Neelam vs State Of Uttarakhand And Another

Ramesh Ranganathan, CJ

The application, seeking condonation of delay in preferring the appeal, is not opposed by the respondents and the delay is, therefore, condoned.

This appeal is preferred against the order passed by the learned Single Judge in WPSS No. 2844 of 2017 dated 16.07.2019. The appellant-writ petitioner invoked the jurisdiction of this Court seeking a writ of mandamus directing the respondents to declare the petitioner to have been finally selected to the post of Assistant Surveyor.

The appellant-writ petitioner applied for the post of Assistant Surveyor, and was permitted to participate in the selection process. She was, however, not selected on the ground that the post graduate degree, she had obtained in Sociology from the Hemwati Nandan Bahuguna Garhwal University, was not in first or second division; and the Rules prescribe that the candidate must have a post-graduate degree in any of the subject of Statistics or Sociology or Geography or Economics in first and second division alone for being eligible to be appointed as an Assistant Surveyor. The petitioner, who had secured third division in her post graduation, was held ineligible to be considered for appointment. It does not appear to be in dispute that the advertisement, issued by the Uttarakhand Technical Education Board, did not specifically state that only candidates, who had completed their post graduation in the aforesaid subjects in the first or second division, were alone eligible. It is therefore contended, on behalf of the appellant-writ petitioner, that, since there is a variance between the advertisement on the one hand and the Rules on the other, the benefit of such variation should go in favour of the candidate who had submitted her application pursuant to the advertisement.

In the order under appeal, the learned Single Judge has referred to Appendix-'B' of the U.P. Urban & Rural Planning Department Subordinate Technical Service Rules, 1994 which, at serial no.4, prescribes the required qualification, for the post of Assistant Surveyor, as a post graduation degree in any of the subject of Statistics or Sociology or Geography or Economics in first or second division, or an equivalent degree from a recognized University. Following the order passed by the Supreme Court in Ranajit Kumar Meher Vs. State of Orissa & ors. : (2017) 4 SCC 568, the learned Single Judge observed that no appointment can be made contrary to the Rules; and since the petitioner did not possess the qualification prescribed under the Rules i.e. a Masters Degree with first or second division, the respondents had rightly rejected her claim to be considered for appointment to the post of Assistant Surveyor. Aggrieved thereby, the present appeal.

Mr. Bharat Singh, learned Advocate for the appellant-writ petitioner, would reiterate the very same submission which were urged before the learned Single Judge, and would contend that, for the fault of the Uttarakhand Technical Education Board, the appellant-writ petitioner cannot be penalized or made to suffer.

The 1994 Rules were made by the State Government, in the exercise of the powers conferred under the proviso to Article 309 of the Constitution of India. As these Rules have the force of law, no appointment can be made contrary thereto. As held by the Supreme Court, in Ranajit Kumar Meher, it is qualifications prescribed under the Rules which shall apply, and not those stipulated in the advertisement inviting applications; and no appointment can be made in violation of the Rules.

We find no error, therefore, in the order under appeal warranting interference. The Special Appeal fails and, is accordingly, dismissed. No costs.