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2009 DIGILAW 896 (GAU)

Lalawmpuia v. State of Mizoram

2009-12-11

H.BARUAH

body2009
JUDGMENT H. Baruah, J. 1. In both the writ petitions altogether 511 candidates joined their hands for a common cause. In both the writ petitions facts involved are similar and, therefore, both are being disposed of by this common judgment. 2. In the 2nd Five Year Plan, the Central Government in pursuance of the provision contained in Article 351 of the Constitution of India, for propagation and promotion of Hindi language in the non speaking Hindi States and UTs introduced a scheme under the name and style "Scheme of Financial Assistance for appointment of Training of Hindi teachers in non-Hindi speaking States/UTs." with 100% financial assistance were under the scheme of appointment of Hindi teachers, opening/strengthening of Hindi Teachers' Training College in non-Hindi speaking states/UTs with a view to assist these States and UTs in implementing, effectively, the three months language formula had been adopted. The State of Mizoram being a non Hindi speaking State for promotion and propagation of Hindi language Government of Mizoram also introduced the centrally sponsored scheme in the State of Mizoram. Accordingly, with this objective the respondent No. 3 in anticipation of receipt of 100% financial assistance from the centre issued a notification of vacancies vide Memo No. E. 11011/4/01-DPC/DTSE dated 8.3.2007 to the Employment Exchanges under the Directorate of Labour and Employment of the government of Mizoram in respect of vacancies of Primary School Hindi Teachers on contract basis, co-terminus with the scheme for teaching Hindi language in primary schools. In the notification essential educational qualification of the prospective candidates, age limit and other informations necessary for the purpose of the post were supplied and 31.3.2007 was fixed as last date of submission of application from the eligible candidates. Applications were to be submitted to the Director of School Education, Mizoram. In the notification it was specifically mentioned that such applications were called/invited from the eligible candidates for preparation of a panel for future vacancies. Pursuant to that notification the petitioners herein and others submitted their applications. Petitioners were issued Admit Card by respondent No. 6 having found each of them eligible for the post. Thereafter, the petitioners appeared in the written examination and became successful. Respondent No. 5 thereafter issued letters to the petitioners calling each of them to appear for personal interview on the dates and venue fixed therefore. All the petitioners appeared in the personal interview and were successful. Thereafter, the petitioners appeared in the written examination and became successful. Respondent No. 5 thereafter issued letters to the petitioners calling each of them to appear for personal interview on the dates and venue fixed therefore. All the petitioners appeared in the personal interview and were successful. Respondent No. 4, thereafter published a select list of the candidates for the post of Primary School Hindi Teachers under CSS and 180 candidates were selected from Aizawl district. Similar lists were prepared for other districts of the State of Mizoram. Altogether 687 candidates were selected and select lists published in the year 2008. In the district wise select list it was directed as under: Engagement order for the selected candidates are to be issued by the SDEOs concerned during October, 2008. They must collect their engagement order from their respective SDEO and join their respective place of posting with effect from 1.11.2008 and within 15 days. District wise select list was published under the hand and seal of Joint Director of School Education, Mizoram, Aizawl. 3. In the meantime, the Under Secretary to the Government of India, Ministry of Human Resource Development Department of Higher Education by his letter dated 30.11.2007 conveyed sanction of the President of India to the payment of grant amounting to Rs. 2.44 crores to the Education Secretary, Government of Mizoram for incurring expenditure on appointment of 687 Primary School Hindi Teachers during 2007-2008 as first installment. The expenditure is debatable to Demand No. 57-Department of Higher Education-3601-Major Head (Grants-in-aid to State Governments), 04-Sub Major Head (Grants to Centrally Sponsored Plan Schemes), 161-Minor Head (Language Development Promotion of Modern Indian Languages and Literature) 3-Sub Head (Appointment of Language Teachers and 3.00.31 - Grants-in aid for the year 2007-08). This letter was addressed to the Principal Accounts Officer, Department of Higher Education, Ministry of Human Resource Development, Shastri Bhawan, New Delhi. The amounts so sanctioned had been allocated during the year 2007-08 as first installment for payment of 687 Primary School Hindi Teachers by an order dated 25.1.2008 of Under Secretary to the Government of Mizoram, Finance Department (B). At this stage it would be appropriate to make a mention that the selection for appointment as Primary School Hindi Teachers was completed in the month of August, 2008 after sanction of the amount of Rs. At this stage it would be appropriate to make a mention that the selection for appointment as Primary School Hindi Teachers was completed in the month of August, 2008 after sanction of the amount of Rs. 2.44 crores by the President of India for implementation of the scheme as indicated above. 4. Despite sanction of the amount as aforesaid by the Central Government, the selected candidates were not given appointment as Primary School Hindi Teachers on contract basis which is co-terminus with the scheme. It would further be appropriate to mention that such appointment of the selected candidates is to be made during the 11th Plan period. During 10th Plan period the State Government appointed 500 Primary School Hindi Teachers who are still working as such. 5. On account of non-appointment of the petitioners whose names appear in the select lists submitted representation with the appropriate Government requesting their appointment as Primary School Hindi Teachers. But the respondent State authorities sat over the matter without taking any appropriate action till date. Finding no other alternative, in the month of October, 2008 petitioners approached respondent No. 7 for receiving their engagement orders per direction given by respondent No. 4. Thereafter, on a number of occasions too, petitioners had also approached but in vain. The State Public Information Officer, Directorate of School Education, the respondent No. 8, vide his letter No. F. 23018/1/05-DTE (EDN)/Pt/168 dated 23.3.2009, on the applications so made under RTI on 3.3.2009 and 18.3.2009 furnished among others the information that the first installment amounting to Rs. 2.44 crores received from the Central Government had been diverted for the salary of 500 Primary School Hindi Teachers engaged during the year 2006 who are presently discharging their duties as such. It is contended therefore, that the diversion of the aforesaid amount intended for the purpose of appointment of 687 Primary School Hindi Teachers during the year 2007-08 for payment of salary to a batch of 500 numbers of Primary School Hindi Teachers appointed during the year 2006 is highly illegal, improper and unjustified. When the aforesaid amount had been sanctioned and the money being at the hands of the State Government there is no justifiable ground on the part of the respondent authorities to deny their appointment as Primary School Hindi Teachers when the petitioners and others were selected for such appointment under the centrally sponsored scheme. 6. When the aforesaid amount had been sanctioned and the money being at the hands of the State Government there is no justifiable ground on the part of the respondent authorities to deny their appointment as Primary School Hindi Teachers when the petitioners and others were selected for such appointment under the centrally sponsored scheme. 6. The petitioners thus, being denied appointment have approached this Court by filing the instant writ petitions for a mandamus to the respondent authorities to engage each of them as Primary School Hindi Teachers and provide all service benefit with arrears with effect from 1.11.2008. 7. The State respondents by filing counter resisted both the writ petitions. The stand taken by the State respondents in both the Writ petitions is one and the same. In the counter it is contended that the selected candidates could not be appointed as Primary School Hindi Teachers on account of utilisation of Rs. 2.44 crores sanctioned by the Central Government for appointment of 687 Primary School Hindi Teachers during the 11th Plan, for payment of salary to 500 Primary School Hindi Teachers appointed in 2006 during the 10th Plan period. It is also contended by the State respondents in reply to paragraph-15 of the writ petition (WP(c) No. 22 of 2009) that they had relied solely on the services of 500 Primary School Hindi Teachers in running schools ail over the State and in absence of any instructions from the Central Government to terminate their service by 31.3.2007, respondents had to utilise the fund amounting to Rs. 2.44 crores to the salary of 500 Primary School Hindi Teachers. It is also contended that post of 687 Hindi Teachers had not been created and the fund amounting to Rs. 2.44 crores being under the same head of those of 500 Hindi Teachers appointed, the same had been utilised in the payment of salary to them. In such a situation it is contended that the allegation of diversion of the fund does not arise. In reply to the statement made in paragraph-16, 17 and 18 of the writ petition the State respondents further contended that efforts were made for creation of 687 post for Primary School Hindi Teachers but the same were not created and filled up. In reply to the statement made in paragraph-16, 17 and 18 of the writ petition the State respondents further contended that efforts were made for creation of 687 post for Primary School Hindi Teachers but the same were not created and filled up. Publication of select lists with a request to collect their engagement order and join their respective place of posting with effect from 1-11-2008 and then 15 days, it is contended, does not confer any right to the petitioners for appointment. In the facts situation, the respondents prayed for dismissal of both the writ petitions. 8. We have heard Mr. PC. Prusty, learned Counsel for the writ petitioners (in both the writ petitions) as well as Mr. N. Sailo, learned Additional Advocate General for the State respondents (in both the writ petitions). 9. Introduction of centrally sponsored scheme under the name and style "Scheme of Financial Assistance for Appointment of Training of Hindi Teachers in non-Hindi speaking States/UTs." for propagation and promotion of Hindi language in non Hindi speaking states and UTs and its application therefore has not been denied by the State respondents. The State respondents have also not denied the holding of interview and selection of the writ petitioners and others for appointment as Primary School Hindi Teachers in the primary schools in the State of Mizoram during the year 2008 under 11th Plan period. It is also not denied by the State respondents that the State of Mizoram did not receive an amount of Rs. 2.44 crores sanctioned by the President under the scheme for appointment of 687 Primary School Hindi Teachers during 2007-08. All these above facts find place in the counter filed by the State respondents. 10. Mr. P.C. Prusty, learned Counsel for the petitioners in view of such admissions submitted rather laid emphasis that the petitioners being included in the select lists prepared for the purpose of appointing them as Primary School Hindi Teachers during 11th Plan period which came to be prepared after due selection, refusal to engage each of the petitioner as Primary School Hindi Teachers under the scheme, when the money had been sanctioned for the purpose by the Central Government is not justified on the part of the respondents. The entire exercise was executed for the purpose of appointment of Hindi Teachers under the central scheme. The entire exercise was executed for the purpose of appointment of Hindi Teachers under the central scheme. The utilisation of money sanctioned for appointment of 687 Primary School Hindi Teachers during the year 2007-08, in the payment of salary to 500 teachers appointed during the year 2006 under 10th Plan period is illegal and unjustified. 11. Central financial assistance being 100% and in view of sanction of Rs. 2.44 crores meant for appointment of 687 Primary School Hindi Teachers during 2007-08, State respondents cannot deny appointment of the petitioners on the ground of utilisation of the fund as aforesaid (first installment) and also on account of direction to expend the money under the same head. It was argued by Mr. P.C. Prusty that the vacancies had been notified to the employment exchanges of the State of Mizoram and accordingly asked for application to fill up the posts of Primary School Hindi Teachers. Pursuant to that notification applications were received and after scrutiny, the petitioners were allowed to sit in the written examination in which they along with some others became successful. The successful candidates in the written examination were called for viva voce test held with effect from 11th to 14th October, 2008 and accordingly prepared the select list district wise. Petitioners are among the selected candidates, therefore, the claim of the respondents that the petitioners could not be appointed or engaged on account of non- creation of post by the Government cannot be raised after completion of the entire exercise. Therefore, it was argued by Mr. Prusty that the State respondents are in obligation to engage each of the petitioners and Ors. whose name appear in the select list as Primary School Hindi Teachers on and from 1.11.2008. 12. This piece of argument advanced by Mr. Prusty, learned Counsel for the petitioners had been emphatically denied by Mr. N. Sailo, learned Additional Advocate General for the State respondents. Referring to the form of notification of vacancies to the Employment Exchange (Annexure-1), "Head" under S1. No. 4 in particular, it was argued that applications were invited from the eligible candidates for preparation of a panel for future vacancies. It was argued by Mr. Sailo this does not necessarily mean that vacancies were already there during that period. Referring to the form of notification of vacancies to the Employment Exchange (Annexure-1), "Head" under S1. No. 4 in particular, it was argued that applications were invited from the eligible candidates for preparation of a panel for future vacancies. It was argued by Mr. Sailo this does not necessarily mean that vacancies were already there during that period. In view of the submissions advanced by the learned Counsel for both the parties in this context we may refer to the stage of sanction of Rs. 2.44 crores by the Central Government for the appointment of 687 Primary School Hindi Teachers during 2007-08. From the annexures it would appear that the applications were received from the candidates through Employment Exchanges in anticipation of sanction of Rs. 2.44 crores vide letter dated 30.11.2007 and, therefore, in the notification, the Director of School Education, Mizoram, Aizawl under "Head" at Sl. No. 4 called the applications for preparation of a panel for future vacancies. There is a distinction between the present vacancy and the future vacancy. Vacancy which may arise in future can be said as future vacancy, therefore, per notification (Annexure-1) we may come to conclusion that when the applications were called there were no vacancies available. Creation of vacancy in other words post is a subject within the domain of the State Government or the Central Government. Therefore, appointment to a particular post is always dependent upon the availability of vacancy. When there is no vacancy available even in spite of selection of some of the candidates the State Government or the Central Government or the Department would be handicapped to appoint the selected candidates. The same situation also prevails in these two cases. When the select lists were prepared, no vacancies were available in the department. Now, the issue before us is whether without creation of 687 Nos. of post of Primary School Hindi Teacher, selected candidates can be appointed as Primary School Hindi Teachers under the scheme even in availability of fund. Perhaps this issue can be answered, in my humble opinion in negative. In the notification (Annexure-1) it is nowhere indicated that applications were called from the eligible candidates for filing up 687 posts of Primary School Hindi Teachers during the year 2007-08 under 11th Plan period. When Annexure-1 remained silent, claim of the petitioners for appointment as Primary School Hindi Teachers perhaps cannot subsist. 13. In the notification (Annexure-1) it is nowhere indicated that applications were called from the eligible candidates for filing up 687 posts of Primary School Hindi Teachers during the year 2007-08 under 11th Plan period. When Annexure-1 remained silent, claim of the petitioners for appointment as Primary School Hindi Teachers perhaps cannot subsist. 13. Respondents in their counter very specifically contended that the petitioners could not be appointed due to non availability of post. This contention appears to have some leg to stand in view of the discussions made in the foregoing paragraph. 14. Mr. P.C. Prusty, learned Counsel for the petitioners in support of claim of appointment/engagement of the writ petitioners as Primary School Hindi Teachers on and from 1.11.2008 relied in the decision rendered in the case between Jyotish Kaiborta and Ors. v. State of Assam and Ors. reported in (2009) 4 SCC 516 and contended that a candidate once selected cannot be denied appointment in the post for which he is selected. It was argued by him that all the petitioners and some others were duly selected by the respondent authorities for appointing them as Primary School Hindi Teachers under a centrally sponsored scheme under the name and style "SCHEME OF FINANCIAL ASSISTANCE FOR APPOINTMENT OF TRAINING OF HINDI TEACHERS IN NON-HINDI SPEAKING STATES/UTs," and, therefore, the State respondents cannot deny their appointment in the post. Mr. Prusty specifically relied in the paragraph 24 of the judgment rendered by the Apex Court which reads as under: 24. The civil appeal arising from SLP(c) No. 12129 of 2006 is accordingly allowed and the authorities concerned are directed to fill up the twelve vacancies of LDAs in the Transport Department from the select list dated 24.6.2003 strictly in order of merit (six from the selected candidates and six from the waiting list). In case any of the candidates from the select list dated 24.6.2006 does not turn up in response to the offer the vacancy would be filled up from the fresh selection taken up as per the High Court direction. The facts involved in the case (supra) are entirely different from the facts involved in our present cases. In case any of the candidates from the select list dated 24.6.2006 does not turn up in response to the offer the vacancy would be filled up from the fresh selection taken up as per the High Court direction. The facts involved in the case (supra) are entirely different from the facts involved in our present cases. This High Court having noticed suspicious pattern in the select list invalidated in other words rejected it on the ground 'that some candidates obtained very high marks in viva voce where as those not selected obtained very low marks in viva voce. In such a circumstance the Apex Court failed to accede to the views of this High Court and accordingly directed filling of the vacancies as per High Court direction. In the case (supra) it is nowhere mentioned that there was no vacancy at all to fill up. This situation being prevailed in the case (supra), the ratio laid down therein cannot perhaps be fitted to in our present cases. This Court does not find any force in the submission advanced by Mr. P.C. Prusty, the learned Counsel for the petitioners. The ratio laid down by the Supreme Court in the case (supra) has no application in the present cases. 15. Reliance is also put by Mr. P.C. Prusty in the ratio laid down in the case between Union of India and Ors. v. Rajesh P.U., Puthuvalnikathu and Anr. reported in (2003) 7 SCC 285 . This ratio as laid down by the Supreme Court also would have no application in our present cases. In the case (supra), the Central Bureau of Investigation (for short CBI) for filling up of 134 posts of Constable invited applications on 29.3.2000 indicating qualification and stipulating for holding of written examination and interview fixing the date of recruitment as 24.4.2000, several persons including private respondents applied and candidates were under going written test on 24.4.2000 and interview on 30.4.2000 at Hyderabad. After passing the same, the contesting respondents were served with a communication dated 25.5.2000 that he was selected for appointment for the post of Constable. Chief Medical Officer, Civil Hospital, Cherthala was directed to examine the respondents certifying the candidates medical fitness and asked the candidate to report before the other medical officer for the purpose. After passing the same, the contesting respondents were served with a communication dated 25.5.2000 that he was selected for appointment for the post of Constable. Chief Medical Officer, Civil Hospital, Cherthala was directed to examine the respondents certifying the candidates medical fitness and asked the candidate to report before the other medical officer for the purpose. While the candidates including the respondents were anxiously waiting for orders of appointment the respondent and other selected candidates were informed by communication dated 8.1.2001 that though they were selected for appointment and were asked to under go medical test, the selection process for appointment already conducted and list of selected candidates has been cancelled by the competent authority of CBI. When approached, the Central Administrative Tribunal (CAT) challenging the selection making allegation of favouritism and nepotism on the part of the officers conducting the Physical Efficiency Test, the Central Administrative Tribunal dismissed the application. The respondents approached the High Court. The Division Bench after scrutiny of the committee's report constituted for the purpose allowed the writ petition. The Union of India being aggrieved approached the Apex Court, which also dismissed the appeal. While dismissing the appeal the Supreme Court held that where from out of the selectees it was impossible to weed out the beneficiaries of one or the others irregularities or illegalities, there was no justification do deny appointment of those selected candidates which selection was not vitiated in any manner. In this case (supra) we have already noticed that for filling up of 134 post of Constable in CBI applications were invited which would mean and mean that Such number of vacant posts were available in the department. In our cases as it appears from the notification (Annexure-1) we did not have such information that 687 post of Primary School Hindi Teachers were available during the period, therefore, to the humble view of this Court the ratio laid down by the Apex Court in the case (supra) would be not applicable in our present cases. Therefore, this Court does not find any force in the argument advanced by Mr. P.C. Prusty on this point. 16. Refuting the submission of Mr. P.C. Prustry, learned Counsel for the petitioners, Mr. Therefore, this Court does not find any force in the argument advanced by Mr. P.C. Prusty on this point. 16. Refuting the submission of Mr. P.C. Prustry, learned Counsel for the petitioners, Mr. N. Sailo, learned Additional Advocate General for the State respondents strenuously argued that mere entry in the list of the names of a candidate does not give the right to be appointed though the select list have been prepared after holding examination and interview. When names of the petitioners appear in the lists for filling up of future vacancies, the candidates whose names appear therein, therefore, cannot insist or claim their appointment against non-existent post(s) or even if existed, mere entry of their names does not give rise the right to be appointed. On this point, Mr. Sailo relied in the decision in the case between The State of Haryana v. Subhash Chander Marwaha and Ors. reported in (1974) 3 SCC 220 ; in the case between Shankarsan Dash v. Union of India reported in (1991) 3 SCC 47 ; in the case between Punjab State Electricity Board and Ors. v. Malkiat Singh reported in (2005) 9 SCC 22 and in the case between Union of India and Ors. v. Ishwar Singh Khatri and Ors. reported in 1992 Supp (30 SCC 84. Relying on the ratio of the decisions it was argued by Mr. N. Sailo, learned Additional Advocate General that a candidate included in the merit list has no indefeasible right to appoint even if a vacancy exists. In paragraph-7 of the case in between Shankarsan Dash v. Union of India, (supra) the Apex Court held as follows: 7. It is not correct to say that if a number of vacancies are notified for appointment and adequate number of candidates are found fit, the successful candidates acquire an indefeasible right to be appointed which cannot be legitimately denied. Ordinarily the notification merely amounts to an invitation to qualified candidates to apply for recruitment and on their selection they do not acquire any right to the post. unless the relevant recruitment rules so indicate, the State is under no legal duty to fill up all or any of the vacancies. However, it does not mean that the State has the licence of acting in an arbitrary manner. The decision not to fill up the vacancies has to be taken bona fide for appropriate reasons. unless the relevant recruitment rules so indicate, the State is under no legal duty to fill up all or any of the vacancies. However, it does not mean that the State has the licence of acting in an arbitrary manner. The decision not to fill up the vacancies has to be taken bona fide for appropriate reasons. And if the vacancies or any of them are filled up, the State is bound to respect the comparative merit of the candidates, as reflected at the recruitment test, and no discrimination can be permitted. This correct position has been consistently followed by this Court, and we do not find any discordant note in the decisions in State of Haryana v. Subhash Chander Marwaha, Neelima Shangla v. State of Haryana, or Jatendra Kumar v. State of Punjab. The Apex Court while deciding the case between Punjab State Electricity Board and Ors. (supra) also relied the ratio laid down in the case Shankarsan Dash v. union of India, (supra) and in paragraph-4 of the judgment it was indicated as under: 4. The case of the appellant is that since ultimately several vacancies in the general category of the IPS remained unfilled, he was entitled to be appointed in one of them, and the authorities were not right in rejecting his representation. It has been contended that after calculating the number of vacancies in the IPS, it was announced that appointments would be made in 54 vacancies of general category and steps for recruitment were accordingly take. The appellant along with others appeared at the elaborate test held for the purpose and he was found qualified for the appointment. In that situation the respondent could not refuse to fill up the vacancies and proceed to appoint the appellant in the Police Services Group-'B'. It has been argued that the correct procedure in similar situation was followed with respect to the reserved category and the three vacancies arising in identical situation were filled up from the candidates selected for DANIP Service, and there was no justification to refuse similar benefit to the appellant in the general category. 17. Further, Mr. N. Sailo, learned Additional Advocate General also put emphasis that selected candidates have the right to appointment only against vacancies notified or available till the panel or select list is prepared. 17. Further, Mr. N. Sailo, learned Additional Advocate General also put emphasis that selected candidates have the right to appointment only against vacancies notified or available till the panel or select list is prepared. Therefore, list which have been prepared by the State respondents wherein the names of the petitioners are found available cannot automatically ensure right to appoint as Primary School Hindi Teachers since during the relevant period of time till the preparation of the list no vacancy was available. Mr. N. Sailo, in support of his contention to put emphasis in the decision rendered by this Apex Court in the case between Union of India and Ors. v. Ishwar Singh Khatri and Ors.; reported in 1992 Supp (3) SCC 84 (supra). 18. From all these decisions placed by Mr. N. Sailo, learned Additional Advocate General it would appear to this Court that mere inclusion of the names of the candidates in a select list cannot give rise an indefeasible right to appointment even if there is vacancy. In our present cases we are perhaps not fortunate enough to notice that there were 687 vacancies of Primary School Hindi Teachers during the relevant period. Argument put forward by Mr. N. Sailo appears to have strong basis for denying the claim of the writ petitioners. 19. Having considered the facts and circumstances of both the cases and the law laid down by the Apex Court, this Court finds no merit in the writ petitions as indicated above. Both the writ petitions are accordingly dismissed. No cost. 20. However, since 11th Plan period has not expired and the centrally sponsored scheme as indicated above is still continuing in the State of Mizoram, in the fitness of things, petitioners may submit representation(s) with the appropriate authority/Authorities to appoint them as Primary School Hindi Teachers under the scheme.