The High Court
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THE HIGH COURT OF ORISSA AT CUTTACK W.A. No.13 of 2023 (In the matter of an Appeal under Clause-10 of the Letters Patent Appeal read with Article 4 of the Orissa High Court Order, 1948 read with Chapter-VIII of Rule-2 of the Orissa High Court Rules, 1948) ----------- 1) State of Odisha 2) Director, T.E. and S.C.E.R.T., Odisha, Bhubaneswar ……. Appellants -Versus- Arati Mallik ……. Respondent For the Appellants : Mr. R. N. Mishra, Additional Government Advocate For the Respondent : Mr. Nihal Rath, Advocate CORAM: THE HONOURABLE THE CHIEF JUSTICE THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA _________________________________________________________ Date of Hearing: 04.04.2024 : Date of Judgment : 22.04.2024 S.S. Mishra, J. 1. The present intra court appeal is directed against the judgment dated 26.04.2022 passed by the learned Single Judge in WPC(OA) No.684 of 2019. Page 1 of 14 2. The appellants-State being aggrieved by the judgment of the learned Single Judge has preferred the present appeal. The learned Single Judge by the impugned judgment has directed the appellant No.2 to issue necessary order of appointment in favour of the respondent from the date of last appointment made against the select list i.e. on 12.08.2014 by protecting the seniority of the respondent. 3. The factual matrix of the present case as emerges from the record are that on 08.05.2011, an advertisement was published by the appellant No.2 inviting application for in-service candidates to fill-up 116 posts of Teacher Educators. The selection process was carried out and a total number of 172 candidates were selected and a merit list was prepared, wherein the present respondent was found placed at serial No.151. The select list was published on 22.02.2013, however, no appointment was made till 13.05.2014 due to various litigations. Eventually, the appellant No.2 on 16.06.2014 onwards started issuing appointment letters and continued the process till 12.08.2014. Pursuant to the appointment letters issued by the appellant No.2, 96 in-service candidates joined in the post whereas 11 posts were kept vacant awaiting the outcome of the various litigations and 5 posts remained vacant due to non-availability of S.T. Page 2 of 14 Category Candidates. Hence, 112 posts in toto were filled up. There were 4 posts which remained unfilled. The dispute involved in the present case hinges upon those 4 posts which were to be filled up from the select list prepared and published on 22.02.2013. 4. The respondent being in the select list at serial No.151, legitimately expected that she would be absorbed as against the remaining 4 vacancies. Therefore, she submitted a representation on 18.05.2015 to the appellant No.1. By way of clarification, the appellant No.2 inter alia vide its letter dated 09.03.2015 recommended the case of the respondent along with other three candidates from the select list. The letter reads as under:- Directorate of Teacher Education and SCERT Odisha, Bhubaneswar No.4A.TE-66/2010-1593 Date. 09.03.2015 From The Deputy Director, (Admn) TE & SCRET, Odisha Bhubaneswar To The Additional Secretary to Government, Department of School & Mass Education, Odisha, Bhubaneswar Sub:- Selection and appointment of in-service teachers of the School Wing to the post of Teacher Educator in the DIETs. Ref:- Government letter No.XII-SME (Trg.)-54/2012 (Pt.) 9837/SME, dtd.13.05.2014. Sir, Page 3 of 14 In inviting reference to the letter and subject cited above, I am directed to forward herewith the select list of 4 (four) candidates who may be called for counseling to be appointed as in-service Teacher Educators in different DIETs of the State for kind perusal and approval of the Government. Yours faithfully, (Sd/-) Deputy Director (Admn) 5. It is understood that the respondent was one of the recommendee for the purpose of appointment as against the 4 vacant posts. Even after the aforementioned recommendation, the respondent was not appointed. Therefore, she approached the Odisha Administrative Tribunal, Bhubaneswar by filing O.A. No.656 of 2016. The learned Odisha Administrative Tribunal, Bhubaneswar vide its order dated 08.04.2016 directed the appellant No.1 to address the grievance raised by the respondent in the Original Application within a period of one month. Pursuant to such order, the appellant No.1 vide order dated 25.07.2016
Legal Reasoning
rejected the claim of the respondent on two grounds; firstly the select list dated 22.02.2013 had already lapsed after one year, secondly, fresh advertisement for filling up the vacant posts had already been made in
Legal Reasoning
the year 2015, therefore, the respondent was not entitled to her claims. Paragraph-9 of the said office order dated 25.07.2016 reads as under:- Page 4 of 14 <9. That as the candidature of the candidates were recommended after a lapse of 9 months from the date when the selection process started and when steps had already been taken to make appointment against the advertisement made in the year 2015, the proposal for calling the four candidates for counselling against the advertisement made in the year 2011 would have the appointment created process. Therefore, the candidature of these four candidates were not considered for counselling.= further complicacies in 6. The respondent, aggrieved by the aforesaid Office Order dated 25.07.2016 again approached the Tribunal by filing O.A. No.684 of 2019. The respondent in the said Original Application attacked the impugned order dated 25.07.2016 inter alia stating that the appellant No.2 issued appointment letter to the candidates from 16.06.2014 onwards which continued up to 12.08.2014. Therefore, the select list of 172 candidates ought to have been valid up to 15.06.2015. Hence, the ground of lapse of one year since was not made applicable in respect of those 96 candidates who had joined services. As regards 4 candidates, the appellant No.2 cannot take a stand that the select list has already lapsed. It is further contended that since the recommendation of the respondent’s case has already been made within 9 months from the date of selection, the ground that the life of the select list lapsed after one year cannot be pleaded against the respondent. Page 5 of 14 7. After abolition of the Odisha Administrative Tribunal, Bhubaneswar, the Original Application was transferred to this Court and WPC(OA) No.684 of 2019 was registered. The learned Single Judge dealt with the matter elaborately and passed the impugned judgment. The learned Single Judge has dealt with the contention of both the parties and after thorough analysis of the factual matrix of the case, allowed the petition of the respondent. The relevant part of the judgment of the learned Single Judge reads as under:- <8. From the above narration, it is evident that if the date of issuance of the first appointment letter is taken as the date of commencement of the validity of the select list, i.e., 16th June, 2014 the same was due to expire on 15th June, 2015 but as it appears, the select list was again kept under suspension as it were, due to the aforementioned back-and-forth correspondence between the Directorate and the Government in between 9th March, 2015 to 29th July, 2015. In the meantime, the one year period expired on 15th June, 2015. Obviously, the period between 9th March, 2015 to 29th July, 2015 cannot be attributed to any fault of the Petitioner. The Hon’ble Supreme Court in the case of Purushottam v. Chairman, M.S.E.B and others; reported in (1999) 6 SCC 49 held that the right of a person to be appointed against the post to which he has been selected cannot be taken away on the pretext that the said panel has in the meantime expired and the post has already been filled up by somebody else. The Petitioner in the instant case stands on even a better footing inasmuch as it is clearly borne out from the counter and affidavit filed by the Opposite Party No.3 that firstly, the four posts of the recruitment held in 2011 were not included in the advertisement issued in the year 2015 and, Page 6 of 14 secondly, the said posts are still lying vacant under administrative control of the Opposite Party No.2. This is, therefore, a case where despite being placed in the select list and recommended for counseling for appointment, the Petitioner was not issued with the appointment order on the ground that the select list is no longer valid after one year. As already stated, the Petitioner can hardly be blamed for being inaction of the authorities in taking appropriate action when the select list was valid. To reiterate, but for the period elapsed in continued correspondence between Opposite Party Nos.1 and 2 the Petitioner could have been given appointment before expiry of the select list. 9. As regards the stand taken by the Opposite Parties particularly, Opposite Party No.1 in the order dated 25th July, 2016 (Annexure-8) that the candidature of the candidate was recommended after a lapse of 9 months from the date when the selection process started and when steps had already been taken to make appointment against the advertisement made in the year 2015, the proposal for calling the four candidates for counseling against the advertisement made in the year 2011 would have created further complicacies the appointment process and, therefore, the candidature of these four candidates were not considered for counseling, cannot be sustained in the eye of law. When it has been clarified adequately that the advertisement issued in the year 2015 did not include these four posts against which the Petitioner would have been appointed and in fact was recommended for counseling as also the fact that all the four posts are still lying vacant, the aforesaid order passed by Opposite Party No.1 cannot be said to be based on sound, rational and conscious application of mind. In the case of Manoj Manu (supra), the Apex Court has held that the decision on the part of the Government not to fill up the required/advertised vacancies should not be arbitrary or unreasonable, but must be based on sound, rational and conscious application of mind. Obviously, Opposite party No.1 lost sight of the fact the that because of correspondence between in Page 7 of 14 Directorate and the Government, the validity of the select list had expired.= 8. The appellants herein are assailing the judgment of the learned Single Judge in the present intra-court appeal primarily on two grounds. Firstly, mere inclusion of the name of the candidates in the select list does not confer any legal right for claiming the appointment, secondly, the life of select list is only for one year and since validity of the select list has lapsed, the respondent could not be appointed. 9. We have carefully considered the facts of the present case and evaluated the same in the light of the settled principle of law. 10. Stricto Sensu, it is not a thumb Rule that the life of a select list automatically expires after lapse of one year. The same is dependent upon the attending facts and circumstances of each case. The appellants cannot be heard to submit the contention that the respondent has no indefeasible right to be appointed to the post merely on account of her name figuring in the select list particularly when the appellants themselves have recommended the case of the respondent for appointment. The proposition that a candidate whose name appearing in the select list does not get an indefeasible right for appointment is not a complete unqualified proposition, rather such proposition has been Page 8 of 14 clarified by the Hon’ble Supreme Court by holding that the State cannot act in an arbitrary manner and the decision not to fill up vacancies has to be taken bona fide for appropriate reasons. This proposition has already been settled by the Hon’ble Supreme Court in the case of Shankarsan Dash Vs. Union of India, reported in (1991) 3 SCC 47. The relevant part of the said judgment reads as under:- legitimately denied. Ordinarily 7. It is not correct to say that if a number of vacancies are notified for appointment and adequate number of candidates are found fit, the successful candidates acquire an indefeasible right to be appointed which the cannot be notification merely amounts to an invitation to qualified candidates to apply for recruitment and on their selection they do not acquire any right to the the relevant recruitment rules so post. Unless indicate, the State is under no legal duty to fill up all or any of the vacancies. However, it does not mean that the State has the licence of acting in an arbitrary manner. The decision not to fill up the vacancies has to be taken bona fide for appropriate reasons. And if the vacancies or any of them are filled up, the State is bound to respect the comparative merit of the candidates, as reflected at the recruitment test, and no discrimination can be permitted. This correct position has been consistently followed by this Court, and we do not find any discordant note in the decisions in State of Haryana v. Subash Chander Marwaha and Others, (1974) 1 SCR 165]; Miss Neelima Shangla v. State of Haryana and Others, [1986] 4 SCC 268 and Jitendra Kumar and Others v. State of Punjab and Others [1985] 1 SCR 899 . 8. In State Chander (supra) 15 vacancies of Marwaha and Others, Subordinate Judges were advertised, and out of the selection list only 7, who had secured more than 55 Haryana v. Subash of Page 9 of 14 per cent marks, were appointed, although under the relevant rules the eligibility condition required only 45 per cent marks. Since the High Court had recommended earlier, to the Punjab Government that only the candidates securing 55 per cent marks or more should be appointed as Subordinate Judges, the other candidates included in the select list were not appointed. They filed a writ petition before the High Court claiming a right of being appointed on the ground that vacancies existed and they were qualified and were found suitable. The writ application was allowed. While reversing the decision of the High Court, it was observed by this Court that it was open to the government to decide how many appointments should be made and although the High Court had appreciated the position correctly, it had <somehow persuaded itself to spell out a right in the candidates because in fact there were 15 vacancies=. It was expressly ruled that the existence of vacancies does not give a legal right to a selected candidate. Similarly, the claim of some of the candidates selected for appointment, who were petitioners in Jitendra Kumar and Others v. State of Punjab and Others, was turned down holding that it was open to the government to decide how many appointments would be made. The plea of arbitrariness was rejected in view of the facts of the case and it was held that the candidates did not acquire any right merely by applying for selection or even after selection. It is true that the claim of the petitioner in the case of Miss Neelima Shangla v. State of Haryana was allowed by this Court but, not on the ground that she had acquired any right by her selection and existence of vacancies. The fact was that the matter had been referred to the Public Service Commission which sent to the government only the names of 17 candidates belonging to the general category on the assumption that only 17 posts were to be filled up. The government accordingly made only 17 appointments and stated before the court that they were unable to the select and appoint more candidates as Commission had not recommended any other candidate. In this background it was observed that it is, of course, open to the government not to fill up all Page 10 of 14 the vacancies for a valid reason, but the selection cannot be arbitrarily restricted to a few candidates notwithstanding the number of vacancies and the availability of qualified candidates; and, there must the be a conscious application of mind by government and the High Court before the number of persons selected for appointment is restricted. The fact that it was not for the Public Service Commission to take a decision in this regard was emphasised in this judgment. None of these decisions, therefore, supports the appellant.= Therefore, lapsing of the select list after one year is not a thumb rule, rather it depends upon various aspects. From the facts of the present case undisputedly the select list was valid up to 15.06.2015, 96 candidates were appointed from the select list between 16.06.2014 to 12.08.2014 i.e during the valid period of one year. The case of the respondent was recommended on 09.03.2015 and she had given representation 18.05.2015. Therefore, before the select list was really got lapsed, the case of the respondent was recommended and during that period, 96 candidates from the select list were also appointed. Therefore, the contention of the appellants that the respondent’s claim for appointment against the 4 vacant posts could not be processed as the select list since then had already lapsed, cannot be accepted. 11. It is further contended by the learned counsel for the appellants that the respondent has not acquired any indefeasible right to be Page 11 of 14 appointed to the post merely because her name is appearing in the select list is also liable to be rejected because after the recommendation made by the appellant No.2 vide its Office Order dated 09.03.2015, definitely a right has accrued in favour of the respondent. It is the settled principle of law as pronounced by the Hon’ble Supreme Court in the case of Omkar Sinha and another Vs. Sahadat Khan and others, reported in 2022 SCC OnLine 601 that if an intra-office communication between various authorities culminates to an order, a right accrues. In the present case, the intra departmental communication has been culminated into an order dated 09.03.2015 recommending the case of the respondent for appointment, the respondent acquires a right and the said right could be enforced through the writ jurisdiction of this Court. 12. One of the glaring aspects of the matter needs to be taken into consideration while deciding this appeal. When the matter was taken up for hearing by this Court, the appellants on 13.11.2023 sought time to file an additional affidavit indicating as to whether the four left out posts were included in the subsequent advertisement of 2015 or not. The appellant No.2 on 19.01.2024, filed an affidavit inter alia stating as under:- Page 12 of 14 That another advertisement was issued in the year 2015. The <6. 4 posts which were left out, for which the candidates did not turn up were included in the 2015 advertisement. One year time had also lapsed. 2015 advertisement has already been worked out and appointments have been given. The respondent No.1 however, did not apply pursuant to 2015 advertisement= The respondent filed an objection to the said affidavit on 21.02.2024. 13. When the matter was taken up for final hearing, the learned State Counsel at the outset, submitted that the appellants are not pressing the affidavit dated 19.01.2024, because factually the contents of the affidavit are wrong. It is therefore apparently clear from the record that the 4 posts which were left out unfilled from the select list dated 22.02.2013 were not included in the subsequent advertisement of 2015 vacancies. In that view of the matter, the claim of the respondent as against the 4 vacant posts could be filled up without there being any legal impediment. Before the learned Single Judge the appellants had precisely taken this point and contended that the remaining 4 posts unfilled from the select list of 22.02.2013 has already been filled up by the subsequent recruitment of 2015, therefore, there is no vacancy available. However, this point has been conceded by the appellants in favour of the respondent. Page 13 of 14 14. Taking into consideration the aforementioned facts scenario of the present case and settled principle of law, we find no legal infirmity in the impugned judgment passed by the learned Single Judge. As such, we decline to interfere in the matter and accordingly, the W.A. is dismissed. ………………….. (S.S. Mishra) Judge Mr. Chakradhari Sharan Singh, CJ. I agree. ………………………………. (Chakradhari Sharan Singh) Chief Justice The High Court of Orissa, Cuttack. Dated the 22nd Day of April, 2024/ Swarna, Sr. Steno. Signature Not Verified Digitally Signed Signed by: SWARNAPRAVA DASH Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa Date: 22-Apr-2024 20:15:50 Page 14 of 14