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2017 DIGILAW 84 (GAU)

Kangkan Sarmah v. State of Assam

2017-01-18

MICHAEL ZOTHANKHUMA

body2017
JUDGMENT : Michael Zothankhuma, J. 1. Heard Mr. D. Deka, learned counsel for the petitioner. Also heard Mr. J.M.A. Choudhury, learned Standing Counsel, NHM, appearing for all the respondents. In pursuance to the advertisement dated 07.11.2013, which invited applications for appointment as District Community Mobiliser, NRHM, Assam, the petitioner applied for the said post. The advertisement dated 7.11.2013 contained a stipulation to the effect that:- "The list of selected candidates for the position of District Community Mobiliser will be used as a reserve for recruitment as and when vacancies arise." 2. The interview for selection of the successful candidates was held on 30th and 31st October, 2014 and a select list was published on 22.12.2014, wherein the petitioner was placed at Serial No. 11. 3. Consequently, on the occurrence of vacancies, persons in the select list dated 22.12.2014 were appointed as District Community Mobiliser (NRHM) and the person at Serial No. 8 of the select list was appointed on 24.06.2015. The respondents, thereafter, issued the impugned advertisement dated 26.12.2016, wherein, candidates were invited to apply for the 3 (three) number of vacancies to the post of District Community Mobiliser on contractual basis. 4. The petitioner has made a challenge to the impugned advertisement dated 26.12.16 on the ground that the petitioner being placed at Serial No. 11 of the select list dated 22.12.2014, in pursuant to the advertisement dated 07.11.2013, he should first be accommodated in the vacancies and fresh advertisement should be published only after the select list dated 22.12.2014 is exhausted. 5. Mr. J.M.A. Choudhury, learned Standing Counsel, NHM, appearing for all the respondents submits that the select list dated 22.12.2014 had a validity period of only one year and after the completion of one year, no further appointment could have been made to the post of District Community Mobiliser in pursuant to the select list dated 22.12.2014. The counsel for the respondents submits that accordingly, there is no infirmity in the issuance of a fresh advertisement dated 26.12.16 for filing up of the 3 (three) vacancies of District Community Mobiliser. 6. I have heard the learned counsels for the parties. 7. The basic question herein is whether any selection could have taken place for appointment of District Community Mobiliser in the absence of the number of notified vacant posts in the advertisement dated 07.11.2013. 6. I have heard the learned counsels for the parties. 7. The basic question herein is whether any selection could have taken place for appointment of District Community Mobiliser in the absence of the number of notified vacant posts in the advertisement dated 07.11.2013. The advertisement dated 07.11.2013 does not give any indication that there were vacant posts of District Community Mobiliser. In the case of Mukul Saikia & Ors. v. the State of Assam & Ors. reported in (2009) 1 SCC 386 , the Apex Court had held that filing up of vacancies over and above the number of vacancies advertised would be violative of Articles 14 and 16 of the Constitution of India. The Three Judges Bench of the Apex Court in the case of Rakhi Ray & Ors. v. High Court of Delhi & Ors. reported in (2010) 2 SCC 637 has held that any appointment made beyond the number of vacancies advertised is without jurisdiction, being violative of Articles 14 and 16 of the Constitution of India and thus, a nullity, inexecutable and unenforceable in law. The Apex Court in Rakhi Ray (Supra) has further held that once the notified vacancies are filled up, the process of selection comes to an end. 8. In the present case, the advertisement dated 07.11.2013, nowhere indicates that there were existing vacancies in the post of District Community Mobiliser at the time the advertisement was issued. Accordingly, in view of the law laid down by the Apex Court in the cases cited above, the said respondents could not have conducted any selection process for filling up of any anticipated or future vacant posts of District Community Mobiliser. 9. Accordingly, the submission of the petitioner's counsel that the select list dated 22.12.2014 should first be exhausted by appointing the petitioner to one of the vacancies in the District Community Mobiliser posts cannot be accepted, as the select list dated 22.12.2014 cannot be allowed to be used as a never ending select list. In the case of Man Singh v. Commissioner, Garhwal Mandal, Pauri & Ors. reported in (2009) 11 SCC 448 , the Apex Court has held that ordinarily, the life of a select list is one year. In the case of Rakesh Kumar Tripathi & Ors. In the case of Man Singh v. Commissioner, Garhwal Mandal, Pauri & Ors. reported in (2009) 11 SCC 448 , the Apex Court has held that ordinarily, the life of a select list is one year. In the case of Rakesh Kumar Tripathi & Ors. v. Union of India & Ors., reported in (2004) 13 SCC 476 , the Apex Court has held that a waiting list does not survive indefinitely. In the present case, the select list is at best a waiting list and the same cannot be allowed to survive indefinitely. Further, the filling up of future vacancies of District Community Mobiliser from the select list dated 22.12.14 would deprive the candidates from consideration, who were not eligible for appointment to that post when the earlier advertisement dated 07.11.2013 had been issued, but who became eligible for appointment when the subsequent vacancies come into existence. The same would be violative of Article 14 of the Constitution of India. 10. This Court accordingly finds that appointment of the petitioner to a future vacant post on the basis of the select list dated 22.12.2014 and in the absence of any notified vacancy in the advertisement dated 07.11.2013 would be an improper exercise of power and would amount to perpetrating an illegality. In view of the above reasons, this Court does not find any merit in this writ petition and accordingly, the same is dismissed. No order as to costs.