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2018 DIGILAW 111 (UTT)

State of Uttarakhand v. Tara Dutt Dani

2018-03-16

K.M.JOSEPH, SHARAD KUMAR SHARMA

body2018
JUDGMENT : K.M. JOSEPH, J. We heard the learned counsel for the parties. 2. There is delay of 174 days in filing the appeal. After considering the grounds taken in the delay condonation application, delay will stand condoned. Accordingly, the delay condonation application stands allowed. 3. The Appeal is lodged by the respondents in the Writ Petition. The case of the writ petitioner in brief is as follows: i. Writ petitioner was appointed as a daily wage labour in 1990 in the Corbet Tiger Reserve, Ramnagar, District Nainital and since then he is continuously working as such. The service of the writ petitioner was not regularized, despite representation with reference to the judgment in State of U.P and others vs. Putti Lal rendered by the Hon’ble Apex Court. ii. On 31.10.2011, the third respondent (Director Corbett Tiger Reserve, Ramnagar District Nainital) in the writ petition issued advertisement, inviting applications from seasonal workers for appointment on 39 posts of Forest Guards. Being qualified, he applied. Physical test was conducted. A writ petition was filed being WPSS No. 306/2012. There was an interim order passed on 16.3.2012, directing that the result of the recruitment of forest guard shall abide by decision of the writ petition. However the appointment was stopped. Though the advertisement was for 39 posts, but in compliance of the interim order, the respondents filled up only 29 posts. As far as appointments of 10 candidates are concerned, it was directed that appointment may be made according to the merit position and that the same will abide by the result of the application filed in Writ Petition No. 306/2012. But despite that, respondents granted appointment only on 29 posts. It is alleged in paragraph 13 of the writ petition as under: “13. That as per the result declared by the respondent the petitioner was at serial no. 29 and he obtained total 49.75 marks, if in the total 39 post would have been granted appointment as per the merit, the petitioner must have been appointed on the post of forest guard. For the kind perusal of this Hon’ble court a true copy of the merit list of the written examination dated 02.5.2013 is being filed herewith and marked as Annexure no. 5 to this affidavit.” iii. For the kind perusal of this Hon’ble court a true copy of the merit list of the written examination dated 02.5.2013 is being filed herewith and marked as Annexure no. 5 to this affidavit.” iii. 10 posts were not filled up only because of the interim order passed by the Court on 16.3.2012 though it was vacated later on 15.04.2013 by the Court. All the writ petitioners in Writ Petition No. 306/2016 (S/S) were granted appointments in the subsequent selection process in the respondent department, their claim in Writ Petition No. 306/2012 (S/S) became infructuous. Paragraph-18 of the Writ Petition reads as under: “18. That at present 10 post of the forest guard are still vacant in pursuant to the aforesaid advertisement dated 31.10.2011 and the petitioner had successful passed all the tiers of the examination held by the respondent and if the respondent had not been stopped the appointment in pursuant to the interim order passed by this Hon’ble court to the petitioner would have been appointed on the post of forest guard in pursuant to the advertisement dated 31.10.2011 along with other selected candidate.” 4. There is no litigation now pending. The Writ Petition 306/2016 (S/S) has been dismissed by this Court on 21.10.2016, as withdrawn and as such the respondents are bound to grant appointments on rest of the 10 posts of the Forest Guard, which was stopped due to the pendency of the writ petition. 5. Writ petitioner thereafter moved (Annexure-7) representation and approached this Court seeking a direction by way of mandamus to grant appointment on the post of Forest Guard pursuant to the advertisement dated 31.10.2011. 6. A counter affidavit was filed by respondent no. 3. Therein, it is inter alia stated that as against total 39 vacancies, 18 were unreserved, 10 were reserved for Scheduled Caste & 4 vacancies were reserved for Scheduled Tribe and 7 vacancies were reserved for OBC. Thereafter, inter alia, it is stated that writ petitioner also participated in the examination and was placed at Sl. No. 29 of the merit list, but did not find place in select list and therefore, could not be selected and given appointment. 7. Thereafter, inter alia, it is stated that writ petitioner also participated in the examination and was placed at Sl. No. 29 of the merit list, but did not find place in select list and therefore, could not be selected and given appointment. 7. It is further stated that the recruitment process was initiated according to the provisions of Uttar Pradesh Subordinate Forest Service Rules, 1980 (Adaptation and Modification order 2002) according to the merit, but petitioner did not find any place in the select list and therefore could not be selected. 8. In regard to paragraph-13 of the Writ Petition, which we have already extracted, the response of the respondents in paragraph 11 and 14 of the counter affidavit is as follows: “11. That the contents of para 13 of the writ petition are wrong and denied. It is submitted that although the petitioner was placed at serial no. 29 of the general category candidates but only 14 posts were to be filled by general category candidates according to the roster and therefore the petitioner could not find place in the select list and therefore did not given appointment on the post of forest guard.” 14. That in reply to the contents of para 18 to 21 of the writ petition it is submitted that in compliance to the order dated 14.04.2013 passed by the Hon’ble High Court 10 posts were kept vacant for the petitioners. At that time the Uttar Pradesh Subordinate Forest Service Rules 1980 were in existence and the selection procedure was to be made according to those rules and at present the Subordinate Forest Service Rules 2016 are in existence and the respondent no. 3 is not appointing authority for post of forest guard. Therefore 10 posts which are kept vacant would be filled according to the provisions of new rules.” 9. Petitioner chose not to file any rejoinder affidavit denying contents of counter affidavit filed by respondent. The learned Single Judge disposed of the writ petition as follows: “The petitioner was duly selected for the post of Forest Guard in pursuant of advertisement dated 31.10.2011. The appointment letter was not issued to the petitioner due to pendency of writ petition filed before this Court by unsuccessful candidates. The writ petition was withdrawn and despite that the petitioner has not been offered appointment. The appointment letter was not issued to the petitioner due to pendency of writ petition filed before this Court by unsuccessful candidates. The writ petition was withdrawn and despite that the petitioner has not been offered appointment. Accordingly, the writ petition is disposed of with the direction to the respondents to issue appointment letter to the petitioner in pursuance to the advertisement dated 31.10.2011 within a period of six weeks from today.” 10. We heard Mr. A.K. Bisht, learned Standing Counsel for the State/appellants and Mr. Ganesh Kandpal, Advocate for the respondent/writ petitioner. 11. Admittedly, there were 39 vacancies. If 29 vacancies are filled, 14 alone would be earmarked for the unreserved. Writ petitioner belongs to unreserved subcategory. According to him, he is at serial no. 29 in the merit list. In the Appeal Memorandum, in fact the merit list has been produced. Perusal of the same would reveal that before the appellants, there are 25 candidates belonging to the unreserved category. Even if all the 39 posts were filled up since only 18 posts are available for the unreserved category and as writ petitioner is at serial no. 29 and there were 25 candidates belonging to the unreserved category in the said list above him, even otherwise now he cannot aspire for being appointed even on the basis of advertisement which was issued in 2011 pursuant to which he has applied. Mr. Ganesh Kandpal would submit that many persons did not join and, if there is non-joining in terms of the waitlist that had been prepared as per the respondents, petitioner may have got appointment. 12. First of all, we notice that there is no such pleading available in the writ petition and we also notice that there was no rejoinder filed. We are in the year 2018. Select list was brought out in the year 2013. At this distance of time, we do not think it would be appropriate to remand the matter back for consideration of this aspect which is projected by Mr. Ganesh Kandpal. In such circumstances, the Appeal is allowed. The order passed by learned Single Judge is set aside. The Writ Petition will stand dismissed. There is no order as to costs.