SPA/798/2017
2023 Latest Caselaw 436 UK

             IN THE HIGH COURT OF UTTARAKHAND
                                  AT NAINITAL
                   HON'BLE THE CHIEF JUSTICE SRI VIPIN SANGHI
                                          AND
                      HON'BLE SRI JUSTICE ALOK KUMAR VERMA

                    SPECIAL APPEAL NO. 798 OF 2017
                           21ST FEBRUARY, 2023
BETWEEN:
State of Uttarakhand & others                                  .....Appellants.
And

Nipendra Kumar Nath                                            ....Respondent.

Counsel for the Appellants : Mr. B.S. Parihar, learned Standing Counsel.

Counsel for the Respondent : Mr. Mukesh Rawat, proxy counsel for Mr. Ajay Veer Pundir, learned counsel.

The Court made the following:

JUDGMENT:(per Hon'ble The Chief Justice Sri Vipin Sanghi)

Delay Condonation Application (CLMA No.12806/2017)

Learned counsel for the respondent does not fairly

oppose the delay in preferring the present special appeal.

2. For the reasons stated in the affidavit filed in

support of the delay condonation application, the delay

condonation application is allowed, and the delay of 147 days

in preferring the special appeal is, hereby, condoned.

Special Appeal No.798 of 2017

3. The present special appeal is directed against the

order dated 12.04.2017, passed by the learned Single Judge,

in Writ Petition (S/S) No.681 of 2016 preferred by the

respondent. The impugned order is short, and the same reads

as follows:-

"Petitioners participated in the selection process for the post of Assistant Teacher Primary (Arts). He belongs to Scheduled Caste category.

The candidature of the petitioner was rejected merely on the ground that he has not mentioned his subject code. The petitioner has passed B.Ed. examination in the year 2007 and T.E.T.-I in the year 2011. His quality points are 48.7178.

The mistake committed by the petitioner was not grave in nature. The respondents knew that the petitioner has submitted the application for the post of Assistant Teacher Primary (Arts).

The application has been rejected by adopting a very technical approach. Clause 7(Jha) of the advertisement was required to be construed liberally, more particularly, when the respondents were dealing with the applications received from the candidates belonging to the Scheduled Caste category.

Accordingly, the writ petition is allowed. The respondents are directed to consider the case of the petitioner to the post of Assistant Teacher Primary (Arts), within a period of ten weeks from today with all consequential benefits."

4. The submission of learned Standing Counsel for the

appellants is that, in the advertisement issued by the

appellants, as well as in the application form, it had

repeatedly and clearly been stated that incomplete

application forms will be liable to be rejected. In this regard,

attention has been drawn to Paragraph Nos.7(ग) and (झ) of

the advertisement. It reads as follows:-

"(ग) आवेदन प का ा प उ राखंड िव ालयी िश ा के वेब साइट www.schooleducation.uk.in पर उपयोगाथ उपल होगा, िजसे (A-4 साइज) के पेपर पर डाउनलोड िकया जा सकेगा । समाचार प म कािशत िव से भी आवेदन प का ा प ा िकया जा सकेगा। अिभयाथ िनधा रत शु के साथ िनधा रत ा प पर अपना आवेदन प पंजीकृत डाक/ ीड पो से रा शैि क अनुस ान

एवं िश ण प रषद् उ राखंड, राजीव गाँ धी नवोदय िव ालय प रसर, ननूरखेड़ा, दे हरादू न के पते पर इस कार ेिषत करगे िक ेक दशा म आवेदन प अंितम ितिथ 05 माच, 2016 के सायं 5.00 बजे तक कायालय म ा हो जाये । आवेदन प के िलफाफे के ऊपर प से सहायक अ ापक ाथिमक अथवा सहायक अ ापक ाथिमक (उदू ) हे तु आवेदन प वग (िव ान / िव ाने र) तथा जाित व ैितज आर ण कोड को आव क अंिकत िकया जाये। िनधा रत अंितम ितिथ (05 माच 2016) एवं समयावाध (सायं 5.00 बजे तक) के प ात् ा आवेदन प ों पर िकसी भी दशा म िवचार नहीं िकया जायेगा। डाक िवल के िलए िवभाग की कोई िज ेदारी नहीं होगी।

     साधारण डाक/ को रयर/द ी आवेदन प िकसी भी दशा म                  ीकार नहीं होंगे। आवेदन
     प     म अपूण   िवि   एवं वां िछत    माण प     की    मािणत छाया ित संल    न होने पर
     आवेदन िनर      कर िदया जायेगा।
             (झ) आवेदन प      की    ुिटपूण अंकनाओ हे तु अिभयाथ         यं उ रदायी होगा।
      ुिटपूण, अ     एवं अपूण आवेदन प िनर           कर िदए जायेगे ।"

5. Even in the application form, it was again informed

to all the candidates to carefully fill their forms, as incomplete

application forms were liable to be rejected. Despite the

same, the respondent failed to disclose the subject code, i.e.

िवषय वग, against Column No.9 of the application form. He

further submits that the appellants had filed the counter-

affidavit, disclosing in Paragraph No.9 that the last selected

candidate in 'Arts' subject belonging to the Scheduled Caste

category had secured 58.18 quality points, whereas,

admittedly, the respondent had obtained only 48.7178 quality

points. Therefore, in any event, he was not entitled to be

considered for appointment to the post of Assistant Teacher

(Primary) (Arts).

6. We have heard learned counsels.

7. The reasoning adopted by the learned Single Judge

cannot be accepted. In matters of public employment or

competition for educational courses, where a very large

number of candidates participate, it is absolutely essential

that the candidates fill the application forms in terms of the

terms and conditions contained in the advertisement. It was

for the respondent-writ petitioner to disclose the subject

code, in respect whereof, he was offering his candidature.

The appellants could not have been left to fill up the said

lacuna. The respondent had failed to disclose that he was

making his application for the post of Assistant Teacher

(Primary) (Arts). The approach of the appellants cannot be

described as technical, as observed by the learned Single

Judge. The adoption of the reasoning provided by the learned

Single Judge would play havoc with the public examinations

and recruitment processes, if accepted. We, therefore, reject

the reasoning contained in the impugned order.

8. We also find that the learned Single Judge has not

looked at the stand of the respondents-appellants in their

counter-affidavit, wherein they disclose that the cut-off

quality points for the post of Assistant Teacher (Primary)

(Arts) was 58.18 quality points, whereas, the respondent-writ

petitioner secured only 48.7178 quality points. Had this fact

been noticed, there would have been no occasion to issue any

direction to the appellants.

9. In these circumstances, we allow the present

special appeal, and set-aside the impugned order.

10. Pending application, if any, also stands disposed of.

(VIPIN SANGHI, C.J.)

(ALOK KUMAR VERMA, J.) Dated: 21st February, 2023 NISHANT