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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  

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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  

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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  

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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.

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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  

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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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