1 IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No.1101 of 2006(S/S) Sita Ram ………… Petitioner Versus The District Magistrate, Tehri Garhwal and another ………… Respondents Hon’ble Tarun Agarwala, J. Heard Sri Chetan Joshi, the learned counsel for the petitioner and Sri Subhash Upadhyay, the learned brief holder for the State/respondents. The petitioner seeks to take advantage of a select list allegedly prepared in the contravention to the relevant rules, in which his name was found at serial no. 6. It transpires that the said select list of the year 1994 was issued one day before the District Magistrate of Tehri Garhwal was relieved. The facts leading to the filing of the present writ petition is, that according to the petitioner a select list dated 29th June, 1994 was issued by the District Magistrate in accordance with the procedure prescribed in U.P. Group “D” Employee Service Rules 1985. The petitioner alleged that the respondents acted in an arbitrary manner by issuing appointment letters to persons, who were below the petitioner in the select list and that the petitioner was not issued an appointment letter. Accordingly, the petitioner filed a writ petition no. 13585 of 1995 before the Allahabad High Court, which after transfer to this court, upon the creation of Uttarakhand, was renumbered as writ petition no. 6746/2001. In this petition, the petitioner alleged that Tota Singh was 2 issued an appointment letter, who was at serial no. 8,whereas the petitioner was at serial no.6. It was also alleged that one Pushkar Singh had filed a writ petition no. 11567/1995. The respondents in the said writ petition had filed a counter affidavit which was sworn on 19th March, 1996 denying the genuineness of the said select list. The writ court, by a judgment dated 17th February, 2005 held that the respondents have given vague denial to the various averments made by the petitioner and that the select list appears to be genuine and accordingly allowed the writ petition with certain directions, which is extracted hereunder: “ In the circumstances the writ petition deserves and is allowed to the extent that if any appointment is already made from the select list mentioned in annexure no.1 of a person who is below to the petitioner who is shown at serial no.6 then the appointment letter to the petitioner shall be issued according to the rules within 30 days of production of certified copy of this order before the District Magistrate Tehri.” Based on the aforesaid direction of the writ court the petitioner was appointed as a class IV employee by an appointment letter dated 29th June, 2005, on the basis of which, the petitioner joined and worked till 24th February, 2006, when an order was issued dispensing his services by invoking the provision of Rule 3 of the U.P. Temporary Government Servants (Termination of Service) Rules 1975. The petitioner being aggrieved by the said order dated 24th February, 2006 filed writ petition no. 304/2006, which was disposed of at the admission stage when it was presented on the very first date by a judgment dated 7th March, 2006 without calling for a counter affidavit. The writ court while quashing the order dated 24th February, 2006 remitted the matter to the respondents to pass 3 a fresh order. The operative portion of the judgment is extracted hereunder; “A writ of certiorary is issued quashing the order-dated 24.2.2004(Annexure IV to the writ petition). The matter is sent back to the authorities concerned to pass appropriate orders considering the representation of the petitioner. It will be open for the respondents to pass order afresh after giving an opportunity to the pettioner and if the reaspondents come to the conclusion that in any reason termination is required, he shall give the reasons for doing so. Subject to the aforesaid, writ petition is allowed. No order as to costs.” Based on the aforesaid directions in the writ petition, the competent authority reconsidered the matter and passed a reasoned order dated 10th May, 2006 holding that the petitioner is not entitled for any appointment. The petitioner being aggrieved by the order dated 10th May, 2006 has filed the present writ petition. A perusal of the aforesaid order indicates that the said select list dated 29th June, 1994 was cancelled by the authorities on 31st December, 1996, since the procedure as per the relevant rule was not adopted. Further, no juniors to the petitioner pursuant to the select list dated 29th June, 1994 was appointed by the respondents and that Sri Tota Singh and Praveen Uniyal were given appointments through different process and that their appointments was not based on the select list dated 29th June, 1994. These facts which are stated in the impugned order was specifically averred in paragraph no.3 (D) of the counter affidavit, which has not been denied in paragraph no.5 of the rejoinder affidavit. The petitioner has only contended that since the select list dated 29th June, 1994 was found to be genuine by the writ court, the same could not be cancelled, but the court 4 finds that the petitioner has not said anything with regard to the contention of the respondents, namely, that no juniors to the petitioner was appointed pursuant to the select list of 1994. No doubt, the respondents in the writ petition 13585/1995 renumbered as writ petition no. 6746/2001 only gave vague reply in their counter affidavit and contended that the select list was not genuine. The counter affidavit was sworn by the respondents on 19th March 1996 and till that date the select list had not been cancelled. In the counter affidavit filed in the present writ petition, the respondents have stated that after due enquiry made by the District Magistrate, an order dated 31.12.1996 was passed cancelling the alleged select list. Even though this fact was not brought on the record in the earlier writ petition, nonetheless, it has come on record and there is nothing to indicate that the said order cancelling the list is not a genuine order. This court further finds that the writ court in its judgment dated 17th February, 2005 had issued clear direction that if any person, who was below the petitioner, as per the select list, and was given an appointment, then the petitioner would also be given an appointment. The respondents have categorically stated in the impugned order as well as in the counter affidavit that not only the select list was cancelled but no person junior to the petitioner was given an appointment letter, which fact has not been denied by the petitioner. In view of the aforesaid, this court finds that the order of the District Magistrate dated 10.5.2006 does not suffer from any error of law. The writ petition fails and is dismissed. (Tarun Agarwala, J.) Dated: 1.4.2010 Nishant