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2006 DIGILAW 1129 (GAU)

Nicholas Daimari v. State of Assam and Ors.

2006-12-20

B.K.SHARMA

body2006
1. Heard Ms. B. Choudhury, learned counsel for the petitioner. Also heard Mr, D. Das, learned Standing Counsel, B.T.C. as well as Ms. R. Deka, learned Standing Counsel, P.W.D. 2. This writ petition is pending since 2002 and the prayer made in the writ petition is for a direction to the respondents to appoint the petitioner to the post of Lower Division Assistant under Udalguri and Orang P.W.D. Sub Division which is under the Bodoland Territorial Council. 3. The petitioner was selected for appointment as Lower Division Assistant. As per the selection held on 17.2.1999, the petitioner was placed at SI. No. 1 and, thus, it was his expectation that he would be appointed having been selected as the first nominee. By Annexure-8 communication dated 24.1.2000 made by the then officer in charge. Personnel Branch and Public Relation Officer, Bodoland Autonomous Council to the Executive Engineer, Public Works Department, Mangaldoi N.T. Road Division, Mangaldoi, and the approval of the B.A.C. was communicated for appointment of the petitioner along with another selected candidate. In response to the said letter dated 24.1,2000, the Executive Engineer wrote a letter dated 29.4.2000 to the Chief Engineer, P.W.D. (Roads), Assam seeking necessary instructions for appointment of the petitioner along with other candidates. In turn, the Addl. Chief Engineer, P.W.D. (Roads) addressed the Annexure 10 letter dated 22.6.2000 to the Secretary to the Government of Assam in the Public Works Department seeking the decision in the matter. 4. The communications referred to above having not yielded any result, the petitioner made the Annexure 11 representation to the Chief Engineer but the same was also not attended to. Situated thus, the petitioner approached this court by filing the writ petition on 31.8.2002 with the aforesaid prayer. In spite of service of notice, none of the respondents responded to the writ petition in time. By order dated 28.9.2006, this court accepting the request made by the learned Standing Counsel, P.W.D., adjourned the matter to 6.11.2006. In the order, it was noted that on 21.9.2002, the Executive Engineer, PWD Orang Road Division intimated the learned Standing Counsel that the matter relating to appointment of the petitioner was under active consideration of the department and the decision was likely to be taken shortly. Thus, even on 28.9.2006, the matter relating to appointment of the petitioner was under active consideration. 5. Thus, even on 28.9.2006, the matter relating to appointment of the petitioner was under active consideration. 5. By letter dated 21.9.2002, the Executive Engineer requested the Under Secretary, B.T.C. to accord necessary approval from B.T.C's end towards appointment of the petitioner as Lower Division Assistant. It appears that even this letter had not yielded any result. 6. An affidavit-in-opposition has been filed by the respondent No, 5, i.e., the Principal Secretary, BAG only on 18.12.2006. In the affidavit, the facts stated in the writ petition have been broadly admitted. The selection of the petitioner for the post of Lower Division Assistant has not been denied. Referring to the letter dated 21.8.2006 (Annexure-I to the counter affidavit) by which the Executive Engineer, P. W.D. sought for approval of the B.T.C. for appointment of the petitioner and another, it has been stated in the affidavit that since the list has already expired, in absence of any extension of the validity of the same, the B.T.C, is not in a position to accord approval. Thus, in a nutshell, it is the case of the B.T.C. that since the list has expired, no action could be taken on the basis of the list. However, the B.T.C. has admitted that the petitioner was selected for appointment as Lower Division Assistant and the matter was under process. 7. In the aforesaid affidavit, the B.T.C. has only referred to the aforesaid letter dated 21.8.2006, but has not even obliquely stated as to what they were doing in the matter right from 1999 when the petitioner was selected for appointment. They have also not dealt with the letter dated 21.9.2002 by which the Executive Engineer conveyed the decision that the matter was under active consideration and the departmental formalities were being taken up expeditiously. Thus, even on 21.9.2002, when the letter dated 21.9.2002 was made by the Executive Engineer, it is clear that the matter was under active consideration and the writ petition having been filed on 31.8.2002, it cannot be said that the writ petition was filed after expiry of the Select List. 8. The writ petition was filed on 31.8.2002 and for long four years, there is no response from the respondents and now, the Bodoland Territorial Council has come forward with the plea that the list has expired. The plea has been taken by filing an affidavit on 18.12.2006. 8. The writ petition was filed on 31.8.2002 and for long four years, there is no response from the respondents and now, the Bodoland Territorial Council has come forward with the plea that the list has expired. The plea has been taken by filing an affidavit on 18.12.2006. Such plea on the part of the B.T.C. to deprive the petitioner from appointment as Lower Division Assistant for which he has been selected, is really unfortunate. In the order passed by this court on 28.9.2006, the submission of the learned Standing Counsel, P. W.D. that the matter was under active consideration of the respondents and that something positive would come out, was recorded. Accordingly, to facilitate the same, the matter was adjourned to 6.11.2006. But in the meantime, the B.T.C. by filing the affidavit on 18.12,2006, while broadly admitting the selection of the petitioner has unfortunately taken the stand of expiry of the list, unmindful of the fact that as per the own stand of the respondents, the matter was under active consideration. 9. If the petitioner was selected for appointment as Lower Division Assistant and necessary approval was also accorded, the apathy shown by the respondents in the matter cannot favour the respondents. The petitioner having been selected for appointment as Lower Division Assistant was in the legitimate expectation of his appointment and in fact, the Executive Engineer by his aforesaid letter dated 21.9.2002 intimated that the matter was under active consideration of the respondents. 10. The Respondent No. 5, i.e., the Principal Secretary, B.T.C. Kokrajhar never responded to the notice for last 4 years and now, the B.T.C. has filed an affidavit taking the unfortunate plea of expiry of the list. The respondents cannot deprive the petitioner of his lawful appointment on the basis of their own inaction in the matter by allowing the things to happen against the petitioner. They have now taken the plea that the list has expired, although the facts remained that, all along, the petitioner was made to understand that his case was under active consideration. Even by the aforesaid letter dated 21.9.2002 and 28.9.2006, the Executive Engineer requested the Under Secretary, B.T.C. to accord necessary approval towards appointment of the petitioner. Instead of according such approval, the B.T.C. has taken the stand that the list has expired, which in my view, is wholly untenable. 11. Even by the aforesaid letter dated 21.9.2002 and 28.9.2006, the Executive Engineer requested the Under Secretary, B.T.C. to accord necessary approval towards appointment of the petitioner. Instead of according such approval, the B.T.C. has taken the stand that the list has expired, which in my view, is wholly untenable. 11. While it is true that mere inclusion of the name in the Select List does not confer an indefeasible right to a candidate for appointment, but the respondents cannot deny appointment on untenable plea. When the respondents have admitted the due selection of the petitioner, they cannot take the plea of expiry of the list on the basis of their own inaction in the matter. This is precisely the reason as to why the Apex Court in the case ofR.S. Mittal v. Union of India, (1995) Supp. 2 SCC 230 observed, thus : - "It is no doubt correct that a person on the select panel has no vested right to be appointed to the post for which he has been selected. He has a right to be considered for appointment. But at the same time, the appointing authority cannot ignore the select panel or decline to make the appointment on its whims. When a person has been selected by the Selection Board and there is a vacancy which can be offered to him, keeping in view his merit position, then, ordinarily, there is no justification to ignore him for appointment. There has to be a justifiable reason to decline to appoint a person who is on the select panel. In the present case, there has been a mere inaction on the part of the Government. No reason whatsoever, not to talk of a justifiable reason, was given as to why the appointments were not offered to the candidates expeditiously and in accordance with law. The appointment should have been offered to Mr. Murgard within a reasonable time of availability of the vacancy and thereafter to the next candidate. The Central Government's approach in this case was wholly unjustified." 12. In view of the above, the writ petition is allowed with the direction to the respondents to appoint the petitioner as Lower Division Assistant as per his selection. This shall be done on or before 31st January, 2007. 13. Writ petition is allowed leaving the parties to bear their own costs.