2025:UHC:2885-DB IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL HON’BLE MR. MANOJ KUMAR TIWARI, J HON’BLE MR. ASHISH NAITHANI, J SPECIAL APPEAL No. 358 of 2017 Satyendra Singh Kumain …Appellant Versus Uttarakhand Subordinate Service Selection Commission and Others …Respondents Counsel for appellant Counsel for respondent nos. 1 & 2. Counsel for the State : : : Mr. Shobhit Saharia, Advocate. Mr. B.D. Pande, Advocate. Mr. D.S. Bora, Standing Counsel. JUDGMENT : (per HON’BLE MR. MANOJ KUMAR TIWARI, J.) The writ petitioner has filed this intra-Court Appeal challenging the judgment and order dated 01.05.2017, passed by learned Single Judge in Writ Petition (S/S) No. 573 of 2016. The order passed by the learned Single Judge is extracted below:- “Petitioner participated in the selection process. He sat in the written examination. Petitioner has secured 45.50 marks in the written examination. However, later on, it transpires that key answer was wrong. Petitioner had given option ‘D’. However, the correct answer was ‘C’. Thereafter, 1.25 marks have been deducted from 45.50 marks. There is no dispute about it. The next submission of the petitioner is that no separate minimum marks were required in both the papers. There is no illegality whereby minimum 45 marks were to be secured by the candidate in each paper. Accordingly, there is no merit in the writ petition and the same is hereby dismissed. Pending application, if any, stands disposed of.” 1 2025:UHC:2885-DB 2. Learned counsel for the appellant submits that the appellant was denied appointment, despite scoring more marks than the last selected candidate, only on the ground that appellant did not score minimum 45 percent marks in both papers in the written examination. He refers to the stand taken by the Uttarakhand Subordinate Service Selection Commission in paragraph 2E of the counter affidavit, filed on behalf of respondent nos. 1 & 2/ Selecting Body, which is extracted below:- “That the petitioner according to his own case secured 71.25/100 in Ist Paper and 44.25/100 in the IInd Paper of the written examination. His total marks in written examination comes to 115.5. Since the petitioner failed to secure minimum 45% marks in second paper, he could not be selected.” 3. Learned counsel for the appellant submits that neither in the Advertisement, nor in the Recruitment Rules, applicable for the post in-question i.e. Assistant Accountant, there was such requirement of scoring minimum 45 percent marks in both papers of written examination. The Advertisement dated 29.10.2015, whereby selection process was initiated, is enclosed as Annexure No. 1 to the Writ Petition. There is no stipulation in the Advertisement that a candidate, who fails to score minimum 45 percent marks in each of the 2 2025:UHC:2885-DB two papers, would not be recommended for appointment. Similarly, the Service Rules, which are on record as Annexure No. 1 to the rejoinder affidavit, are absolutely silent on the question of minimum cut-off marks, which are required to be obtained in written examination. 4. Mr. B.D. Pande, learned counsel appearing for the Selection Body concedes that the Advertisement, as well as the Recruitment Rules, do not contain the requirement of scoring minimum 45 percent marks in both the papers of written examination. He, however, refers to Uttarakhand (Outside the Purview of Uttarakhand Public Service Commission) Procedure for Direct Recruitment to Group-C Posts (Amendment) Rules, 2011, which were notified on 13.12.2011. 5. By the said amendment, Sub-Rule 6 was added in Rule 5 of the original Rules, notified in 2008. Sub-Rule 6, which was added by the said amendment, lays down the minimum cut-off marks required in the selection for candidates belonging to S.T./ S.C., OBC and General Category. 6. A careful perusal of the aforesaid provision reveals that the cut-off marks fixed for General Category and OBC Category candidates is 45 percent, while for 3 2025:UHC:2885-DB S.C. & S.T. category candidates, the minimum cut-off marks would be 35 percent, and anyone scoring less than the prescribed cut-off marks, would not be included in the select list. 7. Learned counsel for the appellant submits that the 2011 Rules, relied upon by the Selecting Body, also do not provide that a candidate has to score minimum 45 percent marks in all the papers of written examination, and Sub-Rule 6 of Rule 5 only provides that the candidates belonging to the General Category or OBC category should have scored minimum 45 percent marks in the aggregate in the written examination for inclusion in the select list. Thus, he submits that the ground taken for non-suiting the appellant for appointment is unsustainable. He further submits that the OBC category candidate, who scored lesser marks than the appellant, was selected and appointed as Assistant Accountant in District Uttarkashi, therefore, appellant is entitled to be appointed by virtue of his higher marks. 8. This Court finds substance in the submission made by learned counsel for the appellant. Since appellant’s name was not recommended for appointment, only on the ground that he could not score 4 2025:UHC:2885-DB minimum 45 percent marks in both the papers, and in the absence of any provision in the Advertisement, or in the applicable Service Rules, that every candidate has to score minimum cut-off marks in both the papers, denial of appointment to the appellant is unsustainable. 9. Learned counsel for the appellant submitted that all vacancies reserved for OBC category, could not be filled-up, upon conclusion of the selection process and some vacancies are still available, therefore, appellant can be easily offered appointment by the Competent Authority. Thus, he submits that the Selecting Body be directed to recommend the name of appellant for appointment, and the Appointing Authority be also directed to issue appointment order. 10. Mr. B.D. Pande, learned counsel appearing for the Selecting Body fairly submits that he has no objection, if the Appeal is decided in terms of prayer made by learned counsel for the appellant. 11. We, therefore, allow the Special Appeal, set aside the impugned judgment, rendered in Writ Petition No. 573 of 2016, and direct the Uttarakhand Subordinate Service Selection Commission to recommend name of appellant for appointment as Assistant Accountant, if he is entitled for such 5 2025:UHC:2885-DB appointment, as per his score of marks amongst OBC category candidates. If the name of the appellant is recommended by the Selection Committee, then it shall be incumbent upon the Appointing Authority to offer appointment to appellant as Assistant Accountant within two months from date of receipt of recommendation from the Selecting Body, if vacancy is available in any of the thirteen districts within the State. 12. Needful shall be done by the Selecting Body within six weeks’ from the date of receipt of certified copy of this order. MANOJ KUMAR TIWARI, J. ASHISH NAITHANI, J. Dt: 22nd April, 2025 Shiksha 6 SHIKSHA BINJOLA Digitally signed by SHIKSHA BINJOLA DN: c=IN, o=HIGH COURT OF UTTARAKHAND, ou=HIGH COURT OF UTTARAKHAND, 2.5.4.20=3410ef86ae41ec9fbabcd5dba6b3a2c 24b5aa08b09c12f21822fbd40bf639b1c, postalCode=263001, st=UTTARAKHAND, serialNumber=FD80A2D028949381C52796A5 42D7FF0A9BED00E67B5283D205F18FE29BDF 5DD9, cn=SHIKSHA BINJOLA Date: 2025.04.23 18:02:20 +05'30'