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2014 DIGILAW 12 (MEG)

Swagata Ghosh and Smti. Rajlaxmi Mishra v. State of Meghalaya

2014-02-17

PRAFULLA C.PANT, S.R.SEN

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Judgment Prafulla C. Pant, C.J. This writ appeal is directed against the judgment and order dated 21.09.2012 passed by the learned Single Judge in WP (C) (SH) No. 363 of 2011 whereby, the writ petition has been dismissed. Heard the learned counsel for the parties and perused the record. 2. Brief facts of the case are that, the respondent No. 4 is the Managing Committee of Anath Ashram L.P. School, Mawprem, Shillong. The said respondent issued an advertisement on 10.12.2009 published in the newspaper (Annexure-1 of the writ petition) inviting applications from the qualified persons for the post of Assistant Teacher in the school. In response to the said advertisement, the petitioners and the respondent No. 5 among others submitted their applications. It appears that more than 30 candidates submitted their applications and a written test was held on 21.03.2010, where one Smti. Rina Paul secured 56.5% (highest marks) in the written test. The respondent No. 5 Smti. Maunita Paul secured 50% (next highest) in the written test and one Roma Paul stood third with 48.5% marks. Those who secured 30% and above marks in the written examination were called for the interview. Since the petitioner No. 1 Smti. Swagata Ghosh secured only 27 marks and the petitioner No. 2 Smti. Rajlaxmi Mishra secured 28 marks, as such, they could not qualify for the interview. In all, 16 candidates were called for the interview, out of which 3(three) candidates found their names in the select list and they were Smti. Rina Paul, Smti. Maunita Dutta and Smti. Roma Paul. 3. The respondent No. 4 Managing Committee, Anath Ashram L.P. School, Mawprem, Shillong filled two vacancies including one which arose on 01.02.2011 and sought approval of appointment of not only Rina Paul, but also that of Maunita Dutta (respondent No. 5) for their appointments in the Anath Ashram L.P. School, Mawprem, Shillong. The appointment of Smti. Rina Paul and Smti. Maunita Paul were approved by the Deputy Inspector of Schools, Shillong vide his letters dated 11th July 2011 and both of them joined their duties as Assistant Teachers. 4. The writ petitioners filed the writ petition No. WP (C) (SH) 363 of 2011 challenging the appointment of respondent No. 5 on the ground that another vacancy against which she was appointed was not advertised by the respondent No. 4. 4. The writ petitioners filed the writ petition No. WP (C) (SH) 363 of 2011 challenging the appointment of respondent No. 5 on the ground that another vacancy against which she was appointed was not advertised by the respondent No. 4. After the affidavits were exchanged and hearing the parties, the learned Single Judge held that though, it is required that the appointment be made against the post advertised only, but in view of the principle of law laid down in (2010) 2 SCC 637 : Rakhi Ray and others versus High Court of Delhi and others, and (1996) 4 SCC 319 : Prem Singh and others versus Haryana State Electricity Board and others; in exceptional cases another anticipated vacancy could have been filed by the same selection process on the basis of the policy decision taken in this regard. Being aggrieved by the said order dated 21.09.2012 passed by the learned Single Judge; this appeal has been preferred by the writ petitioners. 5. The learned counsel for the writ petitioners/appellants referred to the cases of (2011) 3 SCC 436 : State of Orissa and another versus Mamata Mohanty and (2007) 8 SCC 264 : "M.P. State Coop. Bank Ltd., Bhopal versus Nanuram Yadav and others and 1994 Supp (3) SCC 308: State of Bihar and another versus Madan Mohan Singh and others. It is argued that the respondent No. 4 has acted illegally in making the appointment beyond a number of posts advertised for the recruitment. The advertisement published in the newspaper by the respondent No. 4 reads as under: Situation Vacant Application with complete bio-data invited for the post of an Assistant Teacher in the Anath Ashram L.P. School, Mawprem (Bengali Medium) as per government pay scale. The minimum qualification is H.S.S.L.C. or equivalent, Age should be between 18 years to 30 years as on 1.3.2010. Candidates would be required to appear before a Selection Board at their own cost. Application should be submitted in the school office between 9 A.M. to 10 A.M. on working days. The last date for submission of application is 16th Dec. 2009, secretary Anath Ashram L.P. School. 6. Candidates would be required to appear before a Selection Board at their own cost. Application should be submitted in the school office between 9 A.M. to 10 A.M. on working days. The last date for submission of application is 16th Dec. 2009, secretary Anath Ashram L.P. School. 6. Admittedly, in response of the above advertisement, the writ petitioners and respondent No. 5 among others, participated in the selection process Annexure-C filed with the counter affidavit of respondent No. 4, in the writ petition shows that the writ petitioners did not even qualify the written test as they could not even secure 30% marks in the written examination. As such, they were not qualified for the interview and only those 16 candidates who secured more than 40% marks were interviewed by the Board. It is also not disputed that one Rina Paul secured highest marks with 56.5% while respondent No. 5 Maunita Dutta stood second with 50% and Roma Paul stood third with 48.5% marks. After interview, they were placed in the same order as in the select list prepared. It is also not disputed that the vacancy which was advertised arose due to the retirement of one Shri Ranjit Kr. Deb and within 6(six) months after the selection process was prepared, the next vacancy arose on account of the retirement of one Smti. Krishna Basak. 7. Learned counsel for the respondent No. 4 submitted that, advertisement of each post separately in such a short span was not practical and considering difficulties and in the interest of the students it could nor be done. In the circumstances, a policy decision was taken by the Managing Committee to appoint the respondent No. 5 (Next in the select list) with the approval of the Deputy Inspector of Schools on behalf of the appellants. 8. It is pointed out by learned counsel for appellants that the respondent No. 5 is the daughter of the headmaster of the school. However, it is conceded that the said headmaster did not participate in selecting the candidates. 9. Learned counsel for the respondent No. 4 submitted that to do complete justice, the learned Single Judge while dismissing the writ petition observed that the petitioners be allowed to appear in the second advertisement which was issued meanwhile for the next (third post which fell vacant). 10. 9. Learned counsel for the respondent No. 4 submitted that to do complete justice, the learned Single Judge while dismissing the writ petition observed that the petitioners be allowed to appear in the second advertisement which was issued meanwhile for the next (third post which fell vacant). 10. Having considered the submissions advanced by the learned counsel for the parties and after going through the cases referred above, we are of the view that the Impugned order dated 21.09.2012 passed by the learned Single Judge in WP (C) (SH) No. 363 of 2011, in the above facts and circumstances, requires no interference of this court. Accordingly, the writ appeal is dismissed.