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2019 DIGILAW 319 (GAU)

Rikbi Taipodia v. State of Arunachal Pradesh

2019-03-07

MIR ALFAZ ALI, NANI TAGIA

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JUDGMENT : NANI TAGIA, J. 1. Heard Mr. Lissing Perme, learned counsel for the appellant/writ petitioner. Also heard Mr. Subu Tapin, learned Senior Government Advocate, appearing on behalf of State Respondents No. 1 & 2; and Mr. Rajesh Sonar, learned counsel appearing on behalf of private respondent No. 3. 2. The appellant as writ petitioner, had filed a writ petition being WP(C)639(AP)2016, challenging the appointment order, dated 4.10.2016, issued by the Secretary, DoTCL, Government of Arunachal Pradesh, whereby the private respondent No. 3 was appointed as LDC on officiating basis, without holding any recruitment examination or interview. 3. The appellant/writ petitioner contended that the appointment of the private respondent No. 3 is dehors the provisions of the relevant Recruitment Rules, namely, General Arunachal Pradesh Group 'C' Ministerial Common Recruitment Rules, 2008, which has provided the method of recruitment of the post of the LDC to be made with regard to 90% of the post(s) by way of direct recruitment and 10% of post(s), by way of promotion from amongst the Group 'C' Staff with Grade Pay of Rs. 1800/-. 4. The appellant/writ petitioner further contended that she was appointed as Contingent Computer Operator and therefore, she was also entitled to be regularized in the post of LDC. 5. The State Respondents as well as the private respondent No. 3 had filed their respective counter affidavits wherein they had categorically contended that the appointment of the private respondent No. 3 was made without holding any recruitment examination or interview on the ground of exigency of service. 6. The respondent No. 3 had also contended before the learned Single Judge that the appellant/writ petitioner who is a Contingent Computer Operator in the said Department of DoTCL, Government of Arunachal Pradesh, had attained the age of 37 years and as such, she had crossed the upper age limit as prescribed under the relevant Recruitment Rules for participation in the selection process that would be conducted for recruitment for the post of LDC and therefore, since the appellant/writ petitioner was over-aged, she had no locus to file the said writ petition. 7. By the impugned judgment and order dated, 24.10.2017, the learned Single Judge had agreed with the submission made by the appellant/writ petitioner, by relying on the case of State of Karnataka Vs. 7. By the impugned judgment and order dated, 24.10.2017, the learned Single Judge had agreed with the submission made by the appellant/writ petitioner, by relying on the case of State of Karnataka Vs. Uma Devi & Ors., reported (2006)4 SCC 1 , that the appointment of the private respondent No. 3 was made contrary to the constitutional provision. However, the learned Single Judge declined to interfere with the appointment of private respondent No. 3 on the ground that the appellant/writ petitioner had no locus standi to challenge the impugned appointment of the said respondent No. 3 inasmuch as the appellant/writ petitioner was not a person aggrieved. 8. Learned counsels for the parties have placed the same arguments as was made before the learned Single Judge. We have heard the learned counsels for the parties as well as perused the impugned judgment and order. 9. On perusal of the impugned judgment & order, dated 24.10.2017, it is found that the learned Single Judge by relying on the principles laid down in the case of Uma Devi (supra) had come to a finding that the impugned appointment order dated 04.10.2016 issued in favour of respondent No. 3 was not made in conformity with the constitutional provisions as well as in accordance with the related Recruitment Rules. It is seen that the said finding of the learned Single Judge has neither been challenged by the private respondent No. 3 nor by the State respondents. 10. After recording a categorical finding that the impugned order of appointment in favour of the respondent No. 3 was not made in accordance with the related Recruitment Rules as well as in conformity with the constitutional provisions, we are of the view that the learned Single Judge ought to have allowed the writ petition by setting aside the impugned order of appointment, dated 04.10.2016. The learned Single Judge declined to interfere with the impugned order of appointment made dehors the Recruitment Rules as well as the constitutional provisions only on the ground that the writ petitioner had no locus standi to challenge the appointment of the private respondent No. 3, inasmuch as the writ petitioner was not a person aggrieved. 11. The same argument has been made before us by the learned counsel for the respondent No. 3. 11. The same argument has been made before us by the learned counsel for the respondent No. 3. We have taken note of the submissions made by the learned counsel for the private Respondent No. 3 but we are unable to agree with the view taken by the learned Single Judge that unless person aggrieved moves the writ petition, the appointment order issued, howsoever, illegal, may not be interfered with. 12. In our considered view, when an illegality has been brought to the notice of this Court, this Court cannot shirk its responsibility of doing justice in the matter in accordance with law. 13. In that view of the matter, having noted that the impugned order of appointment, dated 04.10.2016, having been made in complete violation of the related Recruitment Rules as well as the constitutional provisions of Articles 14 and 16 of the Constitution of India, we deem it appropriate to allow the appeal as well the writ petition, by setting aside the impugned order of appointment, dated 4.10.2016, issued by the Secretary, DoTCL, Government of Arunachal Pradesh, vide No. DoTCL/DIR/ESTT-35/2016 in favour of the private Respondent No. 3, to the post of LDC. It is hereby ordered accordingly. 14. However, at the same time, the respondent authorities would be at liberty to fill -up the vacant post of LDC in accordance with the related Recruitment Rules and in conformity with the constitutional provisions. 15. We make it clear that allowing the writ petition and the instant writ appeal, does not mean that the second prayer made by the appellant/writ petitioner for regularization of her service to the post of LDC in place of the private Respondents No. 3 is allowed. 16. The instant writ appeal stands allowed to the extent indicated above and accordingly stands disposed.