Uttarakhand High Court
Union Of India Through Its vs Arvind Kumar And Others on 3 April, 2024
Author: Pankaj Purohit
Bench: Manoj Kumar Tiwari, Pankaj Purohit
HIGH COURT OF UTTARAKHAND AT NAINITAL
Special Appeal No. 85 of 2023
Union of India through its
Secretary and others ........Appellants
Versus
Arvind Kumar and others ........Respondents
With
Special Appeal No. 39 of 2023
Special Appeal No. 86 of 2023
Special Appeal No. 87 of 2023
Special Appeal No. 88 of 2023
Special Appeal No. 89 of 2023
Special Appeal No. 90 of 2023
Special Appeal No. 94 of 2023
Special Appeal No. 95 of 2023
Special Appeal No. 101 of 2023
Special Appeal No. 102 of 2023
Special Appeal No. 103 of 2023
Special Appeal No. 105 of 2023
Special Appeal No. 107 of 2023
Special Appeal No. 108 of 2023
Special Appeal No. 109 of 2023
Special Appeal No. 110 of 2023
Present:-
Mr. Rajesh Sharma, learned counsel for the appellants.
Mr. A.S. Rawat, learned Senior Advocate assisted by Mr. D.S. Mehta,
learned counsel for respondent no.1
Mr. Pankaj Chaturvedi, learned counsel for respondent no.3.
Mr. S.S. Chaudhary, learned Brief Holder for the State.
Dated: 03rd April, 2024
Coram : Hon'ble Manoj Kumar Tiwari, J.
Hon'ble Pankaj Purohit, J.
Per: Hon'ble Manoj Kumar Tiwari, J.
Since common question of law and facts are involved in
these appeals, therefore these are being heard and decided by this
common judgment, however for the sake of brevity facts of SPA No.39
of 2023 alone are being considered and discussed.
2. Union of India has filed these appeals challenging the
judgment dated 12.07.2019 rendered by learned Single Judge of this
Court in Writ Petition (S/S) No.787 of 2018 and other 16 connected writ
petitions. Operative portion of the impugned judgment is extracted
below:-
"8. In view of the above, the aforementioned writ petitions stand
allowed. A mandamus is issued directing the respondents to give
appointment to the petitioners on the post of Constable (G.D) for
Border District in the Central Armed Police Forces against unfilled
vacancies within a period of 30 days from the date of production of
certified copy of this judgment."
3. Writ Petition (S/S) No.787 of 2018 was filed by Sumit
Kumar seeking the following substantive reliefs:-
"(i) A writ order or direction in the nature of mandamus
directing the respondents to declare result/selection on all vacant
advertised posts of the "CONSTABLES (GD) in CRPF, NIA & SSF
and RIFLEMAN (GD) in ASSAM RIFLES EXAM-2015".
(ii) A writ order or direction in the nature of mandamus
directing the respondents to select the petitioner against vacant
advertised post of constable in CONSTABLES (GD) in CRPF, NIA
& SSF and RIFELMAN (GD) in ASSAM RIFLES EXAM-2015
being qualified as per merit and medically found fit.
(iii) A writ order or direction in the nature of mandamus
directing the respondents to select the petitioner against vacant
advertised post for border district candidates or any other vacant
post of constable in CONSTABLES (GD) in CRPF, NIA & SSF
and RIFLEMAN (GD) in ASSAM RIFLES EXAM, 2015."
4. In a nutshell, case of Sumit Kumar was that he participated
in a selection for appointment to the post of Constable (G.D.) in Central
Armed Police Forces. The said selection was held by Staff Selection
Commission and selection process was set in motion by advertisement
dated 24.01.2015. By the said advertisement total 64066 vacancies, on
the post of Constable (G.D.) in different Central Armed Police Forces
were advertised. Out of those 64066 vacancies, 710 vacancies were
earmarked for candidates belonging to State of Uttarakhand. Out of these
710 vacancies, 419 vacancies were available only to candidates belonging
to Border Districts of Uttarakhand namely, Pithoragarh, Chamoli,
Uttarkashi and Champawat.
5. The case setup by Sumit Kumar in the writ petition was that
since he scored more marks than the minimum cut-off marks fixed by the
Selecting Body and there were certain vacancies which remained unfilled
after conclusion of selection process, therefore he was entitled to be
appointed against one such unfilled vacancy however he was denied right
to be considered for appointment, which is unjust and illegal.
6. The Writ Petition filed by Sumit Kumar with 16 other
connected writ petitions was allowed by learned Single Judge of this
Court vide judgment dated 12.07.2019.
7. Union of India through Ministry of Home Affairs was not a
party to the writ petition, therefore it sought leave to appeal against the
judgment rendered by learned Single Judge. Leave to appeal was granted
to Union of India vide order dated 19.07.2023, as all Central Armed
Police Forces are controlled by Ministry of Home Affairs, therefore it
was necessary party in the matter.
8. Learned counsel for the appellants submitted that writ
petitions were allowed by learned Single Judge by relying upon a
judgement rendered by Hon'ble High Court of Patna, in the case of
Pintoo Kumar Singh & others Vs. Union of India & others, in which the
only direction issued to the respondents was to consider claim of the writ
petitioners for appointment, against the mismatch/leftover vacancies. He
thus submitted that learned Single Judge of this Court erred in issuing a
positive direction to give appointment to the appellants on the post of
Constable (G.D.) for Border Districts, regardless of their merit.
9. He further contends that appellants were not able to make
out a case for issuance of such positive direction and the only case they
could make out was that appellants had scored marks more than the cut-
off marks fixed by the Selecting body and there is no finding recorded in
the impugned judgment that as per their score of marks, appellants were
entitled for appointment. Thus he submits that the direction issued to the
Authorities to give appointment to the appellants is unwarranted and
unsustainable.
10. Learned counsel for the appellants further contended that
the selecting body i.e., Staff Selection Commission made
recommendation against all 710 vacancies, which were earmarked for
State of Uttarakhand, thus, there are no leftover vacancies available,
against which appellants could have been appointed. He also submitted
that after the selection in-question, which completed in the year 2017,
three more selections were held in year-2018, 2021 and 2022.
11. Per contra¸ Mr. Avtar Singh Rawat, learned counsel
appearing for the writ petitioners (respondent herein) contends that the
statement made on behalf of the appellants that all 710 vacancies
earmarked for State of Uttarakhand were filled up pursuant to the
selection in-question is incorrect. He submits that although, the selecting
body made recommendations against 710 vacancies earmarked for State
of Uttarakhand and the selected candidates were offered appointment by
the headquarters of the concerned Central Armed Police Forces, however
out of the candidates who were offered appointment, against these
vacancies, 14 did not turn up for joining and candidature of 8 candidates
was rejected on the ground of mismatch with the information/documents
supplied with their application. Thus he submits that there are as many as
22 vacancies which are still available against the 710 vacancies
earmarked for State of Uttarakhand. Thus he submits that appellants have
a vested right of appointment against these vacancies.
12. In reply to the submission made by Mr. Avtar Singh Rawat,
learned counsel for the appellants, Mr. Rajesh Sharma submits that the 22
unfilled vacancies referred to by learned counsel for the respondent were
carried forward to the subsequent selection as information regarding such
unfilled vacancies could be received by the concerned Force
Headquarters after 6 to 8 months from the date of completion of selection
process.
13. Since 22 vacancies which were earmarked for candidates
from State of Uttarakhand could not be filled for one reason or the other,
therefore appellants have a right to be considered for appointment against
those 22 unfilled vacancies. However their claim has to be considered as
per their score of marks in the selection. By the impugned judgment,
respondents were directed to give appointment to the appellants
regardless of their merit in the selection in-question. Selection and
appointment in public services has to be made strictly as per merit of the
candidate and the direction issued by learned Single Judge overlooks this
salutary principle, therefore a limited interference with the impugned
judgment would be warranted. Hon'ble High Court of Patna in the case
of Pintoo Kumar Singh (supra) has also directed the respondents to
consider case of the writ petitioners for appointment as Constable (G.D.),
which enables the selecting body/employer to make comparative
assessment of merit of the candidates on case to case basis.
14. In such view of the matter, we modify the impugned
judgment dated 12.07.2019 and direct the Selecting Body i.e., Staff
Selection Commission and the appointing authority for the post of
Constable (GD) to consider claim of the respondent for appointment as
Constable (G.D.) on case to case basis, as per their ranking in the merit
list.
15. The special appeals stand disposed of in aforesaid terms.
(Pankaj Purohit, J.) (Manoj Kumar Tiwari, J)
SK
