Ajay Kumar vs State of H.P. and Another

A.M. Khanwilkar, C.J.—We have heard counsel for the parties. The learned Single Judge, no doubt, has accepted the grievance of the appellant-writ petitioner that the appointment of respondent No. 2 was mala fide and, therefore, the same has been quashed and set aside. At the same time, the learned Single Judge did not think it appropriate to grant relief to the appellant-writ petitioner of directing the respondent-Authorities to appoint the appellant-writ petitioner against the vacancy.

The question is whether the appellant-writ petitioner can succeed in getting such direction. It is not in dispute that the advertisement mentions the physical requirement/qualification of the candidate that he must be able to read and write and also able to perform frequent movement as the job involves visual accuracy, frequent movement/walking, continuous long hours sittings, etc.

The Selection Committee has found that the appellant-writ petitioner was not eligible in view of instructions No. PER (AP) C-B (12)-112005, dated 16th January, 2006, being of low vision. That note is found in Annexure P-9 at page 22 of the writ petition paper book. Admittedly, the instructions relied upon by the Selection Committee have not been challenged in the writ petition. In other words, the appellant-writ petitioner has been found ineligible by the Committee. No doubt, the learned Single Judge has not touched this aspect of the matter, but we are required to examine the same to deal with the argument of the appellant-writ petitioner that the appellant-writ petitioner should be considered against the vacancy instead of directing the Authorities to re-advertise the post and fill in the vacancy in accordance with law.

Suffice it to observe that if the appellant is found to be ineligible by the Selection Committee. Merely because the advertisement notifies that the candidate must visually be able to read and write and also able to perform frequent movements and that the Authorities chose to appoint respondent No. 2, who was found to be totally blind, cannot be the basis for the appellant to succeed in the matter or to get the relief to direct the respondent-Authorities to consider the appellant for being appointed against the proposed vacancy.

We find no reason to interfere with the impugned judgment of the learned Single Judge at the instance of the appellant. We place on record that original respondent No. 2 has not chosen to challenge the decision of the learned Single Judge, which has taken the view that the appointment of respondent No. 2 was mala fide exercise of power. In the circumstances, we are not examining any other contention in this appeal and the appeal is dismissed.