Neelam Rana And Others vs State Of Uttarakhand And Others

Ramesh Ranganathan, CJ

Heard Sri Ravindra Singh Garia, learned counsel for the appellants and Sri B.P.S. Mer, learned Brief Holder for the State of Uttarkhand and, with their consent, this Special Appeal is disposed of at the stage of admission.

The appellants herein invoked the jurisdiction of this Court filing Writ Petition (S/S) No. 2908 of 2018, wherein they sought a writ of certiorari to quash the proceedings of the Board of Revenue, Uttarakhand dated 11.06.2018, and the order dated 13.06.2018 passed by the District Magistrate, Pauri Garhwal, to the extent it included the names of the appellants-writ petitioners in the list of candidates whose selection had been cancelled for undergoing training for the post of Patwari (Revenue Sub Inspector) against the vacancies in Pauri Garhwal district; and for a writ of mandamus directing the respondents to treat the candidature, of the appellants-writ petitioners, as having been selected against the vacancies for the post of Revenue Sub Inspector (Patwari) in Pauri Garhwal district, pursuant to the advertisement issued on 08.10.2015 read with the order dated 21.03.2018.

Facts, to the limited extent necessary, are that an advertisement was issued on 19.07.2013 inviting applications for the posts of Revenue Sub-Inspector (Patwari) in terms of the Uttarakhand Revenue Sub-Inspector (Patwari) Service Rules, 2013 (for short the '2013 Rules'). The process of selection required the applicants to undergo a physical test, besides appearing in the written examination. Candidates, selected for being appointed to the said posts, were thereafter required to undergo training and, on completion of training, they were eligible for appointment to the posts of Revenue Sub-Inspector (Patwari), which is a non-gazetted Group 'C' post. The Chief Secretary, Revenue, Government of Uttarakhand, issued order dated 24.09.2015, for selection of candidates to fill-up 1216 vacancies in the post of Revenue Sub-Inspector (Patwari), and 428 vacancies in the post of Lekhpal. A selection committee was directed to be constituted in each district, and an advertisement was directed to be issued between 05.10.2015 and 10.10.2015. The last date, for submission of application forms, was 10.11.2015. Another Government Order was issued by the Secretary, Revenue, Government of Uttarakhand, on 19.12.2015 extending the date for submission of application forms upto 31.12.2015.

The District Magistrate, Pauri Garhwal issued an advertisement on 08.10.2015 for selection of candidates to fill-up 76 vacancies in the post of Revenue Sub-Inspector (Patwari) in Pauri Garhwal district. While the first petitioner applied as a Scheduled Tribe candidate, the second petitioner applied as a General category candidate, and the third petitioner applied as an OBC candidate. The third petitioner also claimed horizontal reservation provided for Uttarakhand women. Pursuant to the written examination, conducted by the Uttarakhand Technical Education Board on 22.05.2016, the result of 89 candidates were declared for the post of Revenue Sub-Inspector (Patwari). The appellants-writ petitioners were not among the selected candidates.

By his letter dated 06.02.2018, the District Magistrate, Pauri Garhwal informed the Commissioner-cum-Secretary, Board of Revenue, Uttarakhand of the procedure prescribed for selection to the vacant posts of Revenue Sub-Inspector. In the said letter dated 6.02.2018, after referring to the Government Order dated 27.10.2017 wherein directions were issued for preparation of a waitlist, it was stated that, of the 89 candidates selected for undergoing training for the post of Revenue Sub-Inspector (Patwari), only 70 candidates had participated in the training; the candidature of twenty selected candidates had been cancelled because they either did not join training, or had been appointed in other departments; and the names of the next nineteen candidates were being recommended for undergoing selection in the place of the twenty candidates, whose candidature had been cancelled. The District Magistrate, Pauri Garhwal issued order dated 21.03.2018 whereby a list of nineteen candidates was prepared, which included the appellant-writ petitioners', as having been selected for undergoing training for the post of Revenue Sub-Inspector (Patwari) against the vacancies which became available consequent upon the selected candidates not being present for medical examination or verification of the original documents, vacancies arising because the selected candidates did not join training, and vacancies which became available as the selected candidates withdrew from the training programme mid-way. The said letter dated 21.03.2018 required the selected candidates to remain present in the office of the Collector, Pauri Garhwal on 16.04.2018, along with the prescribed documents.

The appellant-writ petitioners claim to have been present for verification, and to have submitted their medical fitness certificates. It is their grievance that, after 16.04.2018, they were not called upon to undergo training. The candidates, selected earlier, completed their training in the month of March, 2018, and the results of the these candidates were published. Appointment letters were issued to sixty-four candidates appointing them to the posts of Revenue Sub-Inspector (Patwari).

The Commissioner-cum-Secretary, Board of Revenue issued proceedings dated 11.06.2018 informing all the District Magistrates that they should once again ensure that the vacancies for training were to be supplied against the number of candidates selected after declaration of the result; candidates had to be selected only against the vacancies for which the candidate was selected and his name figured in the list; and if, however, he did not remain present or, after verification, he did not participate in training, and if the candidates had left the training in the middle, then the vacancy would not be treated as the original vacancy, and would not be supplied from the candidates in the merit list (waitlist). Pursuant thereto, the District Magistrate, Pauri Garhwal, issued order dated 13.06.2018 cancelling the selection of the appellants-writ petitioners for undergoing training for the posts of Revenue Sub-Inspector (Patwari), as reflected in the earlier order dated 21.03.2018, on the ground that the appellants-writ petitioners were selected for vacancies which became available only because the selected candidates had left the training programme mid-way.

The appellants-writ petitioners rely on the order passed by this Court in Writ Petition (S/B) No. 728 of 2018 dated 25.07.2018, whereby the District Magistrates were directed to send the names of the selected candidates so that they could be sent for training.

It is the appellants-writ petitioners' case that, against eighty-nine vacancies of Revenue Sub-Inspector (Patwari), only sixty-four appointments had been made; as such twenty-five vacancies were lying vacant, apart from the earlier twenty vacancies for which a waitlist was prepared; the distinction drawn, in the proceedings dated 11.06.2018, between vacancies which became available due to candidates not appearing for verification of the documents, and vacancies which became available due to candidates leaving training in the middle, is irrational and arbitrary; selection of candidates for undergoing training, is different from the selection of candidates for appointment; it is only after successful completion of training that the selected candidate becomes eligible for appointment; treating the vacancies to have been supplied by a candidate, even when he had left the training programme mid-way, is illegal and against the mandate of the Service Rules; the Government Order dated 27.10.2017 stipulated that candidates in the waitlist would be sent for training only to the extent of the number of vacancies advertised, and not beyond; and the analogy of supplying the vacancy, on the joining of the selected candidate in the advertised post, has no application in the present case, as the candidates are being selected for undergoing training; and, only on successful completion of training, would a selected candidate be offered appointment.

In the order under appeal dated 30.04.2019, the learned Single Judge observed that the appellants-writ petitioners had participated in the selection for the post of Revenue Sub-Inspector (Patwari), in Pauri Garhwal district, pursuant to the advertisement dated 8.10.2015; by way of the said advertisement, applications were invited against seventy-six vacancies in the post of Revenue Sub-Inspector (Patwari), and four vacancies of Revenue Sub-Inspector (Lekhpal); the Selecting Body had issued a select list of eighty-nine candidates, in which the appellants-writ petitioners' names were not included; thereafter, on 27.10.2017, a Government Order was issued providing therein that the number of selected candidates should not be more than the number of vacancies advertised; and, in case the candidature of a selected reserved category candidate is cancelled, then the said vacancy should be supplied by recommending the name of a candidate belonging to the same category from the merit list.

The learned Single Judge, thereafter, noted the contention of the appellants-writ petitioners that, from out of eighty-nine selected candidates, the candidatures of twenty were cancelled for various reasons; therefore the District Magistrate, Pauri Garhwal had prepared a list of nineteen candidates on 21.03.2018 wherein the names of the appellants-writ petitioners figured at Serial Nos. 5, 17 and 19; and they were aggrieved by the subsequent Government Order dated 11.06.2018, wherein it was provided that vacancies which arose, consequent on the selected candidates leaving the training programme after joining, should not be supplied by the candidates from the waitlist.

The learned Single Judge observed that the question which arose for consideration was whether the training in question is selection for appointment to a post or selection as a Revenue Sub-Inspector trainee; Rule 5 of the 2013 Rules provided that 75% vacancies in the post of Revenue Sub-Inspector shall be filled-up by direct recruitment and 25% of the vacancies by promotion of Group 'D' employees; Rule 20 of the 2013 Rules, which dealt with determination of vacancies, provided that the appointing authority shall determine the existing as well as anticipated vacancies which are likely to occur during the next two recruitment years, on or before 30th September of each year, and shall notify the same to the Divisional Commissioner; a perusal of the advertisement dated 8.10.2015 revealed that applications were invited against vacancies in the post of Revenue Sub-Inspector; it is settled position in law that, if a vacancy is supplied by appointing a selected candidate and such selected candidate thereafter resigns, then, such a vacancy cannot be supplied from a waitlisted candidate, whereas, if a selected candidate did not turn up for joining when he was offered appointment, then such vacancy may be supplied by appointing a waitlisted candidate; the selection in question was for appointment to the post of Revenue Sub-Inspector, and it was not a selection for training; and there was no illegality or infirmity in the condition imposed by the impugned order dated 11.06.2018. The writ petition was dismissed. Aggrieved thereby, the present appeal.

Sri Ravindra Singh Garia, learned counsel for the appellants-writ petitioners, would place reliance on Rule 29(1) of the Uttarakhand Revenue Sub-Inspector (Patwari) Rules, 2013 (for short the 2013 Rules, similar to Rule 27(1) of the Uttarakhand Revenue Sub-Inspector (Patwari) Service Rules, 2015), to submit that mere completion of training does not confer any right on the candidates sent for training to claim appointment; an appointment order is issued only after successful completion of training of one year; in terms of Rule 29(1) of the 2013 Rules, (similar to Rule 27(6) of the 2015 Rules), even successful completion of training does not confer a right of appointment; consequently it is only after a candidate, who has been issued an appointment order, joins the post and resigns thereafter, can the vacancy be said to have been supplied; the mere fact that the selected candidate was sent for training does not result in his appointment, and the vacancy being filled-up; and, therefore, the Government Order dated 11.06.2018, and the consequential order of the District Magistrate dated 13.06.2018, deciding not to fill-up the available vacancies, available as a result of the candidates selected for training leaving mid-way, from the waitlisted candidates, is arbitrary and illegal.

On the other hand Sri B.P.S. Mer, learned Brief Holder for the State Government, would justify the Government Order dated 11.06.2018 contending that, while appointment is no doubt made after completion of training, the Service Rules requires the period of training to be included in computing the seniority of the appointees; consequently, the period of training undergone by the selected candidates must also be treated as regular service; and a vacancy, which has arisen consequent on the selected candidate leaving training mid-way, cannot be filled up from the candidates in the waitlist.

The prescribed Rules stipulate a period of one year for the waitlist to operate from the date on which the last candidate is appointed. In the present case, the last candidate was appointed in May, 2018 after successful completion of his training. The appellants-writ petitioners invoked the jurisdiction of this Court by way of the present writ petition on 20.08.2018 well within the period of one year during which the waitlist was to operate. It is, no doubt, true that a vacancy caused, as a result of the appointed candidate not joining the post, can alone be filled up from the waitlist, since failure on the part of the appointed candidate to join duty must be treated as the available vacancy not having been filled-up. However, in cases where the appointed candidate joins duty, the said vacancy must be held to have been filled up by his appointment; and, if he were to subsequently resign, it would only mean that a vacancy has again arisen, which cannot be filled-up from amongst the waitlisted candidates, and can only be carried forward to be filled up in the next recruitment year. We have no quarrel, therefore, with the law declared by the learned Single Judge in the order under appeal.

Sri Ravindra Singh Garia, learned counsel for the appellants-writ petitioners, would, however, contend that appointment of the selected candidate is a post-training event; it is only after completion of training is an appointment order issued; and it is only if such a candidate joins the post, and resigns thereafter, can the vacancy be said to have been filled-up necessitating its being carried forward to be filled up in the next recruitment year; candidates, leaving training mid-way, cannot be treated to have been appointed to the post, or to have filled up the vacancy; since the vacancy has not been filled-up, consequent upon the selected candidate leaving training mid-way even before an appointment order could be issued in his favour, the said vacancy is required to be supplied (filled up) from amongst the waitlisted candidates; consequently, the waitlist should have been operated even with respect to such vacancies; and candidates in the waitlist should have been appointed to these vacant posts.

To examine this contention, it is necessary to take note of relevant provisions of the 2013 Rules, as the 2015 Rules came into force long after an advertisement was issued inviting applications for selection and appointment to the posts of Revenue Sub-Inspector (Patwari).

Rule 29(1) of the 2013 Rules (similar to Rule 27(1) of the 2015 Rules) stipulates that mere selection for training, or completion of the prescribed training, shall not be the basis for appointment in service; only candidates, who have successfully completed the prescribed training from the Institute, and on otherwise being found suitable, shall be eligible for appointment to the post of Revenue Sub-Inspector (Patwari). Rule 29(6) of the 2013 Rules (similar to Rule 27(6) of the 2015 Rules) relates to a post-training event, and stipulates that the substantive appointment shall be done in the order in which the names of the candidates are reflected in the list; the Commissioner shall, against vacancies in the district, send names of the candidates with a direction to appoint them substantively to the post of Revenue Sub-Inspector (Patwari). Rule 29(6) also confers power on the Commissioner to remove the names from the list, amongst others, of candidates who, in his opinion and for reasons to be recorded in writing, are not suitable for appointment as Revenue Sub-Inspector (Patwari).

On a conjoint reading of Rule 29(1) and Rule 29(6) of the 2013 Rules (similar to Rule 27(1) and Rule 27(6) of the 2015 Rules), it is evident that mere selection followed by training, by itself, does not confer any indefeasible right on the selected candidate, who has completed training, to be appointed to the post of Revenue Sub-Inspector (Patwari) or Revenue Sub-Inspector (Lekhpal). Discretion is conferred on the Commissioner to remove the names of the candidates who, in his opinion, are not suitable for appointment to the post of Revenue Sub-Inspector. Mere completion of training does not automatically result in an appointment. Consequently, the mere fact that a candidate has been selected for training, or even that he has completed his training, would not result in his being treated as having been appointed to the post of the Revenue Sub-Inspector (Patwari) or Revenue Sub Inspector (Lekhpal). The selected candidates, after they successfully complete their training, are required to be issued appointment orders. The vacancies, which have remained unfilled as a result of candidates leaving training mid-way, cannot be treated as a vacancy having been filled up, necessitating its being carried forward to be filled up in the next recruitment year. A candidate, who leaves training mid-way, must be treated as a candidate who has not been appointed to the post of Revenue Sub-Inspector, and the vacancy as having remained unfilled. Consequently, such vacancies are required to be filled-up from amongst the waitlisted candidates. The Government Order dated 11.06.2018, to the extent it held to the contrary, must be, and is accordingly, quashed.

Since the appellants-writ petitioners were, admittedly, included in the waitlist prepared by the District Collector, Pauri Garhwal, on 21st March, 2018, the candidates in the waitlist, including the appellants-writ petitioners, are required to be sent for training and, if they successfully complete the training, to be considered for appointment to the post of Revenue Sub-Inspector (Patwari) depending upon the number of vacancies available.

We make it clear that the relief granted by us is not confined only to the appellants-writ petitioners, and the waitlist of 19 candidates shall be operated strictly on the basis of their inter se merit in the respective categories to which these candidates belong, and those higher-up in rank in the waitlist, in their respective categories, shall, depending on the number of the vacancies available, be sent for training within six weeks from the date of production of a certified copy of this order.

The order under appeal is set aside, and the special appeal is disposed of in terms of the directions mentioned hereinabove. No costs.