AI Structured Summary
Not yet generated for this judgment
Judgment
H.K. Sema, J.—This writ petition has been preferred by three Petitioners. The facts given rise to filing of this writ petition may be summarily recited.
Pursuant to requisition dated 16.1.93 made by the Respondent No. 1 herein for filling up of two posts of Peons against the deputation vacancy, Petitioners along with others applied for the posts. Thereafter the Departmental Promotion Committee was held on 16.2.1993 and recommended 4 (four) candidates. It appears from the proceeding of the D.P.C. on 3.4.93 that one resulting vacancy, due to superannuation of Shri Ayangba Kabui, Process Server had arisen on 6.4.93 and another D.P.C. was sat on 3.4.95 with the Respondent No. 1 as Chairman, and recommended the case of Shri J.S. Rengam Anal in the D.P.C. held on 5.4.93. By another order dated 5.4.93, the Respondent No. 1 also accepted the recommendation of the four candidates in the D.P.C. meeting held on 16.2.93. The Respondent No. 1 further ordered that appointment order should be issued as soon as ban is lifted by die Government of Manipur. Since there was a ban of making fresh appointment, the Petitioners along with others could not be appointed. In the meantime, the Respondent No. 1 by impugned order dated 8.7.96 issued notice to the four selectees for reviewing of the order dated 5.4.93 accepting the recommendation of D.P.C. held on 16.2.93 on the ground of legal and technical problems. By the aforesaid notice, the selected candidates were required to appear before the Respondent No. 1, District and Sessions Judge, Manipur (East) on 15.7.96 at 10.00 A.M. and submit objection, if any.
Pursuant to the aforesaid notice dated 8.7.96, Petitioners also submitted representation before the Respondent No. 1 on 12.7.96 and 15.7.96 respectively without any result. The Petitioners being aggrieved by notice dated 8.7.96. Hence the present petition.
I have heard Mr. T. Nandakumar, learned Counsel for the Petitioners as well as Mr. Shyamkishore, learned Government Advocate.
Before I advert further, I may at this stage point out that, after hearing the Petitioners and having considered their representations, the Respondent No. 1 has passed final order on 18.7.1996 (Annexure-D/4) of the counter. The order reads:
No. 91A/96. On consideration of the interest of all in giving appointment to the best and the most suitable person as an employee of this establishment, the need for giving equal opportunity to all citizens in matters of employment at or about the time when an appointment is to be made, die lapse of the period of more than three years from 5.4.93 on which my predecessor, on the basis of a recommendation of the D.P.C. held on 16.2.93, directed in the file for giving appointment to (1) Shri. Gangmei Adumthoi RN, (2) Shri Th. Loken Meitei, (3) Shri Ningombam Thoiba Singh and (4) Md. Rahamandin to the vacant Grade-IV posts of this establishment after removal of the then existing ban imposed by the State Government in respect of appointment, the fact of unconstitutionality in giving appointment in excess of die notified vacancies, the need to specify the number of reserved and general categories of posts to be filled up and all the relevant Actors including the provisions of the Rules 14 and 18 of die Manipur Subordinate Civil Courts Ministerial Establishment Rules, 1967 and Articles 14, 16 of the Constitution. I am of the opinion that it will not be reasonable and just to give appointment to the above said four persons in respect of the present existing vacancy in Grade-IV posts on the basis of the recommendation of the D.P.C. held on 16.2.93 and the order/note dated 5.4.93. The above said recommendation of the D.P.C. is rejected. The order/note given on 5.4.93 is also hereby reviewed and cancelled. A fresh recruitment process is to be started for filling in the present existing vacant Grade-IV posts of this establishment. The above said four persons will have equal right and opportunity with others fresh candidates to complete for the existing vacant Grade-IV posts. Call for the list of candidates from all the District Employment Officers in Manipur in connection with the existing vacant Grade-IV posts specifying the number of reserved and general categories of the posts required to be filled up. Date of the interview is to be fixed afterwards.
Sd/- M. Binoykumar Singh District and Sessions Judge, Manipur East.
This final order has not been assailed in this writ petition, and on this score alone the present writ petition is liable to be rejected. It is well settled principle of law that grievances not pleaded in the writ petition should not be considered. See Additional District Magistrate (City) Agra Vs. Prabhakar Chaturvedi and Another,
Reverting to the facts of the case, there is no dispute that requisition was made for filling up of two peons against the deputation vacancy, however, the D.P.C. in its meeting held on 16.2.93 has recommended four candidates in excess of the posts requisitioned. Relevant records pertaining to D.P.C. held on 16.2.93 and 5.4.93 has been called and the same is perused. On perusal of the entire records and the minutes of D.P.C. held on 16.2.93 there is not even a whisper about the anticipated vacancy. On the other hand, the minutes held on 16.2.93 at 11.30 A.M. clearly recorded for selection of two post of Grade-IV employees. However, four candidates have been recommended without assigning any reasons. There is no dispute that the future vacancies for which the D.P.C. had recommended four candidates had arisen on 6.4.93, 3.6.93, 28.6.93 and 30.9.93. So it clearly appear that in the guise of filling up of two posts of deputation vacancies the subsequent vacancies arises on 6.4.93, 3.6.93, 28.6.93 and 30.3.93 has been sought to fill up without advertising the post and without even observing the quota, rota rules. At the time of hearing of this writ petition, it is submitted by both sides at the bar that for clear vacancies of four Grade-IV posts there will be certain quota for tribals in accordance with the quota and rota rules.
The aforesaid facts and circumstances would clearly show that the recommendation of D.P.C in its meeting held on 16.2.93 and 5.4.93 suffered from following inherent legalities and void ab-initio:
(a) Requisitioning for filling up of two posts of deputation vacancy on regular basis is not permissible, because deputation vacancy is not a regular vacancy.
(b) From the minutes of the D.P.C held on 16.2.93 and 5.4.93 it clearly appear that the future vacancies has been filled up without advertising the post which is constitutionally not permissible.
(c) In the guise of filling up of two deputation vacancies, four candidates have been recommended against the post of future vacancies in excess of posts requisitioned without advertisement. This is clearly smack on the face of the Articles 14 and 15 of the Constitution and void ab-initio.
In the facts and circumstances as recited above, let us now examine the law laid down by the Apex Court in a catena of decision.
In Hoshiar Singh Vs. State of Haryana and Others, the Apex Court in para 10 of its judgment held as under:
Where the Selection Board was required to send its recommendation for certain number of posts only but the Board made recommendations of large number of persons than the number of posts for which requisition was sent, appointment on additional posts on the basis of such selection would be legally unsustainable. Such appointment would deprive candidates who were not eligible for appointment to the post on the last date for submission of applications mentioned in the advertisement and who became eligible for appointment thereafter, of the opportunity of being considered for appointment on the additional posts because if the said additional posts are advertised subsequently those who became eligible for appointment would be entitled to apply for the same.
In State of Bihar and another Vs. Madan Mohan Singh and others, it was held by the Apex Court as under:
Where the particular advertisement and the consequent selection process were meant only to fill up 32 vacancies and not to fill up the other vacancies, the merit list of 129 candidates prepared in the ratio of 1 : 4 on the basis of the written test as well as viva voce will hold good only for the purpose of filling up those 32 vacancies and no further because said process of selection for these 32 (sic).
(sic) and Ori. Appellants (sic) Banking Service Recruitment, Respondents Ashok Kumar and Others Vs. Chairman, Banking Service Recruitment Board and Others, out by the Apex Court in para 5 (sic) gment as under:
(sic) Article 14 read with Article 16(1) of the Constitution enshrine fundamental right to every citizen to claim consideration for appointment to a post under the State. Therefore, vacant posts arising or expected should be notified inviting applications from all eligible candidates to be considered for their selection in accordance with their merit. The recruitment of the candidates in excess of the notified vacancies is a denial and deprivation of the constitutional right under Article 14 read with Article 16(1) of the Constitution. The procedure adopted, therefore, in appointing the persons kept in the waiting list by the respective Boards, though the vacancies had arisen subsequently without being notified for recruitment, is unconstitutional.
In the backdrop of the law laid down by the Apex Court, it will be noticed that the procedure adopted by the D.P.C. in its meeting held on 16.2.93 is unknown to the law. At the risk of repetition, the posts requisitioned was two Grade-IV staff for filling up of deputation vacancies. However, D.P.C in its meeting held on 16.2.93 recommended four candidates for filling of the future vacancies arises on 6.4.93, 3.6.93, 28.6.93 and 30.9.93 without advertising the posts. Entire D.P.C. record has been perused and there is not even a whisper that the candidates have been recommended in (sic) vacancy. This is Constitutionally (sic). The decision of the D.P.C. in its meeting held on 16.2.93 and subsequent action thereafter become void ab-initio and no legal sanction whatsoever can be afforded to such action.
Despite of the aforesaid findings, I now proceed to dispose of the argument of Mr. T. Nandakumar only for psychological satisfaction. It is contended by Mr. Nandakumar that, the Petitioners have been deprived of making representation as the notice given to the Petitioner was vague, bereft of materials and the Petitioners could not file effective representation, thereby depriving the principle of natural justice. The submission in my view is ill advice. Because in the notice dated 8.7.96 itself, the Petitioners were required to appear on 15.7.96 and submit the objection. Further, in the final order dated 18.7.96 which has not been assailed in this writ petition, a detail reason is given as to why the D.P.C. meeting dated 16.2.93 and the order dated 5.4.93 require review. This apart, as pointed out, the select list has been prepared in unfair and injudicious manner and in violation of Articles 14 and 16 of the Constitution, cancellation and review of such order of unconstitutionality, no opportunity of hearing either to selected candidates or the selection board would be necessary. See - Union Territory of Chandigarh Vs. Dilbagh Singh and others,
This apart, merely because the Petitioners'' names included in die select list does not confer any indefeasible right to be appointed to the post. See - Shankarsan Dash Vs. Union of India,
Next, Mr. T. Nandakumar contended that. Respondent No. 1 has no power to review the order passed by his predecessor. In this connection, Counsel has referred to Section 30 of the Manipur Court''s Act, (sic) my attention that, (sic) authority of minister (sic) however, no (sic) conferred upon the (sic) therefore, reviewing (sic) predecessor is with (sic) submission is totally (sic).
By now it is well (sic) that the appointment auth (sic) authority and the appointee (sic) reviewing authority. In this (sic) Nandakumar has referred to a (sic) Apex Court rendered in Patel Nar. (sic) and Ors., Appellants, v. Pradyu (sic) Arjunsinghji, Respondent AIR 1976 (sic) wherein the Apex Court had observe (sic) 4 that the power of review is not an (sic) power, but it must be conferred by law either specifically or by necessary implication. In this case, the Apex Court was considering the order passed by one Mr. Mankodi reviewing the order made by the Saurashtra Government. In that context, the Apex Court had held that Mr. Mankodi was functioning as the delegate of the State Government and has no power to review the order passed by the Government. This is not the case in the facts of the case at hand. As already said that the District Judge is an appointing authority u/s 30 of the Act.
Next it is contended by Mr. Nandakumar that, under Rule 14 of the Manipur Subordinate Civil Courts Ministerial Establishment Rules, 1967, the District Judge is entitled to recruit candidates for his Judgeship as are required for vacancies likely to arise in the course of the year. According to Mr. Nandakumar, since the subsequent vacancies had all arisen during the year 1993, the Judgeship was entitled to recruit in the course of the year. This submission is preposterous. Rule 14 only conferred power on the District Judge to recruit the candidates in the vacancies likely to arise in the course of the year. The recruitment has to be made by advertising the post. This does not mean that (sic) Judge can recruit the candidates for arises in the course of the year cedure by advertising (sic).