Ajay Dungrakoti vs Hon'Ble High Court Of Uttarakhand ...
2022 Latest Caselaw 2566 UK

     IN THE HIGH COURT OF UTTARAKHAND AT
                   NAINITAL

      THE CHIEF JUSTICE SHRI VIPIN SANGHI
                      AND
     JUSTICE SHRI RAMESH CHANDRA KHULBE

       WRIT PETITION (S/B) No.35 OF 2021

                    22nd AUGUST, 2022

Ajay Dungrakoti                          ...... Petitioner

                           Vs.

Hon'ble High Court of Uttarakhand and another ......
                                        Respondents

Presence: -

Shri Lalit Belwal with Mr. Ashish Belwal and Ms. Abhilasha Belwal, learned counsel for the petitioner. Shri Shobhit Saharia, learned counsel for respondent no.1. Shri B. P. S. Mer, learned Brief Holder for the State- respondent no.2.

JUDGMENT: (Per Shri Vipin Sanghi, C.J.)

The petitioner has preferred the present writ

petition to assail the decision taken by the High Court of

Uttrakhand-respondent no.1 as communicated by the

communication dated 30.12.2020 rejecting the claim of

the petitioner for recommending his name to the State

Government for appointment in Uttarakhand Higher

Judicial Services-2019, against the vacant post in the

General Category. The petitioner seeks a mandamus to

the High Court of Uttarakhand to consider his candidature

and recommend his name to the State Government for

appointment in the Uttarakhand Higher Judicial Services-

2019 against the vacant posts in the General Category.

2. On 10.04.2019, the High Court of Uttarakhand

issued a notification for filling up six vacant posts of

Additional District and Sessions Judges by direct

recruitment in the Uttarakhand Higher Judicial Services.

Of the six posts, one was an unreserved-general category

post. Against the said post, no horizontal reservation for

woman was provided. There were three posts reserved for

Scheduled Castes and two for the Economically Weaker

Sections. One post in each of these categories was

reserved horizontally reserved for women candidates. We

are concerned with the one post falling in the general

category for which no horizontal reservation for women

was prescribed.

3. The petitioner offered his candidates against the

general category post. On the basis of written

examination held on 20th and 21st July, 2019, the High

Court circulated a list of successful candidates, who were

called for viva-voce. Amongst the general category

candidates, one Rahul Singh having Roll No.1022 and the

petitioner Ajay Dungrakoti having Roll No.1092, were

called for viva-voce by the High Court. The result of the

examination, namely, the written and the viva-voce was

declared by the High Court, wherein Rahul Singh secured

247.16 marks and the petitioner secured 230 marks. They

were at serial nos.1 and 2 in the merit list and they both

belonged to the general category.

4. The result of the said examination was declared

by the High Court on 23.08.2019. It discloses the names

recommended to the State Government for appointment

in Higher Judicial Services. Against the general category

vacancy, the name of Mr. Rahul Singh was recommended.

Since there was only one post for the general category,

obviously, the name of the petitioner does not find

mention in the said result. It appears that on the basis of

two communications received from the State Government

dated 15.11.2019 and 31.12.2019, the Full Court in its

meeting held on 19.02.2020, resolved to reject the

candidature of Mr. Rahul Singh. The communication to

this effect was issued by the High Court of Uttarakhand to

the State Government on 22.02.2020. This

communication reads as follows:-

"Madam,

With regard to the subject noted above,

kindly refer to your letter no.426/XXX(4)/2019-

04(1)/2018 T. C. dated 15.11.2019 and letter

no.556/xxx(4)/2019-04(1)/2018(T.C) dated 31.12.2019

of Additional Secretary, Personnel & Vigilance Section-

04, Government of Uttarakhand, by which, opinion of

the Hon'ble Court has been sought in the matter.

2. In this regard, after considering the matter,

Hon'ble Court has been pleased to recommend that the

candidature of Sri Rahul Singh be rejected.

3. I am directed to communicate the aforesaid

recommendation of the Hon'ble Court to the State

Government.

4. You are, therefore, communicated with the

opinion of the Hon'ble Court."

5. It appears that the petitioner subsequently

learnt of Mr. Rahul Singh not being appointed against the

general category vacancy. On 18.08.2020, he made an

application under the Right to Information Act to the

Public Information Officer, High Court of Uttarakhand

seeking information whether, after the declaration of the

result of the examination in question, Mr. Rahul Singh had

been granted appointment, and if any decision has been

taken in relation to the appointment of Mr. Rahul Singh, a

copy of the same may be provided to him. On

30.08.2020, the petitioner raised similar queries to the

State Government under the Right to Information Act.

The Uttarakhand High Court responded to the queries

raised by the petitioner on 19.11.2020, informing the

petitioner that no appointment has been offered to Mr.

Rahul Singh. He was further informed that the

candidature of Mr. Rahul Singh has been rejected by the

Full Court vide its Resolution dated 19.02.2020. The

extract of the Resolution was also communicated to him.

The State Government also responded to the application

moved by the petitioner under the Right to Information

Act, informing the petitioner that while cancelling the

candidature of Mr. Rahul Singh, in his place, Mr. Tarun

has been offered appointment. At this stage itself we

may observe that this response of the State Government

was not completely accurate, inasmuch as, appointment

was offered to Shri Tarun against a reserved vacancy, and

not against the General Category post.

6. The petitioner made his representation to the

Uttarakhand High Court praying that his name be

recommended for appointment, since the

recommendation made in favour of Mr. Rahul Singh had

been withdrawn / rejected. This representation was made

on 02.09.2020. He made other representations on

18.09.2020 and 05.10.2020 as well. These

representations were rejected on 30.12.2020, without

assigning any reason. Consequently, the petitioner

preferred the present writ petition.

7. The submission of learned counsel for the

petitioner is that, considering the fact that the petitioner

was placed at serial no.2 on the merit list, and the

candidate at serial no.1 of the merit list, namely, Mr.

Rahul Singh was not found fit for appointment, and

consequently, his recommendation made to the State

Government was withdrawn/rejected, the Uttarakhand

High Court should have proceeded to recommend the

name of the petitioner for appointment against the

general category vacancy, as he was the second most

meritorious candidate after Mr. Rahul Singh, having

secured 230 marks in the written and viva-voce

examination.

8. Learned counsel submits that there was

absolutely no reason assigned as to why the Full Court in

its meeting held on 19.02.2020 did not simultaneously

proceed to recommend the name of the petitioner, when

it passed the Resolution to withdraw/reject the

recommendation earlier made in favour of Mr. Rahul

Singh in the light of aforesaid two communications dated

15.11.2019 and 31.12.2019 from the Government of

Uttarakhand.

9. Learned counsel submits that even though a

candidate may not have a vested right to seek

appointment merely because his name appears on the

merit list as the most meritorious candidate, and because

vacancies exist, at the same time, he submits that the

decision not to make the recommendation for

appointment in favour of such a candidate has to be

rationale and cannot be arbitrary or whimsical.

10. Learned counsel submits that the process of

recruitment was initiated by the Uttarakhand High Court

precisely for the purpose of filling six vacancies, when it

issued the advertisement dated 10.04.2019. A long

drawn recruitment process was undertaken, wherein,

applications were invited from candidates; written

examination was conducted followed by a vice-voce

examination; publication of the final result and

recommendation of the candidates to the State

Government as per merit for appointment - including

against the general category vacancy.

11. Learned counsel submits that the recommendation

in favour of Mr. Rahul Singh was withdrawn/rejected on

certain aspects being raised by the State Government in

its communications dated 15.11.2019 and 31.11.2019. He

submits that the recruitment process did not come to an

end, merely upon making of recommendation of the name

of Mr. Rahul Singh against the general category vacancy,

since that recommendation was subsequently withdrawn /

rejected, and, as a matter of fact, no letter of

appointment was issued to Mr. Rahul Singh by the State

Government, and consequently, Mr. Rahul Singh never

had occasion to join the post. He further submits that the

recruitment process was not scrapped - either generally,

or in relation to the general category vacancy, for any

germane or good reason. He further submits that, in fact,

Mr. Tarun, who was a scheduled caste candidate, was

offered appointment even though he was not one of the

candidates whose name figured in the declaration of

result by the High Court on 23.08.2019. Thus, merely

because the name of the petitioner did not figure in the

result dated 23.08.2019, the petitioner could not be

denied appointment against the general category post, as

he was the most meritorious general category candidate

remaining in the field, since Mr. Rahul Singh's candidature

was withdrawn / rejected. In support of his submissions,

learned counsel for the petitioner has placed reliance on

the following decisions:-

A. Mrs. Neelima Shangla, Ph.D candidate versus State

of Haryana and others, (1986 (4) SCC 268).

B. R. S. Mittal versus Union of India, (1995 Supp (2)

SCC 230).

D. Jai Narain Ram versus State of U.P. and others,

(1996 (1) SCC 332).

E. Manoj Manu and another versus Union of India and

others, (2013 (12) SCC 171).

F. State of U.P. and another versus Rajiv Kumar

Srivastava and another (CC 10604 of 2013) decided

by the Supreme Court on 26.07.2013.

G. State of Uttarakhand and others versus Jitendra

Joshi, (2020 SCC Online Utt 1180).

H. Dayaram versus State of Uttarakhand and others

(Uttarakhand High Court, WPSB No.241 of 2007,

decided on 13.05.2013).

12. On the other hand, the submission of Mr.

Shobhit Saharia, learned counsel for respondent no.1-

High Court, is that merely because the name of petitioner

appears in the merit list, is no ground for this Court to

issue a direction or mandamus, to make a

recommendation to the State Government, to offer

appointment to the petitioner against the un-reserved /

general category post in the Uttarakhand Higher Judicial

Service-2019. In this regard, he places reliance on, firstly,

the decision of the Supreme Court in Shankarsan Dash

versus Union of India, 1991 (3) SCC 47. He also relies on

Raj Rishi Mehra and others versus State of Punjab and

another, 2013 (12) SCC 243.

13. Mr. Saharia submits that under the Recruitment

Rules, there was no obligation for the High Court to

maintain a wait list of the candidates, and therefore, once

the recommendation made in favour of Mr. Rahul Singh

was withdrawn/rejected, there was no obligation for the

High Court to make another recommendation in favour of

the petitioner since his name did not figure in the result

published on 23.08.2019. He further submits that in the

meantime, on 22.05.2020, the Government of

Uttarakhand issued G.O No.124/XXX(2)/2020-53(01)/2001,

circulating the 25-Point Roster, which provided for

horizontal reservation for women candidates of

Uttarakhand against the general category posts. He

submits that, consequently, the un-filled general category

seat of 2019 examination stood horizontally reserved for

the women candidates of Uttarakhand belonging to the

general category. He submits that the fresh recruitment

process was, firstly, undertaken in the year 2021, which

was scrapped. He submits that yet another recruitment

process was initiated in the year 2022. However, that

process has yet not attained finality.

14. Mr. Saharia submits that with the initiation of

fresh recruitment process firstly in the year 2021, and

thereafter in the year 2022, the recruitment process in

question in respect of the year 2019 stood scrapped.

15. We have considered the submissions of learned

counsels and we are of the considered view that the

denial of recommendation of the petitioner's name,

simultaneously with the withdrawal / rejection of the

recommendation made in favour of Mr. Rahul Singh, on

19.02.2020, which was communicated to the State

Government on 22.02.2020, was without any disclosed

reasons, and the said decision was unreasoned and

irrational.

16. At this stage, we may notice the decisions

relied upon by learned counsels on either side.

17. Mrs. Neelima Shangla (supra) is a case

relating to appointment to the Haryana Civil Service

(Judicial Branch). The petitioner's grievance before the

Supreme Court was that though there were 54 vacancies

altogether, the Public Service Commission recommended

the names of 26 candidates only, in which they included

17 from the general category. The petitioner claimed

that 32 candidates in order of merit from the general

category could have been selected for appointment, and

that the Service Commission illegally withheld the names

of the successful candidates from the Government and

the High Court. She placed reliance on the relevant rules

relating to appointment of Subordinate Judges in

Haryana.

18. We may note that under those rules, the

names of the selected candidates were required to be

entered in the register maintained by the High Court

strictly in the order of merit, and appointments were to

be made from the names entered in that register strictly

on merit. In the course of this decision, the Supreme

Court, inter alia, observed - "It is, of course, open to the

government not to fill up all the vacancies for a valid

reason." The Supreme Court went on to observe -

"However, as we said, the selection cannot arbitrarily be

restricted to a few candidates, notwithstanding the

number of vacancies and the availability of qualified

candidates. There must be a conscious application of the

mind of the government and the High Court before the

number of persons selected for appointment is

restricted."

19. In the present case, the recruitment process

was initiated by the High Court to fill up 06 vacancies,

including the one falling in the general category. That

recruitment process was undertaken at a great cost and

expenditure of valuable time and resources, and the

objective was to fill up the existing vacancies. The

intention of the High Court, while undertaking the said

recruitment process, was not to complete a mere

formality or undertake a futile exercise. The fact that the

High Court recommended the name of Mr. Rahul Singh to

the State Government for appointment against the

general category vacancy shows that the High Court was

fully satisfied with the examination process which

involved written test and viva-voce. The High Court was

also satisfied with the determination of the inter se merit

of the candidates as it recommended the name of, inter

alia, Mr. Rahul Singh against the general category post,

as he was the highest scorer in the written examination

and viva-voce. Since the recommendation of the name of

Mr. Rahul Singh was subsequently rejected by the Full

Court in its meeting held on 19.02.2019, there was no

reason why the name of the petitioner - who was the

second most meritorious candidate belonging to the

general category, should not have been recommended for

appointment to the State Government. As observed by

the Supreme Court, the selection could not have been

arbitrarily restricted to a few candidates, notwithstanding

the number of vacancies and the availability of qualified

candidates. For the High Court to decide not to

recommend the name of the petitioner, there should have

been conscious application of mind and germane reasons

when the said decision was taken, or ought to have been

taken.

20. Manoj Manu (supra) was a case where the

names of the appellants were not recommended by the

UPSC, even though their names figured in the reserve list

maintained by it. The UPSC did not recommend their

names, even though there were vacancies available which

could have been filled by the appellants if their names

had been so recommended. The claim of the appellants

seeking recommendation of their names to fill up the

existing vacancies was rejected by the Central

Administrative Tribunal. The High Court also rejected

their writ petition. The Supreme Court found merit in the

case of the appellants. In paragraph 12 of its judgment,

the Supreme Court observed as follows:

"12. It is, thus, manifest that a person whose name is included in the select list, does not acquire any right to be appointed. The Government may decide not to fill up all the vacancies for valid reasons. Such a decision on the part of the Government not to fill up the required / advertised vacancies should not be arbitrary or unreasonable but must be based on sound, rational and conscious application of mind. Once it is found that the decision of the Government is based on some valid reason, the Court would not issue any mandamus to the Government to fill up the vacancies."

(emphasis supplied)

21. Thus, it would be seen that once again the

Supreme Court has reiterated the same principle - that

though a person whose name is included in the select list

does not acquire any right to be appointed, and the

Government may decide not to fill up the vacancy for

valid reasons, however, such a decision on the part of the

Government not to fill up the required / advertised

vacancies should not be arbitrary or unreasonable, but

must be based on sound, rational and conscious

application of mind.

22. As we have noticed here-in-above, the Full

Court decision of the High Court dated 19.02.2019, is

devoid of any reasons as to why, while rejecting the

recommendation made in favour of Mr. Rahul Singh, the

name of the petitioner was not recommended.

23. R.S. Mittal (supra) is another case where the

appellant, whose name was included in the panel of

selected candidates, was not appointed against the

advertised post. The Central Administrative Tribunal

rejected his claim. The said decision of the Tribunal was

challenged before the Supreme Court. The Supreme

Court, inter alia, observed in its decision as follows:

"10. The Tribunal dismissed the application by the

impugned judgment on the following reasoning :

(a) The selection panel was merely a list of persons found suitable and does not clothe the applicants with any right of appointment. The recommendations of the Selection Board were directory and not mandatory and were not therefore enforceable by issue of a writ of mandamus by the Court.

(b) The letter of Ministry of Home Affairs dated 08.02.1982 which extends the life of panel till exhausted is not relevant in the present case. In the circumstances the life of the panel in this case cannot go beyond 18 months and as such expired in July 1989.

It is no doubt correct that a person on the select panel

has no vested right to be appointed to the post for

which he has been selected. He has a right to be

considered for appointment. But at the same time, the

appointing authority cannot ignore the select panel or

decline to make the appointment on its whims. When

a person has been selected by the Selection Board and

there is a vacancy which can be offered to him,

keeping in view his merit position, then, ordinarily,

there is no justification to ignore him for appointment.

There has to be a justifiable reason to decline to

appoint a person who is on the select panel. In the

present case, there has been a mere inaction on the

part of the Government. No reason whatsoever, not to

talk of a justifiable reason, was given as to why the

appointments were not offered to the candidates

expeditiously and in accordance with law. The

appointment should have been offered to Mr. Murgad

within a reasonable time of availability of the vacancy

and thereafter to the next candidate. The Central

Government's approach in this case was wholly

unjustified."

(emphasis supplied)

24. Thus, the Supreme Court again reiterated the

principle that the appointing authority cannot ignore the

select panel or decline to make the appointment on its

whims. When a person has been selected by the

Selection Board, and there is a vacancy which can be

offered to him, keeping in view his merit position, then,

ordinarily, there is no justification to ignore him for

appointment. There has to be a justifiable reason to

decline to appoint a person who is on the select panel. In

that case, the Supreme Court found that there was mere

inaction on the part of the Government and no reason

whatsoever, not to talk of a justifiable reason, was given

as to why the appointments were not offered to the

candidates expeditiously and in accordance with law. The

position appears to be similar in the facts of the present

case.

25. In Jai Narain Ram (supra), the Supreme Court

went a step further and directed the Public Service

Commission to recommend the names of the 04 reserved

candidates belonging to Scheduled Castes against 04

posts since the 04 candidates who were selected did not

join service. The Supreme Court in para 7 of this

judgment observed as follows:

"7. Right to seek appointment to a post under Article 14 read with Articles 16(1) and (4) is a constitutional right to equality. The State failed to perform its constitutional duty to requisition the PSC to recommend the next qualified persons to the post reserved for Schedules Castes. Under these circumstances, the denial of appointment to the appellant and three others above him is unconstitutional. Therefore, the respondents are not justified in denying the claim of the appellant for the appointment to the above post."

26. We may now take notice of the judgment of the

Supreme Court in Rajiv Kumar Srivastava (supra). In

that case the Allahabad High Court issued a direction to

the State of U.P. for appointment of Rajiv Kumar

Srivastava as Lecturer in Government Ayurvedic College

against the vacancy which remained unfilled due to non-

joining of another candidate, namely, Dr. Vinod Kumar

Lavania. The appeal preferred by the State of U.P. was

dismissed by the Supreme Court. The submission of the

State Government that it had taken a policy decision not

to operate the waiting list and, as such, respondent No. 1

- Rajiv Kumar Srivastava, was not entitled to be

appointed against the vacancy which remained unfilled

due to non-joining of Dr. Vinod Kumar Lavania was

rejected by observing as follows :-

"In our view, the policy decision taken by the State Government does not have any bearing on the case of respondent No. 1 because he acquire a vested right to be appointed against the advertised post which remained unfilled due to non-joining of the candidate who was more meritorious than him. It is neither the pleaded case of the petitioners nor it has been argued before us that Dr. Vinod Kumar Lavania had joined the service and then resigned. Rather, it is the admitted case of the parties that one of the advertised posts remained unfilled due to non-joining of the selected candidate. This being the position, the concept of waiting list cannot be brought in picture for defeating

the legitimate right of respondent No. 1 appointed against the unfilled post."

(emphasis supplied)

27. Thus, it appears that even if a letter of

appointment had been issued to Mr. Rahul Singh, and he

had not joined - for whatever reason, even then it could

not be said that the recruitment process got exhausted or

stood culminated. However, the fact situation in the

present case is even more glaring. As noticed above,

merely a recommendation had been made by the High

Court in favour of Mr. Rahul Singh to the State

Government to appoint him against general category

post. That recommendation was subsequently rejected

by the High Court itself. That recommendation did not

fructify into an appointment order. Obviously, Mr. Rahul

Singh never joined the post, since no offer of

appointment was ever issued to him. Thus the High

Court should have proceeded to recommend the name of

the petitioner to the Government, as it had no valid

reasons as on 19.02.2019, not to recommend his name

for appointment against the general category vacancy.

The whole purpose of maintaining the merit list would be

defeated, if the said merit list were not to be operated

upon. If the most meritorious candidate was not initially

recommended, or the recommendation made was

withdrawn / rejected subsequently upon disclosure of

certain relevant and germane facts, the only reasonable

course open to the High Court was to recommend the

name of the next meritorious candidate, in the normal

course, unless there were certain disclosed and germane

reasons. Unfortunately, that was not done and, even

when the petitioner represented, the representation was

turned down without assigning any reasons.

28. Jitendra Joshi (supra) is a decision of Division

Bench of this Court. In this case, 05 persons were

selected out of the male quota under the freedom fighters

quota. The person at serial No. 1, namely, Mr. Naresh

Chandra Durgapal - out of said 05 persons, did not

participate in the medical test which was a mandatory

precondition for appointment. The respondent Jitendra

Joshi staked his claim in respect of the post for which

Naresh Chandra Durgapal did not participate in the

medical test. This Court held that in the aforesaid

circumstances, the next person in the list, i.e., the

respondent Jitendra Joshi should have been appointed.

This Court observed in paragraph 7 as follows:

"7. Be that as it may, the material on record indicates that gross injustice has been committed by the

State. When Shri Naresh Chandra Durgapal's appointment could not have been made, the next person in the merit list should have been appointed."

29. Dayaram (supra) is a short order of a Division

Bench of this Court. In that case the selected Scheduled

Caste candidate was not appointed for the reason that he

was treated to be not a Scheduled Caste of Uttarakhand.

The petitioner then staked claim against the vacant post

on the basis of his merit. The Division Bench disposed of

the writ petition by observing as follows:

"We, accordingly, dispose of this writ petition by directing the Commission to ascertain whether the petitioner can be recommended for the said post on the basis of merit and, if so, to make a recommendation in favour of the petitioner. We, at the same time, direct the State Government to ascertain, whether the petitioner is a scheduled caste of the State of Uttarakhand and, if so, to take such steps as may be required for honouring the said recommendation of the Commission."

30. Shankarsan Dash (supra) has been relied

upon by Mr. Saharia in support of his submission that a

candidate included in the merit list has no infallible right

to appointment, even if the vacancy exists. There is no

quarrel with this proposition, as we have already noticed

here-in-above. However, even in Shankarsan Dash

(supra), the Supreme Court, inter alia, observed -

"However, it does not mean that the State has the licence

of acting in an arbitrary manner. The decision not to fill

up the vacancies has to be taken bona fide for

appropriate reasons."

31. Similarly, Raj Rishi Mehra (supra) relied upon

by Mr. Saharia is of no avail, since in this judgment as

well, the Supreme Court reiterated the same legal

principle as we have taken note of here-in-above.

32. The submission of Mr. Saharia that the High

Court was not obliged to maintain a wait list of the

candidates and that, once the recommendation made in

favour of Mr. Rahul Singh was withdrawn / rejected,

there was no obligation for the High Court to make

another recommendation in favour of the petitioner, does

not appear to be correct. This is for the reason that the

issue with regard to maintenance or operation of a wait

list does not arise in the present case. As observed by

the Supreme Court in Rajiv Kumar Srivastava (supra)

the petitioner acquired a vested right to be, at least

considered for recommendation for appointment against

the advertised post, as the recommendation made in

favour of Mr. Rahul Singh - which was merely a

recommendation made to the Government, did not

fructify into an appointment, and it was subsequently

rejected by the Full Court on 19.02.2019. Thus, the

concept of wait list cannot be brought into picture for

defeating the legitimate right of the petitioner.

33. Reliance placed by Mr. Saharia on the fact that,

in the meantime, on 22.05.2020, the Government of

Uttarakhand issued G.O. No. 124/XXX(2)/2020-

53(01)/2001, circulating the 25-Point Roster, which

provided for horizontal reservation for women candidates

of Uttarakhand against the general category post is also

of no avail. This is for the reason, that when the decision

was taken by the Full Court on 19.02.2019 to reject the

recommendation made in favour of Mr. Rahul Singh,

there was absolutely no impediment in recommending

the name of the petitioner, who was the second most

meritorious candidate on that date - which is the crucial

date for consideration. On that date, the aforesaid G.O.

dated 22.05.2020 was not in existence. The said G.O.

came to be issued much later and, in our view, the same

cannot be cited as the reason not to fill up the general

category seat of the 2019 examination. The further steps

taken by the High Court to hold fresh recruitment

processes in the year 2021, and thereafter in the year

2022, also cannot be to the prejudice of the petitioner,

who acquired a right to be considered for the said post,

as there was no germane reason - either existing, or

recorded by the Full Court on 19.02.2019, for not

recommending his name for appointment to the

Government.

34. For the aforesaid reasons, we hold that the

petitioner was entitled to be considered for

recommendation by the High Court to the State

Government for appointment against the general

category seat in the Uttarakhand Higher Judicial Service -

2019 vacancy. We, therefore, direct the High Court of

Uttarakhand to consider the candidature of the petitioner

and, unless there is a good reason, which existed as on

19.02.2019 for not recommending the name of the

petitioner for appointment against the aforesaid vacancy,

his name should be recommended to the State of

Uttarakhand for his appointment.

35. In case, the petitioner's name is so

recommended, and the State of Uttarakhand grants

appointment to the petitioner in terms of the said

recommendation, his appointment shall relate back to the

date on which he would normally have been appointed.

Since that development did not occur, we estimate that if

the name of the petitioner had been recommended on

21.02.2019 - when the rejection of the recommendation of

Mr. Rahul Singh was communicated to the Government, the

appointment would have come about within a month or so.

We, thus direct that the petitioner will be deemed to have

been appointed from 01.04.2019, provided his appointment

is not denied for any good and germane reason. In that

eventuality, he will be entitled to notional seniority from

such date. His pay shall also be fixed notionally from the

said date. However, since he has not served, he shall not

be entitled to claim any back wages.

36. We also direct the High Court to work out the

impact of the appointment that may be granted to the

petitioner, on the vacancy position vis-à-vis the recruitment

process initiated in the year 2022.

37. The petition stands disposed of in the aforesaid

terms leaving the parties to bear their respective costs.

________________ VIPIN SANGHI, C.J.

_______________________ RAMESH CHANDRA KHULBE, J.

Dated: 22nd August, 2022 Negi