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2022 DIGILAW 37 (MEG)

Mofiqul Islam v. State of Meghalaya

2022-03-08

SANJIB BANERJEE, W.DIENGDOH

body2022
JUDGMENT Sanjib Banerjee, CJ. - The short question raised in this appeal, arising out of the rejection of a writ petition filed by the appellants herein, is as to whether the writ petitioners fall within the purview of clause 1(c) of the directions contained in a Division Bench order of this Court of November 2, 2017. 2. There is no dispute that the appellant-writ petitioners participated in a selection process initiated under an advertisement issued on December 10, 2008 by the Deputy Inspector of Schools pursuant to a notification of November 24, 2008. At five of the centres at which the recruitment examination was conducted - Shillong Sadar, Jowai, Amlarem, Tura and Dadenggre - widespread irregularities were reported which resulted in this Court directing an inquiry into the matter by the Central Bureau of Investigation. Though it was discovered that mass irregularities did take place, in the appellate order of November 2, 2017, certain directions were issued for stop-gap measures and for a fresh selection process to be conducted. 3. The principal directions which are relevant for the present purpose are contained in the several sub-clauses of clause 1 of the order dated November 2, 2017: '1. (a) The whole of selection process under the advertisement dated 10.12.2008, as issued by the Deputy Inspector of Schools in pursuance of Notification dated 24.11.2008, is held vitiated in relation to Shillong Sadar, Jowai, Amlarem, Tura and Dadengre Centres; and is annulled subject to the proviso that only the candidates who have been treated as untainted/unblemished both in the reports of CBI and HLSC and are in service, may be allowed to continue as stop-gap arrangement until fresh selection takes place. (b) The prayer of other untainted/unblemished candidates of the said five Centres for induction in service stands rejected. (c) However, all the untainted/unblemished candidates of the said five Centres, whether in service or not, shall be allowed to participate in the fresh selection process, if otherwise eligible in accordance with the presently applicable Rules/Guidelines, without necessity of their applying afresh. In this regard it is also provided that none of such untainted/unblemished candidates shall be treated as age-barred if he/she was within the age prescribed by the notification dated 24.11.2008. In this regard it is also provided that none of such untainted/unblemished candidates shall be treated as age-barred if he/she was within the age prescribed by the notification dated 24.11.2008. (d) None of the candidates who has been found tainted/blemished, whether in the report of CBI or in the report of HLSC or both as also none of the candidates who had been recommended by the public representative shall be taken or retained in service even in stop-gap arrangement and the service of every such candidate, who is yet continuing, whether by way of regular appointment or in ad hoc arrangement, shall stand terminated with immediate effect.' 4. The appellants herein had participated in the selection process but had not been selected. As such, the appellants do not fall under clause 1(a) of the said appellate order. Clause 1(c) of the relevant order permitted 'all the untainted/unblemished candidates of the said five Centres, whether in service or not ... to participate in the fresh selection process, if otherwise eligible in accordance with the presently Rules/Guidelines, without necessity of their applying afresh.' 5. The relevant sub-clause went on to clarify that the unsuccessful but unblemished and untainted candidates at the five centres would be considered in course of the fresh selection process irrespective of whether such candidates, at the time of the selection, were age-barred. 6. As is evident from the relevant direction, the unsuccessful but untainted and unblemished candidates at the five centres were not even required to apply afresh; as per the relevant direction, their candidatures would automatically have to be considered. The only caveat to the relevant direction was that such unsuccessful but untainted and unblemished candidates at the relevant five centres had to have the requisite qualifications to be offered the appointment and the qualifications would be reckoned as on the date of the judgment. The only caveat to the relevant direction was that such unsuccessful but untainted and unblemished candidates at the relevant five centres had to have the requisite qualifications to be offered the appointment and the qualifications would be reckoned as on the date of the judgment. It may be observed, in this context, that it was open to the appellate court to allow all the candidates who were qualified to participate in the 2008 selection process to be eligible for consideration in the fresh selection process; but the Division Bench consciously shrunk the number of candidates who would be eligible to be considered for the fresh selection process by using of the words 'if otherwise eligible in course with the presently applicable Rules/Guidelines ...' In other words, if the essential qualifications for the post stood altered between 2008 and 2017, it would be the altered qualifications relevant in 2017 which would be the benchmark and not the extant qualifications of 2008. 7. In the impugned order dated December 16, 2021 the reasoning furnished for rejecting the writ petition is found at paragraph 7 thereof: '7. From the submission of the learned counsel for the petitioners and from the pleadings in the petition itself, it is undisputed that the petitioners were unsuccessful in the initial selection process and their names did not figure in any select list. The directions of this Court in the Division Bench on perusal, has clearly directed that untainted/unblemished candidates of the said five Centres whether in service or not, shall be allowed to participate in the fresh selection process. Purport of this direction in the considered view of this Court is to afford opportunity to those candidates who lost their employment opportunity on being selected due to the illegalities which were detected in the earlier selection process for which if otherwise, they would have been in employment today. It is perhaps in this backdrop that the Division Bench had allowed such candidates to tender fresh candidature notwithstanding the prescribed age limit if they were within the age limit on the date of the selection held on 24-11-2008.' 8. It is the third sentence of the relevant paragraph which appears not to be in consonance with the appellate order of November 2, 2017, particularly the directions contained in clause 1(c) thereof. It is the third sentence of the relevant paragraph which appears not to be in consonance with the appellate order of November 2, 2017, particularly the directions contained in clause 1(c) thereof. The directions contained in the relevant appellate order cannot be understood to have afforded an opportunity only to those candidates who lost their posts despite being selected. Clause 1(a) is confined to those who were selected and were found to be untainted and unblemished. However, clause 1(c) is explicit in the use of the expression 'all the untainted/unblemished candidates of the said five Centres, whether in service or not ...' Such persons, who fall within the purview of such quoted expression, had been allowed to participate in the fresh selection process, subject to such persons being eligible for consideration in accordance with the rules and guidelines applicable at the time of the delivery of the judgment in 2017. 9. Thus, if the appellant-writ petitioners had participated in the recruitment process of 2008 and had been candidates at any of the said five centres and had also been found to be untainted and unblemished, irrespective of whether they were successful or were not, they would be entitled to be considered in course of the fresh selection; but subject to meeting the eligibility criteria in vogue in 2017. 10. Accordingly, the judgment and order impugned dated December 16, 2021 cannot be sustained and the same is set aside. WP(C) No. 434 of 2021 is allowed with the observation that the writ petitioners, who are the appellants herein, will be liable to be considered in course of the fresh selection process to be held in terms of the order dated November 2, 2017 as long as such writ petitioners meet the eligibility criteria which were relevant as on November 2, 2017, irrespective of whether they may fall short of the eligibility criteria as of now or as on the date when the fresh selection process commences. It is also made clear that in view of clause 1(c) of the order dated November 2, 2017, the age-disqualification will not apply to the writ petitioners. 11. It is also made clear that in view of clause 1(c) of the order dated November 2, 2017, the age-disqualification will not apply to the writ petitioners. 11. It is recorded that the State has not disputed that the writ petitioners had participated in the 2008 selection process; that each of them were candidates at one of the five relevant centres; that the writ petitioners were unsuccessful and had not been selected for appointment in the 2008 process; and, that the writ petitioners were found to be untainted and unblemished in the sense that they were not found to have indulged in the irregularities at any of the said five centres that resulted in the selection process being annulled. 12. WA No.5 of 2022 is allowed as above. There will, however be no order as to costs. 13. MC (WA) No.5 of 2022 is disposed of.