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2022 DIGILAW 82 (UTT)

Jitendra Singh Bisht v. State of Uttarakhand

2022-04-08

RAVINDRA MAITHANI

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JUDGMENT : Ravindra Maithani, J. The challenge in the instant petition is made to the Government Order dated 21.12.2018, by which, the process for recruitment of Assistant Teacher (LT Grade) initiated pursuant to the advertisement dated 23.02.2014 has been stopped. The petitioners have also sought other directions for conducting counselling/verification of documents against the advertisement dated 23.02.2014. 2. The facts necessary to appreciate the controversy briefly stated are as follows. The respondent no.5, Uttarakhand Technical Education Board (for short, “the Board”) invited applications by an advertisement dated 23.02.2014 for appointment to the post of Assistant Teachers (LT Grade). The selection was to be conducted on 3089 vacancies. 10% horizontal reservation was made available to the candidates claiming the benefit of Uttarakhand Rajya Andolankari. It was subject to the final outcome of the Writ Petition (PIL) No.67 of 2011. The petitioners applied in response to the advertisement. A Written Examination was conducted by the Board. The Board declared result on 18.04.2016 on all vacancies in different subjects except the vacancies, which were earmarked under 10% horizontal reservation for Uttarakhand Rajya Andolankari. The selected candidates were invited for documents verification on various dates. After verification, the candidates were recommended. In all, 10 times this exercise was undertaken as hereunder:- Sl. No. Document Verification Date Number of Candidates invited Number of candidates selected 1. Round 1 22.04.2016 to 25.04.2016 2370 2045 2. Round 2 23.08.2016 and 24.08.2016 311 236 3. Round 3 10.01.2017 and 28.03.2017 110 59 4. Round 4 03.04.2017 and 17.04.2017 323 216 5. Round 5 26.05.2017 34 24 6. Round 6 11.01.2018 and 12.01.2018 165 110 7. Round 7 28.06.2018 to 30.06.2018 305 183 8. Round 8 06.09.2018 and 07.09.2018 138 74 9. Round 9 08.10.2018 64 35 10. Round 10 05.12.2018 29 11 3. It may be noted that initially the process for documents verification was not done with regard to the vacancies earmarked for the Uttarakhand Rajya Andolankari. This Court in its judgment passed in Writ Petition (S/S) No.398 of 2015, Manish Rawat vs. State of Uttarakhand and others, declared the horizontal reservation in favour of the Uttarakhand Rajya Andolankari as un-constitutional and ultra vires. Pursuant thereto, by a public notice dated 28.06.2018, the process for documents verification was also undertaken for the remaining 10% vacancies, which were otherwise earmarked for the Uttarakhand Rajya Andolankari. Pursuant thereto, by a public notice dated 28.06.2018, the process for documents verification was also undertaken for the remaining 10% vacancies, which were otherwise earmarked for the Uttarakhand Rajya Andolankari. It is thereafter, the documents verification process started from the 7th round onwards (from 28.06.2018 onwards). 4. The petitioner no.1 had applied for the post of Assistant Teacher (LT Grade) Maths; the petitioner no.2 applied for the post of Assistant Teacher (LT Grade) Science and the respondent no.3 applied for the post of Assistant Teacher (LT Grade) General Subject. They had secured 114.75, 105.75 and 100 marks respectively in their corresponding subjects. It is admitted case of the parties that after first documents verification report, the cut off marks reduced so as to call other candidates for documents verification. 5. It is the case of the petitioners that the Board did not make recommendation against all the advertised vacancies but, has made recommendation in piecemeal manner only against the vacancies, for which, suitable candidates were found. Suddenly, by virtue of a Government Order dated 21.12.2018, the process for recruitment of the Assistant Teachers (L.T. Grade) pursuant to the advertisement dated 23.02.2014 has been stopped. According to the petitioners, they are next in the list below the last selected candidates; the Government Order dated 21.12.2018 is not sustainable in the eyes of law because the same has been issued without appreciating the facts and application of mind. 6. On behalf of the State, the respondent no.2 has filed the counter affidavit. According to it, the Government Order dated 21.12.2018 is valid and sustainable. 7. The respondent no.5, the Board has also filed a separate counter affidavit. According to it, the respondent no.5 is merely a recruiting agency. It conducted the recruitment process. All the candidates could not been recommended due to absence of the candidates and nonjoining. By virtue of a Government Order dated 21.12.2018, the parent department had stopped the process. Accordingly, the respondent no.5 closed the selection/recruitment process for the post of Assistant Teachers (LT Grade). The parties have also filed the supplementary affidavits and the supplementary counter affidavits. 8. Heard learned counsel for the parties and perused the record. 9. Learned counsel for the petitioners would submit that the recruitment process has been wrongly aborted by the Government Order dated 21.12.2018. The parties have also filed the supplementary affidavits and the supplementary counter affidavits. 8. Heard learned counsel for the parties and perused the record. 9. Learned counsel for the petitioners would submit that the recruitment process has been wrongly aborted by the Government Order dated 21.12.2018. Learned counsel has raised the following points in his submissions:- (i) The Board called the candidates in 10 rounds for making recommendations. In the last round, total 29 candidates were called but, only 11 were recommended. It means, still there are vacancies. (ii) Merit list has not been prepared in accordance with the Rules. The Uttarakhand Subordinate Education (Trained Graduate Category) Service Rules, 2014 (for short, “the Rules”) provides for the procedure for preparing the select list. According to the Rule 15(6) of the Rules, the select list shall contain the names of the candidates 25% more than the vacancies. It is argued that against 3089 vacancies, total 2993 names have been recommended. 10. Learned counsel for the petitioners would also submit that last time, the candidates were called for documents verification on 05.12.2018 and list of selected candidates was forwarded on 21.12.2018. In view of Government Order dated 30.10.2006, the merit list may remain in force for a period of one year after its receipt. The Government Order dated 21.12.2018 has been issued on two grounds namely:- (a) That continuation of the recruitment process would be in violation of the Government Order dated 30.10.2006 and; (b) The recruitment agency has since been changed and entrusted to the Uttarakhand Subordinate Service Selection Commission (for short, “the Commission”). 11. It is argued that both these grounds are not correct for the following reasons:- (i) The Government Order dated 30.10.2006 inter alia provides that a select list shall remain in force for a period of one year from the date of its receipt. In the instant case, last recommendation was made by the Board on 21.12.2018. Therefore, the select list was to remain in force till 20.12.2019. (ii) The Commission was already entrusted with the task of recruiting teachers and which had already issued an advertisement on 03.01.2017 but, thereafter, 08 rounds of counseling was done and candidates were called for documents verification. Therefore, this may not be a ground to abort the selection process. 12. On the other hand, learned counsel for the Board would submit that the Board made recommendations against the vacancies. Therefore, this may not be a ground to abort the selection process. 12. On the other hand, learned counsel for the Board would submit that the Board made recommendations against the vacancies. The process has continued since 2014 but, due to non-availability of candidates recommendations against all the vacancies could not be made. It is argued that in the meanwhile, the Government Order dated 21.12.2018 was issued and accordingly, the Board stopped the process. 13. On behalf of the State, learned State counsel would submit that first recommendation was made by the Board after documents verification on 02.05.2016. It is argued that from that date the said period of one year has to be counted for the purposes of Government Order dated 30.10.2006. 14. Learned State counsel also raised the following points in his submission. (i) The Government Order dated 30.10.2006 is correct. (ii) The petitioners’ names were not recommended for selection. Even if, a person is selected, he cannot seek appointment as a right. (iii) If Court directs for appointment, the other persons may be effected, therefore, the petition is bad for non joinder of parties. 15. In support of his contention, learned State counsel has placed reliance on the principle of law, as laid down in the case of Andhra Pradesh and others vs. D. Dastagiri and others, (2003) 5 SCC 373 . In the case of D. Dastagiri (supra) the Hon’ble Supreme Court observed:- “In the absence of publication of select list, the selection process was not complete. Be that as it may, even if the selection process was complete and assuming that only select list remained to be published, that does not advance the case of the respondents for the simple reason that even the candidates who are selected and whose names find place in the select list, do not get vested right to claim appointment based on the select list. The State Government had a right to take a policy decision either to have prohibition or not to have prohibition in the State. If pursuant to a policy decision taken to impose prohibition in the State there was no requirement for the requirement of Constables in the Excise Department, nobody can insist that they must appoint the candidates as Excise Constables.” 16. If pursuant to a policy decision taken to impose prohibition in the State there was no requirement for the requirement of Constables in the Excise Department, nobody can insist that they must appoint the candidates as Excise Constables.” 16. The Court wanted to know from the learned State counsel, as to which is the select list because according to the respondent no.5, the Board, it had forwarded 10 select lists? The first select list was forwarded on 02.05.2016 and the last select list was forwarded on 21.12.2018. 17. Learned State counsel would submit that the first select list was issued on 02.05.2016 and the validity period shall be counted from that date. 18. On another query of the Court, as to whether the select list has been prepared as per Rules? Learned State counsel would submit that the select list was issued as per the advertisement. 19. Admittedly, an advertisement was issued inviting application for recruitment to the post of Assistant Teachers (LT Grade) on 23.02.2014. The advertisement was with regard to the direct recruitment quota. 10% of the posts, were kept reserved for the Uttarakhand Rajya Andolankari but, subsequently, these vacancies were also converted to the “General Category” pursuant to the decision of the Court. 20. In this matter, on 24.09.2021, the Court sought the following information:- “The question is as to how many persons were called for document verification on each date and as to how many of them were recommended for appointment? The answer should be given in tabular form, including the following details:- (i) Date of document verification. (ii) Number of candidates called for document verification (iii) Number of candidates recommended for appointment and date of recommendation to the Government For each date, the above information should be given and then consolidately respondent no.5 may also give a statement that out of requisition for 3089 vacancies, in all how many candidates were called, how many recommendations were made and how many posts remained unfilled, if any, and the reasons thereof?” 21. Pursuant to it, a supplementary affidavit dated 28.10.2021 has been filed on behalf of the respondent no.5 and the information was furnished, which has been consolidated in para 2 of this judgment. The respondent no.5, in his affidavit, has stated that, in fact, initially applications were invited against 2655 posts. The detail was enclosed as Annexure No.1 to his affidavit dated 28.10.2021. The respondent no.5, in his affidavit, has stated that, in fact, initially applications were invited against 2655 posts. The detail was enclosed as Annexure No.1 to his affidavit dated 28.10.2021. It reveals that against 60% direct recruitment, the total vacancies were 2655 but, against it, total 2993 recommendations were made. These are factual aspects. Petitioners are aggrieved by the Government Order dated 21.12.2018. By this Government Order, the process which was initiated pursuant to the advertisement dated 23.02.2014 has been stopped. As stated, there have been two grounds to do that, which are as follows:- (i) The continuance of process is violative of directions issued in Government Order dated 30.10.2006. (ii) The recruitment agency has been changed and it has been entrusted to the Commission. 22. It is settled law that the State is under no legal duties to fill up all or any of the vacancies. In the case of Shankarsan Dash vs. Union of India, (1991) 3 SCC 47 , the Hon’ble Supreme Court observed that, “Unless the relevant recruitment rules so indicate, the State is under no legal duties to fill up all or any of the vacancies. However, it does not mean that the State has the licence of acting in an arbitrary manner. The decision not to fill up the vacancies has to be taken bona fide for appropriate reasons. And if the vacancies or any of them are filled up, the State is bound to respect the comparative merit of the candidates, as reflected at the recruitment test, and no discrimination can be permitted.” 23. The Government Order dated 30.10.2006 has been filed by the State in its counter affidavit as Annexure No.3. According to it, the select list of the candidates as received from the Commission was to remain in force for a period of one year from the date of its receipt. 24. The question which arises for consideration is, as to when was the select list received in the instant case? 25. It is admitted that the Rules are applicable in the instant case. Rule 15 of the Rules provides for the procedure for recruitment for direct recruitment. Sub Rule (6) of it provides the procedure for preparing select list. According to it, the select list shall contain names of the candidates 25% more than the vacancies. 25. It is admitted that the Rules are applicable in the instant case. Rule 15 of the Rules provides for the procedure for recruitment for direct recruitment. Sub Rule (6) of it provides the procedure for preparing select list. According to it, the select list shall contain names of the candidates 25% more than the vacancies. It clearly means that if there are 100 vacancies, the select list shall contain names of 125 persons. In the instant case, the recruitment was entrusted to the respondent no.5, the Board. According to it, against 2655 vacancies, total 2993 names were recommended. This number is not 25% more than 2655. This select list, which was, in fact, sent in a phased manner (10 times) is not in accordance with Rule 15 Sub -Rule (6) of the Rules. 26. The respondent no.5, the Board called the candidates for documents verification and forwarded the select list to the department. Ten select lists were forwarded. The last list was forwarded on 21.12.2018. It may also be noted that even the total vacancies could not be filled up by the Board but, on the same date the Government Order dated 21.12.2018 was issued on the ground that the continuance of process would be violative of the Government Order dated 30.10.2006. This is factually incorrect because, as stated, according to the Government Order dated 30.10.2006, the select list was to remain in force for a period of one year from the date of its receipt from the Commission. In the instant case, the last select list was forwarded by the respondent no.5, the Board on 21.12.2018. 27. In view of the Rules (Rule 15(6)(3) the select list was to contain names of the candidates more than 25% of the vacancy. In the instant case, select list was not fully forwarded by the Board. The Government Order dated 30.10.2006 would come in the operation only if the select list is forwarded as per Rules. In the instant case, select list was not forwarded as per Rules. Therefore, the Government Order dated 30.10.2006 could not have been made applicable on it. The recruitment process could not have been stopped taking shelter of the Government Order dated 30.10.2006. Even otherwise, the last select list dated 21.12.2018 was to remain in force till 20.12.2019. In the instant case, select list was not forwarded as per Rules. Therefore, the Government Order dated 30.10.2006 could not have been made applicable on it. The recruitment process could not have been stopped taking shelter of the Government Order dated 30.10.2006. Even otherwise, the last select list dated 21.12.2018 was to remain in force till 20.12.2019. Therefore, on the ground of violation of Government Order dated 30.10.2006, the process for recruitment could not have been stopped on 21.12.2018. The Government Order dated 21.12.2018, to that extent is not correct. 28. The other ground for aborting the process for recruitment is that a new recruitment agency had been entrusted with the task of recruitment. In para no.26 of the petition, the petitioners have categorically stated that the Commission had already issued an advertisement for recruitment to the post of Assistant Teachers (LT Grade) on 03.01.2017. The State in its counter affidavit has not denied it. The respondent no.5, the Board has also not denied the assertion, as made by the petitioners in para no.27 of the petition. This fact is admitted. This is also admitted that after 03.01.2017, the respondent no.5, the Board called the candidates 8 times for the documents verification and made 8 recommendations. Therefore, it may also not be a ground to abort the process for recruitment pursuant to the advertisement dated 23.02.2014. On this ground also, the process could not have been aborted. 29. In view of the foregoing discussions, this Court is of the view that the Government Order dated 21.12.2018 is arbitrary, without any basis, the process for recruitment pursuant to the advertisement dated 23.02.2014 has been stopped arbitrarily without any reasonable cause. Therefore, the Government Order dated 21.12.2018 deserves to be quashed. Accordingly, the petition deserves to be allowed. 30. Now, the question is, as to what reliefs may be granted to the petitioners? Can the Court direct for their appointment? Or should the Court direct the respondents to complete the process for recruitment, which was initiated pursuant to the advertisement dated 23.02.2014. 31. Learned counsel for the petitioners would submit that there are still vacancies. It is argued that the respondent no.5, the Board, in the 10th round called 29 candidates but, recommended only 11 candidates. It means that there were 18 vacancies then. 31. Learned counsel for the petitioners would submit that there are still vacancies. It is argued that the respondent no.5, the Board, in the 10th round called 29 candidates but, recommended only 11 candidates. It means that there were 18 vacancies then. Thereafter, it is argued that in the year 2017, a notice inviting applications for appointment to the post of Assistant Teacher (LT Grade) was issued by the Commission but, it has been stayed by this Court. Therefore, it is argued by the learned counsel for the petitioners that there are still vacancies. 32. This Court does not intend to examine availability to the vacancies. This Court has examined the validity of Government Order dated 21.12.2018 and has held that it deserves to be quashed. In such a situation, the respondents may be directed to continue the process for recruitment of the Assistant Teachers (LT Grade) pursuant to the advertisement dated 23.02.2014. 33. The petition is allowed. 34. The Government Order dated 21.12.2018 is quashed. 35. The respondents are directed to continue the process for recruitment of the Assistant Teacher (LT Grade) pursuant to the advertisement dated 23.02.2014, issued by the respondent no.5. 36. The process for recruitment, as aforesaid, shall be conducted within a period of six months from today. The respondent no.5 shall forward the select list as per the provisions of Rule 15 of the Rules.