Gauhati High Court
Hulang Robinson And Ors. vs Chief Execution Officer And Ors. on 17 November, 2006
Equivalent citations: (2007)2GLR736, 2007(2)GLT604
Author: U.B. Saha
Bench: U.B. Saha
JUDGMENT U.B. Saha, J.
1. Heard Mr. A. Nilmani Singh, senior advocate assisted by Mr. A. Bimol Singh, learned Counsel appearing for the petitioner in W.P.(C) No. 1061 of 2006, Mr. K. Rabei, learned Counsel appearing on behalf of the petitioner in W.P.(C) No. 1062 of 2006 respectively as well as Mr. L. Shyamkishore Singh, senior advocate assisted by Mr. L. Gunindro Singh, learned Counsel appearing for the respondents in both the writ petitions.
2. In these Writ Petitions common Questions of facts and law are involved and as such they arc being disposed by tills common judgment and order.
3. The factual controversy lies within the very short compass in the present writ petition are : The petitioners, namely, (i) Hulang Robinson, (ii) NL. Khungshel Anal and (iii) A. Bikram Singh in the writ petition (C) No. 1067 of 2006 and the petitioner, namely, Ms. Kharcila Keising and Mr. Db. Suresh Thamdok are the unemployed youths anxiously waiting for appointment under the Government and or council, including 32 posts of Assistant Teachers which are going to be filled up by the Autonomous District Council, Chandel (hereinafter the Council). All the petitioners have their essential qualifications for appointment to the post of Assistant teachers and they have also possessed the degree of Bachelor of Arts from the recognized University, and within the upper age limit prescribed in the recruitment rules, namely, the Department of Education (Schools), Manipur "Primary 'readier" Recruitment Rules, 1995 (for short the Rules, 1995). They are also registered in the Employment Exchange Manipur and thus eligible for being sponsored by the Employment Exchange for the aforesaid post of teachers. But the respondents herein, particularly, the Chief Executive Officer District Council (for short D.E.E.O.) acted contrary to the prescriptions of the aforesaid Recruitment Rules, 1995 by way of writing a letter dated 10.3.2006 to the District Employment Exchange Officer, Chandel (for short D.E.E.O.) wherein and whereunder the C.E.O. of the Council requested the D.E.E.O. to sponsor the names of candidates on or before 25.3.2006 for appointment of 32 vacant posts of Assistant Teachers and in the said letter it is also mentioned that the posts may be increased or decreased according to the actual vacancy. The C.E.O. Chandel also issued a notification dated 28.10.2006, which was published in a local daily, namely, "The Sangai Express" dated 28.10.2006 wherein all the candidates sponsored by Employment Exchange, Manipur are, therefore, informed to appear before the DPC along with the original educational certificates and two recent pass port size photographs duly attested by Gazetted Officer. As the aforesaid letter and the notification of the C.E.O. are contrary to the provisions of Rules, 1995, as well as the general notification issued by the Government of Manipur prescribing upper limit of age for Government employment, the petitioners, though qualified under the rules and the notification/order of the Government, to apply for the post of Assistant teachers for which the D.E.E.O., Chandel sponsored the names of the candidates and the notification (Annexure-A/5 to the writ petition) by which the candidates whose names were sponsored by the Employment Exchange were informed to appear before the DPC along with their original certificates as stated above. As all the petitioners are within the upper age limit prescribed by the Rules, they were/are eligible for the post of Asstt. Teacher and entitled to be sponsored by the D.E.E.O. for the post of Assistant Teacher and appear in the interview in question. But due to decrease of the upper age limit by the C.E.O. and D.E.E.O., the present petitioners and similarly situated persons could not apply for the post in question and their names were also not sponsored by the sponsoring authority as they were not eligible according to the aforesaid letter and notification.
4. Being aggrieved and dissatisfied with the aforesaid letter issued by the C.E.O. of the council and the notification published in the "The Sangai Express" the petitioners prefer this Writ Petitions to issue a writ in the nature of certiorari for quashing the impugned orders at Anncxures-A/2 and A/5, i.e., the letter issued by C.E.O. of the council and the notification published in the Sangai Express and also to stay the operation of those two letter and notification during the Pendency of these writ petitions.
5. Mr. A. Nilmani, learned senior counsel appears for the petitioners urges before this Court that the whole action of the authority as mentioned inAnnexures-A/2 and A/5 of the writ petition, are contrary to the provisions of Rules, 1995 wherein the upper age limit prescribed is 35 years for the General candidates, 5 years relaxation for the SC/ST candidates and 3 years relaxation for the OBC candidates. Being the present petitioners belonging to SC/S.T. and OBC communities, they are coming within the purview of the relaxation prescribed by the Government of Manipur. Hence, they cannot be deprived of their lawful rights to be sponsored by the sponsoring authority and also for appearing in the interview going to be held for the post of Assistant Teachers. Not only the petitioners, even similarly situated persons who were/are eligible to be sponsored by the Employment Exchange, to appear in the interview for the post of Assistant teachers as notified by the C.E.O. of the Council. The entire action of the authority is arbitrary, discriminatory and violative of Article 14 of the Constitution as well as violative of the provisions of Article 309, i.e. recruitment rules, 1995. Hence, the same is required to be set aside.
6. In response to the submission of the learned Counsel of the petitioner, the learned State counsel placed before this Court two documents, namely, the office Memorandum dated 17.10.2006 wherein the authority in partial modification to earlier Memorandum dated 17.12.2005, relaxed the conditions mentioned therein regarding written test and also on 11.3.2006, the authority, after partial modification of its earlier letter, substituted the words, "18-30 (5 years relaxation for SC/State Government)" by 18-35 (5 years relaxation for SC/ST and 3 years for OBC), i.e. the mistakes committed earlier has been rectified. Showing the aforesaid documents, the learned State counsel contended that after issuance of the corrigendum, there is nothing remain for this Court to adjudicate the writ petitions, he also submits if the petitioners are allowed to appear in the interview in question, then there will be nothing for adjudication in this case.
7. In reply to the contentions of the learned Counsel of the respondents, Mr. A. Nilmani, learned Sr. counsel of the petitioners, submits that the question is not for the petitioners alone but for other educated unemployed youths having within the upper age limit prescribed and qualified in accordance with Rules, 1995 are also deprived of their rights due to wrong action and non action of the respondents.
8. The points for decision in the present case arc whether the letter (Annexure-A/2 to the writ petition and the notification at Annexure A/5 to the writ petition) before modifications arc contrary to the provisions of the Rules and are liable to be set aside and whether the petitioners and similarly situated persons, whose age are within the upper limit prescribed by the aforesaid Rules and the Government's orders, are entitled to be sponsored by the Employment Exchange authority to appear in the interview going to be held for the post of Assistant Teachers.
9. Considering the facts and circumstances of the case and the issue involved in the matter, this Court asked the learned Counsel appearing for the parties whether these writ petitions can he disposed of at the motion stage, and the answer was positive, hence, the present writ petitions arc taken up for disposal. This Court anxiously considers the rival contentions advanced by the learned Counsel for the parties and the records available before it including the memorandums after modifications, prescribing upper age limit and written test.
10. Mr. A. Nilmani, learned senior counsel of the petitioners, in support of his contention as seated above relied a decision in the case of District Collector & Chairman, Vizianagaram Social Welfare Residential School Society, Vizianagaram and Anr. v. M. Tripura Sundari Devi .
11. For better appreciation, it is necessary to place the relevant portion of the Rules indicated in column 6, is quoted below:
Recruitment Rules for the post of Primary Teachers in the Directorate of Education (Schools), Manipur.
35 years and below (upper age limit) is relaxable for Government servants appointment under the Government of Manipur to the extent of the period of continuous service and by 5 years for SC/ST candidates and a Government servant who belongs to SC/State Government will get the facility admissible to a Government servant in addition to the relaxation admissible to SC/ST candidates.
And the relevant portion of the letter issued by the C.E.O. dated 10.3.2006 (Annexure A/2) is quoted below:
1. Name of post : Primary teacher.
2. No. of post : 32 (thirty two). The said Post may be increased or deceased according to the actual vacancy.
3. Scale of pay : Rs. 4000-100-6000 PM.
4.(a) Essential qualifications : Higher secondary or pre-university (2 years course) or equivalent from a recognized University Board.
(b) Age : - 18-30 (5 years relaxation for SC/ST as prescribed by the Government of Manipur from time to time.
(c) Desirable : - (as per Recruitment Rules of the Government of Manipur and further Amendment, if any.)
12. From the prescriptions of aforesaid Rules, 1995 and the Government notification, it appears that the letter (Annexure A/2) and notification (Annexure-A/5) impugned are contrary to the Rules framed under Article 309 of the Constitution, and which is not tenable under law. Not only for decreasing the upper age limit by the C.E.O. of the council, the petitioners suffered, as well "as thousands of unemployed educated youths similarly situated, who are waiting for public employment under the Government or its undertaking or the council, are also suffered and deprived of their legitimate rights prescribed under the Constitution, as well as Government notification relating to upper age limit prescribed. If this Court allows the authority to complete the selection process without providing any opportunity either to the petitioners or to the unemployed youths who are waiting for the public employment after facing proper selection process, that will be an injustice to them and that will give the authority a free hand to proceed with their wrong and/or fraudulent action relating to public employment, which the court cannot.
13. This Court considers the case of District Collector & Chairman Vizianagaram (supra) wherein the Apex Court said that "it must further be realized by all concerned that when an advertisement mentions a particular qualification and an appointment is made in disregard of the same, it is not a matter only between the appointing authority and the appointee concerned. The aggrieved are all those who had similar or oven better qualifications than the appointee or appointees but who had not applied for the post because they did not possess the qualifications mentioned in the advertisement. It amounts to a fraud on public to appoint persons with inferior qualifications in such circumstances unless it is clearly stated that the qualifications are relaxable. No court should be a party to the perpetuation of the fraudulent practice. We are afraid that the Tribunal lost sight of this."
14. The facts of the case of the District Collector and Chairman (supra), though not similar to the facts of these cases in hand, but the principles laid down in that case are applicable as in the instant case also the petitioners and similarly situated persons could not apply for the post of Assistant Teacher as because their age were upper in limit than the age prescribed in the notification and of D.E.E.O. who could not sponsor their names though they were eligible as per Rules, 1995 as because the C.E.O. of the council mentioned in his letter the upper age limit as "18-30 (5 years relaxable for S.C/S.T.). It is admitted position that due to wrong action of the respondents, the petitioners and thousands of unemployed educated youths could not apply for the post of Assistant teachers for which a requisition was given by the authority to the District Employment Exchange as a result and they were deprived of their legitimate lawful rights and the entire action of the respondents amounts to be a fraud on public appointment system, as they prescribe a inferior qualification of age than the age prescribed by the Rules, 1995. The petitioners cannot be blamed by the respondents for seeking a writ of certiorari for setting aside the order impugned, which are totally inconsistent to the provisions of rules. The petitioners approached this court, though for their own interest, but if they are allowed by this Court as stated by the learned Counsel of the respondents, then thousands of other educated unemployed youths, who could not apply even having the qualifications required for the post of Asstt. Teachers, they will be deprived of their rights, due to wrong action of the respondent and such action of the authorities are violative of Article 14 of the Constitution. Therefore, it is the duty of the respondents to provide the opportunity to the petitioners as well as others, so that they can face the interview for which advertisement was issued. The aforesaid ease of the District Collector & Chairman (supra) was taken into consideration by the Apex Court in the case of Sandeep Kumar Sharma v. State of Punjab and Ors. . The actions of the respondents are nothing but a fraud on public employment system and an injury to the educated unemployed youths who are awaiting for an opportunity to get job. When some injuries are caused by the authority to the citizens, it is the duty of the court to rise and provide justice to those citizens, affected by the fraudulent action of the authority.
15. Considering the facts and circumstances of the case as well as submissions of the learned Counsel of the parties, it appears that the selection process has already been started and interview is going to be held very shortly, this Court cannot stall the selection process and allow an indefinite period for inviting applications from the eligible candidates though thousands of educated unemployed are awaiting and affected by the action of the respondent. Alter the modification/corrigendum issued by the authority, the upper age limit prescribed is consistent to the provisions of rules and as such it would be proper to allow the petitioners and thousands of unemployed youths whose names are not sponsored by the employment exchange authority to appear in the interview in question and if a direction is given to the Chief Executive Officer of the council to request the District Employment authority to sponsor names of qualified persons subsequent to the order of modification relating to upper age limit and written test for the post of Assistant Teacher. Accordingly, as agreed by the parties, this Court considers that it would meet the ends of justice if. the following orders are passed:
The C.E.O. of the Council, Chandel, respondent No. 2, is directed to write a letter to all the D.E.E.O. including the D.E.E.O., Chandel to invite applications from the eligible candidates who could not apply on earlier occasion due to wrong action of the authority for the posts of Assistant Teachers as advertised, within 3 days from the date of receipt of this order, and D.E.E.O. are directed to invite applications from the eligible candidates on the basis of subsequent modifications relating to upper age limit as well as written test and at the same time the C.E.O. is also directed to publish a notification, inviting applications from the eligible candidates prescribing upper limit of age as modified subsequently within 3 days from the date of receipt of this order through the daily newspaper "The Sangai Express" where the earlier notification was published. It is made clear that 7 days time may be allowed to the eligible candidates from the date of publication of the notification in the newspaper for submitting their applications for the post of Assistant Teachers. So far the petitioners arc concerned, it is not necessary for them to wait for further notification/advertisement, and inviting* applications by the sponsoring authority they can straightway apply either to the D.E.E.O. concerned or the C.E.O. of the Council with ten (10) days from the date of receipt of this order and the aforesaid authority arc directed to proceed with the selection process and accept their applications of the petitioners and also to allow them as well as similarly situated persons to sit in the interview in question if they are otherwise qualified and/or eligible for appearing in the interview.
16. With the aforesaid direction and observation; these writ petitions stands disposed of.