Uttarakhand High Court
SPA/327/2022 on 18 October, 2022
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
THE HON'BLE THE CHIEF JUSTICE SRI VIPIN SANGHI
AND
THE HON'BLE SRI JUSTICE R.C. KHULBE
SPECIAL APPEAL NO. 327 OF 2022
18TH OCTOBER, 2022
BETWEEN:
Preeti & another .....Appellants.
And
State of Uttarakhand & others ....Respondents.
Counsel for the Appellants : Ms. Prabha Naithani, learned
counsel.
Counsel for the Respondent No.1 : Mr. S.S. Chaudhary, learned Brief
Holder.
Counsel for the Respondent No.2 : Mr. Pankaj Purohit, learned
counsel.
The Court made the following:
JUDGMENT:(per Hon'ble The Chief Justice Sri Vipin Sanghi)
The present special appeal is directed against the
judgment dated 02.09.2022, rendered by the learned Single
Judge in Writ Petition (S/S) No.420 of 2021, preferred by the
appellants. The learned Single Judge has dismissed the writ
petition.
2. The case of the appellants was that they had
participated in the recruitment process conducted by the
respondent- Uttarakhand Subordinate Service Selection
Commission for appointment to the post of Village Panchayat
Development Officer in District Uttarkashi. Though, their
names were initially shown in the select list, the same were
subsequently removed in the light of the judgment rendered
by this Court in Writ Petition (S/S) No.3820 of 2018. The case
of the appellants was that they were not made parties to the
said writ petition, and that judgment was passed behind their
back.
3. The admitted position is that the appellants belong
to the general category. They are both women and, therefore,
entitled to offer their candidature against four general
category posts, as well as four posts reserved for women
belonging to the general category. It appears that one Ms.
Ranjita Rana, which belonged to the OBC category, was
aggrieved by the fact that in the merit list issued by the
respondent, her name was not included against the general
category posts, even though she was more meritorious than
other candidates, who included the appellants, and were
shown in the merit list. The learned Single Judge allowed the
writ petition preferred by Ms. Ranjita Rana, being Writ
Petition (S/S) No.3820 of 2018, on 29.03.2019. The learned
Single Judge noticed several decisions of the Supreme Court
wherein it was held that a reserved category candidate
cannot be excluded from consideration against the general
category post, if such candidate is more meritorious, and is in
a position to secure a general category post on his/her own
merit, and that such a candidate would be adjusted against
the general category post. Therefore, merely because Ms.
Ranjita Rana belonged to the OBC category, she could not be
excluded from being considered against the general category
post. The decision of the learned Single Judge dated
29.03.2019 was upheld by a Division Bench of this Court in
Special Appeal No.473 of 2019, preferred by the Uttarakhand
Subordinate Service Selection Commission & another, vide
judgment dated 10.09.2019. As a result of the directions
issued by this Court, the respondents re-casted the merit list,
which led ouster of the appellants.
4. The admitted position is that the candidates who
were selected against the general category posts reserved for
women, secured more marks than either of the appellants.
Whereas, the last such candidate secured 53.75 marks, the
appellant No.1 secured 53.25 marks, and the appellant No.2
secured 49.25 marks in the examination. Thus, there is no
candidate who has secured less mark than the appellants,
and stands selected in the recruitment process.
5. The submission of Ms. Prabha Naithani, learned
counsel for the appellants is that the appellants were not
made parties in the aforesaid writ proceedings. In our view, it
was not necessary for the writ petitioner- Ms. Ranjita Rana,
to implead the appellants. She was aggrieved by the incorrect
procedure adopted by the respondent- Commission in
preparation of the merit list. She had no grievance against
the appellants. The writ proceedings were contested by the
Uttarakhand Subordinate Service Selection Commission and
they even preferred the special appeal against the judgment
of the learned Single Judge. It is not that the appellants could
have advanced any submission, which would make a
difference to the decisions rendered by the learned Single
Judge, as well as by the Division Bench of this Court, which
are premised in several decisions of the Supreme Court. Even
before us, Ms. Naithani does not say how the judgments
rendered in Writ Petition (S/S) No.3820 of 2018 and Special
Appeal No.473 of 2019 are unsustainable, or need
reconsideration.
6. Learned counsel for the appellants has further
submitted that the recruitment process was undertaken
district-wise, and the appellants were concerned only with
Uttarkashi district. In relation of other districts, there was no
similar challenge, and the merit lists were prepared and given
effect to in the same manner, as was initially prepared for
Uttarkashi district. Thus, discrimination is alleged by the
appellants. There is no concept of "negative equality" in law.
So far as District Uttarkashi is concerned, the illegality
committed by the respondent- Commission was corrected by
this Court, as that matter was brought before the Court. If
the authorities continued to perpetuate the illegality in
relation to other districts, the appellants cannot seek to take
advantage of that.
7. We, therefore, do not find any merit in this special
appeal, and the same is, hereby, dismissed.
(VIPIN SANGHI, C.J.)
(R.C. KHULBE, J.)
Dated: 18th October, 2022
NISHANT
