WPSB/4/2015 of DR. RADHA SHARMA Vs STATE OF UTTARAKHAND

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

THE HON’BLE THE ACTING CHIEF JUSTICE SRI MANOJ KUMAR TIWARI AND THE HON’BLE SRI JUSTICE VIVEK BHARTI SHARMA

WRIT PETITION (S/B) NO. 59 OF 2015

4[TH ]DECEMBER, 2023

Vibhava Prakash Mishra

…… Petitioner

Versus

State of Uttarakhand & others

…… Respondents

WITH

WRIT PETITION (S/B) NO. 04 OF 2015

Dr. Radha Sharma

…… Petitioner

Versus

State of Uttarakhand & others

…… Respondents

WITH

WRIT PETITION (S/B) NO. 261 OF 2016

Dr. Amrita Singh

…… Petitioner

Versus

State of Uttarakhand & others

…… Respondents

Counsel for the petitioners

Counsel for the respondents

: Mr. Shobhit Saharia, learned counsel for petitioner Vibhava Prakash Mishra counsel for petitioner Vibhava Prakash Mishra

: Mr. J.P. Joshi, learned Additional Advocate General with Mr. B.S. Parihar, learned Standing Counsel for the State / respondent No. 1 Advocate General with Mr. B.S. Parihar, learned Standing Counsel for the State / respondent No. 1 Ms. Menka Tripathi, learned counsel for the Uttarakhand Public Services Commission in WPSB No. 04 of 2015 counsel for the Uttarakhand Public Services Commission in WPSB No. 04 of 2015

The Court made the following:

JUDGMENT:(per Hon’ble The Acting Chief Justice Sri Manoj Kumar Tiwari)

Since identical issue of fact and law is involved in the aforementioned writ petitions, therefore, they are being decided by this common judgment for the sake of brevity and convenience.

2. Writ Petition No. 59 (S/B) of 2015 shall be the leading case. The reliefs sought in the said Writ Petition are as follows :

“I. Issue writ, order or direction in the nature of certiorari quashing the order dated 26.12.2014 given by the Additional Secretary on the communication dated 24.12.2014 made by Director as well as order dated 29.01.2015 issued by Director Ayurvedic and Unani.

II. Issue writ, order or direction in the nature of mandamus commanding the respondent authorities to take appropriate consequential and legal steps for grant of appointment and joining to the petitioner as per his merit and law after declaring the waiting list as directed by this Hon'ble Court

III. Issue suitable writ order or direction which this Hon'ble Court may deem fit and proper in the circumstances of the case.

IV. Award the cost of the petition.

V. Issue writ, order or direction in the nature of certiorari quashing the order/communication dated 09.03.2015 passed by respondent no. 1.”

3. Petitioner, who belongs to General Category, participated in selection process for appointment as Medical Officer (Ayurveda), pursuant to an advertisement issued by Uttarakhand Public Service Commission on 25.08.2010. Result of the said selection was declared on 09.11.2012, and petitioner’s name did not figure in the select-list. According to petitioner, the applicable Recruitment Rules provide for waiting-list, containing names not more than 25% of the total advertised vacancies, however, no waitlist was prepared by the Selecting Body. Therefore, petitioner has sought direction to the Selecting Body to issue waiting-list.

4. According to petitioner, the candidates recommended by Commission were offered appointment by State Government, vide order dated 26.07.2013, and in the said order, it was mentioned that the selected candidates should join duties, latest by 31.08.2013. Thereafter, the date of joining was extended till 31.10.2013, but the selected candidates

were permitted to join even beyond the extended date, i.e. 31.10.2013. This, according to petitioner, is impermissible, and candidature of all such candidates, who failed to join duties within the stipulated time, ought to have been cancelled, and waitlisted candidates should have been offered appointment in their place.

5. In the counter affidavit, filed by Director, Ayurvedic and Unani Services, it is stated that select-list, containing 457 names was received by State Government against 564 vacancies, which were advertised. It is further stated that 450 selected candidates were offered appointment by State Government vide order dated 26.07.2013, asking them to join duties by 31.08.2013; 433 candidates had joined duties within the stipulated time; joining time was extended up to 31.10.2013, vide Government Order dated 24.10.2013, which was subsequently extended up to 31.03.2014, vide Government Order dated 10.03.2014 issued by Chief Secretary, Government of Uttarakhand. Paragraph nos. 8 to 12 of the counter affidavit filed by respondent no. 2 are reproduced below :

“8. That it would be pertinent to mention here that amongst the selected candidates the private respondents i.e. Respondent No.- 4 to 7 have also submitted their joining report within one month of their appointment letter i.e. 8/17-8-2013 itself with completion of all the formalities, as were required of them as per their appointment letters, however, since they have already been undergoing MD courses, they requested for additional time of joining at their place of posting or alternatively requested for leave without pay, which was not accepted by the Government. The Respondent No.-7, 6 & 5 have respectively filed writ petitions before this Hon'ble Court, which was disposed of by the Division Bench of this Hon'ble Court vide order dated 04-09-2014, considering that their joining was within the discretionary power of the State Government, the matter was left for the State Government to be decided and no relief was granted to the said writ petitioner. The order dated 04-09-2014 is already on record as Annexure No.-8 to the instant writ petition.

9. That subsequently the said private respondents have made request for granting them permission to join their place of posting vide letters dated December, 2014. Their case was referred to the State Government for decision by Respondent No.-2 and the State Government, considering the General Public Interest and need at the place of posting, as the post of Medical Officers were vacant at the said places, being of extreme hills, have considered their request positively and vide order dated 25-08-2014 had granted its consent to Respondent No.-2. copy of the said request letters and approval granted thereon are collectively being filed herewith and marked as -Annexure No. CA5 (colly).

10. That similarly one Dr. Seema Kothari, who had initially requested vide application dated 07-08-2013, for extension of her joining date on the ground of her undergoing post graduation course to be completed by 31" October, 2014, had also requested for being considered for joining vide her application dated August, 2014, which was also considered positively by the State Government and accordingly vide order dated 25-08-2014, she was directed 1o join the Government Allopathic Hospital Kota Mahadev, Pauri, which is also hilly and remote area and she had accordingly given her joining as Medical Officer at that place, on dated 11-09- 2014. copy of the said request letters and approval granted thereon alongwith her joining are collectively being filed herewith and marked as -Annexure No. CA6.

11. That it is further pertinent to mention here that the petitioner had earlier also preferred writ petition No. 134 of 2013 (S/B) before this Hon'ble Court, for preparation of wait list, which was dismissed by the Division Bench of this Hon'ble Court vide order dated 01-05-2013. However, in another writ petition No. 248 of 2014 (S/B), the Division Bench of this Hon'ble Court, on the statement of the counsel appearing for U.P.S.C. had directed them to send the waiting list, which was prepared by the Public Service Commission, to the State Government with publication of the same in the Newspaper. However, the said order was challenged in SLP before the Hon'ble Supreme Court of India by the Public Service Commission Uttarakhand and vide order dated 06-02- 2015, the Hon'ble Apex Court has passed the following order:-

"Since the publication of the waiting list does not vest any right in any party, we find no justification whatsoever to interfere with the impugned order. We would, however, like to clarify that appointments from the aforestated waiting list will be made only if permissible in accordance with law"

Accordingly, the Hon'ble Court clearly held that the waiting list does not vest any right in any party with further clarification that appointments from the said waiting list will be made only ifpermissible in accordance with Law.

Here it would be pertinent to mention that as per the Office Memorandum No. 2607 dated 26-08-2005, issued by Department of Personnel-2, para-6 it is provided that:-

"In all the posts related to combined services and other selections, leaving the post of single cadres, no wait list will be constituted nor shall any activity of reshuffling be done".

The said O.M. was further ratified vide O.M. No. 2867 dated 30-10-2006 by the said Department. copy of the said O.M.'s are collectively being filed herewith and marked as -Annexure No. CA7.

Since the respondents are bound to observe the said Office Memorandums, accordingly in the light of the above orders of the Hon'ble Supreme Court, the appointment of the petitioner was not permissible.

12. That the petitioners have challenged the subsequent joining of the private respondents by alleging that the same could be arbitrary or the same could be against the dictates of the Hon'ble Apex Court, but the contention of the petitioner is not correct and is devoid of merits. The joining of the private respondents has been given, considering the fact that they have earlier offered their joining report alongwith requisite formalities, as on 08-08-2013 itself i.e. well within the time granted initially and also considering the fact that the joining was in remote hill areas where the need of the Medical Officer was utmost and the decision was in Public Interest only. Also there remained fact that due to the above said orders of Hon'ble Apex Court, the appointment from waiting list could be made only if the same was permissible in accordance with Law, but since the same did not appear to be according to Law, the appointment could not be made as per the waiting list, so sent by the Public Service Commission on 11-02-2015. copy of the letter dated 11-02-2015 of Public Service Commission is being filed herewith and -marked asAnnexure No. CA8.6. It is not in dispute that name of petitioner does not figure in the select-list. candidate, whose name does figure in the select-list, also does not have an indefeasible right of appointment, as held by the Hon’ble Supreme Court in the case of Shankarsan Dash v. Union of India, (1991) 3 SCC 47, which view was reiterated in subsequent judgment rendered in the case of State of Orissa v. Rajkishore Nanda, (2010) 6 SCC 777. Relevant extract of the judgment rendered in the case of Rajkishore Nanda(supra) is reproduced below :

“14. person whose name appears in the select list does not acquire any indefeasible right of appointment. Empanelment at the best is condition of eligibility for the purpose of appointment and by

itself does not amount to selection or create vested right to be appointed. The vacancies have to be filed up as per the statutory rules and in conformity with the constitutional mandate.

15. Constitution Bench of this Court in Shankarsan Dash Vs Union of India (supra) held that appearance of the name of candidate in the select list does not give him right of appointment. Mere inclusion of the candidate’s name in the select list does not confer any right to be selected, even if some of the vacancies remain unfilled. The candidate concerned cannot claim that he has been given hostile discrimination.

16. select list cannot be treated as reservoir for the purpose of appointments, that vacancy can be filled up taking the names from that list as and when it is so required. It is the settled legal proposition that no relief can be granted to the candidate if he approaches the court after the expiry of the select list. If the selection process is over, select list has expired and appointments had been made, no relief can be granted by the court at belated stage.”

7. Petitioner has raised grievance against extension of joining time given to the selected candidates. The State, as employer, has certain inherent rights, and the power to extend the joining date is one such power, which the State can exercise.

8. From the counter affidavit, filed by the Director, Ayurvedic and Unani Services, it is revealed that the private respondents had submitted their joining report well within time, but since they were pursuing post-graduate course at the relevant point of time, therefore, they requested for additional time for joining duties at the place of their posting, or, in the alternative, they requested for leave without pay,

and, ultimately, Additional Secretary, AYUSH Department, vide endorsement dated 26.12.2014, directed respondent no. 2 to issue order of posting in respect of four selected candidates, who are impleaded as respondents nos. 4 to 7 in the present Writ Petition.

9. The order passed by Additional Secretary on 26.12.2014 can be termed as illegal, only if it is in violation of any statutory provision. No statutory provision has been cited on behalf of petitioner for questioning the validity of the order dated 26.12.2014. In the said order, Additional Secretary has noted that private respondents had earlier submitted their joining report. Director, Ayurvedic and Unani Services, in his recommendatory letter, on which Additional Secretary endorsed his order, has mentioned that private respondents were pursuing post-graduate course, due to which they could not join duties, and pursuant to the request made by the Director, the Additional Secretary granted permission. Thus, in the absence of violation of any statutory provision, the permission granted by Additional Secretary cannot be questioned.

10. From the prayer made in relief clause no. 2, it is apparent that petitioner is not even waitlisted candidate. Even if his name figures in the waitlist, then also, he cannot question extension in joining time given to the selected candidates, as it is for the State Government to decide when to extend joining time.

11. Ms. Menka Tripathi, learned counsel appearing for Uttarakhand Public Service Commission in Writ Petition (S/B) No. 04 of 2015, has relied upon Government Order dated 30.10.2006 for submitting that no appointment can be made from waitlist, after expiry of one year from the date of declaration of the result. Thus, she submits that, since the result was declared on 09.11.2012, therefore, no relief can be granted to petitioner in this Writ Petition, which was filed three years after declaration of result.

12. This Court is not inclined to interfere in the matter. The State Government, as employer, has to consider the request for extension of joining time on the merits of each case, and, in the absence of violation of any statutory provision, the exercise of discretion by the State Government, while granting

extension of time, cannot be faulted. Even otherwise also, petitioner’s name does not figure in the select-list, and he claim to be waitlisted candidate, although prayer made in relief clause no. 2 belies the said contention. Even if petitioner is treated as waitlisted candidate, then also he cannot question the decision taken by competent authority, permitting the selected candidates to join duties at the place of their posting, after expiry of the deadline indicated in the appointment letter.

13. The Writ Petition is thoroughly misconceived, which deserves to be dismissed. Accordingly, all these Writ Petitions are dismissed.

14. No order as to costs.

__________________________ MANOJ KUMAR TIWARI, A.C.J.

___________________

VIVEK BHARTI SHARMA, J.