IRSHAD ALI Vs. DIRECTOR (FISHERIES), UTTARAKHAND DEHRADUN
LAWS(UTN)-2012-7-81
HIGH COURT OF UTTARAKHAND
Decided on July 05,2012

IRSHAD ALI Appellant
VERSUS
Director (Fisheries), Uttarakhand Dehradun Respondents

JUDGEMENT

SUDHANSHU DHULIA, J. - (1.) THE petitioner was a candidate for the post of "MACHUA" in the Fisheries Department in the State of Uttarakhand. He had applied for the said post in the District Udham Singh Nagar, as he was a resident of Kichha in Udham Singh Nagar. Further his candidature was a member of Other Backward Classes (hereinafter referred to as 'O.B.C.) as his caste was "Fakir", which is notified as an O.B.C. caste in the State of Uttarakhand. In the application form, which he has submitted for the post of "MACHUA", the petitioner has mentioned his caste in the category of O.B.C. The contention of the petitioner is that though the petitioner procured 70 marks out of 100, in spite of that he has not been given appointment, while other candidates belonging to the O.B.C. category, who were having less marks to the petitioner, such as, Sri Chandra Pal, Mukesh Giri, Rajesh Kumar and Surendra were appointed by the Department, who were impleaded as respondent Nos. 3 to 6 respectively.
(2.) IN the reply filed by the State it has stated that the petitioner could not be considered as an O.B.C. candidate as he has not annexed the O.B.C. certificate along with the application form. Though this contention is denied by the petitioner and he has pointed out that all the applications were minutely checked and only thereafter, the Department issued admission card only to those candidates whose application forms were proper and complete. Moreover, the petitioner had produced all certificates/documents in original before the selection committee and only thereafter, he was thereafter allowed to participate in the selection process. The certificate itself has been perused, which was procured by the petitioner on 17.10.2001, which is much before the date he had applied for the post of "MACHUA". Therefore, the presumption is in favour of the petitioner that he had filed the O.B.C. certificate at the time of filing of the application form. Moreover, it has not been denied by the respondents that the petitioner does not belong to the O.B.C. category.
(3.) BE that as it may, for abundant precaution, this Court had directed the Director (Fisheries), Dehradun to remain present before this Court along with entire records pertaining to the case. After perusing the records submitted before this Court it is clear that the candidature of the petitioner has wrongly been rejected on a "flimsy" and non -existent ground that he did not submit the O.B.C. certificate at the time of filing the application form or at the time of interview. The fact that there was malice on the part of the powers that be who were in the selection process, is further evident from another aspect. Two candidates belonging to the Scheduled Caste category, who were appointed as "MACHUA", although, there was no post reserved for Scheduled Caste candidate in the advertisement (annexure No. 3 to the writ petition). The respondent on this aspect states that between the issuance of an advertisement and filling up of the vacancy i.e. between the year 2003 to 2006 respectively, two posts of Scheduled Caste category candidates had crop up. It has been mentioned in the reply that in the advertisement, it was categorically mentioned that the number of posts can be increased or decreased. Though, the contention of the respondent is incorrect, inasmuch as, though in a present case marginally the vacancy can be increased or decreased as it depend on a particular contingency, yet under no circumstances a vacancy can be filled by a Scheduled Caste candidate on a post reserved for O.B.C. could also have applied for the post of "MACHUA" in view of the said advertisement. Therefore, this contention of the respondent is totally wrong in the present matter. However, the private respondents are represented by Mr. Rajesh Sharma and Mr. Navneet Kaushik, Advocates, who admits that the private respondents secured lesser marks then the petitioner, but it is not their fault that they have been appointed and now after almost more than six years of such appointment, if their services are terminated, it will cause undue hardship to them. In spite of this fact that the petitioner scored more marks than the respondent Nos. 3 to 6, namely, Chandra Pal, Mukesh Giri, Rajesh Kumar and Surendra Kumar respectively, it appears to be injustice to the petitioner.;


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