Gauhati High CourtJeninder Marak And Ors. vs State Of Meghalaya And Ors. on 28 August, 1998Author:N.S. SinghBench:N.S. SinghJUDGMENT1. In this writ petition, the petitioners, 12 (twelve) in number, challenged the validity of the appointment of the respondent Nos. 4 to 23 in the post of IV Grade coupled with a prayer for an appropriate order or direction which this Court deem fit and proper in the matter and thus, expressing their grant hardship in not getting employment in spite of their merit as published in the Select/ Merit List dated 8.6.1995 as in Annexure A to the writ petition.2. At the very outset, Mr. KS Kynjing, learned counsel for the petitioners contended, that the petitioners are successful candidates as they have been declared to have passed in the Interview/Viva Voce conducted by the District Selection Committee, East Garo Hills District, Williamnagar, for the post of IV Grade and as per related Select List as in Annexure A to the writ petition, the petitioner Nos. 1 to 12 whose name appears at Serial Nos. 8, 10, 11, 12, 14, 15, 16, 17, 22, 25, 26 and 34 respectively, in the Select/Merit List

and whereas, the names of respondent Nos. 4 to 23 appeared at serial Nos. 702, 256, 54, 122, 45, 472, 251, 388, 358, 203, 258, 319, 387, 245, 673, 235, 82, 327, 179 and 40 respectively, in the Select list in order of merit, but the petitioners have not been given appointment to the post of IV Grade and whereas those private respondents whose names appeared below the petitioners in the related merit list have been given appointment by the State-Respondents without any justification and, such act of the State-Respondents is violative ofArticles 14and16of the Constitution of India. Apart form it, the President & Secretary, Grade IV Association, Govt. Employees, East Garo Hills District, Williamnagar, also questioned the validity of the appointment of one Shri Harikanta Das (Respondent No. 4) and Shri Meghnath Hajong (Respondent No. 7) whose names appeared at serial Nos. 702 and 122 respectively in the Merit list.3. Replying to the submission of Mr KS Kynjing on this aspect, Mr. OS Ajar, learned Govt. Advocate submitted, that those two candidates namely respondent Nos. 4 and 7 were already discharged from services. It is also submitted by Mr. Ajar that, candidates from serial nos. 1 to 6 of the merit list were sent to various offices for appointment and they got the appointment in the post of IV Grade and, so far the case of the other private respondents, the District Selection Committee had allowed the regularisation of the services of the said private respondents on the specific request of their head of offices who reported, that they are previously working in their offices and in that respect, a resolution dated 24.5.1995 had been adopted by the District Selection Committee to the extent that, "Recommendations shall be in order of merit, however, candidates already working for long years shall be regularised and the same will apply to all categories of posts like, S/K, IV Grade, Asstt. teachers, Surveyor, Weaving demonstrator, Plumber, S/A, and Statistical Investigator.4. On the other hand, Mr. KS Kynjing, learned counsel for the petitioners argued, that the State-Respondents/competent authority particularly the second respondent did not comply with the Govt. Office Memorandums bearing No. PER(AR)193/88/19, dated Shillong the 22nd June, 1989, inasmuch as, the said resolution dated 24.5.1995 cannot over-ride the Govt. Office Memorandum/Policy on the subject, "Number of Non-appointment under Regulation 3(f)/appointments on adhoc basis." According to Mr Kynjing, the said Office Memorandum laid down that:-"Appointments made prior to 31.10.1987 on the ad hoc basis to various posts falling within the purview of the District Selection Committee should immediately be intimated to the concerned District Selection Committee with the details of the incumbents so appointed. The ad hoc appointees should be specifically directed by the concerned appointing authorities to get themselves regularised through the respective District Selection Committee within a period of one year from the date of issue of this order falling which their appointments will stand automatically terminated.Where ad hoc appointments have been made before the 31.10.1987 to posts falling within the purview of the Departmental Selection Committee, the Department/Appointing authority concerned should convene the Departmental Selection Committee immediately to consider such appointments after observing the procedures laid down in this regard.Ad hoc appointment made on time-scales of pay against nonexistent post for which no sanction exist should be terminated with immediate effect."It is also contended by Mr. Kynjing, that the State-respondents did not follow the related Merit List published by the second respondent himself while affording appointment to the selected candidates inasmuch as, individuals namely, the private respondents who are below the petitioners in the Merit List have been given appointment. In order to save their faces, the state-Respondents took the plea that the appointment of the private respondents were made as per the resolution dated 24.5.1995 of the District Selection Committee.5. Now, this Court is to examine as to whether the present writ petitioners have enforceable legal right in the instant case, and whether, the State-Respondents had taken away the legitimate rights of the writ petitioners as guaranteed underArticles 14and16of the Constitution of India or not.It is an admitted position that a Select/Merit list was published by the respondent No. 2 and the petitioners as well as the private respondents have been declared to have passed in the test and their names are included in the Merit List in order of merit and the names of the private respondents are below the present petitioners in the Merit List; but, the private respondents have been given appointment to the post of IV Grade as discussed above. The functions of the District Selection Committee is more fully defined and highlighted in the related Office Memorandum bearing

No. PER(AR), 167/82/23 dated Shillong, the 3rd July, 1982 as hereunder:-"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/Sub-ordinate Offices, and which do not come under the purview of the Meghalaya Public Service Commission or District Selection Committee."In the same Office Memorandum, clause 5.8 is important and material in the instant case and the same is termed as follows:-"A panel of names in order of merit for the category of posts shall be prepared and published after the District Selection Committee immediately after the examinations, tests and/or interviews, to be valid for a period of one year with effect from the date of its publication. Each Head of Office/Appointing Authority desiring to appoint candidates to vacancies in various posts in his Office, may writ to the District Selection Committee for providing candidates from the merit list for appointment. It shall be incumbent upon the District Selection Committee to furnish suitable candidates to the Head of Office/Appointing Authority strictly from the merit list. The list forwarded by the District Selection Committee shall be strictly followed by the Head of Office/ Appointing Authority while making appointments. The Head-of Office/Appointing Authority shall have no choice in the matter of over-looking nay person senior in the merit list, duly recommended by the District Selection Committee."6. On bare perusal of these clauses, it has been revealed that, it shall be incumbent upon the District Selection Committee to furnish suitable candidates to the Head of Office/Appointing Authority strictly from the merit list and the Head of Office/Appointing Authority shall have no choice in the matter of over-looking any person senior in the merit list. In the instant case, the District Selection Committee adopted a resolution on 24.5.1995 for regularisation of the services of the private respondent, thus, losing sight of a related Govt. Office Memorandum dated 22.6.1985 issued by the Personnel and ADV Performs (B) Department, Govt. of Meghalaya, mentioned above, and also over-looking the seniority positions of the writ petitioners as well as the private respondents. It is well settled, that a selected candidate whose name finds in the select list cannot claim for appointment as of right to a post unless

the relevant recruitment Rules so indicates, and the State is under no legal duty to fill up all or any of the vacancies. However, it does not mean that State has the licence of acting in an arbitrary manner and the State is bound to respect the comparative merit of the candidates as reflected at the recruitment test, and no discrimination can be permitted.In this regard, a reference can be made to a decision of a Constitutional Bench of the Apex Court rendered inShankarsan Dash, Appellant v. Union of India, respondent reported in (1991) 3 SCC 47 and, also other decisions reported in (1993) 1 SC 154, (1974) 3 SCC 220, (1986) 4 SCC 268 and (1985) 1 SCC 122.7. In the instant case, the competent authority selected as many as 707 candidates out of a large number of candidates who appeared in the Interview/Viva-Voce test conducted by the District Selection Committee for appointment to the post of IV Grade and that in the select/merit list, the names of the petitioners as well as the private respondents find their place and the private respondents' name appear below the present petitioners. In my considered view, the said resolution dated 24.5.1995 of the District Selection Committee cannot over ride the Govt. Office Memorandum dated 22.6.1985 and that, the competent authority ought not to have considered the case of the private respondents for regularisation of their services under the aforesaid Office Memorandum of 22.6.1985. In the case in hand, all the petitioners as well as the private respondents appeared in the interview/viva voce test conducted by the District Selection Committee and, instead of giving appointment to the senior candidates like the petitioners, the junior candidates like the private respondents have been given appointment to the post of IV Grades.8. For these reasons, and dictum made above, I am of the view that the competent authority/state-respondents particularly the second respondent, acted arbitrarily while affording appointment to the private respondents and there is no bona fide reason for appointing them, thus ignoring the case of the present petitions. In that view of the matter, the State-respondents shall treat the validity of the select/merit list as still in force and they shall afford appointment to the petitioners in the post of IV Grade as the action of the State-respondents are violative ofArticles 14and16of the Constitution of India.9. For the reasons, observation and discussion made above, I direct the State-respondents to afford appointment to the petitioners in

the post of IV Grade by maintaining the said select/merit list within a period of one month form the date of receipt of this judgment and order. The writ petitioners may obtain a certified copy of this judgment and order and submit the same to the appropriate authority for doing the needful in the matter as per judgment and order of this Court.10. The writ petition is accordingly disposed of but, no cost.