IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 100 of 2009 (S/B) Bhajan Singh. .……… Petitioner Versus State of Uttarakhand & others. .………. Respondents. Mr. Rakesh Thapliyal, Advocate for the petitioner. Mr. H.M. Raturi, Advocate for respondent No. 1. Mr. D.S. Patni, Advocate for respondent No. 3. Mr. Anil Kumar Joshi, Advocate for the intervener in CLMA No. 7422 of 2009. JUDGMENT Coram: Hon’ble J.S. Khehar, C.J. Hon’ble Sudhanshu Dhulia, J. J.S. KHEHAR, C. J. (Oral) CLMA No. 6355 of 2009: For the reasons stated, the Application is allowed and the delay in filing the counter affidavit on behalf of respondent No. 3 is hereby condoned. Counter affidavit filed on behalf of respondent No. 3 is taken on record subject to all just exceptions. CLMA No. 7318 of 2009: Rejoinder affidavit, filed in response to the counter affidavit filed on behalf of respondent No. 3, is taken on record subject to all just exceptions. The Application stands disposed of. CLMA No. 7422 of 2009: Learned counsel for the applicant states, that rather than allowing the prayer of the applicant to be allowed to intervene in the matter, the instant application be treated as an application filed under Order I Rule 10 C.P.C., so as to implead the applicant as a party respondent. Learned counsel for the non-applicant / petitioner states, that he does not wish to file any objections to the instant civil miscellaneous application. He further states, that he has no objection, if the prayer made at the hands of the learned counsel for the applicant is allowed. 2 In view of the above, the instant civil miscellaneous application is allowed. The applicant, fully described in the title of the instant application, is ordered to be impleaded as party respondent No. 4. CLMA No. 7922 of 2009: Learned counsel for the non-applicant / petitioner states, that he has no objection, if the instant Recall Application is allowed, so as to afford one last opportunity to respondent No. 1 to file a counter affidavit. In view of the above, the instant Recall Application is allowed. The order dated 28.07.2009 is recalled to the limited extent that one further opportunity is granted to respondent No. 1 to file counter affidavit. CLMA No. 7979 of 2009: For the reasons stated, the Application is allowed and the delay in filing the counter affidavit on behalf of respondent No. 2 is hereby condoned. Counter affidavit filed on behalf of respondent No. 2 is taken on record subject to all just exceptions. IA No. 2563 of 2009: For the reasons stated, the Application is allowed. Additional counter affidavit filed on behalf of respondent No. 3 is taken on record subject to all just exceptions. CLMA No. 8003 of 2009: For the reasons stated, the Application is allowed. In view of the order passed by this Court in CLMA No. 7922 of 2009 today, counter affidavit filed on behalf of respondent No. 1 is taken on record subject to all just exceptions. CLMA No. 5464 of 2010: For the reasons stated, the Application is allowed and the delay in filing the rejoinder affidavit, to the counter affidavit filed on behalf of respondent No. 1, is condoned. Rejoinder affidavit, to the counter affidavit filed on behalf of respondent No. 1, is taken on record subject to all just exceptions. 3 IA No. 3019 of 2010: Learned counsel for the parties are agreed, that the instant Application be allowed and the main case, wherein pleadings are complete, be posted for final hearing on an actual date. In view of the above, the instant Application is allowed and the main case on the joint request of the learned counsel for the rival parties, will be taken up today itself. CLMA No. 5462 of 2010 & IA No. 3014 of 2010: For the reasons stated, the Application (CLMA No. 5462 of 2010) is allowed, delay in filing the short rejoinder affidavit, to the additional counter affidavit filed on behalf of respondent No. 3, is condoned. Accordingly, short rejoinder affidavit, filed in reply to the additional counter affidavit filed on behalf of respondent No. 3, is taken on record subject to all just exceptions. I.A. No. 3014 of 2010 is accordingly also disposed of. Writ Petition (S/B) No. 100 of 2009: The instant controversy pertains to appointment against the post of Managing Director of the Uttarakhand Pey Jal Nigam. During the pendency of the instant writ petition, the petitioner herein has been granted officiating charge of the post of Managing Director of the Uttarakhand Pey Jal Nigam. 2. Uncertainty at the highest level of the Uttarakhand Pey Jal Nigam would not be administratively conducive to the functioning of the Uttarakhand Pey Jal Nigam. In the facts and circumstances of this case, we are satisfied, that the instant writ petition should be disposed of, with a direction to the Secretary, Pey Jal, Government of Uttarakhand, to ensure that the prescribed procedure for filling-up the post of Managing Director of the Uttarakhand Pey Jal Nigam is carried out and completed within two months from today. Thereafter, the post of Managing Director, Uttarakhand Pey Jal Nigam, shall be filled-up on a regular basis forthwith. 4 3. During the course of hearing, learned counsel for the petitioner insisted, that this Court should decide why officiating charge, in the first instance, was given to Sri R.N. Verma and not to the petitioner. It is not necessary for us to examine the instant issue, raised at the hands of the learned counsel for the petitioner, as the same has been rendered infructuous by vesting officiating charge of the post of Managing Director in the petitioner. And secondly, because we have already directed the finalisation of the process of regular selection and appointment to the post of Managing Director, Uttarakhand Pey Jal Nigam, under the supervision and control of the Secretary, Pey Jal, Government of Uttarakhand. In view of the aforesaid factual position, we decline to examine the issue, sought to be canvassed at the hands of the learned counsel for the petitioner. 4. In addition to the aforesaid, it is also the submission of the learned counsel for the petitioner, that the respondents should be restrained from taking into consideration the Government Order dated 27.02.2009, whereby, certain qualifications have been prescribed, for appointment to the post of Managing Director of the Uttarakhand Pey Jal Nigam. It is the submission of the learned counsel for the petitioner, that the aforesaid qualifications could not have been prescribed, in view of Section 4(2)(a) of the Uttaranchal (The Uttar Pradesh Water Supply and Sewerage Act, 1975) Adaptation and Modification Order, 2002, as no authority was vested thereunder allowing the State Government to prescribe any such qualifications. Section 4(2)(a) is being extracted hereunder: “4(2)(a) A Managing Director to be appointed by the State Government, who shall be full time qualified engineer having administrative experience and also the experience of Water Supply and Sewerage works.” 5. In order to buttress the aforesaid contention, learned counsel for the petitioner invited our attention to the Uttar Pradesh Water Supply and Sewerage (Amendment) Ordinance, 2001, wherein Section 2-A was added thereto. Section 2-A is being reproduced hereunder: “(2-A) Notwithstanding anything contained in the Uttar Pradesh State Control Over Public Corporations Act, 1975 or in any direction issued thereunder, the member referred to in clause (a) of 5 sub-section (2) shall be appointed from amongst the persons possessing such qualifications and experience and in accordance with such manner as may be prescribed.” It is the submission of the learned counsel for the petitioner, that till a provision in the nature of Section 2-A as was introduced in the State of Uttar Pradesh, it is not open to the authorities to lay down any such qualifications, as have been laid down in the Government Order dated 27.02.2009. 6. We have considered the aforesaid contention advanced by the learned counsel for the petitioner and find no merit therein. From the letter dated 27.02.2009, it is pointed out, that the Government Order has laid down minimum of 25 years of total length of service in the Pay Jal Nigam as an Assistant Engineer or above, besides administrative experience in the field of water supply and sewerage. Having examined the express qualifications, prescribed for eligibility for the post of Managing Director in the Government Order dated 27.02.2009, it is not possible for us to record a conclusion that the same are in any way contrary to any of the eligibility criterion prescribed in Section 4(2)(a). It is, by now, well settled that it is open to the competent authority to lay down higher qualifications than those which are expressly prescribed under the statutory rules. In this behalf, reference may be made to the decision rendered by the Supreme Court in State of Haryana Vs. Subash Chander Marwaha & others, (1974) 3 SCC 220, wherein it was held as under: “2. On February 3, 1970 an advertisement was published in the Government Gazette to the effect that the Haryana Public Service Commission will hold an examination for recruitment of candidates for 15 vacancies in the Haryana Civil Service (Judicial Branch). In response to the advertisement a number of candidates appeared for the examination held in November, 1970. The result of the competitive examination was declared and published in the Haryana Government Gazette on April 6, 1971. It was a list of 40 candidates who obtained 45% or more marks in the examination. The State Government which is the appointing authority made seven appointments in the serial order of the list according to merit. Respondents who ranked 8, 9 and 13 respectively in that list did not get an order of appointment although there were vacancies. The reason for not making the appointments was that in the view of the State Government, which was the same as that of the High Court previously intimated to the State Government, candidates getting less than 55% of marks in the examination should not be appointed 6 as Subordinate Judges in the interest of maintaining high-standards of competence in Judicial Service. Respondents 1 to 3 who expected to be appointed filed the petition claiming that since, there were 15 vacancies and they had the necessary qualifications for appointment the State Government was not entitled to pick and choose only seven out of them for appointment, because to do so would be to prescribe a standard which was not contemplated by the rules but was against them. The appellant, on the other hand, contended that the rules did not oblige them to fill in all the vacancies and it was open to them ( the Government) to appoint the first seven candidates front the list in the interest of maintaining high-standards. There was no question of picking and choosing. The rules did not prevent the State from deciding at the time of selection from the list, the minimum number of marks that a selected candidate should score for the purpose of an appointment. The High Court agreed with the contention of the State, that merely because the advertisement was for filling 15 vacancies the first 15 candidates in the list had no right to be appointed in the posts but held that as long as there are requisite number of vacancies unfilled and qualified candidates were available, those candidates had a legal right to be selected under rule 10........ of Part C of the Rules. In the view of the High Court the State Government was not entitled to impose a new standard of 55% of marks for selection as that was against the rule which provided for a minimum of 45 %. 3. It is contended on behalf of the appellant that the above finding against the State was erroneous. The submission was that under the rules the minimum of 45 % was an element to be considered for the eligibility of a candidate for selection and that while making the actual appointment by selection the State Government, in the interest of maintaining high-standards of judicial competence, were not prevented from fixing a minimum standard of a score of 55% marks, especially, as that was the view of the High Court also previously intimated to them. In our view that submission is correct. 12. It was, however, contended by Dr. Singhvi on behalf of the respondents that since rule 8 of Part C makes candidates who obtained 45 per cent or more in the competitive examination eligible for appointment, the State Government had no right to introduce a new rule by which they can restrict the appointments to only those who have scored not less than 55%. It is contended that the State Government have acted arbitrarily in fixing 55 per cent as the minimum for selection and this is contrary to the rule referred to above. The argument has no force…” The Government Order dated 27.02.2009 does not alter any of the qualifications prescribed, but merely provides the exact requirement within the parameters of Section 4(2)(a) reproduced above. We could have understood the predicament of the petitioner, if he had been rendered ineligible under the aforesaid Government Order dated 27.02.2009. But that is not the case. It is, therefore, not possible for us to accept the instant submission advanced by the learned counsel for the petitioner. 7 7. The instant writ petition stands disposed of in the aforesaid terms. (Sudhanshu Dhulia, J.) (J.S. Khehar, C. J.) 12.07.2010 12.07.2010 G