1 By means of this Special Leave Petition the endeavour of the petitioner, State of Uttarakhand,JUDGMENTis to dislodge and reverse the findings
of the learned Single Judge of the High Court of Uttarakhand at
Nainital in Writ Petition No.1478 of 2003, which Order has been
affirmed by the Division Bench of the High Court in Special Appeal
No.146 of 2008. After going into the factual matrix of the case, the
learned Single Judge had directed by Order dated 10.3.2008 that the
case of the Respondent before us, (namely, Kanhaya Lal, the petitioner
in Writ Petition No.1478 of 2003) be considered within three months
for appointment to the post of Assistant Teacher (Language) L.T.
Grade, if there is no other impediment in his selection (emphasis
added). Dissatisfied with this direction, the Special Appeal came to
be filed in which the Hon’ble Division Bench had opined that there
was no error in the impugned Order of the learned Single Judge, and,
accordingly, the Special Appeal deserved to be dismissed. There are,
accordingly, concurrent findings of facts and law before us.
2 On the first date of hearing before this Court, the submission of
the learned counsel appearing for the State of Uttarakhand to the effect
that “he is not challenging the appointment as such but his only
grievance is that respondent cannot claim appointment from 1997”,
had been recorded.
3 On a perusal of the SLP paper book, we are disturbed to note that pursuant to the Orders of the learned Single Judge, the Additional
Director of Education, Garwal Division, Pohri, instead of investigating
the aspect whether or not any other obstacles existed, has revisited the
entire case and has virtually over-ruled the Order passed by the learned
Single Judge. Having perused the Report/Order of the Additional
Director of Education, Pohri dated 23.5.2008, it would be possible to
view his action as contemptuous of the Orders of the High Court. The
learned Single Judge had directed for appointment to the post of
Assistant Teacher (Language) L.T. Grade “unless there was some other
impediment in selection”. As we have already opined, the Additional
Director of Education has not disclosed “any other impediment” and
instead has merely reiterated the already articulated case of the State,
which had not found favour with the High Court. It is palpably clear
that the Additional Director of Education, Garwal Division, Pauri, has
contumaciously adorned itself with appellate powers over the decision
of the learned Single Judge of the High Court. We shall desist from
making any further directions, however, leaving it open to the
respondent to initiate proceedings, if so advised.
4 In the impugned Order, the learned Division Bench has noted that the first advertisement clearly indicated the last date for submission of Application to be 21st November, 1997, which was
advanced and preponed to 10th November, 1997 in terms of a “vague
corrigendum” issued on 24th October, 1997. It is trite that in matters
concerning appointment to Government posts, fair play and good
conscience, along with adherence to equity, are paramount
prescriptions. In the case in hand, the only infirmity in the
Application of the Respondent was that he had failed to include his
Marksheet along with his Application Form, which was submitted by
him on 4.11.1997; he had made full compliance by personally filing his
Marksheet on 12.11.1997. Keeping in perspective the fact that a
corrigendum has been issued preponing the last date of submission of
Forms from 21.11.1997 to 10.11.1997, it would have been advisable
and prudent to infuse some elasticity or laxity in the observance of the
last date for submission of forms. The Respondent is justifiably
perturbed by the situation that the last appointed candidate had 55.6
quality points whereas he possessed much higher merit, i.e. 58.4
quality points.
5 We do not wish to make any further observations on the
approach and the conduct of the Additional Director of Education, Garwal Region, Pohri, in terms of his Order dated 23.5.2008. In this case, the writ petitioner is a Teacher and it is unfair to him to be
repeatedly drawn into fighting futile, if not frivolous litigation by the
State. It has become the practice of the State to carry on filing appeals
even where the case does not deserve it, knowing fully well that private
respondents will be physically fatigued and economically emasculated
in pursuing protracted litigation.
6 The Order/Report of the Additional Director of Education,
Garwal Division, Pohri, passed on 23.5.2008 is wholly contrary to the
directions given by the learned Single Judge, inasmuch as it fails to
unravel any “other impediment” in granting appointment to the writ
petitioner after treating his Application to be in conformity with the
subject advertisement as per the judgment of the learned Single Judge.
We also note the averment in the Special Leave Petition to the effect
that the Respondent (writ petitioner) already stands selected and
appointed as Assistant Teacher (Language) L.T. Grade on 4.10.2005 in
Government Inter-college, Kamadh, Uttarakashi. To scotch any
further misunderstanding, we direct the State of Uttarakhand to appoint
the Respondent to the post of Assistant Teacher (Language) L.T.
Grade, i.e. the advertised post, treating the writ petitioner to have been appointed along with JUDGMENTthe other candidates who were selected in response to the subject advertisement for appointment to the post of
Assistant Teacher (Language) L.T. Grade. His seniority shall,
therefore, be fixed such that it is not detrimental to the services already
rendered by him.
7 The Special Leave Petition is wholly devoid of merit and is
dismissed. Interim Orders are recalled. We would have awarded
costs but refrain from doing so because the respondent-Kanhaya Lal
has not put in any representation.
[VIKRAMAJIT SEN] New Delhi April 29, 2014.