Research › Search › Judgment

Gauhati High Court · body

2002 DIGILAW 452 (GAU)

Rajiv Kumar Jha v. State of Arunachal Pradesh

2002-11-11

I.A.ANSARI

body2002
I.A. ANSARI, J.— By making this application under Article 226 of the Constitution of India, the petitioner, who is presently working as Junior Engineer (Civil) in the Public Works Department, Arunachal Pradesh, has approached this court seeking issuance of appropriate writ/s to get, inter alia, quashed the impugned order No. SECC/E-DI-COORD/8/2 002/1 03 2 0-21, dated 01.02.2002 (Annexure - P/l 0 to the writ petition) issued by the respondent No. 3, whereby the respondent No. 3 has conveyed to the petitioner that the latter's appointment as Junior Engineer (Civil) is temporary and against the post meant for reserved quota and his services maybe terminated immediately after reserved candidate is selected for the post. 2. In a nut-shell, the case of the petitioner runs as follows: The petitioner, a diploma holder in Civil Engineering, while working as a Work Charged Surveyor in the Public Works Department, Government of Arunachal Pradesh, applied, through proper channel, to the respondent No. 3 for recruitment to the post of Junior Engineer (Civil) and in pursuance of the Calling letter/Admit card, dated 28.11.97 (Annexure-P/3 to the writ petition), issued in this regard, the petitioner appeared, on 19.12.97, for written examination, his roll number being 80. As per as the result of the written examination published on 02.03.98 (Annexure-P/4 to the writ petition), the petitioner succeeded in the written examination and the respondent No. 3 accordingly issued another calling letter/interview letter, dated 02.03.98 (Annexure-P/5 to the writ petition) for the purpose of viva-voce interview to be held on 21.03.98. The petitioner appeared in the said viva-voce interview and as the petitioner qualified in the said interview/viva-voce too, the respondent No. 3 issued a letter contained in No. SE/COORD/E-m/8/98/152-55, dated 03.04.98 (Annexure-P/6 to the writ petition) appointing the petitioner to the post of Junior Engineer (Civil), hereinafter referred to as "JE(C)", against the post, which had fallen vacant on account of its incumbent namely, Shri A.K. Yadav. having absconded. On receiving the said appointment letter, the petitioner started working as JE(C) in the said department. having absconded. On receiving the said appointment letter, the petitioner started working as JE(C) in the said department. However, the petitioner, all of a sudden, received a copy of the Order No. SECC/E-III/COORD/ 8/2002/10320-21,dated 01.02.2002 (Annex-ure-P/10 to the writ petition) issued by the respondent No. 3 informing the petitioner that he had been appointed as JE(C) temporarily against the post meant for "deputation/absconding/reserved vacancy" and that the petitioner's services maybe terminated immediately after reserved candidate is selected for the post of JE(C). This information conveyed to the petitioner is, according to the petitioner, wholly against the appointment letter issued to him and by making such false statement that the said post was meant for a candidate of reserved quota, the respondents were trying to deprive the petitioner of his legitimate right to continue to remain in service. The advertisement, dated 04.09.97. aforementioned was actually meant for 15 (fifteen) numbers of JE(C) and out of these 15 posts, 2(two) posts were kept reserved for Non-APST (General) Candidates. Thus, when vacancies against the general quota existed at the relevant time, the question of giving appointment to the petitioner against the reserved posts did not arise at all. 3. Though the respondents have contested this case, they have not filed any affidavit-in-opposition and hence, the statements of facts, averred in the writ petition, shall be treated as admitted facts and this writ petition deserves to be disposed of accordingly. Reference may be made, in this regard, to Naseem Bano vs. State of U.P & Ors., AIR 1993 SC 2592 . 4. I have perused the materials on record. I have heard Mr. R. Deka, learned counsel for the petitioner, and Mr. R.H. Nabam, learned Addl. Senior Govt. Advocate appearing on behalf of the State respondents. 5. It has been submitted by Mr. Deka that the petitioner's selection as JE(C) was on the basis of regular written examination and viva-voce/interview and, thus, petitioner's appointment to the post of JE(C) was a regular appointment. This apart, the relevant appointment letter/order, dated 03.04.98, points out Mr. Deka, shows that the petitioner was appointed against the post of Shri A.K. Yadav. JE(C),who had absconded. 6. Referring to the provisional seniority list of JE(C) of the department concerned (An-nexure-P/11 to the writ petition), Mr. Deka has also pointed out that the name of Mr. This apart, the relevant appointment letter/order, dated 03.04.98, points out Mr. Deka, shows that the petitioner was appointed against the post of Shri A.K. Yadav. JE(C),who had absconded. 6. Referring to the provisional seniority list of JE(C) of the department concerned (An-nexure-P/11 to the writ petition), Mr. Deka has also pointed out that the name of Mr. A.K. Yadav, who had absconded, appears at serial No. 424 and the remarks column shows that he had resigned and left. Hence, the petitioner, submits Mr. Deka, cannot be said to have been appointed against the post meant for reserved quota. 7. As far as Mr. Nabam, learned Addl. Senior Govt. Advocate, is concerned, he has submitted that the present writ petition is without merit and the same needs to be dismissed with cost. 8. Having heard both sides and upon perusal of the materials on record, what catches my eyes, most prominently, is that it is in response to the advertisement, dated 04.09.97 (Annexure-P/2 to the writ petition) aforementioned that the petitioner had applied to the respondent No. 3 seeking appointment as JE(C) in the Public Works Department, Government of Arunachal Pradesh. This advertisement clearly stated that the candidates would be required to appear in the written test as well as viva-voce. This advertisement also clearly showed that the total number of posts advertised were 15(fifteen) and out of these fifteen posts, 13 (thirteen) posts were meant for reserved quota for APST and 2 (two) posts were meant for general (Non APST) candidates. 9. There is no dispute before me that having come out with flying colours in the written test as well as the viva- voce/interview, held in pursuance of the said advertisement, the petitioner stood eventually appointed vide Office memorandum, dated 03.04.98 (Annexure P/6 to the writ petition) aforementioned, as JE(C). What, however, is in dispute is the nature of appointment of the petitioner. In this regard, petitioner's case, as pointed out above, is, that his appointment as JE(C) was against the post occupied by Shri A.K Yadav, JE(C). who had absconded, whereas the respondents insist that the petitioner was temporarily appointed against the quota meant for APST candidates and as and when APST candidate is selected for the said post, petitioners appointment can be legally terminated. 10. who had absconded, whereas the respondents insist that the petitioner was temporarily appointed against the quota meant for APST candidates and as and when APST candidate is selected for the said post, petitioners appointment can be legally terminated. 10. To set at rest the controversy that has arisen for determination by this Court, I am tempted to quote the relevant portion of the memorandum dated 03.04.98 (Annexure-P/6 to the writ petition), whereby the petitioner was appointed as JE(C) and it is on this order of appointment that the petitioner rests his entire case. The relevant portion of the appointment order reads as follows: "2. This temporary appointment is against Shri A.K. Yadav, JE(Civil) absconded. 3. His/Her service are liable to be terminated without any notice as and when Shri A.K Yadav, JE(C) absconded resumes duty. 4. This temporary appointment will not confer upon him any right to claim for declaration of his appointment in quasi permanency/permanency capacity in the grade of Junior Engineer as this offer of apptt. is against the post of a reserved candidate." 11. A realistic and dispassionate reading of the above order of appointment shows that the petitioner was appointed against the post, which used to be occupied by Shri A.K. Yadav, JE(C), who had absconded, and though the petitioners appointment was made liable to termination as and when Shri A.K. Yadav aforementioned resumed duties, the fact remains this appointment order also made it crystal clear that the offer of appointment was made against the post meant for reserved candidates. In short, since Shri Yadav was holding, a reserved post, the petitioner, having been appointed against Mr. Yadav's post, would also be treated as an appointee against the reserved post. 12. It logically follows from the contents of the above appointment order that the post, which Shri A.K. Yadav aforementioned had been occupying as JE(C), was a post meant for candidate of reserved quota and that the petitioners services were liable to termination not only when Shri A.K. Yadav aforementioned resumed duties, but also when a candidates from the reserved category was selected to man the said post. Viewed from this angle, the contents of the letter, dated oi.02.2002. Viewed from this angle, the contents of the letter, dated oi.02.2002. of the respondent No. 3, which the petitioner seeks to get quashed, cannot be said to be factually incorrect inasmuch as what this letter has conveyed to the petitioner is basically a reminder that his services are liable to be terminated without any notice as and when a reserved candidate is selected for the post of JE(C). 13. To the pointed query made by this Court, Shri Deka reluctantly conceded that the order of appointment shows that the post occupied by Shri A.K. Yadav was actually a post meant for candidates of reserved category. Mr. Deka has, however, pointed out that since the posts advertised included 2(two) posts for candidates of general category, (Non-APST), the petitioner's appointment ought to have been made against the quota meant for general candidates. This is a crucial aspect of the present writ petition and needs some deliberation and elaborate discussion. 14. It is contended, on behalf of the State respondents, that the appointment of the petitioner was only a temporary appointment as a stop-gap arrangement to fill up the post, which had fallen vacant as a result of absconding of Sri A.K. Yadav aforementioned.' It is also contended, on behalf of the State respondents, that the petitioner, appointment was not against clear vacancy nor did the petitioner qualiry.0ri merit to fall within the zone of consideration for being appointed to the post of the Junior Engineer (JE) against clear vacancies meant for non-reserved general category and; it was for this reason that the petitioner's appointment was made temporarily against the reserved post aforementioned. The offer of appointment to the petitioner, points out Mr. Nabam, was not on regular basis, but on conditional basis. 15. Mr. Deka has pointed out that as per the advertisement, dated 04.09.97 (Annexure P/2 to the writ petition), there is no distinction between "existing vacancy" and^ "clear vacancy" and it is incorrect to suggest that the petitioner did not come within the zone of merit to get appointment against the vacant posts meant for general quota in terms of the advertisement, dated 04.09.97. aforementioned inasmuch as no criteria or qualifying marks were laid down, in this regard, by the respondents for candidates of general category to succeed in the written test and/or viva -voce/interview held in this regard. 16. It is further pointed out by Mr. aforementioned inasmuch as no criteria or qualifying marks were laid down, in this regard, by the respondents for candidates of general category to succeed in the written test and/or viva -voce/interview held in this regard. 16. It is further pointed out by Mr. Deka that according to the Government of India's Office Memorandum (OM) No. 36010/6/88-EST (SCT), dated 24.5.89, if a post was filled up by a general candidate prior to 01.04.89, such a post, even if meant for reserve category, shall be treated as a de-reserved one. In view of the fact that Sri A.K. Yadav aforementioned, admittedly, joined service on 01.05.84, which is prior to the cut of date, viz., 01.04.89, the ;pos| of Sri A.K. Yadav cannot, according to Mr. Deka, be converted to the reserved category by the respondents. Since the petitioner has already put in more than six years of service as JE(C), he has become, submits Mr. Deka, over-aged in service having burden of sustaining, himself and his family and he may not be allowed to be arbitrarily thrown out of service. 17. It is submitted by Mr. Deka that one Sri K.S. Rabindra Babu, who was working as JE, has been selected as an Assistant Engineer by APPSC and he has accordingly resigned from the post of JE and, hence, this post may be directed to be filled up by the petitioner inasmuch as this post is meant for a general category candidate. Reacting to this submission, Mr. Nabam has submitted that the post, which Sri K.S. Rabindra Babu was holding, is against the quota of direct recruits and the same cannot be filled up by appointing the petitioner thereto. I find considerable, force in this submission of Mr. Nabam and, hence, the petitioner cannot be directed to be appointed against the quota meant for direct recruitment, which Sri, KS Rabindra Babu was admittedly holding. 18. Before proceeding any further, it is apposite, in my view, to quote the relevant portion of the OM aforementioned, which runs as follows: "In order to project the interest of SC/ST communities and to ensure the posts reserved for them are filled up by such candidates, it has now been decided that where sufficient number of candidates belonging to SC/ST are not available to fill up the vacancies reserved for them in direct recruitment, the vacancies shall not be filled by candidates not belonging to these communities. In other words, there will be a ban on reservation. This will come into effect from 1.4.1989, in respect of all direct recruitment to be made to fill up vacancies in Group 'A' 'B' 'C' and 'D'. It is further clarified that this ban will apply not only to vacancies which arise after 1.4.1989, but also to the vacancies reserved for SC/ST communities of earlier years which have not yet been filled up by other community candidates whether such vacancies have been reserved or not." 19. From a bare reading of the above memorandum, it is clear that the posts, which are meant for reserve category candidates, are to be filled up only by candidates of reserved category and if no candidate belonging to the reserved category is available to fill up such post, the vacancy has to be maintained instead of being filled up by candidates of general category. However, those reserved posts, which are filled up by persons from general category as on 01.04.89, shall continue until the same falls vacant. There is nothing in this OM that after such a post falls vacant, the same has to be filled up by persons from the reserved category treating the post as a dereserved one. Far from this, the OM indicates that if and when such a post falls vacant, the same is not to be filled up by persons from general category and that such a post shall be left vacant for suitable candidates from the reserved category. 20. Situated thus, it is clear that since Sri AK Yadav aforementioned was holding the post before the cut off date i.e., 01.04.89, he would have been allowed to continue to hold the post until the time he vacated the post on superannuation or removal etc. After this post had fallen vacant, the post could not have been filled up by candidate of general category. In the case at hand, however, petitioner's appointment to the said post was entirely temporary inasmuch as it could have terminated, as indicated above, either when Sri A.K. Yadav rejoined his duties or when any suitable candidate from reserved category became available. 21. However, the State respondents having ignored the OM and having appointed the petitioner, contrary to the OM, cannot, now, throw away the petitioner on the ground that the post, which the petitioner is presently occupying, is essentially meant for reserved category candidate. 21. However, the State respondents having ignored the OM and having appointed the petitioner, contrary to the OM, cannot, now, throw away the petitioner on the ground that the post, which the petitioner is presently occupying, is essentially meant for reserved category candidate. It would have been possible for the State respondents to remove the petitioner, had his appointment been irregular, but it appears from the discussion held above that though the appointment of the petitioner was made temporarily, his selection was regular inasmuch as the selection was made following the written test/ viva-voce/interview. Moreover, the State respondents have not shown as to what the qualifying marks were fixed for the candidates of the general category nor have the State respondents disclosed before this Court as to what marks the petitioner had secured against the qualifying marks. 22. Though the State respondents have contended that the petitioner could not be appointed against the quota meant for general candidate on the ground that 'he did not come within zone of consideration on merit, what is essential to note is that no merit list has been produced before the Court to show as to what qualifying marks were required for selection on merit against the post meant for general category. 23. In view of the fact that the petitioner has, vide his affidavit-in-reply, disputed the fact that there was any specific qualifying mark for selection of candidates of the general category and in view also of the fact that in the face of such a denial, when the State respondents have not produced before this Court either the merit list, in question, or any material to show as to what were the qualifying marks for securing appointment against the quota meant for general category candidates, a bare and bald assertion on the part of the State respondents that the petitioner did not come within the zone of consideration as aforesaid can be given no credence at all. In fact, when the advertisement, in question, was meant for both APST as well as non-APST candidates, the qualifying marks, if any, laid down in connection therewith ought to have been revealed before this Court and sufficient materials ought to have laid before this Court to show as to what were the qualifying marks meant for securing the appointment against the post meant for general category candidates and what were the marks, which the petitioner had secured against such qualifying marks; rather, curiously enough, it is not discernible from the materials on record as to why the appointment of the petitioner was made against the post meant for reserve quota, which 2 (two) posts for general candidate (Non-APST) were still available. 24. Situated thus, a bare and bald assertion, if I may reiterate, on the part of the State respondents that the petitioner was appointed against the post meant for reserved category on the ground that he did not secure the qualifying marks meant for the candidates of the general category can have no force at all, particularly, when I notice that the result of the written examination, as reflected from Annexure P/4 to the writ petition, gives no indication that the petitioner did not secure the qualifying marks. 25. What, therefore, crystallizes from the above discussion is that the selection of the petitioner was regular, but his appointment was made temporarily against the post meant for the reserved category. Since the date on which the petitioner was so appointed, clear vacancy, as per the advertisement, in question, meant for general category candidates, was available and yet he was appointed against the quota meant for reserved category candidate, which goes contrary to the OM aforementioned, the petitioners appointment ought to have been made against the quota meant for general category, especially when two posts for general category candidates were, admittedly, available at the relevant time. 26. In short, in the absence of any convincing and credible explanation coming from the respondents as to why the petitioner was not appointed against the posts of JE(C) meant for the general category of candidates, this Court has, in view of what have been discussed above, no other option but to direct the respondents to treat the appointment of the petitioner as JE(C) against the post meant for general (Non-APST) candidate and also not to terminate his services except in accordance with law. 27. 27. In the result and for the reasons discussed above, this writ petition partly succeeds and this writ petition is disposed of with direction to the respondents to treat the petitioner's appointment as JE(C) against the post meant for candidates of general category and his services shall not be terminated and/or interfered with except in accordance with law. 28. With the above observations and directions, this writ petition shall stand disposed of 29. No order as to costs.