Research › Search › Judgment

Uttarakhand High Court · body

2022 DIGILAW 235 (UTT)

Anjali Mishra v. State of Uttarakhand

2022-07-29

SHARAD KUMAR SHARMA

body2022
JUDGMENT : The brief facts, which are the subject matter of consideration, in the present writ petition are, that respondent No. 4, i.e. the Agency conducting the selection process and had issued an advertisement on 23rd February 2014, thereby advertising the posts, to be filled-in for the post of Assistant Teacher L.T. Grade in the pay-scale of Rs. 9300-34800, carrying a grade-pay of Rs. 4600/-. 2. In pursuance to the advertisement thus issued, the petitioner claims to have extended her candidature, having found herself to be suitable as per the conditions of the advertisement and she had participated in the selection process and was considered, as against the post, which was made available for Assistant Teacher L.T. Grade (Arts). 3. After scrutinisation of her testimonials, she was issued with an Admit Card, and allotted with a Roll No. 590707222, and the consequential examinations, in pursuance to which the written examination was conducted; by way of an objective types of question papers, she participated in the process, which was held on 29th March 2015. 4. On culmination of the process of selection, which was conducted on 29th March 2015, the result of the same was declared on 19th April 2016, and the petitioner in the same was declared to be a selected candidate, for the aforesaid examination. Consequence to her inclusion of the name in the select list, she was called-upon to participate in the subsequent counseling, which was held on 24th April 2016, but the petitioner had been, later on, held to be non-suited to be granted with an appointment, in view of the subsequent corrigendum, which was issued on 25th May 2014, drawing an embargo of the implications of the provision to sub Rule 4(1) of the Rules called as “Uttarakhand Public Service Commission (within the purview of Public Service Commission and outside the purview of Public Service Commission (Recruitment on Group C Post) Rules 2010. 5. As per the said Rules of 2010, Rule 4 had laid down an embargo, that for the purposes of making a candidate eligible to participate in the process of selection, as per the procedure prescribed, under the Rules of 2010, it had mandated, that a candidate has had to be registered with the employment exchange of the State of Uttarakhand. As per the said Rules of 2010, Rule 4 had laid down an embargo, that for the purposes of making a candidate eligible to participate in the process of selection, as per the procedure prescribed, under the Rules of 2010, it had mandated, that a candidate has had to be registered with the employment exchange of the State of Uttarakhand. It was due to the said embargo of Rule 4(1), that the petitioner was later on determined to be non-suited to be granted with the appointment, though she stood selected and her name was included in the select list. Hence, she preferred the present writ petition, challenging the vires of Rule 4(1) of Rules of 2010, and also prayed for quashing the implications of Government Order dated 10th February 2014, and the condition of the advertisement, as it was contained under Rule 2(1) of the advertisement dated 22nd April 2014. 6. When the writ petition was heard at admission stage, considering the arbitrary implications of Rule 4(1), and the conditions of the advertisement, as provided under clause 2(1), the coordinate Bench of this Court, on 20th June 2016 has passed an interim order to the following effect, which is extracted hereunder:- “Meanwhile, one post of Assistant Teacher L.T. Grade (Arts) shall be reserved for the petitioner and she shall be allowed to participate in the ongoing counseling. However, her candidature will be provisional and subject to final decision of this writ petition.” 7. The effect of the interim order dated 20.06.2016, was that, one post, which was available to be filled-in for the post of Assistant Teacher L.T. Grade (Arts), was reserved for the petitioner and was made, as a subject to a final decision of the writ petition. 8. When the matter was taken up today, the learned counsel for the petitioner had submitted, that the provisions contained under Rule 4 (1), as introduced by the Rules of 2010, would be violative of Article 14 to be read with Article 16 of the Constitution of India, as such, a restriction of mandatory registration, with the employment exchange within the State, cannot be inserted to disable or disentitle a person for being considered for appointment as against the public post, falling to be falling in a public domain of appointment of the eligible candidates. 9. 9. The implications, as to whether such type of an artificial restriction, of mandatory registration, with the employment exchange, was an aspect was required to be incorporated, which was considered by the Division Bench of this Court in its judgment rendered in Special Appeal No. 932 of 2018, Uttarakhand Subordinate Service Selection Commission Vs. Prashant Kumar and others, and the Division Bench, in its judgment dated 15th December 2018, while making reference to the principles laid down by the Hon’ble Apex Court in the judgment of Pradeep Jain Vs. Union of India, as reported in 1984 (3) SCC 654 , and as that of the ratio laid down in the judgment as reported in 2002 (6) SCC 562 , Kailash Chand Sharma Vs. State of Rajasthan, and the judgment of the Telangana Judges Association and Another Vs. Union of India and others as rendered in Writ Petition (Civil) No. 85 of 2015, decided on 3rd October 2018. The Division Bench of this Court, in the judgment dated 5th December 2018, had ultimately arrived at the following conclusions:- “11. Admittedly, no such law has been made by Parliament, with respect to the State of Uttarakhand, under Article 16(3) of the Constitution of India. In the absence of any such law, prescription of residence in the State as a condition for appointment is ultra vires Article 16(2) of the Constitution of India, and is illegal and invalid. 12. In any event prescription of compulsory registration with the employment exchange, or the name of the candidate to be sponsored by the employment exchange, for being considered for appointment to public posts has been held by the Supreme Court, in the judgments referred to hereinabove, to be illegal. 13. We are, therefore, of the view that the learned Single Judge was justified in holding that imposition of such a condition was illegal. To the extent the learned Single Judge had so declared, in the order under appeal, we see no reason to interfere. The fact, however, remains that, by the time the learned Single Judge allowed the writ petition on 20.07.2018, the entire process of selection was completed; and the Commission had also sent its recommendations more than 8 months prior thereto on 13.11.2017 itself. In such circumstances, the question of the respondent-writ petitioner’s candidature now being considered, for appointment to the post of X-ray Technician, separately would not arise. In such circumstances, the question of the respondent-writ petitioner’s candidature now being considered, for appointment to the post of X-ray Technician, separately would not arise. The order under appeal, to the limited extent that the Commission was directed to accept the application of the respondent writ petitioner and consider him for appointment to the post of X-ray Technician, within a period of ten weeks from the date of the order, is set aside. In all other aspects, the order under appeal is affirmed.” 10. As a consequence of the decision rendered by the Division Bench of this Court, it had been observed that the stipulations providing of a mandatory registration of a candidate, with the employment exchange happens to be ultra-vires to the provisions contained under Article 16(2) of the Constitution of India and hence it was held to be illegal and invalid. The said judgment is still sustaining in the eyes of law. However, the exception has been attempted to be carved out by the learned Brief Holder, that when the petitioner had participated in the process of selection she participated despite of being conscious of stipulations provided under clause 2(1) of the advertisement, she cannot be permitted to be revert back, after having submitted to the terms of the advertisement to question the validity of Rule 4(1), along with the conditions of the advertisement provided under clause 2(1), in order to bring herself within the zone of consideration for being appointed, after having been declared as successful in the selection process under clause 2(1) which stood culminated on 19th April 2016. 11. This Court is of the view, that when by a judicial dictum of the Hon’ble Apex Court, as well as that of the Division Bench of this Court, the validity of Rule 4 (1) has already been tested and the basic principle of imposing a restriction of a compulsory registrations with the Public Service Commission of a State, has been held to be ultra vires that goes to the very genesis of the validity of the condition provided under clause 2(1) of the advertisement and merely because of the fact that the candidate, has participated in the selection, it will not amount to be a submission to an illegality. Submission to an illegality cannot be a proposition, which could be permitted to be canvassed and enforced by the learned Brief Holder merely on the pretext that the petitioner had participated in the selection process during the subsistence of the conditions, provided under clause 2 (1) of the advertisement. 12. Further elaboration on the validity of the Rule 4(1), is not require to be ventured into by this Court in view of the Division Bench, which has been extracted above, owing to the aforesaid, since it is not in controversy, that the petitioner was declared selected on 19th April 2016, since it's not in controversy, that she was eligible to be appointed for other than the condition provided under clause 2(1) of the advertisement, since it is not in controversy that her rights, when she was rendered to be incapacitated to join her services was due to the implications of Rule 4(1) of the Rules 2010, she filed a writ petition and the coordinate Bench of this Court has protected her rights by an interim order dated 20th June 2016, as extracted above, the writ petition would stand allowed and the petitioner’s eligibility would be considered to be that as it was existing on the date when her name was included in the select list i.e on 19th April 2016. 13. Hence, the writ petition would stand allowed. The relief No. 1, would stand granted in the light of the judgment of the Division Bench dated 5th December 2018, as rendered in Special Appeal No. 932 of 2018, and consequentially, a writ of mandamus is issued to the respondents to issue a letter of appointment to the petitioner, in pursuance to her name, which was included in the select list, as declared on 19th April 2016, and the restrictions as imposed by clause 2(1) of the advertisement dated 2nd April 2014 or that of Rule 4(1), which has already been declared to ultra vires will not create any embargo, as such, in issuing the letter of appointment to the petitioner, which was protected by the interim order passed by this Court. 14. The respondents are directed to do the needful within a period of six weeks from the date of presentation of the certified copy of this judgment.