Research › Search › Judgment

Meghalaya High Court · body

2016 DIGILAW 55 (MEG)

Marthindra R. Marak v. State of Meghalaya

2016-11-21

VED PRAKASH VAISH

body2016
JUDGMENT : V.P. VAISH, J. 1. By way of the present petition, the petitioners seek direction against the respondents for disclosing the number of vacancies including the anticipated vacancies and for further direction to the respondents to absorb the petitioners in the posts available in order of merit. 2. Initially, the present petition was filed by 94 persons. However, during pendency of the present petition, an application bearing Misc. Case No. 228 of 2015 was filed on behalf of petitioners No. 22, 24, 40, 43, 56, 87, 93 and 94 seeking permission to withdraw from the petition. Vide order dated 30.11.2015, the said application was allowed and the names of the petitioners No. 22, 24, 40, 43, 56, 87, 93 and 94 namely, Shri Vancouver K. Sangma, Shri David A. Momin, Shri Lusabell D. Momin, Smti Sengme R Marak, Smti Jedina M. Sangma, Shri Grikme K. Marak, Shri Darwinfew Sangma and Armith N. Arengh were deleted from the array of parties. 3. Briefly stated, the facts as culled out from the petition are that the petitioners belong to various Schedule Tribes of Meghalaya such as Garo, Hajong and Rabha and all are residents of North Garo Hills District of Meghalaya. 4. Vide advertisement dated 25th September, 2012, the respondents invited applications from the permanent residents of Meghalaya for appointment to various posts including posts of Grade-IV (peon). However, the number of vacancies were not disclosed in the said advertisement. 5. The petitioners applied for the post of peon. It is stated that as per the District Selection Committee Rules, posts of peons falls under the purview of District Selection Committee and no written examination was required but an interview would be conducted. 6. The petitioners along with the other candidates were called for interview by the respondents and a select list was prepared in order of merit containing 193 names (Annexure-2 to the writ petition). It is further stated that the select list is valid for a period of one year and within this period only 49 persons from the select list in order of merit were appointed as peons in the District. 7. The petition has been opposed by respondents No. 1 and 2 by filing counter affidavit. It is also stated that the select list/merit list expired on 11th November, 2014 and the petitioners have approached this Court much after the expiry of the said select list. 7. The petition has been opposed by respondents No. 1 and 2 by filing counter affidavit. It is also stated that the select list/merit list expired on 11th November, 2014 and the petitioners have approached this Court much after the expiry of the said select list. It is also stated that the Chairman, District Selection Committee, North Garo Hills District, Resubelpara vide letter dated 08th April, 2015 requested the Principal Secretary to the Government of Meghalaya, Personnel & Administrative Reforms Department, Meghalaya, Shillong to consider extension of the merit list but the same was declined by the authorities vide letter dated 8th May, 2015. It is also stated by respondent No. 2, that all the vacancies have been duly filled up. 8. The petitioners contend that the number of vacancies on the date of advertisement was much more than the appointments made. Thus, the petitioners, although appearing in the select list, were deprived from being appointed to the posts of peon. 9. The petitioners further stated that vide letter dated 2nd December, 2014, the respondent No. 1 revalidated the select/merit list for another six months and as such the merit list was still valid and also made a query about likely vacancies for the post of LD Assistant and Grade-IV posts for the next six months. However, after expiry of three months, the respondent No. 2 did not disclose the number of vacancies or responded to the query of the respondent No. 1 thereby leaving enough room for manipulation in the matter of appointment particularly in the post of Grade-IV employees. 10. Learned counsel for the petitioners also contended that non-disclosure of the number of vacancies available for Grade-IV in the North Garo Hills District has adversely affected the interests of the petitioners and as they have been denied opportunities despite being recommended by Selection Committee. Learned counsel for the petitioners further contended that Departmental Rules and procedures have been violated by the respondents giving rise to arbitrariness in the matter of appointment. 11. Learned counsel for the petitioners argued that the petitioners have been deprived of employment opportunity as the power vested in the State has been exercised in arbitrarily and malafide manner. 12. Learned counsel for the petitioners further contended that Departmental Rules and procedures have been violated by the respondents giving rise to arbitrariness in the matter of appointment. 11. Learned counsel for the petitioners argued that the petitioners have been deprived of employment opportunity as the power vested in the State has been exercised in arbitrarily and malafide manner. 12. To buttress his arguments regarding the validity of the select list; filling of vacancies arbitrarily and locus standi of the petitioners, learned counsel for the petitioners placed reliance on judgment in the case of 'Sheo Shyam And Others v. State Of U.P. And Others' (2005) 10 SCC 314. 13. Per contra, learned counsel for the respondent Nos. 1 and 2 contended that the petitioners have no locus standi to file the present writ petition. It is also stated that the writ petition has become infructuous as one year period of validity of the select list relied upon by the petitioners has already been expired on 10th November, 2014. 14. It is further contended that though the subject of the letter dated 2nd December, 2014 issued by respondent No. 1 appears to be revalidation of the merit list but going through the contents of the same it can clearly be understood that there is no mention about the extension of merit list by another six months as claimed by the petitioners. 15. The respondents have also denied the allegations of manipulation in the matter of appointment. It is further stated by the learned counsel for respondents that the writ petition suffers from delay and laches. He also contended that there is no illegality, arbitrariness or violation of the provisions of the Constitution of India or any violation of the principle of equity, fair play and natural justice. 16. I have given my anxious thought to the submissions made by learned counsel for both the parties and carefully perused the material and documents available on record. 17. The respondents issued the advertisement dated 25th September, 2012 inviting applications for the posts of Stenographer Grade-III, Lower Division Asstt-Cum-Typists and Peons. It is clearly mentioned in the advertisement that a panel of successful candidates will be drawn up in order of merit subject to the job reservation policy of the Government of Meghalaya. 18. The petitioners along with the other candidates applied for the posts of peons which is Grade-IV posts. It is clearly mentioned in the advertisement that a panel of successful candidates will be drawn up in order of merit subject to the job reservation policy of the Government of Meghalaya. 18. The petitioners along with the other candidates applied for the posts of peons which is Grade-IV posts. They were interviewed and the result of successful candidates for the said posts was published by the respondents vide notice dated 11th November, 2013. The said list contained 193 names of successful candidates for the posts of Grade-IV in the personal interview conducted by the District Selection Committee, North Garo Hills District, Resubelpara held from 3rd June 2013 to 31st July, 2013. 19. It is further mentioned at the bottom of the said notice dated 11th November, 2013 that the recommendations would be made in order of merit subject to availability of posts. From the aforesaid select list only 49 candidates secured appointments to the post of peon. The appointments were made purely in order of merit which is also admitted by the petitioners. 20. It is settled law that life of a panel ordinarily is one year. The same can be extended only by the State and that too if the statutory rules permits it to do it. From a perusal of the record, I do not find anything which suggests the extension of the panel by the respondents. Once a panel stands exhausted upon filling up of all the posts, the question of enforcing a future panel would not arise. The petitioners have not produced any material in support of their stand that vacancies existed and yet appointments have not been made. Only averment in the petition would not help the petitioners. 21. The petitioners also admitted in the writ petition that generally the select list is valid for a period of one year. Thus, it is not in dispute that ordinarily the life of the panel was one year which came to an end on 10th November, 2014 and that being so no right can be claimed by the petitioners after 10th November, 2014 on the basis of inclusion of their names in the select list published on 11th November, 2013 for the posts of Grade-IV. Inclusion of a candidate's name in the select list does not confer any indefeasible right to be enforced by way of issuing writ of mandamus. 22. Inclusion of a candidate's name in the select list does not confer any indefeasible right to be enforced by way of issuing writ of mandamus. 22. The judgement relied upon by the petitioners is of no help to them as the same is not applicable to the facts and circumstances of the present case. In the said case the Union Public Service Commission issued an advertisement for filling up 218 posts of Assistant Prosecuting Officers. The first batch of appointment orders was issued on 20.08.2001 requiring selected candidates to join by 10.09.2001. Thereafter, appointments were made in two further batches and joining dates were indicated to be 3.10.2001 and 20.4.2002. On 26.11.2001, the State Government sent a communication to the Commission pointing out that the candidatures of seven candidates had been cancelled as they had refused to join and a request was made for seven additional names. The grievance of writ petitioners was that when thirty posts were vacant and the period of vacancy of the waiting list was not over, the State Government should have required the Commission to send thirty names. The High Court held that the period of validity of the waiting list was over. In appeal, the appellants submitted that the stand taken by the Commission was contrary to the clear stipulations made by the State Government in several orders. The Hon'ble Supreme Court observed that it would be proper to reckon the period from the last date when the recommendation was made. 23. In the instant case, life of the selected list which was published on 11th November, 2013 expired on 10th November, 2014. The said life was never extended by the respondents. 24. The questions, whether the inclusion of name in the list of selected candidates confer any right to be appointed can be enforced by issuance of a writ of mandamus and what is the period for which a list of successful candidates remain alive and after expiry of its life can the Court direct appointments to be made from the said list, were considered by the Hon'ble Supreme Court in the case of 'Rani Laxmibai Kshetriya, Gramin Bank v. Chand Behari Kapoor And Others', (1998) 7 SCC 469 as under: "8.......The High Court, therefore, in our view committed serious error in coming to the conclusion that there existed vacancies in the post of Field Supervisor on the materials produced before it. In fact the respondents herein who were the petitioners in the High Court had not produced any material in support of their stand that vacancies existed and yet appointments have not been made. We are of the considered opinion that the conclusion of the High Court that there existed vacancies is unsustainable in law and is accordingly set aside. 9. Coming to the second question, it requires no detailed scrutiny and it is well established that inclusion of name in the list of successful candidates does not confer an indefeasible right to be appointed. It has been so held in the Constitution Bench decision of this Court in the case of Shankarsan Dash v. Union of India. In the said case the Court has gone to the extent of following: (SCC pp. 50-51, para 7) "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." 10. Mr. Dwivedi, the learned Senior Counsel for the respondent, also did not join issue on this principle of law. He, however, had raised the issue on the question that there was no justifiable reason for not appointing the respondents in the vacancies which will still exist and consequentially the action of the appellant must be held to be arbitrary. But this submission is devoid of any force in view of our conclusion on the first question that there did not exist any vacancy in the post of Field Supervisor of Probationary Officer. In this view of the matter, neither any right accrued to the respondent on being included in the list of successful candidates nor can their non-appointment be held to be arbitrary or discriminatory. 11. In this view of the matter, neither any right accrued to the respondent on being included in the list of successful candidates nor can their non-appointment be held to be arbitrary or discriminatory. 11. So far as the third question is concerned, namely, for how long a penal prepared should be kept alive, it appears that the Government of India in the Ministry of Finance, Department of Economic Affairs (Banking Division) by its letter dated 30-9-1980 had communicated to the Chairman of all regional rural banks that the panel should normally be kept alive only for a period of one year and if any deviation from the said guidelines becomes necessary in the interest of the bank, then it should be undertaken with the prior permission of the Board of Directors and under intimation to the Government in the Banking Division. Notwithstanding the aforesaid guidelines issued, as it was observed that several rural banks still took recourse to extending the validity of the panel for long periods stretching over 2/3 years on obtaining the approval of the Board, the Ministry of Finance by its letter dated 19-9-1983 again communicated to the Chairman of all regional rural banks that preparation of panels to cover the requirements of regional rural banks for 2/3 years and then extending the validity of the panel beyond one year cannot be constructed as merely a deviation and it is doubtful if it can be considered even as being in the interest of the regional rural bank from a long-term point of view. Under Section 24 of the Regional Rural Bank Act, 1976, a rural bank in the discharge of its functions is required to be guided by such directions as the Central Government may after consultation with the Reserve Bank give in regard to matters of policy involving public interest. In view of the aforesaid provisions of the Act, the directions/ guidelines issued by the Central Government indicating the periods for which the life of a panel would be kept alive has a binding effect on the bank, and therefore, in our considered opinion so far as the life of the panel prepared by the rural banks are considered, it must be held that the same remain alive ordinarily for a period of one year. The High Court committed serious error in relying upon the circular of the Ministry of Home Affairs, Department of Personnel and Administrative Reforms to come to the conclusion that the panel remains alive until all the persons in the panel are appointed. The said conclusion is wholly erroneous and cannot be sustained. 12. Though the panel ordinarily remains alive for one year but in accordance with the guidelines of the Government of India, Ministry of Finance, it would be open to the Board to extend the said period under intimation to the Government in the Banking Division. In the case in hand, the resolution of the Board dated 28-3-1985 indicates that the life of the panel had been extended for a further period of six months, and therefore, after expiry of the said period it was not open for the court to issue direction to appoint people from the said panel. 25. It is also well settled that empanelment gives no right of appointment. The Hon'ble Supreme Court in the case of 'State of Bihar and others v. The Secretariat Assistant Successful Examinees Union 1986 and others' AIR 1994 SC 736 has held: "10. It is now well settled that a person who is selected does not, on account of being empanelled alone, acquire any indefeasible right of appointment. Empanelment is at the best a condition of eligibility for purpose of appointment, and by itself does not amount to selection or create a vested right to be appointed unless relevant service rule says to the contrary. (See Shankarsan Dash v. Union of India 1991 (3) SCC 47 : ( AIR 1991 SC 1612 ) and Sabita Prasad v. State of Bihar, 1992 (3) Scale 361 ). 11. We are, therefore, of the opinion that the directions given by the High Court for appointment of the empanelled candidates according to their position in the merit list against the vacancies till 1991 was not proper and cannot be sustained. Since, no examination has been held since 1987, persons who become eligible to compete for appointments were denied the opportunity to take the examination and the direction of the high court would prejudicially affect them for no fault of theirs. Since, no examination has been held since 1987, persons who become eligible to compete for appointments were denied the opportunity to take the examination and the direction of the high court would prejudicially affect them for no fault of theirs. At the same time, due to the callousness of the State in holding the examination in 1987 for the vacancies advertised in 1985 and declaring the result almost three years later in 1990 has caused great hardship to the successful candidates. The State was expected not to act in such a leisurely manner and treat the matter of selection for appointment to services in such a casual manner. We must record our unhappiness on this state of affairs. There is no justification for holding the examination two years after the publication of advertisement and declare the result almost three years after the holding of the examination and not issuing any fresh advertisement between 1985 and 1991 or holding examination for making selections. We expect the State Government to act in a better manner, at least, hereinafter and since Mr. Rao, the learned senior counsel has shared Mr. Rao, the learned senior counsel has shared our concern and assured us of advising the State Government accordingly, we say no more on that aspect at this stage." 26. In another case 'Raj Rishi Mehra And Others v. State Of Punjab And Another' (2013) 12 SCC 243 it was held: "15. The question whether the candidates whose names are included in the waiting list are entitled to be appointed against the unfilled post as of right is no longer res integra and must be answered in negative in view of the judgments of this Court in Union of India v. Ishwar Singh Khatri, Gujarat State Dy. Executive Engineers' Assn. v. State of Gujarat, State of Bihar v. Scretariat Asst. Successful Examinees Union 1986, Prem Singh v. Haryana SEB, Ashok Kumar v. Banking Service Recruitment Board, Surinder Singh v. State of Punjab, Madan Lal v. State of J&K, Kamlesh Kumar Sharma v. Yogesh Kumar Gupta, State of J & K v. Sanjeev Kumar, State of U.P v. Rajkumar Sharma, Ram Avtar Patwari v. State of Haryana and Rakhi Ray v. High Court of Delhi. 16. In Surinder Singh case this court observed as under: (SCC p. 494, para 14) "14..... 9. 16. In Surinder Singh case this court observed as under: (SCC p. 494, para 14) "14..... 9. A waiting list prepared in an examination conducted by the commission does not furnish a source of recruitment. It is operative only for the contingency that if any of the selected candidates does not join then the person from the waiting list may be pushed up and be appointed in the vacancy so caused or if there is some extreme exigency the Government may as a matter of policy decision pick up persons in order of merits from the waiting list. But the view taken by the High Court that since the vacancies have not been worked out properly, therefore, the candidates from the waiting list were liable to be appointed does not appear to be sound. This practise, may result in depriving those candidates who become eligible for competing for the vacancies available in future. If the waiting list in one examination was to operate as an infinite stock for the appointments, there is a danger that the State Government may resort to the device of not holding an examination for years together and pick up candidates from the waiting list as and when required. The constitutional discipline requires that this Court should not permit such improper exercise of power which may result in creating a vested interest and perpetrate waiting list for the candidates of one examination at the cost of entire set of fresh candidates either from the open or even from service.? (Gujarat State Dy. Executive Engineers? Assn Case, SCC p. 599, para 9). 17. In Rakhi Ray Case this Court referred to a number of judicial precedents and held: SCC p. 641, para7) "7. (Gujarat State Dy. Executive Engineers? Assn Case, SCC p. 599, para 9). 17. In Rakhi Ray Case this Court referred to a number of judicial precedents and held: SCC p. 641, para7) "7. It is settled legal proposition that vacancies cannot be filled up over and above the number of vacancies advertised as 'the recruitment of the candidates in excess of the notified vacancies is a denial and the deprivation of the constitutional right under Article 14 read with Article 16(1) of the Constitution', of those persons who acquired eligibility for the post in question in accordance with the statutory rules subsequent to the date of notification of vacancies is neither permissible nor desirable, for the reasons, that it amounts to 'improper exercise of power and only in a rare and exceptional circumstance and in emergent situation, such a rule can be deviated from and such a deviation is permissible only after adopting policy decision based on some rationale', otherwise the exercise would be arbitrary. Filling up of vacancies over the notified vacancies amounts to filling up of future vacancies and thus, is not permissible in law". 27. In view of the authoritative pronouncement by the Hon'ble Supreme Court, the petitioners have no legal right for appointment. 28. In the light of the aforesaid observations, I do not find any merit in the present petition and the same is hereby dismissed. 29. No cost. MC(WPC) No. 31 of 2015 MC(WPC) No.118 of 2016. 30. The applications are dismissed as the same have become infructuous.