State of Uttarakhand and others vs Shailendra Singh

Sharad Kumar Sharma, J.

K.M. JOSEPH, C.J. (Oral)

The appellants are the respondents in the writ petition. The writ petition was filed seeking the following

reliefs :-

“A. To issue a writ order or direction in the nature of mandamus declaring the action of the Respondents in non-selecting the petitioner for the post

of Assistant Teacher, Primary School pursuant to the advertisement dated 17.02.2016 despite having higher merit than the various other selected

candidates, as arbitrary and illegal.

B. To issue a writ order or direction in the nature of certiorari for quashing the impugned rejection letter dated 13.10.2016 issued by Respondent No. 3

(Annexure No.7 to the writ petition).

C. To issue a writ order or direction in the nature of mandamus directing the Respondents to consider and appoint the petitioner as Assistant Teacher

(Primary) from due date, i.e. when the persons lower in merit to him, were given appointment.

D. To issue a writ order or direction in the nature of mandamus directing the Respondents to grant all consequential benefits, including appointment on

the post of Assistant Teacher, Primary School from due date.

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E. To issue any other writ order or direction, which this Hon’ble Court may deem fit and proper in the circumstances of the case.â€​

The writ petitioner applied for the post of Assistant Teacher (Arts) in Government Primary School as an OBC candidate. The candidature of the

petitioner was rejected on the ground that the OBC certificate submitted by the petitioner was dated 01.06.2011 and the validity of the certificate was

three years and it would have expired in the year 2014. The advertisement was issued, in fact, on 17.02.2016. In fact, the writ petitioner also submitted

another valid OBC certificate, which she obtained on 11.04.2016, which was valid for another three years. The learned Single Judge, however,

considering the nature of the objection and noticing that as the dispute is not that the petitioner is not an OBC category candidate but the dispute is on

a mere technicality, disposed of the writ petition with a direction to the authority concerned that the new OBC certificate should be taken into account

and thereby the candidature of the petitioner should be considered as per law.

We heard Mrs. Prabha Naithani, learned Brief Holder on behalf of the State / appellants and also Mr. Bhagwat Mehra, learned counsel on behalf

of the writ petitioner/ respondent.

The learned Brief Holder on behalf of the appellants would submit that the terms of the advertisement made it clear that mistakes made cannot be

rectified and this is a case where the certificate, as noted by the learned Single Judge, has run its course in the year 2014 and as on the last date of the

advertisement, there was no certificate certifying that the petitioner belongs to the OBC category and, therefore, the action of the State was justified.

Mr. Bhagwat Mehra, learned counsel for the writ petitioner, on the other hand, would support the order of the learned Single Judge. He would

further point out that another Writ Petition was also disposed of on similar lines. The said judgment was, in fact, implemented and the benefit was

given to the party. It is not open to the State to discriminate between similarly situated persons. The further contention of the learned counsel for the

writ petitioner is that a judgment of the Hon’ble Apex Court has decided the issue in the case of Ram Kumar Gijroya Vs. Delhi Subordinate

Services Selection Board and another, reported in (2016) 4 SCC 754, wherein, the Hon’ble Apex Court has countenanced the production of the

OBC certificate after the last date.

The learned counsel for the appellants would, in response, submit that the fact that the judgment as implemented in another case should not be held

against the appellants. In this regard, our attention is drawn to the judgment of the Hon’ble Apex Court in the case of Union of India and others

Vs. Narender Singh reported in (2005) 6 SCC 106. That was the case where the Tribunal’s order, which was challenged before the High Court

had been implemented and the Hon’ble Apex Court took the view that mere implementation of the order will not stand in the way of the matter

being considered by the High Court.

We would think that even on merits, we should not interfere. What is involved is vertical reservation. The claim of the writ petitioner is based on his

belonging to OBC category.

The learned counsel for the appellants would also submit that no opportunity was given to file counter affidavit and the learned Single Judge

disposed of the matter considering the case of the petitioner as per the decision in Writ Petition (S/S) No. 751 of 2016. The appeal against Writ

Petition No. 751 of 2016 came to be closed, no doubt, on the basis that the writ petitioner was not interested in the job, as he has obtained another job.

We would think that the fact that the case was disposed of by the learned Single Judge on the very day when it was filed, but we queried the

learned counsel for the appellants as to whether opportunity was sought to file counter affidavit, the answer was no. The facts in this case are not in

dispute and we would not think any need arises to remand the matter back, in view judgment reported in (2016) 4 SCC 754 (supra), which was the

case where, in fact, no certificate was produced and still the Court took the view that in respect of an OBC candidate, opportunity can be given to

produce the certificate even after last date. We do not see any reason in the facts of this case where, in fact, a certificate was produced of the year

2011 and the validity of which was three years, showing the petitioner to be a member of OBC category and also a fresh certificate is also produced.

We do not see any reason to interfere with the judgment of the learned Single Judge. We, however, make it crystal clear that the judgment is not

to be understood as a judgment relating to the inter se merit of the candidates, it only has the effect of directing the new certificate produced by the

petitioner as an OBC candidate to be considered and to treat the petitioner under the OBC category.

In this case, we notice that there is a prayer sought to quash the order of rejection. The learned Single Judge has not granted such prayer. We feel

that power under Order XL1 Rule 33 of the CPC must be invoked by us and the impugned communication (Annexure No. 2) will stand quashed.

The appeal is dismissed subject to the aforesaid observations.