IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition (S/B) No.57 of 2009 Devendra Joshi ………….. Petitioner Versus Union of India and others .…...……. Respondents Present: Mr. Rajendra Dobhal, Senior Advocate assisted by Mr. Mohit Maulekhi, Mr. D.S. Patni and Mr. Manoj Sah, Advocates for the petitioner. Mr. Manoj Tiwari, Senior Advocate assisted by Mr. Manish Bhasnal, Advocate for respondent Nos. 2 & 3. Coram : Hon’ble Barin Ghosh, Chief Justice Hon’ble V. K. Bist, Judge Date of Decision : 04.01.2011 Barin Ghosh, C. J. (Oral) In terms of the order passed by this Court, notice of this writ petition was sent to respondent No.6 by registered post. The postal packet, as appears from the postal receipt issued, was properly addressed to respondent No.6. The postage payable in respect thereof was prepaid. The postal packet containing the notice has not been returned to this Court. Posting of the postal packet was affected on 2nd May 2009. In the circumstances, service of notice of this writ petition upon respondent No.6 should be deemed. Respondent No.6, however, has not chosen to contest this writ petition. 2. Petitioner was an employee of Aryabhatta Research Institute of Observational Sciences (hereinafter referred to as the “respondent employer”), which is an authority within the meaning of Article 12 of the Constitution of India and is under the administrative control of the Union of India through the Department of Science & Technology. It has, however, not been contended that the respondent employer is one of those institutions notified under the Central Administrative Act. 2 3. In the writ petition, petitioner is challenging the order of the respondent employer dated 31st December 2008, by which the services of the petitioner have been brought to an end in course of probation of the petitioner with the respondent employer. The order dated 31st December 2008 does not cast any stigma against the petitioner. In the circumstances, petitioner is challenging the said order on the ground of mala fide. In order to suggest that the said order is a product of mala fide, petitioner has highlighted certain facts which we will discuss hereafter. 4. On 10th August 2007, respondent employer published an advertisement. Thereby it was indicated that the respondent employer has vacancies in the posts of Engineer ‘B’-Civil in the pay scale of `8,000-13,500. Petitioner responded to the said advertisement and upon being selected was offered an appointment on 1st November 2007. On 1st January 2008, petitioner joined on the post of Engineer ‘B’-Civil. On 18th April 2008, another advertisement was published by the respondent employer indicating that it has still vacancy in one post of Engineer ‘B’-Civil. This advertisement was responded by respondent No.6. On 2nd August 2008, respondent No.6 was interviewed and on the same date he was offered an appointment on the post of Engineer ‘C’-Civil in the pay scale of `10,000-15,200. It appears that the pay of respondent No.6 was fixed at `11,950/-, i.e. after giving six advance increments. On the said date, i.e. on 2nd August 2008, respondent employer also published an advertisement indicating that a post of Engineer ‘B’-Civil is still lying vacant. On 7th October 2008, respondent No.6 was made the reporting officer of the petitioner. On 8th October 2008, petitioner represented against grant of higher post and higher pay scale to respondent No.6. On 23rd December 2008, an explanation was sought from the petitioner for certain actions on his part. Petitioner was asked to give those explanations on or before 29th December 2008. On 29th December 2008, by a letter petitioner held out that the memorandum dated 23rd 3 December 2008 asking the petitioner to give explanation, was received by him on 29th December 2008. By the said letter dated 29th December 2008, petitioner sought copies of certain documents. On 31st December 2008, impugned order was passed and thereby the services of the petitioner were brought to an end on the last date of his probation. There appears to be no dispute to the facts as indicated above. 5. By the advertisement dated 18th April 2008, when the petitioner was already an Engineer ‘B’-Civil of the respondent employer, it was held out by the respondent employer that one post of Engineer ‘B’-Civil is available with it. This advertisement was responded by respondent No.6. Respondent No.6 therefore offered, if selected, to be appointed as Engineer ‘B’-Civil of the respondent employer. On 2nd August 2008, respondent employer issued another advertisement and thereby again held out that there is a vacancy in the post of Engineer ‘B’-Civil. On 2nd August 2008, respondent No.6 was interviewed by the respondent employer. This interview must have taken place after the advertisement dated 2nd August 2008 was published. Therefore, before 2nd August 2008, a decision was taken to publish the said advertisement dated 2nd August 2008 and on 2nd August 2008 in terms of response given by respondent No.6 to the advertisement dated 18th April 2008, respondent employer purported to select respondent No.6 but not for the advertised post but for a superior post, i.e. the post of Engineer ‘C’-Civil. The post of Engineer ‘C’-Civil was not advertised. Petitioner, who was already an Engineer ‘B’-Civil, therefore, raised a genuine grievance against the said conduct on the part of the respondent employer. There is no dispute that the post of Engineer ‘C’-Civil is a superior post to the post of Engineer ‘B’-Civil. A person, who responded to an advertisement for supplying a vacancy to an inferior post, could not be selected for being appointed to a superior post by an authority within the meaning of Article 12 of the Constitution of India, inasmuch as, such an action would be violative of Articles 14 and 16 of the Constitution of India. 4 In the event, Engineer ‘C’-Civil post was advertised, many a people could respond to the advertisement, even the petitioner could try his luck. That was not done. Respondent No.6 in a clandestine manner was given appointment to a superior post. The person, who responded to a later advertisement for the equal post held by the petitioner, was made the reporting officer of the petitioner. In that background, petitioner made a representation on 8th October 2008. While no action thereon was taken, an alleged inquiry was made as regards certain conduct on the part of the petitioner and, accordingly, he was asked to explain in regard thereto. The letter, by which such explanation was sought, though is dated 23rd December 2008, was delivered to the petitioner on 29th December 2008. On 29th December 2008 itself petitioner asked for the documents upon which such explanation was sought for. On 31st October 2008, an innocuous order was passed and during the probation of the petitioner, his services were brought to an end. The matter complained of is such that, although the impugned order dated 31st December 2008 is an innocuous order, by which services of the petitioner have been brought to an end without ascribing any stigma against the petitioner, but the same has been brought into effect in the back ground of the facts as above and, accordingly, it would be appropriate to hold that the real reason was to remove the petitioner, so that the manner in which respondent No.6 was appointed to the post of Engineer ‘C’ Civil remains concealed. 6. We are, therefore, of the view that the order dated 31st December 2008 was not intended to bring to an end the probation of the petitioner but was to remove him for he highlighted impermissible things to have been done by the respondent employer in relation to respondent No.6. 7. We, accordingly, set aside the order dated 31st December 2008 and at the same time extend the probationary period of the petitioner by one more year from the date he will rejoin his duties. We ask the respondent employer to redress the grievances of the petitioner, 5 as highlighted in his representation dated 8th October 2008 either by giving the petitioner the post of Engineer ‘C’-Civil, or by bringing respondent No.6 to the post of Engineer ‘B’-Civil. It is made clear that in the event, respondent employer seeks to proceed further on the basis of its letter dated 23rd December 2008, it can do so in accordance with law. 8. This disposes of the writ petition. ( V.K. Bist, J. ) ( Barin Ghosh, C.J.) 04.01.2011 P. Singh