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2015 DIGILAW 75 (MEG)

Nelson Kharbani v. State of Meghalaya

2015-06-08

S.R.SEN, T.NANDAKUMAR SINGH

body2015
JUDGMENT : T. Nandakumar Singh, J. Heard Ms. R Paul, learned counsel for the appellants and Mr. ND Chullai, learned Sr. GA assisted by Mr. R Gurung, learned GA appearing for the respondents. 2. These two writ appeals challenging the order of the learned Single Judge dated 24.10.2013 passed in WP(C)No.174/2013 filed by the appellant Shri. Nelson Kharbani and judgment and order of the learned Single Judge dated 24.10.2013 passed in WP(C)No.175/2013 filed by the appellant Shri. Elwin Harris Kharshiing, are jointly heard for being disposed of by a common judgment and order. 3. By an order of this Court dated 21.05.2015, learned counsel appearing for the parties were permitted to file their written arguments within two weeks. The respondents had filed their written arguments. The appellants, inspite of giving two weeks’ time for filing their written arguments, have not filed their written arguments. The writ petitions had been filed praying similar relief basing on similar questions of fact and law. The relief sought for in WP(C)No.174/2013 is quoted hereunder:- “ In the premises it is must humbly prayed that Your Lordships may be pleased to: 1) Admit this petition, call for the records, issue Rule calling upon the Respondents to Show Cause as to why a Writ of Quo Warranto be not issue directing the Respondents to declare/show the authority under which the Select List pursuant to Notification dated 7th September, 2010 was extended beyond the validity period of one year. 2) Issue a Writ of mandamus directing the State Respondents to forthwith withdraw/recall/and for otherwise forbear from giving effect to all appointments made in terms of the select list in pursuant to Notification dated 7th September, 2010. 3) Issue a writ of certiorari quashing and setting aside the appointments made in terms of all select list pursuant to the Notification dated 7th September, 2010 and on cause or causes being shown and upon hearing the parties be further pleased to make the Rule absolute and/or may pass such further or other Order or Orders as Your Lordships may deem fit and proper. And for this act of kindness shall ever pray.” 4. And for this act of kindness shall ever pray.” 4. On perusal of the relief sought for in the said two writ petitions i.e. WP(C)No.174/2013 and WP(C)No.175/2013, it appears that the appellants filed the writ petitions challenging the extension of validity period of the select list dated 07.09.2010 beyond one year and prayed for quashing the said select list dated 07.09.2010. The appellants/writ petitioners are not the selected candidates under the said select list dated 07.09.2010 and also the appellants/writ petitioners did not appear the selection test for appointment to the post of MPS/MCS conducted by the Meghalaya Public Service Commission (for short ‘MPSC’) in pursuance of the advertisement dated 22.11.2006. Since the said two writ petitions had been filed on the similar questions of fact and law, in order to avoid repetition of fact, the fact of the case of WP(C) No.174/2013 is briefly noted. The respondent No.4 MPSC in the year 2001 had issued an advertisement on 15.05.2001 for recruitment to 14 posts of MPS by direct recruitment. In response to the said advertisement dated 15.05.2001, the petitioner and others had applied for the said 14 posts of MPS officers. After completing the test, the select list of 32 (thirty two) selected candidates was also prepared and published on 22.12.2003. In that select list published on 22.12.2003, the name of the writ petitioner Shri. Nelson Kharbani appeared at Sl.No.24 and the name of the writ petitioner of WP(C)No.175/2013 Shri. Elwin Harris Kharshiing appeared at Sl.No.30. Out of the said select list consisting of 32 (thirty two) selected candidates, 25 (twenty five) selected candidates had given appointments as MPS officers. But the writ petitioners were not appointed. Being aggrieved, the writ petitioner of WP(C)No.174/2013 filed WP(C)(SH)No.402/2004 before the erstwhile Gauhati High Court challenging the decision of the State Govt. for not appointing him to the post of Meghalaya Police Service (for short ‘MPS’); the said writ petition i.e. WP(C) (SH) No.402/2004 was subsequently withdrawn by the writ petitioner on assurance being given by the respondents. However, when the same did not materialize, the petitioner again filed another writ petition i.e. WP(C)(SH)No.269/2008, which was dismissed by this Court (Single Bench) in merit vide order dated 28.10.2009. After the dismissal of the said writ petition i.e. WP(C)No.269/2008, the petitioner filed another writ petition i.e. WP(C) (SH)No.349/2012, which was disposed of on 11.02.2013 at the Motion stage. However, when the same did not materialize, the petitioner again filed another writ petition i.e. WP(C)(SH)No.269/2008, which was dismissed by this Court (Single Bench) in merit vide order dated 28.10.2009. After the dismissal of the said writ petition i.e. WP(C)No.269/2008, the petitioner filed another writ petition i.e. WP(C) (SH)No.349/2012, which was disposed of on 11.02.2013 at the Motion stage. It is stated that under the said order of this Court dated 11.02.2013, the respondent No.1 was directed to consider the representation of the petitioner and to dispose of the representation within a month from the date of the order i.e. 11.02.2013 and also directed the Registry to furnish the copy of the said order to the learned Advocate General within 48 hours, who shall in turn communicate the matter to the concerned respondent. As the respondent No.1 did not dispose of the said representation within the period stipulated above under the said order of this Court dated 11.02.2013, the petitioner filed Contempt Case No.6(SH)2013, which was disposed by granting liberty to the petitioners to file a proper petition. It is also stated that the judgment and order of this Court (Single Bench) dated 28.10.2009 for dismissing the second writ petition i.e. WP(C)No.(SH)269/2008 was also affirmed by the Division Bench of this Court vide judgment and order dated 14.06.2011 by dismissing the writ appeal i.e. WA (SH) No.56/2010 filed against the said judgment and order of the learned Single Judge dated 28.10.2009. 5. It appears from the record that all the writ petitions challenging the decision of the State respondents not to appoint the petitioners as MPS officers inspite of their names appearing in the said select list dated 22.12.2003 had already been decided finally in the said writ petitions as well as writ appeals. It is also submitted by the learned counsel for the appellants that against the said judgment and order of the Division Bench dated 14.06.2011 passed in WA (SH) No.56/2010, an SLP had been filed in the Apex Court and the said SLP is still pending. 6. The present writ petitions i.e. WP(C)No.174/2013 and WP(C) No.175/2013 are not related with the said select list dated 22.12.2003, in which the names of the writ petitioners appeared. As stated above, the present writ petitions are not the candidates for the post of MPS advertised vide advertisement dated 22.11.2006. 6. The present writ petitions i.e. WP(C)No.174/2013 and WP(C) No.175/2013 are not related with the said select list dated 22.12.2003, in which the names of the writ petitioners appeared. As stated above, the present writ petitions are not the candidates for the post of MPS advertised vide advertisement dated 22.11.2006. It appears from the pleadings of the writ petitions as well as writ appeals that they (writ petitioners) are challenging the extension of the validity period of the select list dated 07.09.2010 for more than one year. Mr. ND Chullai, learned Sr.GA appearing for the respondents submits at the Bar that by giving sufficient reason, the validity of the select list can be extended for more than a year. In the present case, the present writ petitions, who are not the selected candidates, are not even alleging that the State respondents were bias and arbitrary in extending the validity period of the select list dated 07.09.2010. What is alleged in the present writ petitions is that the respondents had taken a stand in extending the validity period of the said select list dated 07.09.2010 contrary to the stand that they had taken in the earlier writ petitions filed by the present writ petitioners. 7. The question calls for decision in the present writ petitions is only for academic purpose inasmuch as, the writ petitioners are not getting any benefit even if full relief sought for in the present writ petitions i.e. WP(C) No.174/2013 and WP(C) No.175/2013 are granted. In the above factual backdrop, the learned Single Judge passed the impugned judgment and order dated 24.10.2013 that since the cases regarding appointment of the writ petitioners to the post of MPS officers had already been decided by this Court in earlier two writ petitions, fresh writ petitions i.e. present writ petitions (i.e. WP(C) No.174/2013 and WP(C)No.175/2013) in the matter have no force. For easy reference, the operative portion of the judgment and order of the learned Single Judge dated 24.10.2013 is quoted hereunder:- “….. By means of this writ petition, the writ petitioner has challenged the select list issued by the respondent authorities vide notification dated 7th September, 2010. Brief facts of the case are that Meghalaya Civil Service and Meghalaya Police Service examination was held in 2001 and the first select list was prepared in the year 2003. By means of this writ petition, the writ petitioner has challenged the select list issued by the respondent authorities vide notification dated 7th September, 2010. Brief facts of the case are that Meghalaya Civil Service and Meghalaya Police Service examination was held in 2001 and the first select list was prepared in the year 2003. It appears that in the first round of litigation, WP(C) (SH) No. 400 of 2004 was filed which was withdrawn by the writ petitioner keeping in mind that the respondent authorities were ready to consider his grievance. Thereafter, the second WP(C) (SH) No. 269 of 2008 was filed by the writ petitioner which was dismissed vide judgment and order dated 28-10-2009 on merits. From the record, it further appears that a WA (SH) No. 56 of 2010 was filed by the writ petitioner which was also dismissed by the Division Bench vide its order dated 14-6-2011. Now lis appears to be pending before Hon’ble the Supreme Court. The said fact is apparent from the order dated 7-3-2013 (copy at Annexure-4 to the writ petition), the representation of the writ petitioner was rejected. The representation appears to have been filed by the present writ petitioner after filing the third WP(C) (SH) No. 349 of 2012 which was disposed of vide order dated 11-2-2013. Having heard the learned counsel for the parties, and after considering the papers in record, this Court is of the view that this fresh writ petition in the matter has no force. …..” 8. We have given our anxious consideration to the submissions of the learned counsel appearing for the parties, pleadings of the writ petitioners in the writ petitions i.e. WP(C)No.174/2013 and WP(C) No.175/2013 and also judgment and order of this Court (Division Bench) dated 14.06.2011 passed in WA (SH)56/2010, and we are of the considered view that the appellants have utterly failed to make out any material for interfering with the impugned judgment and order of the learned Single Judge dated 24.10.2013 passed in WP(C) No.174/2013 and the impugned judgment and order of the learned Single Judge dated 24.10.2013 passed in WP(C) No.175/2013. Accordingly, the present writ appeals are devoid of merit, thus hereby dismissed the writ appeals.