Sushila Semwal vs State Of Uttarakhand & Another

Manoj K. Tiwari, J

By means of this writ petition, petitioner has sought following relief:-

"Issue a writ order or direction in the nature of Mandamus directing the respondents to include the name of the petitioner in the selection list under OBC category for the post of ANM/Health Worker (Female) pursuant to selection process initiated through Advertisement No. 3Pa/Pa.Ka/Swa Karya/73/10 published on 15.03.2016."

According to the petitioner, respondent no. 2 issued an advertisement, on 15.03.2016, inviting applications against 440 vacancies on the post of Health Worker (Female)/A.N.M. The last date for submission of application was indicated as 10. 04.2016. In Clause 9 of the advertisement, applicants were cautioned that applications sent by registered post or speed post alone shall be accepted. According to the petitioner, she possessed all requisite qualifications and was also otherwise eligible for appointment to the post of Health Worker (Female) /A.N.M., therefore, she submitted her application through registered post. According to the petitioner, she had enclosed a Bank Draft of Rs.200/- alongwith her application, photocopy whereof is part of record. According to the petitioner, neither any written examination nor interview was required to be held and selection was made on the criterion of seniority with reference to year of passing A.N.M. course. Thus, according to her, anyone, who passed Health Worker/A.N.M. course earlier in point of time would be treated as senior, therefore, would have a preferential right of appointment compared to others.

A tentative select list was issued by respondent no. 2, in which petitioner's name was not included. Since petitioner was expecting her selection by virtue of her seniority, therefore, she made inquiry from the concerned authorities and was informed that her application is not available in the office of respondent no. 2. Thus, feeling aggrieved, petitioner approached this Court by filing this Writ Petition, wherein she contended that her application was delivered in the office of respondent no. 2 on or before 10.04.2016 and the Bank Draft submitted by her with the application was encashed on 16.06.2016. This Court vide order dated 11.10.2018 directed respondent no. 2 to consider the candidature of the petitioner provisionally. Thereafter, on 08.01.2019, this Court directed respondent no. 2 to provisionally permit the petitioner to participate in the counseling scheduled for 9th, 10th & 11th January, 2019 with the condition that her result shall not be declared without leave of this Court.

Learned counsel for the petitioner submits that, in terms of the order dated 08.01.2019, petitioner has participated in the counseling, however, her result has not been declared by respondent no. 2.

In spite of several opportunities, respondents have not filed any counter affidavit.

The sole question involved in the present writ petition is whether petitioner had applied pursuant to the advertisement dated 15.03.2016, or not. According to the petitioner, she had submitted her application within time alongwith a bank draft of Rs.200/-. In paragraph no. 9 of the writ petition, it is stated that her application was sent by registered post and the registration number allotted by postal authorities is also mentioned in the said paragraph, however, postal receipt has not been enclosed with the writ petition.

Petitioner has enclosed copy of the information given by the concerned bank according to which, the bank draft submitted by petitioner with her application has been encashed on 16.06.2016. Since the bank draft was issued in favour of respondent no. 2 from State Bank of India, Uttarkashi Branch on 17.03.2016, therefore, the only inference, which can be drawn, would be that the amount has been credited to the account of respondent no. 2. This leads to the irresistible conclusion that the application sent by petitioner was received by the office of respondent no. 2 within time as otherwise the bank draft would not have been encashed.

Learned counsel for the petitioner has drawn attention of this Court to a letter dated 08.01.2019 issued by respondent no. 2, whereby petitioner was informed that certain educational certificates were not enclosed with her application, namely, Marksheets of (i) High School Examination, (ii) Intermediate Examination and (iii) Basic Health Worker Examination, therefore, she has been placed amongst candidates who do not belong to Science Group. The said letter has been enclosed as Annexure No. 1 to Misc. Application (CLMA No. 2832 of 2019). Thus, it is apparent that the respondent no. 2 now admits that petitioner's application was received in his office within time. The stand now taken by respondent no. 2 is that petitioner's application was incomplete.

Learned counsel for the petitioner submits that a tentative select list was prepared, whereby the candidates were given opportunity to complete their applications and to supply supporting documents which were not sent with the application. He further submits that petitioner's name was not included in the tentative select list or else petitioner could have supplied all the documents. He further submits that petitioner had enclosed all requisite documents with her application. He further submits that petitioner was always a student of Science stream and she had passed Intermediate Examination with Biology, Chemistry and Physics subjects and further that she had secured more than 70% marks in Health Worker (Female) Examination, 2011.

From the aforesaid discussion, it can be safely inferred that petitioner's application reached the office of respondent no. 2 well within time. This conclusion is corroborated by the information given by the bank that the bank draft enclosed with petitioner's application has been encashed.

In such view of the matter, this Court has no hesitation in holding that petitioner cannot be held responsible for the lapses on the part of respondent no. 2 or his office. Since petitioner had applied within time and the defence of respondent no. 2 that petitioner did not enclose necessary educational certificates with her application, cannot be believed. Right to be considered for public employment is a constitutional right which cannot be denied to the petitioner who fulfills all eligibility conditions for the post in question.

Accordingly, writ petition is allowed. Respondent no. 2 is directed to declare result of the petitioner within two weeks and, in case her name figures in the list of successful candidates, appropriate order be issued in respect of the petitioner on or before 29.04.2019.