Meghalaya High Court
Shri. Steve Austin Syiem Malngiang vs The State Of Meghalaya And Anr on 3 June, 2014
Author: T Nandakumar Singh
Bench: T Nandakumar Singh
THE HIGH COURT OF MEGHALAYA
WP(C) No.39/2014
Shri. Steve Austin Syiem Malngiang,
S/o (L) E Nongrum,
R/o Lawsohtun Block II,
Shillong, East Khasi Hills District,
Meghalaya. :::: Petitioner
-Vs-
1. The State of Meghalaya
represented by Secretary Education Department,
Govt. of Meghalaya, Shillong.
2. Director of Higher & Technical Education,
Govt. of Meghalaya, Shillong. :::: Respondents.
BEFORE
THE HON'BLE MR JUSTICE T NANDAKUMAR SINGH
For the Petitioner : Dr. ODV Ladia, Adv
For the Respondents : Mr. S Sen Gupta, GA
Date of hearing : 03.06.2014
Date of Judgment & Order : 03.06.2014
JUDGMENT AND ORDER(ORAL)
Heard Dr. ODV Ladia, learned counsel for the petitioner as well
as Mr. S Sen Gupta, learned GA appearing for the State respondents.
2. The petitioner has all the eligibility criteria for appointment to
the post of Peon. It is also stated in the writ petition that the petitioner passed
the Higher Secondary Leaving Certificate Examination in the year 2004 in 2nd
Division and the petitioner also had successfully completed the course in
shorthand and type writing in the year 2008 and the Principal of the
Page 1 of 9
Meghalaya Type Writing Institute New Kench's Trace, Shillong issued a
certificate dated 31.07.2008 that the petitioner had successfully completed
shorthand and type writing course.
3. Vide Office Order No.DHTE/ESTT/ALT/6/87/338 dated
29.07.2008, the petitioner was appointed as officiating typist in place of
Smti.B Kurkalang, who was temporarily promoted to the higher post and his
officiating appointment was further extended from time to time by different
orders viz. order dated 29.10.2008, 17.01.2009, 22.04.2009 and 16.07.2009
respectively. Later on, the petitioner was appointed as casual employee vide
order dated 19.05.2011; and the terms of his appointment as casual
employee had been extended on different extension orders viz. order dated
28.01.2010, 29.04.2010, 31.05.2010, 29.06.2010, 26.08.2010, 20.10.2010,
20.12.2010, 01.03.2011 and 13.04.2011. On 11.02.2011, the Director of
Higher & Technical Education, Meghalaya, Shillong had issued an
advertisement dated 11.02.2011 for filling up of one post of Peon in the
Office of the Director of Higher & Technical Education, Meghalaya, Shillong.
In response to the said advertisement dated 11.02.2011, the petitioner and
others had filed the applications for the said post of Peon. The screening
test/personal interview of the candidates for the said post of Peon was held
on 24.02.2011 in the Office of the Directorate of Higher & Technical
Education, Meghalaya, Shillong. The result of the screening test/personal
interview was published. In that result, the name of the petitioner appeared at
Srl.No.5 in order of merit. The names of the five top candidates in the merit
list and also their respective marks obtained in the screening test/personal
interview are as follows:-
Page 2 of 9
"EVALUATION SHEET
Screening Test/Personal Interview for the selection of Peon in
Directorate of Higher and Technical Education
held on the 24th February, 2011.
Sl. Name of the Candidate Educational Qualification (10 Experience Suitability Knowledge Total Remarks
No. marks for B.A.,
8 marks for P.U.C.,
6 marks up to SSLC and 4
marks for Class VIII to X
10 10 10 20 50
Classes SSLC HSSLC BA
VIII-X
1. Smti. Lakyntiew Dor 8 1 8 18 35 1st
Syiemiong Appointed
**** **** **** **** **** **** **** **** **** ****
6. Smti.Dapyngad Bha 10 - 7 16 33 4th
Bareh Appointed
Sl. Name of the Candidate Educational Qualification (10
No. marks for B.A.,
8 marks for P.U.C., Experience Suitability Knowledge Total Remarks
6 marks up to SSLC and 4
marks for Class VIII to X
10 10 10 20 50
Classes SSLC HSSLC BA
VIII-X
**** **** **** **** **** **** **** **** **** ****
8. Shri.Bashongbor E.L. 6 2 8 18 34 2nd
Mawphlang Appointed
Sl. Name of the Candidate Educational Qualification (10
No. marks for B.A.,
8 marks for P.U.C., Experience Suitability Knowledge Total Remarks
6 marks up to SSLC and 4
marks for Class VIII to X
10 10 10 20 50
Classes SSLC HSSLC BA
VIII-X
**** **** **** **** **** **** **** **** **** ****
15 Shri.Steve Austin 8 2 6 14 30 5th
Syiem Malngiang
(Petitioner)
Sl. Name of the Candidate Educational Qualification (10
No. marks for B.A.,
8 marks for P.U.C., Experience Suitability Knowledge Total Remarks
6 marks up to SSLC and 4
marks for Class VIII to X
10 10 10 20 50
Classes SSLC HSSLC BA
VIII-X
**** **** **** **** **** **** **** **** **** ****
30. Shri.Vicarius Khyllep 6 1 8 18.5 33.5 3rd
Appointed
Page 3 of 9
4. It is an admitted case of the parties that four candidates whose
names appeared in the said select list Nos.1-4 in order of merit had already
been appointed as Peon in the Office of the Directorate of Higher &
Technical Education, Meghalaya, Shillong. This fact is also clear from the
information furnished by the Directorate of Higher & Technical Education,
Meghalaya on an application filed by the petitioner under RTI Act, 2005 (a
copy of the information is available at pg.72 of the writ petition) and it reads
as follows:-
"Information under RTI Act 2005 sought by
Shri Steve Austin Syiem Malngiang officiating Peon
1. There are 19 posts of Grade - IV
2. 1 (one) vacant post on retirement of Shri. T.Kharkongor on
31.09.2013
3. Advertised vide No. DHTE/ESTT/MISC-10/98/115
dt. 11.02.2011 (copy enclosed).
4. 2 (two) times copy enclosed (1) extended for 1
(one) year up to 24.03.2013 (2) again extended
from 25.03.2013 to 24.03.2014 (copy enclosed).
5. 10 (ten) successful candidates copy enclosed.
6. 4 (four) they are:-
(a) Smt. L.Syiemiong 1st
(b) Shri. Bashongdor Lyngdoh Mawphlang 2nd
(c) Smti. Dapyngad Bha Bareh 4th
(d) Shri. Vicarius Khyllep 3rd
7.
(a) Smt. L.Syiemiong 04.04.2011 (1st)
(b) Shri. Bashongdor Lyngdoh Date of
Mawphlang 04.04.2011(2nd) their
(c) Smti. Dapyngad Bha Bareh 02.05.2011 (4th) Joining
(d) Shri. Vicarius Khyllep 02.04.2012 (3rd)
8.
(a) Smt. L.Syiemiong 20.08.1987 Date
(b) Shri. Bashongdor Lyngdoh Mawphlang 24.05.1990 of
(c) Smti. Dapyngad Bha Bareh 27.02.1989 birth
(d) Shri. Vicarius Khyllep 15.11.1988
Page 4 of 9
9. File noting relating to the above recruitment copy enclosed.
Director of Higher & Technical Education,
Meghalaya, Shillong.
5. It is also an admitted case of the parties that under the different
orders of the Director of Higher & Technical Education, Meghalaya the
validity period of the select list of the candidates in which the name of the
petitioner appeared at Srl.No.5 for appointment to the post of Peon had been
extended from time to time. Under the extension order dated 30.03.2013
issued by the Director of Higher & Technical Education, Meghalaya the
validity period of the select list was extended up to 24.03.2014 (Annexure-XV
to the writ petition) in respect of Srl.Nos.5, 6, 7, 8, 9 & 10 only and the
petitioner's name appeared at Srl.No.5. For easy reference, the said order of
the Director of Higher & Technical Education, Meghalaya, Shillong dated
30.03.2013 is quoted hereunder:-
"OFFICE OF THE DIRECTOR OF HIGHER AND TECHNICAL EDUCATION
MEGHALAYA ::::: SHILLONG
O R D E R
The Result of the Personal Interview for recruitment to the post of Peon in the office of the Director of Higher & Technical Education held on 24.02.2011 is hereby extended for a further period of 1(one) year with effect from 25.03.2013 to 24.03.2014 in respect of serial No.5,6,7,8,9 and 10 only.
This has the approval of the undersigned.
Sd/- L.R. Sangma, Director of Higher & Technical Education, Meghalaya ::::: Shillong."
Page 5 of 9
6. The present writ petition in which the petitioner seeks for a direction to the respondents to appoint him in the vacant post of Peon was filed on 21.02.2014 i.e. within the validity period of the concerned select list in which the name of the petitioner appeared at Srl.No.5.
7. Mr. S Sen Gupta, learned GA appearing for the respondents contended that as on today, the validity period of the select list had already been expired and as such, question of issuing direction to the respondents to appoint the petitioner after the expiry of the validity period of the select list does not arise. To the contra, Dr.ODV Ladia, learned counsel for the petitioner contended that since the writ petition had been filed during the validity period, the relief sought for in the present writ petition cannot be denied only on the ground that the validity period had expired during the pendency of the present writ petition. In support of his contention, Dr. ODV Ladia, learned counsel for the petitioner had placed heavy reliance on the decision of the Apex Court in State of U.P. v. Ram Swarup Saroj: (2000) 3 SCC 699, in which the Apex Court held that:
"10. Similarly, the plea that a list of selected candidates for appointment to the State services remains valid for a period of one year only is primarily a question depending on facts and yet the plea was not raised before the High Court. Secondly, we find that the select list was finalized in the month of November 1996 and the writ petition was filed by the respondent in the month of October 1997, i.e., before the expiry of one year from the date of the list. Merely because a period of one year has elapsed during the pendency of litigation, we cannot decline to grant the relief to which the respondent has been found entitled by the High Court. We may place on record that during the course of hearing of the SLP before this Court, on 29-9-1999 we had directed the learned Additional Advocate General for the State of U.P. to bring on record on affidavit the status of present recruitment of the judicial officers and the present vacancy position in the subordinate judiciary. In the affidavit of the Joint Secretary, Department of Appointment, State Government, Uttar Pradesh sworn in on 4-11-1999 and filed before this Court it is stated that as on 14-10-1999 there were 231 vacancies existing in the cadre of Munsif Magistrate (now Civil Judge, Junior Division/Judicial Magistrates). That Page 6 of 9 being the factual position we see no reason why the direction made by the High Court should be upset in an appeal preferred by the State of Uttar Pradesh."
8. Dr. ODV Ladia, learned counsel for the petitioner also referred to the other decisions of the Apex Court in different cases wherein, the Apex Court held that merely because the validity period has elapsed during the pendency of the litigation, the Court cannot decline to grant the relief to which the writ petitioner has been found entitled by the High Court. In the said information furnished by the Director of Higher Education, Meghalaya, Shillong on an application under the RTI Act, 2005 filed by the petitioner, it is clearly indicated that one vacancy in the post of Peon had been arisen on the retirement of Shri. T. Kharkongor on 31.09.2013.
9. The respondents filed joint affidavit-in-opposition wherein, the respondents had not denied that the validity period of the select list of the candidates in which the name of the petitioner appeared at Srl.No.5 had been extended up to 24.03.2013 and also during that extended period, one vacancy in the post of Peon had been arisen on 31.09.2013.
10. It is now fairly well settled law 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. It is also fairly well settled that when there is a vacancy which can be offered to a selected candidate on the basis of his merit position, denial of appointment to him without a proper reason held unjustified. In the present case, merely because the petitioner is a selected candidate has no vested right to be appointed in the said vacancy; and however, the respondents cannot simply deny the appointment of the petitioner even if Page 7 of 9 there is a vacancy during the validity period of the select list without any proper reason. The Apex Court in R.S. Mittal v. Union of India: 1995 Supp (2) SCC 230 held that:
"10. ......... It is no doubt correct that a person on the select panel has no vested right to be appointed to the post for which he has been selected. He has a right to be considered for appointment. But at the same time, the appointing authority cannot ignore the select panel or decline to make the appointment on its whims. When a person has been selected by the Selection Board and 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 a justifiable reason to decline to appoint a person who is on the select panel. In the present case, there has been a mere inaction on the part of the Government. No reason whatsoever, not to talk of a justifiable reason, was given as to why the appointments were not offered to the candidates expeditiously and in accordance with law. The appointment should have been offered to Mr. Murgad within a reasonable time of availability of the vacancy and thereafter to the next candidate. ........."
11. In the present case, the candidates whose names in Srl.Nos. 1-4 in the select list had already been appointed by the respondents after extending the validity period of the select list. But the respondents had not considered the appointment of the petitioner to the said vacancy which had been indicated above and also had arisen during the validity period of the select list. Keeping in view of the decision of the Apex Court considered above and also there is a vacancy in the post of Peon during the validity period of the select list in which the petitioner's name appeared at Srl.No.5 and also the fact that the other candidates whose names appeared at Srl.Nos.1-4 had already been appointed, this writ petition is disposed of by directing the respondents to consider the case of the petitioner for appointment to the post of Peon against the said vacancy post which had been indicated above. The whole exercise should be completed within a Page 8 of 9 period of three months from the date of receipt of a certified copy of this judgment and order.
12. Writ petition is allowed to the extent indicated above.
JUDGE Lam Page 9 of 9