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Judgment
130 paragraphs · 2,604 wordsR.C. Khulbe, J
The present petition has been filed under Article 226 of the Constitution of India. By means of present writ petition the petitioner has sought following reliefs:-
I. Issue a writ, order or direction in the nature of Certiorari setting aside the order dated 13.12.2018, passed by the respondent no.1, whereby it has refused to select and recommend the petitioner for the post of Clerk, contained in Annexure-1 to this petition.
II. Issue a writ, order or direction in the nature of Mandamus commanding respondent no.1 to select and recommend the petitioner for the post of Clerk.
III. Issue a writ, order or direction in the nature of Mandamus commanding respondent no.2 to ensure appointment of the petitioner on the post of Clerk.
IV. Issue a writ, order or direction in the nature of Mandamus commanding the respondents to grant continuity of service to the petitioner on the post of Clerk w.e.f. the date when other selected persons of the same batch, have been appointed on the post of Clerk.
V. Issue a writ, order or direction in the nature of Mandamus commanding the respondents to grant all other consequential benefits of service to the petitioner.
VI. Issue a writ, order or direction in the nature of Mandamus commanding the respondents to declare results of remaining 21 posts of Clerk, in which the petitioner participated; and consider the candidature of all eligible candidates including the petitioner for appointment on the post of Clerk as against the remaining 21 posts as well.
VII. Issue any other writ, order or direction, as the Court may be deemed fit and proper in the facts and circumstances of the case.
The factual matrix of the case is that the Uttarakhand Board of Technical Education, Dehradun issued an advertisement on 10.09.2014, whereby, it invited applications from the candidates for making recruitment on 177 posts of Clerks and 93 posts of Stenographers, to be employed in the lower courts. As per the advertisement, examination was to be held in two parts. The first part was written examination and the second part was typing test. The petitioner applied for the post of Clerk as a general category candidate. His academic qualification is Bachelor in Arts. The written examination was conducted on 07.02.2015 at Dehradun. He appeared in the written examination and qualified the same and thereafter, he was called for typing test, which was held on 06.05.2015 to 08.05.2015 in the High Court premises at Nainital. The petitioner participated in the typing test and remained successful.
Thereafter, Uttarakhand Technical Education Board supplied a copy of merit list of 486 candidates and disclosed the marks secured by the candidates. The name of petitioner is shown at Sl. No.195. In the said list, it is shown that the petitioner secured 108.5 marks in the written examination and he was successful in the typing test. Thereafter, the respondent-Board issued a select list of candidates who were selected for the post of Clerk. In the select list, out of 177 posts of clerks, result of only 156 posts was declared and result of remaining 21 posts was not declared. Thereafter, the petitioner preferred the Writ Petition No.1084 (S/S) of 2017 before this High Court, which was dismissed by the learned Single Judge on 09.04.2018.
Aggrieved by the judgment dated 09.04.2018 passed by the learned Single Judge, the petitioner preferred Special Appeal No.345 of 2018, which was ultimately allowed by the Division Bench of this Court vide order dated 13.06.2018, and a direction was issued to the respondents to consider the case of the petitioner for appointment on the post of Clerk against five vacant posts of general category within a period of ten weeks. The respondent-Board issued the letter on 13.12.2018.
It is argued by learned Senior Counsel for the petitioner that the Division Bench of this Court in Special Appeal No.345 of 2018, "Subham Dobhal Vs. State of Uttarakhand & others" passed a detailed order on 13.06.2018 and directed the respondents to consider the case of petitioner against the vacant posts of general category within a period of ten weeks. But despite the direction, the respondents did not appoint the petitioner as a Clerk in the general category, as directed by the Court, and the order passed by the respondent board dated 13.12.2018 is liable to be quashed.
Learned Senior Counsel has placed reliance upon the following judgments: -
A. "Shiv Dass Vs. Union of India & Ors, 2007 (1) Supreme 455 (Supreme Court)
B. State of Uttarakhand & Ors. Vs. Kanhaya Lal, 2014 (3) Supreme 584 (Supreme Court)
C. I. Sino Phom Vs. State of Nagaland, (2017) 2 GauLT 625 (Gauhati High Court)
D. State Vs. Chief Controller of Revenue and others, 2017 (2) U.D. 704 (Uttarakhand High Court); and
E. Director School Education & another Vs. Smt. Munni Tilara and another, 2014 (2) U.D., 176 (Division Bench of Uttarakhand High Court)."
Per contra, learned counsel for the respondents contended that as per the directions of the Court dated 13.06.2018, the respondent-Board considered the case of petitioner and found that he had applied for the post falling under the general category, and as per advertisement, only 113 posts were advertised for the general category, out of which, 70 posts were advertised for open category. After examination, the result was declared and all the 70 vacancies have been filled up. As per the advertisement, 7 posts were advertised for ex-servicemen category in general category but only 2 candidates were found suitable and 5 posts remained vacant. As per direction of the High Court, the Board considered the name of petitioner and found that his name appears at 9th place in the merit list of the general category but he was not appointed as Clerk. Since 8 candidates have been found to be more meritorious than the present petitioner, the petitioner cannot be appointed against the ex-servicemen quota.
I have heard learned counsel for both the parties and perused the record produced before me.
From the perusal of the record, the respondent-Uttarakhand Technical Education Board issued the advertisement on 10.09.2014 for making recruitment in the clerical cadre in the Sub-ordinate Courts of Uttarakhand. As per advertisement, in general category, total 113 seats were advertised for the post of clerk. The general category was divided into 5 sub-categories as OP, WO, EX. PH and DFF. As many as 70 posts were advertised under the open category (OP).
As per advertisement, the examination consisted of two parts; First part was written examination and the second was the typing test. The written examination was conducted on 07.02.2015 and the typing test was conducted from 06.05.2015 to 08.05.2015. Thereafter, respondent no.1-Board issued the merit list of 486 candidates in which category-wise marks, secured by the candidates in written and typing test, have been shown.
From a perusal of the record, it is clear that the name of petitioner is shown at Sl. No.195. From the list, it is clear that the petitioner belongs to the general category (sub-category OP). He obtained 108.5 marks in the written examination and he also qualified the typing test as shown (Y) in the list. It is also clear that the respondent-Board selected only 156 candidates against 177 advertised vacancies, which shows that remaining 21 posts are lying vacant.
From the perusal of the application (Annexure-3), it is clear that the petitioner has filed his application for the post of Clerk as a general category candidate. Although, as per the advertisement only 113 posts were advertised for the general category, out of which, only 70 posts were advertised for the open category candidates for which the respondent-Board declared the result, which shows that no seat is available in the open category amongst the general category. As per the advertisement, 7 seats were advertised for ex-servicemen from the general category, out of which, only 2 candidates were found suitable, which shows that 5 seats remained vacant in the general category.
The petitioner filed the writ petition no.1084 (S/S) of 2017 for seeking appointment on the post of Clerk pursuant to the said advertisement but his prayer was declined on the very same day i.e. 09.04.2018. Aggrieved by it, he preferred Special Appeal No.345 of 2018 before the Division Bench. The Division Bench passed the detailed order on 13.06.2018, the operative portion whereof is extracted herein below:-
"The judgment passed by learned Single Judge dated 09.04.2018 in WPSS No.1084 of 2017 is set aside and the respondents are directed to consider the case of the petitioner against the vacant post of General Category candidates within a period of 10 weeks from today."
In compliance of the above order, respondent no.1-Board passed the impugned order dated 13.12.2018.
From the perusal of the order dated 13.12.2018 passed by respondent no.1, it is clear that the matter of the petitioner was considered by the Board, and after scrutinizing the merit list of the general category (open category), the following candidates were not appointed against the general category (open category) posts:-
MERIT NO.
ROLL NO
CANDIDATE NAME
WRITTEN MARKS
TYPE MARKS
TOTAL MARKS
DOB
1
18813667
DEEPAK BANGAI
109
60
169
02-07-1989
2
18827173
MOHIT SHARMA
109
60
169
10-11-1992
3
18834184
PAVAN SINGH
108.75
60
168.75
21-02-1985
4
16621329
RAKESH SHARMA
108.75
60
168.75
07-05-1987
5
17701390
KANTA SUNDRIYAL
108.5
60
168.5
22-05-1978
6
15506147
HEERA SINGH BORA
108.5
60
168.5
15-07-1981
7
16606349
SUDEEP DHYANI
108.5
60
168.5
05-07-1983
8
18853158
LAKHPAT SINGH
108.5
60
168.5
08-05-1987
9
18806114
SUBHAM DOBHAL
108.5
60
168.5
24-09-1992
From the perusal of the merit list, it is clear that as per merit list name of the petitioner appears at Sl. No.9. Although candidates from Sl. No.5 to 8 also secured the same marks, but age-wise, they are older than the present petitioner, therefore, they are above in the merit list. Though, five posts are lying vacant in the ex-servicemen sub-category of general category, but as per the merit list, the applicant is placed at 9th position and name of other 8 candidates is appearing before the present petitioner. Although they did not file any suit or writ petition for their appointment but the petitioner cannot be appointed for the said post as he is lower in rank than these 8 candidates. Hon'ble Division Bench of this Court only ordered for consideration of the petitioner's candidature for appointment to the vacant post but it does not mean that the Division Bench has given any direction for making appointment of the petitioner.
It is argued by learned Counsel for the petitioner that the final list was issued on 06.06.2015 and the candidates from Sl. No.1 to 8, as shown in the order dated 13.12.2018, did not file any suit or writ petition before any Court and they even cannot do so since three years' time period has already expired.
Learned senior counsel drawn attention of this Court towards Articles 58, 59, 113 and 137 of the Limitation Act, which, for the sake of convenience, are extracted as under:-
"THE SCHEDULE
PERIODS OF LIMITATION
[See sections 2(j) and 3]
FIRST DIVISION - SUITS
Description of suit Period of Limitation Time from which period begins to run
PART III - SUITS RELATING TO DECLARATIONS
To obtain any other declaration Three years When the right to sue first accrues."
PART IV - SUITS RELATING TO DECREES AND INSTRUMENTS
To cancel or set aside an instrument or decree or Three years When the facts entitling the plaintiff to have
for the rescission of a contract the instrument or decree cancelled or set
aside or he contract rescinded first become
known to him.
PART X - SUITS FOR WHICH THERE IS NO PRESCRIBED PERIOD
Any suit for which no period of limitation is provided elsewhere in this Three years When the right to sue accrues
Schedule.
THIRD DIVISION - APPLICATIONS
PART I - APPLICATIONS IN SPECIFIED CASES
Any other application for which no period of limitation Three years When the right to apply accrues.
is provided elsewhere in this Division."
I do not find any merit in the argument put forth by learned senior counsel for the petitioner because Articles 58, 59, 113 and 137 of the Limitation Act are applicable only for suits relating to declaration and application. To file a writ is a constitutional remedy under the Constitution of India, and the Limitation Act is not applicable stricto sensu. Apart from that, the candidates shown from Sl. No.1 to 8 in the merit list dated 13.12.2018 have not been arrayed, as respondents, in the present writ petition, and in their absence, the Court cannot draw any adverse interference against them.
In the case of State Vs. Chief Controller of Revenue and others, 2017 (2) U.D. 704, learned Single Judge of this Court has held that in absence of any denial of the facts stated by the opposite party, despite of sufficient opportunity to rebut, the court would be constrained to accept the un-rebutted allegations. But, in the present case, there is no such allegation that any material fact has been suppressed by the respondent.
My attention was also drawn towards the judgment rendered by the Division Bench of this Court in the case of Director, School Education & another Vs. Smt. Munni Tilara and another, 2014 (2) U.D., 176, wherein, it was held as under: -
"Undisputedly, as per Article 7 of the Limitation Act, wages can be recovered within 3 years. We are of the considered opinion that although rigid provisions of the Limitation Act are not application in writ petition, however, broad principles of the Act are always applicable, therefore, on the face of it the writ petition seems to be barred by the principle of laches........"
In the case, cited hereinabove, the writ petition was filed by the petitioner after a delay of 12 years from the date of death of petitioner's husband. But in the present case, the order, under challenge, was passed on 13.12.2018 whereby the names of 9 unsuccessful persons, including the petitioner, have been shown by the respondent-Board. Although the result has been declared by the respondent no.1 on 06.06.2015, but the candidates, mentioned therein, i.e. from Sl. No.1 to 8, did not challenge the same. The Court cannot give any finding whether their rights have reached to an end or not.
Moreover, in the present matter, as per the directions of this Court, issued vide order dated 13.06.2018, the respondent no.1 yet again considered the matter and found that in general category, 7 posts were advertised for ex-servicemen and only 2 candidates were found suitable after the examination while 5 posts remained vacant. However, as per the merit list, the name of present petitioner- Subham Dobhal is appearing at 9th position in the general category (open category) merit list besides 70 candidates who have already been appointed. In the merit list, since 8 candidates have been shown above the present petitioner, hence, the present petitioner cannot be appointed as Clerk against the ex-servicemen quota in general category.
There is no illegality found in the impugned order dated 13.12.2018 passed by respondent no.1-Board, and no appointment can be given to the petitioner pursuant to the directions issued by the Division Bench of this Court on 13.06.2018.
For the reasons, as recorded hereinabove, the petitioner has not been able to substantiate his claim for appointment as a Clerk. The petition lacks merit and is liable to be dismissed.
The petition is, accordingly, dismissed. No order as to costs.