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2005 DIGILAW 576 (GAU)

Lai Puroik v. State of Arunachal Pradesh

2005-08-09

BIPLAB KUMAR SHARMA

body2005
JUDGMENT B.K. Sharma, J. 1. This writ petition has been filed by 16 group "D" employees working under the Respondents. They have made a prayer for cancellation of alleged illegal appointments purportedly made after the expiry of the panel list prepared for the purpose. Further prayer made in this writ petition is to conduct fresh selection for promotion to group "C" cadre from group "D" cadre as per Recruitment Rules. 2. The fats are not in dispute. As per the Recruitment Rules with which we are concerned in this proceeding, the post of LDC in the department is to be filled up 90% by direct recruitment and 10% by promotion from amongst the Group "D" employees. It is this 10% quota of promotion with which the present proceeding is concerned. The Recruitment Rule is called the Arunachal Pradesh Secretariat Subordinate Rules, (for short the "1989 Rules"). Rule 9 of the 1989 Rules prescribes the percentage of reservation for promotion and direct recruitment to the post of LDC. Rule 11 of the 1989 Rules lays down the procedure for preparation of the select list. As per Rule 13 of the 1989 Rules, the select list shall ordinarily be in force for 12 months unless it is reviewed or revised under Rule 12. The requirement of Rule 12 is that the Selection Committee/Departmental Promotion Committee shall meet at least once a year and review and revise the select list every year. Thus on both counts, the validity of the select list is normally for the period of 1 year or its expiry in absence of any review, the select list cannot be operated beyond the period of 1 year. 3. In the instant case, the selection committee conducted the test for appointment to the post of LDC against the 10% quota of promotion from amongst the Group "D" employees and the select list was published vide Annexure-C, communication dated 13.4.2000. The select list was prepared in order of merit containing the names of 16 (sixteen) candidates. However only 4 (four) candidates could be recommended for appointment against the existing 4(four) vacancies in the post of LDC. Thus the remaining 12 candidates will have to be treated as wait listed candidates. 4. There is no dispute that all the 4(four) vacant posts for which the selection was conducted have been filled up. However only 4 (four) candidates could be recommended for appointment against the existing 4(four) vacancies in the post of LDC. Thus the remaining 12 candidates will have to be treated as wait listed candidates. 4. There is no dispute that all the 4(four) vacant posts for which the selection was conducted have been filled up. If that be so, the select list forwarded by Annexure "C", communication dated 13.4.2000, got exhausted with the appointment of 4(four) candidates in order of merit against 4(four) vacancies, for which the selection was conducted. There was or is no question of further extension of the select list, once the purpose for which the select list was prepared is achieved. Even otherwise also, the validity of select list being only for a period of one year, in absence of any review or revision of the same as per requirement of Rule 12 of the 1989 Rules, the same cannot be made operative beyond the period of 1 year. However altogether different consideration arises in this case as to the validity of the select list during the period in which certain appointments were made making the challenge to which the instant writ petition has been filled. There is no dispute that the select list was prepared to fill up 4(four) existing vacancies. All the 4(four) vacancies were filled up during the validity period of the select list. Once the propose was achieved by appointing the 4(four) selected candidates in order of their merit against the 4(four) existing vacancies, there was no question of further extension of the select list for any further appointment, against future vacancies. 5. It appears that some of the selected candidates made representation before the official Respondents to extend the validity of the list and the same was rejected by Annexure "D" communication dated 30.5.2003. The approach adopted by the Respondents in the given circumstances was the right approach. Firstly, because the list had already spent its force with the appointments of 4(four) candidates against the existing 4(four) vacancies and secondly, even otherwise also, with the expiry of 1 year, the validity of the select list got expired. 6. It is submitted at the Bar that altogether six more appointments have been made even after the expiry of the select list. These appointments in excess of the existing vacancies for which the select list was prepared are under challenge in this proceeding. 6. It is submitted at the Bar that altogether six more appointments have been made even after the expiry of the select list. These appointments in excess of the existing vacancies for which the select list was prepared are under challenge in this proceeding. The Respondents have made three of such appointees as party Respondents and the other three appointees are not before us in this proceeding. 7. Mr. R.H. Nabam learned Counsel for the Petitioners, in his persuasive pursuits submits that the whole action of the Respondents in resorting to the appointments in question even after the expiry of the select list is illegal and not sustainable in law. He submits that once the earmarked 4 vacancies were filled up, there was no question of further operating the panel, which needless to say has seriously affected the promotional aspects of the Petitioners. 8. Mr. B.L. Singh, the learned Senior Govt. Advocate, Arunachal Pradesh, submits that the select list having been extended from time to time, there was no illegality in making the appointments although the same was beyond the number of vacancies for which the selection was made. 9. Mr. I. Basar, learned Counsel, appearing for the private Respondents, forcefully submits that the private Respondents were appointed on promotion as LDC pursuant to inclusion of their names in the select list. He submits that at time of their appointments, other 3 (three) candidates who were also in the waiting list had already been appointed, and thus, a right had accrued to the private Respondents for similar treatment. The official Respondents having appointed them on that basis, there was no illegality in their appointments. 10. The private Respondents have filed their counter-affidavit controverting the assertion made by the Petitioners. The State Respondents have filled M.C. No. 88 (AP) 2005, seeking modification of the interim order passed by the Court on 21.6.2005 by which direction was issued to the Respondents to conduct fresh selection for the purpose of promotion of the group "D" employees to the cadre of LDC against 10% quota earmarked for them. In this miscellaneous application, the official Respondents have contended that presently there is no vacancy and accordingly there was no question of holding any fresh selection, however, they contend that they will hold selection as and when vacancy will arise in future. 11. Countering the above arguments made on behalf of official Respondents, Mr. In this miscellaneous application, the official Respondents have contended that presently there is no vacancy and accordingly there was no question of holding any fresh selection, however, they contend that they will hold selection as and when vacancy will arise in future. 11. Countering the above arguments made on behalf of official Respondents, Mr. Nabam, learned Counsel for the Petitioner, submits that the interim direction contained in the order dated 21.6.2005 does not call for any interference, inasmuch as, it cannot be said that there are no vacancies. Referring to the excess appointments made beyond the purview of the select list, he submits that by conducting fresh selection said vacancies should fill up. 12. I have given my anxious consideration to the submissions made by the learned Counsel for the parties. I have also considered the materials on record. As appointed out above, there is no dispute that no review or revision as envisaged under Rule 12 of the 1989 Rules was carried out by the State Respondents in respect of the select list. Such review is to be carried out every year. However, altogether a different consideration arises in the present proceeding. It stares on the face of it that the selection was conducted for 4(four) existing vacancies and the appointments were made against those vacancies. Once the appointments were made against the existing vacancies for which the panel was prepared, the list itself got exhausted and spent its force. Such a select list could not have been further operated by according extension to the list. As per Rule 13 of the 1989 Rules, the validity of the select list is also for 1 year. Thus on both counts, the list could not have been operated so as to fill up future vacancies. 13. In the case of Madan Lal and other v. State of Jammu and Kashmir, (1995) 3 SCC 486 , the Apex Court dealing with a similar question, as in the instant case, referring to its earlier decision held that the select list could not have been operated beyond the vacancies for which the list was prepared. 14. Similar view has been expressed in the case of State of U.P. and other v. Harish Chandra and other (1996) 9 SCC 309 . In that case even after expiry of the select list, the High Court concluded that the select list had not expired. 14. Similar view has been expressed in the case of State of U.P. and other v. Harish Chandra and other (1996) 9 SCC 309 . In that case even after expiry of the select list, the High Court concluded that the select list had not expired. A Mandamus was issued on that basis. The Apex Court held that the High Court was in error in issuing Mandamus on that basis. 15. The submission of Mr. Basar, learned Counsel for the private Respondents, that the private Respondents having been appointed on the basis of same earlier appointments from amongst the candidates in the waiting list, their such appointments cannot be disturbed, is not tenable in law. When the select list itself was exhausted, there was no question of any further appointments from that select list. If the submission made by Mr. Basar, is to be accepted, the same will give rise to further illegality and irregularities. It cannot be said, that if the private Respondents are deprived of their appointments, the same will lead to violation of Article 14 of the Constitution of India. Equality before law is a positive concept and cannot be enforced in negative manner. If the Respondents have committed the illegality in making appointments in excess from the list which had already spent its force, such appointments cannot be sustained by adopting the approach of negative equality. 16. The plea, of the Respondents relating to non-joinder of necessary parties, is also not equally tenable. Though all the 6(six) appointees are not represented in this proceeding, but at least 3 (three) of them are party Respondents in this proceeding. Further the State Respondents have also represented their case. 17. In the case A. Janardhana v. Union of India and other (1983) 3 SCC 601 , a similar plea did not find favour with the Apex Court. The Apex Court made the following observation: In this case, Appellant does not claim seniority over any particular individual in the background of any particular fact controverted by that person against whom the claim is made. The contention is that criteria adopted by the Union Government in drawing up the impugned seniority list are invalid and illegal and the relief is claimed against the Union Government restraining it from upsetting or quashing the already drawn up valid list and for quashing the impugned seniority list. The contention is that criteria adopted by the Union Government in drawing up the impugned seniority list are invalid and illegal and the relief is claimed against the Union Government restraining it from upsetting or quashing the already drawn up valid list and for quashing the impugned seniority list. Thus the relief is claimed against the Union Government and not against any particular individual. In this background, we consider it unnecessary to have all direct recruits to be impleaded as Respondents. 18. In the case of V.P. Srivastava v. State of M.P. (1996) 7 SCC 759 , the Apex Court noticing the similar plea in that case held that the Respondents Nos. 3 and 4 their successfully safeguarded the interest of the promotees and that the Tribunal erred in law in holding that non-inclusion of the affected parties was fatal to the proceeding. 19. In view of the above, I have no hesitation that the appointments made in favour of those appointees including the Respondents No. 4, 5, and 6, are illegal and liable to be set aside, which I accordingly do. The official Respondents shall now carry out fresh selection against the six(6) vacancies. They may also include such further vacancies which might have arisen during the pendency of this proceeding. The selection shall be conducted strictly in accordance with the rules. Till such selection is conducted and the appointments are made on the basis of such selection, the excess appointees shall be allowed to continue in their present promotional posts of LDC. However, their appointments shall be treated as ad hoc appointments and shall not confer any service benefit like seniority, etc. to them. While conducting the selection, the official Respondents shall also not give any weightage to such appointees merely because they have been promoted, which was per se illegal, meaning thereby that they will be treated at par with other Group-D employees for promotion to the cadre of LDC. 20. This Court, by interim order dated 21.6.2005 issued direction to the Respondents to conduct the selection within 30 days from the date of furnishing a certified copy of the order. The said period has already expired. However, considering the prayer made in the Misc. 20. This Court, by interim order dated 21.6.2005 issued direction to the Respondents to conduct the selection within 30 days from the date of furnishing a certified copy of the order. The said period has already expired. However, considering the prayer made in the Misc. Case No. 88 (AP) of 2005 filed by the official Respondents for modification/ alteration of the aforesaid order, I am of the considered opinion that now the process should be completed by the Respondents within 2 months from today. Till then the 6(six) appointees now required to be treated as ad hoc shall not be disturbed. The writ petition is allowed to the extent indicated above. No costs. Petition allowed.