IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Special Appeal No. 195 of 2009 Union of India & others. …Appellants. Versus Rect. Devesh Kumar Dhyani …Respondent. Mr. Shailendra Singh Chauhan, Advocate for the appellants. Mr. Rajendra Dobhal, Senior Advocate with Mr. Manoj Sah, Advocate for the respondents. Coram: Hon’ble J.S. Khehar, C.J. Hon’ble Sudhanshu Dhulia, J. J.S. Khehar, C.J, (Oral) CLMA No. 9050 of 2009 Mr. Shailendra Singh Chauhan, Advocate for the applicants/appellants. Mr. Rajendra Dobhal, Senior Advocate with Mr. Manoj Sah, Advocate for the respondents. Learned counsel for the respondent states that he has no objection, if the prayer made in the instant Misc. Application is allowed and the delay in filing the main Appeal is condoned. In view of the statement made by the learned counsel for the respondent, as also, on account of the facts depicted in the application, we are satisfied that the delay in filing the main Appeal deserves to be condoned. The same is accordingly condoned. Special Appeal No. 195 of 2009 After passing the Adhikari Examination from Gurukul University, the respondent appeared in recruitment. The aforesaid recruitment was carried out for the Bengal Engineer Group and Centre, Roorkee on 22.10.2007. In the first instance, the respondent was subjected to a physical test. The respondent qualified the physical test. Therefore, he was required to appear for the medical test. The medical test was conducted on 8.11.2007. The respondent qualified the medical test 2 also. Having gone thus far, the respondent was directed to appear in a written test, which was conducted on 25.11.2007. On his qualifying the written test, the appellants declared him successful in the result notified on 13.12.2007. Consequent upon his selection, the respondent was directed to join the Bengal Engineer Group and Centre, Roorkee on 25.12.2007. On 30.10.2008, a show cause notice was issued to the respondent, wherein it was asserted that the respondent was not qualified for appointment to the Bengal Engineer Group and Centre, Roorkee. On receipt of the respondent’s reply, the appellants passed the impugned order dated 22.11.2008 discharging the respondent from service. The order dated 22.11.2008 was assailed by the respondent by filing Writ Petition (S/S) No. 1195 of 2008 in this Court. The aforesaid writ petition was allowed on 15.5.2009. The impugned discharge order dated 22.11.2008 was set aside. Dissatisfied with the order dated 15.5.2009, the appellants have approached this Court by filing the present Special Appeal. During the course of hearing, learned counsel for the appellants has advanced only one submission, namely, that the respondent could not be treated as eligible for appointment, on account of the fact that the academic qualification possessed by him was notified as de-recognized by a circular letter dated 17.11.2003. Based on the aforesaid circular letter, the impugned order was passed on 22.11.2008. It is not a matter of dispute that the qualification possessed by the respondent continued to be recognized by the U.P. Board till 26.8.2007. Since the respondent had acquired his aforesaid qualification in the year 2006, the same was liable to be treated as a valid qualification. 3 But then, the question that arises for consideration is whether it was open to the appellants to treat him as ineligible on the basis of the circular letter dated 17.11.2003. On the issue under reference, while the matter was pending consideration before the learned Single Judge, the appellants were repeatedly required to clarify whether the aforesaid circular letter was ever circulated or published so as to be in the knowledge of those, who are likely to be affected thereby. Insofar as the instant issue is concerned, the learned Single Judge has drawn a categorical conclusion that the appellants had failed to place any material on record of this case showing that the circular letter dated 17.11.2003 was ever published. This conclusion drawn by the learned Single Judge is reflected in paragraph 5 of the impugned judgment, which is being reproduced hereunder:- “5. On 03.12.2008 this Court directed the respondents to file counter affidavit. This Court further directed the respondents to clarify in their counter affidavit that whether, after issuance of circular/letter dated 17.11.2003, any public notice was issued in the newspapers and whether the concerned State Government or the Boards were informed about the circular/letter dated 17.11.2003. The respondents were further directed to clarify about the method by which the general public was informed that Gurukul Vishvidhyalaya Virndavan, Mathura (U.P.) is not recognized. The respondents were further directed to inform the Court about the recruitment process in pursuance of which the petitioner was selected. The respondents filed their counter affidavit but queries made by Court were not replied. They simply stated in the counter affidavit that since vide order dated 17.11.2003, issued by the Army Headquarters, Gurukul Vishvidhyalaya, Mathura (U.P.) was mentioned under the heading of non-recognized Board, the petitioner was rightly discharged from service.” It is in the background of the factual position noticed hereinabove, namely, that the circular letter dated 4 17.11.2003 was never published by the appellants, that we shall endeavour to consider the contention advanced by the learned counsel for the appellants. In the absence of circulation or publication, it goes without saying that the appellants alone were aware of the circular letter dated 17.11.2003. Despite the aforesaid, the appellants permitted the respondent to appear in a physical test, a medical test and thereafter, in a written test, whereupon while declaring the final result, the name of the respondent was depicted as one of the successful candidates. It is also apparent that before the appellant was issued an offer of appointment and was permitted to join the Bengal Engineer Group and Centre, Roorkee, on 25.12.2007, his certificates must have been scrutinized to determine his eligibility. Having done so and having found the respondent eligible for appointment, there is no doubt, in our mind, that he cannot be non-suited either in the process of selection or for appointment to the Bengal Engineer Group and Centre, Roorkee on the basis of an unpublished circular letter (dated 17.11.2003). Thus viewed, we have no doubt that the learned Single Judge was fully justified in setting aside the impugned order dated 22.11.2008, which had been rendered on the basis of the circular letter dated 17.11.2003. For the reasons recorded hereinabove, we find no merit in the instant Special Appeal and the same is, therefore, hereby dismissed. (Sudhanshu Dhulia, J.) (J.S. Khehar, C.J.) 29.3.2010 Rathour