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2016 DIGILAW 49 (MEG)

Riquoma Rq. Laloo v. State of Meghalaya

2016-11-08

DINESH MAHESHWARI, VED PRAKASH VAISH

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JUDGMENT : DINESH MAHESHWARI, J. 1. The petitioner, who had been one of the candidates in the process of selection by way of direct recruitment to the post of Inspector of Taxes, as taken up by the respondent No. 2 Meghalaya Public Service Commission ["the Commission"] under the Advertisement dated 28.09.2007, has preferred this writ petition essentially with the submissions that the said process was for selection only against 41 (forty one) vacancies and hence, the appointment of respondents No. 5 to 10 on 6 (six) extra vacancies was entirely unjustified and illegal. 2. In a brief reference to the relevant background aspects, it could be noticed that the Commission issued the common advertisement dated 28.09.2007 inviting applications for recruitment to different posts with the Government of Meghalaya. At item No. 25 thereof, the post in question i.e., the post of Inspector of Taxes was advertised in the following manner: "25. Some posts of Inspector of Taxes under Taxation Department. Scale of pay: Rs. 5300-150-6200-EB-160-7480-170-9180/-P.M. Age Limit: 18 to 27 years. Upper age limit is relaxable by 5 years in case of candidates belonging to SC/ST community. No age limit for those already in Meghalaya Government service provided they entered Government service within the prescribed age limit. Educational Qualification: Bachelor's Degree in Arts, Science, Commerce of a recognised University. Essential: A candidate shall be required to undergo medical examination before appointment to the service." 3. It is at once noticeable that specific number of vacancies for the post of Inspector of Taxes was not stated in the advertisement in question. It is also noticed that though the vacancies were specified in relation to various other posts but then, it was also provided in the advertisement that such numbers were tentative and were subject to change at the time of recruitment in the following terms: "The number of posts indicated in this Advertisement are tentative and subject to change at the time of actual recruitment." 4. Further, as per the general terms of advertisement, the upper age limit was available for relaxation by 5 years for Scheduled Caste/Scheduled Tribe candidates. 5. Further, as per the general terms of advertisement, the upper age limit was available for relaxation by 5 years for Scheduled Caste/Scheduled Tribe candidates. 5. It appears that in relation to the post of Inspector of Taxes, later on, the Under Secretary to the Government of Meghalaya in its Excise, Registration, Taxation and Stamps Department sent a communication dated 17.09.2010 to the Deputy Secretary of the Commission, to the effect that there were "41 (forty one) numbers of vacancies of the post of Inspector of Taxes to be filled up by direct recruitment." 6. It is not in dispute that after completing the selection process for the post of Inspector of Taxes, the Commission forwarded a select list of 65 candidates on 28.09.2010 with the petitioner being included therein at serial number 49. Thereafter, by the order dated 24.02.2011, as many as 43 selected candidates were appointed on the post of Inspector of Taxes, including the respondents No. 5 and 6 at serial number 42 and 43 respectively. Thereafter, by yet another appointment order dated 18.01.2012, the respondents No. 7 to 10 were also appointed on the said post of Inspector of Taxes. 7. It is noticed from the submissions made by the respondents in their counter affidavit that after the aforesaid first appointment order dated 24.02.2011, as many as 17 (seventeen) candidates in the said select list, including the petitioner, represented that further appointments be made to the post of Inspector of Taxes, while imploring the Government to extend the life of the select list. It is also noticed that pursuant to such representations, the Government sought the approval of Commission and then, the life of the select list was extended for a period of four months; and as a matter of fact, the appointment order dated 18.01.2012 in relation to the respondents No. 7 to 10 came to be issued only because of such an extension of the life of the select list for a period of four months beyond one year. However, the subsequent proposition for yet further extension of the life of the select list was not acceded to by the Commission. 8. However, the subsequent proposition for yet further extension of the life of the select list was not acceded to by the Commission. 8. After the proceedings and the appointments as aforesaid, the petitioner as also some other persons, who were in the select list of 65 candidates but were standing below in the merit list and were not appointed, approached this Court by way of a writ petition bearing number 151 of 2014 that was dismissed by a learned Single Judge of this Court, essentially on the consideration that the life span of the select list was for one year, extendable by another six months only for good reason; and in any case, the life of the list in which the names of the petitioners appeared had already expired before they approached the Court. However, in regard to another contention that appointments were made even beyond the number of vacancies advertised, the learned Single Judge left it open for the petitioners of that writ petition to challenge such appointments in accordance with law. In view of the liberty so given, the petitioner has chosen to prefer this writ petition in the second round of litigation with a different stance. 9. While considering this petition at the initial stage on 03.09.2015, the Division Bench of this Court clearly found that in any case, the petitioner participated in the selection process in the year 2007 only after age relaxation and even if selection process was taken up in the year 2011, the petitioner would not have been eligible for having already crossed the age limit. However, the Division Bench yet considered it appropriate to admit the petition because of alleged inclusion of extra vacancies in the selection process while observing as under: "03.09.2015 Mr. H.L. Shangreiso, learned counsel, appears for the petitioner. Mr. N.D. Chullai, learned senior GA, assisted by Mrs S. Bhattacharjee, learned GA, represents the State respondents. No one appears for the private respondents. Learned counsel for the petitioner submits that initially the advertisement was made only for 41 posts of Inspector of Taxes. In the wait list, his name appeared at Serial 49. However, during the course of selection, without issuing prior corrigendum, six more posts were included for appointment. It is also a submission that had six extra posts been advertised in time, perhaps, the petitioner may have also got a chance to participate in selection. In the wait list, his name appeared at Serial 49. However, during the course of selection, without issuing prior corrigendum, six more posts were included for appointment. It is also a submission that had six extra posts been advertised in time, perhaps, the petitioner may have also got a chance to participate in selection. Thus, as regards the appointment of candidates selected against 41 posts, the writ petition is dismissed. However as regards six extra posts, this writ petition would survive and appointment made against these posts shall be subject to the outcome of this writ petition: for, the candidates are said to have already joined. Moreover, during the course of hearing, it was also brought to our notice that the maximum age prescribed for eligibility is 35 years and in 2007 also, only after relaxation of age, the petitioner had become eligible to apply. Admittedly, six extra posts were included in the selection process only in 2011 and at that time also the petitioner would not have been eligible having crossed the age limit prescribed for eligibility. Even today also, he cannot make any claim to be eligible for appointment against 41 posts but since inclusion of six new posts in the selection process, prima facie, appears to be illegal, we admit the writ petition. Learned senior GA Mr. N.D. Chullai prays for and is granted three weeks' time to file reply. Issue notice to private respondents No. 5 to 10 to be made returnable within two weeks. The petitioner shall take steps for service of notice." (Underlining supplied for emphasis) 10. At the hearing of this petition, learned counsel for the petitioner, in the first place, has again attempted to argue that six extra vacancies that were also filled up from the select list, if advertised afresh, the petitioner would have had a chance to compete. Such a submission is required to be rejected for the basic reason, as noticed at the very initial stage, that the petitioner could participate in the selection process even in the year 2007 only after age relaxation; and irrespective of the merits of his contention about the said six extra vacancies, if at all the selection process was taken up afresh in the year 2011, he was, in any case, not eligible to participate therein, for having crossed the age limit, even beyond the available relaxation. 11. 11. The learned counsel though attempted to suggest that the Court could consider age relaxation in its discretionary powers but, any such relaxation could only be in conformity with the rules and not beyond. The petitioner, who was provided with age relaxation in the year 2007, could not have been given any further relaxation in the year 2011 over and contrary to the rules. Thus, it remains beyond a pale of doubt that the petitioner has no right to contend that he would have got a chance of participation in the selection process, if taken up in the year 2011. 12. Faced with the aforesaid reality of the matter, learned counsel for the petitioner has argued on the second limb of submissions, with reference to the decision of the Hon'ble Supreme Court in the case of Anup Das and Others v. State of Assam and Others: (2012) 5 SCC 559 , that in any case, the appointment of six persons beyond forty-one vacancies was illegal and was required to be annulled as such. 13. True it is that ordinarily, the vacancies cannot be filled up over and above the number advertised, as settled by the Hon'ble Supreme Court in a substantial number of cases including the one in the case of Anup Das (supra). However, the case of Anup Das had been the one where apart from the original select list conforming to the number of advertised vacancies, second, third and fourth select lists were also sent and appointments were sought to be made substantially beyond the number of vacancies advertised. Such a proposition was rejected by the Supreme Court with reference to the settled position of law that the State could not make appointments more than the number of vacancies advertised. However, in the said case itself, the Hon'ble Supreme Court also referred to the decision in Prem Singh v. Haryana SEB: (1996) 4 SCC 319 wherein it was indicated that in exceptional circumstances or in emergent situations, more appointments than the number advertised could be made by taking a policy decision on that behalf. 14. The present one is required to be taken as an exceptional case not calling for interference for a variety of factors and circumstances. First and foremost being that the number of vacancies to the post of Inspector of Taxes had not as such been specified in the advertisement in question. 14. The present one is required to be taken as an exceptional case not calling for interference for a variety of factors and circumstances. First and foremost being that the number of vacancies to the post of Inspector of Taxes had not as such been specified in the advertisement in question. Secondly, as noticed, even in relation to the specified number of vacancies for the other posts in the same advertisement, it was made clear that the number was tentative and was subject to change at the time of recruitment. Thirdly, the petitioner himself had been privy to the proposition of making further appointments beyond the aforesaid figure of forty-one (as occurring in the communication sent by the Government in the year 2010); and in fact, such extra appointments came to be made only upon the Government taking a decision to fill up other accrued vacancies while acting on the representation so made by the petitioner with other candidates. Fourthly, the appointments in question were made way back in the years 2011 and 2012; and there appears hardly any reason to upset the appointment of the private respondents now in this petition filed in the year 2015. 15. To sum up, the contention as urged on behalf of the petitioner on the legality of appointments against such six alleged extra vacancies cannot be accepted for the peculiar circumstances related with this case; and the appointment of respondents No. 5 to 10 beyond the alleged number of vacancies stated in the letter dated 17.09.2010 cannot, by itself, be considered entirely illegal nor the appointment of these persons could be said to be suffering from any such fundamental illegality so as to be annulled at the instance of the petitioner. 16. For what has been discussed and observed as above, we find that the petitioner is not entitled to any relief. 17. The writ petition fails and is, therefore, dismissed.