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GAUHATI HIGH COURT
A.K.Patnaik, V.K.Khanna, JJ.
Debabrat Borgohain : Debabrat Borgohain : Jatin Das : Manoj Kumar Das : D.K.Shyam : Ajit Saikia : D.Lahan : Chandra Bahadur Limbu : Mostafa Hussai -Appellant
Versus
Dilip Hazarika and Ors.: Pranab Deka : Dilip Hazarika : Pranab Deka : Koushik Mohan Sarma;State of Assam and Ors. -Respondent
Writ Appeal Nos. 166, 167, 198, 199 and 455 (T) of 1996, Civil Rule Nos. 2234, 2237, 2623, 2624, 2625, 2626, 4376, 4406, 4632 and 5342 of 1995
Decided On : 18-09-1996
APPOINTMENT OF JUNIOR ENGINEERS - ASSAM PUBLIC SERVICE COMMISSION (APSC) - ADVERTISEMENT FOR 32 CIVIL AND 12 MECHANICAL POSTS - SUBSEQUENT INCREASE IN VACANCIES - SELECTION PROCESS - REGULARIZATION OF TEMPORARY APPOINTEES - RIGHTS OF CANDIDATES.
Fact of the Case:
The case pertains to the recruitment of Junior Engineers (Civil and Mechanical) in the Public Works Department (Roads), Assam. The Assam Public Service Commission (APSC) issued an advertisement inviting applications for 32 Civil and 12 Mechanical posts. However, during the selection process, the Chief Engineer, PWD (Roads), sent three more requisitions to the APSC, increasing the total vacancies to 181 Civil and 18 Mechanical posts. The written test was conducted, and a select list of candidates was prepared by the APSC. Some of the petitioners were appointed under Regulation 3 (f) of the Assam Public Service Commission (Limitation of Function) Regulations, 1951, to fill the vacant posts temporarily. The petitioners challenged the selection process, arguing that the posts beyond the advertised number could not be filled up.
Finding of the Court:
The court held that the selection process by way of requisition and advertisement can be started for clear vacancies and anticipated vacancies but not for future vacancies. The State cannot make more appointments than the number of posts advertised, even though it might have prepared a select list of more candidates. However, the court also recognized that in exceptional circumstances or emergent situations, the State can deviate from the advertisement and make appointments on posts falling vacant thereafter, subject to a policy decision. The court further held that the rights of the petitioners appointed under Regulation 3 (f) had not been violated as they had the opportunity to appear in the APSC selection and their appointments were temporary pending regular selection.
Issues: 1. Whether the State can fill up posts beyond the number advertised without a fresh advertisement and selection process? 2. Whether the rights of the petitioners appointed under Regulation 3 (f) have been violated? 3. How to strike a balance between the interest of the State and the interest of persons seeking public employment in such cases?
Ratio Decidendi: 1. The court relied on the decision of the Apex Court in Prem Singh vs. Haryana State Electricity Board & others, (1996) 4 SCC 319, which held that the selection process can be started for clear vacancies and anticipated vacancies but not for future vacancies. The State cannot make more appointments than the number of posts advertised, even though it might have prepared a select list of more candidates. 2. The court held that the rights of the petitioners appointed under Regulation 3 (f) had not been violated as they had the opportunity to appear in the APSC selection and their appointments were temporary pending regular selection. 3. The court held that in such cases, the court may not invalidate the excess appointments and may mould the relief to strike a just balance between the interest of the State and the interest of persons seeking public employment. The relief granted would depend on the facts and circumstances of each case.
Final Decision: The court disposed of the writ appeals and modified the judgments of the single judges. It directed that out of the candidates recommended by the APSC, only 168 candidates would be appointed to the 168 vacancies in the Civil posts and 18 candidates to the 18 vacancies in the Mechanical posts, as notified by the Chief Engineer, PWD (Roads). The authorities were entitled to terminate the services of the Regulation 3 (f) appointees occupying these posts to make room for the selected candidates. The court also directed that the two petitioners who did not get a chance to appear in the APSC examination would be continued in their posts till they got a chance for regularisation in the next selection conducted by the APSC.
V. K. Khanna, C.J.-
These connected writ appeals and Civil Rules were heard together as common questions of fact and law arose for determination. On 23.5.96, after hearing all the counsel for the parties, the Court ordered that Writ Appeal No. 167 of 1996 will be treated as the leading case for the group of cases which will be headed as "Appointment to the Post of Junior Engineers, /PWD (Roads) - (Civil and Mechanical).
2. We have heard Mr. PK Goswami, Mr. AK Bhattacharyya, Mr. JM Choudhury, Mr. AChoudhury, Mr. N. Dutta, Mr. BD Das, Mrs. N. Saikia and all the other counsel adopted the arguments raised by these counsel appearing for the petitioners/appellants, and Mr. Sheikh Chand Mohammad, learned counsel appearing for the Chief Engineer, PWD (Roads) and Mr.DK Misra, learned counsel appearing for the private respondents.
3. The controversy raised hi these connected appeals and Civil Rules relate to the recruitment to the posts of Junior Engineer (Civil) and Junior Engineer (Mechanical) in the department of Public Work (Roads), Assam. Pursuant to a requisition dated 20.7.93 sent by the Chief Engineer, PWD (Roads), Assam the Assam Public Service Commission (APSC for short) issued advertisement No. 121 93 on 21.10.93 inviting applications for appointment to 32 posts of Junior Engineer (Civil) and 12 posts of Junior Engineer (Mechanical) and the last date of submission of applications was 30.11.93. However, while the selection process was going on the Chief Engineer, PWD (Roads), sent three more requisition to the APSC i.e. (i) letter dated 24.2.94 stating that the total number of vacancies in the post of Junior Engineer (Civil) stands at 67; (ii) letter dated 30.12.94 stating that the vacancy position increased to 168 posts of Junior Engineer (Civil) and 18 posts of Junior Engineer (Mechanical) and (iii) letter dated 15.3.95 stating that 13 further vacancies had taken place in the post of Junior Engineer (Civil) and the vacancy position in the said post as on 31.3.95 was 181.
4. The written test was conducted by the APSC on 12.3.95 and out of 2807 candiddates who appeared for the post of Junior Engineer (Civil), 1162 candidates qualified in the written test and out of 500 candidates who undertook the examination for the post of Junior Engineer (Mechanical) only 101 candidates qualified in the written test. On the basis of the aforesaid written test and interview, the APSC prepared a select list and waiting list of candidates and submitted the same to the Government on 18.9.95. Since the selection process was to take sometime, in the intervening period these vacant posts were filled up temporarily by the persons under Regulation 3 (f) of the Assam Public Service Commission (Limitation of Function) Regulations, 1951 (for short Regulation 3(f).
5. As we have grouped all the cases which pertain to the selection to the post of Junior Engineer (Civil) and (Mechanical) in the Public Works Department (Roads) to take notice as to which of the petitioners appeared in the selection . conducted by the APSC and were not selected. Civil Rule No.4349 of 1995 has been filed by nine petitioners who were appointed under Regulation 3 (f) and admittedly all of them appeared in the selection held by the APSC but could not succeed in the aforesaid selection. Civil Rule No.4222 of 1995 has been filed by 14 petitioners all of whom appeared in the selection held by the APSC but did not succeed. These two Civil Rules have been decided by a common judgment by the learned Single Judge dated 4.4.96 which is under appeal in Writ Appeal Nos. 167 of 1996,166 of 1996,198 of 1996 and 199 of 1996. Civil Rule No.2624 of 1995 has been filed by six petitioners who were appointed under Regulation (f) and of six petitioners, petitioners 1,2,3 and 6 undertook the examination conducted by the APSC but were unsuccessful whereas petitioners 4 and 5 did not apply for the aforesaid posts and have taken a plea before us that the advertisement escaped their notice
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