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2019 DIGILAW 344 (UTT)

STATE OF UTTARAKHAND v. DEV RAJ

2019-05-16

R.C.KHULBE, RAMESH RANGANATHAN

body2019
JUDGMENT Ramesh Ranganathan, C.J. (Oral) Despite time having been granted, no counter-affidavit has been filed by the respondent-writ petitioner to the application seeking condonation of delay. Even before us Mr. Hem Chandra Joshi, learned counsel for the respondent-writ petitioner, does not raise any objection for the delay to be condoned. The delay in preferring the appeal is condoned, and the Delay Condonation Application is disposed of. 2. The respondent-writ petitioner filed Writ Petition (S/S) No.2563 of 2015 seeking a writ of certiorari to quash the impugned letter dated 19.11.2015 issued by the fourth respondent; a writ of mandamus commanding and directing the respondents to permit him to participate in the selection process for the post of Forest Guard as a departmental candidate; and a writ of mandamus commanding and directing the respondents to issue experience certificate/work certificate to the petitioner for participating in the selection process for the post of Forest Guard. 3. Facts, to the limited extent necessary, are that the appellants herein issued an advertisement for the post of Forest Guard and fixed the date for physical examination from 18.10.2015 to 20.10.2015; on his appearing in the physical examination, the petitioner was declared successful; however, no written examination was held thereafter; by proceedings dated 19.11.2015, the Deputy Director informed the petitioner that, in terms of the earlier proceedings dated 24.09.2015, his case for being considered for appointment as a Forest Guard could not be acceded to, as he did not fall within the category of a Seasonal Worker; and was therefore ineligible to be considered for appointment to the post of Forest Guard. 4. In the counter-affidavit, filed in the Writ Petition, the appellants-respondents stated that, according to the provision of the Uttarakhand (Uttar Pradesh Lower Subordinate Forest Rules, 1980) (Adaption and Modification Order, 2002) Amended Rule, 2007, a seasonal worker has been defined to be a person who has worked for 240 days' in each calendar year for a minimum period of three years; the petitioner did not fall within the definition of “Seasonal Worker"; and, as such, his candidature was cancelled by the Deputy Director by his proceedings dated 19.11.2015. 5. Questioning the order dated 19.11.2015, the petitioner filed Writ Petition (S/S) No.2563 of 2015. 5. Questioning the order dated 19.11.2015, the petitioner filed Writ Petition (S/S) No.2563 of 2015. This Court, in its interim order dated 16.12.2015, held that, purely in the interest of justice, the petitioner should be provisionally permitted to appear in the ongoing selection process of Forest Guard, which shall be subject to the final determination of the present writ petition. 6. While certain facts were not stated by the appellants in their counter-affidavit filed in the Writ Petition on 12.04.2016, in the Special Appeal, filed against the order passed by the learned Single Judge, the appellants have stated that, subsequently, Subordinate Forest Service Rules, 2016 (for short “2016 Rules") were made; in terms of the 2016 Rules, there is no reservation for Seasonal Workers to be appointed as Forest Guard; a requisition was sent to fill up the vacancies of the vacant post of Forest Guard by letter dated 24.01.2017; and, in compliance with the letter of the Principal Chief Conservator of Forest, the advertisement dated 25.09.2015 was cancelled by letter dated 16.02.2017 which was also published in various newspapers. 7. Failure of the appellants to refer to these facts in their counter affidavit dated 12.04.2016 is possible because the 2016 Rules were notified subsequent thereto on 27.10.2016 and the decision, to cancel the earlier advertisement dated 25.09.2015, was also taken thereafter on 16.02.2017. 8. As noted hereinabove, the erstwhile rules, in so far as appointment to the post of Forest Guard is concerned, stipulated that a Seasonal Worker, who had put in three years of service as such and had served for 240 days in each year, was alone eligible to be considered for appointment as a Forest Guard. The respondent-writ petitioner's candidature was rejected by the appellant-respondent, by the order impugned in the Writ Petition, holding that he did not fall within the definition of a Seasonal Worker, as he did not fulfill the prescribed service stipulated in the Rules to qualify as a Seasonal Worker. It is only because of the interim order passed by this Court, that the respondent-writ petitioner was permitted to participate in the process of selection. The order under appeal is of no avail since the only direction issued by the learned Single Judge was to complete the process of selection. It is only because of the interim order passed by this Court, that the respondent-writ petitioner was permitted to participate in the process of selection. The order under appeal is of no avail since the only direction issued by the learned Single Judge was to complete the process of selection. The respondent-writ petitioner's entitlement to be considered for appointment as a Forest Guard, and whether he satisfied the requirement of being a Seasonal Worker, was not even examined by the learned Single Judge in the order under appeal. 9. The mere fact an advertisement has been issued, and the candidate has been permitted to participate in the process of selection, does not confer on him any right to contend that the selection process should be completed and he should be appointed to the advertised post (Laxmibai Kshetriya Vs. Chand Behari Kapoor and Ors. (1998) 7 SCC 469 ; Shankarsan Dash Vs. Union of India (1991) 1 SCC 47; State of Bihar and Ors. Vs. Md. Kalimuddin and Ors. (1996) 2 SCC 7 ; and Punjab State Electricity Board and Ors. Vs. Malkiat Singh (2005) 9 SCC 22 ). In any event, even if, as has been directed by the learned Single Judge in the order under appeal, a regular process of selection is directed to be completed, that would be of no avail to the petitioner, for it is only if he is held eligible and qualified to be considered for selection as a Forest Guard, would the appellants then be obligated to consider his candidature for appointment to the post of Forest Guard. Since the respondent-writ petitioner's claim to be eligible to be considered as a Forest Guard has not been adjudicated by the learned Single Judge in the order under appeal, and the advertisement dated 25.09.2015 was itself cancelled by proceedings dated 16.02.2017, long before the order under appeal was passed (though this fact was not brought to the notice of the learned Single Judge), the order under appeal must be, and is accordingly, set aside. 10. Since the advertisement dated 25.09.2015 has itself been cancelled by proceedings dated 16.02.2017, no mandamus can be issued to the appellants directing them to complete the process of selection pursuant to an advertisement which has already been cancelled. 10. Since the advertisement dated 25.09.2015 has itself been cancelled by proceedings dated 16.02.2017, no mandamus can be issued to the appellants directing them to complete the process of selection pursuant to an advertisement which has already been cancelled. Suffice it to make it clear that the order now passed by us shall not disable the respondent-writ petition, if he so chooses, to challenge the proceedings dated 16.02.2017, cancelling the process of selection, in appropriate judicial proceedings. 11. The order under appeal is set-aside and the special appeal is disposed of. No costs.