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2024 DIGILAW 495 (UTT)

Girish Prasad Maithani v. State of Uttarakhand

2024-07-20

PANKAJ PUROHIT

body2024
JUDGMENT : PANKAJ PUROHIT, J. 1. By means of this writ petition, petitioner has sought indulgence of this Court for quashing of the impugned order dated 22.07.2017 passed by respondent no. 2 (annexure no. 12 to the writ petition) whereby representation of petitioner, submitted pursuant to the order passed by the Coordinate Bench of this Court dated 06.07.2017, was rejected and further a writ of mandamus directing respondpent no. 2 to appoint the petitioner on the post of Instructor Mechanic (Motor Vehicle & Driving) towards the vacancy arose due to cancelation of selection of Ajay Kumar Arya and Saurabh Uniyal, who were not eligible to be selected on the post. 2. Facts of the case, shorn off unnecessary details, are that pursuant to an advertisement dated 20.06.2010, petitioner submitted his candidature for the post of Instructor Mechanic (Motor Vehicle & Driving) with the respondent. It is the case of the petitioner that petitioner could not be selected for the reason that in the select list, two persons, namely, Ajay Kumar Arya and Saurabh Uniyal were found place in the select list wrongly and due to this reason name of the petitioner was thrown out of the select list. 3. It is the contention of learned Senior Counsel for the petitioner that Ajay Kumar Arya has wrongly been selected for the reason that he was not having Mathematics as a subject in High School while Saurabh Uniyal was not having the certificate of N.T.C/N.A.C. These are essential conditions for a candidate to be successful for the post of Instructor Mechanic (Motor Vehicle & Driving). Since the petitioner could not figure in the select list and was refused appointment, he preferred writ petition being Writ Petition (S/S) No. 396 of 2014, which came to be decided by the Coordinate Bench of this Court vide order dated 24.03.2014 whereby petitioner was given an opportunity to file representation and respondent no. 2 was directed to decide the representation of the petitioner within the stipulated period. Petitioner submitted judgment and order dated 24.03.2014 alongwith forwarding letter dated 09.04.2010 to respondent no. 2 and requested to give him appointment on the post of Instructor Mechanic (Motor Vehicle & Driving) in the respondent-department, pursuant to the aforesaid advertisement. The said representation of petitioner was rejected by respondent no. Petitioner submitted judgment and order dated 24.03.2014 alongwith forwarding letter dated 09.04.2010 to respondent no. 2 and requested to give him appointment on the post of Instructor Mechanic (Motor Vehicle & Driving) in the respondent-department, pursuant to the aforesaid advertisement. The said representation of petitioner was rejected by respondent no. 2 vide order dated 06.05.2014 (Annexure No. 10 to the writ petition) stating therein that petitioner was not one of the selectee out of the 18 candidates selected on the said post, therefore, there is no justification to issue appointment letter to the petitioner. 4. Feeling aggrieved by the rejection order dated 06.05.2014, petitioner moved this Court by filing another Writ Petition No. 1115 of 2014, which came to be decided by this Court vide order dated 07.06.2017 and after discussing the case of the petitioner and respondents in detail, the Coordinate Bench of this Court has been gracious enough to direct respondent no. 2-Direcotor, Employment and Training, Uttarakhand to take decision on petitioner’s claim for appointment based on his performance in aforesaid selection. 5. Again petitioner has to make the same prayer as the decision has been taken by respondent no. 2 and claim of petitioner was again rejected vide decision dated 22.07.2017, which is now, impugned in this writ petition. 6. It is contended by learned counsel for the petitioner that in view of the terms and condition of the advertisement i.e. Annexure no. 2 to the writ petition, the candidate for the post of Instructor Mechanic (Motor Vehicle & Driving) must possess High School with a subject Mathematics and further the candidate must possess the N.T.C/N.A.C certificate. 7. The attention of this Court was drawn to the advertisement wherein essential qualification has been given for the post of Instructor Mechanic (Motor Vehicle & Driving). For the post from Serial Nos.1 to 15, educational qualification has been given and according to which educational qualification is Intermediate pass but in High School there must be Science and Mathematics. 7. The attention of this Court was drawn to the advertisement wherein essential qualification has been given for the post of Instructor Mechanic (Motor Vehicle & Driving). For the post from Serial Nos.1 to 15, educational qualification has been given and according to which educational qualification is Intermediate pass but in High School there must be Science and Mathematics. Relevant portion of the essential qualification as given in the advertisement, is quoted herein-below: ^^vfuok;Zrk vgZrk%& ¼Áek.k&i= /kkjd½ ¼d½ 'kSf{kd vgZrk,sa & b.VjehfM,V mRrhZ.k ijUrq gkbZLdwy foKku ,oa xf.kr fo"k;ksa ls mRrhZ.k fd;k gksA ¼[k½ Ákfof/kd vgZrk,sa & lEcfU/kr O;olk; esa U;wure 60 Áfr'kr vadksa lfgr jk"Vªh; O;olkf;d Áek.k i=@jk"Vªh; f'kf'k{kqrk Áek.k i=A ¼x½ ,d o"kZ dk lhŒVhŒvkbZŒ Áek.k i=A ¼?k½ vuqHko&Áf'k{k.k vof/k dks lfEefyr djrs gq, de ls de ikap o"kZ dk vuqHko tks fdlh jkT; ljdkj@lkoZtfud Áfr"Bku [;kfr ÁkIr futh foHkkx vFkok Áfr"Bku dk losru gkssA vuqHko Áek.k i= layXu fu/kkZfjr Ák:Ik ^n^ ,oa ^;^ ij gh ekU; gksaxsaA^^ 8. It is further contended by learned counsel for the petitioner that petitioner has those qualifications and he has passed Intermediate with Science and Mathematics as subject and there was no impediment for selecting him in the select list but due to the selection of such persons, who were not having the eligibility, petitioner was thrown out of the selection process. It is contended by learned counsel for the petitioner that in the merit list, petitioner’s name found place at Serial No. 170 and that of the persons, who have been ousted at Serial No. 107 and 67. Finally, a list of 23 eligible candidates of the post of Instructor Mechanic (Motor Vehicle & Driving) was prepared and in that list name of the petitioner found place at Serial No. 18. Thereafter the department prepared the select list, in which name of petitioner was ousted and two persons, namely, Ajay Kumar Arya and Saurabh Uniyal were inducted, who, according to learned counsel for petitioner, were not qualified for appointment as they did not fulfill the requisite essential qualification. It is further contended by the petitioner that if these two persons were not included in the final select list, the name of the petitioner would have come within the zone of consideration for appointment. 9. A counter affidavit has been filed by respondent no. 2, in which, in Para 5 of the counter affidavit, it is stated that respondent no. 9. A counter affidavit has been filed by respondent no. 2, in which, in Para 5 of the counter affidavit, it is stated that respondent no. 2 had given appointment to 14 General category and 01 SC Category candidate out of 18 candidates of the list, i.e. Annexure 4 to the writ petition. However, subsequently, some of the candidates having higher marks moved to this Court by filing the writ petition on the ground that they have secured higher marks than the last selected candidate in the select list and were also having driving license of heavy motor vehicle but they were excluded from the select list by the selecting body/respondent no. 3 and they were entitled to be given appointment. After passing of the Court’s order in various writ petitions, number of which have been mentioned in Para 5 of the counter affidavit, the select list has been revised and thereafter the appointment has been given to all the 23 candidates of the earlier list. In Para 7 of the counter affidavit it has also been stated that entire list was considered and name of Ajay Kumar Arya (not having Mathematics in High School Examination) and Saurabh Uniyal (having overlap of experience) have been ousted and eight candidates have been selected from the select list, as per direction of Hon’ble Court since having better marks than the last selected candidate Mr. Bhagwat Saran Pandey, who secured 35 marks; the advertised posts were duly fulfilled and thereby there did not exist any vacancy or even in the select list being Annexure 4 to the writ petition, name of the petitioner did not exist and while considering all candidates marks, present petitioner is on the lower side since having secured only 31 marks. Accordingly present petitioner neither being in select list nor having higher marks than the last candidate of general category shown as per Annexure 4 was not entitled to get appointment by way of instant writ petition. 10. A counter affidavit has also been filed by the selecting body i.e. respondent no. 3., in that counter affidavit, the list forwarded to the selecting body of 23 candidates, out of whom, the appointment is to be given, on the basis of which result was directed to be declared, has been annexed. 11. 10. A counter affidavit has also been filed by the selecting body i.e. respondent no. 3., in that counter affidavit, the list forwarded to the selecting body of 23 candidates, out of whom, the appointment is to be given, on the basis of which result was directed to be declared, has been annexed. 11. A rejoinder affidavit as well as the supplementary rejoinder affidavit has been filed by the petitioner, in the supplementary rejoinder affidavit a document dated 07.01.2014 has been annexed as Annexure 1 to the supplementary rejoinder affidavit whereupon it is argued by learned Senior Counsel Mr. Rajendra Dobhal, that only 17 posts of general category candidates were advertised for the post of Instructor Mechanic (Motor Vehicle & Driving). The last man, selected, under the general category, was Bhagwat Saran Pandey, who secured 35 marks as against that the petitioner secured 31 marks and if two persons have been excluded by the respondent-department, petitioner would automatically fall within the zone of consideration for appointment as general candidate for the reason that none of the candidates in the merit list from Serial No. 148 to 169 have L.M.V. and H.M.V. driving license and petitioner, who is at Serial No. 170, is the next man in merit list, who is fully eligible too. 12. It is contended by learned Standing Counsel for the State that appointment have been given to eight general category candidates pursuant to the order dated 24.06.2013 passed by the Coordinate Bench of this Court, therefore, no is vacancy left out for accommodating the petitioner. Learned Standing Counsel vehemently argued that selection process has been exhausted subsequent to the filing of the writ petition and, therefore, petitioner cannot be allowed to be given appointment at this stage. 13. So far argument, which is contended by learned Standing Counsel for exhaustion of the selection process, is concerned, the said submission holds no water because petitioner has pursued his remedy before this Court by filing three rounds of litigation and only for the reason, time has elapsed, the valuable right of the petitioner cannot be denied. Although there was no interim order in favour of the petitioner. But in all writ petitions filed by the petitioner, the respondents were directed to correct the mistake. The petitioner cannot be deprived of his right of appointment due to fault of the respondent/State. 14. Although there was no interim order in favour of the petitioner. But in all writ petitions filed by the petitioner, the respondents were directed to correct the mistake. The petitioner cannot be deprived of his right of appointment due to fault of the respondent/State. 14. The argument, which has been advanced by learned Standing Counsel for State does not sound good as the vacancies which were created after ousting of Ajay Kumar Arya and Saurabh Uniyal, petitioner should have been accommodated against those vacancies. The valuable right of the petitioner, has been defeated by the arbitrary and unreasonable action on the part of the respondent/State. 15. Having considered the rival contention of the parties and having gone through the entire brief in great detail, this Court is of the view that petitioner has illegally been denied his valuable right of appointment on the post Instructor Mechanic (Motor Vehicle & Driving) and, therefore, the petitioner is entitled to get the appointment on the said post. 16. Accordingly, the writ petition is allowed. The order dated 22.07.2017 passed by respondent no. 2, Annexure 12 to the writ petition, is hereby quashed. A mandamus is issued to respondent no. 2 to immediately issue appointment letter to the petitioner pursuant to the advertisement dated 20.06.2010 as early as possible, but not later than a period of six weeks from the date of production of certified copy of this judgment after creating a supernumerary post, if there is no vacancy on post of Instructor Mechanic (Motor Vehicle & Driving). 17. It is made clear that petitioner shall not be entitled for arrears of any salary during which he has not served, at the same time it is directed that petitioner shall be entitled to get all notional benefits including pay and seniority and other consequential benefits. No order as to cost.