IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 4194 (S/S) of 2001 Govind Ballabh Joshi. …..…Petitioner. Versus State of Uttarachal and others. …...…Respondents. Mr. Manoj Tiwari, Sr. Advocate, assisted by Mr. H.V. Shah, present for the petitioner. Mr. Vinay Kumar, Standing Counsel for the State of Uttarakhand. Judgment Coram: Hon’ble Barin Ghosh, CJ. Hon’ble Nirmal Yadav, J. Barin Ghosh, C.J. (Oral) In 1991, an advertisement was published notifying vacancies available in the posts of Sub Inspector of Police. It was indicated in the said advertisement that certain vacancies are available for open category candidates and some other vacancies are also available for skilled sports persons. Petitioner having had successfully participated in certain sports events, while responding to the advertisement held out that he is one of those skilled sports persons. Petitioner was thereupon invited to participate in the selection process. After completion of the selection process, petitioner was appointed in one of the vacancies which was reserved for skilled sports persons proceeding on the basis of that petitioner was one of them. Later on, it transpired that the petitioner cannot be treated as a skilled sports person in as much as the activities of the 2 petitioner in the field of sports and achievements therein do not qualify the definition of skilled sports person as given by the State Government. In the circumstances, the services of the petitioner were terminated. Petitioner approached Allahabad High Court assailing the said order of termination. The Court found that the order of termination was passed without giving opportunity of being heard to the petitioner. Principally, on that ground the Hon’ble Allahabad High Court quashed the order of termination of the petitioner, but granted liberty to the employer to take steps in accordance with law. Subsequent thereto, petitioner filed a review application before Allahabad High Court and thereby brought on record that his appointment could not be terminated for he obtained more marks then the last person appointed in the open category in the selection process. Considering the said stand taken by the petitioner in the review application, Allahabad High Court disposed of the review application by directing the employer to consider that aspect of the matter also in the event the employer seeks to re-open the matter of termination of the petitioner. 2. Subsequent thereto, a show cause was issued to the petitioner. In that, it was indicated that petitioner though was not a skilled sports person, he represented himself to be so and obtained appointment on the basis of such misrepresentation. In reply thereto, petitioner represented that there was no 3 misrepresentation on his part as in terms of 1975 Government Order, which was mentioned in the brochure referred to in the advertisement, petitioner was a skilled sports person and that he had no knowledge that subsequently, the qualification of skilled sports person had been altered by the State in 1987. In addition to that, petitioner contended that in accordance with the marks obtained by him in course of selection, he should have been appointed in the open category and accordingly, question of interfering with his appointment cannot arise. After considering the reply of the petitioner, by the order assailed in the present writ petition, the service of the petitioner was again terminated compelling the petitioner to file the present writ petition. In the counter affidavit filed to the writ petition, it has been accepted that petitioner obtained more marks in the selection process then the last person, who was appointed in the open category. That being a situation, we do not think that the services of the petitioner could be terminated. 3. In law marks obtained by each and every person in course of selection process are required to be tabulated in accordance with their merit in a list. People who accordance to such merit get an opportunity to supply the vacancies available for open category are entitled in law to supply such vacancies. Only when a person with his merit is not able to supply an open category vacancy, he is entitled to supply a reserved vacancy, provided he belongs to that 4 reserved category. In the instant case, petitioner having had obtained such marks in the selection process by which he could supply one of the vacancies available for open category candidates, question of considering the case of the petitioner for the subject reserved vacancy i.e. vacancy for skilled sports persons did not arise. In those circumstances, we allowed the writ petition and quashed the order of termination impugned in the writ petition. Petitioner shall be entitled to consequential benefits of this order. (Nirmal Yadav, J.) (Barin Ghosh, C.J.) 10.11.2010 SKS