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2020 DIGILAW 118 (GAU)

Biri Tach, Dpc Isse v. State of Arunachal Pradesh

2020-02-03

KALYAN RAI SURANA

body2020
JUDGMENT Kalyan Rai Surana, J. - Heard Mr. N. Nibo, learned counsel for the common 12 petitioners in W.P.(C) 228(AP)/2019 and W.P.(C) 420(AP)/2019 as well as Mr. N. Taji, learned counsel for the common 5 petitioners in W.P.(C) 330(AP)/2019 and W.P.(C) 421(AP)/2019. Also heard Mr. K. Ete, learned Sr. Addl. Advocate General, assisted by Ms. R. Basar, learned Junior Govt. advocate appearing for the State respondents and Mr. I. Chowdhury, learned senior counsel, assisted by Mr. L. Parme and Mr. S. Biswakarma, learned counsel appearing for the private respondents No. 7 to 32 in W.P.(C) No. 228(AP)/2019 and No.4 to 29 in W.P.(C) No.420(AP)/2019 and W.P.(C) No. 421(AP)/2019. 2. The Hon''ble Division Bench of this Court, by judgment and order dated 02.12.2019 in W.A. 43(AP)/ 2019 (Rei Tamo Kumo and Ors. Vs. State of Arunachal Pradesh and Ors.) and three other connected appeals, had issued a direction to decide these bunch of four writ petitions within 31.01.2020. Accordingly, the hearing of these writ petitions had commenced on 30.01.2020. However, on submissions that the learned senior counsel for the private respondents No. 4 to 29 could not come due to unavoidable circumstances, the hearing of his part and argument in reply by the learned counsel for the petitioners was adjourned to 03.02.2020. 3. In W.P.(C) 228(AP)/2019 and W.P.(C) 330(AP)/2019, the petitioners have prayed, inter-alia, for setting aside the advertisement under file No. AR/ISSE/PA-MISC/3/2018-19 dated 05.07.2019; for a direction to the Deputy State Project Director, Samagra Shiksha Abhiyan Society (SSAS for short) and/or Integrated Schemes for School Education (ISSE for short) to modify/ alter or cancel the interview envisaged vide said advertisement; for direction to the Director of Secondary Education, Govt. of Arunachal Pradesh to recall/ cancel the transfer order under Memo No. ED.2/DSE/492/TGT/2019/02 dated 31.05.2019; and for direction to the respondents to conduct the interview as per the Government order No. CAB/ M-10/2018 dated 20.08.2018. 4. In W.P.(C) 420(AP)/2019 and W.P.(C) 428(AP)/2019, the petitioners therein have, inter-alia, prayed for setting aside and quashing of the advertisement bearing File No. AR/ISSE/PAMISC/ 3/2018-19/4511-22 dated 23.10.2019. 5. The petitioners claimed that they are presently serving as District Project Coordinator (DPC for short) of SSAS/ ISSE. The petitioners have projected that their appointment was made pursuant to the notification dated 28.04.2015, issued on 07.05.2015. 5. The petitioners claimed that they are presently serving as District Project Coordinator (DPC for short) of SSAS/ ISSE. The petitioners have projected that their appointment was made pursuant to the notification dated 28.04.2015, issued on 07.05.2015. It is also claimed that the petitioners were serving in their substantive posts of Block Education Officer (BEO for short) and that they were entrusted with the additional charge of DPC. The petitioners are aggrieved by the advertisement dated 05.07.2019, impugned herein, by which applications were called for from all District Adult Education Officer (DAEO), Block Education Officer (BEO), Assistant Project Officer (APO), Trained Graduate Teachers (TGT), Post Graduate Teachers (PGT) and serving District Project Coordinator (DPC), (excluding Science Teachers, Mathematics Teacher, and the officials who have been promoted to Head-Masters/ Vice Principal) for participating in the interview for selection and appointment to the post of DPC of SSAS/ ISSE on attachment basis. 6. The learned counsel for both sets of writ petitions have submitted that initially the two sets of petitioners had filed WP(C) 228(AP)/2019 and WP(C) 330(AP)/2019 to challenge the said advertisement dated 05.07.2019. However, during the pendency of the said two writ petitions, result of selection process was announced vide notification dated 23.10.2019, thereby selecting 26 persons as DPC, as such, the two sets of petitioners had challenged the said result notification dated 23.10.2019 by filing W.P.(C) No. 330(AP)/2019 and W.P.(C) No. 421(AP)/2019, where the selected candidates as respondents No. 4 to 29. It has also been submitted that by virtue of order dated 27.01.2020, passed by this Court in I.A.(C) No. 24(AP)/2020, read with order dated 03.02.2020, passed by this Court in W.P.(C) 228(AP/2019, the selected candidates were impleaded as respondents No. 7 to 32 in W.P.(C) No. 228(A)/2019. 7. The learned counsel for the petitioners have also submitted that previously the circular dated 03.09.2018 was challenged by filing W.P.(C) 442(AP)/2018 and on consent given by the learned standing counsel for the Education Department, the circular dated 03.09.2018 was set aside and quashed by order dated 19.07.2019. However, an advertisement dated 05.07.2019 was published, which is impugned in W.P.(C) 228(AP)/2019 and W.P.(C) 338(AP)/2019. It is submitted that the said advertisement is essentially being challenged on two major grounds. However, an advertisement dated 05.07.2019 was published, which is impugned in W.P.(C) 228(AP)/2019 and W.P.(C) 338(AP)/2019. It is submitted that the said advertisement is essentially being challenged on two major grounds. Firstly, that the said advertisement including clause-4 of the eligibility conditions was not in accordance with notification No. SEDN/81/2014/3287-99 dated 28.04.2015, issued vide Memo dated 07.05.2015, and secondly, the said eligibility condition by which all DAEOs, DEOs, APOs, TGTs and PGTs, serving DPCs was not inconsonance with the cabinet decision taken on 10.08.2018 by which it was mandated that the selection shall be made out of the coordinators working under erstwhile Sarva Shiksha Abhiyan (SSA)/ Rastriya Madhyamik Shiksha Abhiyan (RMSA). In respect of these two grounds of challenge, it is submitted that the respondents have not produced any documents to disclose that they had obtained approval from the competent authority to set out eligibility condition in contravention of the cabinet decision. Moreover, the respondents have not been able to show any recruitment rules or the source of power by which they could have set out any eligibility conditions for selecting DPCs. It is submitted that although in the advertisement dated 05.07.2019, it was mentioned that there was an approval from competent authority, but the respondents have not disclosed the existence of ay approval. The learned counsel for the petitioner, by referring to the Memorandum of Association as well as Rules of SSAS, it is submitted that all the appointments were required to be made by the Executive Committee of SSAS, but the advertisement impugned in W.P.(C) 228(AP)/2019 and W.P.(C) 420(AP)/2019 was issued by Deputy State Project Director (DSPD for short), who was not the member of the Executive Committee and could not have issued any such advertisement without disclosing the source of his power to issue such an advertisement. It is also submitted that after the result notification dated 23.10.2019 was published, by issuing a series of orders, the State respondents have started to take coercive action against the petitioners so as to revert the petitioners back to their original posts that they were holding before being appointed as DPC. Further assailing the result notification dated 23.10.2019, it is submitted that the said result sheet is vitiated by contravention of the eligibility conditions contained in the advertisement dated 05.07.2019 because the candidates whose name appear in Sl. Further assailing the result notification dated 23.10.2019, it is submitted that the said result sheet is vitiated by contravention of the eligibility conditions contained in the advertisement dated 05.07.2019 because the candidates whose name appear in Sl. No. 8, 19 and 21 were Science Teachers/ Headmaster/ Headmistress respectively whereas, the eligibility conditions excluded the appointment of Science Teachers, Maths Teacher, Head-Master and Vice Principal. By referring to the additional affidavit filed by the petitioners in WP(C) 228(AP)/2019, it has been submitted that the Executive Committee of ISSE in its meeting held on 14.05.2018 had envisaged that only one DPC remained in each district under the new scheme out of two separate DPCs that existed under the erstwhile SSA and RMSA, for which an appropriate mechanism was to be worked out centrally for implementation of the new scheme and put up the administrative structure for the decision of the government. It is submitted that only after the said meeting dated 14.05.2018, the State Cabinet, in its meeting held on 10.08.2018, took a decision that the selection of DPC was to be made out of the coordinators working under erstwhile SSA/ RMSA. Accordingly, it is submitted that after such decision, there was no scope for the DSPD to set out any new eligibility conditions in the impugned advertisement dated 05.07.2019, without disclosing his source of power to issue such advertisement. 8. The learned counsel for the petitioners in W.P.(C) 330(AP)/2019 and W.P.(C) 421(AP)/2019 has adopted the submissions made by the learned counsel for the petitioner in the other two writ petitions. It is further submitted that the petitioners had submitted their representation dated 27.08.2019, followed by a notice dated 10.09.2019 issued under Section 80 CPC, which was followed by another representation dated 18.09.2019. It is submitted that the State respondents, in their hurry to appoint persons of their own choice through illegal interview process, did not give any response to the said representations and notice. It is submitted that by appointing persons whose name appear in Sl. No. 8, 19 and 21 of the result advertisement, the State respondents had appointed Science Teachers and Head-Masters and, as such, the State respondents had violated the eligibility conditions prescribed by them by way of the advertisement dated 05.07.2019. 9. It is submitted that by appointing persons whose name appear in Sl. No. 8, 19 and 21 of the result advertisement, the State respondents had appointed Science Teachers and Head-Masters and, as such, the State respondents had violated the eligibility conditions prescribed by them by way of the advertisement dated 05.07.2019. 9. The learned counsel for both the sets of petitioners have extensively referred to the documents annexed to the writ petitions, additional affidavit filed by the petitioners in W.P.(C) 228(A)/2019, affidavit-in-opposition filed by the State respondents and the private respondents No. 4 to 29 in W.P.(C) No. 420(A)/2019 and W.P.(C) 421(AP/2019 and affidavit- in- opposition filed by the private respondents in W.P.(C) 228(AP)/2019. 10. Opposing these writ petitions, the learned Senior Additional Advocate General of the State and the learned senior counsel for the private respondents has submitted that the writ petitions are vitiated by supersession of material facts. In this regard, it is submitted that after the Cabinet decision taken on 10.08.2018, by another Cabinet decision taken on 02.06.2019, in respect of proposal for strengthening the education system in the State, it was decided under paragraph 4 thereof that under ISSE, only one District Project Coordinator per district to be appointed through a fresh transparent selection process. Accordingly, it is submitted that in the cabinet decision on 02.06.2019, the clause contained in the decision taken by the cabinet in the meeting held on 10.08.2018 that the selection for DPC was to be made from the coordinators working under their SSA/ RMSA was excluded. It is also submitted that the petitioners have suppressed the circular dated 18.06.2018, by which SSA and RMSA were integrated into one scheme under ISSE/ SSAS as well as notification dated 20.07.2018, by which scheme of SSA/ RMSA were dissolved/ closed. It is submitted that the petitioners are abusing the process of court by suppressing material facts and by placing reliance on an overruled and/ or superseded cabinet decision and on that count alone, the writ petitions can be dismissed in remaining without entering into the merit of the writ petition. 11. It is submitted that the petitioners are abusing the process of court by suppressing material facts and by placing reliance on an overruled and/ or superseded cabinet decision and on that count alone, the writ petitions can be dismissed in remaining without entering into the merit of the writ petition. 11. On the merit of the case, it is submitted that there is no document on record by virtue of which the petitioners can demonstrate that (i) there was any recruitment rules in force when they were appointed as DPC in SSA and RMSA, (ii) that they had undergone any sort of selection process while being appointed as DPC under the erstwhile SSA/ RMSA. However, in contrast a definite selection process was envisaged for appointment of DPCs from all District Adult Education Officer (DAEO), Block Education Officer (BEO), Assistant Project Officer (APO), Trained Graduate Teachers (TGT), Post Graduate Teachers (PGT), serving District Project Coordinator (DPC), (excluding Science Teachers, Mathematics Teacher, and officials promoted to the post of Head Master and Vice Principal), under the ISSE also called SSAS in a transparent manner. It is submitted that under the advertisement dated 05.07.2019, the existing DPCs under the erstwhile SSA/ RMSA were permitted to compete. It is also submitted that the petitioner No.1 in W.P.(C) 330(AP)/2019 and W.P.(C) 421(AP)/2019 was the only petitioner who had competed for being appointed as DPC, but after his candidature was rejected, he joined the other petitioners to file W.P.(C) 421(AP)/2019. 12. It has been submitted that as per the sequence of events, there was a previous circular dated 03.09.2018 by which it was envisaged that the senior most BEOs could appear in the interview for post of DPE of ISSE. It is submitted that when W.P.(C) 442(A)/2018 came up for hearing on 19.07.2019, the advertisement dated 05.07.2019, impugned herein, had already come into existence and, as such, the circular dated 03.09.2018 had already became redundant and, as such, there was no infirmity by the learned standing counsel for the Education Department to give his no objection if the circular dated 03.09.2018 was set aside and quashed and accordingly, W.P.(C) 442(AP)/ 2018 was disposed of by order dated 19.07.2019 by quashing the said circular dated 03.09.2018. It is also submitted that the petitioners, by relying on notification dated 28.04.2015, circulated vide memo dated 07.05.2015 are trying to project that if the advertisement dated 05.07.2019 was in contravention of the said notification. In this regard, by referring to the said notification, annexed as Annexure-A to W.P.(C) 228(AP)/2019, it is submitted that the said notification was for strengthening Block Education Officer under the erstwhile SSA and it was under the said context that in clause-7 thereof, it was provided that in accordance with the mandate of the Right of Children to Free and Compulsory Education Act, 2009 and the State Right to Education Rules, 2010, the post of District Programme Coordinator (also bearing short form of "DPC" for short) of Sarva Shiksha Abhiyan at district was to be entrusted to the Block Education Officer. It is submitted that the present post is for District Project Coordinator (DPC), which was not equivalent to District Programme Coordinator, but by taking advantage of the similar short form i.e. DPC, it is submitted that the petitioners are trying to mislead this Court with the incorrect facts and it is submitted that the notification dated 28.04.2015 has no connection with the advertisement dated 05.07.2019. 13. It is submitted that the impugned advertisement dated 05.07.2019 clearly indicated that the post of DPC of Samagra Shiksha/ ISSE was only on attachment basis for assisting the Deputy Commissioner-cum- District Project Director (DC-cum-DPD) and the Deputy Director of School Education- cum- District Project Officer (DDSE-cum-DPO) in implementation of Samagra Shiksha Scheme of all PAB approved or MHRD approved Educational District for a period of two years. Accordingly, it is submitted that the post of DPC was not a substantive post but it was a post created on attachment basis for temporary period of two years and, as such, it is submitted that there was no necessity or obligatory on part of the State Government to frame a Recruitment Rule and, as such, it was open to the State to regular the appointment to the post of DPC by exercising executive power and in this connection, reliance is placed on the case of Ramesh Prasad Singh Vs. State of Bihar & Ors., (1978) 1 SCC 37 (para 5) and Swaran Lata Vs. Union of India, (1979) 3 SCC 165 (para 38 and 43). State of Bihar & Ors., (1978) 1 SCC 37 (para 5) and Swaran Lata Vs. Union of India, (1979) 3 SCC 165 (para 38 and 43). It is submitted that the selection process is being held after an advertisement by notifying the eligibility and by such process the petitioners were not made ineligible as they were still permitted to participate in the selection process, as such, it is submitted that there was no breach of Article 14 and 16 of the Constitution of India and in this connection, the learned Senior Addl. Advocate General for the State relies on the case of B.N. Nagarajan & Ors. Vs. State of Mysore & Ors., (1966) AIR SC 1942 (para 5 and 7). 14. It is submitted that the erstwhile centrally sponsored schemes i.e. SSA, RMSA and Teacher Education (TE) were integrated into a single implementing society as ISSE/SSAS vide circular dated 18.06.2018. Moreover, the erstwhile societies called SSA and RMSA were dissolved/ closed by the competent authority pursuant to decision of Cabinet Committee on Economic Affairs in its meeting held on 28.03.2018, as per notification dated 20.07.2018, as such, the post of DPC, which the petitioners were holding under the erstwhile SSA/RMSA had ceased to exist. Accordingly, it is submitted that there is no way that it can be accepted that the petitioners were holding the post of DPC as on date. It is also submitted that DPC was not a substantive post and that the petitioners were not appointed by undergoing any selection process, no subsisting legal right accrued in favour of the petitioners and, as such, in order to enable the Government to make payment of salary, it was necessary for the Government that the petitioners would revert back to their original posts which they were holding before being appointed as DPC under erstwhile scheme which cannot be stated to be a coercive measure. 15. It is submitted that there has been no attempt to plead to show that rights under the meaning of Article 14 and 16 had been violated. There is no allegation of malafide. Moreover, it is submitted that it is always the employer''s prerogative to impose selection or eligibility criteria, for which reliance is placed on the case of Banarsidas & Ors. Vs. State of Uttar Pradesh & Ors., (1956) AIR SC 520 and M. Rathinaswami & Ors. Vs. There is no allegation of malafide. Moreover, it is submitted that it is always the employer''s prerogative to impose selection or eligibility criteria, for which reliance is placed on the case of Banarsidas & Ors. Vs. State of Uttar Pradesh & Ors., (1956) AIR SC 520 and M. Rathinaswami & Ors. Vs. State of Tamil Nadu & Ors., (2009) 5 SCC 625 . In the said context, it is submitted that as the Memorandum of Association and Rules of SSAS are silent regarding selection process, the Executive had to step in and accordingly, selection criteria was laid down in the advisement, which did not take away the right of the petitioners to participate in the selection process, accordingly, the selection process as indicated in the impugned advertisement was not violative of Article 14 and 16 of the Constitution of India. It is also reiterated that as the post of DPC was not a substantive post, but was a temporary post on attachment basis currently envisaging only a two year tenure, there was no necessity for the State to frame any Recruitment Rules and it is submitted that it is a well settled proposition of law that absence of Rules is not fatal, for which reliance is placed on the case of Nagpur Improvement Trust Vs. Yadaorao Jagannath Kumbhare & Ors., (1999) 8 SCC 99 . 16. Yadaorao Jagannath Kumbhare & Ors., (1999) 8 SCC 99 . 16. The learned senior counsel for the private respondents has submitted that his preliminary objections as to the maintainability of the writ petitions are (i) the W.P.(C) 330(AP)/2019 is hit by non- joinder of parties who are arrayed as respondents No.4 to 29 in W.P.(C) 228(AP/2019, being the selected candidates; (ii) in W.P.(C) 228(AP)/2019, even after respondents No.7 to 32 were impleaded, there was no amendment of the writ petition, as such, no relief has been sought for against the said respondents; (iii) the writ petitions are vitiated by the vice of suppression of material facts, viz., (a) circular dated 18.06.2018, (b) notification dated 20.07.2018, both dissolving SSA and RMSA and creation of SSAS/ISSE, and (c) Cabinet meeting decision dated 02.06.2019, as notified on 01.07.2019 which had over-riding effect on Cabinet decision dated 10.08.2018; (iv) petitioners who are themselves contractual employees who were selected without any selection process of any sort are estopped from challenging the transparent, widely advertised and open selection process; (v) the petitioners in W.P.(C) 228(AP)/2019 and W.P.(C) 420(AP/2019, and all except petitioner No.1 in W.P. (C) 330(AP/2019 and W.P.(C) 421(AP/2019, though eligible for selection, did not participate in the selection process, and moreover, petitioner No.1 in W.P.(C) No. 330(AP)/2019 and W.P.(C) 421(AP)/2019, had appeared in the selection process but was not selected joined the challenge after his rejection, for which the writ petition was for oblique purpose to somehow continue as DPC; (vi) the petitioners have not been able to show that any prejudice was caused to them because they would not be deprived of their appointment in the substantive posts which they were holding before being appointed as DPC under SSA/ RMSA, which continued to be the post from which they were drawing their salary; (vii) the petitioners have not made any pleadings to show the existence of their legal and fundamental right, which may be infringed if the impugned orders are not struck down; and (viii) the petitioners have not pleaded or established they have suffered any legal injury. In support of his preliminary objection, the learned senior counsel for the private respondents has placed reliance on the case of (1) K.D. Sharma Vs. Steel Authority of India Ltd. & Ors., (2008) 12 SCC 481 ; (2) Madanlal Vs. State of J&K & Ors., (1995) 3 SCC 486 ; (3) State of Orissa Vs. In support of his preliminary objection, the learned senior counsel for the private respondents has placed reliance on the case of (1) K.D. Sharma Vs. Steel Authority of India Ltd. & Ors., (2008) 12 SCC 481 ; (2) Madanlal Vs. State of J&K & Ors., (1995) 3 SCC 486 ; (3) State of Orissa Vs. Madan Lal Rungta, (1952) AIR SC 12 ; (4) Ayaaubkhan Noorkhan Pathan Vs. State of Maharashtra & Ors., (2013) 4 SCC 465 . 17. Confronted with the plea of suppression of material facts, in reply, the learned counsel for the petitioners have submitted beyond pleadings that the State does not have District Programme Coordinator and, as such, the District Programme Coordinator in notification dated 28.04.2018, issued on 07.05.2018 would only mean District Programme Coordinator. It is also submitted that the nature of challenge would show that there was no necessity to annex circular dated 18.06.2018 and notification dated 20.07.2018. It is also submitted that the Cabinet decision dated 02.06.2019, did not mention that the Cabinet decision dated 10.08.2018 was overruled. On the issue of non- joinder of selected candidates in W.P.(C) 330(AP)/2019, it is submitted that at the time when writ petition was filed, the result notification was not declared, as such, there was no necessity to implead the selected candidates. 18. In these writ petitions, the petitioners had categorically projected that they were serving as DPC by virtue of notification dated 07.05.2018. The said notification begins with the narration that it was issued in view of issues and challenges in the present set up and functions of block level educational administration as well as the trend of strengthening BEO, the reforms as indicated therein in respect of BEO was to be implemented. In para-7 thereof, it was provided that the duties and responsibilities of BEO shall be in accordance with the mandate of Right of Children to Free and Compulsory Education Act, 2009 and State RTE Rules, 2010, the post of District Programme Coordinator, SSA shall be entrusted to BEO in conformity with the recommendations of National University of Planning And Administration to make the BEO office purposeful, meaningful and effective. The documents annexed to the writ petition shows, inter-alia, that one Biri Tach, petitioner No.1 in W.P.(C) 228(AP)/2019 was appointed as DPC by order dated 23.04.2015, and similarly, Rigio Tapi, petitioner No.5 in the same writ petition was appointed as DPC by order dated 06.06.2014. There is no statement in the writ petition that post of District Programme Officer, as indicated in notification dated 28.04.2015, issued on 05.07.2015 did not exist and the said notification actually meant and referred to the post of District Programme Coordinator (DPC). Thus, the claim that the petitioners were appointed as DPC by notification dated 07.05.2015, is apparently not correct. 19. The issue which arises for consideration of this Court are as follows:- wxyz a. Whether there has been any suppression of material fact and if so, whether such suppression is fatal for the maintainability of these writ petitions? zyxw wxyz b. Whether on merit any case of interference is made out by the petitioners? On the first issue of suppression of material facts: zyxw 20. The petitioners did not annex the circular dated 18.06.2018 and notification dated 20.07.2018, which clearly indicated that erstwhile SSA and RMSA were integrated into a new implementing society called Samagra Shiksha Abhiyan Society (SSAS)/ ISSE. Therefore, in the absence of any executive order allowing the petitioners to continue as DPC under SSAS/ISSE, by withholding the said circular dated 18.06.2018 and notification dated 20.07.2018, it is apparent that the petitioner did not want to disclose before this Court that SSA and RMSA were dissolved and closed, as such, the petitioners only wanted to mislead this Court by projecting that the petitioners were still working as DPCs, which is not factually correct. It appears that by filing these writ petitions and the previous writ petitions, i.e. W.P.(C) 442(AP)/2018, and by not reverting back to their substantive posts, the petitioners wanted to portray a false picture before this Court as if the petitioners are still continuing as DPCs. 21. Similarly, the petitioners have suppressed the Cabinet decision taken in its meeting held on 02.06.2019. The said Cabinet decision was accorded approval by the Governor of the State and accordingly, notification No. SEDN/ 214/2019 dated 01.07.2019. 21. Similarly, the petitioners have suppressed the Cabinet decision taken in its meeting held on 02.06.2019. The said Cabinet decision was accorded approval by the Governor of the State and accordingly, notification No. SEDN/ 214/2019 dated 01.07.2019. The effect of the said Cabinet decision is that in the previous Cabinet decision dated 10.08.2018, it was provided that " selection of DPC shall be made out of the Coordinators working under erstwhile SSA/RMSA ", but by the Cabinet decision dated 02.06.2019, the said condition was removed and it was provided that "one DPC per district to be appointed through fresh transparent selection process". Thus, the requirement to appoint only those persons who were working as DPC under erstwhile SSA/RMSA was removed. Thus, had the said Cabinet decision dated 02.06.2019 been produced, it would have given a clear picture of the entire facts before this Court. It may be pertinent mention herein that the fist writ petition in these bunch, being W.P.(C) 228(AP)/2019 was filed on 25.07.2019, which is after the Cabinet decision was approved and notified on 02.07.2019. 22. All these three documents, viz., (1) circular dated 18.06.2018, (2) notification dated 20.07.2018, and (3) Cabinet decision dated 02.06.2019, for which notification dated 01.07.2019 was issued were vital and necessary to decide the issues raised in these writ petition, which was suppressed in order to portray an incorrect picture before this Court, which would mean that the intention of the petitioners was to deliberately mislead this Court and to form an impression to the effect that the petitioners were working as DPCs and that as per Cabinet decision, DPCs under SSAS/ISSE was only required to be selected from DPCs working under erstwhile SSA/RMSA, and to further form an opinion that the impugned advertisement dated 05.07.2019 was in contravention of the Cabinet decision dated 02.06.2019. 23. In the writ petitions, the petitioners have claimed that they are presently serving as District Project Coordinator (DPC for short) of SSAS/ ISSE, which is not a correct representation of facts because the petitioners were appointed as DPCs under erstwhile SSA/ RMSA, but despite orders, they did not revert back to their substantive posts. There is no document on record, by which the petitioners have been able to show that the ISSE/ SSAS had appointed them as DPCs. 24. There is no document on record, by which the petitioners have been able to show that the ISSE/ SSAS had appointed them as DPCs. 24. In view of the discussions above, the indelible impression of the Court is that the petitioners have deliberately and wilfully withheld material facts which had immense bearing in the case with no other intention but to mislead this Court on facts. 25. In the case of K.D. Sharma (supra), cited by the learned senior counsel for the private respondents, the Supreme Court of India has held to the effect that the jurisdiction of the High Court under Article 226 of the Constitution is extraordinary, equitable and discretionary and that the prerogative writs mentioned therein are issued for doing substantial justice, therefore, it was of utmost necessity that the petitioner approaching the writ Court must come with clean hands, put forward all the facts before the Court without concealing or suppressing anything and seek an appropriate relief and it was further held to the effect that if there is no candid disclosure of relevant and material facts or the petitioner is guilty of misleading the Court, his petition may be dismissed at the threshold without considering the merits of the claim. 26. Accordingly, the preliminary objection raised by the learned Senior Additional Advocate General of the State and by the learned senior counsel for the private respondent regarding suppression of material facts and consequences which follows it is sustained. Thus, the first issue is decided in the affirmative and against the petitioners by holding that there has been suppression of material facts and that such suppression is fatal for the maintainability of these writ petitions. Accordingly, this writ petition deserves to be dismissed. 27. Notwithstanding the decision on the first issue as framed by this Court, the second issue framed for decision by this Court was whether on merit any case of interference is made out by the petitioners. This issue would detain this Court for long, as such, it is deemed appropriate to enter into the merit of the claim of the petitioners. On second issue as to whether on merit any case of interference is made out by the petitioners: 28. This issue would detain this Court for long, as such, it is deemed appropriate to enter into the merit of the claim of the petitioners. On second issue as to whether on merit any case of interference is made out by the petitioners: 28. The documents annexed to the writ petition shows that the petitioners were holding the substantive posts of BEO and that they are drawing their salary and other emoluments as BEOs in their respective place of posting. The petitioners have not annexed any document and they have also not made any statement in the writ petition regarding the selection process that they had undergone to be appointed to the said post. The advertisement dated 05.07.2019, clearly indicate and demonstrates that the appointment to the post of DPC under SSAS/ ISSE was on attachment basis for 2 years to assist DC- cum- DPD and DDSE- cum- DPO. Moreover, by advertisement dated 05.07.2019, eligibility criteria has been prescribed. As the DPCs have to deal with education of children, this Court is of the considered opinion that the State, as a model employer would have the sole prerogative to impose eligibility conditions and criteria for persons to hold the post of DPC. Thus, when the SSAS/ ISSE, in the said advertisement had laid down an eligibility criteria, inter-alia, allowing all DAEOs, BEOs, APOs, TGTs and PGTs, serving DPCs, (excluding Science Teachers, Mathematics Teacher and officials who have been promoted to Head-Master/ Vice Principal), neither the authorities had deprived the petitioners to participate in the selection process, nor the selection process was restricted to only one or two categories of post holders. Thus, it is apparent that the petitioners had not suffered any prejudice and none of their legal right was violated and, as such, the petitioners have not been able to bring home their allegation that there has been a violation of Article 14 and 16 of the Constitution of India. 29. The petitioners have neither pleaded infringement of legal right, nor have the petitioners been able to establish any infringement of any semblance of their legal right. The petitioners were aware that as there were two sets of DPCs in the previous regime of SSA and RMSA, they would have to undergo a selection process because the Cabinet decision 10.08.2018 and 02.06.2019 had made it clear that there would only be one DPCs in each educational district. The petitioners were aware that as there were two sets of DPCs in the previous regime of SSA and RMSA, they would have to undergo a selection process because the Cabinet decision 10.08.2018 and 02.06.2019 had made it clear that there would only be one DPCs in each educational district. Therefore, the petitioners thought that they may succeed in scuttling the selection process initiated by advertisement dated 05.07.2019 by suppressing Cabinet decision dated 02.06.2019 by projecting as if DPCs must be selected only from DPCs under erstwhile SSA and RMSA. 30. Thus, when the Hon''ble Division Bench of this Court while adjudicating W.A. No. 43(AP)/2019 and other three connected appeals found that the advertisement dated 05.07.2019 was challenged without impleading necessary parties, the said factor was indicated in the appellate judgment rendered in the said four writ appeals. The issue of non- joinder has more ramifications than meets the eye. The impugned advertisement dated 05.07.2019 made all DAEOs, BEOs, APOs, TGTs and PGTs, serving DPCs, (excluding Science Teachers, Mathematics Teacher and officials who have been promoted to Head-Master/ Vice Principal) eligible to apply and participate in the selection process, but the petitioners herein did not implead all such post holders as parties in the writ petition. Nonetheless, the said advertisement did not make the petitioners ineligible to apply and, as such, petitioner No.1 in W.P.(C) 330(AP)/2019 and W.P.(C) 421(AP)/2019 participated but on not being selected, he has joined the challenge to the advertisement. The Supreme Court of India, in the case of Madan Lal (supra) has held that it is not open for an unsuccessful candidate to challenge the selection process on account of unfairness of the interview process or defect in process after they had taken a chance to get themselves selected at the impugned interview. Thus, when the petitioner No.1 in W.P.(C) 330(AP)/2019 and W.P.(C) 421(AP)/2019 have been joined by other petitioners therein, there is no way that this Court can separate the causes of action of the petitioners, as such, the challenge made by the petitioners in the said two writ petition i.e. W.P.(C) 330(AP)/2019 and W.P.(C) 421(AP)/2019 miserably fails. The said writ petition deserves to be dismissed on this count alone. 31. In W.P.(C) 228(AP)/2019, although successful candidates were impleaded as respondents No.7 to 32, the writ petition has not been amended to seek relief in respect of the newly impleaded parties. The said writ petition deserves to be dismissed on this count alone. 31. In W.P.(C) 228(AP)/2019, although successful candidates were impleaded as respondents No.7 to 32, the writ petition has not been amended to seek relief in respect of the newly impleaded parties. In light of the provisions of Order I Rule 10(4) CPC, it is elementary that if parties are added, the writ petition ought to have been amended, which was not done. 32. These writ petitions also have a unique facet. The prayers in two writ petitions, being W.P.(C) 228(AP)/2019 and W.P.(C) 330(AP)/2019 are similar to each other, and the prayers made in W.P.(C) 420(AP)/2019 and W.P.(C) 421(AP)/2019 are similar to each other. However, these four writ petitions are stand alone writ petitions. The petitioners in W.P.(C) 228(AP)/2019 and W.P.(C) 420(AP)/2019 are same but they chose not to amend the first writ petition or to withdraw the first writ petition and make consolidated challenge in the second writ petition. The petitioners in W.P.(C) 330(AP)/2019 and W.P.(C) 421(AP)/2019 face same situation. The second set of writ petitions, being W.P.(C) 420(AP)/2019 and W.P.(C) 421(AP)/2019 are similar to each other are hit by principles of constructive res judicata as per the provisions of Section 11 Explanation- IV read with Order II Rule 2 CPC, which would mean that as per order II Rule 2 CPC, the petitioners were required to make the whole claim, otherwise the effect of explanation IV of Section 11 CPC would be that any matter which might and ought to have been made a ground of attack in a former writ petitioner, be deemed to have been a matter directly and subtanstialy in issue in such former writ petition. It is no longer res integra that the principle of constructive res judicata is attracted in writ proceeding also. If one needs any authority on the same, reference may be made to the case of Hemanta Bhattacharjee Vs. State of Assam ` Ors., (2008) 4 GauLT 7 (DB) : (2010) 5 GLR 428 (DB). In the present case in hand, in the first set of writ petition, advertisement has been challenged and in the second set of writ petitions, the result notification has been challenged. State of Assam ` Ors., (2008) 4 GauLT 7 (DB) : (2010) 5 GLR 428 (DB). In the present case in hand, in the first set of writ petition, advertisement has been challenged and in the second set of writ petitions, the result notification has been challenged. However, under the principles of constructive res judicata is not confined to the issues or facts which the Court is actually asked to decide, but it covers issues or facts which are so clearly part of the subject matter of the litigation and so clearly could have been raised and that it would be an abuse of the process of Court to allow a new proceeding to be started in respect of them. Nonetheless, as the issue of constructive res judicata has not been raised by the respondents, the petitioners are not non- suited in the second set of writ petitions on this ground. 33. It is seen that in W.P.(C) 228(AP)/2019 and W.P.(C) 330(AP)/2019, amongst other reliefs, the advertisement dated 05.07.2019 has been assailed. Moreover, prayers have been made for recalling transfer orders issued by the Director of Secondary Education, Arunachal Pradesh and for a direction to the respondents to conduct interview at par with Cabinet decision dated 10.08.2018 vide Memo dated 20.08.2018. As already indicated herein before, the Cabinet decision dated 02.06.2019 superseded the Cabinet decision dated 10.08.2018, as such, the petitioners in the said two writ petitions are not entitled to any relief in this writ petition as the advertisement appears to be in conformity to the Cabinet decision dated 02.06.2019, which is not under challenge. 34. The advertisement dated 05.07.2019 is by ISSE and not by the Government. The petitioners of W.P.(C) 228(AP)/2019, in their additional affidavit filed on 27.01.2020, have annexed the Rules relating to ISSE and in Rule 29(v) thereof, there is a reference to DC- cum- DPD and DDSEcum- DPO under SSAS, who are the two authorities to whom the DPCs are to render assistance. Thus, the petitioners in W.P.(C) 228(AP)/2019 have themselves established that the impugned advertisement is in consonance with the Rules of ISSE. 35. Thus, the petitioners in W.P.(C) 228(AP)/2019 have themselves established that the impugned advertisement is in consonance with the Rules of ISSE. 35. The learned counsel for the petitioners had submitted that there was no DSPD in the Rules, as such, the advertisement issued by him was without authority, which is not an acceptable submission because there is no specific pleading in the writ petition to that effect and there is also no statement in the writ petition seeking disclosure by the ISSE of approval from the competent authority as mentioned in the end of the said advertisement. The said submissions is another way of misleading the Court because of the fact that ISSE and/or the SSAS has not been impleaded in any of the writ petitions, as such, the advertisement issued by it cannot be set aside or quashed in the absence of the said ISSE/SSAS, who has issued the said advertisement. It may be pertinent to mention herein that the petitioners have impleaded the State Project Director, ISSE, SSAS, but without impleading the employer i.e. ISSE/ SSAS. As indicated herein before the advertisement was made under the pen of Deputy State Project Director of SSAS/ ISSE. Thus, challenge to the impugned advertisement fails for non- impleading of ISSE/SSAS, who is the proper and necessary parties to maintain a challenge to an advertisement issued by it. Thus, the two writ petitions, i.e. W.P.(C) 228(AP)/2019 and W.P.(C) 330(AP)/2019 fails for non-impleading of ISSE/ SSAS, which vitiates the challenge to the advertisement dated 05.07.2019. The said two writ petitions are liable to be dismissed on the said count. 36. Similar defect of non- joinder of ISSE/ SSAS also appears to be fatal for the maintainability of W.P.(C) 330(AP)/2019 and W.P.(C) 421(AP)/2019 because in these two writ petitions also, the ISSE/ SSAS has not been impleaded as respondents, but the petitioners have only impleaded State Project Director of ISSE/ SSAS as one of the respondents. Various appointment orders as DPCs, as annexed to the affidavit- in- opposition filed by the private respondents shows that those appointment orders were passed by DSPD, who had issued the advertisement dated 05.07.2019. Moreover, the result notification dated 23.10.2019, impugned in W.P.(C) 420(AP)/2019 and W.P.(C) 421(AP)/2019 are also issued under the signature of DSPD, who is the same authority issuing the said advertisement dated 05.07.2019. Moreover, the result notification dated 23.10.2019, impugned in W.P.(C) 420(AP)/2019 and W.P.(C) 421(AP)/2019 are also issued under the signature of DSPD, who is the same authority issuing the said advertisement dated 05.07.2019. Thus, the petitioners have not impleaded DSPD as one of the respondents in the said two writ petitions and they have also not impleaded the employer i.e. ISSE/ SSAS. Thus, the challenge to the result notification dated 23.10.2019, which is impugned in W.P.(C) 420(AP)/2019 and W.P.(C) 421(AP)/2019 also miserably fails. Moreover, owing to non- joinder of ISSE/ SSAS, the allegations made to the effect that the Rules had been violated cannot stand. The said two writ petition deserves to be dismissed on this count alone. 37. Although it was claimed that order of approval as indicated in advertisement dated 05.07.2019 has not been disclosed, but in the absence of ISSE/ SSAS, no other could have produced the order of approval of the competent authority on the strength of which the impugned advertisement dated 05.07.2019 had been issued. 38. The petitioners, who were themselves appointed as DPCs under the erstwhile regime of SSA/ RMSA cannot challenge the transparent selection process initiated by the ISSE/ SSAS, which is in consonance with the Cabinet decision dated 02.06.2019, as notified on 01.07.2019 by the State. W.P.(C) 330(AP)/2019 and W.P.(C) 421(AP)/2019. In absence of any Recruitment Rules, this Court is of the considered opinion that it is open to the Executive to impose selection criteria, which is strictly within the zone of employer''s prerogative. The two cases of Banarsidas (supra) and M. Rathinaswami (supra), cited by the learned senior counsel for the private respondents are authorities on the point. Moreover, in the case of Nagpur Improvement Trust (supra), it has been held by the Supreme Court of India that in absence of Rules, executive instructions can be made, as such, the decision to recruit DPCs in terms of criteria mentioned in advertisement dated 05.07.2019 cannot be interfered with. In the case of (i) L. Ramesh Prasad Singh (supra), and the case of (ii)Swaran Lata (supra), it has been held by the Supreme Court of India that it is not obligatory to make Rule of Recruitment before a service is constituted or a post is created. In the case of (i) L. Ramesh Prasad Singh (supra), and the case of (ii)Swaran Lata (supra), it has been held by the Supreme Court of India that it is not obligatory to make Rule of Recruitment before a service is constituted or a post is created. The said ratio applied in this case in hand because the post of DPC was not a substantive but a temporary need based post for a period of 2 (two) years, as such, it was not obligatory for the State to frame Recruitment Rules for the post of DPC in this case. 39. The learned counsel for the petitioners in W.P.(C) 420(AP)/2019 and W.P.(C) 421(AP)/2019 had submitted that as per the result notification dated 23.10.2019, the appointee at Sl. No.8 was a Science Teacher, appointee at Sl. No.19 and 21 were Head-Master. However, by the documents annexed to the affidavit- in- opposition filed by the private respondents in W.P.(C) 228(AP)/2019, they have successfully demonstrated that the said appointees were DPCs under the erstwhile SSA/RMSA, as such, they were eligible to compete for being selected as DPCs under ISSE/ SSAS. Thus, challenge on the said count also fails. 40. Thus, the second issue is decided in the negative and against the petitioners by holding that the petitioners have not been able to make out any case on merit. 41. Thus, in light of the discussions above, it is seen that on all counts, i.e. on preliminary objection of suppression of material facts as well as on merit, these set of four writ petitions fail and, as such, the said writ petitions are dismissed. Accordingly, no interference is called for in respect of result notification No. AR/ISSE/PA-MISC/3/2018-19/4511-22 dated 23rd October, 2018. 42. However, in view of the finding to the effect that the petitioners have suppressed material facts, this Court is inclined to impose a cost of Rs.5,000/- on each of the petitioners in these four writ petitions i.e. W.P.(C) 228(AP)/2019, W.P.(C) 330(AP)/2019, W.P.(C) 420(AP)/2019 and W.P. (C) 421(AP)/2019 to be paid to the Arunachal Pradesh State Legal Services Authority. The order for realization of cost would stand suspended for a period of 30 days from today to enable the petitioners to voluntarily deposit such cost to the Arunachal Pradesh State Legal Services Authority with intimation to their respective Drawing and Disbursing Officers (D.D.O.s for short). The order for realization of cost would stand suspended for a period of 30 days from today to enable the petitioners to voluntarily deposit such cost to the Arunachal Pradesh State Legal Services Authority with intimation to their respective Drawing and Disbursing Officers (D.D.O.s for short). However, if such cost is not voluntarily deposited by the petitioners, it would be open to the Arunachal Pradesh State Legal Services Authority to seek enforcement of the order for payment of cost through the Director of Elementary Education, Arunachal Pradesh and/or the Director of Secondary Education, Arunachal Pradesh, under whose establishments the petitioners are working. It is provided that on such application for enforcement of cost being made by the Arunachal Pradesh Legal Services Authority, the concerned Director of Elementary Education, Arunachal Pradesh and/or the Director of Secondary Education, Arunachal Pradesh shall direct the concerned DDOs of the petitioners to deduct such cost from the salary of the petitioners and forward the same to the Arunachal Pradesh State Legal Services Authority. Hence, let a copy of this order be provided free of cost to the Arunachal Pradesh State Legal Services Authority for their information and follow up. 43. Before parting with the records, it is made clear that while dismissing these four writ petitions, this Court has not stayed and/or in any manner interfered with the process of reversion and/or repatriation of the petitioners to the posts which they were previously holding prior to being appointed as DPCs under the erstwhile SSA/ RMSA.