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Tripura High Court · body

2019 DIGILAW 7 (TRI)

Mithun Bhattacharjee v. State of Tripura

2019-01-05

S. TALAPATRA

body2019
JUDGMENT & ORDER : 1. Heard Mr. Somik Deb, learned counsel appearing for the petitioners as well as Mr. D. Sharma, learned Addl. G.A. appearing for the respondent No.1 and Ms. P. Dhar, learned counsel appearing for the respondents No.2 to 8. 2. The petitioners had appeared in the selection process for recruitment in the post of LDC [Group-C] under the District and sub-ordinate judiciary of Tripura in terms of the advertisement dated 24.04.2015, Annexure-1 to the writ petition. By the said advertisement, 21 vacancies were declared to be filled up. One post was in the regular scale whereas 20 other posts were in the fixed pay. It has been further clarified that the vacancy was likely to be increased or decreased. There is no controversy in respect of the eligibility of the petitioners or their appearance in the said selection process. There is no dispute that the petitioners could not occupy a position to be appointed against the declared vacancies but their name was placed in the panel whose life was one year from the date of publication of the result i.e. 11.01.2017. According to the petitioners, 108 candidates was appointed on the basis of the select panel and thereafter, another 8 candidates were appointed from the panel within few months against the vacancies that had arisen thereafter but at the instance of the High Court, the said panel was cancelled in terms of the communication dated 20.12.2017. The communication dated 20.12.2017, Annexure-3 to the writ petition, made from the High Court contained inter alia as under: “In terms of the letter No.F.13(2)(a)-HC/2017/12540-47, dated 12th July, 2017 and No.F.26(3)(W)-HC/2017-13959-60 dated 04.08.2017 of the Hon’ble High Court existing panel under Final Merit-cum-Selection list of LDC (Group-C) published vide No.F. Recruitment Cell/DJ/W/(LDC)2015/471 dated 11.01.2017 and Final Merit-Cum-selection list of Group-D (Peon Grade) published vide No.F. Recruitment Cell/DJ/W/(Group-D)2015/5721 dated 02.05.2017 are hereby cancelled.” 3. From the information disclosed under Right to Information Act it appeared to the petitioners that 27 vacancies of LDC are still available to be filled up. Despite that, the petitioners were not appointed in the lifetime of the said panel. Hence, they have approached this court seeking the direction on the respondents for appointing them in furtherance of the said panel dated 11.01.2017, Annexure-2 to the writ petition. In support of their contention, a decision of this court in Sourav Datta vs. District & Sessions Judge & Anr. Hence, they have approached this court seeking the direction on the respondents for appointing them in furtherance of the said panel dated 11.01.2017, Annexure-2 to the writ petition. In support of their contention, a decision of this court in Sourav Datta vs. District & Sessions Judge & Anr. [judgment and order dated 29.06.2018 delivered in W.P.(C) No.213/2018] has been pressed into service to demonstrate that one of the persons in the said panel, namely Sourav Datta in terms of the direction of this court has been appointed as LDC. The following passage from the said judgment has been in particular referred by the petitioners: “8. It is true that mere placement in the select list confers no indefensible right but at the same time, the petitioner certainly have a legitimate expectation of consideration for appointment against the anticipated vacancy which became available on account of acceptance of resignation during the lifetime of the select list and such vacancy can be considered indeed for appointment out of the Merit-cum-Selection list dt. 11.01.2017 prepared pursuant to Advertisement dt. 24.04.2015 and no reason was forthcoming from the respondents to withhold the fair consideration of the petitioner for appointment on the post of LDC after his name being placed in the Merit-cum-Selection list dt. 11.01.2017 and defeated by the respondents without assigning any justification.” 4. The respondent No.4 by filing his reply has seriously disputed the statement of the petitioners in respect of the vacancies as stated to be available. It has been categorically stated that after initial appointment of 108 candidates strictly as per the merit panel 8 candidates were appointed further within few months inasmuch as 6 candidates [at Sl. No.13, 17, 20, 59, 70 & 79] who were offered the appointment did not accept the offer. In their place, another 6 persons [Sl. Nos.91 to 96] were offered appointment. During scrutiny of the records when it revealed that one candidate namely Bappa Saha was by mistake omitted to be called in the viva-voce test though he secured speed of 31.2 words per minute in the computer type test, which is higher than required speed of 30 words per minute, he was called for the viva-voce and to correct the omission and he was adjusted against the vacancy at Udaipur as another candidate, namely Saifat Hossain Alam left the service. Thereafter, another regular LDC, Bijan Pal and another candidate under Sl. Thereafter, another regular LDC, Bijan Pal and another candidate under Sl. No.46, namely Amit Debnath left the service and in their place candidates at Sl. Nos.97 & 98, namely Sri Dipayan Ghosh and Ashim Ghosh were given offer of appointment but Dipayan Ghosh did not accept the offer of appointment. On availability of the said vacancy, the candidate of the Sl. No.99 of the merit panel, namely Pranesh Debnath was given offer of appointment. After that at the direction of the High Court, the merit panel was cancelled and in this petition, there is no challenge against the said cancellation of the merit panel. But subsequently more vacancies were available which were not part of the earlier advertisement. However, it is admitted that one Sourav Datta approached this High Court and the said direction was given to consider his appointment. One vacancy caused for resignation of one Prabal Bhowmik, LDC and against that vacancy on consideration, Sourav Datta was given the appointment and his case was considered during the lifetime of the panel. Moreover, he was the next candidate in the merit panel. The respondents No.2 & 3 have filed a separate reply wholly in tune with the reply filed by the respondent No.4. 5. Mr. Somik Deb, learned counsel appearing for the petitioners has fairly submitted that in the merit panel, the writ petitioner No.1 is at Sl. No.128 whereas the petitioners No.2 to 7 are respectively at Sl. No.130, 141, 119, 170, 202 and 178 of the merit panel. But when the vacancies were available during the lifetime of the said panel, the respondents No.2, 3 & 4 did not consider their cases against those vacancies most arbitrarily. The petitioners ought to have been considered according to Mr. Deb, learned counsel, in the same manner as has been done in the case of Sourav Datta. Mr. Deb, learned counsel has submitted with adequate emphasis that the parameters of consideration should be equal. It cannot be manipulated by applying different subjective yardsticks. Even after appointment of Sourav Datta on 17.03.2017, 6 vacancies were available during the lifetime of the said merit panel. In this aspect, Mr. Mr. Deb, learned counsel has submitted with adequate emphasis that the parameters of consideration should be equal. It cannot be manipulated by applying different subjective yardsticks. Even after appointment of Sourav Datta on 17.03.2017, 6 vacancies were available during the lifetime of the said merit panel. In this aspect, Mr. Deb, learned counsel has referred to the reply filed by the respondent No.4, particularly to the following statement as made therein: “As such it appears that the appointment of Sri Sourav Datta was considered as the vacancy was caused during the lifetime of the panel of the Merit-cum-Selection List dated 11.01.2017. It is denied that final Merit-cum-Selection List dated 11.01.2017 is still alive.” 6. From the other side, Mr. D. Sharma, learned Addl. G.A. appearing for the respondent No.1 has categorically submitted that it is the trite law that only because a person has been assessed and his name finds place in the select panel, that by itself does not confer any legal right on him to be appointed. It is also the trite law that ordinarily a superior court in exercise of its power of judicial review would not interfere with the right to make appointment by an employer unless its action or inaction is found to be wholly arbitrary so as to offend Article 14 of the Constitution of India. In State of Rajasthan & Ors. vs. Jagdish Chopra, reported in (2007) 8 SCC 161 , it has been observed by the apex court as under: “It is well settled principle of law that the candidates do not have legal right in this behalf.” Mr. Sharma, learned Addl. G.A. has referred to the passage as reproduced below from Aryavrat Gramin Bank vs. Vijay Shankar Shukla, reported in (2008) 2 SCC (L&S) 489: “29. In any view of the matter if in terms of the select list the position of the respondent amongst the general category candidates was at serial number 47, a large number of persons were evidently above him. They might not have approached the High Court but it would not change the legal position. If the appellant which is a ‘State’ under Article 12 of the Constriction of India was to be asked by the High Court to act in terms of the select list, it would have been obligated to appoint only those persons whose names appear high on the said list. If the appellant which is a ‘State’ under Article 12 of the Constriction of India was to be asked by the High Court to act in terms of the select list, it would have been obligated to appoint only those persons whose names appear high on the said list. Other candidates, advisedly, did not approach the High Court for such a relief as the life of the panel had come to an end and the appellant had been enforcing the policy decision framed by the Central Government and NABARD to which it was found to follow.” 7. It is an admitted position that Sourav Datta who has been appointed last was at Sl. No.100 and the writ petitioner No.4 was in the closest position. But the candidates who occupied merit positions No.101 to 118 [UR category] have not approached this court nor did they approach the appointing authority for considering their case. Even they are not added as the parties in this petition. Hence, a large number of persons are above the petitioners. The admitted vacancy as was available during the lifetime of the panel in the last phase was 6 and hence, the case of the writ petitioners was not rightly considered by the respondents No.2 to 4 in any manner. 8. Ms. P. Dhar, learned counsel has raised another objection that the writ petition has been filed on 01.10.2018. By that time, the lifespan of the said merit panel had expired on 10.01.2018. However, the said panel was cancelled by the competent authority in terms of the communication dated 20.12.2017, Annexure-3 to the writ petition. There is no challenge against the said cancellation. Thus, the relief as claimed in the writ petition is still-borne. 9. Having appreciated the submissions of the learned counsel appearing for the parties, this court does not find any infirmity or infringement of Articles 14 & 16 of the Constitution while appointing the candidates during the lifetime of the panel. That apart, the writ petitioners have not been discriminated either by arbitrary action or in execution of discretion in cancellation of the panel. The law is well settled and consolidated that merely for being in the merit panel no candidate has any indefeasible right to claim appointment or to claim consideration against the available vacancy. That apart, the writ petitioners have not been discriminated either by arbitrary action or in execution of discretion in cancellation of the panel. The law is well settled and consolidated that merely for being in the merit panel no candidate has any indefeasible right to claim appointment or to claim consideration against the available vacancy. Whether to keep the panel for convenience for a certain period of time or to cancel it on consideration of the circumstances and fairness in action in the matter of public employment is within the discretion of the appointing authority. Who are in the merit panel cannot acquire any right in this regard. Unless it is demonstrated that their exclusion was arbitrary or discriminatory. No such element is present in the case. Moreover, the writ petitioners did not challenge the cancellation of the merit panel. This court cannot such circumstances, direct the respondents either to restore the merit panel or to appoint the petitioners by ignoring the candidates who occupied higher merit position in the said merit panel. 10. Having observed thus, this writ petition is bound to fail and accordingly, the same is dismissed. There shall be no order as to costs.