Uttarakhand High Court
SPA/428/2022 on 9 December, 2022
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
HON'BLE THE CHIEF JUSTICE SRI VIPIN SANGHI
AND
HON'BLE SRI JUSTICE R.C. KHULBE
09TH DECEMBER, 2022
SPECIAL APPEAL No. 428 OF 2022
Between:
Himanshu Malik.
...Appellant
and
State of Uttarakhand and others.
...Respondents
Counsel for the appellant. : Mr. A.S. Rawat, the learned Senior
Counsel assisted by Mr. Prasanna
Karnatak, the learned counsel.
Counsel for respondents : Ms. Mamta Bisht, the learned Deputy
Advocate General for the State of
Uttarakhand/ respondents.
JUDGMENT : (per Sri Vipin Sanghi, C.J.)
There is a delay of 87 days in preferring the
present Special Appeal.
2. Since we have heard the learned Senior Counsel
for the appellant on merits, and we find no merit in the
present appeal, we are not going into the issue of
limitation.
3. The present Special Appeal is directed against
the judgment dated 21.07.2022, rendered by the learned
Single Judge in Writ Petition (S/S) No. 1987 of 2016. By
the impugned judgment, the learned Single Judge has
dismissed the Writ Petition preferred by the appellant.
The relevant facts may be noticed.
4. On 01.02.2014, an advertisement was issued by
the respondents for the purpose of inviting applications for
appointment to the post of Assistant Teacher (Primary
School) (the first advertisement). The appellant
responded to the said advertisement. The appellant was
initially not appointed, since he did not fall within the merit
list. Ultimately, on 19.02.2016, based on his placement in
the waitlist, he was issued an appointment order. The
appellant states that he received the said appointment
order on 26.02.2016. The appellant joined the service on
01.03.2016 in response to the said appointment offer.
5. In the meantime, the respondents had issued a
second advertisement on 17.02.2016, inviting applications
for the same post of Assistant Teacher in Government
Primary Schools. The appellant applied in response to the
said advertisement on 22.02.2016, i.e. before he received
the offer of appointment in relation to the first
advertisement, and before he joined the post offered to
him on 01.03.2016. Under the second advertisement, the
last date for submission of the applications was fixed as
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05.03.2016. The second advertisement had two pertinent
clauses, namely Clause 7 ¼N½ and Clause 8 ¼M+½. These two
clauses reads as follows :-
"¼N½ jkT; ds jktdh; izkFkfed fo|ky;ksa esa dk;Zjr lgk;d
v/;kid] leku foKkfir in gksus ds dkj.k uohu fu;qfDr
gsrq vgZ ugha gksaxsA
¼M+½ foKkiu eas vkosnu djus dh vfUre frfFk rd
lacaf/kr vH;FkhZ }kjk leLr fu/kkZfjr vgZrk,a iwjh gksuh
pkfg,A"
6. The appellant tendered his resignation on
28.03.2016, from the post that he had joined on
01.03.2016. He gave an affidavit on 29.03.2016 stating
that he was not in employment. The following day, he had
to appear for his interview/ counselling. The appellant was
selected, and he joined the post at Government Primary
School, Paudowali, Vikas Kshetra Khanpur, Roorkee,
District Haridwar. Thereafter, his appointment was
cancelled, by placing reliance on the aforesaid two clauses
in the subsequent advertisement.
7. The learned Single Judge found that the
appellant was not eligible to be considered for
appointment, since he did not meet the aforesaid two
conditions, and, consequently, dismissed his Writ Petition.
8. The submission of Mr. Rawat, the learned Senior
Counsel for the appellant, is that there was no
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concealment by the appellant, when he made his
application in response to the second advertisement as,
that by day, he had neither received the offer of
appointment in response to the first advertisement, nor he
had joined the said post. He submits that, since he was
not disqualified, when he made the application in response
to the second advertisement, he could not have been held
to be disqualified by placing reliance on the aforesaid two
clauses of the second advertisement.
9. We have heard the learned Senior Counsel for
the appellant, perused the record, including the impugned
judgment.
10. We do not find any merit in the submission of
Mr. Rawat. The terms of the second advertisement are
crystal clear. The plain meaning of the aforesaid two
clauses is that the applicant should not be on service in a
Government Primary School, as on the last date for
submission of the application in response to the
advertisement, which, in this case, was 05.03.2016. It is
not the appellant's case that he was not in service as on
05.03.2016, since he had joined the post in response to
the first advertisement on 01.03.2016, and he continued
in that post till after 05.03.2016. Admittedly, he tendered
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his resignation on 28.03.2016. Therefore, on plain
reading of the terms and conditions of the advertisement,
the appellant was disqualified from being selected in the
selection process under the second advertisement.
11. For the aforesaid reasons, we do not find any
merit in the present Special Appeal. The same is,
accordingly, dismissed.
12. Consequently, pending applications, if any, also
stand disposed of.
________________
VIPIN SANGHI, C.J.
_____________
R.C. KHULBE, J.
Dt: 09th December, 2022
Rahul
