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2006 DIGILAW 215 (GAU)

Hussain Ali v. State of Assam

2006-03-06

AFTAB H.SAIKIA, D.BISWAS, P.G.AGARWAL

body2006
JUDGMENT P.G. Agarwal, J. 1. On a reference made by the learned Single Judge of this Court, the present writ petitions have been placed before this Special Bench constituted by the hon'ble Chief Justice. 2. We have heard the learned Counsel for the petitioners and the learned Government Advocate. 3. The matter relates to appointment to the post of Veterinary Field Assistants, for short 'VFA' in the State of Assam. It has a long and chequered history. In order to fill up 95 existing vacancies and 48 anticipated vacancies to the post of VFA, a notice was issued by the Director, Animal Husbandry and Veterinary Department, Assam and, thereafter, vide order dated 5.7.1996 a Selection Committee was constituted by the Director and the said Selection Committee selected 125 candidates on the basis of their merit position in the School Merit List. It may be mentioned here that at the relevant point of time there was no service rule governing the appointment of VFA. 4. There was a School of Veterinary Science offering one year certificate course making students eligible for appointment as VFA. During the session 1993-94 a batch of 144 students completed their training and a School Merit List was prepared on 25.8.1995. The select list of 5.7.1996/ 20.11.1996 was prepared on the basis of School Merit List dated 25.8.1995. For the purpose of convenience, the select list of 1996 shall hereinafter be referred to as 'the 1996 select list'. 5. On 31.10.1997, the Director approached the Govt. of Assam for approval of the 1996 select list. The Government after examining the same was of the view that the selection was not in accordance with the rules and, hence, the vacancies are required to be filled up by direct recruitment after advertisement and, accordingly, an advertisement was published on 6.12.1997. Pursuant to the said advertisement a select list was published in the year 1998 which shall hereinafter be referred to as 'the 1998 select list'. 6. Some of the selectees of the 1996 select list being unable to obtain appointment, in the meantime, approached this Court by filing Civil Rule No. 5749/97, 5993/97, 22/98 and 107/98. All these writ petitions were dismissed by the learned Single Judge on the ground that the selection per se does not confer any right to appointment. 7. 6. Some of the selectees of the 1996 select list being unable to obtain appointment, in the meantime, approached this Court by filing Civil Rule No. 5749/97, 5993/97, 22/98 and 107/98. All these writ petitions were dismissed by the learned Single Judge on the ground that the selection per se does not confer any right to appointment. 7. The decision in the above Civil Rules were carried forward before the Division Bench by filing Writ Appeal Nos. 176/98, 195/98, 238/98, a 240/98 and 246/98. Two other writ petitions, i.e., WP(C) Nos. 363/99 and 2494/99 were also taken up for consideration along with the above writ appeals and the above batch of writ appeals and writ petitions were disposed of by the Division Bench vide judgment dated 30.11.1999 wherein this Court provided as follows: 11. The reasons above lead this Court to the inevitable conclusion that the appeals and the writ petitions have to be allowed and the impugned judgment dated 24.6.1998 has to be reversed. Accordingly, we allow the appeals and the writ petitions and set aside the impugned judgment. The respondent-State and the concerned authorities are hereby restrained c from going ahead with the selection in pursuance of the subsequent advertisement in respect of the number of vacancies for which the list of 1996 was prepared and which is still existing. 8. The decision in the above writ appeals was very categorical and specific that the 1996 select list shall be applied in respect of the number of vacancies for which the select list of 1996 was prepared. this Court further restrained the State of Assam from going ahead with the selection in pursuance of the 1997 advertisement in respect of the vacancies for which the 1996 select list was prepared. However, as stated above we find that before the decision of the Division Bench e came, the 1997 list was already prepared and published. 9. During the course of our hearing, this Court vide order dated 24.1.2006 directed the State of Assam to submit reply to the following queries: (i) Year-wise vacancy position of the posts of Veterinary Field Assistant from 1995 onwards. (ii) Number of vacancies filled up in each year against the available vacancies. (iii) Number of total persons appointed from the 1996 list; and (iv) to inform whether any other list was prepared as per rules subsequent to 1996 and, particularly in the year 1998. (ii) Number of vacancies filled up in each year against the available vacancies. (iii) Number of total persons appointed from the 1996 list; and (iv) to inform whether any other list was prepared as per rules subsequent to 1996 and, particularly in the year 1998. 10. Accordingly, the State of Assam has filed their reply through the Director, Animal Husbandry and Veterinary Department vide letter dated 30.1.2006. The 125 posts of VFA were filled up as below: The Directorate of A.H and Vety. Deptt., Assam, Chenikuthi, Guwahati-3, filled up 124 existing vacant post of VFA as per School Merit List of 1996 as per order passed by the Hon'ble Gauhati High Court in W.P(C) No. 3533/03, W.P(C) No. 48/04, W.P(C) No. 7662/02, W.P(C) No. 3533/03, W.P.(C) No. 48/04, W.P. (C) No. 7662/02, W.P. (C) No. 3700/03, W.P. (C) No. 582/04, W.P. (C) No. 4661/04 and W.P.(C) No. 2138/99. The break up of the 124 Nos. of post filled up as per School Merit List of 1996 is furnished below: Total No. of vacancies 124 (a) Total Nos of post filled up in the appointment order No. 91 dated 17.9.2004 105 (b) Total Nos of post filled up in the appointment order No. 93, datted 24.9.1994 1 (c) Total post kept vacant due to non-existence of STP and STH candidates 17 (d) Post kept vacant as directed by the hon’ble Court in W.P. (C) No. 2138/99 1 Total = 124 Nos. 11. In respect of our queries 1 and 2, the State has furnished the following information: Sl. No. Year Nos. of VFA post vacant at the relevant time Nos. of VFA post filled up against relevant time each year 1. 1995 80 Nil 2. 1996 80 -do- 3. 1997 80 44 Nos. 4. 1998 36 2 Nos. 5. 1999 169 140 Nos. 6. 2000 29 Nil 7. 2001 54 -do- 8. 2002 83 -do- 9. 2003 112 1 No. 10. 2004 164 141 Nos. 11. 2005 103 Nil 12. 2006 98(103-5) 5 No. (Backlog filling) 12. We find from the pleadings of the parties, copies of the documents filed before us and the finding of the learned Single Judge that in the year 2004,141 posts of VFA were filled up and this finds support from the reply quoted above. 2004 164 141 Nos. 11. 2005 103 Nil 12. 2006 98(103-5) 5 No. (Backlog filling) 12. We find from the pleadings of the parties, copies of the documents filed before us and the finding of the learned Single Judge that in the year 2004,141 posts of VFA were filled up and this finds support from the reply quoted above. However, in order to fill up those posts, the State Government picked up 105 candidates from the 1996 select list and 35 candidates from the 1998 select list. Thus, the select list of 1996 and the select list of 1998 were parallely operated upon for appointment against the above posts. It has been stated by the learned Addl. Advocate General that some of these appointments were made pursuant to the direction given by this Court in W.P.(C) No. 3533/03, 1359/03, 1411/03 and 2724/03. 13. We have two sets of writ petitions before us - one set consists of selectees of the 1996 select list and the other set consists of the selectees of the 1998 select list. It may be mentioned here that although the total vacancies as in the year 1996 was only 125, the select lists contain names of 800 persons. Moreover, some of the selectees whose name appear down below the 1996 select list also appeared for selection in the year 1998 and their names also appear in the 1998 select list. 14. The entire dispute has arisen due to simultaneous and parallel operation of the 1996 as well as the 1998 select list when appointments in the year 2004 were made. The writ petitioners have contended that either of the two lists, as the case may be, should have been operated upon. Mr. K.N. Choudhury, learned Addl. Advocate General, Assam was fair enough to submit that the problem arose because of the absence of rules in the year 1996 and although the recruitment rules were brought into operation on 1.8.1997 (w.e.f 1.8.1997 as reflected in the decision in WA No. 176/98), these rules were never acted upon. Further, some of the decisions in the above writ petitions were on the basis of the pleadings of the State and we have no hesitation to hold that some of those pleadings were not correct and have led to confusion and also passing of contradictory orders. 15. Further, some of the decisions in the above writ petitions were on the basis of the pleadings of the State and we have no hesitation to hold that some of those pleadings were not correct and have led to confusion and also passing of contradictory orders. 15. In WP(C) 3533/03 the State Government filed an affidavit to the effect that the Government is ready and willing to fill up 83 number of vacancies on the basis of the School Merit List of 1996 which was altogether a confusing statement. The School Merit List of 1996 had no legal sanction as there was a select list of 1996 and a select list of 1998. Admittedly, the School Merit List of 1996 could not have been acted upon and this Court, therefore, directed filling up of the above vacancies on the basis of the select list of 1996. It is crystal clear the confusion was allowed to prevail and appointments were made by parallely operating upon both the lists. The initial confusion arose when for 125 vacant posts, there were two select lists, one of 1996 and the other of 1998 and the direction of the Division Bench was very categorical and specific that the 1996 select list shall be applicable for filling up of those vacancies numbering 125. To confound the matter further the State Government came up with another select list named School Merit List of 1996. Instead of compounding the matter by approaching this Court seeking necessary clarification, etc., the Department of Animal Husbandry and Veterinary Science sat over the problem and continued to file contradictory affidavits in different cases and made appointments. 16. From the reply given by the learned Addl. Advocate General, we find that from 1997 till 2004 the State Government has filled up total 328 posts of VFA by parallely operating the 1996 as well as 1998 select list. We are of the view that the 1996 select list as well as the 1998 select list were in respect of total vacancies of 125 posts only and once these 125 posts were filled-up, the select list got exhausted and there was no scope for making further appointments from this select list. As stated above, as many as 328 vacancies have been filed from this list starting from 1997 to 2004. As stated above, as many as 328 vacancies have been filed from this list starting from 1997 to 2004. The vacancies which had arisen since 2000 could not have been filled up from the 1996 or 1998 select list. 17. Now the question that arises is whether we should consider disturbing the persons who were so appointed till 2004. These persons are rendering service for the last two years or so and their appointments were not obtained by them by playing any fraud. Hence, taking a compassionate view and humanistic approach to the matter, we hold that their appointments and service may not be disturbed. We, however, make it very clear that the select list of 1996, the select list of 1998 and the alleged School Merit List of 1996 all stand exhausted and no further appointment shall be made on the basis of the above lists. We would, however, like to clarify that the persons whose name appear in these lists and who have not been appointed as yet will be at liberty to participate in the future selection process as per direction which we propose to give in the subsequent paragraph. 18. We have seen the notification dated 16th July, 2003 wherein the Assam Animal Husbandry and Veterinary Subordinate Service Rules, 2002 have been notified whereby the rules regulating recruitment for various posts including, VFA have been notified. From the reply given by the State Government as quoted above we find that as on today there are 98 vacancies of VFA including backlog vacancies. We, therefore, provide that the above vacancies as and when filled up by the State, shall be strictly in accordance with the Service Rules of 2002 which have come into effect w.e.f. 16th July, 2003. None of the earlier select list: i.e., the select list of 1996, the select list of 1998 of any other School Merit List, etc., shall be used for the purpose of making any further appointment to the post of VFA. So far the writ petitioners and other similarly situated persons whose names appear in these lists who are still awaiting appointment are concerned, they will be at liberty to participate in the future selection process, if any, in accordance with the provisions of the Rules of 2002. It is submitted that, in the meantime, some of these candidates might have become ineligible due to their age. It is submitted that, in the meantime, some of these candidates might have become ineligible due to their age. It is submitted by the learned Addl. Advocate General that there is a provision for relaxation under Rule 27. The writ petitioners will be at liberty to approach the concerned authorities for relaxation if any required and in case such prayer is made, the concerned authorities shall take a compassionate view of the matter and pass appropriate orders in accordance with the Rules. 19. The writ petitions stand disposed of accordingly.