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2009 DIGILAW 409 (GAU)

Sajal Sinha v. State of Assam

2009-06-11

B.D.AGARWAL

body2009
JUDGMENT B.D. Agarwal, J. 1. The facts emerging from the pleadings of both the parties depict that only the rule of "pick and choose" and not any service jurisprudence in the matter of public employment is prevailing in the Karbi Anglong Autonomous Council, Diphu ('KAAC'). This observation is being made on the basis of the following facts. 2. The office of the respondent No. 4 advertised 2(two) posts of Village Level Extension Worker (VLEW) and one post of Laboratory Attendant laying down certain qualifications and the procedure of appointment. Accordingly a written test, followed by viva voce, was held in the month of September, 2003. Thereafter, a merit list of selected candidates was published by the Member Secretary of the Selection Board on 11.9.2003. As per the said merit list the writ petitioner was placed at 4th position. However, in the meeting of the Selection Board held on 24.9.2003, the entire merit list was reshuffled and a fresh list of candidates giving new position was published, for instance, the petitioner who stood at 4th position was taken to 15th position. The candidate who was at the 2nd position in the merit list was elevated to first position. Similarly, the candidate whose position was 16th in the original merit list was brought to the 2nd position in the final list; the candidate whose position was 9th in the original list was brought to 5th position and so on. Apart from this anomaly, instead of appointing two persons as VLEWs as per the advertisement the KAAC appointed as many as 7(seven) persons. The petitioner, who was occupying 4th position in the original merit list was sidelined, since he was placed at 15th position in the reshuffled list, so called final list prepared by the selection board on 29.4.2003. The arbitrariness did not end there. The KAAC even appointed two persons who were not educationally qualified for the post of VLEW. In the additional affidavit of the petitioner, it has been stated that one Nirmal Changmai and one Shri Suren Tokbi who stood 15th and 16th position in the original merit list have also been appointed although, they did not possess educational qualification of Higher Secondary Examination as per the terms of the appointment incorporated in the advertisement, besides this, the KAAC also appointed the respondents Nos. 6 and 7 as VLEWs on temporary basis after the expiry of validity of the select list, although these persons never appeared in the written test or interview. In this way, persons from outside the select list have also been appointed The factual position has been admitted by the respondent Nos. 2, 3, 4 and 5 in their affidavit filed on 26.5.2008. 3. The respondents case is that the select list was valid for a period of one year from 24.9.2003 and during this period only 7(seven) persons were appointed and since the validity of the select list has already expired the petitioner cannot claim for any appointment. With regard to appointment of respondent Nos. 6 and 7 it has been pleaded by the respondents that these persons have been appointed purely on temporary basis after the expiry of validity of the select list and as such the petitioner can not challenge their appointments 4. In the case of Delhi Transport Corporation v. D.T.C Mazdoor Congress and Ors. 1991 (1) SCC 600, the hon'ble Apex Court has held that the right to public employment and its concomitant right to livelihood, thus, receive their succor and nourishment under the canopy of protective umbrella of Articles 14, 16(1), 19(1)(g) and 21 of the Constitution of India. Their lordships have further held that the trinity of the Constitution assures to every citizen, social and economic justice, equality of status and of opportunity with dignity of the person. Their lordships of the Apex Court have further observed that the State is to strive to minimize the inequality in status between individuals or groups of people. The import and mandates of Articles 14 and 16 of the Constitution of India has been described in the following words: ...Article 14 is the genus which Article 16 is a specie. Article 16 gives effect to the doctrine of equality in all matters relating to public employment. The basis principle which, therefore, informs both Articles 14 and 16 is equality and inhibition against discrimination. "Equality is a dynamic concept with many aspects and dimensions and it cannot be cribbed, cabined and confirmed" within traditional and doctrinaire limits. From a positivistic point of view, equality is antithetical to arbitrariness. In fact, equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic while the other, to the whim and caprice of an absolute monarch. From a positivistic point of view, equality is antithetical to arbitrariness. In fact, equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic while the other, to the whim and caprice of an absolute monarch. Where an act is arbitrary, it is implicit in it that it is unequal both according to political logic and constitutional law and is, therefore, violative of Article 14, and if it affects any matter relating to public employment, is it also violative of Article 16 Articles14 and 16 strike at arbitrariness in State action and ensures fairness and equality of treatment. In Maneka Gandhi case, it was further held that the principle of reasonableness, which legally as well as philosophically, is an essential element of equality or non-arbitrariness pervades Article 14 like a brooding omnipresence.... 5. In the case of National Institute of Mental Health and Neuro Sciences v. Dr. K. Kalyana Ramain and Ors. 1992 Supp (2) SCC 481, the Apex Court has observed that 'procedural fairness' is the main requirement of the administrative action and it must be adhered to in letter and spirit and the Selection Committee can not be an exception to this principle. 6. Again in the case of Ludhiana Central Co-operative Bank Ltd. v. Amrik Singh and Ors. (2003) 10 SCC 136 , the hon'ble Supreme Court has observed that the appointing authority can not afford to ignore individual claim at its whims or fancy, in operating such a panel or making appointments on the basis of the panel, by merely "pick and choose" of candidates. 7. In this way Article 14 of the Constitution is the epitome of fundamental rights guaranteed to the citizens of India under Part-III of the Constitution of India. Similarly, Article 16 governs the field of equality in the mater of public employment and Article 21 is an indispensable right of the citizens. These articles embraces within its fold equality, fairness, transparency and logic in all actions by the State or its instrumentalities. These constitutional mandates do not admit or accept any amount of discrimination and arbitrariness. 8. In the case Babu Verghese and Ors. v. Bar Council of Kerala and Ors. (1999) 3 SCC 422 , their lordships' have restated the principles of administrative law in the following words: - 31. These constitutional mandates do not admit or accept any amount of discrimination and arbitrariness. 8. In the case Babu Verghese and Ors. v. Bar Council of Kerala and Ors. (1999) 3 SCC 422 , their lordships' have restated the principles of administrative law in the following words: - 31. It is the basic principle of law long settled that if the manner of doing a particular act is proscribed under any statute, the act must be done in that manner or not at all. The origin of this rule is traceable to the decision in Taylor v. Taylor which was followed by Lord Roche in Nazir Ahemad v. King Emperor who stated as under: Where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all. 32. This rule has since been approved by this Court in Rao Shiv Bahadur Singh v. State of V.P. and again in Deep Chand v. State of Rajasthan. These cases were considered by a three-Judge Bench off this Court in State of U.P. v. Singhara Singh and the rule laid down in Nazir Ahmad case was again upheld. This rule has since been applied to the exercise of jurisdiction by courts and has also been recognized as a salutary principle of administrative law. 9. Identical view has been taken in the case of Bhavnagar University (supra) wherein also their lordships have laid down the following legal proposition: It is well settled that when a statutory authority is required to do a thing in a particular manner the same must be done in that manner or not at all. The State and other authorities while acting under the said act are only creature of statute. They must act within the four corners thereof. 10. It is true that the validity of the select list was for a period of one year only. However, the plea of the respondents that the writ petitioner is not entitled to any relief after the expiry of the validity period does not hold much water inasmuch as KAAC had itself flouted all norms and the sanctity of the select list. However, the plea of the respondents that the writ petitioner is not entitled to any relief after the expiry of the validity period does not hold much water inasmuch as KAAC had itself flouted all norms and the sanctity of the select list. I have already mentioned earlier that the KAAC have appointed as many as 7(seven) persons against two vacancies notified in the advertisement and that too after preparing a new list at their whims, changing the merit position altogether. 11. Be that as it may, in the case of Purushottam v. Chairman, M.S.E.B and Anr. (1999) 6 SCC 49 , the hon'ble Supreme Court has held that the right of the appellant to be appointed against a post to which he had been selected can not be taken away on the pretext that the said panel has in the meantime expired and the post has already been filled up by somebody else. Their lordships have further observed that usurpation of the post by somebody else is not on account of any defect on the part of the appellant, but due to the erroneous decision of the employer himself and on this premise Maharashtra State Electricity Board was directed to appoint the appellant to the post for which he was duly selected. 12. Having analysed the entire aspects of the case, I have come to the conclusion that the writ petitioner is the victim of arbitrariness of the respondents. Although the writ petitioner has prayed for quashing the final list prepared by the Selection Board on 24.9.2003, I am not interfering with the same since the writ petition has been filed nearly after more than two years of the preparation of the said list and more so, the persons who have been placed above the writ petitioner have not been impleaded in this case. In other words, if the aforesaid resolution dated 24.9.2003 is set aside, the consequence would be cancellation of all the appointments. Similarly, the appointment of respondent Nos. 6 and 7 also need not be disturbed since they have been stated to be appointed on ad hoc and temporary basis. However, the petitioner deserves a writ in the nature of mandamus so as to direct the respondent Nos. Similarly, the appointment of respondent Nos. 6 and 7 also need not be disturbed since they have been stated to be appointed on ad hoc and temporary basis. However, the petitioner deserves a writ in the nature of mandamus so as to direct the respondent Nos. 2, 3, 4 and 5 to appoint him as VLEW within a period of two months from the date of receipt of a copy of this judgment against any substantive vacancy. If no vacancy is available the aforesaid respondents shall accommodate the writ petitioner by terminating the services of respondent Nos. 6 and 7. 13. In view of gross discrimination meted-out to the writ petitioner, I hold that the petitioner is entitled to compensation as a public law remedy. Hence, having regard to the contemptuous violation of constitutional mandates relating to public employment and gross discrimination perpetrated with the petitioner I held that the writ petitioner is entitled to compensation of Rs, 50,000 (Rupees fifty thousand) only. This compensation amount shall also be paid to the writ petitioner by the concerned respondents within a period of two months from the date of receipt of a copy of this judgment and thereafter, the compensation amount shall carry interest @ of Rs. 8% per annum from today. 14. With the aforesaid directions, writ petition stands disposed of.