Uttarakhand High Court

Harendra Kumar vs State Of Uttarakhand on 4 January, 2022

     IN THE HIGH COURT OF UTTARAKHAND AT
                   NAINITAL

          Writ Petition (S/S) No. 1592 of 2019


Harendra Kumar                               ...... Petitioner

                               Vs.

State of Uttarakhand
and Others                                  ..... Respondents



Mr. Ganesh Kandpal, Advocate for the petitioner.
Mr. Narain Dutt, Brief Holder for the State of Uttarakhand.



Hon'ble Ravindra Maithani, J.

Petitioner responded to an advertisement

for the post of Assistant Teacher, LT grade. Some

candidates were shortlisted for viva voce/interview.

Finally, a merit list was prepared in which the

petitioner stood at serial no. 2. The candidate at serial

no. 1 who is respondent no. 5 in the instant petition

was offered appointment but he did not join within the

given time or within the extended time. The

management of the school requested the Chief

Education Officer, Bageshwar, for according approval to

the appointment of petitioner, who was at serial no. 2 in

the merit list, but, it was not accorded.

2. Thereafter, the petitioner filed Writ

Petition (S/S) No. 452 of 2017, which was decided on

23.03.2017 by the following order;

"Mr. Jitendra Chaudhary, Advocate for the petitioner.

Mr. Vikas Pande, Standing Counsel for the State/respondent nos. 1 to 4.

Petitioner has already made a representation on 16.03.2017 to the Competent Authority for redressal of his grievance.

Accordingly, the present petition is disposed of with the direction to the Competent Authority to decide the representation of the petitioner in the light of Annexure No. 6 dated 09.01.2017 by passing a speaking/detailed order within a period of three weeks from today."

3. The petitioner thereafter made a

representation, but, it was rejected on the ground that

the appointments have been banned by a government

order. Thereafter the Committee of Management of the

school filed Writ Petition (M/S) No. 1835 of 2018 ("the

second petition") for the appointment in the instant

case. The question before this Court in the second

petition was as to whether the amendments will apply

in the present case or it will apply for future cases. In

paragraphs 5 and 6 of its judgment dated 31.07.2018,

the Court observed as hereunder;

"5. This Court while dealing with the same amendments in Writ Petition (M/S) No. 1871 of 2017 (Committee of Management Sri Guru Ram

Rai Inter College Mothrawala v. Secretary Department of Education, State of Uttarakhand and others) and other connected petitions, has held in its order dated 09.10.2017 that where the selection process has been completed, and the names have been forwarded for approval, they shall be governed by old Rules and there should be no de novo process, but where the selection process has not been completed, the amendments would apply and fresh advertisement be issued.

6. The present case definitely falls under the category where the selection process has already been completed. There is absolutely no need for a fresh selection process. The Chief Education Officer, Bageshwar must look into the matter and take a decision within one week from the date of production of a certified copy of this order."

(Emphasis supplied)

4. The matter was again considered by the

Chief Education Officer, Bageshwar, but still petitioner

was not offered an appointment.

5. In between on 26.06.2018, Government

lifted the ban on appointment. On 07.07.2018, the

Director, Secondary Education informed the Chief

Education Officer about lifting of the Ban.

6. It is thereafter, that the petitioner again

approached this Court in WPSS No. 921 of 2019 ("the

third petition").

7. In third petition, on behalf of the

petitioners, the following arguments were advanced;

"Learned counsel for the petitioner has drawn my attention to Government Order dated 26.06.2018, whereby ban imposed on new appointments was lifted, which is enclosed as Annexure SA-2 to the supplementary affidavit filed by petitioner. The letter dated 07.07.2018 issued by Director, Secondary Education is enclosed as SA-1 to the said affidavit which also talks about lifting of ban on new appointments."

8. The Court, in the third petition, in its

order dated 29.04.2019 passed the following orders;

"It is, thus, apparent that Chief Education Officer, Bageshwar has rejected petitioner's claim for appointment without application of mind to relevant aspects. In such view of the matter, the writ petition is allowed. Impugned order dated 27.10.2018 is quashed. The Chief Education Officer, Bageshwar is directed to re-consider petitioner's claim within a period of eight weeks from the date of production of a certified copy of this order."

9. Surprisingly, the Chief Education Officer,

Bageshwar, on 01.06.2019 again rejected the

representation of the petitioner on the ground that the

order dated 29.04.2019 passed by the Court in the

third petition cannot be complied due to certain

changes made in the appointment process by

government order dated 25.04.2018. This order dated

01.06.2019, it appears, is definitely as an appellate

order passed against order of this Court dated

29.04.2019 passed in the third petition.

10. In the second petition, this Court has

categorically observed that the changed rules would

apply to the future appointments and not the process,

which have already been completed, as quoted

hereinbefore, but, the Chief Education Officer, it

appears, did not bother to respect the orders of this

Court.

11. This tendency has to be curtailed. This

Court requested learned State Counsel to tell as to how

could he defend this order dated 01.06.2019, passed by

the Chief Education Officer, in which he writes that the

compliance of order dated 29.04.2019, passed by this

Court, in the third petition, may not be done. He would

submit that the officer has interpreted the Government

Order.

12. This tendency of the Education

Department has already been noted by the Hon'ble

Supreme Court in the case of State of Uttarakhand and

others vs. Kanhaya Lal, 2014 (14) SCC 388. In

paragraph 3 of this judgment, the Hon'ble Supreme

Court has observed, "It is palpably clear that the

Additional Director of Education, Garhwal Division,

Pauri, has contumaciously adorned itself with

appellate powers over the decision of the learned

Single Judge of the High Court. We shall desist from

making any further directions, however, leaving it

open to the respondent to initiate proceedings, if so

advised."

13. In paragraph 5 of the judgment in the case

of Kanhaya Lal (supra) the Hon'ble Supreme Court

further observed, as hereunder;

"5. We do not wish to make any further observations on the approach and the conduct of the Additional Director of Education, Garhwal Region, Pohri, in terms of his order dated 23-5- 2008. In this case, the writ petitioner is a Teacher and it is unfair to him to be repeatedly drawn into fighting futile, if not frivolous litigation by the State. It has become the practice of the State to carry on filing appeals even where the case does not deserve it, knowing fully well that private respondents will be physically fatigued and economically emasculated in pursuing protracted litigation."

(emphasis supplied)

14. The Court further requested learned State

Counsel as to why the Chief Education Officer,

Bageshwar who passed the order dated 01.06.2019 may

not be heard before the Court may issue any direction

with regard to his working.

15. Learned State Counsel submit that this

Court may pass conditional order to the Chief

Education Officer, Bageshwar to comply with the orders

or direction for his personal appearance.

16. The observation made by the Hon'ble

Supreme Court in Kanhaya Lal (supra) squarely fits-in

in the instant case also. Repeatedly, the Chief

Education Officer, Bageshwar has sat over the

judgment of this Court, particularly, this order dated

01.06.2019 is nothing but prima facie contempt of this

Court.

17. Before this Court proceed to decide this