WPSS/720/2021
2021 Latest Caselaw 2104 UK

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                                     WPSS No. 720 of 2021
                                     Hon'ble Sharad Kumar Sharma, J.

(Through Video Conferencing)

Mr. Ajay Veer Pundir, Advocate for the petitioner.

Mr. N.P. Sah, Standing Counsel for the State of Uttarakhand.

The petitioner has filed this present Writ Petition, praying for a writ of mandamus, for being appointed as a Driver, against the alleged vacant post available for OBC category candidate. There is a whole series of advertisements, which were issued by the respondents, the first being that of 3rd August, 2016, being advertisement No.05/UKSSSC/2016, whereby, 42 posts of driver was initially advertised, bearing post code No.51. Thereafter, there was yet another advertisement, was issued on 13th October, 2016, being advertisement No.07 /UKSSSC/2017, yet again for the post of Driver, bearing post code No.62. The third advertisement which was issued is that of 3rd January, 2017, being advertisement No.08/UKSSSC/2017, for filling up five post of Drivers, bearing post code No. 81.

As far as the present Writ Petition is concerned, we would be more related to the subsequent and the last advertisement of 5th September, 2017, bearing advertisement No. 11/UKSSSC/2017, where 12 posts of Divers were advertised and the post code was given as 103.

In accordance with the provisions and procedure of selection, which has been provided in the advertisement, it provided in its clause 15, that written examination was to be conducted for the purposes of selection process contemplated by the advertisement, as referred aforesaid and the petitioner contends that since he being qualified and being a graduate, he was eligible to be considered, he applied, but admittedly, according to the averments made in the Writ Petition, contained in para 4 of the Writ Petition, the name of his, as well of his father has been wrongly shown by him in the application form, which was submitted by him, in pursuance to the aforesaid advertisement. For the purposes of reference, para 4 of the Writ Petition is extracted as under :-

"That since the petitioner fulfils all the terms and conditions of advertisement no.11/UKSSSC/2017 dated 05.09.2017 and possess requisite qualification for the post of "Driver", therefore, he submitted his online application form against the aforesaid advertisement. The petitioner in online application form choose "Postcode-103.1-District Magistrate Dehradun" as his first preference. It is humbly submitted that the name of petitioner is "Satendar Kumar" and his father's name is "Ramesh Chand" but due to some error his name is shown as "Satendar Kumar Kumar" and his father's name as "Ramesh Chand Chand" in the online application form.

Copy of online application form submitted by the petitioner along with its correct typed copy is being filed herewith and marked as Annexure No.1 to this writ petition."

On 25th November, 2018, the admit card was issued to the probable candidates, for the purposes of participation in the written examination and according to the petitioner, the result of the written examination which was held on 25th November, 2018, was declared on 5th July, 2019, as against the post code of No.51 of the advertisement dated 3rd August, 2016, then bearing post code No. 85, in pursuance to the advertisement dated 3rd January, 2017, and post code No. 103, in relation to the advertisement of 5th September, 2017.

The petitioner contends that in the provisional select list, which was issued by the respondents, his name was shown to have been declared selected at serial No.87 but the selection process in pursuance to the aforesaid concluded selection by the result of 5th July, 2019, when the respondents have issued the final select list on 8th February, 2021, the name of the petitioner was not shown amongst the list of selected candidates.

The petitioner has contended that though despite of the fact that he has procured the highest marks, his name ought to have been included in the final select list of drivers, which was published by the respondents on 8th February, 2021, and hence, he has sought a writ of mandamus, but the basic fact which has emerged from the record is that according to the petitioner's admitted case, the application form submitted by him on-line, was having a wrong description of his name, as well as the name of his father.

In that eventuality, a reference may be had to clause 6 and 8 of the advertisement, which is extracted hereunder :

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Clause 6 and 8 of the advertisement specifically stipulates, that any mistake or error which is committed, while submitting an application on-line, will not be rectifiable by any subsequent applications and hence, the rejection of the petitioner's candidature, by non inclusion of his name in the select list could not have been introduced by way of praying for a writ of mandamus by overcoming the impact of Clause 6 and 8 of the advertisement, particularly when the said embargo has not been challenged by the petitioner.

Even otherwise also, this Court is of the view that mere participation in the selection or merely being declared as selected, in the provisional list or for that purposes even in the main select list, no vested right is created in favour of the persons thus selected, as it has been held by the Hon'ble Apex Court in a judgment reported in (2002) 4 SCC 726, Vinodan T. and others Vs. University of Calicut and others. Relevant paragraph is quoted hereunder :-

"14. The principle that persons merely selected for a post do not thereby acquire a right to be appointed to such post is well established by judicial precedent. Even if vacancies exist, it is open to the authority concerned to decide how many appointments should be made. However the selected candidates have a right to compel such authority not to make appointments by travelling outside the batches in the college for delinking, issue of executive orders, orders stopping admission for the batches proposed to be discontinued and suitable deployment of the staff, both teaching and non-teaching which may be rendered surplus. For protecting the service interests of the existing teaching and non-teaching staff, it was also decided that further appointments of teaching staff and non-teaching staff in the colleges and university should be stopped immediately. The circular also states that though the decision in this regard was taken in December 1996 "it is reported that the private colleges and universities have been resorting to recruitment of teaching and non-teaching staff which may become a great financial burden for the Government in future""

Yet in another judgement as reported in (2002) 5 SCC 195, S. Renuka and others Vs. State of A.P. and another, the Hon'ble Apex Court has held in para 8 as under :-

"8. It is settled law that no right accrues to a person merely because a person is selected and his or her name is put on a panel. The Petitioners have no right to claim an appointment. Even otherwise, the selection was contrary to the rules in force at that time. There could not be 100% reservation for women. Also the reservation policy had not been adhered to. The posts which are created are posts of District and Sessions Judges, Grade II. There is no separate posts of Judges of Family Courts and Mahila Courts. Thus the Petitioners could not be appointed as Judges of Family Courts and Mahila Courts in ex-cadre posts even provisionally. This would amount to creation of Ex-cadre posts not sanctioned by the Government. No fault can be found with the High Court being in favour of not appointing the Petitioners."

These judgments were yet again considered by the Coordinate Bench of this Court in a judgment reported in 2004 (1) UD 644, Km. Kiran Sharma and six others Vs. District Judge Nainital, wherein, based on the aforesaid principles, the Court in its para 8 has observed that mere inclusion of a name of a candidate in the preliminary list or even in the main select list, does not confer a right to be granted with an appointment.

In the present case, admittedly, according to the petitioner's case itself, his application form was defectively filled and which as per the implications of Clause 6 and 8 of the advertisement was not rectifiable. Hence, no mandamus could be issued to the respondents for the purposes of directing the respondents to issue a letter of appointment, in pursuance to the culminated process of selection by the final result, which was declared on 8th February, 2021, in pursuance to the advertisement of 5th September, 2019.

In that view of the matter, this Writ Petition at the behest of the petitioner, praying for a writ of mandamus to be granted an appointment, could not be granted for the reason being that it is not an infringement of fundamental rights of the petitioner, which has been guaranteed by the Constitution, which could be enforced by invoking the writ jurisdiction under Article 226 of the Constitution of India.

Hence, the Writ Petition lacks merit and the same is accordingly dismissed.

(Sharad Kumar Sharma, J.) Dated 29.06.2021 Shiv