High Court · 2012

Judgment

1. All these writ appeals arise out of the common judgment and order dated 18.12.2009 passed by the learned Single Judge in WP ( C) Nos 6198/2007, 6205/20 07 and 4589/2008.

The relevant facts of the case may be briefly noted.

3. An advertisement was issued by the Assam Public Service Commission (APS C) on 23.7.2002 inviting applications from the eligible candidates for 3 posts of Motor Vehicle Inspector(MVI). After conducting selection etc., a select list was published by the APSC on 21.5.2004. As against 3 posts advertised, the selec t list contained names of as many as 19 candidates and there was mention of 7 v acancies as against 3 posts advertised.

4. Name of Sri Sanjib Kumar Chutia, an MOBC candidate appeared at Sl No.3 i n the select list whereas name of Sri Dilip Kumar Baishya, a Scheduled Caste ca ndidate appeared at Sl No.12. Though they were recommended by the APSC, the Gov ernment in the Transport Department took the view that the Diploma possessed by the said 2 candidates was not as per the prescribed qualification in the adve rtisement. They were, therefore, denied appointments. Aggrieved, Sri Sanjib Kuma r Chutia filed WP( C) No.6186/2007 while Sri Dilip Kumar Baishya filed WP( C) No .6205/2007 seeking direction for their appointments as MVI. Status quo order was passed by this Court on 05.12.2007 followed by further interim orders dated 10. 12.2007 and 23.1.2008 whereby it was provided that no appointment to any vacant post of MVI should be made from the select list in question, in terms of which n o appointment could be made by the State Respondents.

5. The 5 petitioners in WP( C) No.4589/2008 whose names figured at Sl Nos 13,14,15,16 and 17 in the select list were appointed as MVI on 25.3.2008. By sub sequent Government order dated 23.10.2008, their appointments were cancelled. T he 5 petitioners not only challenged their cancellation order dated 23.10.200 8 but also questioned the qualification and eligibility of the 2 candidates wh o were petitioners in WP( C) Nos 6186/2007 and 6205/2007.

6. While proceeding with WP( C) No.4589/2008, learned Single Judge noticed that as against the 3 posts advertised, the Transport Department had appointed 15 persons from the select list up to Sl No.17( excluding candidates at Sl Nos 3 and 12, who, thereafter filed the aforesaid 2 writ petitions). Learned Singl e Judge by order dated 26.11.2008 noted that though the advertisement was for 3 posts, the APSC’s recommendation was for 7 posts. Further, the Transport Departm ent made appointments even beyond those 7 posts. Learned Single Judge also sou ght for explanation as to how appointments could be made on 25.3.2008 when stay orders passed by this Court were holding the field.

7. Thereafter, the Transport Department apprised the Court by way of an af fidavit that though vacancies notified in the advertisement was only 3, later on due to increase in the number of vacancies by 4 (total 7) , Government requeste d the APSC to recommend suitable candidates against 7 posts vide letter dated 4 .11.2003. As per the said affidavit, the select list published was extended from time to time and further vacancies that arose were also filled up therefrom.

8. Learned Single Judge noticed that pursuant to the advertisement dated 2 3.7.2002 for3 posts, written test was held on 21.9.2003. The subsequent request of the government for additional 4 posts was made after the selection process was set in motion.

9. As appointments were made beyond the advertised vacancies, the appointed candidates were put on notice to justify their appointments. All the appointed candidates appeared and contested the proceeding. Coming to the 5 petitioners in WP( C) No.4589/2008, learned Single Jud 10. ge noted that their merit position in the select list was at Sl Nos 13 to 17 w hich were way below the advertised vacancies. Their appointments were interfere d with by the learned Single Judge on two grounds. Firstly, their merit position in the select list did not justify their appointments against 3 vacancies or even against the 7 vacancies, which were subsequently decided to be filled up from the said select list. Secondly, when the stay orders passed in WP( C) Nos 6 186/2007 and 6205/2007 were in force, the authority could not have issued the a ppointment orders. Learned Single Judge did not find any good ground to interfe re with the government order dated 23.10.2008 cancelling the appointments of the petitioners. Following the same, WP( C) No.4589/2008 was dismissed.

11. Coming to WP( C) Nos 6186/2007 and 6025/2007, in so far the grievance o f the writ petitioners regarding non recognition of their qualification for th e post of MVI and consequential denial of appointment is concerned, learned Sing le Judge held that the particular diploma obtained by the petitioners conforme d to the requirement of the educational qualification laid down in the adverti sement and, therefore, their recommendation by the APSC could not have been bru shed aside by the Transport Department on the ground that their qualification was in-compatible with the qualification prescribed in the advertisement. Further, noticing the discrepancy in the selection process, learned S 12. ingle Judge held that appointments beyond the advertised vacancies or at least the 7 vacancies must be held to be illegal. Writ Appeal No.220/2010 has been filed by the State contending that t 13. he appointments that were made by the State were made in view of the sudden ne cessity and those were not made in a routine manner. It was also urged that the direction given to treat the qualification of the petitioners of WP( C) Nos 61 86/2007 and 6205/2007 to be in conformity with the qualification prescribed in the advertisement, would amount to diluting the eligibility conditions laid dow n in the advertisement. The other writ appeals have been filed by the petitione rs of WP( C) No. 4589/2008 and by the candidates whose appointments have been d eclared to be illegal by the learned Single Judge.

14. We have heard Mr U. Rajbongshi, learned Standing Counsel, Transport De partment for the appellants in WA No.220/2010 and Mr AM Bujarbaruah, learned co unsel for the appellants in WA Nos.155/2010, 396/2009 and 221/2010. We have also heard Mr MK Choudhury, learned Senior counsel for the appellants in WA No.395/2 009, Mr C Baruah, learned SC, APSC and Mr SK Talukdar, learned counsel appearing for the respondents. Coming first to the issue relating to the qualification of the petitio 15. ners in WP( C) Nos 6186/2007 and 6205/2007, it is seen that the educational qual ification prescribed in the advertisement dated 23.7.2002 was Higher Secondary passed with Diploma in Automobile or Mechanical Engineering from a recognized i nstitution( 3 years diploma course) of Govt. of India or Govt. of Assam. Both t he petitioners are retired Air Force personnel and both of them are graduates. They had possessed the Trade of Mechanical Transport Fitter from the Mechanica l Transport Training Institute, Indian Air Force. The Indian Air Force recognize s the Trade of Mechanical Transport Fitter as Diploma in Mechanical Engineerin g. The Government of India in the Ministry of Education and Youth Welfare als o recognizes Mechanical Transport Fitter also known as Fitter Mechanical Trans port as Diploma in Mechanical Engineering. The stand taken by the 2 petitioners received support from the Air Force Authorities, who filed affidavit in the proceeding before the learned Single Judge. Learned Single Judge considering th e relevant documents placed on record and the stand of various authorities, ac cepted the contention of the 2 petitioners that they fulfilled the eligibility criteria and that they should be considered for appointment on the strength o f their merit position in the select list and following the reservation princip le. The following is the finding of the learned Single Judge : (cid:28)16. Apart from the above, the petitioners have also placed reliance on the Anne xure-7 & 8 communications dated 8.3.2007, 27.6.2007 and 21.8.2007. By the first communication dated 8.3.2007, the Government of Assam, in the Transport Departme nt requested the Director of Technical Education, Assam to clarify whether the diploma in Automobile in (cid:28)MT FIT (cid:29) trade submitted by the petitioners could be eq uated with that of a diploma in Automobile Engineering issued from the instituti ons recognised by the Government of Assam. By the second letter dated 27.6.2007, the petitioners were informed by the Director of Personal Service, Air HQ, New Delhi that certificate of diploma in Mechanical Engineering, issued to Mechanica l Transport Fitter Tradesman by the Indian Air Force is valid and recognised by the Government of India for recruitment to subordinate posts and services under the Central Government, for which a diploma in Mechanical Engineering is the pre scribed qualification.

17. By the third communication dated 21.8.2007, the APSC had informed the pe titioners that the commission had recommended them on merit basis as per their p erformance in the interview and that the diploma in Mechanical Engineering issue d by IAF, recognised by the Govt. of India, Ministry of Social Welfare, Departme nt of Education, was accepted by APSC and accordingly they were called for the i nterview.

19. By annexure-9 letter dated 29.6.2007, the Govt. of Assam in the Transpor t Department, intimated the Joint Secretary (ADMN) to the Governor of Assam that the petitioner in WP(C) No. 6186/2007 i.e. Shri Sanjib Chutia, Ex-serviceman o f Indian Air Force (IAF) was selected by APSC for appointment as MVI but on scru tiny by the Director of Technical Education, it was observed that the institute from which he had passed out was not an institution recognised by the Government of Assam and as such, he could not be appointed due to non fulfilment of essent ial qualification for the post of MVI. What is noteworthy is that as per this le tter, the particular diploma to the credit of the petitioners is not recognised by Government of Assam, which stand is par se contrary to the particular qualifi cation laid down in the advertisement itself, in terms of which the particular d iploma must be recognised either by the Govt. of India or by the Govt. of Assam. The fact that the particular diploma to the credit of the petitioners is a reco gnised one by the Govt. of India, (may not be by the Govt. of Assam), was not re flected in the said Annexure-9 letter dated 29.6.2007. Thus, there was total non -application of mind on the part of the State Government in the Transport Depart ment while turning down the appointment of the petitioners.

20. As to whether on the basis of their merit position, they could or would get appointment or not, is altogether a different issue but their very existence in the fray could not have been set-at-naught by branding them to be not qualif ied for the post of MVI.

21. In view of the above, both the writ petitions are allowed so far as the same relate to the grievance of the petitioners regarding non-recognition of the ir qualification for the post of MVI. It is hereby declared that on the basis of the recognition extended by the Govt. of India, the particular diploma obtained by the petitioners conforms to the requirement of the educational qualification laid down in the advertisement and thus, their candidatures and recommendation could not have been brushed aside by the Govt. of Assam in the Transport Departm ent. (cid:29)

17. Regarding dismissal of WP( C) No.4589/2008, the facts are quite glaring and speak for itself. The 5 petitioners of WP( C) No.4589/2008 are placed at S l Nos 13 to 17 in the select list. The vacancies advertised were 3. Even if the subsequent 4 vacancies are taken into consideration, making it a total of 7 po sts, the merit position of the petitioners do not justify their appointment. It was further compounded by the fact that those appointments were made in violatio n of the stay order of this Court. The grievance of the petitioners that without affording any opportunity of hearing, their appointments were cancelled and th erefore such cancellation would be illegal, would not in any manner dilute the illegality of their appointments. When the illegality was so glaring, learned S ingle Judge justifiably declined to interfere with the cancellation of appointm ent of the petitioners on the ground of violation of the principles of natural justice as issuance of notice to the petitioners would not have made any mater ial difference. Therefore, we are in agreement with the view expressed by the l earned Single Judge while dismissing the said writ petition. This now leads us to the larger issue as to whether the appointments mad

18. Coming to the core issue as to whether the Transport Department could have made appointments beyond the advertised posts, learned Single Judge after examining the provisions of the Assam Transport Service Rules, 1983 governing re cruitment to the post of MVI observed that the APSC was required to recommend d ouble the number of vacancies and that select list forwarded by the APSC rema ins valid for 12 calendar months from the date of recommendation. In the presen t case, though the advertisement was for 3 vacancies, even if the subsequent 4 v acancies are taken into consideration which makes the total number of vacancie s 7, the APSC recommended 19 candidates instead of 14. Learned Single Judge als o found that the select list though was valid upto 20.5.2005, 14 appointments w ere made after that date. Learned Single Judge held as under : (cid:28)25. e beyond the advertised posts could be sustained. The Recruitment Rule governing the recruitment to the post of MVI is the Assam Transport Service Rules, 1983. Direct recruitment to the post of MVI is provided under Rule 6. Rule 8 and 9 pro vide for the procedure and methodology for direct recruitment to the post of MVI . As per the said provisions, direct recruitment to the cadre of MVI shall be ma de by the appointing authority on the basis of the selection made by the APSC. B efore the end of each year, the appointing authority shall make an assessment of the likely number of vacancies to be filled up by direct recruitment during the next year and communicate the same to the Commission with a request to recommen d candidate for direct recruitment within a period of three months. On receipt o f such requisition, the Commission shall invite applications through advertiseme nt in accordance with general instructions in force. The Commission shall then m ake the selection in accordance with the scheme of selection prescribed by the G overnment and shall prepare and forward to the Government a list of candidates i n order of preference, who are found suitable for appointment to the service. Ru le 9(d) clearly stipulates that the list forwarded by the Commission shall remai n valid for 12 calendar months from the date of recommendation.

26. In the instant case, the advertisement was for three vacancies of MVI. A s per the additional affidavit filed by the Transport Department in terms of the above quoted order dated 26.11.2008, after the initial requisition placed for a dvertising three vacancies, number of vacancies increased to 7(seven), as a resu lt of promotion of 4 (four) MVIs to the post of District Transport Officer on 26 .12.2002. Accordingly, a request was made to APSC, vide letter dated 4.11.2003 t o make recommendation for seven posts. As regards the appointment beyond these 7 (seven) posts, the affidavit reflects that the recommendation made by the APSC w as not in conformity with the prevalent practice under which the requirement is to send names of candidates double the number of vacancies. According to the add itional affidavit, the APSC ought to have recommended 14 names against 7(seven) vacancies. In fact, communication was also made with the APSC, as to how it coul d recommend more than 14 names but there was no reply.

27. The affidavit has further revealed that subsequently 3(three) more vacan cies occurred due to death and promotion of the earlier incumbents on 27.11.2005 , 1.2.2006 and 25.9.2006. Further 3(three) more vacancies were also filled up in the newly created Districts of Chirang, Baksa and Udalguri under the BTC area.

28. The select list having been published on 21.5.2004, by operation of Rule 9(d), it would have remained valid for 12 calender months i.e. upto 20.5.2005. The appointments have been made as follows :- 1) 2) 3) 4) 5) 6) Total Notification dt. 3.1.2005 Notification dt. 8.2.2006 Notification dt. 18.2.2006 Notification dt. 26.2.2007 Notification dt. 23.4.2007 Notification dt. 25.3.2008 : 15 - 1 - 5 - 2 - 1 - 1 - 5

29. In the aforesaid process, the candidates selected at Sl. No. 1, 2, 4, 5, 6, 7, 8, 9, 10,11, 13, 14, 15, 16 and 17 have been appointed. Out of which, the last five candidates are petitioners in WP(C) 4589/2008 who could not have been appointed in view of operation of the interim orders passed in the other two wri t petitions about which a mention has been made above. From the above, what is seen is that it became a matter of convenience f 30. or the official respondents to make appointment from the select list unmindful o f the fact that advertisement was only for three vacancies. It is the settled po sition of law that appointments can be made only against the advertised vacancie s and not against vacancies falling thereafter. This is to ensure that in any p ublic employment, equal opportunities are provided to all eligible candidates an d that the mandates of Article 14 & 16 of the Constitution of India are followed .

31. While there could be some justification for making appointments against seven vacancies in view of the fact that four more vacancies had arisen during t he year but there cannot be any justification for making appointment against vac ancies arising in subsequent years. Those vacancies could not have been anticip ated as per the requirement of Rule 9 of the aforesaid rules of 1983 and the aut hority by extending the selection list from time to time, could not have made a mockery of the said position of law by resorting to illegal appointments as per their whims and caprices.

32. Both Mr. A.M. Mazumdar and Mr. M.K. Choudhury, learned senior counsels r epresenting such appointees tried to justify the action on the part of the offi cial respondents towards appointment of the private respondents by making submis sions that such appointments could be resorted to as a policy decision and when there was necessity to fill up the vacancies that had arisen in due course. I am afraid such an argument, by no stretch of imagination, can be accepted. It is n ot a case of advertising large number of vacancies. Only three vacancies were ad vertised and it may be so that considering the limited number of vacancies, many eligible candidates, might not have applied. Thus, their right under Article 14 and 16 of the Constitution of India has been infringed. Similarly, by taking re course to further appointments on the basis of the select list prepared for 3/7 vacancies, other eligible candidates waiting consideration, for appointment, hav e been deprived of the said right which the writ court cannot approve. The right to be considered demands that candidates who have acquired eligibility for recr uitment to the post in the mean time, should also be given opportunities to part icipate in the selection process. As noticed above, the life of the panel was for one year only. In Surind 33. er Singh Vs. State of Punjab reported in (1997) 8 SCC 488, the apex court notici ng similar provisions of validity of the panel for one year, observed that the s ame could be extended only by the State and that too, if the statutory rule perm it it to do so. In the instant case, the State is not authorised to extend the v alidity of the panel as there is no statutory provision to do so. Even if the St ate is authorised to do so, they could not have extended the validity of the mer it list only to accommodate the candidates against future vacancies, which exerc ise was anti-thesis to transparency and fair play in the matter of public employ ment. Once the advertised vacancies had been filled up, the select list got exha usted and expired. (cid:29) The first writ petition being WP(C) 4589/2008 is dismissed. Depending upon the decision in respect of (ii), steps for cancellation o

19. Following the above discussion, learned Single Judge summed up his or der as under : (cid:28)i) ii) The matter shall now go back to the Govt. of Assam in the Transport Depa rtment to take a decision as to whether only 3 (three) or at best 7(seven) appoi ntments could have been made pursuant to the advertisement dated 23.7.2002. iii) f appointments beyond the said posts should be taken immediately. After such cancellation of appointments, the vacancies which will be ava iv) ilable alongwith other vacancies, if any, shall be filled up by following the re cruitment rules. v) In view of the answer to the second and third writ petition i.e. WP(C) 6 186/2007 and WP(C) 6025/2007, fresh exercise shall be carried out to find out as to who are candidates in the merit list who will come within the zone of consid eration for appointment against the vacancies stipulated in (ii). While doing so , reservation as per rule shall also be kept in mind. The Chief Secretary of the State shall fix the responsibility of the off vi) icers involved in making the illegal appointments beyond the advertised /permiss ible posts. (cid:29)

20. We are in agreement with the view expressed by learned Single Judge.

21. The Hon’ble Supreme Court in the case of Virender Singh Hooda and Or s vs. State of Haryana and Anr reported in (2004) 12 SCC 588 held that if the select list has to be kept subsisting for the purpose of filling up other vacanc ies also, that would naturally amount to deprivation of rights of other candidat es who would have become eligible subsequent to the advertisement and selectio n process.

22. It is settled law that once the advertised posts are filled up, the merit list gets exhausted and subsequent vacancies will have to be filled up by fresh recruitment process in accordance with law. In the present case, the Trans port Department had made appointments far beyond the advertised posts, even afte r taking into consideration the subsequent 4 vacancies, which cannot be justifie d.

23. Learned counsel for the appellants has placed reliance on a judgment of the Hon’ble Supreme Court in the case of Union of India and anr-vs- Pradip Ku mar Kedia and Ors reported in (2012) 1 SCC 432 to contend that authorities can g o for appointment from the existing select list where there is immediate need fo r filling up vacancies. We are afraid we cannot accept the submission advanced. Firstly, without much elaboration, it can be said that the facts of Pradip Kumar (supra) are clearly distinguishable from the facts of the present case. Moreover , in Pradip Kumar, the advertisement itself stated that the number of vacancies indicated was only approximate and was liable to increase or decrease. The d ecision in Pradip Kumar can be of no help to the appellants as in that case, the direction of the High Court to appoint the 3 wait listed candidates as Members of the Income Tax Appellate Tribunal beyond the approved 16 selected candidates was set aside by the Apex Court.

24. In the light of the above , we do not find any infirmity in the decisi on of the learned Single Judge,12 which is hereby affirmed.

25. Consequently all the writ appeals are dismissed leaving the parties to bear their own costs. The interim orders passed earlier shall stand vacated.