Research › Search › Judgment

Gauhati High Court · body

2004 DIGILAW 99 (GAU)

Amlan Jyoti Barooah v. State of Assam

2004-02-12

RANJAN GOGOI

body2004
JUDGMENT Ranjan Gogoi, J. 1. All these writ petitions having raised similar questions of law on more or less identical facts, were heard together and are being disposed of by this common judgment and order. 2. The facts being largely similar, an enumeration of the essential facts in the first of the cases filed, i.e., WP(C)628/01 would suffice and maybe taken as illustrative of the facts of the other cases. 3. On 6.9.1997, an advertisement was published in the newspapers inviting applications for filling up the posts of Sub Inspector of Police (Armed Branch and Unarmed Branch). In the advertisement, it was mentioned that the total number of vacancies likely to occur are 112. Under Clause 7 of the advertisement issued, eligible candidates were required to appear in a written test consisting of one paper of 3 hours duration. Candidates, who qualified in the written test were required to appear in a physical test and in an interview to be conducted on subsequent dates. The Petitioner applied pursuant to the said advertisement dated 6.9.97 and by a communication dated 18.3.98, he was informed that the written test would be held on 26.4.98 and that the physical test would be held thereafter on 27/28.4.98. According to the Petitioner, he appeared in the written test on the above date but no physical test was held and instead he was asked to wait till the outcome of the written test. On 19.4.99, the Petitioner was informed that he would not be required to appear at an interview and further that in case he was selected in the interview, he would be called for physical test. The interview was to be held on 26.5.99. According to the Petitioner, he appeared in the interview and thereafter no further intimation was sent to him. On enquiries being made, the Petitioner was informed that pursuant to the selection held, the first batch of appointments had already been made and that he should wait for the next round of appointments. The interview was to be held on 26.5.99. According to the Petitioner, he appeared in the interview and thereafter no further intimation was sent to him. On enquiries being made, the Petitioner was informed that pursuant to the selection held, the first batch of appointments had already been made and that he should wait for the next round of appointments. As in the meantime, the Petitioner could come to know from the news papers that another batch of 84 persons were proposed to be appointed as Sub Inspector of Police, the instant writ application was filed While entertaining the present writ petition, this Court by an interim order dated 2.2.2001 has directed that until further orders, no appointment to the post of Sub Inspector of Police should be made. The aforesaid interim order was subsequently vacated by this Court on 1.3.2001 and though in some other writ proceedings, orders to similar effect were reiterated by this Court, 84 further appointments to the post of sub Inspector of Police was made by the Respondent authority on 1.3.2001 itself. The validity of the aforesaid 84 appointments made on 1.3.2001 (according to the State though appointments were offered to 84 candidates only 76 actually joined), is the subject matter of challenge in the present bunch of cases. 4. I have heard Mr. K.N. Choudhury, Mr. A.C. Borbora, Mr. M. Singh learned Senior Counsels, Dr. B. Ahmed, Mr. R. Goswami learned Counsels appearing for the writ Petitioners and Mr. M. Bhuyan, learned Counsel appearing for the Respondents. Mr. H.N. Sarma, learned Senior Counsel has appeared for the Respondents 13 to 75 in WP(C) 628/2001 who had appeared pursuant to a notice published in the newspapers under orders passed by this Court. 5. The lead arguments in the present bunch of cases have been made by Mr. K.N. Choudhury, learned Counsel for the writ Petitioner in WP(C) 628/01. A consideration of the arguments advanced on behalf of the Petitioner in WP(C) 628/01 is considered adequate as the same would adequately cover the arguments advanced in all the other cases. 6. Reduced to its core, the arguments advanced on behalf of the Petitioners is twofold. The Petitioners contend that 112 posts having been advertised, appointments could not have been made in excess of that number. 6. Reduced to its core, the arguments advanced on behalf of the Petitioners is twofold. The Petitioners contend that 112 posts having been advertised, appointments could not have been made in excess of that number. Referring to the pleadings and other materials on record, the learned Counsel for the Petitioners has contended that as against the 112 posts advertised, 174 appointments were made on 4.7.2000 and thereafter another 84 appointments were made on 1.3.2001. As in none of the present writ petitions, the first batch of appointments numbering 174 has been put to challenge, learned Counsels for the Petitioners have agreed that the challenge in the present cases must be understood to be in respect of the second lot of 84 appointments. Mr. Choudhury, learned senior Counsel for the Petitioner by placing reliance on the Apex Court judgment in the case of Madan Lal and Ors. v. State of J and K and Ors. reported in (1995) 3 SCC 486 , has contended that the aforesaid 84 appointments being clearly in excess of the posts advertised, would be wholly unauthorized in law and, therefore, would be open to interference by this Court. The second limb of the argument of the writ Petitioners as unfolded by Mr. K.N. Choudhury is that the selection of the candidates was required to be made by taking into account their performance in the written test, physical test and the oral interview. All the aforesaid 3 aspects of the selection process were required to be taken into account in determining the inter se merit of the candidates and their position in the select list. The Petitioners, it is argued, were not called for physical test and, therefore, the assessment of the Petitioners, made without reference to the physical test, is wholly contrary to law. While making the aforesaid submission, Mr. Choudhury has fairly submitted that though in he initial pleadings, the complaint of the writ Petitioners was that the physical test, which was to follow the written test, was not held in the order indicated, in the subsequent pleadings brought on record, it has been specifically contended by the Petitioners that each one of the three components of the selection process, i.e., written test, physical test and interview had a competitive element and the final selection was required to be made by taking into account the performance in all the three facts of the selection process. On the aforesaid broad facts, Mr. Choudhury, learned senior Counsel for the Petitioners, has argued that not only the appointments of the 84 persons have been made in excess of the posts advertised but the said appointments also stand vitiated on merits. Two different criteria having been adopted to assess the cases of the persons appointed and those of the Petitioners, the impugned selection and appointment, it is contended, violates the equality clause enshrined under Articles 14 and 16 of the Constitution of India. 7. The arguments advanced on behalf of the Petitioners have been resisted by Mr. M. Bhuyan, learned Counsel for the Respondents, who has placed before the Court the relevant records, details of which will be noticed while referring to the submissions advanced by the learned Counsel. According to Mr. Bhuyan, the posts mentioned in the advertisement dated 6.9.97 were anticipated vacancies as would be evident from the contents of Clause 3 of the advertisement. According to Mr. Bhuyan, though the selection was held in the years 1998 and 1999, the results were published only in the month of January, 2000. By the time the results were declared, many additional vacancies had occurred and all such vacancies being anticipated vacancies, it was open for the State to fill up the same on the basis of the selection held. It is contended that such a course of action was open to the State in view of the law laid down by the Apex Court in the case of Prem Singh and Ors. v. Harayana State Electricity Board and Ors. reported in (1996) 4 SCC 319 . Arguing further, Mr. Bhuyan, learned Counsel has submitted that in the aforesaid circumstances, on 2.3.2000 the State Level Empower Committee (hereinafter referred to as the SLEC), which is the expert body constituted by the State Government to decide on the optimum utilization of services of State Government Employees and also to decide which posts are required to be filled up and those that are to be kept vacant, was moved for accord of permission to fill up the 174 posts in question. The SLEC, it is contended, accorded its approval on 26.6.2000, whereafter on 4.7.2000 appointments were offered to 174 candidates out of whom 169 joined. The aforesaid appointments of 174/169 candidates have not been challenged in any of the present writ petitions. 8. The SLEC, it is contended, accorded its approval on 26.6.2000, whereafter on 4.7.2000 appointments were offered to 174 candidates out of whom 169 joined. The aforesaid appointments of 174/169 candidates have not been challenged in any of the present writ petitions. 8. After the aforesaid 174/169 appointments were made, more vacancies had occurred on account of death, retirement and similar reasons and the number of such vacancies stood at 77. As it was absolutely necessary for the State Government to immediately fill up all such vacancies, the Director General of Police by letter dated 20.12.2000 had requested the Commissioner and Secretary to the Government of Assam, Home Department to obtain necessity permission of the SLEC to fill up the aforesaid vacancies on the basis of the results of the previous recruitment. Such permission was accorded by the SLEC in the month of February, 2001 and as the vacancies by that time had increased from 77 to 84, the second lot of appointment were offered to 84 candidates, out of which 76 had joined. The aforesaid 84/76 appointments were made on 1.3.2001, after this Court had vacated the interim restraint order passed in WP(C) 628/01. 9. Mr. Bhuyan, learned Counsel for the Respondents after placing the aforesaid facts on the basis of the records produced, has contended that the 84 vacancies, which had occurred, were regular vacancies occurring on death, retirement and other connected reasons and, therefore, these vacancies must be construed to be anticipated vacancies, which would be available for being filled up on the ratio of the law laid down in Prem Singh's case (supra). According to the learned Counsel, the embargo imposed in Prem Singh's case is only in respect of future vacancies, i.e., against posts created subsequent to the advertisement. Mr. Bhuyan has further argued that the 84/76 vacancies having been filled up due to strong and compelling reasons that existed at that point of time i.e. the need to man the posts and further as the appointments were made with the approval of the expert body, i.e. SLEC after taking into account, the merit position of the candidates in the select list, no illegality can be found in the appointments made. The appointments are in public interest and, therefore, this Court must uphold the validity of the same. Arguing further, Mr. The appointments are in public interest and, therefore, this Court must uphold the validity of the same. Arguing further, Mr. Bhuyan, learned Counsel for the Respondents has contended that though in the advertisement dated 6.9.97 and the call letters issued, the physical test was to follow the written test, the deviation therefrom was necessitated by the fact situation prevailing at that point of time. According to the learned Counsel, nearly 6000 candidates had appeared in the written examination and out of the said candidates, 1804 candidates who had secured 40% and above marks in the written test, were called for interview and were interviewed. The marks of the written test and interview were added together and a merit list was prepared. Thereafter, when the first lot of 174 vacancies had occurred, the persons at Serial Nos. 1 to 174 were called for physical test and 169 of them having been found to be eligible were offered appointment. When the next lot of vacancies occurred, the persons from Serial Nos. 175 onwards, in order of merit, were called and 76 of them eventually being found to be eligible had joined service. As there were 1804 candidates, who had qualified in the written test and oral interview it was considered impracticable and unnecessary to call all of them for the physical test. According to the learned Counsel for the Respondents, the action adopted would hardly constitute a departure from the norms and procedure prescribed; it was at best a case of minor adjustment of the procedure, which the Respondents were certainly authorized to carry out. Lastly, Mr. Bhuyan, learned Counsel for the Respondents has argued that even if this Court is to hold the twin issues arising in the case in favour of the Petitioners, no interference ought to be made with the appointments, on grounds of equity. 10. Mr. H.N. Sarma, learned senior Counsel, who has appeared for Respondents Nos. 13 to 75, i.e. such of the appointed persons, who have responded to the news paper publication issued under orders of this Court, has adopted the arguments of Mr. M. Bhuyan, and has further contended that filling up of vacancies in excess of the posts advertised is not a parse illegal action and judicial approval of such actions should be accorded in the facts of the present case. M. Bhuyan, and has further contended that filling up of vacancies in excess of the posts advertised is not a parse illegal action and judicial approval of such actions should be accorded in the facts of the present case. Reliance in this regard has been placed on a judgment of the Apex Court in the case of Union of India and Ors. v. Sushil Kumar Paul and Ors. reported in (1998) 5 SCC 268 . Mr. Sarma has further argued that in the instant case a large number of additional vacancies occurred, which needed to be filled up in public interest. The Respondent Nos. 13 to 75 were offered appointment on the basis of the approval granted by the SLEC and as per their position in the merit list. They have been working in the posts on which they have been appointed since March, 2001. Disturbing them at this stage, it is contended, will be wholly inequitable. 11. Having set out the broad parameters of the arguments advanced by the rival parties, this Court may now proceed to examine the tenability of either of the versions advanced before the Court. 12. If a particular number of posts had been advertised as available for being filled up, is the authority to be understood to be empowered to fill up only the specified number of posts advertised or must the authority be understood to be vested with the power to depart therefrom and if so where is the line to be drawn? This is the moot question that arises for determination in the present case. The law laid down by the Apex Court in Madanlal's case (supra) to the effect that the authority must be restricted to fill up only such posts which have been advertised/requisitioned, must necessarily be understood in the facts of that case. The law laid down by the Apex Court in Madan Lal's case followed the finding reached that in terms of the language of the requisition sent to the Public Service Commission to fill up the 11 posts in question, no intention to fill up the anticipated vacancies occurring up to any particular period of time, could be gathered. In Prem Singh's case, a right to fill up the anticipated vacancies not included in the number of posts advertised was claimed. In Prem Singh's case, a right to fill up the anticipated vacancies not included in the number of posts advertised was claimed. A careful reading of the judgment of the Apex Court in the said case, would go to show that in Prem Sing's case it was held that, at best, the maximum of the power that can be recognized in the authority is to fill up such additional posts that could have been anticipated to fall vacant upto the time of completion of the selection process, provided sufficient justification exists to permit such a departure. In Prem Singh's case, the Apex Court, therefore, upheld the excess appointment to the extent of such anticipated vacancies, which were not taken into account at the time when the advertisement was issued and additionally in the peculiar facts of the case, the vacancies which had occurred on account of death, were also held to have been validly filled up on the basis of the recruitment process already completed. Another case cited at the Bar, i.e., the case of State of Bihar and Ors. v. Secretariat Assistant Successful Examinees Union 1986 and Ors. reported in (1994) 1 SCC 126 may be taken note of. In the aforesaid case, an advertisement was issued in the year 1985 inviting applications for the posts of Assistants falling vacant up to the end of the calendar year 1986. The number of vacancies, however, was notified on August 25th, 1987 and the examination was held in November, 1987. The result was published in July, 1990. After the initial lot of 309 candidates were appointed o ther candidates, who were empanelled, moved the Patna High Court and the Hon'ble Patna High Court directed the State to fill up all vacancies arising up to the year 1991. In an appeal carried to the Apex Court by the State of Bihar, the Apex Court while maintaining the appointments made against the vacancies occurring up to the last date of the calendar year following the order of announcement of vacancies, i.e., 31.12.1988, interfered with the order of the Patna High Court directing appointment to be made against vacancies occurring up to the year 1991. 13. 13. The decisions discussed above clearly point out that though the State would not be powerless to make appointment against additional vacancies occurring subsequent to the selection provided good grounds exist for exercise of such power, the Courts have been vigilant and cautious in drawing the line where the exercise of such powers must come to an end. Appointment in excess of vacancies advertised has the effect of infringing the rights of persons not before the Court as well as the rights of the unsuccessful candidates to compete against the vacancies arising subsequently. At the same time regard must be had to administrative compulsions that may require the State to depart from the normal rule. The endeavour of the Court, therefore, has always been to strike the right balance and permit departures only when the facts and circumstances would justify such departures. In the instant case, against the 112 posts advertised, in the first lot, 174/169 appointments, were made. The materials on record make it clear that the excess vacancies filled up constituted the additional vacancies which had occurred upto that point of time. The aforesaid 174/169 appointments have not been challenged and therefore, this Court would not be called upon to express its opinion on the appointments made in excess of the 112 notified vacancies. But to resort to the same recruitment process to fill up the next lot of 84/76 vacancies which had occurred thereafter and up to the date on which approval to make the said appointment was sought, i.e., 20.12.2000, would stand altogether on a different footing. To approve the aforesaid course of action taken by the State would amount to an implied approval of the Court to the right of the State to persist with a completed selection process, in perpetuity. The State cannot be conferred any such wide power to continue to operate a select list indefinitely and to make appointment against posts falling vacant from time to time merely because a select list is available and in the comprehension of the State, filling up of the vacancies is required. Any such recognition would be a complete negation of the rights of all such persons who may have been eligible to seek employment against such additional vacancies. No amount of compulsion and justification on the part of the State to act on a select list indefinitely can have judicial approval. Any such recognition would be a complete negation of the rights of all such persons who may have been eligible to seek employment against such additional vacancies. No amount of compulsion and justification on the part of the State to act on a select list indefinitely can have judicial approval. If posts have fallen vacant and the select list has been operated to the extent of the posts advertised as well as additional vacancies that had occurred to the extent permissible, as noticed above, the State must re-advertise the posts and resort to a fresh selection process. In the present case, no justification and compulsion on the part of the State in filling up 84/76 additional vacancies is forthcoming; not that any such justification would have helped the State as the 84/76 vacancies had admittedly occurred subsequent to the finalisation of the selection process. To a pointed query by the Court, Mr. M. Bhuyan, learned Counsel for the Respondents has submitted that the 84 vacancies in question constituted the entire of the unfilled posts in the cadre of Sub Inspector, which cadre is stated to be over 2500 strong. Even if the compulsions, as orally submitted, are to be considered by the Court the irresistible conclusion that has to be reached is that no "emergent and extraordinary situation" as visualized in Prem Singh's case (supra) had prevailed in the present case at the relevant point of time. That the appointments were made with the approval of the SLEC, a fact repeatedly emphasized by Mr. M. Bhuyan, learned Counsel for the Respondents would hardly alter the situation. The approval of the SLEC is only to fill up the vacant posts; the manner thereof must be as contemplated in law. For all the aforesaid reasons, this Court is unable to hold that the actions of the state in filling up the 84/76 posts on 1.3.2001 by the Respondents Nos. 13 to 75 and other persons is valid and authorized in law. 14. There is one further question raised by the rival contentions advanced that will require an answer from the Court not only to determine the question as to whether the appointment of 84/76 persons is in accordance with the correct determination of the inter se merit of all the candidates but also to enable the Court to decide on the eventual relief that has to be afforded to the parties. 15. 15. Was the physical test intended to be a mere condition of eligibility or did the same have a competitive element like the other two ingredients of the selection, i.e., written test and oral interview? The terms of the advertisement and the instructions contained in the WT Message dated 17.4.98 brought on record by the writ Petitioner by way of additional pleadings, fairly indicates that in the ultimate selection, the performance in the physical test was required to be taken into account in determining the position of a candidate in the select list. In the aforesaid WT Message dated 17.4.98, all the District Superintendents of Police were informed that the performance of each candidate in the different facets of the physical test are required to be measured and recorded. The fact that there was a separate medical test in which a candidate had to qualify in addition to the physical test would lend further support to the above conclusion. In fact, all arguments to the contrary would stand closed by the action of the authority, as demonstrated by the records produced, that the physical test consisted of several different components like high jump, long jump, 100-meter race etc. and separate marks were awarded under each head. In this manner a total of 35 marks were assigned to the Physical test and in determining the inter se merit of the 84/76 appointed candidates, the marks secured by them in the physical test were added to the marks obtained in the written test and the oral interview. The records produced would further go to show that out of 84/76 persons appointed, the marks secured in the physical test varied between 7 to 27. Surely, if the physical test constituted a competitive component of the selection process, calling the 84/76 persons for the physical test on the basis of the marks secured by them in the written test and oral interview and in ignoring the Petitioners was fatal. All the candidates were not judged by a uniform process; those appointed and those left out were assessed by two different yardsticks; discrimination, therefore, is writ large. All the candidates were not judged by a uniform process; those appointed and those left out were assessed by two different yardsticks; discrimination, therefore, is writ large. The possibility of the Petitioners, who were not appointed being placed higher than those eventually appointed, had the Petitioners also been assigned marks in the physical test cannot be ruled out, particularly, when the records produced reveal that the difference of the total marks secured by the candidates in the written test and oral interview was exceedingly small. Illustratively, note maybe taken of the fact that not only a large number of candidates secured the same marks, the first of the 84 candidates called for the physical test had secured 147 marks in the written test and oral interview whereas the last candidate out of the group of 84/76 called for the physical test had secured 146 marks. The Petitioner in WP(C) 628/01, who secured the 750th position, secured 124 marks, i.e. a difference of only 22 marks in comparison to the last of the candidate appointed. The possibility of an entirely different picture emerging, if the Petitioners have been called for the physical test, therefore, looms large. For the aforesaid reasons, this Court has no hesitation in reaching the conclusion that the fundamental rights of the Petitioners under Articles 14 and 16 of the Constitution have been infringed by the procedure adopted. The yardstick applied did not result in a correct determination of the inter se merit of all the candidates for the purpose of securing appointment. 16. Much argument has also been advanced on behalf of the Respondents that even if this Court is to hold that the appointments in question are illegal, the same should not be disturbed on equitable grounds. Equity must not be equated with compassion Equitable principles must emanate from facts which by themselves are unusual and peculiar. A balance has to be struck and the Court must be cautious to ensure that its endeavour to do equity does not amount to judicial benevolence or acquiescence of established violation of fundamental rights and the principles of Rule of law. A balance has to be struck and the Court must be cautious to ensure that its endeavour to do equity does not amount to judicial benevolence or acquiescence of established violation of fundamental rights and the principles of Rule of law. The entry of the 84/76 Sub Inspectors of Police into service, being during the pendency of WP(C) 628/01 and in the facts noticed and there being no extenuating circumstances except service rendered over a period of time and the need of such persons to continue to be employed, this Court is unable to recognize any right that should be protected by application of equitable principles. 17. For all the aforesaid reasons, this Court is unable to save any of the appointments of the 84/76 Sub Inspectors of Police made on 1.3.2001. All such appointments, therefore, shall stand interfered with. In view of the conclusion reached, no relief to the Petitioners by directing consideration of their cases afresh, will also be possible. However, in the totality of the facts and circumstances of the case, it is considered appropriate to direct that in the fresh selection process that will now have to be initiated by the State, if any of the candidates, who had taken part in the earlier selection process, opts to apply for the posts that maybe advertised, suitable relaxation of age, if required will be made by the authorities. 18. All the Writ Applications shall stand ordered accordingly.