Research › Browse › Judgment

Gauhati High Court · body

1999 DIGILAW 283 (GAU)

Upendra Singh v. State of Assam

1999-08-19

A.K.PATNAIK

body1999
The case of the 28 writ petitioners in this writ petition is that in 1996 an advertisement was issued calling for applications for the posts of Constables in the 6th AP Battalion, Kathal, Silchar. In response to the said advertisement, the petitioners applied and they were called to appear before the Commandant, 6th AP Bn, Kathal, Silchar, for physical test/interview/medical test and for examination of their testimonials on 15.11.96, 22.11.96 and 3.3.97. Thereafter, a select list dated 3.10.97 was published by the Commandant, 6th AP Bn, Kathal, Silchar. As per the said select list dated 3.10.97, 28 writ petitioners were selected for appointment to the posts of Constable. But no appointment letters were issued to the petitioners and on enquiries being made by the petitioners, they came to learn that the authorities were contemplating to cancel the select list and to prepare another select list to accommodate some other candidates recommended by some political leaders. The apprehension came true. Although the select list e dated 3.10.97 was not cancelled, a fresh select list was published on 12.7.98 showing the names of 117 candidates other than the petitioners. Aggrieved, the petitioner have filed the present writ petition under Article 226 of the Constitution for a direction on the respondents to cancel the select list dated 12.7.98 and to appoint the petitioners as per the select list dated 3.10.97. 2. On 11.9.98, this Court while issuing Rule passed an interim order to the effect that any appointment made from the subsequent select list dated 12.7.98 shall be subject to the result of the civil rule. Subsequently on an application being filed by the respondent No.3 for modification of the said interim order dated 11.9.98, this Court passed orders on 17.2.99 in Misc Case No. 140 of 1999 to the effect that the respondents shall keep vacant 28 posts of Armed Constables till disposal of the writ petition and after keeping those posts vacant, the concerned respondents shall proceed with the appointment from the select list dated 12.7.98. Pursuant to the said interim order passed on 17.2.99, it appears that 28 posts of Armed Constables have been kept vacant and 117 candidates selected as per the impugned select list dated 12.7.98 have been appointed to the posts of Armed Constable. 3. Pursuant to the said interim order passed on 17.2.99, it appears that 28 posts of Armed Constables have been kept vacant and 117 candidates selected as per the impugned select list dated 12.7.98 have been appointed to the posts of Armed Constable. 3. An affidavit-in-opposition has been filed on behalf of the respondent No. 2 stating, inter alia, that due to inadvertence the Commandant, 6th Assam Police Bn, Kathal, Silchar, issued an advertisement being oblivious of the order of Director General of Police, Assam, stopping recruitment until further orders. A copy of the said order of the Director General of Police, Assam, dated 283.95 has been annexed to the affidavit-in-opposition as Annexure 1. It has further been stated in the said affidavit-in-opposition that the said Commandant, 6th Assam Police Bn, Kathal, Silchar, without any authority undertook the test and interview as well as examination of the testimonials on his own. In the said affidavit-in-opposition, the allegation that the select list dated 12.7.98 was prepared for political consideration to show favour to some persons has been denied. Instead it has been stated that the select list dated 12.7.98 has been prepared as per directive and after due observance of all formalities as required by law and that the select list was duly approved by the Director General of Police (Admn), Assam. Finally, a plea has been taken in the said affidavit-in-opposition that the petitioners have no legal right to demand appointment on the basis of the selection list prepared on 3.10.97. 4. Mr. RP Sarma, learned counsel for the petitioners, submitted that under the provisions of Rule 20 of Part HI of Assam Police Manual, the Superintendents of Police are empowered to make appointment of all the Constables. According to Mr. Sarma, since the Commandant, 6th Assam Police Bn, Kathal, Silchar, was equivalent to the rank of Superintendent of Police, he was empowered to make appointment of Constables under the said Rule 20, Part III of the Assam Police Manual. He also referred to the provisions of Rule 66 and Schedule to Para XII of Assam Police Manual, Part III, to show that the Commandants of Battalion are empowered to make appointment of Armed Constables. He also referred to the provisions of Rule 66 and Schedule to Para XII of Assam Police Manual, Part III, to show that the Commandants of Battalion are empowered to make appointment of Armed Constables. Therefore, the Commandant, 6th Assam Police Bn Kathal, Silchar had the authority to undertake test, interview and examination of testimonial and select candidates for appointment to the past of Armed Constables and that the contention in the affidavit-in-opposition that the Commandant, 6th Assam Police Bn, Kathal, Silchar, had no such authority is misconceived. Mr. Sarma further submitted that since the petitioners were duly selected by the Commandant who was the authority to make appointment, the respondents cannot deny appointment to the petitioners on the ground that the higher authority did not approve the action of the Commandant in selecting candidates for appointment. According to Mr. Sarma, the Deputy Inspector General of Police, Silchar Region, Silchar and the Superintendent of Police, Cachar, Silchar, who participated in the selection held on 12.7.98, had no authority whatsoever to make selection and the impugned selection of 117 candidates held on 12.7.98 is vitiated. He further contended that 117 candidates selected as per the impugned select list dated 12.7.98 were favourites of different political leaders and that the said impugned select list dated 12.7.98 is liable to be quashed on this ground alone. 5. Mr. BC Das, learned counsel for the respondents, on the other hand, submitted that in the affidavit-in-opposition filed on behalf of the respondent No. 2, the allegation that the candidates included in the select list dated 12.7.98 were all favourites of political leaders has been denied. He further contended that since there was a ban order imposed by the Director General of Police, Assam, on 28.3.95 against all recruitments and as per the said ban order all vacancies were to be frozen with immediate effect, the Commandant, 6th Assam Poh'ce Bn, Kathal, Silchar could not have made selection of candidates for appointment to the post of Armed Constables on 3.10.97 and on this ground the petitioners had not been appointed to the post of Armed Constables as selected by the said Commandant. 6. 6. On a perusal of the order dated 28.3.95 of the Director General of Police, Assam, a copy of which has been annexed to the affidavit-in-oppositioh as Annexure-1, it appears that the selection as such had not been banned by the said order dated 28.3.95, but what had been banned was recruitment to various vacancies. Mr. Das, learned counsel for the respondents, however, submitted that since as per the said ban order dated 28.3.95, vacancies were frozen and recruitment was banned, the selection could not have been conducted by the Commandant. Mr. Das may be right that normally when a ban order is imposed against recruitment, vacancies are to be frozen and the selection for such vacancies should not be conducted by the authority concerned. But in the instant case, it appears that advertisement was issued inviting applications from the candidates and pursuant to such advertisement various candidates including 28 petitioner applied for-the posts of Armed Constable and a selection was held by taking interview, medical test, etc and only thereafter, 28 petitioners have been selected for the posts of Armed Constable and included in the select list dated 3.10.97. This is, therefore, not a case where no advertisement was issued calling for applications for the posts or any irregularity as such was committed in the selection for the posts advertised. This is a case were pursuant to an advertisement various candidates participated in open competition for selection to the posts of Armed Constable and the petitioners were selected by the Commandant, 6th Assam Police Bn, Kathal Silchar. It is also not disputed by Mr. Das, learned counsel for the respondents, that the Commandant was the appointing authority under Assam Police Manual, Part III, for the posts of Armed Constable. The selection of the petitioners by the Commandant, therefore, cannot be held to be illegal merely because there was a ban order imposed by the Director General of Police, Assam, not to make any recruitment to any vacancy with effect from 28.3.95. 7. It further appears that the select list dated 3.10.97 by which the 28 petitioners selected for appointment to the posts of Armed Constable has not been cancelled by any authority. However, another select list of various candidates has been prepared on 12.7.98 by the Deputy Director General of Police, (Silchar Region) Silchar, the Superintendent of Police, Cachar, Silchar and the Commandant, 6th Assam Police Bn, Kathal, Silchar. However, another select list of various candidates has been prepared on 12.7.98 by the Deputy Director General of Police, (Silchar Region) Silchar, the Superintendent of Police, Cachar, Silchar and the Commandant, 6th Assam Police Bn, Kathal, Silchar. Hence, the Commandant, 6th Assam Police Bn, KathaF, Silchar, is one of the parties to the selection process, that has culminated in the impugned select list dated 12.7.98 and the impugned select list dated 12.7.98 cannot be held to be illegal merely because the Deputy Director General of Police, (SR) Silchar and the Superintendent of Police, Cachar. Silchar also participated in the selection process along with the Commandant, 6th Assam Police Bn, Kathal, Silchar. Further the allegation in the writ petition, that the said select list of 117 candidates was prepared with a view to accommodate favourites of political leaders, has been expressly denied in the affidavit-in-opposition. It is, therefore, difficult for this Court to hold that the impugned select List dated 12.7.98 was vitiated on account of influence of political leaders. 8. But the fact remains that before the impugned select list dated 12.7.98 of 0 117 candidates was prepared, the select list dated 3.10.97 in which 28 writ petitioners were selected for the posts of Armed Constable had been prepared. It is true as has been contended by the respondents that the petitioners can not claim a legal right to be appointed on the basis of selection in the select list dated 3.10.97 and that a Mandamus normally cannot be issued to the authorities to appoint candidates merely because they were selected for appointment to certain posts. But it is also in series of cases by the Supreme Court that if selection made by the authorities is sought to be departed, the authorities must give good reason for such departure from the same and that they cannot depart from the selection in an arbitrary manner. In the present case it is not as if the authorities did not want to fill up any post of Constable. This is a case where there were large number of vacancies in the posts of Armed Constable but the authority has chosen not to fill up posts out of the select list dated 3.10.97 prepared by the Commandant, 6th Assam Police Bn, Kathal, Silchar, but to fill up the said posts out of subsequent select list dated 12.7.98. This is a case where there were large number of vacancies in the posts of Armed Constable but the authority has chosen not to fill up posts out of the select list dated 3.10.97 prepared by the Commandant, 6th Assam Police Bn, Kathal, Silchar, but to fill up the said posts out of subsequent select list dated 12.7.98. The only reason given in the affldavit-in-opposition of the respondent No. 2 for not filling up the vacancies by the candidates of select list dated 3.10.97 is that there was a ban order dated 28.3.95 d issued by the Director General of Police, Assam. As has been held above, if the selection has been fair and proper and pursuant to an open advertisement and competition, the candidates selected by such fair and open competition cannot be denied appointment only on the ground that there was a ban order in force at the time of selection. Soon after the ban order was lifted the authorities should have first made appointment from amongst the candidates placed in the earlier select list dated 3.10.97 and should have thereafter proceeded to appoint candidates placed in the subsequent select list dated 12.7.98 but the authorities have acted arbitrarily in not appointing the petitioners selected as per earlier select list dated 3.10.97 to the posts of Armed Constable. 9. Since 28 vacancies in the posts of Armed Constable have been kept vacant by interim order passed by this Court as indicated above, while refusing to interfere with the impugned select list dated 12.7.98,1 direct that the petitioners who have been duly selected by the select list dated 3.10.97 will be appointed as Armed Constables within a period of 2 months from the date of receipt of a certified copy of this judgment by the Commandant, 6th Assam Police Bn, Kathal, Silchar. But I make it clear that such appointment will be prospective nature and the petitioners will not be entitled to any back wages for the period prior to their appointment.