Himanshu Joshi And Others vs State Of Uttarakhand And Others

Ramesh Ranganathan, CJ

The delay of 43 days in preferring this appeal is not opposed by Mr. S.S. Chaudhary, learned Brief Holder for the State Government and Mr. Rakesh Thapliyal, learned counsel for the third respondent, and the delay is, therefore, condoned.

This appeal is preferred against the order passed by the learned Single Judge in Writ Petition (S/S) No. 47 of 2019 dated 10.01.2019.

The appellants-writ petitioners, who hold a Bachelors Degree in Occupational Therapy (a 4½ years' course conducted by the Sushila Tiwari Government Hospital, Haldwani), submitted their applications pursuant to the advertisement issued by the third respondent on 08.02.2014 for appointment to the posts of Occupational Therapist. On the ground that no steps were taken by the respondents to fill up the said post, or even to continue with the process of selection, the appellants-writ petitioners invoked the jurisdiction of this Court seeking a mandamus directing the respondents not to abolish the post of Occupational Therapist, and not to merge the vacancies in the said post with the posts of physiotherapists; and for a mandamus commanding the respondents to conduct the examination to the post of Occupational Therapist pursuant to the advertisement dated 08.02.2014.

Mr. Sumit Bajaj, learned counsel for the appellants-writ petitioners, would submit that, while the Director General, Medical Health and Family Welfare, Uttarakhand (the second respondent) had addressed a letter to the Under Secretary, Government of Uttarakhand on 25.06.2016, seeking conversion of the post of Occupational Therapist to that of Physiotherapist, no action has, as yet, been taken by the State Government in this regard.

In the order under appeal dated 10.01.20119, the learned Single Judge observed that merely because the appellants-writ petitioners had completed a course from a particular institution, did not give them the right to restrain the Government from abolishing a post, as it is always open to the employer to either continue a post or to abolish it; the said proceedings of the Director General, Medical Health and Family Welfare, Uttarakhand has not been questioned in the writ petition; whether the exercise undertaken for abolition of post is tenable or not cannot be examined at the behest of the appellants-writ petitioners, who had no indefeasible or enforceable right which can be enforced in proceedings under Article 226 of the Constitution of India; the appellants-writ petitioners had belatedly invoked the jurisdiction of this Court, seeking a mandamus directing the respondents to continue the process of selection, nearly five years after the advertisement was issued on 08.02.2014; and the writ petition was barred by laches.

Mr. Sumit Bajaj, learned counsel for the appellants-writ petitioners, would submit that the advertisement, issued by the third respondent on 08.02.2014, was not merely to fill up the posts of Occupational Therapists; several other posts were also advertised; the process of selection, with regards the other posts, is still underway, and has not yet been completed; since the process of recruitment is still being undertaken for other posts, and not for the posts of Occupational Therapist, the appellants-writ petitioners were entitled to invoke the jurisdiction of this Court; the writ petition cannot be said to be barred by delay and laches; the respondents cannot keep matters in limbo for several years without taking a decision thereon; and it is only after a decision is taken by the competent authority, whether or not to continue the post of Occupational Therapist, can the said decision be questioned by the appellants-writ petitioners in appropriate legal proceedings.

The power to create or abolish post(s) is in the executive realm. The mere fact that an advertisement was issued, inviting applications for a particular post, does not confer any indefeasible right on the applicant to claim that the said post should be filled up by appointing him thereto. It is always open to the authorities concerned not to proceed with the selection process for just and valid reasons. In the present case, the Director General, Medical Health and Family Welfare, Uttarakhand appears to have recommended conversion of the post of Occupational Therapist, to that of Physiotherapist, way-back in the year 2016 (vide letter dated 25.06.2016). It is evidently because the said posts are itself sought to be abolished, and converted into the posts of Physiotherapist, that the respondents chose not to proceed with the process of selection.

Interference in an intra-Court appeal is justified only if the order under appeal suffers from a patent illegality. We find no such infirmity in the order under appeal wherein the learned Single Judge has held that the appellants-writ petitioners have no indefeasible right to question the action of the authorities concerned in seeking to abolish/convert a particular post, or that the process of selection, initiated by the authorities should culminate in an appointment letter being issued to the selected candidates.

We, however, find considerable force in the submission of Mr. Sumit Bajaj, learned counsel for the appellants-writ petitioners, that the Government is obligated to take a decision one way or the other on the recommendation of the Director General, Medical Health and Family Welfare, Uttarakhand, in his letter dated 25.06.2016, requesting them to convert the post of Occupational Therapist to that of Physiotherapist.

Suffice it, therefore, to modify the order of the learned Single Judge to the limited extent that the first respondent shall consider the recommendation of the second respondent, in his letter dated 25.06.2016, for conversion of the post of Occupational Therapist to that of Physiotherapist with utmost expedition and, in any event, not later than four months from the date of receipt of a certified copy of this order.

Depending upon the decision taken by the first respondent in this regard, the third respondent shall then examine whether or not to continue with the recruitment process undertaken, pursuant to the advertisement dated 08.02.2014, for selection of candidates for appointment to the advertised posts. Suffice it to make it clear that we have not expressed any opinion on the nature of the decision which the first respondent is required to take, for these are all matters in the executive realm.

With the aforesaid modifications, the Special Appeal is disposed of. No costs.

Let a certified copy of this order be issued to the parties, on payment of prescribed charges, within one week.