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2014 DIGILAW 25 (MAN)

Sorokhaibam Uttam Singh, and Anr. v. State of Manipur and Ors.

2014-02-28

LAXMI KANTA MOHAPATRA, N.KOSIWAR SINGH

body2014
JUDGMENT Acting C.J, These two writ appeals arise out of judgment and order dated 28.08.2008 passed by the learned Single Judge in 4(four) writ applications which were heard together and disposed of in a common judgment and order. 2. The 17 appellants in W.A. No. 84 of 2008 were the petitioners in W.P.(c) No. 1254 of 2005. The appellant in W.A. No. 55 of 2009 was the petitioner in W.P.(c) No. 1407 of 2005. 3. Brief history of the case is that pursuant to a requisition dated 02.04.1998 issued by the Revenue Department for filling up 34 posts of Mandols, DPC was held and recommendation was made. However, recommendation made by the DPC was not declared as a ban was imposed on direct recruitment by the State on 06.11.1999. The appellants, therefore, approached this Court in W.P.(c) No. 1007/2000 praying for publishing the recommendation made by the D.P.C. Though the state authority took a stand that because of the ban order, recommendation made by the DPC have not been disclosed, the Court disposed of the above writ petition on 27.08.2001 directing the publication of recommendation made by the D.P.C. on the premises that a ban order issued by the State Government cannot be a ground for not publishing or disclosing the recommendation made by the D.P.C. 4. In compliance of the said order, the recommendation made by the D.P.C. was published with the following conditions:- “The declaration of this result does not ipso facto create any right for any of the above listed candidates to claim employment in the Government and it is clarified that the publication is only for complying with the order of the Hon’ble High Court”. 5. Even after publication of the recommendation made by the D.P.C., appointment letters were not issued. The appellants through their association named as “All Manipur Mandol DPC Successful Candidates Association” filed W.P.(c) No. 902 of 2002 for a direction to the State Authorities to appoint the members of the said Association who had been recommended by D.P.C. against those 34 posts of Mandols. The said writ petition was dismissed on the ground that association was an un-registered association and accordingly, writ application at it’s instance is not maintainable. The said writ petition was dismissed on the ground that association was an un-registered association and accordingly, writ application at it’s instance is not maintainable. Thereafter, on 15.11.2005, the present set of writ petitions were filed challenging the requisition dated 15.11.2005 issued by the Revenue Department requisitioning names from the Director of Employment Exchange to fill up 69 posts of Mandols in the Revenue Department. The appellants and others filed the above 4(four) writ applications on the ground that having been recommended by D.P.C. for such appointment in the year 2002, their cases should be considered for such appointment and the remaining posts could be filled up by considering the candidates sponsored by the Employment Exchange. 6. In the said writ petitions, counter affidavits were filed by State respondents. It was contended in the counter affidavits that the DPC for selection of candidates to be appointed against 34 posts of Mandols in the Revenue Department was held in the year 1999. A ban was imposed on direct recruitment by the State Authorities w.e.f. 6th November, 1999 and all recommendations made by the different DPCs were freezed. Therefore, the recommendation made by the DPC in the year 1999 for the purpose of filling up of 34 posts of Mandols in the Revenue Department could not be acted upon. However, because of the order passed by the Court in W.P.(c) No. 1007 of 2000, recommendation made by the DPC was published on 25.03.2002. The further stand of the state authorities in the counter affidavit was that more than 1000 employees were working on ad-hoc basis in the Revenue and other Departments and they could not be removed because of restraint orders passed by the Court in several cases. Therefore, the State Government was required to take a policy decision to bring to an end to this ad-hoc employment and continuance of such employment on ad-hoc basis. After consideration of the facts and circumstances existing then, the state government took a policy decision on 24.09.2005 to fill up of the post in the Government departments held by ad-hoc employees against direct recruitment quota through open competition in accordance with relevant Recruitment Rules. Therefore, the Director of Employment Exchange was also requested to sponsor names for such appointment. After consideration of the facts and circumstances existing then, the state government took a policy decision on 24.09.2005 to fill up of the post in the Government departments held by ad-hoc employees against direct recruitment quota through open competition in accordance with relevant Recruitment Rules. Therefore, the Director of Employment Exchange was also requested to sponsor names for such appointment. The other stand taken by the State respondents in the counter affidavit was that DPC which considered the case of the appellants had been convened in the year 1999. Though the recommendation made by the DPC had not been published, it remained valied for a maximum period of 18 months and thereafter, such recommendation is to be deemed to be non-existent. Therefore, the case of the appellants could not be considered for appointment against the available vacant posts of Mandols in the Revenue Department. 7. Learned Single Judge, on the basis of the stand taken by the appellants as well as the State authorities, formulated four issues for consideration :- (i) Whether the DPC result declared on 25.03.2002 be treated to have been cancelled in view of para-4 of the OM dated 19.3.2001 or not? (ii) In the absence of challenge to the para-4 of the OM dated 19.3.2001, whether the Court can pass any effective order or not? (iii) Whether the validity period of the DPC result dated 25.3.2002 had expired or not? (iv) Whether the appellants have any right under law to seek a writ of mandamus/certiorari? 8. With regard to issue No. (i) and (ii), the learned Single Judge came to a conclusion that because of passage of time, the DPC result dated 25.03.2002 shall be treated to have been cancelled specifically with reference to O.M. dated 19.03.2001 which was not challenged by the appellants in the writ application. So far as the other two issues are concerned, though the learned Single Judge has not arrived at any conclusion, it appears that having held that recommendation made by the DPC had spent it’s force and stood cancelled by OM dated 19.03.2001, writ petitioners have no further right to claim for such appointment. 9. Shri H.S. Paonam, learned sr. So far as the other two issues are concerned, though the learned Single Judge has not arrived at any conclusion, it appears that having held that recommendation made by the DPC had spent it’s force and stood cancelled by OM dated 19.03.2001, writ petitioners have no further right to claim for such appointment. 9. Shri H.S. Paonam, learned sr. counsel appearing for the appellants in both the writ appeals submitted that though the appellants were duly selected by a DPC for appointment to the post of Mandol in the Revenue Department, an attempt was made by the State Government to regularize ad-hoc employee who were entered into service through back doors and therefore, the State Government should not be allowed to fill up the post of Mandols by regularizing the ad-hoc employee ignoring the appellants who were duly selected by the DPC for such appointment. It was also contended by Mr. Paonam, learned sr. counsel appearing for the appellants that the recommendation made by the DPC was declared in pursuance of this Court’s order dated 22.3.2001. Then also, there were hundreds of ad-hoc employees working in different departments including the Revenue Department and the policy decision said to be taken on 24.09.2005 could also be taken in 2002 and had such a policy decision been taken in the year 2002, all the appellants who had been recommended by the DPC could get employment against the post of Mandols. 10. Shri A. Mohendra, learned counsel appearing for the state respondents submitted that merely because, appellants were recommended by the DPC, such recommendation by itself does not confer any right on them to claim for such appointment. Therefore, the 4(four) writ applications filed by the appellants and others, no such relief could also be granted. Apart from the above, it was further contended by Shri Mohendra that by order of the Court, recommendation of the DPC was disclosed/published on 25.03.2002 and the requisition was issued to the Director of Employment Exchange on 15.11.2005. As per Rules, such recommendation made by the DPC had already spent its force and by OM dated 19.03.2001 such recommendation had been cancelled. Therefore, petitioners cannot claim for appointment on the basis of such recommendation which had spent its force by efflux of time. As per Rules, such recommendation made by the DPC had already spent its force and by OM dated 19.03.2001 such recommendation had been cancelled. Therefore, petitioners cannot claim for appointment on the basis of such recommendation which had spent its force by efflux of time. It was also contended that much prior to declaration of the recommendation made by the DPC, OM dated 19.03.2001 was issued cancelling the recommendation made by the DPC because of the imposition of ban on direct recruitment. The said decision of OM dated 19.3.2001, was also not challenged in the writ applications. Therefore, the learned Single Judge rightly held that in absence of any challenge to OM dated 19.3.2001 by which the recommendation made by DPC had already been cancelled, the appellants had no right to claim for appointment on the basis of such recommendation. In view of the above finding, the decision relied upon by the appellants in the case of O. Premkumar Singh & Ors –vs- State of Manipur and ors reported in 2005(4) GLT 684 has no application. 11. There is no dispute that in order to fill up 34 posts of Mandols in the Revenue Department, a DPC was convened and DPC made recommendation for appointment to the said posts. However, before the recommendation made by the DPC could be published, a ban was imposed by the State Government prohibiting direct recruitments. The said ban was imposed on 6.11.1999. In view of the above ban imposed by the State Government, by a subsequent OM dated 19.3.2001, the recommendation made by the DPC in 1999 was cancelled. However, before the above OM dated 19.3.2001 was issued, the appellants filed W.P.(c) No. 1007 of 2000 before this Court for a direction to the State respondents to declare the result of the DPC. The said writ application was disposed of on 27.08.2001 directing the State Government to publish the result. Possibly OM dated 19.3.2001 cancelling the result had not been brought to the notice of the Court when such order was passed. In pursuance of the order passed in the above writ petitions, recommendation made by the DPC was published with a condition that the declaration of the result does not ifso facto create any right in favour of the appellants to claim any right for employment. Publication of the result was only in compliance of the order of the Court. 12. In pursuance of the order passed in the above writ petitions, recommendation made by the DPC was published with a condition that the declaration of the result does not ifso facto create any right in favour of the appellants to claim any right for employment. Publication of the result was only in compliance of the order of the Court. 12. Ban order imposed by the State Government in respect of the direct recruitment to different posts is on the basis of financial condition of the state. Such a policy decision could be taken by the state depending on the financial condition of the state. It was also the stand of the State respondents in the counter affidavit filed in the writ application that by way of austerity and necessitated by financial crunch, such a policy decision was required to be taken. If the State Government took such a decision, such a policy decision is not open for judicial review unless such policy decision is arbitrary and unreasonable. Reference in this connection made in the case of “State of Punjab & ors –vs- Ram Lubhaya Bagga and ors reported in (1998) 4 Supreme Court Cases 117. Even though it is not in dispute that the appellants were recommended by the DPC held in 1999 for appointment to the post of Mandol, they have no right to claim for such appointment only on the basis of such recommendation. This position of law is also not disputed by Shri H.S. Paonam, learned counsel for the appellants. His contention is that if at a later stage, State Government took a decision to fill up those posts from amongst ad-hoc employees who had entered into service from back door, preference should have been given to the appellants who had been duly selected by a DPC for such appointment. Above argument of the learned sr. counsel, Mr. Paonam, may appear to be very convincing but at the same time, the Court cannot overlook the background on the basis of which Government took a policy decision to fill up those posts of Mandols from amongst ad-hoc employee working in the department. As stated in the counter affidavit filed by the state respondents, the ad-hoc employee were working in the department for a considerable length of time and several writ applications were filed by them for regularising their services. As stated in the counter affidavit filed by the state respondents, the ad-hoc employee were working in the department for a considerable length of time and several writ applications were filed by them for regularising their services. Interim orders were also passed by the Court prohibiting the State Government from dispensing with their services. In such situation, Government had to take a policy decision whether to consider them for regularization through open competition. 13. The other factor which was also considered in taking such policy decision is that service of such ad-hoc employee are not regulated by the service rules and they could not be subjected to departmental proceedings for lapses on their part. In order to overcome such a situation, if the State Government took a policy decision to consider those ad-hoc employee for appointment as Mandols through open competition, we are of the view that such a decision is a bonafide and cannot be found fault with. Such policy decision is neither malafide nor arbitrary. Apart from the above, the selection of the appellants by the DPC had already been cancelled by OM dated 19.3.2001 and the said OM was not the subject matter of the challenge in the writ application. The earlier order passed by the Court for declaration of the result possibly had been passed as OM dated 19.3.2001 was not brought to the notice of the Court under which recommendation made by the DPC had already been cancelled. 14. Having held that selection of a candidate for appointment to particular post by itself does not confer any right to claim for such appointment and in view of the OM dated 19.3.2001 cancelling the recommendation made by the DPC which was not challenged by the appellants as well as policy decision of the State Government to regularize service of ad-hoc employee against direct recruitment posts in an open competition not being arbitrary or unreasonable, we find no justification to interfere with the impugned order of the learned Single Judge. Both the writ appeals are accordingly dismissed.