WPSB/422/2022
2022 Latest Caselaw 2236 UK

      IN THE HIGH COURT OF UTTARAKHAND
                 AT NAINITAL
          HON'BLE THE CHIEF JUSTICE SRI VIPIN SANGHI
                             AND
                HON'BLE SRI JUSTICE R.C. KHULBE

                              22ND JULY, 2022

         WRIT PETITION (S/B) No. 422 OF 2022

Between:

Sri Nitin.
                                                                   ...Petitioner
and

State of Uttarakhand and others.

                                                               ...Respondents

Counsel for the petitioner.             :   Mr. Ganesh     Kandpal,    the    learned
                                            counsel.

Counsel for the respondent nos. 1       :   Mr. A.K. Bisht, the learned Additional
to 3.                                       Chief Standing Counsel for the State of
                                            Uttarakhand.


JUDGMENT : (per Sri Vipin Sanghi, C.J.)

              The petitioner has preferred the present Writ

Petition seeking quashing of the advertisement dated

15.12.2021, whereby the respondents have advertised

the    post     of    Principal             in   the   respondent            no.   4

intercollege,        for      filling       up   the     same         by     direct

recruitment. The petitioner seeks a mandamus that he

should be appointed to the post of downgraded Principal,

rather than the post being filled up by appointment of a

Principal through direct recruitment.
 2.        The case of the petitioner is that, being the

senior-most Assistant Teacher L.T. Grade (Hindi), he

was   appointed   as   the   In-charge      Principal   of   the

respondent-Institution upon retirement of the erstwhile

Principal on 31.03.2020.         Since then, he has been

serving in that capacity. The petitioner is aggrieved by

the fact that the respondent-Institution has issued the

advertisement on 15.12.2021 inviting applications to fill

up the post of Principal of the respondent-Institution.


3.        The submission of the learned counsel for the

petitioner is that the post of Principal can be filled up

either by promotion, or by direct recruitment.          He has

drawn the attention of the Court to Regulation 2(1) of

the Uttarakhand School Education Regulations, 2009 (as

amended), which stipulates minimum ten years' service

in ordinary grade, and that the candidate should have

also received the selection grade for becoming eligible

for appointment as the Principal.            Admittedly, the

petitioner does not satisfy either of these conditions.


4.        In the face of the petitioner's ineligibility, the

submission of the learned counsel for the petitioner is

that there is a power of relaxation in Rule 4 of the the

Uttarakhand    Government        Servants     Relaxation      in
                             2
 Qualifying Service for Promotion Rules, 2010. The said

Rule states that, in case a post is filled by promotion and

for such promotion a certain minimum length of service

is prescribed on the lower post or posts, as the case may

be, and the required number of eligible persons are not

available in the field of eligibility, such prescribed

minimum length of service may be suitably relaxed up to

fifty   percent   by   the   Administrative   Department   in

consultation with the Personnel Department of the

Government, excluding the period of probation as laid

down for the said lower post or posts, as the case may

be. There are a couple of provisos to the said Rule, with

which we are not concerned.


5.         In our view, the aforesaid relaxation Rule is

not attracted in the present case, since the post in

question is not required to be filled up only by promotion

and, admittedly, the same can be filled up by direct

recruitment as well. Moreover, it cannot be said that the

required number of eligible persons are not available in

the field of eligibility, as it is not the petitioner's case

that eligible candidates are not available even in the

open market.




                               3
 6.            The further submission of the learned counsel

for the petitioner is that the respondents are bound to

re-issue the advertisement, as the recruitment process

has not been completed within three months of the

advertisement being issued.                In this regard he has

drawn our attention to the amended Regulation 10(dd)

of the Uttarakhand School Education Regulations, 2009.

The said amended Regulation reads as follows :-




7.            The said amended Regulation, in our view, can

only be read as directory, as cancellation of the

advertisement, and issuance of a fresh advertisement,

merely because there is some delay in the process of

filling up the vacancies advertised, would defeat the

whole    purpose         of    inviting        applications   through

advertisement to fill up the post, which is lying vacant,

without any delay.            The possibility of the incumbent

officiating    officer   contriving       to    delay   the   selection

process of the post, which is advertised - to perpetuate

his tenure, also cannot be ruled out.


                                   4
 8.         We, therefore, do not find any merit in the

present Writ Petition and the same is, accordingly,

dismissed.


9.         In sequel thereto, pending application, if any,

also stands disposed of.


                                   ________________
                                    VIPIN SANGHI, C.J.


                                       _____________
                                        R.C. KHULBE, J.

Dt: 22nd July, 2022 Rahul