as such, are not challenged, even in the amended prayer 2A. 9. We notice that in fact, judgment of learned Single Judge does not reflect any argument based on validity of Rules. In fact, Rules, as such, are not challenged, even in the amended prayer 2A. 9. Learned counsel for the appellants would submit that there are further vacancies in the Department against which he can be appointed. When appellant no. 1 has been unsuccessful, he is not entitled to seek direction for appointment against existing vacancies. 10. In view of the above, the appeal fails and is dismissed.