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2020 DIGILAW 261 (UTT)

Ajeet Kumar v. State of Uttarakhand

2020-06-30

SHARAD KUMAR SHARMA

body2020
JUDGMENT : This Writ Petition is heard through Video Conferencing. 2. Before venturing into the legal controversy which engages consideration in the present writ petition, certain backdrop is necessarily required to be considered. At the relevant point of time when the controversy arose, the petitioner claims that he was working as Boring Technician after promotion granted to him on 24.02.2016, and was also simultaneously, holding an additional charge of Junior Engineer, though he was initially appointed as Assistant Boring Technician on 30.12.2006. 3. His contention and presumption is that since he had been given an additional charge of a Junior Engineer, it would be deemed that he possesses all the requisite qualifications which was required as per the rules, for the post of Junior Engineer, for the reason that he was assigned with the responsibility of additional charge of Junior Engineer, as he was selected and recommended for being appointed as such by way of deputation on the said post. 4. The respondents organization i.e. Uttarakhand Housing and Urban Development Authority (UHUDA), which is statutory authority in which initially, the petitioner was posted as Boring Technician after his promotion in Minor Irrigation Sub Division, Naugaon, District-Uttarkashi, where he pleads to have served in the said capacity for last over 13 years, and had an unblemished service records. 5. He submits that he after rendering an un-blemished service for last 13 years in the said capacity as Boring Technician, since he was holding a diploma in Civil Engineering besides also holding a certificate of Industrial Training Institute in Mechanical Engineering; he contends that he would be eligible to be considered for appointment as a Junior Engineer. He also submits that owing to his past service records, a selection committee was constituted on 30.12.2006 and after considering his credentials, he was recruited as a Boring Technician after promotion from the post of Assistant Boring Technician by an order dated 24.02.2016 and as a consequence thereto his pay scale too was revised from Rs.1900/- to 2400/-. 6. The respondents for the purposes of making a recruitment through deputation on the post of Junior Engineer, had issued an Advertisement No.1023/UDA-316/2017-18 dated 08.01.2018, wherein the proposal was invited for recruitment of the Junior Engineers on deputation as against 113 vacancies, which was available for recruitment on deputation. 6. The respondents for the purposes of making a recruitment through deputation on the post of Junior Engineer, had issued an Advertisement No.1023/UDA-316/2017-18 dated 08.01.2018, wherein the proposal was invited for recruitment of the Junior Engineers on deputation as against 113 vacancies, which was available for recruitment on deputation. The petitioner submits that he extended his candidature, to the said advertisement of 08.01.2018 and since he was holding a substantive post of Boring Technician, after his promotion on 24.02.2016 and also as an In-charge Junior Engineer on an officiating basis in the department since 30.11.2016, his application was duly scrutinized by the respondents and he was permitted to participate in walk in interview, as held by the respondents on 21.03.2018. The petitioner submits that after having participated in the selection for appointment as a Junior Engineer on deputation, he had come to know that a declaration was made by the Chief Engineer/Head of Department of Minor Irrigation on 10.08.2018 by way of making a correspondence thereof informing that on the culmination of process of selection in pursuance to the advertisement dated 08.01.2018, the intimation was parted that three Boring Technicians out of total who participated in interview on 21.03.2018, were found eligible to be considered for appointment, on deputation to the post of Junior Engineer. Consequently, he submits that after the culmination of the selection process a communication was also made for appointment of the selected Boring Technicians, on the post of Junior Engineers on deputation, but nothing concrete flowed nor any specific order of appointing the petitioner on deputation as Junior Engineer was ever issued. 7. Rather to the contrary, the respondents have come up with the case that if Annexure No.8 to the writ petition is considered rather i.e. Communication No.1361/UDA-316-2017-18 dated 22.02.2019, itself is taken into consideration, it is a communication which was made by Joint Chief Administrator to the Additional Secretary, Housing State of Uttarakhand, wherein an approval was being sought for the recruitment process, which was initiated in pursuance to the advertisement dated 08.01.2018. The respondents further submits that as would be apparent from the said communication dated 22.02.2019, that though the recommendation was made seeking an approval from State of Uttarakhand; but as such no recommendation was ever extended nor any approval was granted for recruitment of Junior Engineer on deputation, in pursuance to the selection which was concluded on the basis of the advertisement dated 08.01.2018. Even otherwise, also there is nothing brought on record by the petitioner to show that there was any communication made to him by the respondent authorities creating any right in his favour in pursuance to the conclusion of selection process which commenced due to the advertisement dated 08.01.2018 by issuance of any formal letter of appointment issued to him by the respondents, nor ever any letter was issued to the petitioner offering him to be appointed as a Junior Engineer on deputation. Even so much so that after the culmination of the process of selection, the petitioner himself too never pursued the matter further for being granted appointment on the post of Junior Engineer on deputation, if at all, he felt that he was one of the three candidates, who were working as Boring Technicians, had been considered for appointment as Junior Engineer on deputation. If that be a situation, once the petitioner himself has not pursued for issuance of an appropriate appointment letter according to his contention that he was appointed, and if the petitioner contends that he was selected then obviously, he ought to have had his recourses for redressal of his grievance of being appointed, which were if at all available to him in accordance with law for being issued with the appointment letter, which admittedly he never did nor made any effort thereafter the conclusion of interview on 21.03.2018. 8. The petitioner has filed this present writ petition on 17.12.2019, wherein the petitioner has sought the following reliefs:- “It is, therefore, most respectfully prayed that this Hon’ble High Court may kindly be pleased to allow this writ petition and to:- (i). Issue a writ, order or direction in the nature of certiorari to quash the impugned advertisement dated 02.12.2019, whereby the posts of Junior Engineer, including the post of Junior Engineer in District Level Development Authority Bageshwar have been advertised without giving appointment to the petitioner. (ii). Issue a writ, order or direction in the nature of certiorari to quash the impugned advertisement dated 02.12.2019, whereby the posts of Junior Engineer, including the post of Junior Engineer in District Level Development Authority Bageshwar have been advertised without giving appointment to the petitioner. (ii). Issue a writ, order or direction in the nature of mandamus commanding the respondents to consider the claim of petitioner for appointment on the post of Junior Engineer pursuant to his selection and recommendation made by the selection committee arising out of advertisement dated 8th January 2018. (iii). Issue any other order or direction which this Hon’ble Court may deem fit and proper under the facts and circumstances of the case. (iv). Award cost of the petition to the present petitioner.” 9. In fact, the relief which was sought for was by way of a challenge given to the advertisement dated 02.12.2019, as issued by the respondents for recruitment of Junior Engineers in District Level Development Authority, at Bageshwar The ground of challenge given by the petitioner to the said impugned advertisement dated 21.12.2019 was on the ground that:- 1. Since he had rendered an un-blemished service, on the post of Boring Technician and as he was an In-charge Junior Engineer, he ought to have been appointed as Junior Engineer on regular basis. 2. Owing to the qualification, which he held, petitioner contends that he deserved to be granted a regular status on the post of a Junior Engineer in the department of the respondent. 3. That on culmination of the process initiated in pursuance to the advertisement dated 08.01.2018, he ought to have been issued with the appointment order as of right. 4. His argument was though contrary to record that on the culmination of the selection an approval was also granted for the appointment of the recommendees of the selection process and hence, he should have been appointed a Junior Engineer. 10. The counsel for the petitioner, submits that till the respondents gave a final shape to the selection conducted in pursuance to the advertisement dated 08.01.2018, they ought not to have been resorted to issuing the impugned advertisement dated 02.12.2019, for appointment on deputation on the post of Junior Engineer. 10. The counsel for the petitioner, submits that till the respondents gave a final shape to the selection conducted in pursuance to the advertisement dated 08.01.2018, they ought not to have been resorted to issuing the impugned advertisement dated 02.12.2019, for appointment on deputation on the post of Junior Engineer. He submits that this act of issuing fresh advertisement it would be arbitrary because once he had been working as an In-charge Junior Engineer and he has participated in the selection, he had legal expectation to be appointed, having not done so the respondents would not be entitled to re-advertise the post, which otherwise was required to be filled by the petitioner, on culmination of selection by interview on 21.03.2018. 11. The contentions of the petitioner is being refuted by the learned counsel for the respondent no.2, Mr. Rahul Consul, who had specifically pleaded in the counter affidavit filed under the affidavit of the Joint Chief Administrator of respondent no.2, wherein he has specifically taken a plea in the counter affidavit to the effect that the selection process initiated in pursuance to the advertisement dated 08.01.2018, no final shape was given to the said selection, coupled with the fact that the petitioner since at that point of time was holding the post of Boring Technician, as would be apparent from his own application form when he applied for recruitment, he was not eligible even for applying to the post of Junior Engineer as advertised on 08.01.2018, the respondents have come up with the specific case that owing to the ineligibility of the petitioner even to apply as per rules, he was not entitled for the reliefs claimed in the writ petition, as he was not even eligible to apply for being considered for appointment. 12. The respondents in the counter affidavit further submitted that argument extended by the learned counsel for the petitioner that on the culmination of the selection process when, three Boring Technicians were selected, no formal approval of recruitment, as such was ever provided by the competent superior authority, which could have enabled the issuance of letter of appointment to the petitioner. The respondents in the counter affidavit further submitted that argument extended by the learned counsel for the petitioner that on the culmination of the selection process when, three Boring Technicians were selected, no formal approval of recruitment, as such was ever provided by the competent superior authority, which could have enabled the issuance of letter of appointment to the petitioner. In fact, they submit that the petitioner was not eligible, hence he was not considered for appointment and even if that be so, the selection process is of 08.01.2018, no approval was granted, hence, no right accrued to the petitioner to obstruct the subsequent selection, which was to held by respondents on the basis of impugned advertisement. 13. After having heard the counsel for the parties and after giving a thoughtful consideration to the pleadings raised by the parties to the writ petition, this Court is of the view that no legal enforceable right has ever accrued to the petitioner to enable him legally to give a challenge to the recruitment process being initiated by the respondents in pursuance to the impugned advertisement dated 02.12..2019, because apparently, the advertisement itself did not suffer from any legal error as such nor it has been argued as such by the counsel for the petitioner from said prospective. The challenge given by the petitioner to the said advertisement was limited on the ground that he had a right of a prior consideration for being appointed as Junior Engineer on deputation, on the premise that he had participated in the earlier selection held in pursuance to the advertisement of 08.01.2018, hence, a right has accrued in his favour and the said vacancy against which he had applied, he was already considered for appointment, the same could not have been re-advertised by the respondents by the impugned advertisement dated 02.12.2019. These arguments are not acceptable by this Court for the reason being that even it is presumed that petitioner did participate in the process of recruitment of Junior Engineer by deputation in pursuance to advertisement dated 08.01.2018, it is settled law, that mere participation in the selection process, or even for that matter even after being included in the select list on culmination of process of selection, no legal enforceable right accrues in favour of a person or candidate selected to claim for an appointment as of right. Hence, his ground of challenge to the advertisement that, he had earlier participated in the selection of 2018 and was not granted appointment, since it is not creating any legal right in favour of petitioner to be enforced in a writ jurisdiction, the said argument is not accepted. Furthermore, there is another logic, for this Court for not to accept the arguments of the counsel for the petitioner, that even if it is presumed that he did participate in the selection or his name fell amongst those three Boring Technicians, who were recommended to be selected, the petitioner since sat over the issue and had not legally enforced it, and had voluntarily let the time lapse, after the expiry of one year period, even his placement in the select list will have no bearing to be enforced by way of relief no.2 in the writ petition at a much belated stage. It is also apparent from record that the petitioner had never pursued the matter any further after the so called alleged selection of his, in pursuance to the advertisement dated 08.01.2018. Meaning thereby, the petitioner himself has voluntarily renounced or waived off his right for being appointed in pursuance to aforesaid alleged selection, which at this stage under the garb of giving a challenge to the subsequent advertisement issued by respondent, which is impugned in the writ petition dated 02.12.2019, he cannot now enforced his right of being recruited after the expiry of the period of select list from the date of his selection. 14. Also in view of the argument of learned counsel for the respondents to the effect that the so called plea made by the petitioner making it as a foundation to derive his rights to the effect that he was recommended to be appointed, since it has been argued to the satisfaction of this Court, by the respondents counsel that the recommendations thus, made was never approved by the competent State Authority and hence, mere a recommendation being made will yet again not confer any right, because there was no approval as such granted to the selection to the petitioner’s appointment by the competent authority. Hence, since there is no apparent legally enforceable right and even otherwise, also the relief is barred by law, the writ petition lacks merit and the same is accordingly, dismissed. 15. However, there would be no order as to cost.