Shri Gurumayum Dayananda Sharma vs The State of Manipur represented by the Principal Secretary/Commissioner/Secretary, Education (S), Government of Manipur, & Anr.

Heard Shri M. Hemchandra, the learned counsel appearing for the petitioner; Shri S. Nepolean, the learned Government Advocate appearing for the State respondents and Shri Kh. Tarunkumar, the learned counsel appearing for the intervener.

By the instant writ petition, the petitioner has prayed for quashing/setting aside the impugned order dated 27-06-2014 issued by the Principal Secretary (Education), Government of Manipur and also prayed for directing the respondents to appoint/accommodate the petitioner against one of the posts namely seven posts lying vacant due to non-joining by the said seven candidates.

1. According to the petitioner, being a graduate in Sociology and having passed the Teachers Eligibility Test, he was eligible for appointment to the post of Primary Teacher in the Department of Education (S), Govt. of Manipur. The Director of Education(S), Government of Manipur vide its letter dated 08-09-2006 requested the Director of Employment for requisition of candidates for appointment to the posts of Primary Teachers, Hindi Primary Teachers and Hindi Graduate Teachers. Being eligible, the petitioner applied for appointment to the post of Primary Teacher by filling up the prescribed form. 3.2. After the process of selection having completed, vide order dated 09-12-2011 of the Department of Education (S), Government of Manipur, a total of 1603 candidates were appointed as Primary Teachers on temporary basis. The petitioner''s name figured at Sl. No. 5 of the waiting list of the candidates belonging to un-reserved category. After the result of the DPC having been declared, the petitioner learnt from a reliable source that some of the selected candidates did not join the service as primary teachers and in order to know the exact position thereof, the petitioner submitted an application under Section 6 of the RTI Act for furnishing information and in reply to his application, the Addl. Director of School Education (Valley), Government of Manipur vide its letter dated 26-10-2012 informed him that there was no vacant post of primary teacher. Being not satisfied with the said reply dated 26-10-2012, the petitioner submitted another application under the RTI Act, to which the Addl. Director of School Education (Valley), Government of Manipur vide its letter dated 14-02-2013 furnished certain information, on the basis of which the petitioner came to know that seven candidates did not join the service. The petitioner thereafter submitted a representation dated 07-03-2013 to the concerned authorities requesting them to consider his case for appointment to the post of primary teacher against one of the seven posts lying vacant in the Department of Education. However, the State Government did not consider his representation nor did they pay any heed to the said representation without any rhyme and reason. Being aggrieved by the inaction on the part of the respondents, the petitioner filed a writ petition being W.P. (C) No. 181 of 2013 which was disposed by the Hon''ble High Court vide its order dated 14-08-2013 with the direction that the respondents therein should dispose of the representation submitted by the petitioner within a period of three months therefrom.

3.3. In the meantime and to his utter shock and surprise, the Director of Education(S), Government of Manipur issued an order dated 08-08-2013, in a purported compliance with the interim order dated 13-03-2013 of the High Court, to the effect that the representation of the petitioner dated 07-03-2013 could not be entertained at its level without explicit approval of the Government. Being aggrieved by the said order dated 08-08-2013, the petitioner filed another writ petition being W.P. (C) No. 73 of 2014 praying for quashing it, which was also disposed of on 05-02-2014 with the direction to the respondents to consider the representation of the petitioner by issuing a reason and speaking order as per law. As the said court''s order dated 05-02-2014 was not complied with, the petitioner was compelled to file a contempt petition being C.C. No. 103 of 2014 and during the pendency thereof, the respondent No. 1 issued the impugned order dated 27-06-2014 stating therein that the representation of the petitioner was considered and regretted for giving appointment to the post of primary teacher and accordingly, the representation was disposed of. Being aggrieved by the said order dated 27-06-2014 of the Principal Secretary (Education/S), Government of Manipur, the instant writ petition has been filed by the petitioner.

The stand of the respondent Nos. 1 and 2 as reflected in the affidavit filed by the Deputy Secretary (Education/S), Government of Manipur, is that there is no ground to quash and set aside the impugned Government order dated 27-06-2014 which has been issued pursuant to the court''s order dated 05-02-2014; that the petitioner''s name being in the waiting list, he has no legal as well as constitutional right for appointment as the primary teacher; that the validity of the said waiting list has expired and the process of selection including making appointment, is deemed to be closed and that the inclusion of the name of the petitioner in the waiting list does not confer him any right for appointment.

During the pendency of this writ petition, two writ petitions being W.P. (C) No. 815 of 2011 and W.P. (C) No. 127 of 2012, praying for quashing the entire recruitment process and other relieves, came up for consideration by this court. This court vide its judgement and order dated 06-10-2015, after hearing the learned counsels appearing for the parties, came to the conclusion that the recommendation of candidates belonging to OBC category without any reservation being made for them in the notice dated 12-09-2006, was bad in law and consequently, the W.P. (C) No. 815 of 2011 was allowed in part with the direction that a fresh recommendation be made by the DPC consisting of only the candidates belonging to unreserved, ST & SC only and not OBC.

Some petitions for special leave to appeal being SLP No. 32728 of 2015 and others appear to have been filed before the Hon''ble Supreme Court against the judgment and order dated 06-10-2015 passed by this court wherein the State Government filed an affidavit stating therein that keeping in mind the service rendered by the Primary teachers for the last about five years, it was agreeable to accommodate the petitioners therein against the existing vacancies if the Hon''ble Supreme Court be pleased to pass an order restraining the unsuccessful candidates who had chosen not to challenge the selection process to raise any claim in future. In view of the aforesaid statement made by the State Government, the Hon''ble Supreme Court disposed of the said special leave petitions on 16-03-2016 with the observation that no further claim at the instance of any other unsuccessful candidates be entertained by the High Court. Accordingly, the Hon''ble Supreme Court also directed that the appointment orders be issued by the State Government in favour of the petitioners therein.

On perusal of the portion of the affidavit dated 11-03-2016 filed by the State Government and incorporated in the order dated 16-03-2016 of the Hon''ble Supreme Court, it appears that the State Government was not sincere in its approach for the reason that the interests of all the respondent Nos. 6 to 1428 were not affected by the judgment and order of the High Court and the interests of only 242 respondents who were appointed as candidates belonging to OBC, were affected. But the State Government, with a view to protect the interests of the said 242 respondents, filed the said affidavit. At the time when the said two writ petitions were being considered by this Court for disposal, the State Government failed to inform this court about the pendency of the present writ petition, otherwise the same could have been considered along with them. Moreover, when the said affidavit was filed, the State Government did not disclose to the Hon''ble Supreme Court that a large number of candidates who are in the waiting list and are in a better footing than the petitioners in the said special leave petitions, would also be required to be considered for appointment, because of which many more petitions for special leave to appeal and writ petitions came to be filed before the Hon''ble Supreme Court opening the Pandora''s box. The State Government appears to be not interested in solving the problem once and for all but interested to do anything to protect only the interest of those who were appointed as candidates belonging to OBC, although there was no seat being reserved at all for them. On 21-03-2017 when these petitions came up for consideration, the Hon''ble Supreme Court was pleased to pass the following order:

"The claim in this batch of cases is to give benefit or order passed by this Court in Wahengbam Bikendro singh and Ors. Vs. The State of Manipur and ors. in SLP (C) No. 32728 of 2015 on 16th March, 2016.

We are not inclined to accept the claim for such parity.

The matter be listed before a bench of three Ho''ble Judges for consideration. Let the matter be placed before Ho''n''ble the Chief Justice of India for appropriate orders."

On 02-05-2017 when the present petition came up for consideration by this court, the learned counsels appearing for the petitioner and interveners submitted that since they were successful candidates, the order dated 16-03-2016 passed by the Hon''ble Supreme Court would not apply to their case, for which they relied upon the decision dated 31-07-2008 rendered by the CAT, Delhi in Pradip Kumar Kedia (Ca) Vs. Union of India in OA No. 1024 of 2008 & ors. and the para 8 of its judgment and order is as under:

"8. It is clear from the above that the time to implement the panel was extended by an order of Court. In that view of the matter, the general principle pertaining to validity of a panel as valid for 12 or 18 months loses significance. Once an order is issued by a Court of competent jurisdiction and that too the Supreme Court, in the present case, effect will have to be given to the panel in accordance with law. A further question arises whether the wait listed candidates are at par with the candidates who are on the merit panel or is their right somewhat more tenuous than that of the candidates who are placed in the merit stage. In fact a panel can be either a contiguous panel or a bifurcated panel. The drawing up of such a panel is to enable persons selected in a certain order to be available for appointment subject to the availability of vacancies. There is no vested right on the part of any selectee whether he is in the merit panel or finds a place as a wait listed candidate to claim any vested right of selection. However, if the panel is contiguous or wait listed, it does not make any difference and a wait listed candidate is also entitled to claim a legitimate expectation of being treated fairly in the event the panel is operated. Thus, the panel which consist of merit listed candidates including wait listed candidates must be deemed to form a part of the panel constituted pursuant to the selection held in September 2005 and would have to be treated as a part of the select list. If the wait listed candidates are in fact a part of the select list although they appear to be under the nomenclature wait listed candidates, it does not make any difference and they are entitled to obtain the benefit of the operation of the panel subject to the availability of a vacancy. I, therefore, do not find any impediment in the way of the Central Government from making an appointment to the remaining post of a Member of the ITAT out of the available wait listed candidates. Since the vacancy which survives is that of an Accountant Member, only the wait listed candidates for Accountant Members would have the right to be considered against such a post and wait listed Judicial Members will have no right to be considered against the post of an Accountant Member. Under these circumstances, I am of the opinion that having regard to the peculiar facts and circumstances in the present case including a review reference to the ACC and various Court proceedings and the Supreme Court order dated 17th August 2007, it is fit and proper that the present panel which was drawn up pursuant to the selection held in September 2005 which was rendered valid and operative after the dismissal of the Special Leave Petition on 17th August 2007, should be acted upon and an offer should be made to the first wait listed candidate against the vacant post of Accountant Member.

On the other hand, Shri S. Nepoleon, the learned Government Advocate submitted that since the aforesaid cases, pending before the Hon''ble Supreme Court, had been referred to a larger bench, one of which was filed by some candidates whose names are in the waiting list, the hearing of the present case be deferred till the disposal of the said cases pending before the Hon''ble Supreme Court. Having considered the submission of the learned Government Advocate, this court granted him to file an affidavit placing the details on record and in compliance with this court''s order, an affidavit was filed on 18-0-2017 wherein it is stated that the writ petition being W.P. (C) No. 824 of 2016 has been filed by Maibam Jeevanlata Devi & six others praying for their appointment on the ground that unsuccessful candidates have been appointed pursuant to the order dated 16-03-2016 passed by the Hon''ble Supreme Court leaving behind them who are placed in the waiting list.

Shri M. Hmechandra, the learned counsel appearing for the petitioner submitted that the petitioners in W.P. (C) No. 824 of 2016 were candidates who applied for the posts of Hindi Graduate Teacher or the Hindi Primary Teacher while the petitioner was that of the post of Primary Teachers and that since the posts for which they applied, are different, the present petition be taken up by this court for disposal. His submission appears to be correct to some extent but since the validity and correctness of the entire recruitment process and subsequent appointments made thereon, is the subject matter in issue in some of the said cases pending before the Hon''ble Supreme Court in one way or the other, it may not be appropriate for this court to take up this matter and decide it. In other words, since the Hon''ble Supreme Court is seized with a similar issue which will have a bearing on the present case, it may be better for this court to await the outcome of it.

In view of the above, this court is of the opinion that the present writ petition be kept pending to await the outcome of the said cases pending before the Hon''ble Supreme Court. However, liberty is granted to the parties to mention before this court after the said cases pending before the Hon''ble Supreme Court having been disposed of. The petitioner is further granted liberty to seek permission for withdrawal of this petition, if so advised and to approach the Hon''ble Supreme Court by way of an appropriate petition so that the same can be considered by the Hon''ble Supreme Court along with the said pending cases.