Gauhati High Court
Md. Najmul Islam & 4 Ors vs The State Of Assam And Ors on 23 April, 2015
Author: Ujjal Bhuyan
Bench: Ujjal Bhuyan
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND
ARUNACHAL PRADESH)
WRIT PETITION (C) NO. 2066 OF 2011
Petitioners :
1. Md. Najmul Islam,
Son of Md. Azizul Islam,
Resident of Village- Charingia,
PO- Charingia, Jorhat,
District- Jorhat, Assam.
2. Sri Nayanmoni Kalita,
Son of Sri Annanda Charan Kalita,
Resident of Village- Bherua,
PO- Duni, PS- Sipajhar,
District- Darrang, Assam.
3. Sri Rajesh Kalita,
Son of Sri Padma Ram Kalita,
Resident of Village & PO- Bamundi,
PS- Sualkuchi,
District- Kamrup (Assam).
4. Sri Koyel Dutta,
Son of Sri Motilal Dutta,
Resident of Malugram Mela Road,
PO- Silchar,
District- Cachar, Assam.
5. Sri Manoj Das,
Son of Sri Atul Ch. Das,
Resident of Village & PO- Sikarhati,
PS- Palashbari,
District- Kamrup (Assam).
By Advocates :
Mr. K.K. Mahanta, Sr. Advocate,
Mr. K. Singha.
W .P (C) N o.2066 OF 2011 P age 1 of 16
Respondents :
1. State of Assam, represented by the Chief Secretary to the Government of Assam, Secretariat Building, Dispur, Guwahati-781006.
2. Commissioner and Secretary to the Government of Assam, Secretariat Administration (Estt.) Department, Dispur, Guwahati-781006.
3. Under Secretary to the Government of Assam, Secretariat Administration (Estt.) Department, Dispur, Guwahati-781006.
By Advocate:
Mr. B. Chetri, Sr. GA, Assam.
BEFORE
HON'BLE MR. JUSTICE UJJAL BHUYAN
Date of hearing : 09-12-2014.
Date of Judgment : 23-04-2015.
JUDGMENT & ORDER
By filing this petition under article 226 of the Constitution of India, petitioners seek a direction to the respondents to appoint them in the post of Typist in the Assam Secretariat following their selection pursuant to the advertisement dated 03-08-2009. Petitioners further seek quashing of subsequent advertisement dated 01-01-2011 for filling up 5 vacancies in the post of Typist, 4 for ST(H) candidates and 1 for ST(P) candidates.
2. Five petitioners have joined together and have instituted the present writ proceeding jointly since their grievance is identical and reliefs sought for is also the same.
W .P (C) N o.2066 OF 2011 P age 2 of 16
3. Facts of the case as projected in the writ petition are briefly narrated hereunder.
4. Respondent No.2 i.e. Commissioner and Secretary to the Government of Assam, Secretariat Administration (Establishment) Department issued advertisement dated 03-08-2009 inviting applications from eligible candidates to fill up 80 vacancies in the post of Typist. As per the advertisement, in addition to the usual percentage of reservation for the reserve category candidates, the notified vacancies included 10 Nos. of backlog vacancies for ST(H) candidates and 3 Nos. of backlog vacancies for ST(P) candidates. Eligibility qualification prescribed was Higher Secondary pass having minimum typing speed of 30 words per minute in English and minimum typing speed of 20 words per minute in Assamese (preferable). It was also stated that candidates should have good working knowledge of computer, possessing a minimum 6 months diploma/certificate in computer proficiency from a recognized institution. Age limit was fixed between 18 years and 38 years as on 01-08-2009 relaxable in respect of specified categories.
5. Petitioners are general category candidates. As the petitioners fulfilled the eligibility criteria and being interested, they submitted their applications pursuant to the said advertisement.
6. Petitioners were issued individual call letters from the office of the respective Deputy Commissioners, informing them that the selection process would consist of two phases. In the first phase, there would be typing speed test; those candidates who qualified in the typing speed test would be called for the computer test. The final ranking in the selection would be determined on the basis of the typing speed test and computer test. By the said call letters, petitioners were permitted to appear in the typing speed test scheduled on 21-
02-2010 and on subsequent dates.
7. Petitioners appeared in the typing speed test. It appears that all the petitioners qualified in the typing speed test and therefore they were called W .P (C) N o.2066 OF 2011 P age 3 of 16 to appear in the computer proficiency test scheduled on 26-06-2010 and on subsequent dates.
8. Accordingly, petitioners appeared in the computer proficiency test. The result of the selection for the post of Typist in the Assam Secretariat pursuant to the advertisement dated 03-08-2009 was published in the newspaper on 11-08-2010. 80 candidates were declared to have been selected. Roll numbers of all the five petitioners were included in the list of 80 selected candidates.
9. Soon after the result was published, police verification was carried out in respect of all the selected candidates including the five petitioners. While the petitioners were waiting for their appointment orders, those were not forthcoming. On the other hand, appointment orders were issued in respect of 75 of the selected candidates out of whom 73 joined their posts. But none of the petitioners received appointment orders.
10. Petitioners submitted representations before the authorities including respondent No.2 for issuance of appointment orders in their favour. But no such appointment orders were issued.
11. In the meanwhile, petitioners were furnished information under the Right to Information Act, 2005 by providing them a copy of the select list. From the select list it is seen that petitioners are placed at Sl. Nos. 45, 46, 47, 54 and 55 in order of merit. Petitioners were also supplied the list of 75 selected candidates who were appointed as Typist in the Assam Secretariat.
12. Respondent No.3 then issued an advertisement dated 01-01-2011 for filling up 4 vacancies in the post of Typist in the Assam Secretariat by ST(H) candidates (including 1 for women) and 1 vacancy in the said post by ST(P) candidate.
13. It is contended that the subsequent advertisement dated 01-01- 2011 is a ploy to deprive the petitioners from getting appointment. Contention of W .P (C) N o.2066 OF 2011 P age 4 of 16 the petitioners is that their merit position in the select list would justify their appointments. Denial of appointment to only the petitioners is not justified. Since the advertisement was for 80 vacancies and a select list of 80 was prepared, giving appointment to 75 without filling up 5 of the notified vacancies by excluding the petitioners is illegal, arbitrary and unreasonable.
14. With the above grievance, the present writ petition has been filed seeking the reliefs as indicated above.
15. Respondents Nos. 2 and 3 have filed a common affidavit. Stand taken in the affidavit is that 80 candidates were selected on the basis of merit, reservation policy and proposal for de-reservation. Out of the 80 vacancies, 8 were earmarked for ST(P) and 4 for ST(H) as per roster. There were 3 backlog vacancies for ST(P) and 10 backlog vacancies for ST(H), total 13. Thus total vacancies, both current and backlog, for ST(P) was 11 (8 + 3) and for ST(H) 14 (4 + 10). As against that, selection committee selected 10 ST(P) candidates and 1 ST(H) candidate. Thus from the select list all the 3 backlog vacancies for ST(P) were filled up and only 1 vacancy out of 10 meant for ST(H) was filled up. Not to speak of the backlog vacancies, even from the current roster points, 1 vacancy meant for ST(P) and all the 4 vacancies meant for ST(H) could not be filled up. Accordingly, against these 5 roster points, the selection committee recommended 5 names from the unreserved (general) category on the basis of merit i.e., the petitioners subject to clearance by the Welfare of Plains Tribe and Backward Classes Department i.e., WPT and BC Department. Accordingly, proposal was submitted to the WPT and BC Department to de-reserve 5 roster points, 1 for ST(P) and 4 for ST(H). In anticipation of approval by the WPT and BC Department, list of 80 selected candidates was published which included the 5 petitioners. However, WPT and BC Department did not agree to the proposal and instead suggested a special drive for recruitment to the 5 vacancies by reserve category candidates. Accordingly the Department had to finally appoint 75 out of the 80 selected candidates leaving out 5 of the selected general category candidates i.e. the petitioners. In terms of the suggestion of the WPT and BC W .P (C) N o.2066 OF 2011 P age 5 of 16 Department, the subsequent advertisement dated 01-01-2011 was issued for filling up 1 vacancy for ST(P) and 4 vacancies for ST(H).
16. Petitioners have filed rejoinder affidavit. It is stated that clubbing of backlog vacancies with current vacancies for giving reservation benefit to the reserve category candidates is not permissible under Article 16(4B) of the Constitution of India. As per the advertisement there were 13 backlog vacancies [3 for ST(P) and 10 for ST(H)]. Therefore, the current vacancies are 67. The running roster would be applicable to these 67 current vacancies and not 80 vacancies. But the authority calculated 80 current vacancies instead of 67 which led to increased roster points for reserve category candidates. In the process, the roster points meant for general category candidates stood reduced. It is contended that there is no basis for denying appointments to the petitioners. Since 80 candidates were selected against 80 vacancies, including the petitioners, all of them should have been appointed. Appointing only 75 selected candidates excluding the petitioners is not justified. Because of the confusing stand of the respondents, it has resulted in excess representation of some of the reserve category candidates causing prejudice to the petitioners.
17. Heard Mr. K K Mahanta, learned Senior Counsel assisted by Mr. K. Singha, learned Counsel for the petitioners and Mr. B. Chetri, learned Senior Government Advocate, Assam for the respondents. Mr. Chetri has also produced the record.
18. Mr. Mahanta, learned Counsel for the petitioners submits that the stand of the respondents is inconsistent. Firstly, they have committed a mistake by clubbing the backlog vacancies for reserve category candidates with the current vacancies. Secondly, respondents have appointed more reserve category candidates than the prescribed percentage. In the process, the ceiling of 50% beyond which reservation is not permissible has been breached. In this connection, learned Senior Counsel has placed reliance on the decision in Indra Saw hney -Vs- Union of India , reported in 1992 Supp. (3) SCC 217. He has also placed reliance on the decision of the Apex Court in the case of Union of W .P (C) N o.2066 OF 2011 P age 6 of 16 India -Vs- Priti Lata Nanda , reported in (2010) 11 SCC 674. Lastly, he submits that since against 80 vacancies, select list of 80 has been published, which includes the 5 petitioners, there is no reason as to why all the selected candidates should not be appointed rather than confining the appointments to only 75.
19. On the other hand, Mr. B. Chetri learned Senior Government Advocate submits that the selected and appointed candidates have not been joined as respondents in the writ petition. Mere inclusion in the select list does not confer any enforceable right on the petitioners to claim appointment. When adequate number of reserve category candidates were not selected i.e. 4 ST (H) and 1 ST(P), total 5, the authority submitted proposal for de-reservation of the above 5 vacancies due to non-availability of suitable reserve category candidates but the said proposal was turned down by the WPT and BC Department. Consequently these 5 vacancies could not be filled up. As a result, petitioners could not be appointed. He further submits that following the subsequent advertisement dated 01-01-2011, selection process was undertaken for filling up 1 ST(P) vacancy and 4 ST(H) vacancies. Thereafter, the vacancies have been filled up. He therefore submits that the grievance of the petitioners is misplaced and no case for interference is made out. Writ petition is liable to be dismissed.
20. Submissions made have been considered. Record produced has also been perused.
21. Before proceeding further, it would be apposite to briefly refer to the notings made in the official record/file. Selection committee meeting was held on 07-08-2010. As per minutes of the meeting, pursuant to the advertisement dated 03-08-2009 for filling up 80 vacancies in the post of Typist, 14,780 applications were received out of which 10,813 numbers of candidates were found eligible and called for typing speed test. Finally 6,454 numbers of candidates appeared in the typing speed test out of which 170 numbers of candidates who had scored 30 words per minute or above in English typing were short-listed and they were called for computer test. Out of 170, one candidate W .P (C) N o.2066 OF 2011 P age 7 of 16 did not appear in the computer test. For the computer test total marks was 50 and 15 was the pass marks. Out of the 169 candidates who had appeared in the computer test, 21 could not secure the pass marks of 15. Thus only 148 candidates qualified both in English typing and computer test. It was noted that the 80 vacancies would touch the roster points from 474 to 553 in the cadre of Typist. It was noticed that the backlog vacancies were 13, ST(P) 3 and ST(H) 10. Current roster points to be filled up by reserve category candidates (within the roster points 474 to 553) were worked out at 42, the breakup of which were as follows-
ST(P) - 08
ST(H) - 04
SC - 06
OBC/MOBC - 22
PH - 02
Total - 42
Therefore the total vacancies to be filled up by reserve category candidates stood at 55(13+42).
22. However from within the list of selected candidates i.e. the zone of consideration, the break up of the selected candidates reserve category wise were as under:-
ST(P) - 10
ST(H) - 01
SC - 06
OBC/MOBC - 22
PH - 02
Total - 41
23. In the case of ST(P) all the 3 backlog vacancies were filled up and 7 out of 8 current vacancies were filled up; thus 1 current roster point remained W .P (C) N o.2066 OF 2011 P age 8 of 16 to be filled up. In respect of ST(H), out of the 10 backlog vacancies, only 1 vacancy was filled up and all the 4 current roster points could not be filled up due to lack of suitable candidates. The 5 current roster points which could not be filled up for want of suitable candidates were identified as under -
ST(P) - roster point No.551 ST(H) - roster point Nos.487, 507, 527 and 547
24. On the above basis it was worked out that 37 current roster points were filled up by reserve category candidates (42-5=37) and 4 backlog vacancies out of 13 were filled up by reserve category candidates - total 41 (37+4=41). 34 roster points were filled up on the basis of merit. It was found that 5 roster points [(1 for ST(P) and 4 for ST(H)] were required to be filled up by unreserve or general category candidates which would mean that those 5 roster points would have to be de-reserved. This is how the 80 vacancies were proposed to be filled up i.e. 41+34+5 = 80.
25. Accordingly, the WPT and BC Department was moved for de- reservation of the aforesaid 5 roster points.
26. The note sheet and the file discloses that the WPT and BC Department did not agree to the above proposal and instead asked the Secretariat Administration Department to keep the posts vacant and to conduct special drive to fill up the said vacancies.
27. Subsequent notings indicate that all the 80 selected candidates were subjected to police verification and thereafter police verification reports were received in respect of all the 80 selected candidates, including the 5 petitioners. It was further noted that another 41 vacancies had occurred in the meanwhile in the cadre of Typist.
28. It appears that it was finally decided not to de-reserve the 5 roster points meant for ST(P) and ST(H) candidates and instead it was decided to go for special recruitment drive by issuing fresh advertisement. This is how the 5 W .P (C) N o.2066 OF 2011 P age 9 of 16 petitioners came to be dropped i.e. denied appointment and the subsequent advertisement dated 01-01-2011 was issued.
29. The file indicates that appointment letters were issued to 75 out of the 80 selected candidates excluding the 5 petitioners. Out of the 75 candidates who were issued appointment letters, 3 did not join. A suggestion was made to appoint 3 of the 5 petitioners in order of preference in place of the 3 who did not join. This noting is dated 08-02-2011. Perhaps because of the institution of the present writ proceeding no further progress appears to have been made in this regard in the file.
30. The present recruitment process was undertaken to fill up 80 vacancies in the post of Typist. It appears that a basic elementary mistake had occurred in calculating the roster points in the cadre of Typist relatable to the 80 vacancies. Both the minutes of the selection committee meeting and notings in the file indicate that these 80 vacancies have been calculated to comprise the roster points from 474 to 553 which is 80 roster points. Now, a brief look at the advertisement dated 03-08-2009 will show that these 80 vacancies include 13 backlog vacancies [(10 for ST(H) and 3 for ST(P)]. If the recruitment process is to commence from the roster point No. 474 onwards, the backlog vacancies will mean vacancies relatable to roster points preceding roster point No.474. If out of 80 vacancies, 13 are backlog vacancies that would mean that the current vacancies out of 80 notified vacancies are 67. These 67 current vacancies will correspond to 67 current roster points starting from roster point No.474. In other words, these 67 current vacancies will correspond to roster point Nos. 474 to
540. It was a mistake to include the backlog vacancies to calculate the 80 vacancies from roster point Nos. 474 to 553.
31. Article 16(4B) provides that there is no impediment preventing the State from considering any unfilled vacancies of a year which are reserved to be filled up in that year in accordance with any reservation provision as a separate class of vacancies to be filled up in any succeeding year or years and such class of vacancies shall not be considered together with the vacancies of the year in W .P (C) N o.2066 OF 2011 P age 10 of 16 which they are being filled up for determining the ceiling of 50% reservation on total number of vacancies of that year.
32. In the well known case of Indra Saw hney (Supra), it was held that reservation in all cases must be confined to a minority of available posts or seats so as not to unduly sacrifice merit. The number of seats or posts reserved under Article 15 or Article 16 must at all times remain well below 50% of the total number of seats or posts.
33. In the light of the above declaration, the provision of Article 16(4B) may be examined. Article 16(4B) contains two parts. In the first part, unfilled vacancies of a year earmarked to be filled up by reserve category candidates can be carried forward to be filled up in any succeeding year or years. Such vacancies to be carried forward are to be treated as a separate class of vacancies. Secondly, such separate class of vacancies when carried forward shall not be considered together with the current vacancies for determining the ceiling of 50% maximum reservation out of the total number of vacancies being filled up. Thus, it is clear that backlog vacancies are those unfilled vacancies of previous year or years earmarked for reserve category candidates. Therefore, these vacancies by their very nature cannot be part of the current vacancies. Going back to the advertisement dated 03-08-2009, the 13 backlog vacancies [(10 for ST(H) and 3 for ST(P)] are unfilled vacancies of previous year(s) and therefore those cannot be part of the current vacancies which as pointed out above works out to 67 starting from roster point No.474. Secondly, because of the clubbing together of the backlog vacancies with the current vacancies, the 50% ceiling appears to have been breached. As already noticed above, the 80 selected candidates and the 75 appointees include 4 candidates who have been selected and appointed against the 13 backlog vacancies [(ST(P) 3 & ST(H) 1].
34. At this stage, it may be pointed out that the selection committee as well as the respondents have committed another mistake by providing separate and additional vacancies for physically handicapped (PH) candidates over and above the vacancies earmarked for ST(P), ST(H), SC and OBC/MOBC.
W .P (C) N o.2066 OF 2011 P age 11 of 16 In fact PH category has been treated as a separate class of reserve category like the above categories. As noticed above, 2 vacancies were earmarked for PH category and those 2 vacancies have been filled up.
35. In the case of Indra Saw hney (Supra), the Hon'ble Supreme Court observed that all reservations are not of the same nature. There are two types of reservations, viz; vertical reservation and horizontal reservation. Reservations in favour of SC, ST and OBC/MOBC may be called vertical reservation whereas reservation in favour of physically handicapped can be referred to as horizontal reservation. Horizontal reservation cut across the vertical reservation. Persons selected against the quota of horizontal reservation will be placed in the appropriate category. If he belongs to SC category, he will be placed in that quota by making necessary adjustments. Likewise, if he belongs to the general category, he will be placed in that category by making necessary adjustments. The result is that even after providing for horizontal reservation, the percentage of reservation for the backward classes i.e. SC, ST and OBC/MOBC remains the same.
36. The method of implementing horizontal reservation in the context of reservation for women was explained by the Hon'ble Supreme Court in the case of Anil K um ar Gupta -Vs- State of UP , reported in (1995) 5 SCC 173.
37. The Hon'ble Supreme Court in the case of R ajesh K um ar Daria -Vs- R ajasthan Public Service Com m ission , reported in (2007) 8 SCC 785 described social reservation in favour of SC, ST and OBC/MOBC as vertical reservation and special reservation in favour of physically handicapped, women etc. as horizontal reservation. The Apex Court explained the inter-play of the two forms of reservation in the following manner :-
" 9. The second relates to the difference between the nature of vertical reservation and horizontal reservation. Social reservations in favour of SC, ST and OBC under Article 16(4) are "vertical reservations". Special reservations in favour of physically handicapped, women, etc., under Articles 16(1) or 15(3) are "horizontal reservations". Where a vertical reservation is made in favour of a Backward Class under Article 16(4), the candidates W .P (C) N o.2066 OF 2011 P age 12 of 16 belonging to such Backward Class, may compete for non-reserved posts and if they are appointed to the non-reserved posts on their own merit, their number will not be counted against the quota reserved for respective Backward Class. Therefore, if the number of SC candidates, who by their own merit, get selected to open competition vacancies, equals or even exceeds the percentage of posts reserved for SC candidates, it cannot be said that the reservation quota for SCs has been filled. The entire reservation quota will be intact and available in addition to those selected under open competition category. (Vide Indra Sawhney, RK Sabharwal v. State of Punjab, Union of India v. Virpal Singh Chauhan and Ritesh R Sah v. Dr. YL Yamul). But the aforesaid principle applicable to vertical (social) reservations will not apply to horizontal (special) reservations. Where a special reservation for women is provided within the social reservation for Scheduled Castes, the proper procedure is first to fill up the quota for Scheduled Castes in order of merit and then find out the number of candidates among them who belong to the special reservation group of "Scheduled Caste women". If the number of women in such list is equal to or more than the number of special reservation quota, then there is no need for further selection towards the special reservation quota. Only if there is any shortfall, the requisite number of Scheduled Caste women shall have to be taken by deleting the corresponding number of candidates from the bottom of the list relating to Scheduled Castes. To this extent, horizontal (special) reservation differs from vertical (social) reservation. Thus women selected on merit within the vertical reservation quota will be counted against the horizontal reservation for women. Let us illustrate by an example:
If 19 posts are reserved for SCs (of which the quota for women is four), 19 SC candidates shall have to be first listed in accordance with merit, from out of the successful eligible candidates. If such list of 19 candidates contains four SC woman candidates, then there is no need to disturb the list by including any further SC woman candidate. On the other hand, if the list of 19 SC candidates contains only two woman candidates, then the next two SC woman candidates in accordance with merit, will have to be included in the list and corresponding number of candidates from the bottom of such list shall have to be deleted, so as to ensure that the final 19 selected SC candidates contain four woman SC candidates. (But if the list of 19 SC candidates contains more than four woman candidates, selected on own merit, all of them will continue in the list and there is no question of deleting the excess woman candidates on the ground that "SC women"
have been selected in excess of the prescribed internal quota of four)."
W .P (C) N o.2066 OF 2011 P age 13 of 16
38. The above position was reiterated by a Division Bench of this Court in the case of R atul K um ar Das -Vs- State of Assam reported in 2009 (4) GLT 648 holding that reservation for women is a horizontal reservation and is not over and above the vertical reservation provided to different categories like SC, ST and OBC/MOBC. It was explained that in the event the select list prepared on the basis of merit for each category already includes the requisite number of women candidates, no further exercise is required to be performed. However, if there is a shortfall of women candidates, then women candidates in order of merit will replace the last of the male candidates to the extent of the shortfall. This is how reservation for women as horizontal reservation should be given affect to.
39. From the decisions cited above it is clearly evident that reservation for physically handicapped is a horizontal reservation and is not over and above the vertical reservation provided to the reserve categories like SC, ST and OBC/MOBC. Therefore, the respondents erred in providing separate and additional reservation to PH category (2 in number) over and above reservations for SC, ST and OBC/MOBC. It is however not clear from the record as to which social category these two selected and appointed PH candidates belong. But this has certainly affected the selection and appointment to the extent of 2 roster points.
40. The end result of the above mistakes appears to have resulted in selecting and appointing excess reserve category candidates. The record however does not disclose what would be the final effect of scaling down the roster points to 540 from 553 by taking the current vacancies at 67 and also because of treating the 2 vacancies earmarked for PH category as vertical reservation. But one thing is quite certain is that any intervention at this stage may lead to inequitable consequences. As has been seen, out of the 80 selected candidates for 80 vacancies, 75 have been appointed barring the 5 petitioners. A surgical excision in the form of judicial intervention at this stage may lead to unsettling the selection and appointment of a number of candidates who may belong either to the reserve categories or unreserve category. It may even lead W .P (C) N o.2066 OF 2011 P age 14 of 16 to unraveling of the recruitment process itself. However, considering the fact that none of the 75 selected candidates who have been appointed are before the Court and the fact that it has been almost four years since their appointments, Court intervention at this stage may be avoided to prevent inequituous consequences.
41. In such a situation, Court is of the view that equity can be balanced if appointments are provided to the 5 petitioners without disturbing the appointments already made. The record indicates that out of the 75 appointees, 3 did not join. Therefore, admittedly 3 vacancies are available out of the 80 notified vacancies. In addition, 41 additional vacancies have occurred in the meanwhile. Considering the peculiar fact situation of the present case, it would meet the ends of justice if the petitioners are appointed against 5 of the above vacancies.
42. It is true that a person selected and empanelled in the select list has no vested right to be appointed to the post for which he has been selected but he has a right to be considered for appointment. However, in the case of R .S. M ittal -Vs- Union of India , reported in 1995 Supp. (2) SCC 230, the Hon'ble Supreme Court held that the appointing authority cannot ignore the select panel or decline to make the appointment on its whims and when there is a vacancy which can be offered to him, keeping in view his merit position, then, ordinarily, there is no justification to ignore him for appointment. There has to be justifiable reason to decline to appoint a person who is on the select panel.
43. In Director, SCTI for M edical Science and Technology and another -Vs- M . Pushkaran , reported in (2008) 1 SCC 448, the Apex Court after noticing some of the decisions operating in the field, including R .S. M ittal , held that application of law would, therefore, depend upon the fact situation obtaining in each case.
44. Referring to the above decision, the Hon'ble Supreme Court in the case of Union of India -Vs- Pradip K um ar Kedia , reported in (2012) 1 SCC 432 held that where the Court does not find any reason for the authorities not to W .P (C) N o.2066 OF 2011 P age 15 of 16 offer any appointment to the candidate placed in the selection panel, the Court can direct appointment.
45. Therefore and having regard to the discussions made above, this Court finds no good reason to deny appointment to the petitioners who are included in the list of 80 selected candidates for 80 notified vacancies and 75 of such selected candidates, both above and below them in the select list, having been appointed with 44 vacancies available as per record. Additionally, petitioners were already subjected to police verification and verification report have since been obtained.
46. Accordingly, respondent No.2 is directed to issue appointment orders to the petitioners within a period of four weeks from the date of receipt of a certified copy of this order.
47. Writ petition is allowed but without any order as to cost. Record produced by learned Senior Government Advocate is returned back.
Judge
BIPLAB
W .P (C) N o.2066 OF 2011 P age 16 of 16