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2004 DIGILAW 587 (GAU)

Debashish Dey v. State of Assam

2004-11-27

BIPLAB KUMAR SHARMA

body2004
JUDGMENT B.K. Sharma, J. 1. All the three writ petitions having nexus to each other and filed by the same Petitioners were heard analogously and are being disposed of by this common judgment and order. 2. W.P.(C) No. 2686/2003 was filed by the four Petitioners praying for a direction to the Respondents to appoint them as LD Assistants (LDA) in the High and Higher Secondary Schools in the district of Karimganj pursuant to inclusion of their names in the select list prepared for the purpose. A further prayer was made not to fill-up the vacant posts of LDA through any other persons other than the Petitioners. The writ petition was admitted by order dated 08.04.2003 and an interim direction was issued not to make any appointment to the posts of LDA outside the list prepared. Be it stated here that the advertisement for the aforesaid posts was issued on 09.07.1998 and the selection was conducted in 1998 itself and the select list was prepared on that basis. In this connection the Petitioners placed reliance on Annexure-4 office note dated 26.04.1999 by which the Inspector of Schools, Karimganj District Circle (KDC), Karimganj asked the concerned dealing assistant to put up file and draft for appointment of the candidates as indicated in the note who are the Petitioners in the writ petition. 3. Inspite of the aforesaid interim order dated 08.04.2003 and rejection of the prayer of the private Respondents who got themselves impleaded in the writ petition to vacate the interim order, the Inspector of Schools, KDC issued an order dated 18.09.2003 filling up the vacancies of LDA by transfer and by adjustment. The prayer of the private Respondents for vacating the aforesaid interim order was rejected in Misc. Case No. 74/2003 directing to maintain status quo on the date of passing of the order i.e. 05.06.2003 between the writ Petitioners and the private Respondents as regards the appointment to the posts of LDA. 4. The Petitioners being aggrieved by the aforesaid order dated 18.09.2003 inspite of the aforesaid interim orders dated 08.04.2003 and 05.06.2003, preferred the second writ petition i.e. W.P.(C) No. 8372/2003 praying for setting aside and quashing the said order and reiterating the earlier prayers made in the first writ petition i.e. W.P.(C) No. 2686/2003. 4. The Petitioners being aggrieved by the aforesaid order dated 18.09.2003 inspite of the aforesaid interim orders dated 08.04.2003 and 05.06.2003, preferred the second writ petition i.e. W.P.(C) No. 8372/2003 praying for setting aside and quashing the said order and reiterating the earlier prayers made in the first writ petition i.e. W.P.(C) No. 2686/2003. The writ petition was entertained by order dated 30.09.2003 and the impugned order dated 18.09.2003 was stayed having regard to the earlier interim orders. The private Respondents once again filed Misc. Case No. 1939/2004 praying for vacating the aforesaid interim order dated 30.09.2003. However, no order has been passed in the said Miscellaneous Case. 5. Occasion for the Petitioners once again arose to file yet another writ petition i.e. W.P.(C) No. 2643/2004, when the official Respondents issued another order dated 14.01.2004 transferring and posting the Respondent No. 5 as LDA in Higher Secondary School in the District of Karimganj. Once again the Inspector of Schools, KDC, issued the order. In this writ petition, the Petitioners also made a challenge to a letter dated purportedly issued by the Deputy Secretary to the Government of Assam in the Education Department to the Inspector of Schools, Karimganj directing the said Inspector to cancel the select list and to allow the incumbents of the erstwhile non-formal education to join against the vacant posts this Court had no option than to stay the aforesaid order dated l4.01.2004 by interim order dated 09.04.2004. 6. The private Respondents once again filed Misc. Case No. 1923/2004 praying for vacating the aforesaid interim order dated passed in W.P.(C) No. 2643/2004. However, as in the aforesaid M.C. No. 1939/2004 filed in W.P.(C) No. 8372/2003, no order was passed on that and now both the Misc. Cases are being disposed of alongwith the three writ petitions. The private Respondents have not filed any counter affidavit in any of the three writ petitions. However, they prayed for treating the aforesaid two miscellaneous cases as their counter. The official Respondents have filed a counter affidavit in W.P.(C) No. 2643/2004. The Petitioners have also filed an additional affidavit in W.P.(C) No. 2643/2004. 7. From the aforesaid narration of facts, it will be clear that the subsequent two writ petitions had to be filed by the Petitioners for violation of the interim orders passed by this Court. The official Respondents have filed a counter affidavit in W.P.(C) No. 2643/2004. The Petitioners have also filed an additional affidavit in W.P.(C) No. 2643/2004. 7. From the aforesaid narration of facts, it will be clear that the subsequent two writ petitions had to be filed by the Petitioners for violation of the interim orders passed by this Court. There is no explanation from the official Respondents as to why the interim orders of this Court were not complied with and were twice violated. 8. As against the claim of the writ Petitioners that they are entitled to be appointed pursuant to their selection for the aforesaid posts of LDA in the High and Higher Secondary Schools of the Karimganj District, the plea of the official Respondents is somewhat evasive. In the counter affidavit filed in W.P.(C) No. 2643/2004 which was filed by the Secretary to the Government of Assam, in the Education Department (filed only after a direction was issued by this Court by order dated 16.08.2004), the said Secretary has avoided to deal with the impugned orders passed by the Inspector of Schools, KDC in violation of the interim orders of this Court. As regards the select list on the basis of which the Petitioners have stacked their claim for appointment, it is the stand in the affidavit that although the selection was made in 1998, no select list was published and the interview sheet/comparative statement was kept in sealed cover by the selection committee and the same was submitted to the Director of Secondary Education (DSE) on 15.06.2003. The other stand made in the affidavit is to the effect that the transfer and adjustment against the vacant posts of LDA in the Karimganj District had to be made through the erstwhile LDAs of the Non-formal education as per Government Order dated 21.02.2003. However, no copy of such order dated 21.02.2003 has been annexed to the affidavit. 9. The other stand made in the affidavit is to the effect that the transfer and adjustment against the vacant posts of LDA in the Karimganj District had to be made through the erstwhile LDAs of the Non-formal education as per Government Order dated 21.02.2003. However, no copy of such order dated 21.02.2003 has been annexed to the affidavit. 9. As regards the impugned order dated 04.07.2003 by which the Deputy Secretary to the Government of Assam in the Education Department had intimated the Inspector of Schools, Karimganj about the expiry of the select list and directed to cancel the same paving the way for the incumbents of the Non-formal education to join against the vacant posts, it is the plea in the affidavit as could be gathered from paragraph 12 that no such letter was issued from the file and the same is a manufactured document. It is not known as to how such an emphatic statement that the said letter is a manufactured document could be made in the affidavit solely on the ground that a copy of the same is not available in the file. It will be pertinent to mention here that a copy of the same is not available in the file. It will be pertinent to mention here that the said letter, which is stated to be a manufactured one makes a reference to the order bearing the same very number as has been mentioned in the affidavit to be the order passed adjusting six LDAs of Non-formal education. However, as against the date of the order mentioned in the affidavit as 21.02.2003, the date has been mentioned as 21.02.2001 in the said letter dated 04.07.2003 which appears to be a typographical error. 10. I now deal with the contentions raised on behalf of the private Respondents in the aforesaid two miscellaneous cases. It is their case that they were appointed in the Non-formal Education Project and on closure of the same, they became surplus. As per the policy decision of the Government, they are entitled to be adjusted against the vacant posts of LDAs and before such adjustment are made, no fresh appointment as has been prayed for by the writ Petitioners can be made. As per the policy decision of the Government, they are entitled to be adjusted against the vacant posts of LDAs and before such adjustment are made, no fresh appointment as has been prayed for by the writ Petitioners can be made. In this connection they have pressed into service the minutes of discussion of the State level Co-ordination Committee of Non-formal Education held on 09.11.2000 in presence of the Education Minister, Assam in which certain resolutions were adopted one of which was to look into the problem of rehabilitation of surplus staff of the Non-formal Education Project. They have also pressed into service the order of this Court dated 18.09.2001 passed in W.P.(C) No. 3094/2001 in which the case of the writ Petitioner, an incumbent of the Non-formal Education Project, was directed to be considered in accordance with the prevalent scheme and the law. 11. They have placed reliance on letter dated 06.02.2003 issued by the Government of Assam in the Education (Elementary) Department and addressed to various departments in the Directorate level directing them not to fill-up the existing vacancies by way of appointment/promotion/transfer and to maintain status-quo till adjustment of the Non-for- mal incumbents against the vacancies. The said Respondents have also annexed the order dated 21.02.2003 about which a mention has been made in the affidavit filed by the Secretary to the Government of Assam in the Education Department, by which the Commissioner and Secretary of the Department ordered for adjustment of the incumbents named in the enclosed list, who were the erstwhile LDAs in the Non-formal Project, in the Directorate of Secondary Education, Assam. The names of the private Respondents were also included in the list. Thus in a nutshell, it is the case of the private Respondents that they being the surplus staff of the erstwhile Non-formal Education Project, as per policy decision of the Government, they are entitled to be adjusted/absorbed against various vacancies in different Directorates, more particularly in the Directorate of Secondary Education as was ordered by the aforesaid ordered dated 21.02.2003. 12. During the course of hearing of the writ petitions, learned Standing Counsel, Education Department produced File No. ELC/W.P.(C) 2686/2003/139/Pt. It was on perusal of the same, the Secretary to the Government of Assam in the Education Department was directed to file an affidavit. 12. During the course of hearing of the writ petitions, learned Standing Counsel, Education Department produced File No. ELC/W.P.(C) 2686/2003/139/Pt. It was on perusal of the same, the Secretary to the Government of Assam in the Education Department was directed to file an affidavit. The file contains a note dated 07.08.2004 endorsed to the Secretary, Education by the Director of Secondary Education, Assam. As per the said note, the Government did not issue any instruction for filling up the vacant posts of LDAs and thus the advertisement made by the Inspector of Schools, KDC in 1998 was not as per instruction of the Government. The note further alleges that the select list prepared and published in 1999 by the Inspector of Schools, KDC was not as per Government instruction and that the validity of the select list has already expired. The note also speaks of adjustment/absorption of the erstwhile Non-formal Education Project staff. Thus as per this note, the select list was prepared and published contrary to the stand in the affidavit filed by the Secretary that except endorsing the interview sheet/comparative statement prepared by the Selection Committee, in a sealed cover to the Director of Secondary Education on 15.06.2003, no select list was published. It is the same very Director about whom the mention has been made in the affidavit has certified in the aforesaid note that the select list was prepared and published. 13. After the aforesaid note dated 07.08.2004 made by the DSE, Assam himself and was put up before the Secretary in type writing, the Officer on Special Duty (OSD) put up another hand written note on 09.08.2004 that the select list was not published and that the Petitioners merely by appearing in an interview are not entitled to get appointment. According to the OSD's note, the select list was prepared in 1997 and the validity of the same expired in 1998. Such a statement made by the OSD is not factually correct inasmuch as it is on record that the advertisement and the selection were made in 1998 and the select list was prepared in 1999. This depicts total non-application of mind on the part of the OSD. 14. Learned Standing Counsel, Education Department was also requested to produce the file pertaining to selection of the Petitioners and the correspondences made in respect of the same. This depicts total non-application of mind on the part of the OSD. 14. Learned Standing Counsel, Education Department was also requested to produce the file pertaining to selection of the Petitioners and the correspondences made in respect of the same. The file containing the minutes of selection was produced which clearly revealed that the Petitioners were selected for appointment as LDA. The Selection Committee scrutinized the marks secured by the candidates in written test; type test and oral test and on final compilation of the same, selected the Petitioners. 15. Amidst the aforesaid controversy relating to the very jurisdiction of the Inspector of Schools, KDC in issuing the advertisement and conducting the selection and the allegation that the select list was not published and that even if the same was published, it spent its force on expiry of one year, the writ Petitioners filed an additional affidavit on 23.08.2004 annexing therewith the letter dated 23.06.97 issued by the Joint Director of Secondary Education, Assam to all the Inspectors of Schools including the Inspector of Schools, KDC authorizing him to take necessary steps for filling up all the vacancies of Grade-III and IV under his jurisdiction as per the instruction laid down by the Government in its letter dated 19.03.87. A copy of the advertisement, dated 09.07.98 issued by the Inspector of Schools, KDC has also been annexed. The minutes of meeting between the Inspector of Schools, KDC and the members of different Selection Committees under his jurisdiction issued under Memo dated 18.11.98 has also been annexed. Thus according to the Petitioners the selection conducted by the Inspector of Schools, KDC was as per the direction of the higher authorities and was conducted as per the authorization made by them. 16. In the aforesaid backdrop, the controversy to be resolved is as to whether the selection of the Petitioners was validly made and even if it is answered in the affirmative, whether the same has spent its force. A further controversy, which is also required to be resolved is, whether, even if the first controversy is answered in favour of the Petitioners, they have a right to be appointed against the vacant posts of LD A in preference to the surplus staff of the Non-formal Education Project. 17. I have heard Mr. N. Dhar, learned Counsel for the Petitioners and Mr. V.M. Thomas, learned Standing Counsel, Education Department. Mr. 17. I have heard Mr. N. Dhar, learned Counsel for the Petitioners and Mr. V.M. Thomas, learned Standing Counsel, Education Department. Mr. K.N. Choudhury, learned senior counsel, assisted by Mr. M. Mahanta, learned Advocate argued on behalf of the private Respondents. Mr. Dhar, submitted in reference to the rules i.e. the Assam Secondary Education (Provincialisation) (Service and Conduct) Rules, 1979, that the select list in question is still valid contrary to the stand of the official Respondents that the same got expired on expiry of one year from the date of preparation/publication of the same. He further submitted that the Petitioners having been selected way back in 1999, the purported decision of the Government taken after four years in 2003 to adjust/absorb the incumbents of the erstwhile Non-formal Education Project staff cannot take away the vested right of the Petitioners. Referring to the conduct of the Respondents, which he alleged to be repeated violation of the interim orders of this Court, Mr. Dhar submitted that the action of the official Respondents lacked bonafide exercise of power. According to him, the official Respondents being aware of the accrued right of the Petitioners to be considered for appointment pursuant to their selection, played hot and cold and adopted the tactics of approbate and reprobate so as to favour the private Respondents who were appointed only against a project unlike the Petitioners who were selected for regular appointment. He also submitted that the selection of the Petitioners having not been cancelled, they are entitled to be appointed. 18. Mr. V.M. Thomas, learned Standing Counsel, Education Department on the other hand supported the stand of the official Respondents in their affidavit/According to him the Petitioners are not entitled to be considered for appointment on three counts Viz. (i) non-publication of the select list, (ii) even if the select list is held to be a published one, same spent its force on expiry of one year and (iii) in any case the Petitioners are not entitled to get preference over the surplus staff. 19. Mr. K.N. Choudhury, learned Sr. Counsel, appearing for the private Respondents adopting the line of argument of Mr. Thomas and referring to the aforementioned documents annexed to the miscellaneous applications submitted that the private Respondents would get preference over the Petitioners. 19. Mr. K.N. Choudhury, learned Sr. Counsel, appearing for the private Respondents adopting the line of argument of Mr. Thomas and referring to the aforementioned documents annexed to the miscellaneous applications submitted that the private Respondents would get preference over the Petitioners. He submitted that the Government having taken a policy decision to adjust the surplus staff like that of the private Respondents, in absence of any malafide or statutory violation of such a policy decision, same will get preference in the matter of absorption/adjustment of the private Respondents over the appointment of the Petitioners. 20. I first take the plea of the Respondents, that the select list was not published and even if the same was published, same spent its force on expiry of one year. According to the affidavit filed in W.P.(C) No. 2643/2004, the select list was not published and only the interview sheet/comparative statement was sent to the Director of Secondary Education on 15.06.2003. However, the same very DSE, Assam in his aforementioned note dated 07.08.2004 categorically stated that the select list was published. Thus the statement of the Secretary made in reference to DSE, Assam cannot be considered on its face value, in view of the stand of the same very DSE that the select list was published. It is another thing that the DSE found fault with the issuance of advertisement and conducting the selection by the jurisdictional Inspector on ground of lack of propriety which is also not correct in view of the documents annexed to the additional affidavit filed by the Petitioner, more particularly the letter dated 23.06.97 by which the Joint Director of Secondary Education, Assam authorized the jurisdictional Inspector to conduct the selection. Lack of authority is also not the stand in the affidavit. 21. Rule 6 of the aforesaid Rules of 1979, deals with modes of appointment. Rule 6(d) provides that Office Assistant and Grade-IV staff shall be selected as in the case of the other Government servants for similar Government Schools. Rule 7 provides for regularization of services in terms of which all appointments made after provincialisation shall have to be regularized as per Rule 5 of the Rules. As per Rule 7(d) the select list shall remain valid till it is reviewed or a new select list is prepared. learned Counsel for the Respondents have not disputed that the instant case is governed by the aforesaid rules. As per Rule 7(d) the select list shall remain valid till it is reviewed or a new select list is prepared. learned Counsel for the Respondents have not disputed that the instant case is governed by the aforesaid rules. They have also not disputed that it is the Inspector of Schools who was authorized to conduct the selection in question in terms of the guidelines issued by the Government of Assam in the Education Department in its letter dated 19.03.87 about which there was a mention in the Annexure-1 letter dated 23.06.9.7 annexed to the Additional affidavit which was issued by the Joint Director, Secondary Education to the jurisdictional Inspector of Schools authorizing him to conduct the selection. It has already been noticed above that the selection was directed to be conducted as per instructions laid down in the said letter dated 19.03.87. A copy of the said letter dated 19.03.87 has been produced by Mr. Thomas, learned Standing Counsel, Education Department which reads as follows: GOVERNMENT OF ASSAM EDUCATION (PERSONNEL) DEPARTMENT No. EPG230/87/2, Dated Dispur, the 9th March, 1987 To: The Director of Secondary Education, Assam, Kahilipara, Guwahati-19. Sub: Procedure for recruitment to the posts of Grade-Ill and Grade-IV employees in Provincialised High/Higher Secondary Schools. Sir, With reference to the subject cited above, I am directed to inform you that Government have already decided to adopt the following procedure to eliminate the factors of allegation against the procedure for recruitment to the posts of Gr. III and Gr. IV employees in Provincialised High/Higher Secondary Schools: (i) The concerned School authority will issue advertisement for the vacant posts of Grade-III and Grade-IV employees. The notice for advertisement shall however require prior approval of the Inspector of Schools within whose jurisdiction the School falls. A copy of the notice shall be sent to the local employment exchange. (ii) The Head of the Institution will prepare a statement of the applications received and submit it to the Inspector of Schools along with the original applications. (iii) A committee consisting of 4/5 members with representatives of the Managing Committee of the Schools concerned and at least two expert members including a nominee (official) of the Inspector of Schools, shall be constituted. The official nominee of the Inspector of Schools shall be the Chairman of the Committee(s) in order of merit and prepare a select list. (iii) A committee consisting of 4/5 members with representatives of the Managing Committee of the Schools concerned and at least two expert members including a nominee (official) of the Inspector of Schools, shall be constituted. The official nominee of the Inspector of Schools shall be the Chairman of the Committee(s) in order of merit and prepare a select list. (iv) The select list will be sent to the Inspector of Schools for his approval. Appointments will be made by the Inspector of Schools from the list so approved. You are, therefore, requested to take immediate necessary steps in the matter accordingly. Yours faithfully, Sd/- illegible, (B. BHATTACHARYYA) Secretary the Government of Assam Education Department. 22. On perusal of the above letter laying down the guidelines for selection and after going through the writ petitions and the additional affidavit it is clear that the requirements envisaged in the said letter were more or less followed. As per the said guidelines, it is the Inspector of Schools, who is the final authority to approve the select list and the appointments are to be made on that basis. The records produced by Mr. Thomas, about which mention has been made above clearly revealed that the Petitioners were selected and they were included in the select list. The Inspector of Schools approved the select list, which will be evident from his Annexure-4 endorsement dated 26.04.99 annexed to the writ petition in W.P.(C) No. 2686/2003. If that be so, the stage for making appointment by the Inspector of Schools, KDC had reached which is also discernible from the aforesaid note dated 26.04.99. However, no appointment could be made due to ban on appointment as indicated in the note itself. Even during the period when the ban on appointment was lifted, the Petitioners were not appointed. 23. On a conjoint reading of the aforesaid provisions of the Rules of 1979, the instructions issued vide letter dated 19.03.87, and the aforesaid Annexure-1 letter dated 23.06.97 by which the jurisdictional Inspector was authorized to conduct the selection, there is no manner of doubt that the selection was conducted in a legally valid manner. After the approval of the same by the Inspector of Schools, a stage had reached in which the Petitioners could legitimately expect for then- appointment. After the approval of the same by the Inspector of Schools, a stage had reached in which the Petitioners could legitimately expect for then- appointment. The pleas now being raised by the Respondents seeking to put the selection in oblivion, in my considered opinion, is ill founded and not bonafide. In the process, the responsible officers of the Education Department have expressed different opinion. While the DSE, Assam himself has stated that the select list was published, the Secretary taking the name of the same very DSE has stated in the affidavit that only the interview sheet/comparative statement was endorsed to the DSE. Such endorsement, even if any, was of no consequence, inasmuch as, as noticed above; it was the Inspector of Schools, KDC, who was the final authority in the matter. 24. Once having held that the select list was validity prepared and could have been acted upon, can the plea of the Respondents that the same spent its force on expiry of one year be sustained? This plea itself indicates that the Respondents are aware that the select list was validity prepared and published. Rule 7(d) of the aforesaid Rules of 1979 does not permit expiry of the select list after one year, rather it prescribes that the select list shall remain valid till it is reviewed or a new select list is prepared. Such a provision in the rules keeps the select list alive and no amount of assertion made by the Respondents would invalidate the same. 25. In view of the above conclusions the final answer to be made in the writ petition is as to whether the Petitioners are entitled to be considered for appointment in preference to the surplus staff of the erstwhile Non-formal Education Project. The problem with the incumbents working in the said project was not even visualized, when the advertisement for appointment of LDAs in the District of Karimganj was issued in 1998. The position was also not visualized or came to the forefront at the time of making the selection. The Petitioners after inclusion of their names in the select list kept on waiting for their turn for appointment with a legitimate expectation. The position was also not visualized or came to the forefront at the time of making the selection. The Petitioners after inclusion of their names in the select list kept on waiting for their turn for appointment with a legitimate expectation. With the issuance of the Annexure-5 impugned letter dated 04.03.2003 by the Inspector of Schools to the Commissioner and Secretary to the Government of Assam, Education Department in reference to the aforesaid order of the Government dated 21.02.2003 asking for clarification as to whether the selection made for appointment of 7 numbers of LDAs was to be treated as invalid, the Petitioners became apprehensive and approached this Court by filing W.P.(C) No. 2686/2003. 26. Interim direction was issued in said W.P.(C) No. 2686/2003, but inspite of that the Respondents proceeded with the matter towards adjustment/absorption of the incumbents of the erstwhile Non-formal Education Project. This led to filing of yet another writ petition i.e. W.P.(C) No. 8372/2003. Further interim order was issued having regard to the earlier interim orders. However, once again the interim orders of this Court were violated by issuing orders in favour of private Respondents. As a consequence, the Petitioners had to file the third writ petition i.e. W.P.(C) No. 2643/2004 in which also interim order was passed and naturally so having regard to the earlier interim orders and the conduct of the Respondents. 27. The conduct of the Respondents in dealing with the matter pertaining to the selection of the Petitioners is also not above suspicion. As against the regular and valid selection of the Petitioners, the Respondents played hot and cold and submitted affidavit with evasive statement and with contradictions with their own records about which discussions have been made above. They have even disowned the Annexure-14 letter dated 04.07.2003 annexed to the writ petition in W.P.(C) No. 2643/2004 making a statement that the same is a manufactured one, without, however, highlighting anything as to who was responsible towards manufacturing the same and as to how the Petitioners could gain by annexing such a letter. As per the said letter dated 04.07.2003 issued by the Deputy Secretary to the Government of Assam in the Education Department and addressed to the Inspector of Schools, KDC, the validity of the select list could not be continued beyond one year. Thus the contents of the letter go against the Petitioners. As per the said letter dated 04.07.2003 issued by the Deputy Secretary to the Government of Assam in the Education Department and addressed to the Inspector of Schools, KDC, the validity of the select list could not be continued beyond one year. Thus the contents of the letter go against the Petitioners. There is also no allegation that the Petitioners were responsible towards manufacturing the same. Instead of making any enquiry in the matter, such a sweeping remark has been made in the affidavit solely on the ground that a copy of the same is not available in the file. It gives an impression that such a stand has been taken in the affidavit in view of the inherent contradiction between the contents of the said letter and the stand in the affidavit. By the said letter, the select list has been recognised, but as per the affidavit there is no recognition to the select list. Possibly to cover up such inherent contradiction, the said letter has been branded as a manufactured one without elaborating anything as to how it could be. 28. The Apex Court in the case reported in (1990) 3 SCC157 (N.T. Devin Katti v. Karnataka PSC), dealing with the effect of amendment to a particular recruitment rule on the basis of which the selection was already conducted held that if the amended rules are not retrospective in nature the selection must be regulated in accordance with the rules on the date of advertisement. The Apex Court observed that determination of this question largely depends on the facts of each case having regard to the terms and conditions set out in the advertisement and the relevant rules. The Apex Court made the following observation on the right of the candidates for selection in accordance with the rules as they existed on the date of advertisement. 11. There is yet another aspect of the question. Where advertisement is issued inviting applications for direct recruitment to a category of post, and the advertisement expressly states that selection shall be made in accordance with the existing rules or Government Orders, and if it further indicates the extent of reservations in favour of various categories, the selection of candidates in such a case must be made in accordance with the then existing rules and Government Orders. Candidates who apply, and undergo written or viva voce test acquire vested right for being considered for selection in accordance with the terms and conditions contained in the advertisement, unless the advertisement itself indicates a contrary intention. Generally a candidate has right to be considered in accordance with the terms and conditions set out in the advertisement as his right crystallizes on the date of publication of advertisement, however he has no absolute right in the matter. If the recruitment Rules are amended retrospectively during the pendency of selection, in that event selection must be held in accordance with the amended Rule. Whether the Rules have retrospective effect or not, primarily depends upon the language of the Rules and its construction to ascertain the legislative intent. The legislative intent is ascertained either by express provision or by necessary implication, if the amended Rules are not retrospective in nature the selection just be regulated in accordance with the rules and orders which are enforce on the date of advertisement. Determination of this question largely depends on the facts of each case having regard to the terms and conditions set out in the advertisement and the relevant rules and orders. Lest there be any confusion, we would like to make it clear that a candidate on making application for a post pursuant to an advertisement does not acquire any vested right of selection, but if he is eligible and is otherwise qualified in accordance with the relevant rules and the terms contained in the advertisement, he does acquire a vested right of being considered for selection is accordance with the rules as they existed on the date of advertisement. He cannot be deprived of that limited right on the amendment of rules during the pendency of selection unless the amended rules are retrospective in nature. 29. In the case as reported in (1999) 6 SCC 49 (Purushottam v. Chairman, MSEB) the Apex Court made the following observation in respect of a duly selected person illegally kept out of employment and eventually denied appointment on the ground that the panel has expired in the meantime: 4. 29. In the case as reported in (1999) 6 SCC 49 (Purushottam v. Chairman, MSEB) the Apex Court made the following observation in respect of a duly selected person illegally kept out of employment and eventually denied appointment on the ground that the panel has expired in the meantime: 4. In view of the rival submission the question that arises for consideration is whether a duly-selected person for being appointed and illegally kept out of employment on account of untenable decision on the part of the employer, can be denied the said appointment on the ground that the panel has expired in the meantime. We find sufficient force in the contention of Mr. Deshpande appearing for the Appellant inasmuch as there is no dispute that the Appellant was duly selected and was entitled to be appointed to the post but for the illegal decision of the screening committee which decision in the meantime has been reversed by the High Court and that decision of the High Court has reached its finality. The right of the Appellant to be appointed against the post to which he has been selected cannot be taken away on the pretext that the said panel has in the meantime expired and the post has already been filled up by somebody else. Usurpation of the post by somebody else is not an account of any defect on the part of the Appellant, but on the erroneous decision of the employer himself. In that view of the matter, the Appellant's right to be appointed to the post has been illegally taken away by the employer. We, therefore, set aside the impugned order and judgment of the High Court and direct the Maharashtra State Electricity Board to appoint the Appellant to the post for which he was duly selected within two months from today. We make it clear that appointment would be prospective in nature. 30. As already observed above, by the time the order dated 21.02.2003 issued by the Commissioner & Secretary to the Government of Assam in the Education Department ordering retrospective adjustment of the incumbents name in the list of the erstwhile Non-formal Education Project came into being, the right of the Petitioners had already crystallized pursuant to their selection and inclusion in the select list. The principle laid down by the Apex Court in the aforesaid case of N.T. Devin Katti (supra), although dealt with the effect of retrospective amendment of recruitment rules, if the adjustment/absorption of the private Respondents is treated as a mode of employment, same will have a bearing in the instant case. Even the retrospective effect to the adjustment will effect from 01.04.2001 ordered by the aforesaid order dated 21.02.2003 cannot affect the right of the Petitioners who were already selected and empanelled. 31. There is another aspect of the matter. It is only the four Petitioners who have been fighting the legal battle for their appointment pursuant to their aforesaid selection and empanelment. As per the aforesaid order dated 21.02.2003 altogether 91 surplus staff of the erstwhile Non-formal Education Project were ordered to be adjusted. While doing so, should the Petitioners be deprived of their crystallized right. As against the regular selection of the Petitioners, nothing has been stated as to how and in what manner the private Respondents were appointed against the posts pertaining to the project. It is true that as per the decision of the Government, the private Respondents and for that matter the incumbents of the erstwhile Non-formal Education Project are entitled to be adjusted/absorbed. It is not known as to whether the incumbents named in the list annexed to the aforesaid order dated 21.02.2003 have been arraigned order of seniority or the persons above the Petitioners have already been adjusted/absorbed. In the said list the name of the private Respondents appear from serial No. 80 onwards. Be that as it may, even leaving aside all these controversies, if the Petitioners are also considered for appointment pursuant to their aforesaid selection, that will add only four to the aforesaid list containing 91 surplus Non-formal Education Project staff. Thus keeping aside the own merit of the case of the Petitioners, I see no reason as to how the accommodation of the Petitioners would have any vital bearing to the absorption/adjustment process of the 91 incumbents including the private Respondents named in the list attached to the aforesaid order dated 21.02.2003. 32. Thus keeping aside the own merit of the case of the Petitioners, I see no reason as to how the accommodation of the Petitioners would have any vital bearing to the absorption/adjustment process of the 91 incumbents including the private Respondents named in the list attached to the aforesaid order dated 21.02.2003. 32. In the case of Dwaraka Nath v. ITO, as reported in AIR 1966 SC 81 , the Apex Court observed that our Constitution designedly used wide language in Article 226 to enable the Courts to "reach justice wherever found necessary" and to "mould the reliefs to meet the peculiar and complicated requirements of this country." In the case of Controller and Auditor General of India v. K.S. Jagannathan, as reported in (1986) 2 SCC 679 , the Apex Court dealing with the contention that a Writ Court cannot issue a mandamus to direct a public authority to exercise its discretion in a particular manner observed as follows: 20. There is thus no doubt that the High Courts in India exercising their jurisdiction under Article 226 have the power to issue a writ of mandamus or a writ in the nature of mandamus or to pass orders and give necessary directions where the Government or a public authority has failed to exercise or has wrongly exercised the discretion conferred upon it by a statute or a rule or a policy decision of the Government or has exercised such discretion malafide or on irreverent considerations or by ignoring the relevant considerations and materials or in such a manner as to frustrate the object of conferring such discretion or the policy for implementing which such discretion has been conferred. In all such cases and in any other fit and proper case a High Court can, in the exercise of its jurisdiction under Article226, issue a writ of mandamus or a writ in the nature of mandamus or pass orders and give directions to compel the performance in a proper and lawful manner of the discretion conferred upon the Government or a public authority, and in a proper case, in order to prevent injustice resulting to the parties concerned, the Court 'may it pass an order or give directions which the Government or the public authority should have passed' or given had it properly and lawfully exercised 'its discretion. (emphasis supplied) 33. (emphasis supplied) 33. In the instant case, having regard to the conduct of the Respondents and other attending circumstances, I am inclined to exercise the extra-ordinary jurisdiction under Article 226 of the Constitution in that manner. 34. For the foregoing reasons and discussions, I am inclined to allow the writ petitions issuing a direction to the Respondents to appoint the Petitioners pursuant to their selection against the vacant posts of LDA in the district of Karimganj. Simultaneously, further process should also be initiated to accommodate the private Respondents in other posts, which might have fallen vacant in the meantime. Entire exercise shall be carried out within three months from today. Consequently the impugned orders stand set aside with a note of caution to the official Respondents to refrain from indulging in creation of a situation in which the Petitioners inspite of the interim orders of this Court had to approach the Court by filing successive writ petitions. Otherwise, this Court will be left with no option than to take action against the erring officials as per law. 35. Writ petitions stand allowed to the extent indicated above, imposing Rs. 5000/- as cost against the official Respondents for forcing the Petitioners to approach this Court repeatedly. Petition allowed