Uttarakhand High Court
Yogesh Barthwal vs State Of Uttarakhand And Others on 1 August, 2022
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
THE CHIEF JUSTICE SHRI VIPIN SANGHI
AND
JUSTICE SHRI RAMESH CHANDRA KHULBE
1ST AUGUST, 2022
Writ Petition (S/B) No.442 OF 2022
Yogesh Barthwal ...... Petitioner
Vs.
State of Uttarakhand and others ...... Respondents
Presence: -
Shri Rajendra Dobhal, learned senior counsel assisted by Shri
Neelabh Kumar Bist, learned counsel for the petitioner.
Shri Anil Bisht, learned Additional Chief Standing Counsel for
the State.
Shri Subhash Upadhyay, learned counsel for respondent nos.2
& 3.
JUDGMENT: (Per Shri Vipin Sanghi, Chief Justice)
The petitioner has preferred the present writ-
petition to assail the office memo dated 20.07.2022,
whereby his services as Assistant Professor (under
open-general category) in the Department of
Mechanical Engineering in the respondent-G.B. Pant
Institute of Engineering and Technology, Ghurdauri,
Pauri Garhwal by the appointment letter dated
18.04.2019, has been set aside and he stands
terminated with immediate effect.
2. There were six posts of Assistant Professor
advertised by the respondent-Institute out of which four
belonged to the General Category, one was reserved for
the Scheduled Caste and one was reserved for the OBC
Category. In that selection process, the petitioner was
selected against an open category seat.
3. Two writ-petitions were preferred before this
Court to assail the said selection process - one by Amit
Kumar and another by Mohd. Vaseem being WPSB
No.314 of 2019 and WPSB No.315 of 2019. These
petitions were decided on 06.03.2020 and 11.06.2020
by the Division Bench. The Division Bench of this Court
found that the selection process was erroneous
inasmuch as the candidates who were adjusted against
the aforesaid two reserved seats had, in fact, scored
more marks than those given appointments under the
reserved category. The Court, therefore, directed that
they shall be appointed against the open / general
category seats and their reserved seats would be made
available to the next meritorious candidates falling in
their respective reserved category seats.
4. While passing the judgment in WPSB No.315
of 2019 preferred by Mohd. Vaseem, the Court directed
the Board of Governors of the respondent-Institute to
take a decision regarding the marks awarded to the
petitioner-Mohd. Vaseem at the earliest and fill up the
post of Assistant Professor (Mechanical Engineering)
reserved in favour of the OBC category with the most
meritorious candidate belonging to the said category
below the 5th respondent in the said writ-petition, who,
though, belonging to the OBC category, was more
meritorious than some of the candidates selected in the
open/general category. The 5th respondent was,
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therefore, directed to be appointed against the seat in
the open/general category.
5. It appears that only three members of the
Board of Governors held the 27th meeting wherein they
proceeded to re-evaluate the marks of not just Mohd.
Vaseem but the others as well which included the
petitioner, the marks of the petitioner were increased
from 68.21 to 72.21 and the marks of Mohd. Vaseem
were reduced from 68.72 to 67.72. The petitioner has
placed his reliance on the said marks awarded to him
upon re-evaluation.
6. What transpired was that the Board of
Governors held its 31st meeting on 14.05.2022 found
that the aforesaid meeting of the Board of Governors
i.e. 27th meeting held on 05.10.2020 was without
quorum. Consequently, the Board of Governors passed
the resolution no.31.10, which is as under:-
"31.10 Regarding Implementation of
Orders of Hon'ble High Court, Nainital in WPSB
314/2019 and WPSB 315/2019
In compliance with orders of the Hon'ble High
Court, Nainital in the WPSB 314/2019, the Board
decided that Mr. Lokesh Nair will be given the
appointment to the post of Assistant Professor in the
department of Mechanical Engineering in the
open/general category and the appointment of Mr.
Manoj Pathak to the post of Assistant Professor in the
department of Mechanical Engineering under
open/general category is set aside i.e. terminated.
In compliance with orders of the Hon'ble High
Court, Nainital in WPSB 315/2019, the Board decided
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that Mr. Bhanu Pratap will be given the appointment to
the post of Assistant Professor in the Department of
Mechanical Engineering in the open/general category
and the appointment of Mr. Yogesh Barthwal to the post
of Assistant Professor in the Department of Mechanical
Engineering under open/general category is set aside
i.e. terminated.
The Board has taken cognizance of minutes of
27th meeting of BOG in which the marks awarded to the
candidates were changed by the Board. Since, the
quorum of the Board was not complete as per the Bye-
Laws of the institute. Therefore, the minutes of the 27th
BOG meeting stands null and void. Further, the Board
decided to constitute the following committee to
examine the marks awarded to Mohd. Vaseem by the
selection committee as per order of the Hon'ble High
Court, Nainital dated 11.06.2020 passed in the WPSB
315/2019:-
1. Dr. R.P.S. Gangwar - Convenor
Director, WIT Dehradun, Uttarakhand
2. Sri Hari Singh - Member
Director, Technical Education, Uttarakhand
3. Sri Sanjay Singh Tolia - Member
Joint Secretary (Finance), Uttarakhand Government
The above committee will submit its report
within 15 days. The report of the committee will be put
up in the BOG meeting to take final decision in the
appointment of candidate for the post of Assistant
Professor in the department of Mechanical Engineering
in Other Backward Class category."
7. Consequently, the Board of Governors
decided that Bhanu Pratap, who had secured 69.42
marks, should be adjusted against the open/ general
category seat which the petitioner was required to
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vacate since he had secured 68.21 marks, which was
the lowest amongst the open/general category
candidates.
8. The submission of learned counsel for the
petitioner is that the Board of Governors had re-
evaluated his marks and increased the same by '4'. He
submits that since the petitioner was awarded 72.21
marks after re-evaluation, he was at the top of the
merit list and, therefore, he could not be removed. He
further submits that the petitioner has been serving as
an Assistant Professor for the last three years and now,
he has been visited with the termination letter.
9. We do not find any merit in the aforesaid
submissions of the petitioner. The petitioner cannot
place reliance on the marks awarded to him on
re-evaluation as this was done beyond the direction
issued by the Court in WPSB No.315 of 2019. The
re-evaluation was done by only three members of the
Board of Governors. There is a quorum of five and, for
this reason, the Board of Governors in the subsequent
31st meeting held on 14.05.2022 did not accept the
re-evaluation of marks done to the petitioner. Shri
Bhanu Pratap, admittedly, had scored 69.42 marks and
his marks also could not have been re-evaluated.
10. That being the position, he was entitled to be
adjusted against the open/general category and which
obviously meant that the petitioner had to make way
since he secured the lowest marks amongst the open/
general category candidates selected earlier.
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11. Since, the petitioner did not have right to be
appointed to the said post in the first place, so, he
cannot claim a right to continue in the said post.
12. In view of the aforesaid observations, we do
not find any merit in this writ-petition and, accordingly,
the same is dismissed.
________________
VIPIN SANGHI, C.J.
________________________
RAMESH CHANDRA KHULBE, J.
Dated: 1st August, 2022
SS/RB
