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Gauhati High Court · body

2001 DIGILAW 234 (GAU)

Sanjib Mazumdar v. State of Assam and Ors.

2001-08-23

D.BISWAS

body2001
This petition is for issue of a writ of Mandamus for appointment of the writ petitioner as Motor Vehicles Inspector in the Transport Department and for quashing the appointment order of respondent Nos. 2 to 7 made under Regulation 3(f) of the Assam Public Service Commission (Limitation of Functions) Regulation, 1951 issued on 1.10.1993. 2. I have heard Mr. AK Bhattacharyya, learned senior counsel for the petitioner and also Mr. TC Chutia, Govt. Advocate, Assam and Mr. AK Phookan, learned senior counsel for the respondents. 3. The petitioner obtained Diploma in 1988 in Mechanical Engineering from Silchar Polytechnic. 1991, me Assam Public Service Commission, hereinafter referred to as me Commission, issued an advertisement on 7.3.1991 for selection for appointment to the post of Motor Vehicle Inspectors. The petitioner appeared in the written and viva voce test and his name appeared at Serial No.5 of the Wait List candidates in the Select List published on 17.11,1992. The Select List (Annexure 2) shows that 10 persons were recommended in order of preference for appointment and 9 more candidates were recommended in order of preference against future vacancies. Writ petitioner's name is at serial No.5 out of the 9 candidates recommended for appointment against future vacancies. Petitioner's case is that out of the Select List, first four candidates were appointed immediately. Four selected candidates filed Civil Rule No. 2491 of 1993 and Civil Rule No. 2616 of 1993 and as per direction given in the said writ petitions, they were also appointed. During the pendency of the Civil Rule Nos 2491,2616 of 1993, the respondent No.l appointed respondent Nos 8 to 13 by an order passed on 1.10.1993 under Regulation 3 (f) of the Regulation of 1951 ignoring the case of the selected candidates. In Civil Rule Nos 2491 and 2616 of 1993 this Court directed that no extension be given to the persons appointed under Regulation 3 (f). Civil Rule No. 2491 of 1993 was disposed of on 18.9.1994 with a direction that all vacant posts of MVIs should be filled up on the basis of Select List. Wait List candidate No.2 Shri Pawan Thakuria filed Civil Rule No. 2617 of 1994 and in that petition this Court vide order dated 11.7.1994 extended the validity of the Select List. Wait List candidate No.2 Shri Pawan Thakuria filed Civil Rule No. 2617 of 1994 and in that petition this Court vide order dated 11.7.1994 extended the validity of the Select List. According to the writ petitioner, 12 posts were vacant at the time of institution of the writ petition and, therefore, the petitioner has a right for absorption/ appointment against any of those posts. 4. The respondent-State in their affidavit-in-opposition submitted as follows: "4. That with regard to the statements made in paragraph 4 to the writ petition the deponent says that it is not true that only 4 persons out of the persons recommended by the APSC vide their letter dated 17.11.1992 have been appointed. In fact all eleven candidates (except Shri U. Baniah) have been appointed from this list. It is well settled law that a select list is remained valid for one year only. The petitioner himself admitted in this paragraph that validity of the select list has already been expired by elapsed of time. The petitioner otherwise also has no right for claiming appointment after validity of the list is expired. 6. That with regard to the statements made in paragraph 9 of the writ petition, the deponent says that no post is vacant as contended. The position regarding the posts in the department was 48 and 36 posts were filled up by the persons, recommended by the APSC and 12 posts were filled up by Regulation 3 (f). 7. That with regard to the statements made in paragraph 10 to the writ petition, the deponent has no knowledge about the extension of validity of list. But it is settled law as observed by the Supreme Court that High Court cannot extend the validity of a select list." 5. It would appear from the counter submitted by the State that the petitioner was recommended by the Commission in the additional list and he has no right for appointment against any future vacancies as because it is well settled principles of law that a Select List will be acted upon only for the number of vacancies notified. It would appear from the counter submitted by the State that the petitioner was recommended by the Commission in the additional list and he has no right for appointment against any future vacancies as because it is well settled principles of law that a Select List will be acted upon only for the number of vacancies notified. The advertisement was made for 10 posts and all the first 10 candidates recommended including the No.l candidate from the Wait List having been appointed, no further appointment can be directed from the additional list, particularly because other vacancies have already been notified to the Commission and the said vacancies would have to be filled up by candidates recommended by the Commission. The vacancies that were available after appointment have been filled up temporarily under Regulation 3 (f) subject to regular appointment as per recommendation of the Commission. The petitioner not being amongst the first 10 candidates recommended by the Commission in order of merit, obviously cannot have any claim for appointment. 6. Shri Bhattacharyya, learned senior counsel argued that the Wait List candidates also have a right for consideration for appointment and it was not proper on the part of the respondent-State to appoint any person under Regulation 3 (f) to the exclusion of the Wait List candidates. The argument of Shri Bhattacharyya is undoubtedly not bereft of any logic. Under no circumstances the authorities should appoint any outsider under Regulation 3 (f) when a Select List is either in a force, or not in force but of recent origin, and selected candidates are there awaiting appointment. But this is a question of propriety and not of legality. The respondent-State appointed the private respondents under Regulation 3 (f) after filling up the 10 posts advertised. Although one person i.e. the candidate No. 1 from the Wait List was appointed beyond the notified vacancy, yet this will not vest any actionable right with the writ petitioner. Moreover, it is not his case that a candidate from the Waiting List below him in the order of merit was appointed. 7. In the State of UP vs. Ram Swarup Saroj, AIR 2000 SC 1097 , the Supreme Court did not interfere with the relief granted by the High Court to the Waiting List candidates since the petitioner approached the Court before expiry of one year from the date of the list. 7. In the State of UP vs. Ram Swarup Saroj, AIR 2000 SC 1097 , the Supreme Court did not interfere with the relief granted by the High Court to the Waiting List candidates since the petitioner approached the Court before expiry of one year from the date of the list. But in the instant case, the petitioner approached the Court in the year 1995 i.e. after two years. By that time the respondent-State already notified the vacancies to the Commission for initiating selection process. In the given circumstances, it would be impermissible to extend any relief to the writ petitioner. 8. In the result, the writ petition is dismissed. The 3 (f) appointees appointed vide order dated 1.10.1993, if still in service, shall be replaced by regularly selected candidates by the Commission. No order as to costs.