Anuraj Kant vs State Of Uttarakhand & Others

Lok Pal Singh, J

1) Petitioner has invoked the extraordinary writ jurisdiction of this Court under Article 226 of the Constitution of India seeking following reliefs, among

others:

i) Issue a writ, order or direction in the nature of certiorari quashing the impugned advertisement dated 13.02.2016, published in daily newspaper

‘Dainik Jagran, dated 14.02.2016, issued by respondent no. 5 and the entire selection process pursuant thereto.

ii) Issue a writ, order or direction in the nature of mandamus commanding and directing the respondents to promote the writ petitioner on the post of

Down Grade Principal in accordance with Regulation 2(1) of Chapter II of the Regulations 2009 w.e.f. 22.08.2016 along with all other benefits

attached to the post of Principal.

2) Brief facts, as narrated in the writ petition, are that the petitioner was initially appointed as Lecturer (Chemistry) in the Institution namely Janta

Inter College, Devraj Khal, Pauri Garhwal on 22.08.2006 by the orders of respondent no. 5. It is averred in the writ petition that the petitioner is

continuously serving and performing the duties in the capacity of Lecturer (Chemistry) in the institution. On 30.06.2015, one senior most Lecturer

named Raghunath Singh Rawat, who was discharging the duties of In-charge Principal of the institution got retired. The Management of the Institution

vide resolution no. 13 passed a resolution on 16.06.2015 to the effect that the petitioner shall be handed over the charge of the post of Principal. The

petitioner was handed over the charge of post of Principal on 01.07.2015 and since then he is continuously discharging his duty on the post of Principal

along with the duties of Lecturer (Chemistry).

3) It is stated that respondent no. 5 Committee of Management of the Institution issued an advertisement on 14.02.2016, inviting applications from the

eligible candidates for filling up the vacancy of the post of Principal. The minimum age prescribed for the said post was 30 years. The requisite

qualification was (A) Post Graduation degree from any recognized University established by law, the qualification of B.Ed. or the L.T. Diploma from

the recognized Institution. The administrative and teaching experience should be amongst the following:

a) three years administrative experience in a recognized Intermediate college.

b) working experience of five years on administrative post in a recognized High School.

c) 5 years teaching experience of intermediate classes or higher classes or a recognized teachers training institute.

d) 8 years teaching experience of teaching High School classes of a recognized institute.

e) 3 years administrative experience along with 2 years teaching experience in a recognized High School.

(B) Post graduation degree holders having experience of 15 years of teaching of High School / Intermediate classes of a recognized institution.

4) Since the petitioner was fulfilling the requisite qualification, he submitted his application for being considered for the said post. It is alleged in the

writ petition, that the process of selection could not be completed as yet. In the meantime, petitioner, who is serving in the Institution in the capacity of

Lecturer (Chemistry) since 22.08.2016 has been granted selection grade vide order dated 28.10.2016 and his salary was fixed accordingly in the

Grade Pay of Rs.5400/-.

5) It is further averred that the State Government in exercise of powers conferred under sub-section (4) of Section 18 of Uttarakhand School

Education Act, brought an amendment in Regulation 2(1) of Chapter II of the Regulations 2009, whereby an amendment was brought to the following

effect:

“Similarly for the promotion on the post of Principal up to Intermediate level, the permanent senior most and such Lecturers of the concerned

school, who possesses the qualification for being promoted under Chapter II of the Regulations, mentioned in Schedule “Ka†and when they

receive the selection grade after 10 years working in the capacity of Lecturer, while working on the regular pay scale, and if their work and conduct is

satisfactory then while granting them down grade pay scale, they shall be promoted on the post of down grade Principal by granting them down grade

pay scale and while working on the said post for five years in down grade, the pay scale of Principal shall be made available to them.â€​

6) It is contended that in view of the amendment brought on 25.03.2018 in Regulation 2(1) of Chapter II of the Regulation 2009, the petitioner became

eligible for being granted the benefit of down grade Principal as he has completed compulsory 10 years of service on 22.08.2016 and has been

accorded the selection grade also vide order dated 28.10.2016 w.e.f. 22.08.2016, hence under the aforementioned amended Regulations, petitioner has

become eligible for being granted the benefit of down grade Principal w.e.f. 22.08.2016 pursuant to the amendment brought into force vide

Notification dated 25.04.2018. It is specifically averred that the petitioner has made application / representation to the respondent authorities and

requested them to grant the benefit of amended regulations i.e. Regulation 2(1) of Chapter II of the Regulations 2009, but the respondent no. 5 has

clearly refused to send the name of the petitioner to the higher authorities for grant of benefit of the amended regulations and promote him as down

grade Principal pursuant to the amended Regulations. The respondent officials have published a list of candidates who have secured highest quality

point marks. It is alleged that after a lapse of more than two years and five months, the respondents have started pursuing the selection process which

remained pending for more than two years, as such, the action of the respondents is absolutely illegal and in utter violation of Regulation 10(Gha Gha)

which provides that if the selection process which has started earlier and could not be completed within a period of three months and if the same

cannot be completed within said stipulated period of three months, the posts shall be re-advertised.

7) In a nutshell, the main challenge in the writ petition is that since the petitioner has become qualified for being promoted as down grade Principal on

22.08.2016 and the impugned selection process started pursuant to the advertisement dated 14.02.2016 could not be completed so far, hence the

petitioner is legally entitled to be granted the promotion as a down grade Principal pursuant to the Regulation 2(1) of Chapter II of the Regulations

2009 and the action of the respondents in proceeding further pursuant to the advertisement after a lapse of more than two years and five months, is

absolutely illegal and hence the impugned advertisement and the entire selection process is liable to be quashed.

8) Counter affidavit has been filed by respondent nos. 2 to 4, wherein it has been stated that the petitioner has admitted the fact that he had applied for

the advertised direct recruitment post of Principal. It is further stated that the petitioner did not possess the eligibility for the post of down grade

Principal as per Notification dated 18.10.2011, therefore, he has applied for the direct recruitment on the post of Principal advertised through

Notification dated 13 / 14.02.2016. It is also stated that the seniority list for the post of Principal of the Institution has been prepared by the Chief

Education Officer, Pauri Garhwal after screening of the application forms received from the candidates and in that seniority list one Sri Anil Kumar

got first position with the quality points 71.72, one Sri Jaiveer Singh got 7th position with the quality points 64.90. The petitioners could not get any

place in the seniority list of first seven as he got 59.30 quality points. The aforesaid quality points list was uploaded in the website of N.I.C. Pauri on

22.07.2018, but vide G.O. no. 802 dated 01.08.2018 directions were issued that the advertisement for the appointment of teachers / non teaching staff

issued before 04.01.2017 stands cancelled with immediate effect and fresh advertisements has to be issued in accordance with the G.O. no. 531 dated

25.05.2018. It is stated that if the petitioner was eligible for the post of down grade Principal at that relevant time as per the provisions of Government

Orders, Act and Regulations 2009, he could have challenged the advertisement for direct recruitment before this Court, whereas the petitioner has

applied for direct recruitment instead of challenging the same before this Court. In reply to para 16 of the writ petition it is stated that vide Government

Letter dated 01.08.2018, the earlier advertisement for the post of Principal / Teacher / Teaching staff advertised in pursuant to the G.O. dated

04.01.2017 and 25.04.2018 were cancelled and it is provided in the aforesaid G.O. dated 01.08.2018 that for the aforesaid post afresh appointment

procedure will be initiated.

9) I have heard learned counsel for the parties and perused the contents of writ petition, counter affidavit as well as the entire material available on

record.

10) Learned counsel for the petitioner would urge that the petitioner has become qualified for being promoted as down grade Principal on 22.08.2016

and the impugned selection process started pursuant to the advertisement dated 14.02.2016 could not be completed so far, hence the petitioner is

legally entitled to be granted promotion as a down grade Principal in pursuance of Regulation 2(1) of Chapter II of the Regulations 2009. It is

contended that the action of the respondents in proceeding with the advertisement dated 14.02.2016, is absolutely illegal inasmuch as in the year 2016

there were old Regulations which provided the another criteria but later on by the notification dated 25.04.2018, the criteria as mentioned under

Regulation 10 (Gha Gha) has been amended and a new procedure has been brought in whereby entirely new process of awarding the marks in the

interview has been brought in and on this score alone the action of the respondents in proceeding with the old selection process, is illegal, arbitrary and

beyond jurisdiction as well as against the settled principle of law that the rules of the game cannot be changed in between during a selection process.

11) Per contra, learned Standing Counsel appearing on behalf of respondent nos. 2 to 4 would submit that if the petitioner was eligible for the post of

down grade Principal as per Regulations 2009, he could have challenged the advertisement for direct recruitment at the relevant point of time, but for

the reason best known to him, he has applied for direct recruitment instead of challenging the same before this Court. It is further submitted that vide

Government Letter dated 01.08.2018, the earlier advertisement for the post of Principal / Teacher / Teaching staff advertised pursuant to the G.O.

dated 04.01.2017 and 25.04.2018 were cancelled and it was directed that for the aforesaid post afresh appointment procedure will be initiated.

12) Before further discussion it would be apt to reproduce the relevant portion of the Government Letter dated 01.08.2018, issued by the Secretary,

Government of Uttarakhand addressed to the Director, Secondary Education, Uttarakhand. The same reads as under:

“Kindly refer to your letter no. Vi. Pra(Madhyamik)/10058/2018-19 dated 19th July 2018, wherein directions were sought on the proposals in the

matters in regard to compliance of directions issued by the Hon’ble High Court of Uttarakhand in the said writ petitions.

In respect of the above, after due consideration, I have been directed to state that the proposal for recommendation which has to be forwarded by

the Selection Committee to the Chief Education Officer / Divisional Addl. Director regarding selection of Teachers / Teaching staff of the non-

government aided schools of the State after completing the process of interview before 04 January 2017, compliance of orders passed by the

Hon’ble High Court of Uttarakhand in those proposals should be ensured and the advertisements relating to selection process in respect of all

other shall be cancelled.â€​

13) Having considered the rival contentions, in my opinion, on the date of advertisement the petitioner was not eligible for promotion as he submitted

his application against the advertisement. Subsequent amendment in the Act has no relevance as the eligibility criteria is to be considered on the date

of advertisement. Thus, the petitioner has no locus to maintain the writ petition or to challenge the advertisement on the ground of subsequent

amendment in the Act, more particularly, after he had applied for direct recruitment. Since the petitioner did not succeed in the selection process,

therefore, he cannot maintain the writ petition as he waived the right to challenge the advertisement.

14) My view is fortified by the ratio of the Hon’ble Apex Court rendered in the case of Ramesh Chandra Shah Vs Anil Joshi (2013) 11 SCC

309, whereby a Bench of Hon’ble Supreme Court following the earlier decisions held as under:

“24. In view of the propositions laid down in the abovenoted judgments, it must be held that by having taken part in the process of selection with full

knowledge that the recruitment was being made under the General Rules, the respondents had waived their right to question the advertisement or the

methodology adopted by the Board for making selection and the learned Single Judge and the Division Bench of the High Court committed grave error

by entertaining the grievance made by the respondents.â€​

15) Admittedly pursuant to the advertisement dated 13/14.02.2016, the petitioner submitted his application form though he was not eligible for the post

advertised and became eligible subsequent thereto on 22.08.2016. The petitioner could not be selected in the said selection process. Being an

unsuccessful candidate, the petitioner subsequent thereto cannot challenge the same selection process on any of the grounds.

16) For the reasons as discussed above and in view of the ratio of the Hon’ble Apex Court in the judgment (supra), the writ petition is not legally

maintainable. The petitioner has failed to make out a case of judicial review by this Court.

17) The writ petition is devoid of merit and is liable to be dismissed. The same is hereby dismissed. Parties shall bear their own costs.