2015 Supreme(Manipur) 8

IN THE HIGH COURT OF MANIPUR AT IMPHAL
N.Kotiswar Singh, J.
Sharmila Naorem - Appellant
Versus
State of Manipur - Resopndent
W.P.(C) No. 796 of 2009
Decided On : 19-01-2015

1. The appointing authority has to fill up all the posts advertised and cannot fill up posts less than the number of posts advertised and such reduction amounts to variation in the terms and conditions. 2. The recruitment process has to be strictly in accordance with the terms and conditions stipulated in the advertisement and that there cannot be any relaxation in the terms and conditions mentioned in the advertisement unless such a power is specifically reserved. 3. The OM dated 16.07.1980 has to be strictly construed and not liberally so as to extend to all fresh/direct recruitments. 4. The DRDA guidelines do not indicate any such criteria. No other guidelines or regulations or rules have been shown by the authorities as to how the post of Project Officer is to be filled up by promotion. 5. The Selection Committee had devised the criteria on their own and treated only the APO to be the feeder post for promotion to the post of Project Officer, which in the opinion of the Court, is not permissible without any specific instructions or regulations or rules in that regard as held by the Supreme Court in Dr. Krushna Chandra Sahu (supra).

Headnote:

WRIT PETITION - APPOINTMENT OF PROJECT OFFICERS - DIRECT RECRUITMENT - PROMOTION - AGE LIMIT - VALIDITY - [ARTICLE 14, 16 OF THE CONSTITUTION OF INDIA]

Fact of the Case:

The petitioner challenged the orders dated 02.03.2009 and 28.02.2009 by which the respondent No. 4 and another were appointed as Project Officers on contract basis and the respondent No. 5 promoted to the post of Project Officer respectively in the District Rural Development Agency, Imphal West. The petitioner submitted that the initial advertisement dated 14.12.2007 had specifically mentioned 3 posts of Project Officers for appointment, out of which one was to be filled up from amongst the Scheduled Tribe candidates and remaining two from the General category candidates. However, when the appointment order was issued on 02.03.2009, only two persons including one scheduled tribe candidate were given appointment and instead of filling up the remaining one post of Project Officer from amongst the unreserved candidates, the authorities filled up the said post by promoting the respondent No. 5. The petitioner also submitted that the respondent No. 4 was over-aged at the time of advertisement and his appointment is in violation of the terms and conditions of the advertisement.

Finding of the Court:

1. The appointment of only 2 (two) Project Officers in spite of advertising 3 (three) posts by the authorities had a valid reason, as the State Cabinet had given the approval for appointment of two(2) Project Officers in the case of the DRDA, Imphal West. 2. The reduction in the number of appointments qua the number of advertised posts in their advertisement was due to a valid reason, which could not be faulted with by a candidate who does not have a vested right to be appointed. 3. The respondent No. 4 was clearly age-barred having crossed 38 years of age at the time of issue of advertisement and as such he could not have given the appointment though recommended by the Selection Committee. 4. The promotion of the respondent No. 5 as Project Officer in the manner done by the respondent authorities was illegal and void ab initio and accordingly, the promotion order dated 28.02.2009 is liable to be quashed.

Issues: 1. Whether it was permissible for the Appointing Authority to appoint only 2 (two) out of the initial advertised 3 (three) posts of Project Officers, thereby reducing/changing the number of posts to be filled up? 2. Whether the Appointing Authorities could fill up one of the advertised posts by promotion? 3. As a corollary, whether the promotion of the respondent No. 5 is valid or not? 4. Whether the respondent No. 4 was age-barred at the time of advertisement/appointment?

Ratio Decidendi: 1. The law relied on by the petitioner does not support the contention of the petitioner that the appointing authority has to fill up all the posts advertised and cannot fill up posts less than the number of posts advertised and such reduction amounts to variation in the terms and conditions. 2. In the present case, the issue involved is not about the relaxation of the terms and conditions mentioned in the advertisement, but of the reduction in the number of posts at the time of appointment from the number of advertised posts. 3. The Supreme Court in Bedanga Talukdar (supra) had clearly mentioned that the recruitment process has to be strictly in accordance with the terms and conditions stipulated in the advertisement and that there cannot be any relaxation in the terms and conditions mentioned in the advertisement unless such a power is specifically reserved. 4. The OM dated 16.07.1980 has to be strictly construed and not liberally so as to extend to all fresh/direct recruitments. 5. The DRDA guidelines do not indicate any such criteria. No other guidelines or regulations or rules have been shown by the authorities as to how the post of Project Officer is to be filled up by promotion. 6. The Selection Committee had devised the criteria on their own and treated only the APO to be the feeder post for promotion to the post of Project Officer, which in the opinion of the Court, is not permissible without any specific instructions or regulations or rules in that regard as held by the Supreme Court in Dr. Krushna Chandra Sahu (supra).

Final Decision: The writ petition is allowed. The appointment of respondent No. 4 vide order dated 2.3.2009 is set aside on the ground of being over aged and the petitioner who is next to the respondent No. 4 and ST candidate in order of merit in terms of the recommendation of the Selection Committee held on 30.6.2008 and 5.7.2008 would be entitled to be appointed to the post of Project Officer, which this Court directs the official respondents No. 1, 2 and 3 to do so. As regards, the promotion order of respondent No. 5 dated 28.02.2009 is concerned, for the reasons discussed above, the same is declared void ab initio and is, accordingly, quashed.