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Gauhati High Court · body

2005 DIGILAW 317 (GAU)

Jharna Sarkar v. State of Tripura and Ors.

2005-04-19

T.VAIPHEI

body2005
1. In this writ petition, the petitioner is seeking the intervention of this court to direct the Government-respondents to appoint her to the post of Compositor reserved for Scheduled Caste on the basis of the select list prepared by the Selection Committee on 24.11.1995. 2. The case of the petitioner is that she passed the Madhyamik examination conducted by the Tripura Board of Secondary Education in the year 1981. Her date of birth is 11th January, 1961. She has 5 years of composition work in press. She registered her name in the Employment Exchange at Agartala in 1981 and her registration number is W-2960/81 dated 21.11.1981. The Inspector General of Prisons by the letter dated 18.11.1995 invited the petitioner to appear before the Selection Board on 24.11,1995 in the office of the respondent No. 2 for selection to the post of Compositor in the pay scale of Rs. 970-24... Her name was apparently sponsored by the Employment Exchange. 3. According to the petitioner, on 24.11.1995, interview of all the candidates for the posts of compositor and Machineman of the Jail Department under Special Recruitment Drive for Schedule Castes/Scheduled Tribes were conducted by the same Selection Board. The Selection Board comprised of the respondent Nos. 5,6, 7 and 8. For the two posts of Compositor, one is reserved for S.T. while the other is reserved for S.C. It is the case of the petitioner that she was the only Madhyamik passed among the candidates belonging to the Scheduled Castes and was quite confident of being selected. According to the petitioner, she was told by the Selection Board on that day that she was recommended for appointment to the said post against the reserved S.C. post. However, when the result of the interview was not published even after the lapse of more than two weeks, she approached this court in C.R. No. 595 of 1995. The writ petition was dismissed on 31.5.1996 as premature when the learned Government Advocate informed this court that the process was still going on and that the petitioner could wait for publication of the select list, which would be published at the appropriate time. 4. It is the further case of the petitioner that even after the lapse of considerable period of time, the result of the interview was not published. 4. It is the further case of the petitioner that even after the lapse of considerable period of time, the result of the interview was not published. In the meantime, she came to learn that Shri Gautam Debbarma who appeared before the same Selection Board for the post of Machineman was given appointment. According to the petitioner, upon inquiry, she came to learn that the respondent No. 9 was given interview card on the date of interview, i.e., 24.11.1995 for the post of Compositor at the instance of the Minister of Jail Department, the respondent No. 10, even though he was not sponsored by the Employment Exchange. It is submitted by the petitioner that this is in contravention of the Memorandum No. F.I.(93)-D/ESMP/ESTT/79/1552 dated 13th May, 1993 of the Department of Labour and Employment. The allegation of the petitioner is that Shri Debabrata Debbarma as S.T. Candidate and herself as S.C. candidate were selected by the Selection Board for appointment to the two posts but the result was not published due to the non-selection of the respondent No. 9. The petitioner annexed with the writ petition a photocopy of the unsigned minutes of the Selection Board dated 24.11,1995 in support of her contention, which is at Annexure. On further inquiry, according to the petitioner, she came to learn that in the interview, she scored 7(seven) marks out of the total marks of 10(ten) while the other S.C. candidates, namely, Narayan Das and the respondent No. 9 secured 5(five) marks and 6(six) marks respectively. It is, thus, contended that had the respondent No. 9 performed better than the petitioner, he would have been definitely appointed to the post of Compositor. 5. Aggrieved by the conduct of the respondents, the petitioner made a representation to the Chief Secretary highlighting the aforesaid facts and irregularities/illegalities committed by the respondents and to use his good office for immediate publication of the select list and then to appoint her to the post of Compositor. The representation was apparently forwarded to the respondent No. 2 for necessary action since the matter related to the Jail Department. However, the respondent No. 2 in his letter-dated 18.12.1996 informed the petitioner that the outcome of the interview dated 23.11.1996 (?) for selection to the post in question had not been accepted by the Government. The representation was apparently forwarded to the respondent No. 2 for necessary action since the matter related to the Jail Department. However, the respondent No. 2 in his letter-dated 18.12.1996 informed the petitioner that the outcome of the interview dated 23.11.1996 (?) for selection to the post in question had not been accepted by the Government. At this stage, it may be noted that the respondent No. 2 belatedly issued the corrigendum dated 21.2.1997 clarifying that the dale "23rd November, 1996" should be read as "the 24th November, 1995" which was caused by clerical error (Annexure R-5 to the counter-affidavit). It is, thus, stated by the petitioner that the respondents called the interview as a part of the time bound Special Recruitment Drive for filling up the vacancies reserved for the S.C./S.T. in the terms of the Memorandum No. F.23 (6)-G.A./83 dated 14.8.1995 which was extended up to 14.8.1996 vide Memorandum No. F. 23(6)-GA/93(L) dated 21.6.1996 and that the non-appointment of the petitioner when she was selected for the post by the Selection Board or when there was available candidate among the S.C. for the said post is contrary to the object and purpose of the Special Recruitment Drive initiated by the Government. 6. The petitioner also points out that the Committee to review for SC/ST progress under the Special Recruitment Drive held on 28.10.1995 and 30.10.1995 had recommended that in case of availability of SC/ST candidates, the reserved post should invariably be filled up (both promotion and direct recruitment) by 25.11.1995 and that even if no regular appointment could be given to them after following all the required formalities, appointment should be made on ad hoc basis pending regularization of the appointments subsequently through due course and procedure. It is, thus, contended by the petitioner that denial of appointment to her on the said post is, viewed at from every angle, arbitrary, illegal and also against the spirit and object of the Special Recruitment Drive initiated by the Government itself. It is, thus, contended by the petitioner that denial of appointment to her on the said post is, viewed at from every angle, arbitrary, illegal and also against the spirit and object of the Special Recruitment Drive initiated by the Government itself. It is also specifically alleged and pleaded by the petitioner that she was told by the respondent No. 9 (Sankar Das) on the date of interview that on the body of his application, the Minister of Jail Department, the respondent No. 10, directed to the respondent No. 2 to allow him to appear before interview Board and that from this, she came to be believed that it was because of the non-recommendation of the respondent No. 9, that the select list dated 24.11.1995 (Annexure-19) was never published. She also alleges that publication of the select list was deliberately delayed for an indefinite period so that in course of time, other candidates would forget the matter thereby enabling the Government-respondent to appoint their favourites to the vacant posts. It is, thus, averred by the petitioner that the non-publication of the said select list dated 24.11.1995 (Annexure-19) is a device to nullify the recommendation of the Selection Committee in order to deprive her of appointment to the post of Compositor. The petitioner also points out that she was interviewed on 24.11.1995 by the four members of the Selection Committee in the office of the Prison Directorate, Agartala and that the candidates for both the posts of Compositors and Machineman were interviewed by the same Selection Board on 24.11,1995 in the office of the Prison Directorate, Agartala. It is, therefore, contended that the non-publication of the said select list and her non-appointment to the post of Compositor is ex facie mala fide, arbitrary and illegal. The case of the petitioner has been extensively referred to herein since allegations of mala fides were made against the respondents. 7. The writ petition is contested by the Government-respondents. But the respondent Nos. 6, 7, 8, 9 and 10 have not filed their counter-affidavits nor are they represented before this court at the time of hearing even though notices were properly served upon them. In their counter-affidavit, the Government respondents state that the selection process for the posts of Machineman and Compositor were made separately. The Government-respondents do admit that the Selection Board comprised of the respondent Nos. In their counter-affidavit, the Government respondents state that the selection process for the posts of Machineman and Compositor were made separately. The Government-respondents do admit that the Selection Board comprised of the respondent Nos. 5, 6, 7 arid 8 and that the meeting of the members of the Selection Board was fixed for 24.11.1995. But it is asserted by the Government respondents that in that meeting, the respondent Nos. 5 and 7 could not attend the said meeting as they had to attend other urgent works at that time, which was evident from the fact that they did not sign the minutes of the Selection Board. It is denied in the counter-affidavit that the petitioner was never apprised by the Selection Board about its recommendation. It is asserted by the answering respondents that interview for the post in question was cancelled (for administrative reasons) with the approval of the Government vide the notice dated 30.11.1995, which was displayed in the Notice Board (Annexure- R/C) and that at the same time, the concerned Department contemplated to make some changes in the Recruitment Rules for bringing efficiency to the post of Compositor and the same was under process. According to the Government respondents, the respondent No. 9 (Sankar Das) was eligible for the post and was accordingly issued the interview card but nobody including him was selected due to cancellation of the interview by the Government. The answering respondents state that the allegation of the petitioner in paragraph No. 13 of the writ petition regarding the marks obtained by her are out of track (whatever that may mean) since confidential matters such as marks, performance etc. maintained in respect of selection process are not for publication among the candidates. The respondents further state that the result of selection for the post in question was not published due to the reason of cancellation of the interview, which was informed to her by the letter dated 18.12.1996 with the corrigendum-dated 21.1.1997, It is not disputed by the answering respondents that the Special Recruitment Drive for clearing the vacant post reserved for SC/ST was going on, and was extended till 31.3.1997. It is pointed out by the answering respondent, that the recommendation for the post of Machineman was made by all the four members of the selection Board and as the same being valid, the said Gautam Debbarma was appointed to the post of Machineman but in the case of the petitioner for the post of Compositor, the minutes of the Selection Board was incomplete due to the absence of two members which resulted in the cancellation of the whole selection process. It is, thus, the case of the Government respondents that though the Selection Committee for the posts of Machineman and Compositor was the same, their selection process was different since the Recruitmtut Rules for the two posts are different. It is, therefore, submitted that the writ petition has no merit and is liable to be dismissed. 8. While it is trite that mere inclusion in a select list does not confer any right and mandamus cannot be issued, it is an equally settled position of law that court can interfere when an administrative authority takes a decision erroneously or mala fides. A writ court has the power and, indeed, the duty to examine as to whether the authority vested with the power has paid attention to or taken into account the circumstances, events or matters wholly extraneous to the purpose for which the power was vested or whether the action was taken mala fide for purpose of promoting nepotism/favouritism. If the act is in excess of the power granted or is an abuse or misuse of power, the matter is capable of interference and rectification by the court. It is within the above parameters, which have been settled in a catena of decisions rendered by the Apex Court that I now propose to examine the controversy involved in this writ petition. 9. It is an admitted position of the parties that the petitioner belongs to Scheduled Caste ; she passed Madhyamik examination; there was at the relevant time Special Recruitment Drive for clearing the vacancies reserved for S.C./S.T. as initiated by the Government of Tripura; she was invited for interview being held by the Selection Committee on 24.11.1995 for appointment to the post of Compositor against S.C. •reserved post in the course of Special Recruitment Drive referred to earlier. The first point for determination in the instant case is whether the petitioner was included in the select list prepared by the Selection Board for the post of question. Drawing my attention to the contents of Annexure-11 to the writ petition, which is the true copy of the minutes of the said Selection Committee, Mr. C.S. Sinha, the learned counsel for the petitioner, submits that the petitioner along with one Debabrata Debbarma were recommended for appointment to the said posts as S.T. and S.C. Candidates respectively in order of merit for appointment. According to the learned counsel for the petitioner, the said document genuinely reflects the correct factual position of the minutes of the Selection Board. Ridiculing the stand taken by the answering respondents that the select list was not prepared since two members of the Selection Committee would not attend the meeting and the interview had to be cancelled, the learned counsel contends that the fact that there was the select list could be gathered from the following circumstances: - (i) the learned Government advocate in his statement before this court in course of hearing of C.R. No. 224 of 1996 had stated that the process was going on and that the petitioner could wait for publication of the selection list; (ii) the contents of the minutes of the Selection Board dated 25.11.1995 at Annexure-11 are never denied or disputed by the answering respondents or any of the members of the Selection Committee who were personally impleaded as parties to this case ; (iii) the specific averment made by the petitioner that she was interviewed on 24.11.1995 by the four members in the Interview Board in the office of Prison Directorate, Agartala has not been denied or disputed by the respondent Nos, 5, 6, 7 and 8; in fact, no affidavit was filed by any of them ; (iv) both the posts of Machineman and the post of Compositor were interviewed by the same Selection Board held on 24,11.1995 in the office of the Prison Directorate, Agartala; if the respondent No. 5 had attended the Selection Committee meeting for the post of Sub-Jailor on 24.11.1995, how could he not attend the meeting of the Selection Board for the post of Machineman held on 24.11.1995, the minutes whereof was signed by him vide Annexure-19 ? The learned counsel prayed that the file relating to the selection process for the posts of Machineman and Compositor be called for. Mr. S. Chakraborty, the learned counsel for the respondents vehemently denies that the select list for the post of Compositor was ever prepared by the Selection Committee and reiterated the stand taken by the answering respondents in the counter-affidavit. 10. On 13.4.2005, the learned counsel for the State-respondents placed before me the relevant file. Aperusal of the file does not indicate in any manner that the interview for the post of Compositor was not held on 24.11.1995 or that two members of the Selection Committee to interview candidate for the said post did not attend the meeting or that the minutes of the Selection Committee was incomplete due to non-signing of the minutes by the two members. The relevant noting was done on 25.11.1995 by no less a person than the respondent No. 5, who was alleged to have been absent in the meeting. He observed that: - ".... But keeping in view the recent decision of the Review Committee under the Special Recruitment Drive to clear all the Back log vacancies of S.C7S.T. candidates, the Department decided to hold interview on the basis of the applicants sponsored by the Employment Exchange and accordingly issued to the sponsored candidates for appearing before the Selection Board on 24.11.1995. But only 2 (two) S.C. candidates out of 5 (five) and 4 (four) S.T. candidates out of 9 (nine) have appeared before the Selection Board. Moreover, it is observed that all candidates except one S.C. candidate do not qualify for recruitment to the post of Compositor in accordance with the real spirit of the R.R. (Page No. 120/C) laid down for the purpose. Hence, it is not possible to select better and suitable candidates from their list of candidates sponsored by the Employment Exchange." 11. From the paragraph extracted above, the stand taken by the answering respondents that the interview could not be held due to the absence of the respondent Nos. 5 and 6 is difficult to believe. On the contrary, the inference is irresistible and the conclusion inescapable that the interview was actually held on 24.11.1995 and a select list recommending the case of the petitioner was prepared by committee. To hold otherwise would be illogical or irrational. 5 and 6 is difficult to believe. On the contrary, the inference is irresistible and the conclusion inescapable that the interview was actually held on 24.11.1995 and a select list recommending the case of the petitioner was prepared by committee. To hold otherwise would be illogical or irrational. The aforesaid paragraph also fortifies the contention of the petitioner that she was the only qualified candidate among the S.C. candidates and that she was accordingly recommended for appointment to the post in question. If the respondent No. 5 did not attend the meeting of the Selection Committee on that day, he could have recorded the same in the notes prepared by him as extracted above. As noticed earlier, he has been personally impleaded as the respondent No. 5 as official respondent No. 2 but no affidavit has been filed by him controverting the averments of the petitioner that she was interviewed by the four members of the Selection Committee which necessarily included him and that the interview was held at his office. The Joint Secretary who filed the affidavit-in-opposition does not have personal knowledge of the meeting of the Selection Committee held on 24.11.1995 and, as such, the denial made by him in respect of the said averments of the petitioner has no value and cannot be acted upon. In view of my above findings, it is inevitable to hold that the Minutes of the meeting of the Selection Committee purportedly held on 24.11.1995, which is at Annexure R/B, and which was alleged to have been signed only by the respondent Nos. 7 and 8 is a false document, manufactured by or at the behest of the answering respondents to set at naught the select list validly prepared by the respondent Nos. 5,6,7 and 8 and to deny appointment to the petitioner. Resultantly, Annexure R/B is hereby declared as a non-existent document and has no force in the eye of law and cannot be given effect to by the respondent in any manner and for any purpose whatsoever. 12. The next question, which falls for consideration, is whether on the proven facts and circumstances of the case, the petitioner can be denied of appointment. The law is no longer res integra that a candidate included in the select list has no indefeasible right to appointment for the post advertised. 12. The next question, which falls for consideration, is whether on the proven facts and circumstances of the case, the petitioner can be denied of appointment. The law is no longer res integra that a candidate included in the select list has no indefeasible right to appointment for the post advertised. It is always upon to the Government to make the appointment or not. Even if there is any vacancy, it is not incumbent upon the Government to fill up the same. But the appointing authority must give reasonable explanation for the non-appointment. Once it is held that the petitioner was duly selected by the Selection Committee on 24.11.1995 for appointment to the post of Compositor, the reason given by the answering respondents for not appointing the petitioner due to incomplete minutes of the Selection Committee cannot be accepted. However, it is the further contention of the answering respondents that the selection process had to be cancelled for administrative reason with the approval of the Government on the ground that some changes in the recruitment rules was still under process. On going through the files, there is no evidence to show that there was or has been a policy decision to amend the recruitment rules. All that can be said in favour of this contention is that the respondent No. 2 had proposed amendment of the recruitment rules to clarify or specify the qualification relating to "School Final passed or equivalent qualification....". But this proposal was not approved by the concerned Minister at note 68. In the face of this material on record, no reason, not to speak of valid reason, could be shown by the answering respondent for not acting upon the recommendation of the Selection Committee for the appointment of the petitioner. 13. On the other hand, it is the specific case of the petitioner that the respondent No. 9, who was not sponsored by the Employment Exchange, was given the Interview Card on the day of interview itself at the instance of the respondent No. 10, the Minister of Jail Department and that it was because of the non-recommendation of the name of the said respondent by the Selection Committee that the select list in question was kept frozen and no appointment made in favour of the petitioner. Had the said respondent been recommended for the post, according to the petitioner, the select list would have been published without any loss of time. The petitioner was thus led to believe that the select list was deliberately withheld with the oblique motive and mala fide intention of depriving her of her right to be appointed to the post in question on the basis of the select list and to accommodate the respondent No. 9. As already observed, neither the respondent No. 9 nor the respondent No. 5 came forward to controvert those allegations. That apart, the noting in the file at No. 65 unambiguously indicates that the interview card was issued to the respondent No. 9 on 23.11.1995 at the desire of the respondent No. 10 thereby supporting the allegation of the petitioner. 14. The law regarding the plea of mala fides is no longer res integra. The legal position was reiterated by the Apex Court in Indian Railway Construction Co. Lid. v. Ajay Kumar, (2003) 4 SCO 579 at paragraph 23 as under : - "23. Doubtless, he who seeks to invalidate or nullify any act or order must establish the charge of bad faith, an abuse or a misuse by the authority of its powers. While the indirect motive or purpose, or bad faith or personal ill will is not to be held established except on clear proof thereof, it is obviously difficult to establish the state of a man's mind, for that is what the employee has to establish in this case, though this may sometimes be done. The difficulty is not lessened when one has to establish that a person apparently acting on the legitimate exercise of power has, in fact, been acting mala fide in the sense of pursuing an illegitimate aim. It is not the law that mala fides in the sense of improper motive should be established only by direct evidence, But it must be discernible from the order impugned or must be shown from the established surrounding factors which preceded the order, If bad faith would vitiate the order, the same can, in our opinion, be deduced as a reasonable and inescapable inference from proved facts. (See S. Partap Singh v. State of Punjab). It cannot be overlooked that the burden of establishing mala fides is very heavy on the person who alleges it. (See S. Partap Singh v. State of Punjab). It cannot be overlooked that the burden of establishing mala fides is very heavy on the person who alleges it. The allegations of mala fides are often more easily made than proved, and the very seriousness of such allegations demands proof of a high order of credibility. As noted by this court in E.P. Royappa v. State of T.N. courts would be slow to draw dubious inferences from incomplete facts placed before it by a party, particularly when the imputations are grave and they are made against the holder of an office which has a high responsibility in the administration." 15. Applying the above principles to the facts by this case, the plea of mala fides can be said to have been established by the following facts and surrounding circumstances : - (1) The respondent No. 9 was issued the interview card only on or just before the day of the interview at the instance of the Minister of Jail, the respondent No. 10. (2) The grounds for cancellation of the interview held on 24.11.1995 are found to be non-existent. (3) The allegations made by the petitioner that the result of the select list was not published because of the non-selection of the respondent No, 9, the favourite of the Minister of Jail, has not been controverted or challenged by the said respondents even though notices were duly served upon them. (4) Though paragraph 6 of the representation made by the petitioner to the Chief Secretary (annexure 12) clearly mentioned that the respondent No. 9 and the other S,C. candidate were not qualified, which remains uncontradicted, no attempt was made by the answering respondents to give ad hoc appointment to the petitioner, who happens to be the only qualified candidate, in terms of the decision dated 30.10.1995 of the Committee to review for SC/ST progress made under the Special Recruitment Drive, even if it was found that regular appointment could not be made to her. 16. The last point for consideration in this writ petition is the nature of reliefs, which can be granted on the facts and circumstances of the case. The relief claimed by the petitioner is, among others, publication of the select list prepared by the Selection Committee held on 24.11.1995. No select list recommending the petitioner for appointment to the post of Compositor is available from the record. The relief claimed by the petitioner is, among others, publication of the select list prepared by the Selection Committee held on 24.11.1995. No select list recommending the petitioner for appointment to the post of Compositor is available from the record. On the other hand, a copy of the incomplete minutes of the Selection Committee dated 24.11.1995 has been held to be a false and fabricated document. Consequently, the question of directing the answering respondents to publish the said select list does not arise. However, in view of my finding that the petitioner was duly recommended by the Selection Committee and that the recommendation wac not acted upon. For non-existent, mala fide and irrelevant grounds, the reliefs claimed have to be necessarily moulded for the ends of justice. Therefore, I allow this petition with the following directions and orders : - (1) The letter No. II-582/IGP/83/6355/56 dated 18.12.1996 is hereby quashed. (2) The minutes of the Selection Committee dated 24.11.1995 at Annexure R/B to the counter-affidavit is hereby declared as non­existent. (3) The State respondents, particularly the respondent No. 2, are directed to appoint the petitioner to the post of Compositor against the post reserved for S.C. subject to police verification and of her fulfilling other formalities required by the rules in force within a period of two months from the date of receipt of this judgment. (4) The appointment shall be with effect from the date on which Gautam Debbarma was appointed to the post of Machineman. (5) The petitioner shall be given notional benefits of seniority and increment but without actual monetary benefit. The parties are directed to bear their own costs.