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1999 DIGILAW 379 (GAU)

Md Ibrahim Ali v. Md Juber Rahman

1999-11-30

BRIJESH KUMAR, D.BISWAS

body1999
D. Biswas, J.— On 24.5.1996 a public notice was issued inviting applications from the candidates who have passed the Veterinary Field Assistant Training Course for appointment to some vacant posts of Veterinary Field Assistants in the Animal Husbandry and Veterinary Department. In pursuance of the said advertisement, the Selection Committee prepared a select list and submitted it to the respondent No.2 on 20.11.96. Since there was inordinate delay in making the appointment, some of the selected candidates approached this Court invoking the powers under Article 226 for issuing a writ of Mandamus calling upon the respondents to make the appointment as per select list. The learned Single Judge by a common judgment delivered on 24.6.1998 disposed of four such writ petitions refusing to issue any direction as sought. Being aggrieved, the selected candidates who had filed the writ petitions have preferred writ appeals, No. WA 176 of 1998, WA 196 of 1998, WA 238 of 1998, WA 240 of 1998 and WA 246 of 1998. Two other writ petitions bearing Nos WP (C) 1363 of 1999 and WP (C) 2494 of 1999 are awaiting disposal. Since the contentions and the reliefs claimed in all the writ petitions are the same, we proposed to dispose of the same by this common order. 2. The contention before the learned Single Judge was that the select list of 1996 prepared by the Selection Committee constituted by the appropriate authority cannot be bypassed and appointment cannot be refused by the respondent State. The subsequent advertisement issued on 6.12.97 and the letter dated 17.11.97 written by the Joint Secretary to the Govt of Assam have been sought to be quashed on the ground that there is no justification on the part of the respondent State to ignore the earlier selection and to go for a fresh selection in deprivation of the right of the appellants/petitioners. 3. The respondent State in their affidavit in-opposition advanced reasons to justify the above deprivation. According to the State, the list of 1996 was prepared during the subsistence of an embargo on appointment imposed by the State Govt and the said list was not approved by the competent authority. In addition, the State also pleaded that the fresh advertisement was issued as the trained candidates of subsequent batches should also be given a chance to compete for the available posts. 4. In addition, the State also pleaded that the fresh advertisement was issued as the trained candidates of subsequent batches should also be given a chance to compete for the available posts. 4. The learned Single Judge dismissed the writ petitions on the ground that selection was held during the ban period on new appointment and that the select £ list was not approved and published. The learned Single Judge also held that the scrutiny of the testimonials was not made as per law and existing procedure, as it was done by only one officer. The learned Single Judge also held that the writ petitioners did not have any legal right to enforce as empanelment of their names in the select list do not confer upon them the right to get appointment. 5. We have heard the learned counsel for both the parties and also Shri HNSarma, learned senior counsel who intervened in the matter on behalf of a selected candidate. 6. During the course of argument, the learned counsel made it clear that in 1996 there was no rule governing the recruitment of Veterinary Field Assistants. The selection was made from time to time under Executive orders. The contention a that there was an advertisement and the committee, constituted to finalise the select list had in fact prepared a list and submitted it to respondent No. 2 are not in controversy. This is also evident from the letter dated 31.10.97 (Annexure VII filed in Civil Rule No. 5749 of 1997). It appears from para 2 of the said letter that the Chairman of the Selection Committee submitted a report after conclusion of selection process on 20.11.96 for appointment and posting of 139 nos of trained Veterinary Field Assistants. The Director, accordingly, sought approval of the State Govt for filling up 96 nos of vacant posts vide his letter dated 4.1.97. It further appears from the said letter that the Secretary to the Govt of Assam in the Veterinary Department requested the Director to keep in abeyance the proposed appointment till the ban is withdrawn. In the said letter we find that the Director vide his letter dated 20.6.97 requested the Govt to accord approval to fill up 100 posts of Veterinary Field Assistants. In reply, the Director was advised to make a thorough assessment of the required numbers of Field Assistants. In the said letter we find that the Director vide his letter dated 20.6.97 requested the Govt to accord approval to fill up 100 posts of Veterinary Field Assistants. In reply, the Director was advised to make a thorough assessment of the required numbers of Field Assistants. After assessment, the Director again wrote back to the Govt indicating that 124 nos of Field Assistants could be appointed. In reply to this letter dated 31.10.97, the Joint Secretary vide his letter dated 17.11.97 conveyed the approval of the Governor of Assam, for filling up the posts of Veterinary Field Assistants by direct recruitment through advertisement. This letter dated 17.11.97 (Annexure VIII) is also in challenge. 7. The letters written by the Director to the State Govt and referred to in the letter dated 31.10.97 clearly indicate that in 1996 the selection process was completed and a report was submitted by the Chairman for appointment of the selected candidates. There being no rule in force at the relevant time requiring e that such list has to be approved by the Govt, we find no force in the argument of the learned State counsel that the list was not approved by the competent authority and, therefore, it cannot be treated as valid list. 8. The argument that the list was prepared during the ban period also appears to have no significance in view of the fact that it was only the appointment on which the State Govt imposed the embargo and not on the selection process. Any selection made during the period when the ban was in force cannot be invalidated on this ground. Rather from the clarification given by the State Govt it would appear that the ban was not in respect of Grade III and Grade IV posts. It is an admitted fact that the Veterinary Field Assistants pertain to Grade III cadre of the State Govt. As such, the said ban cannot be treated as an acceptable ground to invalidate and otherwise valid selection. 9. The other ground for rejection of the claim of the petitioners that the testimonials of the candidates were scrutinized by one officer is of no significance. It is the Selection Committee which made the final selection and they might have taken aid of any officer for scrutiny of testimonials. 9. The other ground for rejection of the claim of the petitioners that the testimonials of the candidates were scrutinized by one officer is of no significance. It is the Selection Committee which made the final selection and they might have taken aid of any officer for scrutiny of testimonials. The selection was made evidently by the Selection Committee and there is nothing on record to show that any officer other than duly nominated members of the Committee had played decisive role in the selection process. The Directors in succession requested the Govt to allow them to go ahead with the appointment. The letter dated 31.10.9 no where indicate that the selection process was tainted in any matter for taking the assistance of an officer by the Selection Committee for scrutiny of testimonials. 10. The last point argued by the learned State counsel that empanelment of names do not confer any right on the selected candidates to get appointment. Our attention has also been drawn to the decision of the Supreme Court in Shankarsan Dash vs. Union of India, (1991) 3 SCC 47 in order to show that the selected candidates do not acquire any indefeasible right to be appointed against the existing vacancies. The same ratio is also available in Govt of Orissa vs. Haraprasad Das & others (1998) 1 SCC 487 . There cannot be any dispute as to the position of law in this behalf. But in order to defeat the claim of the selected candidates, the Govt must come out with adequate reasons. The reasons available in this case, as discussed above, do not inspire this Court to conclude that the State Govt is justified in taking a decision to go for fresh selection. It is pertinent to mention here that failure to take action by the concerned authorities and the Govt after preparation of the select list in the selection held in 1996 is totally arbitrary and devoid of any sustainable reason. 11. The new rule governing the recruitment was brought into force with effect from 1.8.1997. We have perused the provisions incorporated therein. Even by figment of imagination we cannot say that the rule making authority contemplated to invalidate/cancel the selection made before introduction of the new rule. 11. The new rule governing the recruitment was brought into force with effect from 1.8.1997. We have perused the provisions incorporated therein. Even by figment of imagination we cannot say that the rule making authority contemplated to invalidate/cancel the selection made before introduction of the new rule. Here, we may conveniently rely upon the ratio available in S. Prakash & another vs. KM Kurian & others in AIR 1999 SC 2094 where from we find that when the process of recruitment had not been finalised and culminated into select list, the candidate did not have any right to appointment and the recruitment process could be stopped by the Govt at any time before a candidate has been appointed and as the candidate has not vested right to get the process completed except that the Govt could be required to justify its action on the touchstone of Article 14. The right of the selected candidates stand on a different footing. It cannot be taken away without adequate reasons. There being no disharmony between fundamental rights and Directive Principles and right to adequate means of livelihood being one of the principles in the governance of the State, it would be appropriate on our part to restrain the Govt from proceeding with fresh selection process in total disregard to the earlier valid selection made three years back. 12. The reasons above lead this Court to the inevitable conclusion that the appeals and the writ petitions have to be allowed and the impugned judgment dated 24.6.1998 has to be reversed. Accordingly, we allow the appeals and the writ petitions and set aside the impugned judgment. The respondent State and the concerned authorities are hereby restrained from going ahead with the selection in pursuance of the subsequent advertisement in respect of the number of 2 vacancies for which the list of 1996 was prepared and which is still existing. No order as to costs.