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2009 DIGILAW 287 (GAU)

Chipak Essi v. Lal Puroik

2009-04-30

I.A.ANSARI, P.K.MUSAHARY

body2009
JUDGMENT I.A. Ansari, J. 1. The materials facts, leading to this appeal, are, in brief, as under: (i) Rule 9 of the Arunachal Pradesh Secretariat Subordinate Rules, 1989 ("1989 Rules") prescribes percentage of reservation for promotion and direct recruitment to the post of Lower Division Clerk ('LDC'), which falls in Group-C cadre. The quota of promotion to Group-C cadre from Group-D cadre was, at the relevant point of time, 10%, and the remaining 90% of the posts, in Group-C cadre, were to be filled up by direct recruitment. Having held, in terms of Rule 9, in respect of 10% quota of promotion, meant for Group-D employees, a typing speed test for appointment to the post of LDC, a merit list was published, on 13.4.2000, by the Government of Arunachal Pradesh. The merit list read as under: 1. Smt. Habung Remang. 2. Smt. LikhaAto. 3. Smt. Joram Mach. 4. Sri. Prakash Kr. Peddihg. 5. Smt. Chipak Essi. 6. Smt. Debia Kiran. 7. Smt. Mogam Dirchi. 8. Smt. Yarek Tate. 9. Smt. Gome Barn. 10. Smt. Gengam Karga. 11. Smt.TadarRija. 12. Smt. Markum Marde. 13. Smt. Maryo Basar. 14. Smt. Tana Nukh. 15. Smt. Ingam Riba. 16. Smt. KipaYania. (ii) Thus, the select-list, prepared in order of merit, contained names of sixteen candidates. As the selection test was held for the purpose of filling up four vacant posts by way of promotion, four of the candidates, who names appeared in the relevant merit list, were appointed to the four vacant posts aforementioned, these candidates being Smt. Habung Remang, Smt. Likha Ato, Smt. Joram Mach and Sri Prakash Kr. Pedding. Though, in terms of Rule 12 of the 1989 Rules, the validity of the select-list was for a period of one year, some of the candidates, whose names appeared in the said select-list, were appointed even after the validity period of the select-list stood expired. Appellant No. 1, namely, Smt. Chipak Essi, whose name appeared at Sl. No. 5 of the select-list, was appointed on 29.5.2000, appellant No. 2, namely, Smt. Mongam Dirchi, whose name appeared at Sl. No. 7 of the select-list, was appointed on 9.12.2002, and appellant No. 3, namely, Smt. Debia Kiran, whose name appeared at Sl. No. 6 of the select-list, was appointed on 27.3.2001. No. 5 of the select-list, was appointed on 29.5.2000, appellant No. 2, namely, Smt. Mongam Dirchi, whose name appeared at Sl. No. 7 of the select-list, was appointed on 9.12.2002, and appellant No. 3, namely, Smt. Debia Kiran, whose name appeared at Sl. No. 6 of the select-list, was appointed on 27.3.2001. As the State respondents continued to make appointments, as per the select-list, beyond the validity period of the said select-list, the employees of Group-D cadre challenged the said appointments by filing a writ petition, under Article 226 of the Constitution of India, which gave rise to WP(C) No. 347(AP)/2005, the grievances of the writ petitioners being that though the said selection test had been held for four vacant posts of LDC, more than four appointments had been made and that some of those appointments were made even after the validity period of the select-list stood expired. The writ petitioners accordingly sought for appropriate directions cancelling the appointments made contrary to law. (iii) A learned Single Judge, on hearing the writ petition, concluded that since the selection test was held for vacant posts, four in number, not more than four appointments could have been made, in terms of Rule 9, against the quota reserved for promotion and, hence, further appointments, on promotion, were not permissible in law. The learned Single Judge further concluded that the appointments, which had been made beyond the period of validity of the said select-list, were also not sustainable in law. By judgment and order, dated 9.8.2005, the learned Single Judge, therefore, on the basis of the conclusions reached, as indicated hereinbefore, allowed the writ petition by setting aside the appointment of, among others, the present appellants and the directed the respondents to carry out fresh selection process against six vacant posts. Following the directions, so given, the State Government have reverted those employees of Group-D cadre, who had been promoted, out of the said select-list, to Group-C cadre, but their appointments were beyond the four number of vacancies for which the selection test was held and also those, who had been appointed after the said select-list stood expired. Following the directions, so given, the State Government have reverted those employees of Group-D cadre, who had been promoted, out of the said select-list, to Group-C cadre, but their appointments were beyond the four number of vacancies for which the selection test was held and also those, who had been appointed after the said select-list stood expired. Aggrieved by the setting aside of their promotional appointment and contending that the writ petition was decided without giving any opportunity of hearing to the reverted employees and, therefore, their promotional appointments could not have been interfered with, this appeal has been filed by some of those, who have been reverted to Group-D cadre from Group-C cadre, as mentioned hereinbefore. 2. We have heard Mr. Basar, learned Counsel for the appellants, and Ms. G. Deka, learned Additional Senior Government Advocate, appearing on behalf of the respondents. 3. While considering the present appeal, it needs to be pointed out that a select-list cannot be acted upon to fill up vacancies beyond the number of posts for which the selection test was held. Thus, in the present case, when the select-list had been prepared to fill up, by way of promotion, four vacant posts in Group-C cadre, not more than four candidates could have been promoted, out of the said select-list, against the said promotional quota. The reliance, in this regard, placed by the learned Single Judge, on Madan Lal and Ors. v. State of J&K and Ors. (1995) 3 SCC 486 , is not misplaced, wherein the Apex Court has held to the effect that a select-list could not have been acted upon beyond the vacancies for which the select-list was prepared. Hence, the conclusion, reached by the learned Single Judge, that not more that four promotions could have been given on the basis of the select-list, in question, cannot be assailed in law. 4. As regards the conclusion reached by the learned Single Judge that when the period of validity of the select-list, in question, had not been extended, no further appointment could have been made beyond the period of one year from the date of publication of the select-list, we find no flaw in the conclusion so reached by the learned Single Judge. As regards the conclusion reached by the learned Single Judge that when the period of validity of the select-list, in question, had not been extended, no further appointment could have been made beyond the period of one year from the date of publication of the select-list, we find no flaw in the conclusion so reached by the learned Single Judge. Considered from this angle, it becomes clear that since the appointment of the appellant No. 2, namely, Smt. Mohgam Dirchi, was made on 9.12.2002, which is after the expiry of the period of validity of the said select-list, her appointment could not have been sustained and her reversion to Group-D cadre by the Government cannot be said to be illegal. So far as the appellant No. 1, namely, Smt. Chipak Essi, and appellant No. 3, namely, Smt. Debia Kiran, are concerned, they were appointed on 25.5.2000 and 27.3.2001 respectively, both these promotional appointments being clearly within the period of validity of the select-list. However, if these two appointments (i.e., the appointment of appellant No. 1 and appellant No. 3), were made in excess of the four posts, for which the selection test was held, then, appointments of the appellant Nos. 1 and 3 cannot, for the reasons assigned above, be sustained. In this regard, it needs to be noted that it is the agreed case of the parties concerned, including the State Government, that Sri Prakash Kr. Pedding (whose name appeared in Sl. No. 4 of the said select-list, dated 13.4.2000) aforementioned, did not join and became Personal Assistant, under Arunachal Pradesh Secretariat Service (Junior) Cadre, and the appellant No. 1, namely, Smt. Chipak Essi, was appointed in the place of Sri Prakash Kr. Pedding aforementioned on 29.5.2000. It is, thus, transparent that so far as the appellant No. 1 is concerned, her promotion to Group-C cadre having been made within the said four number of posts, for which the select-list had been held, and her appointment having been also made within the period of validity of the said select-list, her promotional appointment could not have, been interfered with and she could not have been reverted to Group-D cadre. 5. 5. As far as the appellant No. namely, Smt. Debia Kiran, is concerned, it is to be noted that though her appointment was made within the period of validity of the select-list, the vacancies, for which the select-list had been prepared, having exhausted, she could not have been promoted and appointed to Group-C cadre and, therefore, her reversion to Group-D cadre cannot be interfered with. 6. Because of what have been discussed and pointed out above, this appeal partly succeeds. While the cancellation of promotion of the appellant Nos. 2 and 3, namely, Smt. Mongam Dirchi and Smt. Debia Kiran, respectively, and their reversion to Group-D cadre are not interfered with, the cancellation of promotion of appellant No. 1, namely, Smt. Chipak Essi, and her reversion to Group-D cadre are hereby set aside. The State respondents are, therefore, directed to pass necessary order(s) promoting the appellant No. 1 to Group-C cadre treating her service in Group-C cadre being without any break. In other words, the period, between the date of reversion of the appellant No. 1, namely, Smt. Chipak Essi, to Group-D cadre, and the date on which her promotion stands restored, shall be treated to be period of service rendered by her in Group-C cadre. So far as the appeal preferred by the remaining appellants, namely, appellant Nos. 2 and 3, are concerned, the appeal stands dismissed. 7. No order as to costs. Appeal dismissed.