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Gauhati High Court · body

2001 DIGILAW 179 (GAU)

Miju Kena v. State of Arunachal Pradesh and Ors.

2001-06-26

AFTAB H.SAIKIA

body2001
Heard Mr. C. Baruah, learned senior counsel assisted by Mr. L. Sera, learned counsel appearing on behalf of the petitioner and also heard Mr. PK Barman, learned Govt Counsel AP. 2. The short point involved in this writ petition relates to non-publication of result of an interview by way of select list by the Department of Economics and Statistics on the plea that the relevant existing rules for recruitment to the post in question is required to be amended and after such amendment only, the matter of selection would be referred to the Arunachal Pradesh Public Service Commission (for short the Commission). 3. The grievance of the writ petitioner is that in pursuance of an advertisement dated 16.11.99 issued by the Secretary (Economics and Statistics), Govt of Arunachal Pradesh inviting applications for filling up of one post of Reference Officer (Group B non-gazetted) the petitioner having possessed requisite qualification and satisfied all the requirement mentioned in the advertisement, along with others, applied for the post. Thereafter, the petitioner along with one other called for interview by the call letter dated 7.6.2000 issued by the Directorate of Economics and Statistics, Govt of Arunachal Pradesh. Accordingly, she appeared in the interview along with another candidate on 27.2.2000. It is stated that the petitioner was the sole local tribal candidate. Having performed satisfactorily in the interview, the petitioner has been waiting for the result/select list to be published. But the authority did not take any steps for such publication of the result of the said interview. 4. Since no select list has been published till date, the petitioner has approached this Court for a Mandamus to issue direction to the authority to publish the result of the interview for the post of Reference Officer held on 27.6.2000. 5. Be it noted that at the time of issuance of notice, this Court by order dated 1.12.2000 passed an interim order to the extent that fresh advertisement inviting the application for the post of Reference Officer (Grade B non-gazetted) Department of Economics and Statistics, Govt of Arunachal Prauesh shall not be issued. 6. The State-respondents have contested the writ petition by filing the return. 6. The State-respondents have contested the writ petition by filing the return. In the return at paragraph 4 the Govt has taken the stand that the Govt's action in issuing the advertisement through the Department itself was very much erroneous in view of the Govt existing notification dated 25.6.97 which requires that Group B posts under Arunachal Pradesh Govt which have an element of direct recruitment come only under the purview of the Commission and accordingly, it was realised that Govt's action in issuing advertisement departmentally without referring the matter to Commission was erroneous. For this purpose Govt decides at the first instance to amend the existing Recruitment Rules of 1978 and thereafter shall take steps for making the recruitment through Commission in the light of Govt circular dated 25.6.97. 7. During the course of hearing the learned Govt Counsel has produced before this Court a communication dated 1.12.2000 written by Secretary to the Commission to the Secretary (Economics and Statistics), Govt of Arunachal Pradesh, Itanagar in which the Department was requested to amend the Recruitment Rules suitably and then submit fresh requisition through concerned Secretary for taking further necessary action from the Commission on the ground that the post of Reference Officer being a Group B though non-gazetted, comes under the purview of the Commission as it has the element of direct recruitment and the existing Recruitment Rules of 1978 is too old to be implemented. 8. Mr. Baruah, learned senior counsel appearing on behalf of the petitioner submits that the selection of Reference Group B non-gazetted is governed by the Recruitment Rules namely, Recruitment Rules for the post of Reference Officer (for Library) in the Department of Economics and Statistics), Govt of AP. The said Rule under column 13 provides as 'does not arise' under the Head "the circumstance in which the UPSC is to be consulted in making recruitment" and as such, so long the Rule is not amended, the same shall prevail for the recruitment to the post in question. It is stated that though the Govt in their affidavit has taken stand that rule is going to be amended but stark reality is that the State-respondents are yet to take any decision for such proposed amendment which has, caused great prejudice to the petitioner. It is stated that though the Govt in their affidavit has taken stand that rule is going to be amended but stark reality is that the State-respondents are yet to take any decision for such proposed amendment which has, caused great prejudice to the petitioner. The entire action on the part of the State respondents is aimed it to deprive the petitioner of her legitimate claim for consideration for selection. 9. According to Mr. Baruah, the learned senior counsel, the petitioner who is eligible and otherwise qualified in accordance with the Recruitment Rules acquires a vested right for selection in accordance VIth the same rules as existing at the time of advertisement. Therefore, the petitioner cannot be deprived of her such right on the plea that existing rules is going to be amended in near future. 10. In support of his argument Mr. Banian,' learned senior counsel has taken me to a decision of Dr. PK Jaiswal vs. Ms. Devi Mukherjee & others reported in (1992) 2 SCC 148 . In that case, a question came up before the Apex Court whether the Commission could go ahead of the selection process when the Govt made prior intimation to the Commission not to proceed with the selection because Govt was examining to fill up post by way of promotion by amending the rules retrospectively. In order to fill up a vacancy of Assistant Director General by way of direct recruit as per existing Recruitment Rules, the Department of Ministry of Health and Family Welfare, Govt of India sent a requisition to the UPSC to advertise the post but before the Commission could advertise the post, the Govt informed the Commission not to proceed with the process of selection because the Govt examining to fill up the post by way of promotion for which the Govt could amend the rules retrospectively. In spite of the receipt of the Govt's communication the Commission went ahead of the selection process. The Apex Court held such an exercise on the part of the Commission would be an exercise of futility and somewhat hasty and unjustified. In spite of the receipt of the Govt's communication the Commission went ahead of the selection process. The Apex Court held such an exercise on the part of the Commission would be an exercise of futility and somewhat hasty and unjustified. In arriving at a decision, the Apex Court relying on two decisions of its Court in NT Devin Katti vs. Karnataka Public Service Commission reported in (1990) 3 SCC 157 and Jatindra Kumar vs. State of Punjab reported in (1985) 1 SCC 122 , held that once Commission issues an advertisement at the behest of the Govt and pursuant thereto calls a candidate for interview, the candidate has a right to be considered for selection but does not acquire any vested right to be selected or to be appointed to the post in question but the right to selection crystalises only after the candidate is called for interview pursuant to the advertisement. 11. In the instant case, advertisement for the post in question was issued by the Department in terms of existing rules and pursuant to such advertisement interview was taken wherein the petitioner along with another took the interview. While the petitioner has been waiting for result of the said interview to be published through the select list, the Govt has come up with the plea that they are desiring to amend the Recruitment Rules by which the matter for recruitment for the post in question shall be referred to the Commission being the competent authority to make selection following the procedure. 12. I have found enough force in the submission made on behalf of the petitioner. Applying the ratio so laid down in Jaiswal's case (supra), I fully agree to hold that the same is applicable in the present case in hand. I am of the view that since the Department on being authorised by the existing rules, issued the advertisement and the interview was also held pursuant to the said advertisement, the authority is bound to publish the result of the said interview and the petitioner including other candidates have the right to be considered for selection in terms of the Recruitment Rules which is still in vogue. 13. 13. Considering the facts and circumstances of the case and also upon hearing the learned counsel for the parties and on perusal of the materials available on record, I am of the considered opinion that the writ petition deserves to be accepted. Accordingly, the same is allowed. 14. Consequently, it is directed that the State-respondents shall take imme­diate steps to publish the result of the interview held on 27.6.2000 for the post in question within a period of two months from the date of receipt of this order. 15. The petitioner shall furnish a certified copy of this order along with the copy of the writ petition with the Annexures appended thereto to the competent authority who shall do the needful as per the direction indicated above. In the result, the writ petition is allowed. However, I pass no order as to costs.