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Saturday, May 10, 2014

Service matter - Assistant Teacher (Language) L.T. Grade - last date was preponed - mark list was submitted belatedly - his selection was rejected on that count - High court order to give posting from date of selection - filed appeal and obtained interim orders - Additional Director instead of following the orders of High court , reviewed the order of High court and refused to give posting - Apex court dismissed the appeal and confirmed the orders of High court = STATE OF UTTARAKHAND & ORS. .…..PETITIONERS Versus KANHAYA LAL …..RESPONDENT= 2014 ( April.Part) http://judis.nic.in/supremecourt/filename=41497

  Service matter - Assistant Teacher  (Language)  L.T.  Grade - last date was preponed - mark list was submitted belatedly - his selection was rejected on that count - High court order to give posting from date of selection  -  filed appeal and obtained interim orders - Additional Director instead of  following the orders of High court , reviewed the order of High court and refused to give posting - Apex court dismissed the appeal and confirmed the orders of High court = 
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).    =
“he is not challenging the appointment as such but  his  only  grievance  is
that respondent cannot claim appointment from 1997”, had been recorded.=
 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=
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 the 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.

2014 ( April.Part) http://judis.nic.in/supremecourt/filename=41497
DIPAK MISRA, VIKRAMAJIT SEN

                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION


                  SPECIAL LEAVE PETITION© No. 4495  OF 2013






STATE OF UTTARAKHAND & ORS.   .…..PETITIONERS


            Versus


KANHAYA LAL                                          …..RESPONDENT








                               J U D G M E N T






VIKRAMAJIT SEN,J.



1     By  means  of  this  Special  Leave  Petition  the  endeavour  of  the
petitioner, State of Uttarakhand, is 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 the 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.


      ............................................J.
                                                [DIPAK MISRA]





      ............................................J.
                                                [VIKRAMAJIT SEN]
New Delhi
April 29,   2014.
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