Himanshu Malik vs State Of Uttarakhand And Others

Vipin Sanghi, CJ

There is a delay of 87 days in preferring the present Special Appeal.

Since we have heard the learned Senior Counsel for the appellant on merits, and we find no merit in the present appeal, we are not going into the issue of limitation.

The present Special Appeal is directed against the judgment dated 21.07.2022, rendered by the learned Single Judge in Writ Petition (S/S) No. 1987 of 2016. By the impugned judgment, the learned Single Judge has dismissed the Writ Petition preferred by the appellant. The relevant facts may be noticed.

On 01.02.2014, an advertisement was issued by the respondents for the purpose of inviting applications for appointment to the post of Assistant Teacher (Primary School) (the first advertisement). The appellant responded to the said advertisement. The appellant was initially not appointed, since he did not fall within the merit list. Ultimately, on 19.02.2016, based on his placement in the waitlist, he was issued an appointment order. The appellant states that he received the said appointment order on 26.02.2016. The appellant joined the service on 01.03.2016 in response to the said appointment offer.

In the meantime, the respondents had issued a second advertisement on 17.02.2016, inviting applications for the same post of Assistant Teacher in Government Primary Schools. The appellant applied in response to the said advertisement on 22.02.2016, i.e. before he received the offer of appointment in relation to the first advertisement, and before he joined the post offered to him on 01.03.2016. Under the second advertisement, the last date for submission of the applications was fixed as 05.03.2016. The second advertisement had two pertinent clauses, namely Clause 7 (छ) and Clause 8 (ड) These two clauses reads as follows :-

The appellant tendered his resignation on 28.03.2016, from the post that he had joined on 01.03.2016. He gave an affidavit on 29.03.2016 stating that he was not in employment. The following day, he had to appear for his interview/ counselling. The appellant was selected, and he joined the post at Government Primary School, Paudowali, Vikas Kshetra Khanpur, Roorkee, District Haridwar. Thereafter, his appointment was cancelled, by placing reliance on the aforesaid two clauses in the subsequent advertisement.

The learned Single Judge found that the appellant was not eligible to be considered for appointment, since he did not meet the aforesaid two conditions, and, consequently, dismissed his Writ Petition.

The submission of Mr. Rawat, the learned Senior Counsel for the appellant, is that there was no concealment by the appellant, when he made his application in response to the second advertisement as, that by day, he had neither received the offer of appointment in response to the first advertisement, nor he had joined the said post. He submits that, since he was not disqualified, when he made the application in response to the second advertisement, he could not have been held to be disqualified by placing reliance on the aforesaid two clauses of the second advertisement.

We have heard the learned Senior Counsel for the appellant, perused the record, including the impugned judgment.

We do not find any merit in the submission of Mr. Rawat. The terms of the second advertisement are crystal clear. The plain meaning of the aforesaid two clauses is that the applicant should not be on service in a Government Primary School, as on the last date for submission of the application in response to the advertisement, which, in this case, was 05.03.2016. It is not the appellant’s case that he was not in service as on 05.03.2016, since he had joined the post in response to the first advertisement on 01.03.2016, and he continued in that post till after 05.03.2016. Admittedly, he tendered his resignation on 28.03.2016. Therefore, on plain reading of the terms and conditions of the advertisement, the appellant was disqualified from being selected in the selection process under the second advertisement.

For the aforesaid reasons, we do not find any merit in the present Special Appeal. The same is, accordingly, dismissed.

Consequently, pending applications, if any, also stand disposed of.