NITISH SINGH Vs. STATE OF UTTARAKHAND
LAWS(UTN)-2012-6-30
HIGH COURT OF UTTARAKHAND
Decided on June 13,2012

NITISH SINGH Appellant
VERSUS
STATE OF UTTARAKHAND Respondents

JUDGEMENT

V.K.BIST, J. - (1.) PRESENT petition has been filed by the petitioner for a direction to the respondent no.5 to grant appointment to the petitioner on the post of Forest Guard in pursuance of Forest Order No.25/13-1 GBC dated Muni-ki-reti 17.01.2009.
(2.) BRIEF facts of the case, as narrated in the writ petition, are that an advertisement was published on 12/13-07-2008, whereby applications were invited for the post of Forest Guard. In pursuance of the said advertisement, petitioner applied for the post of Forest Guard under the Scheduled Caste category. Thereafter, he appeared in the physical test and health examination. The petitioner was found fit in the physical test and health examination held on 2008. Thereafter, he was called to appear in the written test held on 16.2008. On 17.2008, result of the examination was declared in which the name of the petitioner was placed at Serial No.4 in the list. Thereafter, on 17.01.2009, the respondent no.5 issued appointment and posting order of 12 persons in which petitioner's name was not included. Since the name of the petitioner was not in the appointment/posting order, he approached the office of D.F.O. Narendra Nagar, Forest Division Muni-ki-reti, Tehri Garhwal for knowing the reason of his exclusion from the list, but nothing could be known from the office of respondent no.5. Thereafter, on 06.02.2009, petitioner made a written representation to the respondent no.5, asking him to give appointment to the petitioner on the post of Forest Guard. In his representation, the petitioner submitted that he had already undergone the physical test and appeared in the written test. In his representation, the petitioner also submitted that in the written examination, the petitioner obtained 71% marks out of 100 marks and was placed at fourth position in the select list. It was further stated that petitioner belongs to Scheduled Caste category and was at the top of candidates belonging to his category, but the name of the petitioner did not appear in the appointment and posting order dated 17.01.2009. It was also submitted in the representation that the candidates, who obtained less marks in the examination, were given appointment and posting, but the petitioner has not been given appointment. On 20.02.2009, respondent nos.2 to 5 informed the petitioner that since his candidature does not come within the definition of 'Seasonal Workers', therefore, he is not eligible to be considered for appointment on the post of Forest Guard. Thereafter, on 27.02.2009, the respondent nos.2 to 5 further informed the petitioner that after due consideration, the petitioner was not found eligible for appointment. Aggrieved thereby, present writ petition has been filed by the petitioner. 3. Learned counsel for the petitioner submitted that one Shri Prem Dass, who is a Scheduled Caste candidate and who obtained 53 marks out of 100 and was at Serial No.24 in the list of successful candidates, was given appointment and the petitioner, who was at Serial No.4 and who obtained 71% marks, has not been given appointment on the post of Forest Guard. He further submitted that the petitioner had been working as seasonal employee in the Shivpuri Range under the respondent no.5 and is entitled to be appointed on the post of Forest Guard on the basis of his performance in the examination. He also submitted that a post of Forest Guard under the Scheduled Caste category is still lying vacant in Shivpuri Range and the petitioner can be given appointment there. Learned counsel for the petitioner contended that the respondent no.5, being the appointing authority of "Forest Guard", has committed illegality by ignoring the merit of the petitioner in the selection process. He argued that the petitioner is a Scheduled Caste candidate and is most meritorious amongst the Scheduled Caste candidates and therefore, he is entitled to be considered for appointment on the post of Forest Guard. The respondent nos.2 to 5 filed Counter affidavit, in which they have submitted that an advertisement was published on 12/13-07-2008, whereby applications were invited for the post of Forest Guard, in which 65% posts of Forest Guard were kept reserved for 'Seasonal Workers', who were working at that time in the department. In pursuance of the said advertisement, petitioner applied for the post of Forest Guard under 'Seasonal Workers' category. It is further mentioned that in the said advertisement that 'Seasonal Workers' shall have the same meaning, as defined in Uttarakhand (U.P. Lower Subordinate Forest Services Rules, 1980) (Adaptation and Modification Order, 2002) (Amended) Service Rules, 2007. The definition of 'Seasonal Worker' has been specified in the Gazette Notification dated 18th October, 1980. And after creation of the State of Uttarakhand, the said notification has been adapted by Uttaranchal (U.P. Lower Subordinate Forest Service Rules, 1980) Adaptation and Modification Order, 2002. Same is as follows:- "3-Definitions:- (i) 'Seasonal Workers mean Stump Moharrirs, Export Moharrirs, Gate Keepers, Fire Watchers, Tractor Drivers, Cleaners and others whose wages are distributed on monthly basis through vouchers or pay bills or on sanctioned rates for a fixed period and who have worked as such during at least three seasons;" It is further mentioned in the counter affidavit that the petitioner did not fall within the meaning of 'Seasonal Workers', therefore, at the time of declaration of result of the examination held on 16.11.2008, a remark thereof was noted against his name. It is also stated in the counter affidavit that due to pressure created by the daily wage workers working in the department at the time of selection process to permit all the daily wagers, who were working even on musteroll basis or voucher basis to appear in the written examination, the respondent nos.2 to 5 provisionally allowed all the working daily wagers to appear. The petitioner was also permitted to appear. But subsequently, on 21.11.2008, a corrigendum was issued by the respondent nos.2 to 5, stating therein that only 'Seasonal Workers' shall be entitled to be appointed on the post of Forest Guard, who becomes eligible within the purview of 'Seasonal Workers' under the Rules of 2002 & Amended Rules of 2007. Respondents further submitted in the counter affidavit that on 06.02.2009, the Principal Chief Conservator of Forest, Uttarakhand issued a circular, whereby directions were issued to cancel such appointments, which have also been given to the incumbents (daily wagers) working on musteroll and whose wages are not paid on monthly basis. It is submitted that the petitioner did not come within the meaning of 'Seasonal Workers', therefore, no recommendation was ever made by the duly constituted Selection Committee for appointment of the petitioner on the post of Forest Guard. It is further submitted in the counter affidavit that the petitioner applied under the category of Seasonal Workers for appointment on the post of Forest Guard, which were advertised to be filled up from amongst the 'Seasonal Workers', who worked as such, at least three seasons, therefore, the petitioner cannot claim his right to be considered for the post of Forest Guard. In sub-rule 2 of Rule 15 of the Uttaranchal (U.P. Lower Subordinate Forest Service Rules, 1980) Adaptation and Modification Order, 2002 (Amended) 2007, it is clearly provided that vacancies are to be filled by seasonal workers working at that time in the Forest Department. On 20.02.2009, respondent nos.2 to 5 informed the petitioner that his candidature has not come within the definition of 'Seasonal Workers', therefore, he is not eligible to be considered for appointment on the post of Forest Guard. The respondent nos.2 to 5 also informed the petitioner that after due consideration, the petitioner was not found eligible for appointment.
(3.) I have heard the learned counsel for the parties and have perused the papers annexed with the writ petition. The petitioner filed rejoinder affidavit in which he annexed copy of certificate issued to him by the Range Officer, Shivpuri Range, certifying that petitioner has worked as seasonal daily wage employee from March 1, 2006, till the issuance of certificate. The rejoinder affidavit was served upon the respondents on 05.12.2011, but they did not choose to file reply to the same. Thus, it is clear that respondent department treats the petitioner as seasonal employee and candidature of the petitioner cannot be cancelled on the ground that he is not a seasonal employee. In paragraph no.9 of the writ petition, the petitioner has stated that one Prem Dass obtained less marks than petitioner and has been given appointment. This fact has not been denied by the respondents. This Court is of the view that in view of above stated facts, the petitioner could not be denied appointment, as he fulfilled the required eligibility criteria and he is entitled to be appointed on the post of Forest Guard. Accordingly, the writ petition is allowed. Order dated 20.02.2009 passed by the respondent no.5 is quashed. The respondents are directed to issue appointment letter to the petitioner on the post of Forest Guard within a period of three months from the date of production of certified copy of the order. No order as to costs.;


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