Asha Ram Chamoli and others vs State of Uttarakhand & others

Sharad Kumar Sharma, J.

K.M. JOSEPH, C.J. (Oral)

Since all these appeals raise common questions, we are disposing of the same by this common judgment.

There is some delay in filing Special Appeal Nos. 3 of 2017, 4 of 2017, 5 of 2017, 6 of 2017 and 8 of 2017. After hearing the learned counsel for the

parties and also taking note of the fact that, in one of the connected appeals, namely, Special Appeal No. 7 of 2017, the delay has already been

condoned and the appeal has been admitted and as we are proceeding to hear the appeals themselves on consent of the parties, we are inclined to

condone the delay. Accordingly, the delay will stand condoned and the Applications for condonation of delay will stand allowed.

The appellants in these six appeals are the writ petitioners. The appeals are directed against a common judgment dated 19.11.2016 passed by a

learned Single Judge disposing of seven writ petitions.

Briefly put, facts are that an Advertisement came to be issued sometime on 04.11.2004 advertising 46 vacancies of LT Grade Teachers in the

Garhwal Region for the subject “Physical Educationâ€. The qualification, which was prescribed in the Advertisement, was that the candidate must

be a Graduate. It was, further, stipulated that the candidate must possess Diploma in Physical Education. The same reads as under:

“Bachelor degree from a recognized university or a degree recognized by the Government as equivalent thereto, and diploma in physical

education.â€​

Writ Petition (S/S) No. 95 of 2009 came to be filed by those candidates, who possessed, not Diploma in Physical Education, but Degree in Physical

Education. According to them, as it is the higher qualification in the same stream, they would be eligible and should also be considered for selection.

An interim order was passed in their favour on 06.07.2009. The interim order was vacated and writ petition was admitted. This led to the filing of

Special Appeal No. 240 of 2009 before a Division Bench of this Court, as stay stood vacated on 08.12.2009. Respondents were permitted to go ahead

with selection, but same was made subject to decision of the writ petition. The Division Bench, while relying on judgment of Jyoti K.K. vs. Kerala

Public Service Commission, reported in JT 2002 (Supp. 1) SC 85, by judgment dated 08.03.2010, took the view that the degree holders were entitled to

be considered against posts advertised. This led to selection of certain degree holders. Equally, this led to termination of services of certain diploma

holders (apparently, on the basis that, on an inter-se evaluation of the merit between the degree holders and the diploma holders, the diploma holders

secured lower marks). The diploma holders filed writ petitions being Writ Petition (S/S) No. 912 of 2010 and Writ Petition (S/S) No. 925 of 2010. An

interim order was passed staying their termination. Some other diploma holders, including petitioners of Writ Petition (S/S) No. 912 of 2010 and Writ

Petition (S/S) No. 925 of 2010, also filed a Review of the judgment dated 08.03.2010 passed in Special Appeal No. 240 of 2009. The Division Bench,

noting that Special Appeal No. 240 of 2009 was, in fact, lodged against an interim order, took the view that the matter must be remitted back to the

learned Single Judge to decide Writ Petition (S/S) No. 95 of 2009; the Review Petition was allowed on 23.2.2011 and matter was remitted back for

fresh decision.

Writ Petition (S/S) No. 95 of 2009 came to be decided by the learned Single Judge along with Writ Petition (S/S) No. 190 of 2010 filed by degree

holders, Writ Petition (S/S) No. 912 of 2010 and Writ Petition (S/S) No. 925 of 2010 filed by diploma holders vide judgment dated 13.10.2011. The last

of the two writ petitions were filed by the diploma holders calling in question the termination of their services. The learned Single Judge, in his

judgment dated 13.10.2011, took the view that the Division Bench has pronounced on the issue, namely, that a person, who has got Degree in Physical

Education, having a qualification which is higher than the prescribed qualification in the same stream, must be treated as eligible to be considered. He,

accordingly, allowed Writ Petition (S/S) No. 95 of 2009, as also Writ Petition (S/S) No. 190 of 2010. However, the learned Single Judge has

considered the plight of the diploma holders and, there, we notice from the judgment the following paragraphs:

“Learned counsel for the petitioners as well as learned Additional Advocate General have pointed out that the solution is given in Hon’ble

Apex Court decision on which reliance was placed by the Division Bench of this Court while dealing that the degree holders are qualified as Assistant

Teacher in Physical Education. In the case of Jyoti K.K. (supra) the Hon’ble Apex Court while dealing with the candidates who have higher

qualification are held eligible but did not pass an order to remove those who were already selected.

This Court on the last occasion had also asked from learned Additional Advocate General to apprise this Court as to whether there are vacancies of

Assistant Teacher in the State of Uttarakhand and to this a statement has already been made by Additional Advocate General that there are 193

vacancies which have already been recorded above. Based on this, this Court holds that the petitioners having Degree in Physical Education are

qualified and they were wrongly made ineligible and therefore the writ petition no. (S/S) 95 of 2009 and writ petition no. 190 (S/S) of 2010 are allowed,

as held earlier by the Division Bench of this Court in Special Appeal No. 240 of 2009, which is binding upon this Court.

It further observes that the candidates who have already been selected shall not be removed in view of the said Hon’ble Apex Court decision in

Jyoti K.K. Vs. Kerala Public Service Commission reported in [2002] Supp 1 JT 85/ [2002] 2 UJ 941, particularly in view of the fact which is now on

record that there are 193 posts of Assistant Teacher L.T. Grade (Physical Education) already lying vacant on which such diploma holders who stand

removed earlier can be adjusted. Since this matter has already been delayed, it is hoped and expected that respondents shall expedite this matter and

issue the appointment orders to the selected candidates, as determined by this Court as above, as early as possible. As such, Writ Petition No. (S/S)

912 of 2010 and Writ Petition No. (S/S) 925 of 2010 are also allowed and the impugned order dated 28.9.2010 is quashed, subject to the directions

made above.â€​

The State appealed against the said judgment by filing six Special Appeals, of which Special Appeal No. 95 of 2012 appears to be the leading case.

The Division Bench, vide judgment dated 19.07.2012, found that there was no just reason not to consider the candidature of degree holders and this

finding of the learned Single Judge was not interfered with. Thereafter, the Division Bench proceeded to lay down as follows:

“8. At the time when the writ petitions were being heard, learned Additional Advocate General made a statement to the Court that 193 vacancies

are still available. The Court, accordingly, directed adjustment of the writ petitioners / respondents, Degree Holders, in those 193 vacancies by the

judgment and order under appeal. It is the contention of the State that, before such statement was made, 193 vacancies were advertised and selection

process, pursuant to that advertisement, continued and, during the pendency of the writ petitions itself, those vacancies were supplied. It has been

contended that, in view of the matter, the direction contained in the judgment and order under appeal to adjust the Degree Holder writ petitioners /

respondents is, now, not possible. It has been correctly stated by the counsel for the respondents that, when the Court was made to believe a fact by a

representation made by the learned Additional Advocate General, if the representation made by the learned Additional Advocate General was based

on mistaken instructions, law required the State to approach the Court, who relied upon such statement, for rectification / correction thereof, but not to

assail such statement by filing an appeal.

However, the fact remains that, in the instant appeals, a statement has been made by the State in its stay petitions to the effect that, when the

combined list was prepared after the Division Bench held that the Degree Holders are also entitled to be considered, none of the writ petitioners,

respondents in these appeals, came within the list of selectees. This assertion, made in the affidavit filed in support of the Stay Application, has not

been denied by filing an independent affidavit by any of the writ petitioners. Be that as it may, that is a new fact brought to the notice of this Court in

the appeals for the first time. The appellate court will not place any credence thereon. The logical conclusion would be that the State would be

required to, once again, make a select list in respect of the posts, which were advertised and, in respect whereof, writ petitioners had applied and, in

the event, writ petitioners are not within the select list in respect of those advertised posts, they must be informed individually in that regard. The above

exercise must be carried out within a period of three months from today. It is made clear that the exercise, as above, should be made only in respect

of the writ petitioners vis-Ã -vis those who have been selected and appointed and not in respect of any other Degree Holder. It is made clear that, in

the event, it is found that any of the writ petitioners was entitled to be appointed for he should have been selected, he be given an appointment in a

post that will fall vacant in future without disturbing the appointments already given to the Diploma Holders.â€​

Appellants in the present appeals are the writ petitioners, who had filed the writ petitions, were petitioners also in Writ Petition (S/S) No.190 of

2010. They have, after referring to the developments, which we have adverted to, alleged that, instead of complying with the order of the Division

Bench dated 19.07.2012, they were ousted and, in this regard, they have produced Annexure No. P4 dated 12.10.2012. Annexure No. P4 is an order

passed by the Additional Director (Secondary Education), which shows that all the 45 petitioners in Writ Petition (S/S) No. 190 of 2010, Anuj Kumar

Chauhan and others vs. State, have been ousted on the basis of their quality marks they have obtained and, as pitted against the marks obtained by the

last selected candidate, they are not entitled to be selected. Its relevant portion reads as follows:

“foKkiu o’kZ 2004

lkekU; vuq0tkfr vuq0tutkfr fiNM+h tkfr

iq:’k “kk[kk& 71-01 61-70 58-76 62-32

efgyk “kk[kk& 65-25 57-52 & &

mDr foâ€​ks’k vihy la[;k@97@2012 jkT; ljdkj o vU; cuke

vuqt dqekj pkSgku o 44 vU; ls lEcfU/kr fjV ;kfpdk

la[;k@190@,l0,l0@2010 vuqt dqekj pkSgku o vU; esa ;kphx.kksa ds

izkIr xq.kakd dk fooj.k fuEuor~ gS&

--------------------------

mDrkuqlkj ;kphx.kksa dks izkIr xq.kkad mijksDr o’kksZa esa p;fur

vfUre vH;FkhZ ds xq.kkad ls de gksus ds dkj.k ;kphx.kksa dks fu;qfDr ugha

nh tk ldrh gSA

mDrkuqlkj ekuuh; mPp U;k;ky; mRrjk[k.M] uSuhrky esa ;ksftr

foâ€​ks’k vihy la[;k@97@2012 jkT; ljdkj o vU; cuke vuqt dqekj

pkSgku o 44 vU; esa ekuuh; U;k;ky; }kjk ikfjr vknsâ€​k fnukad

19&7&2012 dk vuqikyu djrs gq, izdj.k dks fuLrkfjr fd;k tkrk gSAâ€​

This order, be it noted, is passed based on the order purported to be passed in Writ Petition (S/S) No. 190 of 2010. The quality marks of these persons

are also mentioned.

Appellants filed Contempt Petitions. The learned Single Judge did not find merit in the Contempt Petitions and dismissed the Contempt Petitions vide

judgment dated 20.11.2013. The following is the reasoning:

“4. In response to the notices send to the respondents, respondent No. 2 i.e. Narendra Singh Rana has filed counter affidavit wherein it has been

stated that the selection made in the Garhwal Division for the relevant year, the relative merit was reexamined and it was found that none of the

petitioners in the general category were liable to be selected. The last cut of point of a General male candidate selected and appointed was having

68.830 quality points whereas the petitioner in Contempt Petition No. 183 of 2013, who belongs the General male category has obtained 60.613 quality

points. He secured much lower points then the last candidate selected and same is the case of other contempt petitioners. Therefore, the stand taken

by the respondent in the counter affidavit seems to be satisfactory.

This Court is of the view that no contempt is made out though the action or inaction of the respondents or any order passed by the respondents may

still give cause of action to the petitioners to file another writ petition, but definitely presently there is no contempt is made out.â€​

It is, thereafter, that the appellants have made the specific averment, which we deem appropriate to put in their own words. The same is contained

in paragraph 29 of Writ Petition (S/S) No. 2421 of 2015, from which Special Appeal No. 7 of 2017 has arisen. It reads as follows:

“29. That the petitioner had nearly reconciled with his fate, when, sometime in September/October 2014, he suddenly came in possession of a letter

dated 21st July 2009, written by the Public Information Officer of the Education Directorate (Respondent No. 5), Garhwal Mandal, while supplying the

information to an RTI activist, namely one Vijay Laxmi Sharma of District Almora, under the RTI Act, 2005 about the ‘quality points’ obtained

by various candidates who had been selected and appointed to the post of Assistant Teacher (L.T. Grade) in Physical Education against the vacancies

advertised on 04.11.2004, which revealed that the lowest ‘quality points’ against which one Shri Sanjay Kumar Joshi, belonging to the General

Category, had been selected and appointed was 58.786 and not 68.03, as deposed by the respondents while opposing various Contempt Petitions. A

copy of the said letter dated 21st July 2009 alongwith the appointment order dated 17th June 2009 in respect of the said Sanjay Kumar Joshi is

annexed hereto and marked as Annexure-P/6 (Colly).â€​

Thereafter, they have alleged fraud and referred to Section 44 of the Evidence Act. They have further averred that they had approached a MLA,

who is also a Minister in the State Government, who is alleged to have brought the matter to the notice of the Chief Minister. Thereafter, alleging that,

despite lapse of nearly one year, there is no action, the present writ petitions were filed, from which the present Special Appeals have arisen. The

reliefs sought in the writ petitions are as follows [Writ Petition (S/S) No. 2421 of 2015]:

“(A) to pass an order, direction or writ in the nature of Mandamus, commanding respondent Nos. 1 and 2 jointly and severally to appoint the

petitioner to the post of Assistant Teacher (LT Grade) in Physical Education, in accordance with law;

(B) to initiate action of ‘perjury’ against the respondents, particularly respondent No. 5 for making false deposition on oath in counter affidavit

filed in Contempt Petition No. 197 of 2013 in WP(S/S) No. 190 of 2010 which resulted not only in dismissal of petitioner’s Contempt Petition No.

197 of 2013 but also in denial of justice to him to which he was entitled in accordance with law.â€​

Pleadings were exchanged. The learned Single Judge, by a common judgment, dismissed the writ petitions, essentially, noting two aspects. (i) It

was found that the quality marks obtained by the appellants, who are degree holders, were less than the quality marks obtained by the last successful

degree holder candidate, who secured 68.830 marks in general category. (ii) It was, further, noted that, as between the quality marks obtained by the

appellants, maximum of which was 62.736, and the quality marks obtained by the last successful degree holder candidate, which is shown as 68.830,

there were as many as 51 persons, who had secured higher marks than the appellants, and, on that basis, the writ petitions were dismissed. Feeling

aggrieved, the writ petitioners are before us in this batch of appeals.

We have heard Mr. Lalit Kumar, learned counsel for the appellants and Mr. Vikas Pande, learned Standing Counsel for the State.

There are six appellants. It is brought to our notice that one out of the seven writ petitioners has passed away during the pendency of the writ

petition.

Mr. Lalit Kumar, learned counsel for the appellants, would reiterate the facts, as noted, and would point out that this is a case, where the judgment

passed by the Division Bench has been observed in its breach. The Division Bench had directed that the respondents were to re-visit the matter and

prepare a combined list based on merit, apparently, manifested by the quality marks obtained, both, by the degree holders and the diploma holders as

well. When that is done, on admitted facts, he would submit that the case of the respondents, which was in fact projected before the learned Single

Judge in the contempt proceedings also that the quality marks obtained by the last selected candidate is above the quality marks of the appellants, will

fall to the ground. On the other hand, the quality marks, with reference to which the case of the appellants should have been considered, was 58.786.

In other words, the complaint is that, instead of preparing a combined list, two separate lists were prepared; one for the degree holders and another for

the diploma holders. It is this, which has resulted in the denial of fruits of the judgment passed by the Division Bench, which we have already adverted

to and extracted. This is impermissible. He would submit that it is a settled law that no man can take advantage of his own fraud. Any order obtained

by fraud is to be ignored. The order passed in contempt proceedings was passed on the supposition that the material fact, which was placed before the

learned Single Judge, was correct, when it was actually not correct, as the actual cut-off quality marks, with reference to which the case of the

appellants should have been considered, was 58.786 and not 68.830.

Mr. Vikas Pande, learned Standing Counsel, on the other hand, would submit that the recruitment related to the year 2009. Appellants have

approached the Court after 5-6 years. He would submit that it may be true that, instead of preparing a combined list as such, what was done was

preparation of separate lists for degree holders and diploma holders and the position is as mentioned.

We have noticed the litigation before the learned Single Judge and before the Division Bench. Initially, there was an interim order obtained by the

degree holders, which came to be vacated in Writ Petition (S/S) No. 95 of 2009. This led to Special Appeal No. 240 of 2009 being filed. The same

was allowed. The result was that certain diploma holders, who had secured appointments, were ousted and certain degree holders came to be

appointed. This led to Writ Petition (S/S) No. 912 of 2010 and Writ Petition (S/S) No. 925 of 2010 being filed by the diploma holders, who, in turn,

secured stay orders from the learned Single Judge. On a Review Petition being filed by certain diploma holders, the judgment originally passed in

Special Appeal No. 240 of 2009 came to be reviewed. The Division Bench remitted the matter back to the learned Single Judge. The learned Single

Judge, after hearing all the writ petitions filed, both, by the diploma holders and the degree holders, allowed Writ Petition (S/S) No.190 of 2010, in

which the present appellants were also the writ petitioners. Writ Petition (S/S) No. 95 of 2009, in which there were only two writ petitioners, who

were also degree holders, was also equally allowed. Considering the plight of the diploma holders, who were specifically mentioned as the qualified

persons and who were having the qualification, the learned Single Judge sought to protect them by taking note of the submission made by the learned

Additional Advocate General that there were 193 vacancies against which they could be adjusted. In the appeals filed by the State, the Division Bench

has proceeded, in paragraph 9, to notice that the State had a case that it had prepared a combined list and it sought to contend that the writ petitioners

(degree holders) would not make it in terms of the quality marks; but the Division Bench did not lay store by the said argument noticing that this was

on the basis of the affidavit preferred during the appeal. The Division Bench directed that the matter must be re-done with regard to the advertised

posts. The Division Bench, further, made it clear that the exercise must be made qua the degree holders only, who were writ petitioners, and not

others. Thirdly, the Division Bench also protected the diploma holders; in that, by providing that they were not to be removed. Finally, the Division

Bench, as we understand, directed that, if, on the basis of fresh combined list, which was prepared, it was found that the degree holders among the

writ petitioners were entitled (and, apparently, if they could not be accommodated), they were to be appointed against the future vacancies.

From the pleadings and the material before us, we are of the view that the official respondents have not prepared a combined list, as was directed

by the Division Bench in Special Appeal No. 95 of 2012 and connected cases. Instead, they have prepared separate lists, even though they had a case

earlier, as is evident from the judgment of the Division Bench, that they had prepared a combined list. On the basis of the list, which they have

prepared, which means that taking the merit inter-se the degree holders and noticing the cut-off marks obtained by the last selected candidate among

the degree holders and comparing that with the quality marks obtained by the present appellants, it was found that the appellants could not make it. It

is, equally, true that, from among the list of diploma holders, who were included, the last selected candidate had obtained only 58.786 quality marks.

This quality marks is certainly below that of the appellants, who are degree holders. What was done by the official respondents would appear to be

contrary to what was directed by the Division Bench. In fact, the Division Bench was clear that only the degree holders, who were the writ

petitioners, were to be considered. There were two writ petitioners in Writ Petition (S/S) No. 95 of 2009. We do not know whether the person, who

secured 68.830 quality marks, is among the writ petitioners. We would have inclined, in this state of affairs, to direct the preparation of a fresh

combined list, not with a view to eliminate anyone who is selected and appointed either from among the degree holders or from among the diploma

holders, but with a view to give relief to the appellants on the basis of the last direction contained in the judgment of the Division Bench passed in

Special Appeal No. 95 of 2012 and connected cases, namely, to consider them for appointment on future vacancies. This is despite the plea raised by

the learned Standing Counsel that the qualifications may have changed by now and there may not be vacancies. Mr. Lalit Kumar, learned counsel for

the appellants would, in fact, point out that there are vacancies.

But, this inclination of ours cannot blossom into a direction in this case for one reason, which would remain, in our view, fatal to the case of the

appellants. Annexure No. P4 purports to be a communication, which is produced by the appellants themselves. It is purported to be made pursuant to

the direction issued by the Court in Writ Petition (S/S) No.190 of 2010 and Special Appeal No. 97 of 2012. Therein, it is clearly stated that the

appellants are not entitled to be considered having regard to the fact that the quality marks obtained by them is much below the quality marks obtained

by the last selected candidate. This information, in fact, was admittedly received by the appellants as part of the counter affidavit filed by the State in

the contempt petitions filed by them, which were dismissed. The contempt petitions were dismissed on 20.11.2013. Conspicuous by its absence in the

relief is a challenge to Annexure No. P4. We also notice that, in the counter affidavit, they have produced the communication dated 18.10.2012 on

similar lines, which reads as follows:

“ekuuh; mPp U;k;ky; uSuhrky esa ;ksftr foâ€​ks’k vihy la[;k

95@2012 mRrjk[k.M jkT; o vU; cuke izdkâ€​k HkV~V ,oa vU;]

96@2012 mRrjk[k.M jkT; o vU; cuke pdz/kj izlkn Hknzh ,oa vU;]

97@2012 mRrjk[k.M jkT; o vU; cuke vuqt dqekj pkSgku ,oa vU;]

102@2012 mRrjk[k.M jkT; o vU; cuke ekS0 vkosâ€​k ,oa vU;]

110@2012 mRrjk[k.M jkT; o vU; cuke lat; flag ,oa vU;] ,oa

188@2012 mRrjk[k.M jkT; ,oa vU; cuke thou flag pkSlkyh ,oa vU;

esa ek0 U;k;ky; }kjk fnukad 19-07-2012 rFkk mDr ek0 U;k;ky;h vknsâ€​k

ds vuqdze esa funsâ€​kd ek/;fed fâ€​k{kk mRrjk[k.M uuwj[ksM+k nsgjknwu ds

i=kad@fof/k izdks’V@42559&60@2012&13 fnukad 04 vDVwcj 2012] dk

leknj djrs gq, o’kZ 2004 esa foKkfir inks ads lkis{k iqu% p;u lwph

rS;kj dh x;hA mDr p;u lwph esa vukjf{kr Js.kh ds vfUre vH;FkhZ dk

xq.kakd 68-830 gSA tcfd ek0 mPp U;k;ky; esa ;ksftr ;kfpdk la[;k

190@2010 o foâ€​ks’k vihy la[;k 97@2012 esa izfroknh la0&28 Jh

vkâ€​kkjke peksyh iq= Jh y{khjke peksyh ds-ih- Js= vBwjokyk e-ua- bZ@54

vBwjokyk nsgjknwu dk xq.kakd 60-606 gSA bl izdkj iqu% rS;kj dh x;h

p;u lwph esa vfUre p;fur vH;FkhZ ,oa ;kphdrkZ ds chp esa 99 vU;

ch0ih0,M0 izfâ€​kf{kr vH;FkhZ vf/kdre xq.kakd/kkjh gSaA p;u lwph dh

ifjf/k esa u vkus ds dkj.k izfroknh@;kph Jh vkâ€​kkjke peksyh dk p;u

ugha fd;k tk ldkAâ€​

But the writ petition was not amended challenging the same. What is sought by the appellants is a mandamus, when what stands as a stumbling block,

the grant of relief becomes inseparable in view of the absence of any challenge to the same, mandamus cannot be issued till the order dated

12.10.2012 stands in the eyes of law.

The learned Single Judge has taken the view that 51 persons, who are above the appellants and below the last selected candidate among the

degree holders, are there. We may not have even laid store by the said finding for the reason that they were not writ petitioners in Writ Petition (S/S)

No. 190 of 2010 and that may have been an irrelevant matter.

It may be noticed also that, in the document dated 18.10.2012 produced along with the counter affidavit, which is purported to be issued on the

basis of the decision in Special Appeal No. 95 of 2012 and connected appeals, it is also indicated that there are as many as 99 B.P.Ed. persons, who

are above the appellants. It is, no doubt, to be noticed that they were probably not the writ petitioners and that may have also been an irrelevant

matter.

The fact remains that the appellants have failed to challenge the proceedings held by order dated 12.10.2012 and 18.10.2012 regards rejection of

their candidature, as we have already noticed. On this ground, we would affirm the judgment passed by the learned Single Judge, though on the

reasoning, which we have adopted. Accordingly, the appeals fail and they are dismissed without any order as to costs.