Sarita Gupta vs State Of Uttarakhand And Others

Alok Mahra, J

By means of this writ petition, petitioner has challenged the Office Memorandum dated 24.06.2024 passed by respondent no.3, whereby petitioner has been dismissed from service. Petitioner has further prayed that she may be reinstated in service and may be permitted to discharge her duties, which she was discharging before issuance of the aforesaid Office Memorandum.

Brief facts of the case are that respondent- Nigam issued an advertisement on 02.01.2007, whereby 39 posts of Assistant Engineer (Civil) were advertised; that, out of these 39 posts, 7 posts were reserved for OBC, 11 posts were reserved for SC, 1 post was reserved for ST category and 20 posts were for General Category candidates; that, petitioner belongs to General Category and fulfilled all the eligibility conditions as per the advertisement for the said post; that, written test was held and merit list was prepared; that, petitioner, by virtue of her merit, was selected against the post for General Category. 30% horizontal reservation was granted to women candidates, thus, 6 posts were available under horizontal reservation to women candidates belonging to General Category, after the written examination and interview, only 5 General Category (Women) were declared successful including the petitioner and one seat of General Category (Women) remained unfilled. Pursuant to the selection, petitioner was issued appointment letter dated 05.10.2007 and after completion of probation period, the services of the petitioner were confirmed vide order dated 07.06.2011; that, thereafter, petitioner discharged her duty to the satisfaction of the higher authorities and neither any complaint nor any charge sheet was issued to the petitioner; that, petitioner was subsequently, promoted to the post of Executive Engineer vide order dated 21.07.2018; that, after 14 years of continues satisfactory service in the department, petitioner was issued show-cause notice dated 05.03.2021 to the effect that since she was selected under the General Category (Women), whereas such horizontal reservation for women was only to be granted to those candidates, who were domicile of State of Uttarakhand only, as such reservation was wrongly given to her. Petitioner filed her reply to the above show-cause notice, stating that, there was no condition in the advertisement that horizontal reservation to women would be granted to only those candidates, who are domicile of State of Uttarakhand, while seeking appointment on the said post, she has not misrepresented or played any fraud on the respondents. Thereafter, an inquiry was conducted by the Department, wherein, it has come that there was no condition in the advertisement regarding grant of horizontal reservation to women having domicile certificate of Uttaranchal (Uttarakhand), further petitioner has neither misrepresented nor played any fraud while seeking appointment. Beside this, the Inquiry Committee has submitted that petitioner has rendered 17 years of service in the Department. The Inquiry Officer, who was the Managing Director of the Corporation, opined that no punishment can be given to the petitioner. The said inquiry report was forwarded to the State Government; that, the State Government vide its letter dated 17.05.2023 directed the respondent no.3-Managing Director to take further action against the petitioner on the ground that she was wrongly granted benefit of reservation as she was not domicile of Uttaranchal (Uttarakhand); that, in pursuance of the above letter, again show-cause notice was issued to the petitioner on 08.06.2023, wherein petitioner was asked to show-cause as to why her appointment be not cancelled, as she was not entitled for reservation of General Category (Women); that, thereafter, petitioner replied to the said show-cause notice on 30.06.2023. In her reply, the petitioner reiterated her earlier stand. Beside this, she has submitted that sufficient number of posts reserved for General Category (Women) remained unfilled, as candidates belonging to the category were not available or failed to secure the minimum cut-off marks, thus, she has submitted that the condition of having permanent resident certificate of State of Uttarakhand was waived by the respondents by offering appointment to the petitioner against the post reserved to general women; that, without taking into consideration the grounds mentioned by the petitioner in her reply to the show-cause notice, the impugned dismissal order has been passed, whereby the services of the petitioner have been dismissed on the post of Executive Engineer vide order dated 24.06.2024.

We have heard Mr. B.P. Nautiyal, learned Senior Counsel and Mr. S.S Chauhan, learned counsel for respondent nos.2 and 3.

On perusal of the impugned order, prima facie, it is apparent that the complainant appears to have been set-up by co-workers.

Learned counsel for respondent nos.3 and 4 would submit that posts in the reserved categories were reserved for candidates only from Uttaranchal (now Uttarakhand) and the petitioner is from outside Uttaranchal.

The fact remains that it is not the case of the respondents that sufficient number of candidates of Uttaranchal (Uttarakhand) from the General Category (Women) was available way back in 2007 and, despite the availability of candidates hailing from General Category (Women) from Uttaranchal, appointments have been made. The order of appointment clearly notes their home districts in Column-5 and appointments have been made despite the respondents being well-aware of the fact that the petitioner came from a place outside the Uttaranchal. At this stage, it can only be, prima facie, inferred that the State, which was duly created in 2000 and was facing a shortage of personnel, that too, technical personnel, has knowingly acted and issued appointment orders, which, in our prima facie opinion, would amount to waiver of the condition. It is not the case of the respondent-State that the petitioner has placed fabricated documents regarding her domicile. The authenticity of the domicile certificate not being in question and the domicile certificate produced by the petitioner having been issued by the State of U.P., the action at this point of time appears to be a colourable exercise. Reliance on the condition that the candidates should hail from the State of Uttaranchal having been consciously ignored, the question that stands before this Court is whether the State can now turn around and try to take the advantage of its own wrong. Assuming that the appointment was made contrary to the conditions imposed by itself, though admitted that there was no such condition in the advertisement, the undisputed fact is that, after the appointment, the authorities have occasion to scrutinize the reservation granted to the petitioner as a general (women) candidate, while giving her appointment even at the time of joining her service, at the time of making her permanent employee, and also at the time of issuing promotion order, promoting the petitioner on the post of Executive Engineer in the year 2018, the respondents did not take any action against the petitioner and after serving for nearly two decades, the impugned order has been passed. The present complaint perhaps is the result of a rat race amongst the peers. The State having consciously acted and having made the condition, the question is whether the State is estopped from taking advantage of its own wrong. Hence, the order impugned is liable to be set aside.

As per the submissions of learned counsel for respondent no.3 and 4, the petitioner could not have been granted the benefit of reservation as such her initial appointment is bad in the eyes of law.

Considering the facts and circumstances of the case, we are of the considered opinion that while seeking appointment, the petitioner has neither misrepresented before the respondents authorities nor placed fabricated/false domicile certificate before the concerned authorities and by its action the respondents have waived the conditions given in the advertisement relating to grant of benefit of reservation to only those candidates, who are domicile of State of Uttaranchal, therefore, in the facts and circumstances of the case and also for the fact that the petitioner has rendered about two decades of satisfactory service in the department and undoubtedly her termination would not only impinge upon the economic security of the petitioner and her dependents, but also adversely affect her career; that, this would be highly unjust and grossly unfair to the petitioner, who is innocent appointee, of an error made by the selection committee two decades ago. Thus, the impugned order of dismissal dated 24.06.2024 cannot be sustained in the eyes of law and is hereby set aside. The writ petition stands allowed.

The respondent authorities are directed to reinstate the petitioner in service on the post of Executive Engineer, from which she has been dismissed, with all consequential benefits. There shall no order as to costs.