State Of Uttarakhand & Another vs Lalit Mohan Bora

Ramesh Ranganathan, C.J.

The delay in preferring the appeal is not opposed by Sri Rajesh Joshi, learned counsel for the respondent. The delay in preferring the appeal is, therefore, condoned.

This appeal is preferred against the order passed by the learned Single Judge in WPSS No. 1103 of 2014 dated 6. 07.2018. The respondent-writ petitioner invoked the jurisdiction of this Court seeking a mandamus to direct the Divisional Forest Officer, Dehradun to issue a letter of appointment to the petitioner to the post of Forest Guard, pursuant to the advertisement dated 13.11.2012, against the category of Swimming Sports.

In the order under appeal, the learned Single Judge noted that the advertisement was issued whereby the applications were invited for filling up 25 posts of Forest Guards; two posts were reserved for Swimming sport; the petitioner had participated in National Level Swimming Competitions thrice; he appeared in the examination, and had qualified therein; he was, however, not appointed against the vacancies reserved for the sports category (Swimming), though he had fulfilled the criteria prescribed in the Government Instructions dated 06.01.2013; and once the selection process had started, it should have culminated in the appointment of the petitioner; and no cogent reasons were assigned as to why the writ petitioner has been overlooked for appointment to the post of Forest Guard in the sports category (Swimming). The writ petition was allowed, and the respondents were directed to offer an appointment letter to the petitioner within four weeks from the date of the order for the post of Forest Guard from the date similarly situated persons were appointed with all consequential benefits. Aggrieved thereby, the present appeal.

Sri Anil K. Bisht, learned Standing Counsel appearing on behalf of the State of Uttarakhand, would draw our attention to the supplementary counter affidavit filed in the writ petition, wherein it is stated that there were 37 posts available under the sports quota in the year 2011-2012; an advertisement was issued to fill up the posts; only 30 posts were filled up and, of remaining 07 posts, 06 posts reserved for the Scheduled Castes and 01 post reserved for the OBCs, could not be filled up for the reason of non-availability of candidates in the reserved category; an exercise was initiated afresh in the year 2012-2013 for filling up the posts of Forest Guards from Sports Persons; in the advertisement dated 13.11.2012, 25 posts of Forest Guards, under the Sports category, were published; the vacancies were advertised taking into consideration the forthcoming All India National Forest Sports Meet 2013; on 21. 01.2013, 06 posts were filled up according to the procedure prescribed in the Lower Subordinate Forest Services Rules, 1980, as amended in the year 2007; taking into consideration all applicable roster and other principles, 01 post of unreserved/general, 04 posts of Scheduled Castes and 01 post of OBC were filled up; thereafter, 02 posts reserved for the Scheduled Castes were still vacant; the appointing authority, vide its letter dated 21.01.2013, declared the result; and 06 candidates, i.e. 04 in the Scheduled Castes category, 01 in the OBC category and 01 in the General category were appointed.

On the other hand Sri Rajesh Joshi, learned counsel for the respondent-writ petitioner, would draw our attention to the advertisement issued on 05.11.2012 whereby applications were invited to fill up 25 posts under the Sports category, of which 02 posts were earmarked for Swimming Sports. Learned counsel would submit that, while Ms. Vinita Chhimwal (a candidate higher in the merit list than the respondent-writ petitioner) was entitled to be considered under the Table Tennis category, for which 03 posts were reserved, she could not have been appointed against the Swimming Sports category for which 02 posts were earmarked; since no candidate has been appointed under the Swimming Sports category, the respondent-writ petitioner was eligible to be considered for appointment to the earmarked sport; while the advertisement dated 05.11.2012 stipulated 25 posts, no reasons are spelt out, either in the counter affidavit or in the supplementary counter affidavit, as to why the number of posts were reduced from 25 to 08, and as to how 06 posts were filled up from members of the Scheduled Castes which would exceed the maximum reservation percentage of 50%; and, in such circumstances, the learned Single Judge was justified in issuing the directions by the order under appeal.

Along with the special appeal, are enclosed certain documents including a copy of the circular dated 21.01.2013 wherein details are furnished as to why selections were, in fact, made only for 08 posts, i.e. 01 post for the General category, 06 for the Scheduled Castes and 01 for the OBC category.

On a conjoint reading of this circular dated 21. 01.2013, and the supplementary counter affidavit, it does appear that, after an advertisement was issued on 05.11.2012, an exercise was undertaken by the authorities concerned, and the number of vacancies were re-determined as 08. The fact, however, remains that no corrigendum was issued to the earlier advertisement nor was this circular dated 21.01.2013 brought to the notice of this Court. Unlike in the earlier advertisement where applications were invited to fill up 25 posts, and posts were earmarked for each sports category, the subsequent circular, whereby the number of vacancies were limited to 08 posts, does not specifically earmark posts for each sports category.

While we find considerable force in the submission of Sri Rajesh Joshi, learned counsel for the respondent-writ petitioner, that the appellants had failed to place all these facts before the learned Single Judge, and that documents filed for the first time in an Intra-Court appeal should not be taken into consideration, the fact also remains that none of the submissions made in the supplementary counter affidavit have been taken into consideration by the learned Single Jude in the order under appeal.

Further, it is well settled that no right is conferred even on a selected candidate(s) to claim that they should be appointed to the posts for which the selection process was undertaken. It is always open to the authorities concerned, for just and valid reasons, to fill up lesser number of posts than those advertised, if, on an exercise undertaken by them, they are satisfied that the number of posts, which should be filled up, should be lower than the number of posts advertised.

We may not be understood to have held that the appellants were justified in filling up only 08 posts as against the 25 posts for which an advertisement was issued. All that we are holding is that all these aspects necessitate examination by the learned Single Judge. As none of these issues have been examined in the order under appeal, we consider it appropriate to set-aside the order under appeal, and restore the writ petition to file. Since the writ petition relates to the year 2014, we request the learned Single Judge to hear and decide the writ petition at any early date.

The special appeal is disposed of accordingly.