Raj Kumar vs State Of Uttarakhand And Others

Lok Pal Singh, J

By means of present writ petition, following prayer has been made by the petitioner: By means of present writ petition, following prayer has been made by the petitioner:

(i) Issue a writ, order or direction in the nature of certiorari quashing the order/letter dated 27.07.2016 (annexure no.3 to the writ petition).

(ii) Issue a writ, order or direction in the nature of mandamus directing the respondent no.2 to issue the appointment letter in favour of the petitioner

(iii) Issue a writ, order or direction in the nature of mandamus directing the respondent no.2 to keep one post vacant till the pendency of the writ petition.

Brief facts of the case are that the respondent no.2 issued an advertisement on 17.02.2016 inviting the applications for the post of Assistant Teacher (Primary). Pursuance to the said advertisement petitioner applied. After scrutiny of the documents, petitioner was selected and he was asked to appear in the counselling and thereafter he was allotted Government Primary School Salt, Almora. He was selected as O.B.C. candidate, sub category 'physically handicapped' [partially deaf (Shrvan Harshya)] but when the petitioner went to give joining in the allotted School in District Almora, he was informed by the respondent nos. 5 & 6 to approach the office of respondent no. 3. On 21.07.2016 the petitioner approached the respondent no.3 and was informed that due to mistake name of one female candidate under the same category i.e. O.B.C., sub category- partially deaf has been left, therefore, in place of petitioner now she has been selected.

Learned counsel for the petitioner would submit that the date of birth of respondent no.7-Ms. Minakshi is 10.02.1982 and she is 11 years younger to the petitioner, whereas petitioner's age is 45 years, therefore, it is his last attempt to apply for Government service. He would further submit that the respondents have given undue favour to the case of the respondent no.7, inasmuch as she has obtained O.B.C. Certificate on 22.03.2016, i.e. after the final date of submission of application form which was 05.03.2016 and therefore her name did not figure in the list of OBC handicap candidate. He would further submit that the respondent no.7 made a representation on 29.03.2016 to the respondent no.3 and the respondent no.3 without looking to the facts of the case and without enquiring into the case and the status of appointment as per reservation roaster, has selected the respondent no.7 replacing the petitioner, therefore, the decision of respondent no.3 is illegal and liable to be quashed.

On the other hand, learned counsel for respondent no. 7 would submit that petitioner's year of passing B.Ed. is 2008, while that of the respondent no.7 is 2007 and thus as per the selection criteria, it was the legal and justifiable right of the respondent no.7 to be considered for selection and to be granted appointment before petitioner. He would further submit that respondent no.7 was issued the OBC Certificate on 25.02.2007, in a new performa introduced by the State Government on 24.06.2013 and thereafter, she was again issued OBC Certificate in another performa. He would further submit that respondent no.7 found that OBC candidate who had passed B.Ed. in the year 2008 has been shown to be successful and therefore she immediately made a representation dated 29.03.2016 before the Competent Authority.

Learned counsel for the respondent no.7 would further submit that on the representation made by the petitioner a due and proper inquiry was undertaken by the Department and thereafter it was found that because of clerical error in not entering the proper code in the computer, category of OBC (physically handicapped) was left out. Thereafter, the order dated 23.7.2016 and consequential allotment order dated 27.07.2019 was passed by the competent authority/respondents. He would further submit that on the complaint made by petitioner the respondent no.7 was called and asked to present herself before SCERT, Dehradun, alongwith her certificates on 29.09.2016 and in pursuance of the same, the respondent no.7 presented herself alongwith all the certificates. The competent authority/respondents, on scrutiny found that the certificates of respondent no.7 are genuine and proper, and that the respondent no.7 has been rightly selected on the post of Assistant Teacher (Primary) under the OBC Category, Sub Category Physically handicapped.

After arguing the writ petition at some length, learned counsel for the petitioner would submit that as he had not prayed for any relief against the respondent no.7, therefore, he does not want to press the first prayer that is for quashing of order/letter dated 27.07.2016 (annexure-3 to the writ petition). He, however, would submit that petitioner may also be issued appointment letter in addition to the respondent no.7. Lastly, it is submitted that certain directions be issued to respondent no.2 regarding his appointment of the petitioner pursuant to the advertisement dated 17.02.2016.

Learned Standing Counsel would submit that the name of the respondent no.7 has wrongly been included in the list of selected candidate list instead of the petitioner and he is entitled to get appointment on the aforesaid post.

Having heard learned counsel for the parties and after perusal of the record, it would reveal that the petitioner who belongs to O.B.C. candidate, sub category 'physically handicapped' [partially deaf (Shrvan Harshya)], his name was included in the selected candidates list but mistakenly the name of respondent no.7 was included in the said list.

In view of the above, the writ petition is allowed. Respondents/competent authority is directed to give appointment to the petitioner, on the post of Assistant Teacher, pursuant to the advertisement dated 17.02.2016 and to pay him month to month salary.

There will be no order as to costs.