Nitin vs State Of Uttarakhand And Others

Vipin Sanghi, CJ

The petitioner has preferred the present Writ Petition seeking quashing of the advertisement dated 15.12.2021, whereby the respondents have advertised the post of Principal in the respondent no. 4 intercollege, for filling up the same by direct recruitment. The petitioner seeks a mandamus that he should be appointed to the post of downgraded Principal, rather than the post being filled up by appointment of a Principal through direct recruitment.

The case of the petitioner is that, being the senior-most Assistant Teacher L.T. Grade (Hindi), he was appointed as the In-charge Principal of the respondent-Institution upon retirement of the erstwhile Principal on 31.03.2020. Since then, he has been serving in that capacity. The petitioner is aggrieved by the fact that the respondent-Institution has issued the advertisement on 15.12.2021 inviting applications to fill up the post of Principal of the respondent-Institution.

The submission of the learned counsel for the petitioner is that the post of Principal can be filled up either by promotion, or by direct recruitment. He has drawn the attention of the Court to Regulation 2(1) of the Uttarakhand School Education Regulations, 2009 (as amended), which stipulates minimum ten years’ service in ordinary grade, and that the candidate should have also received the selection grade for becoming eligible for appointment as the Principal. Admittedly, the petitioner does not satisfy either of these conditions.

In the face of the petitioner’s ineligibility, the submission of the learned counsel for the petitioner is that there is a power of relaxation in Rule 4 of the the Uttarakhand Government Servants Relaxation in Qualifying Service for Promotion Rules, 2010. The said Rule states that, in case a post is filled by promotion and for such promotion a certain minimum length of service is prescribed on the lower post or posts, as the case may be, and the required number of eligible persons are not available in the field of eligibility, such prescribed minimum length of service may be suitably relaxed up to fifty percent by the Administrative Department in consultation with the Personnel Department of the Government, excluding the period of probation as laid down for the said lower post or posts, as the case may be. There are a couple of provisos to the said Rule, with which we are not concerned.

In our view, the aforesaid relaxation Rule is not attracted in the present case, since the post in question is not required to be filled up only by promotion and, admittedly, the same can be filled up by direct recruitment as well. Moreover, it cannot be said that the required number of eligible persons are not available in the field of eligibility, as it is not the petitioner’s case that eligible candidates are not available even in the open market.

The further submission of the learned counsel for the petitioner is that the respondents are bound to re-issue the advertisement, as the recruitment process has not been completed within three months of the advertisement being issued. In this regard he has drawn our attention to the amended Regulation 10(dd) of the Uttarakhand School Education Regulations, 2009. The said amended Regulation reads as follows :-

The said amended Regulation, in our view, can only be read as directory, as cancellation of the advertisement, and issuance of a fresh advertisement, merely because there is some delay in the process of filling up the vacancies advertised, would defeat the whole purpose of inviting applications through advertisement to fill up the post, which is lying vacant, without any delay. The possibility of the incumbent officiating officer contriving to delay the selection process of the post, which is advertised – to perpetuate his tenure, also cannot be ruled out.

We, therefore, do not find any merit in the present Writ Petition and the same is, accordingly, dismissed.

In sequel thereto, pending application, if any, also stands disposed of.