Rajeev Dubey vs State of Uttarakhand and others

Sharad Kumar Sharma, J.

The petitioner is an aspirant for being selected on the post of Revenue Sub Inspector (Patwari / Lekhpal), which is a process of selection held for

posts which are district level posts. On the directive issued by the State Government, the process of selection for the Revenue Sub Inspector was

initiated in the year 2015 by inviting applications from the prospective candidates aspiring to participate in the selection process. The invitation of

applications for the said selection process was to be made by the District Magistrate of their respective districts on the basis of the letter of the

Revenue Department, being letter No. 1381/XVIII(1)/2015-04/2007 dated 2t4h September, 2015, whereby, the necessary guidelines were issued to

the respective District Magistrates, laying down the mode and modalities for holding the selection process.

The said guidelines as issued by the Revenue Department of the State Government on 24.09.2015 was followed by the instructions / amendment

by virtue of a letter No. 1582/XVIII (1) 2015-03 (03)/2014 dated 9th November, 2015. By virtue of the said amending letter dated 09.11.2015, it

was amending the guidelines of 24th September, 2014, the State Government has laid down in its Clause (9) of the guidelines, a restriction that in

the ensuing selection process in pursuance to the selection of 2015, no provision for any reservation would be made with regard to the sports quota.

Clause 9 is quoted hereunder :-

“(9) jkT; ds d q'ky f[kykfM;ksa d s vkj{k.k d s lEcU/k esa mYys[kuh; gS fd vkj{k.k fn;s tkus dh O;oLFkk lEizfr ek0 mPp U;k;ky;] mRrjk[kaM]

uSuhrky ds }kjk LFkfxr gSA

(12) ftykf/kdkfj;ksa }kjk fjDr inksa dh x.kuk HkrhZ d s p;u o’kZ 2014&15 ds fy, fu;ekoyh d s vuqlkj fnu akd 30 flrEcj] 2015 rd dh tkuh visf{kr gS]

rFkk vfxze 02 p;u o’kZ fnuakd 30 flrEcj] 2016 rFkk fnukad 30 flrEcj] 2017 rd dh lEHkkfor fjfDr;ksa dh x.kuk d s vk/kkj ij vkosnu i= ekaxs

tk;saxsAâ€​

The said letter simultaneously also contained a direction that the District Magistrate will compute the number of vacancies available for recruitment,

i.e. for the selection year 2014-2015 as available on 30th September, 2015 and, consequent thereto, the applications would be invited in the ratio

proportionate to the available seats.

Based on the aforesaid directions and the guidelines issued on 24th September, 2015 and 9th November, 2015, the District Magistrate of District

Udham Singh Nagar had issued an advertisement on 8th October, 2015, wherein, in Clause (11), where he has spilt total number of vacancies, he has

shown 3 vacancies available to be filled from under sport quota.

The grievance of the petitioner is that once Clause (9) of the guidelines issued by State, it contained restriction that no vacancy as against the sports

quota would be advertised and the same was strictly adhered to while issuing the advertisement in other Districts of the State, the District Magistrate

of District Udham Singh Nagar, no exception could have been carved by District Magistrate dehors the guidelines of the State and he could not have

issued an advertisement in contravention to Clause (9) of the said guidelines dated 9th November, 2015. Hence, she submits that as a result of the

reservation of total 5 posts for the sports quota, the possibility of selection of the petitioner has been marred and adversely affected despite of the fact

that the petitioner had secured 158.50 marks in the process of selection. On the conclusion of the selection process, the result of the selection was

declared on 09.09.2016 and, out of the total selected candidates, the result was declared for 67 posts, but the result for remaining 5 posts was withheld

and it was kept subject to the decision of the State Government. The petitioner has pleaded that as against those 5 posts which had been withheld by

the respondents, three posts are under the sports quota out of which 2 posts are for general category and one post to the Scheduled Castes.

The expectation of the petitioner, which is being canvassed is that had the District Magistrate, Udham Singh Nagar strictly adhered to the conditions

of the guidelines dated 9th November, 2015 and had not advertised the posts of sport quota, which was otherwise as per clause 9 of the guidelines was

not to be advertised and appointments strictly in accordance with the merit and result as declared on 09.09.2016, the petitioner would be falling to be

within the zone of the selected candidates and would have been awarded an appointment. The respondents were called upon to file their counter

affidavit which they have submitted on 23rd May, 2017.

What is surprising is that even in the counter affidavit, they do not deny that the guidelines and the parameters as laid down by the State

Government for the process of selection for the year 2015, and that the sports quota was restrained to be advertised for the ensuing selection as it has

been done in the case of Udham Singh Nagar in the advertisement dated 8th October, 2015. To substantiate his stand, the petitioner has also placed

reliance on the advertisement as issued in other Districts for i.e. Almora on 9th October, 2015, wherein, no post was made available for the sports

quota.

In the counter affidavit, the State Government, in para 16, the State has reiterated the Government Orders and the guidelines issued and in

particular in Clause 9 as postulated by the Government order dated 4th November, 2015, where they admit the fact that in pursuance to the direction

issued by the Hon’ble High Court, there was a stay in making recruitment on the post for skilled players, i.e. against sports quota. During the

pendency of the writ petition, a controversy which cropped up was that in pursuance to the selection process, the result of which was declared on

09.09.2016, as to whether the select list still persists after the expiry of statutory period of life of select list and in an event if the writ petition is

decided positively in favour of the petitioner, could he be brought within the ambit of consideration for being appointed as against the selection which

was held in 2016 and the result of which was declared on 9th October, 2016. In the supplementary counter affidavit, which was filed by the Standing

Counsel on 26th September, 2018, they have contended that in pursuance to the selection of 67 candidates by the list of 09.06.2016, two candidates did

not join their services, as a result of which, two vacancies were made available to them and to fill the aforesaid two vacancies they had further

proceeded to make recruitment of Mr. Prakash Joshi and Bhupendra Singh Bisht in accordance to their placement in the merit list by the order dated

8th June, 2018.

In the pleadings, it has also come on record that based on the information which the petitioner has received under the Right to Information Act that

though the District Magistrate in the advertisement had advertised the posts available for the sports quota but in pursuance to the selection process

initiated on the basis of the advertisement dated 8th October, 2015, rather no candidate had extended his candidature as against the sports quota and

none was available. Hence, apparently from the record, it is reflected that the posts which were reserved for sports quota are still available to be filled

from the the general candidate which is to be recruited in accordance with their placement in the merit list.

The contention of the learned counsel for the petitioner is that as per the result declared on 09.09.2016, he has been placed at S.No. 34 and was

3rd in the wait list and in an event, if the posts reserved for sports quota, which was withheld at the time of declaration of select list is released, the

petitioner who has obtained 58.50 marks, will fall to be within the ambit of consideration for appointment and atleast the petitioner cannot be made to

suffer due to the mistakes of selection agency and it would vitiate Articles 14 and 16 of the Constitution of India. The State Government being a model

employer and in particular the District Magistrate, who was supposed to undertake the process of selection has acted beyond the direction which he

was bound by the directives issued by State Govt. and a distinct selection process as compared to other Districts could not have resorted by District

Magistrate in in violation of the guidelines issued on 9th November, 2015 and no seats could have been reserved for the sports quota depriving

petitioner of his appointment and it should have been included and ought to be made available for recruitment to the candidates who had applied as

against the general category.

Considering the position as it has been reflected by the respondents in the supplementary counter affidavit that the appointment has still been given

based on some selection even in the year 2018, a writ of mandamus is issued to the District Magistrate, Udham Singh Nagar to release the withheld

sports quota seats which is shown to have reserved in the advertisement dated 8th October, 2015 and to make it available to the candidate according

to their placement in the merit list and as per law. After undertaking the said process, issue them appointment letter and to send them for the

forthcoming training.

Subject to the above observations, the Writ Petition stands allowed.

However, there would be no order as to costs.