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2015 Supreme(Manipur) 10
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
For the Respondents:R.S. Reisang, Sr. G.A., A. Jagatchandra, Y. Nirmolchand, Jalaluddin and Momon, Advocates.
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.
Headnote:
WRIT PETITION - APPOINTMENT OF PROJECT OFFICERS - DIRECT RECRUITMENT - PROMOTION - VALIDITY - AGE LIMIT - RELAXATION - GUIDELINES OF DRDA - SELECTION COMMITTEE - CRITERIA FOR PROMOTION - PUBLIC EMPLOYMENT - CONSTITUTIONAL SCHEME - IRREGULARITIES - FABRICATED DOCUMENT - CLEAN HANDS DOCTRINE.
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 contended 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. Another order was also issued on 28.02.2009 by which the respondent No. 5 was given appointment as Project Officer by promotion on temporary basis with immediate effect and until further orders, which is also under challenge in this writ petition.
Finding of the Court:
1. 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. 2. 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.
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 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. 2. 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. 3. The appointment of the respondent No. 5 by promotion as a Project Officer was not legally permissible. 4. The promotion of the respondent No. 5 was in violation of the law laid down in Dr. Krushna Chandra Sahu (supra) as discussed above. Therefore, this Court considers these irregularities to be too fundamental to be ignored as mere irregularities, but vitally affect the validity of the promotion of the respondent No. 5 which are, incurable.
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.
N. Kotiswar Singh, J.
1. Heard Mr. H.S. Paonam, learned senior counsel for the petitioner. Also heard Mr. R.S. Reisang, learned Senior Govt. Advocate for the State respondents, Mr. A. Jagatchandra, learned counsel for the respondent No. 4, Mr. Y. Nirmolchand, learned counsel for the respondent No. 5, Mr. Md. Jalaluddin, learned counsel for the respondent No. 6 and Mr. Ch. Momon, learned counsel for respondents No. 7 and 8 respectively.
2. The present writ petition has been filed challenging 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.
3. The facts in brief and main contentions of the petitioner may be stated as follows.
An advertisement was issued on 14.12.2007 for appointment to several posts including three posts of Project Officers for the District Rural Development Agency (DRDA), Imphal West under the Rural Development Department (Monitoring Cell), Government of Manipur. As per the said advertisement, the following educational qualifications and requirement of age were prescribed for the posts of Project Officers as below:
4. Pursuant to the said advertisement, the petitioner applied for appointment to the post of Project Officer and had taken part in the recruitment process, and result thereof was declared by a notification dated 19.4.2008 in which the petitioner was declared successful. Thereafter, the Selection Committee held its meeting on 30.6.2008 and 5.7.2008, in which the candidates were interviewed. The petitioner submits that when the result of the interview was not declared for a long time, the petitioner and another candidate approached the Gauhati High Court, Imphal Bench by filing a writ petition being W.P(C) No. 850 of 2008, which was disposed of by the Court on 26.11.2008 directing the respondent authorities to announce the result of the interview on or before 25.12.2008. Thereafter, belatedly the authorities announced the result of the interview and issued the appointment order in favour of respondent No. 4 and another Scheduled Tribe candidate who were engaged provisionally as Project Officers on contract basis and on payment of consolidated pay vide order dated 2nd March, 2009 (Annexure-A/9) which has been challenged in this writ petition. It has been also submitted by the petitioner that, in fact, the petitioner was recommended by the Selection Committee and was placed at Sl. No. 1 of the select list. However, to her surprise, the petitioner has not been appointed but the respondent No. 4 and other ST candidate as Project Officers as stated above. Another order was also issued on 28.02.2009 (Annexure-A/11) by which the respondent No. 5 was given appointment as Project Officer by promotion on temporary basis with immediate effect and until further orders, which is also under challenge in this writ petition.
5. The main contention of the writ petitioner is 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. According to the petitioner, the appointment to the remaining one post of Project Officer by promotion is not permissible in as much as the authorities could not have changed or reduced the number of 3 (three) advertised posts of Project Officers to 2(two) by relying on the decision of the Hon'ble Supreme Court rendered in the case of Bedanga Talukdar vs. Sai
