Gauhati High Court
WP(C)/3121/2020 on 23 March, 2021
Author: Michael Zothankhuma
Bench: Michael Zothankhuma
Page No.# 1/15
GAHC010106602020
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C) 3121/2020
Miss Kime Bobby,
D/o Kime Marpu,
'O' Point Tinali, Itanagar,
Papumpare District,
Arunachal Pradesh-791111. ......PETITIONER.
Versus
1. The Gauhati High Court,
Represented by the Registrar General,
Gauhati High Court, Guwahati (Assam).
2. The Registrar, Gauhati High Court,
Itanagar Permanent Bench, Naharlagun, Arunachal Pradesh.
......RESPONDENTS.
For the petitioner : Mr. P.D. Nair,
Mr. G. Alam,
Mr. N. Dangeen,
Mr. O. Duggong .... Advocates.
For the respondents : Mr. U.K. Nair ... Sr. Advocate
Mr. A. Chetri ... Advocate.
Page No.# 2/15
WP(C) 4601/2020
Phobing Gyati (Ex-System Analyst),
Son of Shri Gyati Tajang,
Village : Hari, P.O. and P.S. Ziro,
District-Lower Subansiri,
Arunachal Pradesh. ......PETITIONER.
Versus
1. The Gauhati High Court,
Itanagar Permanent Bench, Naharlagun, Arunachal Pradesh,
Represented by Registrar General, Gauhati High Court,
Guwahati (Assam).
2. The Registrar, Gauhati High Court,
Itanagar Permanent B ench, Naharlagun, Arunachal Pradesh.
......RESPONDENTS.
For the petitioner : Mr. M. Pertin.
Mr. K. Saxena .... Advocates.
For the respondents : Mr. U.K. Nair ... Sr. Advocate
Mr. A. Chetri ... Advocate.
BEFORE
HON'BLE MR. JUSTICE MICHAEL ZOTHANKHUMA
HON'BLE MR. JUSTICE MIR ALFAZ ALI
Date of hearing : 09.03.2021
Date of judgment : 23.03.2021
Page No.# 3/15
JUDGMENT & ORDER (CAV)
(Michael Zothankhuma, J).
Heard Mr. M. Pertin, learned counsel for the petitioner in WP(C) 4601/2020 and Mr. P.D. Nair, learned counsel for the petitioner in WP(C) 3121/2020. Also heard Mr. U.K. Nair, learned Standing Counsel for the respondent nos.1 and 2 assisted by Mr. A. Chetri, Advocate.
2. The issue in both the writ petitions pertains to direct recruitment to the vacant post of System Analyst in the Itanagar Permanent Bench of the Gauhati High Court. The writ petitioners in both the writ petitions were candidates for the said post. However, they have not made each other as party respondents in either of their writ petitions and as such, the names of the writ petitioners are being used in this common judgment and order. While Shri Phobing Gyati, who is the writ petitioner in WP(C) No.4601/2020, had secured the first position in the select list, Smt. Kime Bobby, who is the writ petitioner in the WP(C) 3121/2020, had secured the 2 nd position. The Gauhati High Court, represented by the Registrar General and the Registrar, Itanagar Permanent Bench, Gauhati High Court, Naharlagun are arrayed as respondent nos.1 and 2 respectively in both the writ petitions. As the writ petitions are inter-twined to some extent, they are both being disposed off by this common judgment and order.
3. The brief facts of the case is that in pursuant to an Advertisement dated 08.02.2018 issued by the Registrar of the Gauhati High Court, Itanagar Permanent Bench, Naharlagun, for filling up the post of System Analyst, Shri Phobing Gyati and Ms. Kime Bobby, amongst 124 candidates, took part in the selection process. The eligibility criteria for the post of System Analyst, as stipulated in the Advertisement dated 08.02.2018, required the candidates to possess the qualification of MCA with 2 years' experience or BE/B. Tech (Computer Science) with 2 years' experience or M.Sc., PGDCA with 3 years' experience or M.Tech (Computer Science). The Advertisement also stated that the last date for submission of the Page No.# 4/15 applications would be 28.02.2018.
4. The petitioner in WP(C) 4601/2020, Shri Phobing Gyati, at the time of submission of his application for the vacant post did not have the eligibility criteria required, as he was pursuing his 4th Semester in M.Tech (Computer Science). Despite the above, Admit Cards were issued to the candidates in February, 2019 including Shri Phobing Gyati and the written examination was held on 17.02.2019. The practical test was held on 23.03.2019 and interview held on 06.04.2019. Shri Phobing Gyati secured the highest marks i.e., 112.70, while Ms. Kime Bobby [petitioner in WP(C) 3121/2020] secured the second highest marks of 112.60 in the selection process. Consequently, Shri Phobing Gyati was appointed to the post of System Analyst vide order dated 28.05.2019 and he joined in the said post on the same date.
5. Ms. Kime Bobby thereafter submitted a representation dated 28.08.2019 to the respondents, questioning the appointment of Shri Phobing Gyati, on the ground that he did not have the eligibility criteria for being considered and appointed to the post of System Analyst. Ms. Kime Bobby also prayed that she should be considered for appointment to the said post as she was the next in line in the select list. Consequent upon the representation submitted by Ms. Kime Bobby, the respondent authorities issued a Show-Cause notice dated 26.11.2019 to Shri Phobing Gyati, asking him as to why his appointment should not be cancelled for not having the requisite educational qualification at the time of selection to the post of System Analyst. Shri Phobing Gyati replied to the show-cause notice and after examining the same, the respondents found the reply to be unsatisfactory. Shri Phobing Gyati was thereafter terminated from the post of System Analyst on the ground that he was not eligible to apply for the post of System Analyst on the last day of submission of applications, as prescribed in the Advertisement dated 08.02.2018.
6. That in reply to the representation made by Ms. Kime Bobby for appointment to the post of System Analyst in place of Shri Phobing Gyati, the respondents had written a letter dated 22.11.2019 to Ms. Kime Bobby, wherein it was stated that show cause notice had been Page No.# 5/15 issued to Shri. Phobing Gyati and that her prayer for appointing her to the post of System Analyst would be considered after conclusion of the process initiated regarding appointment of Shri. Phobing Gyati. Subsequent to the termination of Shri. Phobing Gyati, the Registrar (Administration)-cum-In/charge, Centralized Recruitment, Gauhati High Court issued a letter dated 01.06.2020 to Ms. Kime Bobby, stating that her prayer for appointment as System Analyst was "considered and rejected". The letter further states that a fresh process would be initiated for filling up the said post. No further explanation was given.
7. Shri Phobing Gyati has thus filed WP(C) 4601/2020 praying that the termination of his appointment vide letter dated 02.06.2020 should be set aside. The counsel for Shri Phobing Gyati submits that though Shri Phobing Gyati did not have the required educational qualification as per the Advertisement dated 08.02.2018, for consideration and selection to the post of System Analyst at the time he submitted his application, as he was studying in the 4th Semester of his M.Tech course, he attained the qualification of M.Tech (Computer Science) at the time the written examination/selection process started in the year 2019. The learned counsel for Shri Phobing Gyati submits that as Shri Phobing Gyati had joined his post on 28.05.2019 till his termination from service on 02.06.2020, the termination of Shri Phobing Gyati's service/appointment, on the ground that he did not have the requisite educational qualification, amounted to a misconduct and as the termination order was stigmatic in nature, he should have been terminated only after a departmental proceeding had taken place.
8. Mr. M. Pertin, the learned counsel for Shri Phobing Gyati submits that there was no suppression of the fact that Shri Phobing Gyati did not have the requisite educational qualification at the time he applied for the post and the same was also known to the respondents. However, as Shri Phobing Gyati has been allowed to take part in the selection process and as Shri Phobing Gyati had worked for sometime in the post of System Analyst, he should be allowed to continue in the post of System Analyst, by invoking the equity jurisdiction of this Court. In this regard he has relied upon the case of Babita Kalita vs. State of Assam and Others, reported in 2017 (3) GLT 394, which was disposed off by a Division Bench of this Court. He also submits that the Apex Court in the case of Sukh Bilash Thakur Page No.# 6/15 vs. Bihar State Electricity Board and Others, reported in (2019) 4 SCC 258, had interfered with the order of reversion though the appellant therein did not have the educational qualification for appointment to the feeder post, as the appellant had not secured the appointment by fraudulent methods or by suppressing facts. He submits that as Shri Phobing Gyati has not suppressed the fact that he did not have the educational qualification as per the advertisement, for appointment to the post of System Analyst at the time of submitting his application, this Court should also allow Shri Phobing Gyati to continue in his post of System Analyst, as Shri Phobing Gyati had in the meantime secured the educational qualification required for the post of System Analyst.
9. Mr. P.D Nair, learned counsel for Ms. Kime Bobby, who is the petitioner in WP(C) 3121/2020, submits that while Shri Phobing Gyati secured the 1 st position in the selection process as he was awarded 112.70 marks, Ms. Kime Bobby was awarded 112.60 marks, thereby securing the 2nd position. Thereafter on coming to learn that Shri Phobing Gyati did not have the eligibility criteria for being considered and selected for the post of System Analyst on the last date of submission of the applications in terms of the Advertisement dated 08.02.2018, Ms. Kime Bobby had then made a representation dated 28.08.2019 to the respondent authorities. In the said representation dated 28.08.2019, Ms. Kime Bobby also prayed that she should be appointed to the post of System Analyst in place of Shri Phobing Gyati.
10. Mr. P.D Nair submits that as Shri Phobing Gyati was ineligible to be considered and selected, his appointment to the post of System Analyst was illegal and void. He submits that the selection process for filling up the post of System Analyst could not be said to be completed as the vacancy had been illegally filled up. The appointment of Shri Phobing Gyati being void, it could not be said that a future vacancy arose in respect of the said post, on termination of the void appointment of Shri Phobing Gyati. The same did not create a subsequent vacancy, as the vacancy was a subsisting vacancy. In support of his submissions, the learned counsel for Smt. Kime Bobby has relied upon the judgment of the Apex Court in
(i) Rajbala Vs. Union of India & Ors., reported in (2015) 13 SCC 92 (ii) Chariman cum Page No.# 7/15 Managing Director Indian Oil Corporation Ltd. & Ors. Vs. Sunita Kumari & Anr., reported in (2014) 16 SCC 790 and (iii) Inderpreet Singh Kahlon & Ors. Vs. State of Punjab & Ors., reported in (2006) 11 SCC 356.
11. Mr. U.K. Nair, learned senior counsel appearing for the respondents submits that Shri Phobing Gyati did not have the eligibility criteria for being considered for the post of System Analyst on the last date of submission of the applications, in terms of the Advertisement dated 08.02.2018. Accordingly, the service of Shri Phobing Gyati was terminated as he could not have been selected and appointed to the said post. He also submits that Smt. Kime Bobby had initially challenged the composition of the selection committee and called for a fresh selection process which was rejected by the respondents. In respect of the prayer made by Ms. Kime Bobby for appointment to the post of System Analyst, the learned Senior Counsel submits that on the appointment of Shri Phobing Gyati on 28.05.2019, the select list got extinguished and the future vacancy that arose with the termination of service of Shri Phobing Gyati, has to be filled up by way of a fresh selection. He submits that a fresh advertisement will be published in this regard. In support of his submission, he has relied upon the judgment of the Apex Court in the case of Rakhi Ray and Others vs. The High Court of Delhi and Others, reported in (2010) 2 SCC 637.
12. We have heard the counsels for the parties.
13. In the case of Rekha Chaturvedi vs. University of Rajasthan, reported in 1993 Supp.(3) SCC 168, the Apex Court held that in the absence of a fixed date indicated in the advertisement/notification inviting applications with reference to which the requisite qualifications should be judged, the only certain date for the scrutiny of the qualifications will be the last date for making the applications.
14. In the case of Sukh Bilash Thakur (supra), the Apex Court held the order of reversion from a higher post to Bill Clerk to be highly unjust, inequitable and arbitrary, on account of the fact that the appellant therein had been appointed to the post of Bill clerk 25 years Page No.# 8/15 earlier, without the appellant having the requisite qualification to be appointed as Bill Clerk. It was in the above context of the appellant already having held the post of Bill Clerk for 25 years without having the requisite qualification, that the decision of the Apex Court had been made, holding that the promotion of the appellant could not have raked up the issue of illegality of the appellant's initial appointment.
15. In the case of Babita Kalita (supra), the appellant had applied for the post of Hindi teacher in pursuance to an advertisement issued in the year, 1996. Though the appellant was eligible for appointment to the post of Hindi teacher, the respondents had appointed the appellant to the post of Assistant teacher for which she was not having the eligibility criteria. However, by the time the selection process had concluded, i.e. after 4 (four) years, the appellant had acquired the requisite qualification. The appellant was thereafter appointed to the post of Assistant Teacher in the year 2001. On coming to learn that the appellant did not have the requisite qualification for appointment as Assistant teacher, the appointment was recalled. The Court noted the fact that the appellant did not hide the fact that she did not have the requisite qualification for the post of Assistant teacher, inasmuch as, the appellant had applied for the post of Hindi teacher only, for which she had the requisite qualification. However, the respondents had appointed the appellant to a post she had not applied for. Thereafter, numerous litigations ensued and the appellant was allowed to carry on in her post of Assistant teacher on the strength of interim orders by the Court from the year, 2001 till the issue was finally decided on 25.05.2017, except for a brief period in the year 2001 when her appointment had been withdrawn. The Division Bench held that despite the apparent illegality in the appointment of the appellant, the question which primarily fell for consideration was whether the equity jurisdiction of the Court could be invoked to save her appointment and her continuance in service as Assistant Teacher. Having regard to the peculiar facts involved in the case, the Division Bench invoked it's equity jurisdiction as the appellant had been appointed as Assistant Teacher by the respondents, even though she had applied only for the post of Hindi teacher. As such, no fault could be attributed to the appellant. Further, the equity jurisdiction had been invoked by the Division Bench in Babita Kalita (supra) by following the judgment of the Apex Court in the case of Rekha Chaturvedi Page No.# 9/15 (Smt.) vs. University of Rajasthan and Others, 1993 supp. (3) SCC 168 and in the case of Roshni Devi and Others vs. State of Haryana and Others, reported in 1998 (8) SCC 59, wherein the appointed persons, had been working for more than 8 and 9 years respectively. In the case of Rekha Chaturvedi (supra), a person who did not have the requisite qualification on the last date of filing applications had been appointed. However, as the appointed person had been working for 8 years, the equity jurisdiction was invoked. In the case of Roshni Devi (supra), appointments had been made through a recruitment which was found invalid. However, as the appointed person had been working for more than 9 (nine) years, the appointment was not interfered with by invoking the equity jurisdiction.
In the present case, Shri Phobing Gyati worked for just about a year prior to his service being terminated i.e., from 28.05.2019 till 02.06.2020. However, show cause notice dated 26.11.2019 had been issued to Shri Phobing Gyati just six months after his appointment.
16. It is settled law that a judgment is only a decision for what it decides and not what logically follows from it. A little difference in facts can change the precedential value of a judgment. In the case of Deepak Bajaj Vs. State of Maharashtra & Anr., reported in (2008) 16 SCC 14, the Apex Court has held that it is well settled that the judgment of a court is not to be read mechanically as a Euclid's theorem nor as if it was a statute. In the present case, the respondents having coming to know on 28.08.2019, on the basis of the representation submitted by Smt. Kime Bobby that Shri. Phobing Gyati did not have the eligibility criteria for selection and appointment to the post of System Analyst, Show cause notice was issued on 26.11.2019 and the service of Shri. Phobing Gyati was terminated on 02.06.2020. Thus, it cannot be said that Shri. Phobing Gyati had worked for a long time, when compared to the person who had worked in the case of Babita Kalita (supra).
17. In the case of Rakesh Kumar Sharma Vs. Government (NCT of Delhi), reported in (2013) 11 SCC 58, the Apex Court has taken note of the various judgments of the Apex Court, wherein it has been held that the eligibility of a person would have to be decided as on the cut off date for filing of applications appointed in the advertisement. Further, the three Page No.# 10/15 Judges Bench in Ashok Kumar Sharma Vs. Chander Shekhar, reported in (1997) 4 SCC 18 has observed as follows:-
"The proposition that where applications are called for prescribing a particular date as the last date for filing the applications, the eligibility of the candidates shall have to be judged with reference to that date and that date alone, is a well-established one. A person who acquires the prescribed qualification subsequent to such prescribed date cannot be considered at all. An advertisement or notification issued/published calling for applications constitutes a representation to the public and the authority issuing it is bound by such representation.
It cannot act contrary to it. One reason behind this proposition is that if it were known that persons who obtained the qualifications after the prescribed date but before the date of interview would be allowed to appear for the interview, other similarly placed persons could also have applied. Just because some of the persons had applied notwithstanding that they had not acquired the prescribed qualifications by the prescribed date, they could not have been treated on a preferential basis. Their applications ought to have been rejected at the inception itself. This proposition is indisputable and in fact was not doubted or disputed in the majority judgment." (Emphasis added) In view of the above, the stand taken by the counsel for Shri. Phobing Gyati that Shri Phobing Gyati should be allowed to continue in service, as he had the required eligibility criteria prior to the written test and selection process having started, cannot be allowed as the same is not permissible in terms of the judgment of three Judges Bench of the Apex Court in Ashok Kumar Sharma (Supra).
18. In the case of Rakesh Kumar Sharma Vs. Government (NCT of Delhi) (Supra), the Apex Court held that there is no obligation on the court to protect an illegal appointment. The extraordinary power of the court should be used only in an appropriate case to advance the cause of justice and not to defeat the rights of others or create arbitrariness. Usurpation of a post by an ineligible candidate in any circumstance is impermissible. We are thus not inclined to invoke the equity jurisdiction of this Court in view of the law laid down in Ashok Kumar Sharma (Supra) and Rakesh Kumar Sharma (Supra).
19. In view of the above reasons, the prayer made by Shri. Phobing Gyati to allow him to continue in the post of System Analyst by invoking the equity jurisdiction of this Court is rejected.
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20. The next question that arises for consideration is as to whether Ms. Kime Bobby should be appointed to the post of System Analyst, as the service of Shri. Phobing Gyati had been terminated on the ground that he did not have the eligibility criteria for being considered for the post and as his appointment was an illegal appointment. The stand taken by the respondents is that as Shri Phobing Gyati had been appointed to the said post on 28.05.2019, the select list got extinguished. Thus the post had to be filled up by way of a fresh selection process to be made in pursuant to a fresh advertisement to be published. In this respect, the respondents have relied upon the judgment of the Apex Court in Rakhi Ray & Ors. Vs. The High Court of Delhi & Ors. (Supra), wherein it has been held that any appointment made beyond the number of vacancies advertised is without jurisdiction, being violative of Article 14 & 16(1) of the Constitution of India. The Apex Court further held that appointment made in excess of the notified vacancies would be a nullity, inexecutable and unenforceable in law. The Apex Court thus held that when the notified vacancies stood filled up, the process of selection comes to an end as the select list gets exhausted and the waiting list etc. cannot be used as a reservoir to fill up vacancies which came into existence after the issuance of the advertisement. The Apex Court thus held that the unexhausted select list/waiting list becomes meaningless and cannot be pressed into service any more.
The observation made by the Apex Court in Rakhi Ray (Supra) was made in the facts and circumstances of that case, as the appellants had claimed selection on the basis of future vacancies that arose, while the advertisement was for filling up of only 20 vacancies. The High Court had directed the respondents to process their selection for the vacancies that had arisen after the advertisement had been issued. It was in the above context that the Apex Court had held that once the notified vacancies were filled up, the selection process came to an end, as the select list stood exhausted. It should also be noted that the question of ineligible candidates being appointed to a notified vacancy was never an issue in Rakhi Ray (supra).
21. The facts in the present case is different. The question is whether the select list could be said to have been revived or whether it was extinguished in the first place, if the Page No.# 12/15 appointment made was an illegal/void appointment, inasmuch as, the person who was selected and appointed could not have been selected in the first instance due to his ineligibility. Though there is no quarrel with the proposition that once appointments are made the select list gets exhausted, the said proposition may pertain only to an appointment made in respect of an eligible candidate and not an ineligible candidate.
22. In the case of State of Punjab Vs. Raghbir Chand Sharma, reported in (2002) 1 SCC 113, the Apex Court examined the case where only one post was advertised and the candidate whose name appeared at Serial No. 1 in the select list joined the post, but subsequently resigned. The Apex Court rejected the contention that the post can be filled up by offering the appointment to the next candidate in the select list by observing that with the appointment of the first candidate, the select panel ceased to exist as it had outlived its utility. It further held that no one else in the panel can legitimately contend that he should have been offered appointment to the vacancy arising on account of the subsequent resignation of the person appointed from the panel.
On considering the above case, it is seen that the person who was selected and appointed was eligible to be appointed to the said post. The difference in the facts with this case is that Shri Phobing Gyati was ineligible to be selected and appointed.
23. In the case of Raj Bala Vs. Union of India & Ors., reported in (2015) 13 SCC 92, the issue was with regard to inviting applications for distributorship of indane. The distributorship was awarded to the 7th respondent, who was ineligible to be considered for the distributorship. A challenge was made by the appellant and the Apex Court held that due to the ineligibility of the 7th respondent, who was placed first in the merit list, the distributorship ought to have been awarded to the appellant, who was 2 nd in the merit list. A similar observation had been made in the case of Chairman-cum-Managing Director Indian Oil Corporation Ltd. & Ors. Vs. Sunita Kumari & Anr., reported in (2014) 16 SCC 790. The issue herein was again with regard to the allotment of Dealership/Distributorship for petroleum products. This Court is of the view that the facts in the case of Raj Bala (Supra) and Page No.# 13/15 Chairman-cum-Managing Director Indian Oil Corporation Ltd. & Ors. (Supra) are not similar to the facts in this case as the above cases are with regard to allotment of distributorship of Indane/petroleum products, while the issue here is in relation to appointment to a post, where different considerations and parameters have to be looked into. Accordingly, we are of the view that the decisions made therein would not apply to the facts of this case.
24. In Surinder Singh Vs. State of Punjab, reported in (1997) 8 SCC 488, the Apex Court held that the waiting list is operative only for a contingency that if any of the selected candidates do not join, then the person from the waiting list may be pushed up and be appointed in the vacancy so caused, or if there is some extreme exigency, the Government may as a matter of policy decision pick up persons in order of merit from the waiting list. In the case of Shankarsan Dash Vs. Union of India, reported in AIR 1991 SC 1612, the Apex Court has held that successful candidates do not acquire any indefeasible right to be appointed to notified vacancies. The same can be legitimately denied for reasons which are not arbitrary. The decision not to fill up the vacancies has to be taken bona fide for appropriate reasons. Though there has been a submission that there is no right to be appointed against the vacancy caused by the termination of Shri Phobing Gyati, the facts as stated, clearly show that the appointment of Shri Phobing Gyati was an illegal appointment and it is not the case of the respondents that they are not intending to fill up the said vacant post.
25. In the case of Inderpreet Singh Kahlon & Ors. Vs. State of Punjab & Ors., reported in (2006) 11 SCC 356, the Apex Court has held that when an appointment has been made not in terms of the Rules, but in view of the commission of illegality in the selection process involved, the same would be void and a nullity, as it would be in violation of Article 14 & 16 of the Constitution.
26. In the case of State of Gujarat and Others vs. Arvindkumar T. Tiwari and Another, reported in (2012) 9 SCC 545, the Apex Court has held that a person who does not possess the requisite qualification cannot even apply for recruitment, for the reason that his Page No.# 14/15 appointment would be contrary to the statutory rules, and would therefore, be void in law. The Apex Court further held that lacking eligibility for the post cannot be cured at any stage and appointing such a person would amount to a serious illegality and not mere irregularity. Such a person cannot approach the Court for any relief as he does not have a right that can be enforced through Court.
27. It is clear to us that though Shri. Phobing Gyati did not have the eligibility criteria for being considered for appointment at the time of submission of his application, the carelessness of the respondents, has allowed Shri. Phobing Gyati to participate in the selection process. As the Apex Court has held in the case of State of Gujarat and Others vs. Arvindkumar T. Tiwari (supra) that appointment of a person, who does not have the requisite qualification, is a void appointment, we hold that the appointment of Shri Phobing Gyati to the post of System Analyst is an illegal and void appointment. We are also of the view that a select list stands revived if the illegal and void appointment order is detected early and the same is cancelled/terminated within a short period of time.
28. In the case of Purushottam Vs. Chairman, M.S.E.B. and Another, reported in (1999) 6 SCC 49, the Apex Court had to deal with an issue wherein the appellant was not appointed to the post of Assistant Personal Officer meant for a schedule tribe category, though he was selected for the said post. The Caste Scrutiny Committee on verification gave its decision that the appellant did not belong to the schedule tribe category notwithstanding his selection for the post in question. The order of Scrutiny Committee was challenged in the High Court and the High Court came to the conclusion that the appellant belonged to the "Halba Caste" and therefore, he was illegally kept out of his employment. The High Court thereafter directed the Maharashtra Electricity Board to consider the case of the appellant for appointment. Despite the above, the appellant was not appointed on the ground that in the meantime, somebody else was appointed to the post and as such, there was no vacancy. The question that arose for consideration was, whether a duly selected person for being appointed and illegally kept out of employment, could be denied the said appointment on the ground that the panel had expired in the meantime. The Apex Court held that the right of the appellant to be appointed Page No.# 15/15 against the post to which he had been selected cannot be taken away on the pretext that the said panel has in the meantime expired and the post has already been filled up by somebody else. The Apex Court further held that usurpation of the post by somebody else was not on account of any defect on the part of the appellant, but on the erroneous decision of the employer himself. A direction was thereafter passed to appoint the appellant to the post for which he had been duly selected.
29. Though the facts of the case in Purushottam (supra) is slightly different from the facts of this case, there is a certain similarity, inasmuch as, there has been usurpation of the vacant post by the void appointment of an ineligible person, which, on the basis of the marks secured in the selection process, should have been filled up by Ms. Kime Bobby. The facts in the present case clearly show that it was due to the fault of the respondents that Shri. Phobing Gyati had been allowed to participate in the selection process. We are thus of the opinion that the right of Ms. Kime Bobby to be selected for the post has been illegally taken away by way of a void appointment and as such, the right of Ms. Kime Bobby under Article 14 & 16 of the Constitution has been violated. We are also of the view that if appointment is made of an ineligible candidate, the appointment being illegal and void, was rightly terminated without any need of a departmental proceeding.
30. In view of the reasons stated above, we are of the view that Ms. Kime Bobby being second in the select list, she would have to be given appointment to the vacant post of System Analyst.
31. Accordingly, WP(C) No. 4601/2020 is dismissed, while WP(C) No. 3121/2020 stands allowed.
JUDGE JUDGE Comparing Assistant