Pratap Dhali & Others ... vs State Of Uttarakhand & Others
2021 Latest Caselaw 2398 UK

           IN THE HIGH COURT OF UTTARAKHAND
                       AT NAINITAL
                    Writ Petition (S/S) No. 808 of 2021

Pratap Dhali & others                                                .......Petitioners

                                          Vs.

State of Uttarakhand & others                                   .....Respondents

Mr. Bhagwat Mehra, Advocate, for the petitioners. Ms. Anjali Bhargava, Additional CSC, for the State of Uttarakhand. Mr. Pankaj Purohit, Advocate, for the respondents.

Hon'ble Sharad Kumar Sharma, J (Oral)

The petitioners have been the aspirants for being considered for appointment, on the post of Assistant Agricultural Officer, Grade 3, with the respondent No.2. For the purposes of conducting the process of selection, for the aforesaid post of Assistant Agricultural Officer, Grade 3, the respondent No.4, i.e. Uttarakhand Subordinate Service Selection Commission, had issued an advertisement, and on the recommendation being made to it, requisitioning to resort to the process of selection, as against then 280 posts of Assistant Agricultural Officer, Grade 3, was issued.

2. In pursuance to the advertisement, which was issued on 02.08.2019, the petitioners contend that since they had fulfilled all the eligibility criteria, they had applied for the same, and in pursuance to the said advertisement, the process of selection was resorted to. Ultimately, the posts, which are proposed to be filled in, which were though initially notified to be 280 posts, has now been reduced to 150 posts only and hence their grievance is confined to, that non filling of 130 posts of Assistant Agricultural Officer, Grade 3, which are initially advertised is arbitrary and illegal and it cannot be sustained. Learned counsel for the petitioners further submits that the said reduction of the posts is without assigning any cogent reasons, and hence, it would be arbitrary and illegal.

3. Before answering to the question which has been raised by the learned counsel for the petitioners, this Court feels it apt to deal with the terms and conditions of the advertisement dated 02.08.2019, itself, particularly, where the opening clause of the advertisement puts a noting that, 'the vacancies can be increased or decreased'. Not only that, if clause 26 of the said advertisement is taken into consideration, it yet again reserves the rights of the respondents to increase or decrease the said posts, which were advertised for the purposes of the selection in pursuance to the advertisement dated 02.08.2019. Clause 26 of the advertisement is extracted hereunder:-

"26. bl foKfIr }kjk izkjEHk dh xbZ p;u izfdz;k esa inksa dh la[;k vko";drk ds vuq:Ik ?kVkbZ ;k c<+kbZ tk ldrh gSA ijh{kk dk ikB~;dze rFkk ijh{kk esa vH;FkZu ls lacaf/kr vU; "krsZ o ik=rk;sa Li'V gSA bUgsa HkyhHkkWfr ns[kdj vkosnu djsaA vkosnu&i= Hkj tkus dk vFkZ gS fd vH;FkhZ bu lHkh ckrksa dks Lohdkj djrk gSA blds ckn p;u izfdz;k ds vxys pj.kksa esa bu "krksZ] ik=rkvksa o ikB~;dzze vkfn ij vkifRr Lohdkj ugh dh tk;sxh rFkk bls p;u izfdz;k dks izHkkfor djus okyk le>k tk;sxkA"

4. The said selection process had culminated, and ultimately the respondents by virtue of the impugned order No.1143, dated 16.12.2020, had only recommended to fill in 150 posts, out of the total posts which were advertised i.e. 280 posts, and if the reasons are taken into consideration for reducing the number of posts, as it has been given in the impugned order dated 16.12.2020, it was on account of the departmental reorganization and unification of the various Departments, which were in process, as per the Directorate Agriculture, hence the proportion and need for filling the posts were reduced to 150 posts. The petitioners are raising their grievance as against the said decision which has been taken on 16.12.2020, alleging it to be a non plausible reasons and hence arbitrary.

5. First of all, the contention of the petitioners before this Court is that the act of reduction of the posts is arbitrary, this argument is untenable for the reason being that once the petitioners, were the aspirants in pursuance to the advertisement dated 02.08.2019, and they were simultaneously bound by the terms and

condition of the advertisement itself i.e. including Clause 26, of the advertisement dated 02.08.2019, which left it open for the respondents, to either increase or decrease the posts, which were, thus, advertised to be filled in by the selection process. The reason, which has been argued by the learned counsel for the petitioners, is that the cause of reducing the posts as given in the letter of 16.12.2020, is not sustainable, and it do not repose confidence to the propriety for the reasons, for the reduction of the number of posts is untenable, because it is always the choice of the employer that when in a particular set of contingencies, where a departmental reconfiguration is being ensuing and was in progress, the Department must have assess their probable requirement of number of posts which were required to be filled, in on the post of Assistant Agricultural Officer, Grade 3. Hence it cannot be said that the impugned order reducing the number of posts from 280 to 150 posts, was without any reasons because the configuration of the Department itself would or is likely to have reduced the necessity of employing 280 posts, as it was advertised in the advertisement dated 02.08.2019.

6. Learned counsel for the petitioners has submitted that an identical issue cropped up before the Coordinate Bench of this Court, and the Coordinate Bench in its judgment has deprecated the aspect of reduction of posts, which was advertised for selection.

7. With all due reverence, to the judgment relied by the learned counsel for the petitioners, I am not in agreement with the principles laid down by the said judgment and the same will not at all be attracted in the present set of circumstances; for the reason being that if the logic assigned in paragraph No.7 of the said judgment, is taken into consideration, in fact it has had to be read along with the logic, which was given in paragraph No.5 of the said judgment of the learned Single Judge of this Court. The reason given for the reduction of posts was on account of the bifurcation or allocation of the percentage of posts, which were made available to be filled in by way of promotion and by way of direct recruitment qua its impact on the

reservation. This is not the case which is factually involved in this case.

8. I am of the view that the issue dealt with by the learned Single Judge of this Court, was alien to the issue, which is being argued by the learned counsel for the petitioners in the present case. Hence, the principles enunciated therein in the said judgment cannot be widely made applicable in the circumstances of the present case, which is absolutely distinct to the one, which was dealt with by the Coordinate Bench of this Court in its judgment dated 12.06.2013.

9. Apart from it, this Court is also of the view that it is always the choice of the employer, that even despite of the existence of the vacancies, they may still keep the vacancies still remained unfilled and the probable candidate or the aspirant cannot or by way of a right enforced a writ jurisdiction under Article 226 of the Constitution of India, seeking a direction by way of a writ of mandamus to the employer to fill in the vacant posts, because I am of the opinion that it is always an executive decision, which is to be taken by the Department, in correlation to its requirement in the Department itself, executive decision or action cannot be barged into by a judicial directions, particularly when it relates to the assessment of need of number of employees by the department.

10. Learned counsel for the petitioners had submitted that the posts, which were not filled in i.e. 130 posts, in fact it is not justified to keep those posts vacant for the reason being that if the communication, which is placed on record by way of the supplementary affidavit dated 31.01.2020, is taken into consideration, in fact as against the total sanction cadre strength of Assistant Agricultural Officer, Grade 3, of 483 posts, it was observed that 300 posts are vacant, mere existence of vacancy, doesn't grant a right to be appointed, even if a candidate stands selected on culmination of a selection process.

11. In that eventuality, the requirement, which was expressed to be emergently fill was assessed to be 150 posts only. This communication of 31.01.2020, which has been made by the Secretary, Agriculture Department, to the Government of Uttarakhand, was even a communication, which was issued after assessing the requirement of 150 posts, which was emergently required. Not only this, this controversy has to be looked into from yet another prospective that admittedly the petitioners were the aspirants for being selected as an Assistant Agricultural Officer, Grade 3, and the impugned order of reducing the post has been issued on 16.12.2020, a preference of a writ petition, at this stage, questioning the act of reducing the vacancies in pursuance to the impugned order dated 16.12.2020, apart from the fact that it is belated, the petitioners have got no legally enforceable right as such to enforce upon the respondents to fill in the posts, which were advertised, because of the implications of Clause 26 of the advertisement dated 02.08.2019. His argument is also from the view point, that if the communication which he has placed on record by way of the supplementary affidavit, which is the communication made on 24.06.2021, it is between the Director Agriculture and the Secretary, Uttarakhand Subordinate Selection Commission. In fact it has made a reference to the communication of 03.06.2020, which in pursuance to the Government Order dated 22.02.2019, which has observed that the additional 130 posts, which were not filled is required to be considered for being filled up along with the additional 58 posts which has fallen vacant during the pendency of the process of the selection.

12. This Court is of the view that this communication which has been made on 24.06.2021, which has been issued by the Director Agriculture, to the Secretary, Uttarakhand Subordinate Selection Commission, would not create any right in favour of the petitioners to press upon to sustain the vacancies to be filled which were advertised by the advertisement dated 02.08.2019, because it was only a recommendation, which was sent by the Director to the Secretary, Subordinate Selection Commission, and it will amount to be a

privilege communication between the two officials of the Department, which will not create any right in favour of the petitioners.

13. Hence, the contention raised by the learned counsel for the petitioners in the present writ petition, and looking to the nature of the relief sought for, this Court is of the view that the impugned order dated 16.12.2020, since it contains valid reasons for reduction of the number of posts which were emergently required to be filled, apart from the fact that the action itself was covered by Clause 26 of the advertisement dated 02.08.2019, no legally vested right as such of the petitioners is being infringed by the impugned notification dated 16.12.2020. Consequently, the writ petition lacks merit and the same is accordingly dismissed.

(Sharad Kumar Sharma, J.) 14.07.2021 NR/