Uttarakhand High Court
WPSB/270/2010 on 13 July, 2023
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
HON'BLE THE CHIEF JUSTICE SRI VIPIN SANGHI
AND
HON'BLE SRI JUSTICE RAKESH THAPLIYAL
WRIT PETITION (S/B) NO. 270 OF 2010
13TH JULY, 2023
BETWEEN:
Jitendra Chaudhary .....Petitioner.
And
State of Uttarakhand & others ....Respondents.
Counsel for the Petitioner : Mr. Jitendra Chaudhary,
petitioner-in-person.
Counsel for the State : Mr. S.S. Chauhan, learned
Deputy Advocate General.
Counsel for the Respondent No.2 : Mr. D.S. Patni, learned Senior
Counsel assisted by Mr. Nandan
Arya, learned counsel.
Counsel for the Respondent No.6 : Mr. Shashank Saun, proxy
counsel for Mr. S.K. Chaudhary,
learned counsel.
Counsel for the Respondent No.7 : Mr. Ajay Veer Pundir, learned
counsel.
The Court made the following:
JUDGMENT:(per Hon'ble The Chief Justice Sri Vipin Sanghi)
The petitioner has preferred the present writ
petition to seek the following reliefs:-
"(I) Issue a writ, order or direction in the nature of
certiorari, to call for the record and pleased to quash the
impugned letter no.889/30-1-201026(1)/2004 dated 30-7-
2010 (Annexure-2) passed by respondent no.1 in favour of
respondent no.6 and 7 alongwith the final result of
Uttarakhand Higher Judicial Services Examination- 2009 in
relation to O.B.C. reserve category (Annexure-5 & 6)
pertaining to the respondent no.6 and 7 respectively.
(II) Issue a writ, order or direction in the nature of
mandamus, commanding and directing the respondent no.2
to conduct fresh viva-voce (Interview) of all OBC candidates
who have secured more than 40% cut off marks including the
petitioner.
(III) Issue a writ, order or direction in the nature of
mandamus, commanding and directing the respondent no.2
to delete the name of respondent no.6 and 7 from the list of
main examination issued on 9-12-2009.
(IV) Issue a writ, order or direction which this Hon'ble
Court may deem fit and proper under the circumstances of
the case".
2. The case of the petitioner is that in the year 2009,
respondent no.2, i.e. High Court of Uttarakhand, issued an
advertisement inviting application to fill-up the posts of
Additional District & Session Judges from amongst the
practicing advocates. There were 12 vacant posts advertised
by respondent no.2, of which, two were reserved for the
Other Backward Class (OBC) category candidates.
3. The case of the petitioner is that he too applied,
being a practicing advocate, and since he belong to the OBC
category, he sought reservation under that category. The
results of the written examinations were declared and the
petitioner's name was shown at Sl. No.93, having secured
126 marks in total, in the three papers of written
examination. Respondent no.2 called 13 candidates for viva
voce on 19.12.2009. However, the name of the petitioner did
not appear in the said list. Interviews were held, and
thereafter, total marks allocated to 128 candidates after
interviews were declared.
4. It is the case of the petitioner that respondent
nos.6 and 7, who were selected against two of the vacancies
reserved for OBC category, were both ineligible for being
appointed, and in that basis, the petitioner not only assails
their appointments, but also seeks the relief that other OBC
category candidates, who had secured more than 40%
marks, including the petitioner, should be called for interview
to fill up two vacancies reserved for the OBC category
candidates.
5. So far as respondent no.6 is concerned, the
submission of the petitioner is that, though he was eligible at
the time when the advertisement was issued, he incurred
disqualification and became ineligible upon his appointment
as an Additional District & Sessions Judge in the State of
Madhya Pradesh in October, 2009. However, respondent no.6
resigned from that post after declaration of results by
respondent no.2, and thereafter, he joined the post of
Additional District & Sessions Judge in the State of
Uttarakhand. The petitioner has placed reliance on clause
5(vi) of the Notification dated 17.06.2009, which states that
'any person who is already in the service of Union or of the
State shall not be eligible for recruitment in Uttarakhand
Higher Judicial Service'.
6. The petitioner has placed reliance on the judgment
of the Supreme Court in the case of Dheeraj Mor vs.
Hon'ble High Court of Delhi, Civil Appeal No.1698 of
2020, in support of his aforesaid submission.
7. So far as respondent no.7 is concerned, the
challenge to his appointment is premised on the submission
that on the date of the advertisement, respondent no.7 had
shown his total experience of practice, as an advocate, as 07
years 02 months. The minimum experience prescribed in
Clause 4(ii), states that 'applicants for recruitment to the
service must be advocates of not less than seven years
standing as on the first day of January. 2009'.
8. The submission of the petitioner is that respondent
no.7 pursued the two year full time LLM Course from Meerut,
and therefore, he could not have been in legal practice, as
claimed by him at Roorkee. Moreover, he showed himself to
be in service at respondent no.8- College. The petitioner
submits that after he had made averments regarding the
employment of respondent no.7 with respondent no.8, the
records have been manipulated by them.
9. We have considered the submission of the
petitioner, who appears in-person.
10. The petitioner is a practicing advocate of this Court.
He preferred the writ petition in the year 2010. This petition
has remained pending for 13 years. During this period,
respondent nos.6 and 7 have continue to render service as
Additional District & Session Judges in the judiciary of the
State.
11. Keeping in view the aforesaid position, at this late
stage, we are not inclined to entertain this petition to grant
any of the reliefs sought by the petitioner in exercise of our
discretionary jurisdiction under Article 226 of the Constitution
of India. Merely because the petitioner may make out a case,
is no reason for us to interfere, if we find that disturbing the
status quo adversely impact the rights of several persons,
and the petitioner would not gain any substantial relief, in
any case.
12. Pertinently, even if the appointment of respondent
nos.6 and 7 is to be recalled, or set-aside, it is not that the
petitioner would become entitled to be automatically
appointed to one of the two posts of Additional District &
Session Judge in the OBC category. Admittedly, the petitioner
ranked much lower in the merit list prepared for the OBC
category candidates. There were others who ranked higher
and they too were not appointed due to their lower merit,
compared to the merit of respondent nos.6 and 7. The
vacancies relate to the year 2009, and obviously, after
passage of 14 years, no mandamus can be issued, that the
respondents should appoint another qualified OBC category
candidate, who had applied in response to the advertisement
in question.
13. For the aforesaid reason, we are not inclined to
entertain this petition, and disturb the appointments of
respondent nos.6 and 7. The same is accordingly dismissed.
14. We, however, leave it open to the petitioner to
pursue such other remedy, as may be available to him in law,
to claim his reliefs against the official respondents.
15. Pending application, if any, also stands disposed of.
(VIPIN SANGHI, C.J.)
(RAKESH THAPLIYAL, J.)
Dated: 13th July, 2023
NISHANT
