Larihundashisha Khardewsaw & Ors vs State Of Meghalaya & Ors

The petitioner is before this court seeking mandamus to direct the respondents to appoint the petitioners to the post of Sectional Assistant in terms of the select list dated 6.4.2016 and recommendation dated 7.4.2016 along with a secondary prayer to declare the appointments of the private respondents No. 6 to 15 as illegal.

The facts of the case as it stands is that the petitioners numbering 4 in number pursuant to an advertisement dated 26.11.2014 issued by the respondent No. 3 had applied for the post of Section Assistant in the P.W.D. The written examination was held on 30.5.2015, and being successful therein, the petitioners were called for personal interview vide notice dated 23.3.2016. The District Selection Committee on 6.4.2016 published the select list in order of merit and the name of the four petitioners appeared therein. Thereafter, the respondent No. 3 accordinlgy recommended the petitioners for appointment to the post of Sectional Assistants.

The petitioners however were not favoured with appointments even after repeated requests made by joint representations. Being aggrieved thereby they are before this Court by way of this instant writ application.

I have heard Mr. L. Shongwan, learned counsel for the petitioner and S. Sen Gupta, Addl. Sr. GA respondents No. 1 to 5 and Mr. N. Syngkon, learned counsel for respondents No. 6 to 8, 10, 12 & 13.

Mr. L. Shongwan, learned counsel for the petitioner submits that the petitioners were confident that on being successful in the selection process they would be given appointment to the post for which they have applied for. He submits that as the same was not forthcoming the petitioners had jointly filed a representation dated 14.4.2016 reporting the matter to the respondent No. 3 who had recommended their appointment, for necessary intervention and that respondent No. 3 also accordingly had communicated to the respondents No. 4 & 5 in this regard.

Learned counsel on another limb of submission submits that the Personnel & Administrative Reforms Department, Government of Meghalaya vide a circular dated 2.2.2015 had conveyed a policy decision of the Government which mandated that consequential vacancies against regularized work charged personnel would stand lapsed and appointment of work charged personnel after 1997 would not be permissible. He then submits that in spite of the circular the respondent No. 4 still entertained the services of temporary/adhoc appointee and work charged personnel in the department and that some of these illegal appointments were regularized without following the due process of selection. To substantiate this contention the learned counsel had placed reliance on the information received from the respondent No. 4 vide letter dated 25.8.2016 wherein the list of Sectional Assistant/Work charged personnel is enclosed. In addition to the prayer for appointment of the petitioners on the basis of the selection and recommendation, learned counsel also prays that the irregular appointments of adhoc appointees as shown in the list should be quashed.

Learned counsel has also submitted a list of cases on which he has placed reliance to buttress his arguments and the same are given herein below:-

i) R.S. Mittal vs. Union of India reported in 1995 Supp (2) SCC 230

ii) Shankarsan Dash vs. Union of India reported in (1991) 3 SCC 47

iii) Manoj Manu & Anr. vs. Union of India & Ors. reported in (2013) 12 SCC 171

iv) Kumari Shrilekha Vidyarthi & Ors. vs. State of U.P. & Ors. reported in (1991) 1 SCC 212: (1991) AIR (SC) 537

v) East Coast Railway & Anr. vs. Mahadev Apparoa & Ors. reported in (2010) 7 SCC 678

vi) Secretary, State of Karnataka & Ors. vs. Umadevi & 3 Ors. reported in (2006) 4 SCC 1

vii) J&K Public Service Commission vs. Dr. Narinder Mohan & Ors. reported in (1994) 2 SCC 630

viii) M.P. State Coop. Bank Ltd., Bhopal vs. Nanuram Yadav & Ors. reported in (2007) 8 SCC 264

ix) Ram Bilash vs. Union of India reported in (2001) 3 GLJ 118: (2002) 2 GLR 581: (2001) 2 GLT 275

x) Rajnikant Ojha vs. The Union of India & Ors. reported in (2014) 4 BBCJ 411: (2014) 4 PLJR

xi) Krishan Yadav & Anr. vs. State of Haryana & Ors. Reported (1994) 4 SCC 165

xii) Hira Tikkoo vs. Union Territory, Chandigard & Ors. reported in (2004) 6 SCC 765

xiii) Jodhey & Ors. vs. State reported in AIR (1952) ALL 788 : (1952) 22 AWR 547

Learned counsel then lastly submits that the denial of appointment to the petitioners who have validly qualified and been recommended for appointment is arbitrary and without any justifiable or reasonable ground and is discriminatory, inasmuch as, irregular appointments have been made whereas regular appointment through selection is being denied. As such, he prays that the respondents be directed to consider the appointment of the petitioners to the post of Sectional Assistant in terms of the select list and recommendation issued by the respondent No. 3.

Mr. S. Sen Gupta, learned Addl. Sr. GA appearing on behalf of the respondents 1 to 5 in reply to the submission made by learned counsel for the petitioner, submits that though it is a fact that the respondent No. 4 had informed the respondent No. 3 vide letter dated 23.12.2013 with regard to the vacancies of Sectional Assistant posts, however, on a review meeting held on 3.12.2015 in the office of the Chief Engineer (respondent No. 2) it was decided that consequential vacancies against regularized work charged personnel would stand lapsed. He submits that as such accordingly by letter dated 9.12.2015 the respondent No. 3, was requested to cancel the said intimation of vacancies of the post of Sectional Assistant as the said posts fell under the category of Regularized Work charged Personnel. Learned counsel submits that as the intimation for cancellation of the process had been sent on 9.12.2015, the subsequent exercise conducted by respondent No. 3 in spite of the intimation, in calling the petitioners for selection on 23.3.2016 and thereafter concluding the same was redundant.

Learned counsel also contends that the petitioners have not accrued any vested right for appointment to the said posts on a mere appearance of their names in the select list. He submits that the decision to cancel the process was based on cogent and sound grounds and it is not a case wherein the petitioners have been discriminated against or denied appointment in spite of the existence of vacancies. With regard to the secondary prayer of the petitioners learned counsel submits that it is not a case wherein the termination of the work charged employees would result in vacancies being created and, the petitioners be eligible to be accommodated against the same, inasmuch as, the standing directive of the Government is that Consequential vacancies against Regularized Work charged Personnel shall stand lapsed. He lastly submits that no vested right having been accrued and the selection being conducted in spite of the cancellation, the petitioners are not entitled to any relief.

Mr. N. Syngkon, learned counsel for respondents No. 6 to 8, 10, 12 & 13 firstly has raised objections as to the efficaciousness of the writ application and whether it deserves any consideration, inasmuch as, the petitioners have approached this Court after the select list had expired. He submits that the select list was published on 6.4.2016 whereas the petitioners have filed the instant writ application on 12.5.2017, after a year had elapsed. With regard to the other submissions of the learned counsel of the petitioners, he submits that the respondent No. 3 had forcefully gone ahead with the selection process in spite of the fact that information was given vide letter dated 9.12.2015 for cancellation of vacancies posts of Sectional Assistant and hence no claim can be made on the basis of the said selection. He further submits that the respondents Nos. 6, 7, 8 & 10 are regular employees and 12 & 13 are Work charged who have put in many years of service ranging from 11 years to 26 years, and the challenge to their appointment at this stage is untenable in law. Learned counsel has placed reliance on in the case of Shankarsan Dash vs. Union of India reported in (1991) 3 SCC 47 and in the case of State of Haryana vs. Subash Chander Marwaha reported in (1974) 3 SCC 220. He lastly submits that no right having accrued to the petitioners and moreover the same being made on the basis of the expired select list, the petition is liable to be dismissed.

After hearing the counsel for the parties on the facts as placed, the issue that has to be decided in this matter is whether the petitioners can maintain a legitimate claim for appointment on the basis of the selection, and whether the actions of the respondents 2, 4 & 5 in cancelling the said requisition dated 23.12.2013 for filling up of the post of Sectional Assistant is arbitrary or without any application of mind. Another aspect which also deserves some consideration, as asserted by the private respondents, is that the life of the select list had expired and whatever rights that the petitioners claimed therefrom also stood automatically extinguished.

Before adverting to the facts, it is noted that this is the second round of litigation with regard to the same subject matter, and an earlier writ petition being WP(C) No. 399 of 2016 which was withdrawn on 8.5.2017, with liberty granted to file afresh, was filed during the life of the select list. As such, the question as to whether the writ petition deserves no further consideration in view of the fact that the same has been filed after the expiry of the select list is not significant enough to finally decide the instant writ petition.

It is not in dispute that the respondent No. 4 had intimated the respondent No. 3 with regard to the vacancies, in pursuance to which the advertisement dated 26.11.2014 was issued calling applications from eligible candidates for filling up the said vacancies. However, subsequently it is noticed that the respondent No. 4 vide communication 9.12.2015 had intimated the respondent No. 3 with the request to cancel the vacancies for the reasons stated therein. The same was received in the office of the respondent No. 3 on 10.12.2015 itself but however the respondent No. 3 proceeded with the selection process on the ground that the recruitment process had already been initiated. Thus, the process continued and the result/select list was published on 6.4.2016. The two letters i.e. 9.12.2015 cancelling the vacancies and letter dated 23.12.2015 are reproduced herein below:-

"GOVERNMENT OF MEGHALAYA OFFICE OF THE EXECUTIVE ENGINEER, P.W.D. (ROADS) RANIKOR DIVISION RANIKOR

No. RKD/APPL/Post/61/2009/1004, To, Dated Ranikor the, 09.12.2015

The Member Secretary,

District Selection Committee,

South West Khasi Hills District,

Mawkyrwat

Subject:- Vacancy of post.

Reference:- This Office letter No. RKD/Post/61/2009/954 dated 23.12.2013 & letter No. RKD/Post/61/2009/94 Dated

11.02.2015.

Madam,

With reference to the above letter, I have the honour to request you to kindly cancel the Vacancy post of Section Assistant (5 Nos. of posts) intimated vide this Office letters under reference as these post fall under category "REGULARISED WORKCHARGED PERSONNEL" of which as per Government letter No. PER(AR)36/95/399-A dated 02.02.2015 (enclosed herewith) stated that "Consequential vacancies against regularized work charge personnel shall stand lapsed".

This is for your kind information and necessary action.

Yours faithfully

Sd/-

(Shri F. Sohlang)

Executive Engineer, P.W.D. (Roads)

Ranikor Division, Ranikor

Memo. No. RKD/APPL/Post/61/2009/ -A, Dated Ranikor the, 09.12.2015 Copy to:-

The Chief Engineer, P.W.D. (Roads) Meghalaya, Shillong for favour of kind information.

Executive Engineer, P.W.D. (Roads) Ranikor Division, Ranikor."

"GOVERNMENT OF MEGHALAYA DEPUTY COMMISSIONER (DSC) SOUTH WEST KHASI HILLS DISTRICT::MAWKYRWAT

No. SWK/DSC.2/2012/155, Dated Markyrwat the 23rd December, 2015 To

The Executive Engineer PWD (Roads)

Ranikor Division, Ranikor.

Subject:- Vacant Post

Ref:- 1. RKD/Post/61/2009/965, Dt. 01.12.2015

RKD/APPL/Post/61/2009/1004, Dt. 09/12/2015

RKD/APPL/Post/61/2009/1003, Dt. 09/12/2015

Sir,

With reference to the subject cited above and your letter under reference, I am to inform you that the District Selection Committee South West Khasi Hills District, Mawkyrwat has already initiated the recruitment process for 5(five) vacant post of Sectional Assistant and 1(one) Tracer. The written examination for these vacant posts has been completed and the result shall be declared in the month of January 2016.

Further, 1(one) vacant post of Sectional Assistant has already been advertised vide advertisement letter No. DSC.1/2012/36, Dt. 5/08/2015 (photo copy enclosed). Hence, your request for cancellation of vacancies etc cannot be entertained at this stage.

For favour of information and necessary action.

Enclo: As stated above Yours faithfully,

Sd/-

(Smti. R. Lyngdoh, IAS)

Deputy Commissioner

Cum-Chairman

District Selection Committee

South West Khasi Hills District,

Mawkyrwat.

Memo.No.SWK/DSC.2/2012/155-A,Dated Mawkyrwat the 23rd Dec. 2015

Copy to:-

The Under Secretary to the Govt. of Meghalaya, Personnel and Admn. Reforms (B) Department, Shillong for information and necessary action.

Sd/-

Deputy Commissioner

Cum-Chairman

District Selection Committee

South West Khasi Hills District,

Mawkyrwat."

The function of the District Selection Committee is to conduct written examinations, tests for the purpose of recommending candidates suitable for appointment by direct recruitment to different categories of posts. Clause 3.1 of the District Selection Committee Composition, Functions etc. which provides for the same as contained in Office Memorandum dated 3.7.1982 is reproduced herein below:-

"3.1 Functions.- The District Selection Committee shall undertake to conduct written examinations, tests and/or interviews for the purpose of recommending candidates suitable for appointments by direct recruitment to different categories of posts, which are borne in the offices/establishments of the Heads of Departments, District or Sub-divisional/Subordinate Offices, and which do not come under the purview of the Meghalaya Public Service Commission or Departmental Selection Committee."

The prescribed procedure as contained in Clause 5.1 and 5.2 onwards are also reproduced herein below:-

"5.1 Procedure.- The District Selection Committee shall ascertain/assess the overall positions of vacancies that may occur in every forthcoming year in the month of November, or earlier, every year and shall, after issuing necessary advertisements for the posts, conduct examinations, tests and/or interviews before the end of December. The procedure of issuing advertisements by individual offices is hereby abolished.

5.2 Notwithstanding orders contained in Para 5.1, it shall also be incumbent upon the different offices/appointing authorities to intimate vacancies that are anticipated or available in their offices/establishments from time to time."

The objective of the constitution of the District Selection Committee as envisaged by the Memorandum, is to streamline the recruitment process to posts as indicated in clause 3.1, and the department concerned who have such vacancies intimate the same to the District Selection Committee for conducting the recruitment. On the basis of the selection conducted by the District Selection Committee, the concerned departments then appoint the successful candidates. In the instant case intimation was given to the respondent No. 3 of the vacancies as per Clause 5.2 by the respondent No. 4 and the respondent No. 3 in accordance thereto as per procedure issued the advertisement. However, by the above quoted letter dated 9.12.2015, the said requirement and intimation of vacant post was cancelled. The respondents No. 2 4, & 5 being the requiring departments, it stands to reason that once a requirement or vacancy no longer exists, the District Selection Committee being only an agency and not the appointing authority has no reason to continue with the recruitment process and should have cancelled the same. Moreover, the intimation was given well before the process was concluded and much before the results were announced. The recommendation so made therefore for posts that were non-existent held no meaning as the selection process had become but an empty or a futile exercise.

On the question as to whether the actions of the respondents No. 2, 4 & 5 in cancelling of the vacancies was arbitrary or illegal, it is seen that the said cancellation was not without reason and no element of colourable exercise of power is apparent. The reasons as contained in the communication dated 9.12.2015, was made in line with the stated policy of the State Government in such matters. Besides the fact that no vested rights accrues by mere appearance of one's name in the select list, on the circumstances as narrated above, no mandamus can issue in this regard and the claim of the petitioners stands rejected. The challenge to the continuance of employment of the private respondents standing on a different footing and on a separate cause of action, deserves no consideration and this secondary prayer also stands rejected.

For the foregoing reasons there being no merit in the instant writ petition, the same is accordingly dismissed.

No order as to costs.