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2001 DIGILAW 312 (GAU)

Saljong K. Marak v. State of Meghalaya

2001-11-20

N.SURJAMANI SINGH

body2001
N.S. SINGH, J. — In this writ petition, 3 (three) petitioners namely, (1) Shri SaljongK. Marak, (2) Shri Senforth K. Momin and (3) Shri Coleman K. Marak sought for an appropriate direction to the respondents and, for quashing the impugned appointment orders dated 21.6.2000 and 14.12.2000 as in Annexure 4 & 5 respectively to the writ petition so far it relates to the apointment of the respondent Nos. 4,5 & 6 to the post of junior cadre of the Meghalaya Civil Services, hereinafter referred to as MCS, coupled with a prayer for a direction to the State respondents to appoint these peititoners in the said posts in terms of the Merit list dt 7.1.2000 and, reservation policy dated 12.1.1972 as seen in the document marked as Annexure-1 to the writ petition by contending inter alia, that the petitioners are the bona fide citizens of India by birth and they belong to Scheduled Tribe (Garo community of the State of Meghalaya) and, they have been duly selected for their appointment to the post of MCS after they had appeared in the written and viva voce tests conducted by the Meghalaya Public Service Commission in response to the related adverisement made by the authority concerned and, in terms of the merit list dated 7.1.2000, the petitoners were place at SI. Nos. 26, 27 & 29 respectively and whereas, the private respondent Nos. 4, 5 and 6 were placed at SI. Nos. 28, 30 and 46 respectively. However, those private respondents Nos. 4, 5 & 6 have already been given appointment to the post of MCS vide, appointment orders dated 21.6.2000 and 14.12.2000 as seen in the documents marked as Annexures 4 and 5 respectively to the writ petition thus, violating the reservation policy as seen in the document marked as Annexure 1 to the writ petition as well as accepted principles of law as laid down by the Apex Court and this Court. This statement is supported by Mr V.K. Jindal, learned senior counsel appearing for the petitioners. This statement is supported by Mr V.K. Jindal, learned senior counsel appearing for the petitioners. The learned senior counsel also contended that as per said memorandum as in Annexure-1, there shall be a reservation of 40% of the vacancies in favour of the Khasis and Jaintias; there shall be a reservation of 40% of the vaccaices in favour of Garos which was not followed and adopted by the State respondents while affording the appointment to these private respondents and, as such, it is a clear case of discrimination and, as such, the action of the respondents-State is violative of Article 14 and 16 of the Constitution of India. 2. The case of the petitioners is contested by the State respondents by contending inter alia, that apart from the usual reservation policy, the appointment to service shall be subject to fulfilment on conditions as the appointing authority may from time to time prescribe in the interest of public service. Mr C.P. Upadhyay, learned counsel appearing for the State- respondents supported all the contentions made in the affidavit-in-oposition of the State respondents. 3. I have heard the learned counsel appearing for the parties concerned at a length and also perused the available materials on record. After proper application of my mind in this matter, I am of the view that the action of the State respondents towards these petitioners amounts to discrimination and the same is violative of Article 14 and 16 of the Constitution of India for the following reasons : (i) The present 3 (three) petitioners and other selected candidates belonging to Garo community have got a right of reservation of 40% of the vacancies in their favour which is at par with the reservation of 40% vacancies in favour of Khasis and Jaintias. In the instant case, the action of the State respondents in not appointing these 3 petitioners under the reservation policy/quota is arbitrary and, apart from that, the private respondents who are below the petitioners in the merit list concerned have been given appointment as discussed above. The petitioner Nos. 1 & 2 are placed at SI. Nos. 26 and 27 respectively in order of merit and, as such, they would have been appointed prior to the appointment of private respondent Nos. 4, 5 and 6 who were placed at SI. Nos. 28, 30 and 46 respectively and, the petitioner No. 3 was at SI. The petitioner Nos. 1 & 2 are placed at SI. Nos. 26 and 27 respectively in order of merit and, as such, they would have been appointed prior to the appointment of private respondent Nos. 4, 5 and 6 who were placed at SI. Nos. 28, 30 and 46 respectively and, the petitioner No. 3 was at SI. No. 29 in the merit list and, as such, he should be given appointment prior to the appointment of the respondent Nos. 5 & 6 who were ranked at SI. Nos. 30 and 46 respectively. Over and above this, these 3 (three) petitioners have a right for their appointment under their reservation quota of 40 per cent. 4. It is well settled, that a selected candidate whose name finds in the select list cannot claim for appointment as of right to a post unless the relevant recruitment rules so indicates, and the State is under no legal duty to fill up all or any of the vacancies. However, it does not mean that State has the licence of acting in an arbitrary manner and the State is bound to respect the comparative merit of the candidates as reflected at the recruitment test, and no discrimination can be permitted. In this regard, a reference can be made to a decision of a Constitutional Bench of the Apex Court rendered in Shankarsan Dash, appellant-Vs-Union of India, respondent reported in (1991) 3 SCC 47 and, also other decisions reported in (1993) 1 SCC 154 , (1974) 3 SCC 220 , (1986) 4 SCC 268 and (1985) 1 SCC 122 . 5. In U.P. State Mineral Development Corporation Ltd. and another, appellants-Vs- Vijay Kumar Upadhyay and another, respondents, reportedin (1997) 9 SCC 334 , the Apex Court held that similarly placed persons are entitled to the same benefits despite practical difficulties on the part of the authority concerned in grant of benefits i.e. regularisation of services. In another case between U.P. State Road Transport Corpn. and another, appellants-Vs-Gobardhan and another, respondents, reported in (1996) 10 SCC 703 , the Apex Court held thus: ".... In another case between U.P. State Road Transport Corpn. and another, appellants-Vs-Gobardhan and another, respondents, reported in (1996) 10 SCC 703 , the Apex Court held thus: ".... Though we find force in the contention of ShriPradeepMisra that the candidates have no right to the post since they are in the wait list, since the Corporation has already appointed some of the juniors who are in the waiting list, necessarily, before following that procedure, they should have given intimation to those candidates who were placed in the waiting list; if even then they do not turn up, then it could be taken that they have waived the right of appointment. But in this case, it might be that a candidate who was in the waiting list was under the expectation mat he would get an order of appointment from the Corporation as and when the vacancy arises and may be he could not read the newspaper, though published. Under these circumstances, we think that after the cancellation of the wait list procedure, though no one has a right those who were on the wait list need to be considered in accordance with the rules in view of the fact that their juniors had got appointment and were even regularised. Therefore, the appellants are directed to consider the case of the respondent as a special case and make appointment according to the procedure." 6. In the instant case also, the state respondents/competent authority afforded appointment to juniors to the post of Junior Cadre of M.C.S. as discussed above ignoring the case of these 3 (three) petitioners as seen in the foregoing paragraphs of the judgment. Hence, I am of the view that the action of the respondents-State in not giving/affording appointment to these 3 (three) writ petitioners virtually amounts to discrimination and, apart from that, it is violative of the principles of Artilce 14 and 16 of the Constitution of India. I am also of the opinion that the State respondents had acted arbitrarily while affording appointment to junior candidates like, the private respondent Nos. 4, 5 & 6 as discussed above and, there is no bona fide reason for appointing others thus, ignoring the case of the present writ petitioners. I am also of the opinion that the State respondents had acted arbitrarily while affording appointment to junior candidates like, the private respondent Nos. 4, 5 & 6 as discussed above and, there is no bona fide reason for appointing others thus, ignoring the case of the present writ petitioners. I made this observation keeping in view of the related decisions of the Apex Court mentioned above as well as the decision of this Court reported in (2001)1 GLR 480 (J. Marak & Ors.-Vs-State ofMeghalaya &Ors.). 7. In view of the above positions, I direct the State respondents/competent authority to afford/give appointment to these 3(three) writ petitioners in the post of Junior Cadre of M.C.S. within a period of 45 days from the date of receipt of this judgment and order by issuing necessary order in the matter. 8. The petitioners may obtain a certified copy of this judgment and order and submit the same to the appropriate authority for doing the needful in the matter in terms of this judgment and order. In the result, petition is allowed but, no order as to costs.