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2007 DIGILAW 792 (GAU)

K. D. Ramsiej and Anr. v. Union of India and Ors.

2007-12-06

ASOK POTSANGBAM, T.VAIPHEI

body2007
Asok Potsangbam, J 1. This petition is filed by the two petitioners in the form of a public interest litigation seeking for a Writ of Mandamus restraining the University Respondent from giving effect to the appointment of respondent Nos. 7 and 8 as Professor and Reader in the Department of Philosophy and also for issuing a Writ of Certiorari quashing and setting aside the appointment of respondent Nos. 7 and 8 as Professor and Reader in the Department of Philosophy, North Eastern Hill University, Shillong, for short "NEHU". The prayer made in the petition is extracted below: - "In the premises aforesaid it is most humbly prayed that Your Lordships may be pleased to admit this petition, call for the records, Issue Rule calling upon the respondents to show cause as to why a writ of mandamus not issue directing the respondents to withdraw, recall and otherwise forbear from giving effect to the impugned appointments of the respondent Nos. 7 and 8 as Professor and Reader in the Department of Philosophy respectively and further as to why a Writ of Certiorari not issue quashing and setting aside the appointment of the respondent No. 7 (Dr. Vanlalnghak) as Professor of Philosophy of Culture in the Department of Philosophy, North Eastern Hills University, Shillong and the appointment of respondent No. 8 (Dr. Prasanjit Biswas) as Reader in the Department of Philosophy and on cause or causes being shown and after hearing the parties be further pleased to make the rule absolute and/or pass such further or other order/orders as Your Lordships may deem fit and proper. AND During pendency of the rule be further pleased to stay the appointment of the respondent No. 7 Dr. Vanlalnghak's as Professor in the Department of Philosophy and that of the respondent No. 8 Reader in the Department of Philosophy." 2. The petitioner No. 1 who is a Research Scholar in Philosophy was a candidate for selection to the post of Reader in Philosophy and petitioner No. 2 is a Professor in the Centre for Science Education in the North Eastern Hill University, Shillong and he was not a candidate against any of the two posts against which respondent Nos. 7 and 8 have been appointed. Infact, two years after the appointment of the respondent Nos. 7 and 8 have been appointed. Infact, two years after the appointment of the respondent Nos. 7 and 8 as Professor and Reader in the Department of Philosophy, NEHU, their appointments came to be challenged in this petition on various grounds, inter alia, notification of vacancies was published only in three national dailies instead of four, the respondent No. 7 did not have the requisite qualification for being eligible for appointment to the post of Professor, Respondent No. 8 did not have consistently good academic record, improper selection and nomination of experts in the Selection Committee, failure to call Dr. S. Behera from Sambalpur (Orissa) and Dr. K.P. Mohat from St. Anthony's College, Shillong for interview, etc. 3. Substantially and essentially, the challenge in this writ petition is to the advertisement, selection process and qualification of respondent Nos. 7 and 8, qualification of experts, recommendations made by the Selection Committee and appointment of the respondent Nos.7 and 8 and, as such, the instant PIL is a case relating to service matter. 4. The respondent Nos. 7 and 8 have filed their affidavit-in-opposition. Registrar of NEHU also filed an affidavit-in-opposition on behalf of respondent Nos. 3 to 6, disputing and controverting the allegation/contention made in the PIL. The affidavit of the Registrar discloses that the selection process undertaken pursuant to the advertisement dated 1.3.2005 was challenged by one Shri Xavier P. Mao in W.P.(C) No. 103(SH) of 2005 and the same person filed W.P.(C) No. 118(SH) of 2005 and W.P.(C) No. 5 (SH)/2006 challenging the appointment of respondent Nos. 7 and 8 respectively and W.P.(C) No. 118(SH) of 2005 was already dismissed by this Court on 17.10.2006 for want of locus standi and W.P.(C) No. 5 (SHV2006 is pending. Further, the Registrar of the University has stated in his affidavit that the notification of the vacancies were duly published in Shillong Times, The Janera, The Telegraph, The Times of India, The Hindu and in the University News published by the Association of Indian Universities, New Delhi and the same was also placed at the website of the University. Further, the Registrar of the University has stated in his affidavit that the notification of the vacancies were duly published in Shillong Times, The Janera, The Telegraph, The Times of India, The Hindu and in the University News published by the Association of Indian Universities, New Delhi and the same was also placed at the website of the University. It is also stated that all the candidates who applied for the two posts mentioned above have been short-listed by a Screening Committee and, thereafter, research work and suitability of the short-listed candidates were duly assessed by the Selection Committee consisting of experts having expertise in the field and on the recommendation of the Selection Committee, the respondent Nos. 7 and 8 have been appointed and in this process no illegality whatsoever have been committed warranting any interference from this court. It is also further stated that in case of Dr. S. Behera of Orissa, his application was incomplete and, as such, he was not called for interview as his name was not recommended by the Screening Committee. In case of Dr, K.P. Mohat of St. Anthony College, Shillong, the University never received any application and, as such, calling for interview did not arise. In case of petitioner No. 1, his application was rejected by the Screening Committee at the time of short-listing and no grievance was taken by the petitioner No. 1 by challenging the rejection of his candidature. Thus, all the allegations and contentions have been replied and controverted by the Registrar of NEHU in his affidavit. It is also submitted by all the respondents that the instant PIL lacks bona fide and rather it is a proxy petition. In all the affidavits filed by the respondent Nos. 3 to 6 and respondent Nos. 7 and 8, question of maintainability of the instant PIL have been raised and the learned counsels appearing for the respondents submit and pray that the question of maintainability be taken first as the maintainability of PIL in service matter is no longer res-integra in view of various decisions rendered by the Apex Court. 5. After consideration of the aforesaid submission of the respondents, we consider it appropriate to take the question of maintainability of the PIL as a preliminary issue before we go to the merit of the case and, accordingly, the parties are heard on this preliminary issue. 6. Mr. 5. After consideration of the aforesaid submission of the respondents, we consider it appropriate to take the question of maintainability of the PIL as a preliminary issue before we go to the merit of the case and, accordingly, the parties are heard on this preliminary issue. 6. Mr. K. Paul, learned counsel for the petitioner submits that the PIL is maintainable and, in support of his submission, the following citations are relied upon: - (1) Viswanath Chaturvedi v. Union of India, (2007) 4 SCC 380 . (2) Rajiv Ranjan Singh 'Lalan' (VHD and Another v. Union of India and Others, (2006) 6 SCC 613 . 7. In Viswanath Chaturvedi (supra), the subject-matter of the case relates to the disproportionate income of the Former U.P. Chief Minister Shri/mulam Sing Yadav and the direction sought in the petition is for prosecution of the Former Chief Minister. The principles and test laid down in that case has nothing- to do with the preliminary issue. In Rajiv Rajan Singh (supra), the matter relates to the appointment of Additional and Special Judge in connection with Fodder Scam and the subject-matter of the case has nothing to do with the instant issue in question. 8. When the court made a pointed query as to the availability of any decision of the Apex Court on the maintainability of PIL in service matters, no such authority is submitted by the petitioner. 9. On the contrary, Mr. Sen, learned counsel appearing for the NEHU cited the case of Dr. Duryodhan Sahu and Others v. Jitendera Kumar Mishra and Others, (1998) 7 SCC 273 , in which the Supreme Court has held that PIL is not maintainable in service matter. The aforesaid proposition of law is reiterated by the Apex Court in Gurpal Singh v. State of Punjab and Others, (2005) 5 SCC 136 . In this case, a Division Bench of Punjab & Haryana High Court held the appointment of the appellant therein as Auction Recorder of Market Committee as invalid and illegal and the said order of the High Court came to be passed on the basis of a writ petition filed and styled as public interest litigation. In this case, a Division Bench of Punjab & Haryana High Court held the appointment of the appellant therein as Auction Recorder of Market Committee as invalid and illegal and the said order of the High Court came to be passed on the basis of a writ petition filed and styled as public interest litigation. On challenge before the hon'ble Supreme Court, the Apex Court held that in service matter, public interest litigation cannot be filed and is not maintainable and, as such, the judgment of the Punjab and Haryana High Court is set aside as indefensible. In Neetu v. State of Punjab and Others, AIR 2007 SCW448, the judgment passed in a PIL by the Punjab & Haryana High Court came to be challenged before the Apex Court. The Punjab & Haryana High Court allowed a writ petition filed in the guise of public interest litigation challenging the appointment of the appellant as Audit Inspector, Co-operative Societies, Ferozpur on the ground that the appellant got his appointment on the basis of a Scheduled Caste certificate though he was not a member of the Scheduled Caste Community. The High Court by the impugned judgment issued a Writ in the nature of quo warranto setting aside the appointment of the appellant. Setting aside the judgment of the High Court, the Apex Court held in para 7 held as follows: - "7. As noted supra, a time has come to weed out the petitions, which though titled as public interest litigations are in essence something else. It is shocking to note that courts are flooded with large number of so called public interest litigations where even a minuscule percentage can legitimately be called as public-interest litigations. Though the parameters of public interest litigation have been indicated by this court in large number of cases, yet unmindful of the real intentions and objectives, High Courts are entertaining such petitions and wasting valuable judicial time which, as noted above, could be otherwise utilized for disposal of genuine cases. Though in Dr. Duryodhan Sahu and Ors. v. Jitendra Kumar Mishra and Ors., AIR 1999 SC 114 , this court held that in service matter PILs should not be entertained, the inflow of so-called PILs involving service matters continues unabated in the courts and strangely are entertained. The least the High Courts could do is to throw out them on the basis of the said decision. v. Jitendra Kumar Mishra and Ors., AIR 1999 SC 114 , this court held that in service matter PILs should not be entertained, the inflow of so-called PILs involving service matters continues unabated in the courts and strangely are entertained. The least the High Courts could do is to throw out them on the basis of the said decision. The other interesting aspect is that in the PILs, official documents are being annexed without even indicating as to who the petitioner came to possess them. In one case, it was noticed that an interesting answer was given as to its possession. It was stated that a packet was lying on the road and when out of curiosity the petitioner opened it, he found copies of the official documents. Whenever such frivolous pleas are taken to explain possession, the court should do well not only to dismiss the petitions but also to impose exemplary costs. It would be desirable for the courts to filter out the frivolous petitions and dismiss them with costs as fore-stated so that the message goes in the right direction that petitions filed with oblique motive do not have the approval of the courts." 10. The affidavits in the PIL are sworn by both the petitioner Nos. 1 and 2 and, in both the affidavits dated 1.6.2003, the paras 1 to 3, which are common, are quoted below: - "1. That I am a citizen of India and a resident of Shillong, East Khasi Hills District, Meghalaya. 2. That I am one of the Petitioners in the instant case and am fully conversant with the facts and circumstances of this instant case and am competent to swear this Affidavit. 3. That the statement made herein above and those made in paras 7, 8, 10, 13-19, 22 are true to the best of my knowledge, belief and information and those made in paras 9, 11,12, 20, 21, 23, 35, 36 being matters of record which I believe to be true and the rest are my humble submission before this hon'ble court." 11. Rule 1 of Chapter V-A of the Gauhati High Court Rules lays down that an application for a direction or order or writ under article 226 of the Constitution of India shall be accompanied by an affidavit verifying the facts relied upon and rule 7 of Chapter IV of the Gauhati High Court Rules also lays down that the facts stated in such application shall be verified by solemn affirmation of the applicant by an affidavit to be annexed to the application. Rule 27 of Chapter IV of the Gauhati High Court Rules lays down as to how an affidavit is to be prepared and be shorn by the declarant. The affidavit, as extracted above, would show that paras 1 to 6 and 24 to 34 of the writ petition (PIL) have neither been verified nor have these paras been supported by an affidavit and as such, paras 1 to 6 and 24 to 36 of the writ petition cannot form part of the writ petition. Further, the affidavit does not disclose which part of paras 7, 8, 10, 13 to 19 and 22 are knowledge and which part is belief or information and source of the official documents marked as Annexures 4, 5 and 7 (confidential) have not been disclosed. The affidavits of the petitioners are not in consonance with the provisions of Rule 27 of Chapter IV of the Gauhati High Court Rules. In fact, the petition is defective and, even on this count, the writ petition is liable to be dismissed. 12. The guidelines of PIL issued by the Apex Court has now been incorporated as part of the rules as Appendix 28 of the Gauhati High Court Rules. The relevant portion of the Appendix-28 are quoted below: - "Cases falling under the following categories will not be entertained as public interest litigation and these may be returned to the petitioners or filed in the PIL Cell. As the case may be: 1. Landlord - Tenant matters. 2. Service matter and those pertaining to pension and Gratuity." (emphasis supplied). 13. The aforesaid aspect about the Appendix 28 and rule 27 of Chapter-IV have been elaborately discussed by a Division Bench of this court reported in Premikanta Singh v. State of Manipur and Others, (2006) 1 GLT 121 and in that, the writ petition filed in the form of PIL was dismissed as not maintainable. 13. The aforesaid aspect about the Appendix 28 and rule 27 of Chapter-IV have been elaborately discussed by a Division Bench of this court reported in Premikanta Singh v. State of Manipur and Others, (2006) 1 GLT 121 and in that, the writ petition filed in the form of PIL was dismissed as not maintainable. This court is in agreement with the reasoning given in the aforesaid judgment reported in (2006) 1 GLT 121. 14. Having considered the preliminary issue on the maintainability of PIL in service matter in the light of the decisions of the Apex Court and also in view of patent violation of the Gauhati High Court Rules, as discussed above, we have no hesitation to hold that this writ petition (PIL) is liable to be dismissed as not maintainable and, accordingly, we dismiss this writ petition (PIL) as not maintainable.