Ankit Kumar vs State Of Uttarakhand And Others
2021 Latest Caselaw 4496 UK

        HIGH COURT OF UTTARAKHAND AT NAINITAL

                   Writ Petition (S/S) No. 279 of 2020

Ankit Kumar                                                 .....Petitioner

                                    Versus
State of Uttarakhand and others                             .... Respondents
Present :-
Mr. Tapan Singh, Advocate for the petitioner.
Mr. Mukesh Kumar Kaparuwan, Advocate for the respondents.

                                      Reserved On : 27th October, 2021
                                     Delivered on : 11th November, 2021

                             JUDGEMENT

Hon'ble Sharad Kumar Sharma, J.

The brief facts of the case are, that respondent No. 3 had issued an advertisement No. 4057 dated 8th February, 2014, for the purposes of initiating the process of recruitment on Group-C posts in the different Government Departments of the State of Uttarakhand, all the posts, which lie outside the purview of the Public Service Commission.

2. The petitioner submits, that since he held the requisite qualification, which was required for the purposes of eligibility for recruitment on the post of Cane Commissioner in the Sugar Cane Department, he would be entitled to be considered for appointment, as against the post Code-98 and Department Code-130 as per the advertisement dated 08.02.2014 . Hence, the petitioner submitsm that he has submitted his candidature by filing an application in that regard within an appropriate time. He further submits that, after scrutinization of his testimonial, the petitioner was issued with an admit card; to take the written examination and he was assigned with the Roll No. 1988210401. Under the strength of the admit card, admittedly he had participated in the process of examination which was conducted on 16th October, 2016, as a result thereto, 29

candidates were declared selected and successful and they were called upon for the purposes of verification of their document.

3. The contention of the learned counsel for the petitioner is that, as against the name of those candidates, who stood successful in the selection process, the last candidate, who belonged to the Scheduled Castes category had scored 48.5 marks.

4. The grievance of the petitioner is that despite of the fact that he had obtained 48.75 marks, i.e. higher than the marks, which were obtained by the last selected candidate of Scheduled Castes category, the petitioner should have been included in the select list and he should have been invited for the document verification. Having not done so, the petitioner filed the present Writ Petition, praying for the following reliefs :-

"i) Issue a writ, order or direction, in the nature of certiorari to quash the selection of the respondent no.3 and further be please to direct the respondent no.2 to declare the petitioner as selected candidate for the post of Cane Supervisor post Code-98.

ii) Issue a writ, order or direction, in the nature of mandamus commanding / directing the respondent no.2 to recommend the name of the petitioner for appointment for the post of Cane Supervisor post Code-98 in Sugar & Cane Department, Government Department and the petitioner obtained more marks from the respondent no.3.

iii) Issue any other relief, which this Hon'ble Court may deem fit and proper in the circumstances of the case be passed in favour of the petitioner.

iv) Cost of the petition is awarded in favour of the petitioner."

5. Initially, when the Writ Petition was argued at the admission stage, the Coordinate Bench prima facie found that the

petitioner has scored higher marks than the last candidate selected in the category and notices were issued and the counter affidavit was called.

6. The petitioner had taken steps for effecting services on the respondent No.3, who was the last candidate whose name was appearing in the select list, but despite of service of notice, neither any undelivered envelope has been received back, nor the respondent No.3 has put in appearance, thus the Court has got no other options except to proceed ex parte against him, as it would be deemed that respondent No.3 was satisfactorily served with the notices.

7. The petitioner has submitted, that since the record shows that he has scored higher marks, hence he had the privilege to be considered for appointment as a Scheduled Castes candidate belonging to "Jatav" caste, but non-inclusion of his name was flawed and hence, he has sought a writ of mandamus also, that respondents may be directed to call upon the petitioner to be considered for appointment on the post of Cane Sugar Supervisor.

8. On the contrary, the stand of respondent No.2, who had filed the counter affidavit, had submitted that, after the publication of the select list, when the candidates were called upon for the purposes of document verification, in fact, the respondent No.2 had issued a list of the selected and eligible candidates, who were supposed to be called upon for document verification by way of an advertisement No. 12444/mizkf"ki/ l0x0Hk0&98 /izR;k0 /2016&17 dated 6th March, 2017.

9. He submitted that, if the said advertisement of 06.03.2017, itself is taken into consideration, in fact, the representations / objections against the select list were being invited from all the candidates, in case, if they, i.e. any candidate had any grievance as such at all. Even if, annexure-3 to the counter affidavit is taken into consideration, the respondents had published an

advertisement calling upon the candidates to place the document on record, and if they were dissatisfied, they may submit their representation in the prescribed format, which was required to be downloaded from the site of respondent No.2, and submitted as per the procedure prescribed.

10. The respondents in para 13 of the counter affidavit has submitted, that despite of the said publication, the petitioner has chosen not to send any representation, as such to the respondent No.2, within the cut-off date provided therein, though he was already informed through the advertisement of 6th March, 2017.

11. In response to the counter affidavit, the petitioner has filed the rejoinder affidavit and while giving reply to para 13 of the counter affidavit, the petitioner has submitted, that the respondent No.2 had not given any individual information to all the candidates including the petitioner, to submit their representation, therefore, the petitioner could not submit the representation, and he was deprived from raising objection against the select list, published by respondent No.2.

12. Further, in support of his argument, the learned counsel for the petitioner has submitted, that an issue of identical nature was agitated in Writ Petition (S/S) No. 521 of 2014, Charu Chandra Joshi Vs. State of Uttarakhand and another. It was a matter where, the petitioner in the said case referred above claimed to have obtained more marks from amongst the general category candidates; but he was not selected by the Uttarakhand Technical Board.

13. If the judgment dated 11.08.2018, rendered in Charu Chandra Joshi (Supra) is considered, in the said case too, an advertisement was published in the Amar Ujala and Danik Jagran respectively and the candidates therein had not applied or represented the matter in response to the advertisement, wherein, in the said case

too, the petitioner has pleaded that he had no knowledge of the above publication, as no individual letter was given by the respondent No.2 therein to the petitioner of that petition. The learned Single Judge in the said judgment of 11th August, 2014, has observed as under :-

"3. On the other hand, according to the petitioner, he had no knowledge of the above publication and admittedly no letter was ever given by respondent No. 2 - Uttarakhand Board of Technical Education to the petitioner. Although admittedly the petitioner is liable to be selected but he could not submit his documents and other details to the respondent. In the present matter the clear case of the petitioner is that he is a selected candidate who has not been informed to furnish his documents, and therefore, not being informed, he could not furnish the documents. He has not been selected but candidates, having lesser merit have been selected for the above posts. It is the view of this Court that proper information was not given to the petitioner. Petitioner was liable to be informed personally, particularly in view of the fact that all particulars of candidates, including their marks, were available with the respondents."

14. The learned Single Judge has held, that admittedly, the candidate, who stood selected as a last candidate had scored lesser marks; than that of the petitioner of the said Writ Petition, and the Court has held, that the publication made in the newspaper of inviting the representations, as on 6th March, 2017, in the instant case, may not be construed, as to be an appropriate and sufficient information imparted to the petitioner, though it is an admitted case in this Petition that the petitioner secured higher marks and further it is an admitted case, that no individual letter or communication was given by respondent No.2; to the petitioner or other such selected candidates, whose name was included in the select list, thus declared. Hence, the Court has drawn an inference, that non-information of inviting representation cannot deprive the candidate, who had secured higher

marks, since being a better candidate, he or she cannot be deprived of his right to be considered for appointment, against the post, against which, he had applied.

15. But, the aforesaid aspect was taken into consideration by the learned Single Judge in the said case and an inference has been drawn with regard to the aspect of and the effect of non information, it was on the ground, that the Court was informed, that the post of Cane Supervisor in the said case; at the relevant point of time was still left vacant, against which, the petitioner who had obtained higher marks could have been adjusted and selected. Hence, the judgment of the learned Single Judge dated 11th August, 2014, was not a judgement in rem, laying a ratio, rather it was a judgment, considering the particular facts and circumstances, which was existing in a particular set of circumstances, where the information imparted was held to be insufficient and insufficiency of the information, was taken as to be the basis for being considered for appointment on the ground, that the post thus advertised of Cane Supervisor as against which the petitioner of the said Writ Petition was a candidate, the posts were still lying vacant.

16. But there is no such case pleaded in the present case; that after the culmination of the process of selection, the posts are still lying vacant against, which the petitioner could be adjusted or considered, despite having not filed the objection invited by the advertisement dated 06.03.2017. Hence, the judgment relied by the learned counsel for the petitioner, in fact, it is not a statutory right, which was being considered in the light of the fact of procedural flaw, but rather it was an accommodation which was granted, based on the ground that the petitioner therein had secured higher marks and since the vacant posts were still then available, the petitioner was directed to be considered for appointment, and the notice / information were treated to be not an absolute information.

17. As far as this Court is concerned, and particularly, under the terms and conditions of the principle advertisement which was issued by respondent No.2, against which, the petitioner has responded, the information, which was published and advertised on 6th March, 2017, would be taken as to be falling within the process of information under the public domain, and which stood covered in accordance with the modalities of information reserved to be provided in the principal advertisement, and particularly while inviting the application and the publication made in the newspaper, which was responded by other identically selected candidates or the probable candidates for the selection. No. exception could be carved out for the petitioner on that basis, that the petitioner did not had an information, that the representation has been invited as against the declaration of select list.

18. Thus the contention of the learned counsel for the petitioner in the light of the judgment of 11th August, 2014, is not accepted by this Court, and that too, where in the said case only a latitude was granted by the Court because there still stood vacancies, remaining to be filled up, against the posts, against which the petitioner has applied therein, which is not a case at hand.

19. Hence, I am not inclined to interfere in the Writ Petition. The Writ Petition lacks merit and the same is accordingly dismissed.

(Sharad Kumar Sharma, J.) 11.11.2021 Shiv