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2018 DIGILAW 1647 (GAU)

Dagme Kadu v. State of Arunachal Pradesh

2018-11-27

NELSON SAILO

body2018
JUDGMENT : NELSON SAILO, J. 1. This order will dispose of the 2 (two) writ petitions since issues involved are similar and identical. 2. Heard Mr. M. Pertin, the learned Sr. Counsel assisted by Mr. L. Perme, the learned counsel for the petitioner in WP(C) No. 148(AP) 2015. Also heard Mr. D. Kamduk, the learned counsel appearing for the petitioners in WP(C) No. 49(AP) 2017 and Mr. R.H. Nabam, the learned Addl. Advocate General, Arunachal Pradesh appearing for the State respondents. 3. None appears for the private respondents despite notice. 4. The case of the petitioners is that the respondents through an advertisement, dated 30.05.2013, (Annexure-1) which was issued by the Director General of Police, Arunachal Pradesh, invited eligible female candidates for 180 posts of lady Constable and 20 posts of lady Sub-Inspector. These 2 (two) writ petitions pertains to the posts of lady Constables only. 5. As per the advertisement, the selection procedure is to comprise of physical endurance/efficiency test, a written examination with a total of 300 marks and thereafter, an interview for those securing the minimum pass marks in the written examination. Accordingly, the petitioners responded to the advertisement for the post of lady Constable and participated in the selection process. After the written test and the viva-voice was conducted, the respondent authorities published an overall list of the selected candidates and the petitioner in WP(C) 148 (AP) 2015 found herself to be at Serial No. 74 in the list scoring 187.17 marks. The petitioners in WP(C) 49 (AP) 2017 found themselves at Serial Nos. 138, 109, 140, 136 & 120 respectively and they scored 176.33, 181.67, 176, 177 & 180 marks respectively. Thereafter, to the utter surprise of the petitioners, the respondent authorities concerned vide a result notification, dated 31.12.2013, published the Roll numbers of the provisional selected candidates district wise and the petitioners did not find their Roll numbers in the said notification. Subsequently, vide an offer of appointment letter, dated 04.03.2014 the selected candidates were given appointment and the petitioners did not find themselves included in the list as well. Being highly aggrieved, the petitioners have approached this Court. 6. Mr. M. Pertin, the learned Sr. Counsel submits that as many as 107 candidates who secured marks below the petitioners were appointed. As per the overall merit list, the petitioner having secured a total 187.17 marks should have been placed at the 69th position. Being highly aggrieved, the petitioners have approached this Court. 6. Mr. M. Pertin, the learned Sr. Counsel submits that as many as 107 candidates who secured marks below the petitioners were appointed. As per the overall merit list, the petitioner having secured a total 187.17 marks should have been placed at the 69th position. By referring to Clause-4 of the advertisement, dated 30.05.2013, the learned Sr. Counsel submits that it was clearly provided that the recruitment for both the posts of lady Sub-Inspector and lady Constable were to be conducted centrally at Itanagar by separate boards on separate dates. However, the respondent authorities instead, selected and recruited lady constables district wise while selection and appointment to the post of lady Sub-Inspector was done centrally. District wise selection and appointment having not been contemplated in the advertisement, dated 30.05.2013, the respondent authorities have clearly changed the rule of the game for the posts of lady Constables which is impermissible in law and therefore, the Fundamental Rights of the petitioners have clearly been violated. He, further, submits that by making recruitment to the posts of lady Sub-Inspector centrally while in case of lady constable district wise though under the same advertisement, the respondent authorities have clearly committed partiality and injustice upon the petitioners. As such, suitable interference of this Court is warranted. 7. Adopting the argument of the learned Sr. Counsel, Mr. D. Kamduk, the learned counsel appearing for the petitioners in WP(C) 49 (AP) 2017 submits that the respondent authorities by making the selection and recruitment district wise which otherwise was not provided for in the advertisement, dated 30.05.2013, have clearly committed illegality and resultantly, as many as, 53 candidates who secured marks below the petitioners were appointed to the said post. The petitioners were never informed that selection and recruitment will be made district wise. Therefore, in adopting the said procedure, the respondent authorities have clearly changed the rule of the game and as such, suitable interference of this Court is called for. 8. In support of their submissions, the learned counsels for the petitioners have relied upon the following authorities:- (1) Kailash Chand Sharma Vs. State of Rajasthan & Ors., reported in (2002) 6 SCC 562 ; (2) Rajesh Kumar Gupta & Ors. Vs. State of U.P. & Ors., reported in (2005) 5 SCC 172 ; (3) Hemani Malhotra Vs. 8. In support of their submissions, the learned counsels for the petitioners have relied upon the following authorities:- (1) Kailash Chand Sharma Vs. State of Rajasthan & Ors., reported in (2002) 6 SCC 562 ; (2) Rajesh Kumar Gupta & Ors. Vs. State of U.P. & Ors., reported in (2005) 5 SCC 172 ; (3) Hemani Malhotra Vs. High Court of Delhi, reported in (2008) 7 SCC 11 ; (4) K. Manjusree Vs. State of Andhra Pradesh & Anr., reported in (2008) 3 SCC 512 ; (5) Mohd. Sohrab Khan Vs. Aligarh Muslim University & Ors., reported in (2009) 4 SCC 555 ; (6) Tumnyak Ete Vs. State of Arunachal Pradesh & Ors., reported in 2002 (3) GLT 115. 9. Mr. R.H. Nabam, the learned Additional Advocate General, Arunachal Pradesh submits the pursuant to the advertisement, a proposal was sent by the Police Head Quarter on 02.07.2013 for making the recruitment to the post of lady Constable district wise and the said proposal was approved by the State Government on 30.08.2013. It was only thereafter that the selection to the post was initiated through a written test which was held on 08.09.2013. Mr. Nabam further submits that the State respondents have not committed any error in making the recruitment and selection district wise. He submits that all that was intended as per the advertisement, dated 30.05.2013, was that recruitment for the post of Constables and Sub-Inspector (female) be conducted centrally as conducting the recruitment district wise will be an expensive affair. He, therefore, submits that there is no impediment in making the ultimate selection district wise. Mr. Nabam, further, submits that the process of recruitment on one hand and the process of selection and appointment on the other hand not being same, the State respondents have not changed the rules of the game. The learned Addl. Advocate General further submits that pursuant to the advertisement, physical test for the post of lady Constables was conducted between 16.08.2013 to 01.09.2013. The actual selection was initiated on 08.09.2013 when the candidates underwent a written test. Thereafter, on 7th & 8th October, 2013, those candidates who passed the written test again faced the viva-voice test. Consequently, the result was declared on 31.12.2013 and a provisional offer of appointment was issued to the selected candidates on 04.03.2014. The actual selection was initiated on 08.09.2013 when the candidates underwent a written test. Thereafter, on 7th & 8th October, 2013, those candidates who passed the written test again faced the viva-voice test. Consequently, the result was declared on 31.12.2013 and a provisional offer of appointment was issued to the selected candidates on 04.03.2014. Therefore, there is no change in the rule of the game since the selection process only started on 08.09.2013 and the same criteria and yardstick was applied to all the candidates who applied for the post. There being no discrimination, none of the rights of the petitioners have been affected. 10. The learned Addl. Advocate General submits that the decisions referred to by the learned counsels for the petitioners are clearly distinguishable. He submits that in case of Rajesh Kumar Gupta and Ors (Supra), a decision was taken at the very beginning to make the recruitment at the State level and therefore, it was for this reason that the Apex Court held that the authorities concerned cannot change the same subsequently by making the selection at the district level as it will be violative of Article 15 & 16 of the Constitution of India. In the present case since the decisions to make the recruitment and appointment district wise having been approved by the Government prior to the holding of certain test on 08.09.2013, the said decision will not apply to the case of the petitioners. 11. I have heard the submission advanced by the learned counsels for the rival parties and I have also perused the materials available on record. 12. The question to be decided is as to whether the recruitment and appointment of lady Constables could have been done district wise pursuant to the issuance of the advertisement, dated 30.05.2013. Clause-4 of the advertisement provides that the recruitment for both the posts of lady Sub-Inspector and lady Constables will be conducted centrally. Going by the submission of the learned Addl. Advocate General that the recruitment to the post in question is different from the selection of appointment to the posts and therefore, the respondent authorities cannot be faulted with the appointment and selection district wise, the same would mean that it was all along the intention of the Government to make the recruitment district wise. Advocate General that the recruitment to the post in question is different from the selection of appointment to the posts and therefore, the respondent authorities cannot be faulted with the appointment and selection district wise, the same would mean that it was all along the intention of the Government to make the recruitment district wise. However, on perusal of the affidavit-in-opposition, filed by the respondent No. 3 on 18.04.2016, it is seen that an U.O. Note was received by the Police Department from the Minister, RWD and Tourism Department advising the conduct of recruitment by dividing the vacancies district wise so that equal and proportionate representation of woman from all Districts in the State can be made. Accordingly, the proposal was submitted to the State Government by the Police Department seeking approval for district wise selection and recruitment on 2.7.2013. Approval of the State Government was given on 30.8.2013. The merit list of the candidates was prepared district wise and thereafter, the final result was declared on 31.12.2013 with the approval of the State Government. This will go to show that there was no intention of filing up of 180 posts of lady Constables district wise in the first place. Had it been so, there was no requirement for processing the proposal to get the approval of the State Government after the advertisement was issued on 30.05.2013. Furthermore, as may be already noticed, the recruitment to the post of lady Sub-Inspector which was also advertised alongwith the post of lady Constables has been done centrally and not district wise. Although, there is an attempt on the part of the State respondents to justify that the post of lady Sub-Inspector being an officer post, the most eligible and competent persons in the state are required to be recruited, this Court, however, does not find any force to this stand. The submission of the learned Addl. Advocate General that the actual recruitment only started from the stage of the written examination held on 08.09.2013 also cannot be accepted inasmuch as, it is a settled law that recruitment process for any post will begin from the stage of issuing of the advertisement, which in this case was on 30.05.2013. 13. The submission of the learned Addl. Advocate General that the actual recruitment only started from the stage of the written examination held on 08.09.2013 also cannot be accepted inasmuch as, it is a settled law that recruitment process for any post will begin from the stage of issuing of the advertisement, which in this case was on 30.05.2013. 13. In case of Rajesh Kumar Gupta and Ors (Supra), the Apex Court held that the action of the State Government in resorting to the preparation of merit list from State level to district level on the ground of different districts having different dialects cannot be justified as there was no material to indicate the same. Therefore, the view already taken by the Division Bench of the High Court was concurred. The said decision in my considered view only applies to the present case as well. Under the circumstance, I do not find the requirement to dwell upon the other authorities relied upon by the petitioners. The petitioners in my considered view have succeeded in making out a case for interference by this Court. While taking such a view, Court is not unmindful of the fact that the selected candidates have since joined their respective places of posting in the year 2015 after undergoing their basic training at Banderdewa. Therefore, it will not be proper to set aside the entire selection and appointment of lady Constables, at this stage. At the same time, with the respective marks obtained by the petitioners, they would have admittedly secured appointment if selection was made centrally as per the advertisement. In that view of the matter and under the facts and circumstances, without disturbing the appointment of the private respondents, I am of the considered view that ends of justice will be met if the respondent authorities are directed to appoint the petitioners as lady Constables against the available vacancies of lady Constable. In case there are no vacancies available presently, they shall be adjusted against the first available vacancies, which should be within the outer limit of 6 months from the date of receipt of a certified copy of this order. 14. It is ordered accordingly. 15. With the above observations and directions, the writ petition stands allowed. No cost.