SPA/42/2021
2021 Latest Caselaw 875 UK

       IN THE HIGH COURT OF UTTARAKHAND
                   AT NAINITAL


 THE HON'BLE THE CHIEF JUSTICE SRI RAGHVENDRA SINGH CHAUHAN
                                AND
            THE HON'BLE SRI JUSTICE ALOK KUMAR VERMA




                   SPECIAL APPEAL NO. 42 OF 2021

                            15th March, 2021

 Between:

 Nitin Dutt                                     ......     Appellant

 and

 State of Uttarakhand and others               ......      Respondents


Counsel for the appellant           :   Mr. Vinay Kumar, learned counsel

Counsel for respondent no. 1        :   Mr. Anil Kumar Bisht, learned
                                        Additional Chief Standing Counsel
                                        for the State

Counsel for respondent nos. 2&3     :   Mr.   Pankaj     Purohit,   learned
                                        counsel.

 The Court made the following:


 JUDGMENT:      (per Hon'ble The Chief Justice Sri Raghvendra Singh Chauhan)




 1.           The petitioner is aggrieved by the order dated

 05.12.2020, passed by the learned Single Judge, in Writ

 Petition (S/B) no. 1609 of 2020, whereby the learned

 Single Judge has dismissed the writ petition filed by the

 petitioner, inter alia, on the grounds that, firstly, the

 petitioner has never challenged the wrongful formulation

 of question no. 6 in the booklet 'A'; secondly the

 selection process is over as the Commission has already

 made its recommendation to the State for appointments
 to be made on the post of Assistant Accountant Post

Code-2 "O" Level.


2.           Briefly, the facts of the case are that on

20.02.2016, the Uttarakhand Lower Subordinate Service

Selection Commission ('the Commission' for short) had

advertised vacancies for Group 'C' posts in various

departments of the State, including the post of Assistant

Accountant, Post Code-2, "O" Level.           The eligible

candidates were supposed to submit their applications

by 15th April 2016. According to the advertisement, the

written test for the selection on the said post would be

for 200 marks. The first paper would be of 100 marks,

with objective type test, on General Hindi, General

Knowledge and General Studies. The second paper, also

for 100 marks, would be objecting type test with regard

to knowledge of Computer "O" Level. Subsequently, the

Commission changed the testing pattern; it clearly

indicated that the written test would be fixed for 100

marks for the post of Assistant Accountant, Post Code-2,

"O" Level.


3.           Since the petitioner fulfilled the eligibility

criteria, he applied for the post of Assistant Accountant,

Post Code-2, "O" Level.      The petitioner undertook the

written test on 4th of November 2018. On 12.06.2019,

the Examination Controller of the Commission published

the result of the written test. The result of written test
                             2
 was uploaded on website on 03.07.2019.          Those who

had qualified the written test were invited for the typing

test for the said post.   According to the petitioner, he

had secured 44.75 marks in the written examination.

However, the minimum qualifying marks were 45 marks.

Since the petitioner was not satisfied with the fact that

he had been disqualified as he had scored less than the

cut off marks, he filed a writ petition, namely, Writ

Petition No. 1472 of 2019 (S/S) before the learned

Single Judge.    However, on 20.11.2020, the said writ

petition was withdrawn with the liberty to file a fresh

writ petition.


4.         It is further the case of the petitioner that out

of 118 vacancies, only 03 candidates have qualified the

examination. Moreover, out of these 03 candidates, only

a single candidate has joined the service.            Thus,

according to the petitioner, presently there are 117

vacancies in existence. In the fresh writ petition filed by

the petitioner, he has pleaded that the formulation of

question no. 6 is incorrect.       For according to the

petitioner, the said question could be answered by the

candidates if they were provided with a calculator, or

with a Present Value Factor Table.      Since, neither the

calculator, nor the Present Value Factor Table was made

available to the candidates, it was impossible for the

candidates to answer the said question.        Due to this

                            3
 factor the petitioner could not secure 0.25 marks, which

would have permitted the petitioner to score the cut off

marks.       Aggrieved by this fact, the petitioner filed the

fresh writ petition before the learned Single Judge.

However, the learned Single Judge has dismissed the

writ   petition      by    impugned       order   as    mentioned

hereinabove. Hence, the present Special Appeal.


5.            Mr. Vinay Kumar, the learned counsel for the

appellant, admits that initially the petitioner had raised

his objection with regard to two questions other than

question no. 6 of the Booklet 'A'.          The learned counsel

further submits that the formulation of question no. 6 in

the booklet 'A' could not be agitated by the petitioner as

only the answer key is published, and objection qua the

answer       sheet   are    invited.       Objections    qua   the

formulation of the question are not invited.             However,

the learned counsel frankly concedes, and in the opinion

of this Court rightly so, that the selection process is over

as     the      Commission          has   already       made   its

recommendation to the State Government. According to

the learned counsel, there are still a large number of

vacancies which are lying vacant. Therefore, the learned

counsel submits that the impugned order deserves to be

set aside by this Court.


6.            The position being taken by the learned

counsel is clearly untenable. For, in catena of cases the
                                4
 Hon'ble Supreme Court has clearly opined that those

who have participated in the selection process, they

cannot be permitted to turn around and challenge the

selection process. Admittedly, the petitioner has already

competed in the selection process, therefore, he cannot

be permitted to challenge the same.


7.        Moreover, admittedly, the petitioner never

raised any objection with regard to the formulation of

question no. 6.    According to the learned counsel, the

objections were raised by the petitioner with regard to

other two questions, but not with regard to question no.

6.   Therefore, the petitioner cannot be given repeated

opportunities to go on questioning different questions of

the examination.


8.        Further, admittedly the selection process is

over. Even if there are 117 vacancies, which continued

to remain, it is for the respondent to take a decision with

regard to the filling up of these vacancies.        Merely

because the vacancies exist does not bestow a right on

the petitioner to claim that the cut off point should be

lowered by the Commission.


9.        The learned Single Judge has clearly observed

that the selection process is over; that question no. 6

was never doubted by the petitioner.       Therefore, the




                           5
 learned Single Judge has assigned valid reasons for

dismissing the writ petition.


10.        For the reasons stated above, this Court does

not find any illegality or perversity in the impugned

order. The Special Appeal is devoid of merit. The same

is hereby dismissed.




                       _______________________________
                       RAGHVENDRA SINGH CHAUHAN, C.J.




                                  _________________
                                 ALOK KUMAR VERMA, J.

Dt: 15th March, 2021 Negi