Uttarakhand High Court
Smt. Mamta Devi vs State Of Uttarakhand And Ors on 13 February, 2020
Equivalent citations: AIRONLINE 2020 UTR 23
Author: Lok Pal Singh
Bench: Lok Pal Singh
Reserved Judgment
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Writ Petition (S/S) No. 3219 of 2018
Smt. Mamta Devi .......Petitioner
Versus
State of Uttarakhand and ors. ......Respondents
And
Writ Petition (S/S) No. 3483 of 2018
Smt. Yashoda Devi .......Petitioner
Versus
State of Uttarakhand and ors. ......Respondents
Mr. Prashant Khanna, Advocate for the petitioner.
Mr. N.P. Sah, Standing Counsel with Mr. Sachin Mohan Singh Mehta,
Brief Holder for State of Uttarakhand.
Hon'ble Lok Pal Singh, J.
By means of aforesaid writ petitions, filed under Article 226 of the Constitution of India, the petitioners are seeking writ in the nature of certiorari for quashing of the impugned termination orders dated 01.09.2018 passed by respondent no. 4
2. Since, controversy involved in both the petitions is similar; therefore, same are being decided by common judgment for the sake of brevity.
3. Facts, leading to filing of the present petitions, are that petitioners are permanent resident of Village Sillabaman Gaon (Tok Jhatgarh) P.O. Agustyamuni, Block Agustyamuni, District Rudraprayag; Respondent no. 3 issued an advertisement dated 15.12.2011, inviting applications for the post of Aanganbari Karyakarti and Aanganbari Sahayika in District Rudraprayag along with 2 other Aanganbari Centers under Child Development Project; post of Aangabari Karyakarti in Jutai, Nagar Palika Ward No. 4 Belri Sangam Bazar Pratham, Gadmil, Chapad, Gadnu and Jhatgarh were for general category. Petitioners, being candidate of General category, applied for the post of Aanganbari Karyakarti and Aanganbari Sahayika respectively, they were declared successful and appointed on the said posts. Respondent no. 5, namely, Rajkumari Devi (in both petitions) participated in the selection process but could not be selected due to her low merit. She approached to this Court challenging the selection process by filing WPSS No. 1414 of 2013, the writ petition was disposed of by order dated 19.03.2018 with the direction to the competent authority to decide her representation/objection by detailed and speaking order. Pursuant to order dated 19.03.2018 of this Court, respondent no. 3 issued a show cause notice to the petitioners why their appointment may not be cancelled, as the population of scheduled castes and scheduled tribes in the concerned village is more than 40% and aforesaid posts should have been reserved for scheduled caste category candidate, and, if they wish to file their objections, they may file their objections within 30 days from the receipt of the show cause notice. The petitioners filed their reply to the show cause notice but no decision was taken by the respondents then petitioner Mamta Devi was constrained to file WPSS No. 1926 of 2018. This Court, vide order dated 28.6.2018 disposed of the writ petition with liberty to the petitioners to make representation before the competent authority and till decision is taken, petitioners shall be permitted to continue on the post on which they were appointed. On receipt of representation, respondent no. 3 has considered that scheduled caste population in Village Sillabaman Gaon is about 52.26% and village Jhatgarh 3 comes under Sillbaman Gaon, and has held that Jhatgarh Village has wrongly been shown under general category and the petitioner has wrongly been given appointment on the respective posts of Aanganbari Karyakatri and Aanganbari Sahayika. By impugned order dated 01.09.2018, services of the petitioners were terminated on this count alone.
4. Feeling aggrieved by order dated 01.09.2018, petitioners have preferred the aforesaid writ petitions stating therein that by Government Order dated 24.02.2009 Aangabari Kendra Jhatgarh has been shown under general category. Respondent no. 5 also submitted her application form against vacant post but could not selected then she raised her grievance by filing representation. Representation filed by respondent no. 5 has illegally been allowed and by impugned order dated 01.09.2018 services of the petitioners have illegally been terminated. Despite services upon respondent no. 5, she did not appear to contest the writ petition.
5. Respondent nos. 2 to 4 have filed their counter affidavits denying the averments of the writ petition. It is stated that population of the scheduled caste community in Sillabaman Gaon, is 443 whereof total population is 621, thus, the said village should have been reserved for scheduled caste category candidate instead of general category. Since, Village Sillabaman has wrongly been categorized for general category candidates, the petitioners should not have been appointed on the respective posts. It is further stated that respondent has decided the representation of respondent no. 5 by speaking and reasoned order and terminated the services of the petitioners for the reasons that population of 4 scheduled caste category in concerned village is more than 40% .
6. I have heard Mr. Prashant Khanna, learned counsel appearing for the petitioner and Mr. N.P. Sah, learned Standing Counsel appearing for the respondents.
7. Indisputably, an advertisement for appointment on the posts of Aanganbari Karyakarti and Aanganbari Sahayika in Aanganbari Center Jhatgarh, P.O. Agustyamuni was issued under General Category; petitioners have applied against the said posts and were selected, as per their high merit. Thereafter, selection of the petitioners was challenged by respondent no. 5 that these posts should have been reserved for scheduled caste category candidates, being population of scheduled caste community in the concerned village more than 40%. Respondent no. 5 who participated in the selection process did not challenge the validity of categorization of village Sillabaman and its centers. It is settled position in law that if a candidate participated in a selection process and could not succeed, he/she cannot challenge the selection process, subsequently on the ground that selection process was illegally launched. If, in any case, village Sillabaman and its centers (Jhatgarh) were wrongly described for general category candidates, respondent no. 5 should have challenge the advertisement at that point of time without being participation in the selection process.
8. The Hon'ble Apex Court in the case of D. Sarojakumari vs. R. Helen Thilakom & ors., reported in (2017) 9 SCC 478 has held that unsuccessful candidate could not challenge the selection process after its participation in the same selection process.
59. Petitioners are not at fault in categorization. The said posts were advertised by the respondents to fill the same from general category candidate, and, without therebeing any challenge to the advertisement respondent no. 5 should not have challenged the selection process, subsequently after the due selection of the petitioners. Action of respondent in considering the representation of respondent no. 5 and terminating the services of the petitioners who were duly selected is unsustainable in the eye of law. Thus, impugned termination orders both dated 01.09.2018 are unsustainable in law and are liable to be set aside.
10. In view of the above, the impugned orders dated 01.09.2018 are hereby quashed. Both the writ petitions are allowed. Pursuant to the interim orders passed by this Court, the petitioners are continuing on their respective posts. They shall continue on said posts.
11. No order as to costs.
(Lok Pal Singh, J.) 13.02.2020 Parul