Kushpal Singh vs State Of Uttarakhand & Others

Ramesh Ranganathan, CJ

The application, to condone the delay in preferring the appeal, is not opposed and the delay is, therefore, condoned. Delay Condonation Application stands disposed of.

Heard Mr. Shakti Singh, learned counsel for the appellant-writ petitioner, Mr. D.S. Patni, learned counsel for the Uttarakhand Power Corportaion, Mr. Rakesh Thapliyal, learned counsel for the Uttarakhand Technical Education Board, and Ms. Puja Banga, learned Brief Holder appearing for the State of Uttarakhand.

Pursuant to a notification issued by the Uttarakhand Power Corporation, to fill up 77 Group 'C' posts of Office Assistants, the Uttarakhand Technical Education Board had forwarded a list of 67 candidates including 21 candidates belonging to the Other Backward Classes. Of these 67 names, sent by the Uttarakhand Technical Education Board, 34 joined and the other 33 did not. The Uttarakhand Technical Education Board, while recommending the list of eligible candidates, is said to have opined that only 67 candidates were eligible for appointment. Mr. D.S. Patni, learned counsel for the Uttarakhand Power Corporation, would submit that the very fact that the Uttarakhand Technical Education Board had forwarded only 67 names of eligible candidates, which did not include the petitioner, would show that he was found ineligible by the Uttarakhand Technical Education Board.

Be that as it may, the petitioner's contention in the Writ Petition was, among others, that two of the selected candidates, from the Other Backward Classes who were among the 67 selected candidates whose names were forwarded by the Uttarakhand Technical Education Board to the Uttarakhand Power Corporation, did not join; consequently, these two vacancies ought to have been filled up by the next two eligible candidates belonging to the Other Backward Classes; and if a wait list had been prepared, the petitioner's name would have been included in the said wait list, and he would have been entitled to be appointed to the post of Office Assistant.

In the order under appeal, the learned Single Judge observed that, even according to the petitioner, he had secured 78.75 percent marks along with four others; and, since the petitioner was the youngest, candidates older in age were rightly appointed by the Uttarakhand Power Corporation. While we have no quarrel with this, and the other conclusion, that mere selection does not confer any indefeasible right for a candidate to be appointed, the claim of the petitioner in the Writ Petition is that two candidates, from the Other Backward Classes category, did not join and, consequently, those vacancies ought to have been filled up by the next ttwo meritorious candidates belonging to the Other Backward Classes. This contention has not been examined by the learned Single Judge while passing the order under appeal.

With regards the finding of the learned Single Judge, that the petitioner has slept over his rights, Mr. Shakti Singh, learned counsel for the appellant-writ petitioner, would submit that it is pursuant to the order passed by this Court, in Writ Petition (S/S) No.3329 of 2017 dated 25.04.2018, that appointment orders were issued to the selected candidates; and, even if a panel of wait listed candidates were to operate for a period of one year from that date, the petitioner had invoked the jurisdiction of this Court well within time.

The learned Single Judge may not, therefore, have been justified in dismissing the writ petition at the very threshold, and at the stage of admission. If, as is now contended before us by Mr. Shakti Singh, learned counsel for the appellant-writ petitioner, that appointment orders were issued to the selected candidates only in July, 2018, the question which would then necessitate examination is whether the Uttarakhand Power Corporation had frames Rules, or had issued executive instructions, providing for a wait list; and, if so, what was the life of the said panel of wait listed candidates. If, as is now contended before us, the life of a panel is for a period of one year, then the Writ Petition filed before this Court in December, 2018 cannot be said to suffer from undue delay and laches. It is not known why the appellant-writ petitioner's name was not forwarded by the Uttarakhand Technical Education Board to the Uttarakhand Power Corporation. As the Writ Petition was dismissed at the stage of admission, the respondents were not called upon to file their counter-affidavits. All these aspects can only be examined after both the Uttarakhand Power Corporation and the Uttarakhand Technical Education Board file their respective counter-affidavits.

We consider it appropriate, in such circumstances, to set-aside the order under appeal, and restore the Writ Petition to file.

Both Mr. D.S. Patni, learned counsel for the Uttarakhand Power Corporation and Mr. Rakesh Thapliyal, learned counsel for the Uttarakhand Technical Education Board, seek four weeks' time to file their respective counter-affidavits.

It is open to Mr. Shakti Singh, learned counsel for the appellant-writ petitioner, to request the learned Single Judge to take up the Writ Petition for admission on any date after four weeks from today.

Needless to state that the rival contentions shall be examined by the learned Single Judge on its merits uninfluenced either by the observations made in the order under appeal or in the order now passed by us.

The appeal is, accordingly, disposed of. No costs.