T. Nandakumar Singh, J.@mdashIn this writ petition, petitioners six in numbers, who are the selected candidates are praying for a direction to the State respondents to appoint them in the posts of Lower Division Assistant (for short ''LDA'') in the manner the respondents No. 40, 41 and 69 had been appointed in the posts of LDA after the expiry of the valid period of the select list or quashing the appointments orders of all the private respondents in the posts of LDA beyond the number of posts advertised in the advertisement dated 04.06.2008.
2. Heard Mr. S.P. Mahanta, learned senior counsel assisted by Mr. A.K. Agrawal, learned counsel appearing for the petitioners, Mr. K. Khan, learned Addl. Sr. GA appearing for the State respondents and Mr. S. Sen Gupta, learned counsel for the respondents No. 7-71.
3. The fact of the case of the petitioners as well as the respondents in the present writ petition is briefly noted. The petitioners are the members of Scheduled Tribe Communities of Khasi-Jaintia. The Meghalaya Public Service Commission (for short ''MPSC''), Shillong issued an advertisement being No. MPSC/ADVT/38/1/2008-2009/1 dated 04.06.2008 inviting applications for recruitment to 32 posts of LDA in the Meghalaya Secretariat. In para 3 of the advertisement, it is clearly mentioned that the number of posts indicated in the advertisement is tentative and subject to change at the time of actual recruitment and the upper age limit is relaxable by five years for ST/SC candidates and also stated in the advertisement that the reservation of posts for handicapped and sports persons in Meghalaya shall be made within the existing percentage of reservation of posts in the categories of Khasi, Jaintia and Garo. In response to the advertisement dated 04.06.2008, the petitioners and others applied for the said posts of LDA.
4. The Principal Secretary to the Govt. of Meghalaya under his letter dated 16.06.2011, informed the Chairman, MPSC that the likely vacancies available taking into consideration the existing and arising in the near future is 115 and requested to take necessary action accordingly. After receiving the said letter dated 16.06.2011, the MPSC had conducted recruitment test i.e. interviews of the candidates from 11th - 15th July, 2011 for the said posts of LDA in the Meghalaya Secretariat, Shillong. The MPSC vide Notification No. MPSC/D-78/1/2007-2008/29 dated 16.07.2011 published/declared the list of the successful candidates recommended by the Commission in order of merit for appointment to the posts of LDA in the Meghalaya Secretariat, Shillong. The said Notification dated 16.07.2011 for publishing the list of the selected candidates for the posts of LDA had mentioned that the inclusion of the candidates'' names in the select list shall confer no claim for appointment unless the appointing authority is satisfied after such inquiry as may be considered necessary that the candidate is suitable in all respects subject to availability of vacancies. In the present case, as the date of publication of the select list is important, for deciding the important issue as to the valid period of the select list, the said notification of the MPSC dated 16.07.2011 (Annexure-2 to the writ petition) is quoted hereunder:-
"MEGHALAYA PUBLIC SERVICE COMMISSION
SHILLONG
No. MPSC/D-78/1/2007-2008/29 Dated the 16th July, 2011
NOTIFICATION
The result of the interviews conducted by the Commission from 11th - 15th July, 2011 for recruitment to the post of Lower Division Assistant in the Meghalaya Secretariat have been declared, the following are the names of the successful candidates recommended by the Commission in order of merit.
The inclusion of the candidates'' names in this list shall confer no claim for appointment unless the appointing authority is satisfied after such inquiry as may be considered necessary, that the candidate is suitable in all respects subject to availability of vacancies.
Sd/-
Chairman,
Meghalaya Public Service Commission, Shillong
Memo No. MPSC/D-78/1/2007-2008/29-A Dated 16th July 2011
Copy forwarded for information to:
1. Chairman/Member, MPSC.
2. Secretary, MPSC
3. The Officer on Special Duty, MPSC Cell, Tura
4. The State Informatics Officer, NIC, Shillong"
In the said select list dated 16.07.2011, the names of the petitioners appeared at serial number 58, 60, 62, 63, 64 and 65 respectively.
5. On the recommendation of the MPSC, the State respondents vide impugned office order dated 27.10.2011 under Memo No. SAE.20/2008/327-A issued by the Under Secretary to the Govt. of Meghalaya, Secretariat Administration Department (Estt) appointed 77 (seventy seven) candidates from the merit list dated 16.07.2011 as LDAs in the Meghalaya Secretariat. Thereafter, again the State respondents vide impugned office order dated 28.12.2011 under Memo No. SAE.20/2008/336-A appointed 3 (three) candidates from the merit list dated 16.07.2011 as LDAs in the Meghalaya Secretariat, Shillong. Again the State respondents vide office order dated 20.03.2012 under Memo No. SAE.20/2008/342-A appointed 4 (four) candidates from the merit list dated 16.07.2011 as LDAs in the Meghalaya Secretariat, Shillong. Again the State respondents vide impugned office order dated 29.05.2012 under Memo No. SAE.20/2008/349-A appointed 11 (eleven) candidates from the merit list dated 16.07.2011 as LDAs in the Meghalaya Secretariat, Shillong. Thereafter, again the State respondents vide impugned office order dated 05.07.2012 under Memo No. SAE.20/2008/350-A appointed 13 candidates from the merit list dated 16.07.2011 as LDAs in the Meghalaya Secretariat, Shillong. At last, the State respondents vide office order Memo No. SAE.20/2008/355-A Shillong dated the 18th July, 2012 appointed the respondent No. 40 Shri. Erwin B. Kyndiah, respondent No. 41 Shri. Lurshaibok Nongpiur and respondent No. 69 Shri. Sengborn R. Sangma as LDAs, after one year of declaration/publication of the result on 16.07.2011. The said appointment order dated 18.07.2012 for appointing the respondents No. 40, 41 and 69 (Annexure-8 to the writ petition) read as follows:-
"GOVERNMENT OF MEGHALAYA
SECRETARIAT ADMINISTRATION DEPARTMENT (ESTABLISHMENT)
OFFICE _________ ORDER
Dated Shillong, the 18th July, 2012.
No. SAE.20/2008/355:- On the recommendation of the Meghalaya Public Service Commission vide letter No. MPSC/D-78/1/2007-2008/30 dtd.20.7.2011, the following persons are appointed temporarily to the post of Lower Division Assistants in the Meghalaya Secretariat in the scale of pay of Rs. 11300-280-13260-EB-360-16500-500-22000/- P.M. plus other allowances as admissible under the rules with effect from the date of joining.
Yours faithfully,
Sd/- E. Lyngdoh,
Deputy Secretary to the Govt. of Meghalaya,
Sectt. Admn. Department (Estt)
Memo No. SAE.20/2008/355-A Dated Shillong, the 18th July, 2012
Copy to:-
1. The Chairman, MPSC, Shillong, with reference to letter No. MPSC/D-78/1/2007-2008/30 dtd. 20.7.2011.
2. S.A.D. (Accounts) for information.
3. Civil Surgeon, Shillong/Medical Superintendent, Ganesh Das (WandC) Hospital, Shillong for information and necessary action.
4. Person concerned. They are directed to report for duty in S.A.D. (E) within 15 days from the date of issue of this order with the following documents, failing which their order stand cancelled.
(i) Medical certificate of fitness from Civil Surgeon, Shillong/Medical Superintendent, Ganesh Das (WandC) Hospital, Shillong.
(ii) Attested copies of certificate of Age, Educational Qualification and Scheduled Tribe Certificate.
(iii) 2 (two) copies of Passport size Photos duly attested.
5. Personal file of the persons concerned.
6. Dealing Assistant (BM/NM/KK).
By order, etc.
Sd/-
E. Lyngdoh,
Deputy Secretary to the Govt. of Meghalaya,
Sectt. Admn. Department (Estt)"
6. It is the further case of the petitioners that the State respondents did not take any interest to appoint them inspite of clear vacancies i.e. the vacancies mentioned in the aforementioned paras and being aggrieved, the petitioners and others selected candidates filed a joint representation on 19.07.2012 before the State respondents i.e. the Chief Secretary, Govt. of Meghalaya, Shillong requesting him to take up the matter at the earliest possible to enable them to get appointments and that representation was duly received by the State respondents. As the State respondents did not take up any tangible action on the said representation, the petitioners again preferred another representation on 16.08.2012 before the State respondents as well as the MPSC praying for their appointments to the posts of LDA in the vacant posts as per the merit list, but the State respondents failed to pay any heed to the said representations. The present petitioners and others filed a joint writ petition being WP(C) (SH) No. 239/2012 before the High Court for a direction to the State respondents to appoint them as LDAs in the Meghalaya Secretariat and also for other prayers. This High Court after hearing the parties, disposed of the writ petition by passing a judgment and order dated 16.04.2013, para 12 of which, reads as follows:-
"12. In the peculiar facts and circumstances discussed above, this writ petition is disposed of with a direction to the respondents to consider the case of the petitioners for appointments in case the said 11 candidates in whose favour appointments had been issued did not join till date and in case, the petitioners could not be appointed, an order shall be issued by mentioning reasons for deviation from the advertisement and appointed as many as 111 candidates against 32 advertised posts of LDCs inasmuch as every holder of the public office is accountable to the people and public authorities are ordained to act reasonably and in good faith and a man on street should know why decision has been taken in favour of a particular person."
7. The State respondents in compliance of the directions of this Court dated 16.04.2013 passed in WP(C) No. (SH)239/2012, did not issue any order mentioning reasons for deviation from the advertisement and appointed as many as 111 candidates against 32 advertised posts of LDA. But the Deputy Secretary to the Govt. of Meghalaya furnished the copy of the office order dated 03.07.2013 to one of the petitioners that the MPSC did not agree to the proposal for appointment of the recommended candidates after the select list had been lapsed and accordingly, no further appointments could be made by the Govt. in the Meghalaya Secretariat out of the select list whose validity period had been lapsed. The State respondents had already issued an advertisement through MPSC vide advertisement dated 05.09.2012 for appointment to 60 posts of LDA in the Meghalaya Secretariat. In pursuance of the said advertisement, selection test i.e. interview had already been held and the State respondents are filling up the said 60 advertised posts of LDA from the newly selected candidates. The petitioners in para 11 of the writ petition categorically stated that the original vacancy position as per advertisement was 32 which was increased to 115 prior to the issuance of merit list. Hence, like other candidates who were appointed beyond 32 posts, the petitioners also have legitimate expectation otherwise the candidates appointed beyond 32 posts also should not have been appointed and their appointments also need to be cancelled and fresh advertisement should be called by the State respondents for filling up all the vacancies beyond 32 posts of LDA and even 3 candidates (respondents No. 40, 41 and 69) were appointed vide impugned office order dated 18.07.2012 by the State respondents after one year of declaration of the merit list and as such, the petitioners also have legitimate expectation to be appointed as still another 20 posts are lying vacant. Therefore, it is a clear case of the petitioners that since the State respondents had appointed the respondents No. 40, 41 and 69 vide impugned office order dated 18.07.2012 to the posts of LDA after one year of publication/declaration of the select list on 16.07.2011, the petitioners also have reasonable expectation to the appointment as LDAs against the existing vacancy. The petitioners in para 16 of the writ petition further pleaded that this is a clear case wherein, the State respondents had adopted a pick and choose policy inasmuch as, at the first instance they have given appointment to 111 candidates as LDAs in the Meghalaya Secretariat out of which only 95 candidates joined the posts and 20 posts were not filled up and are lying vacant and thereafter, the State respondents had clearly spelt out that the total vacancy position to be 115 posts vide letter dated 16.06.2011 and also by information furnished under RTI vide letter dated 16.08.2012 and inspite of the clear vacancy position presently being another 20 posts, the State respondents are not appointing the petitioners which clearly exhibits the discriminatory attitude adopted against the petitioners by the State respondents and as such, the acts and actions of the State respondents are violative of the principle of natural justice and also against the principle of legitimate expectation. Further it is stated that 3 incumbents (respondents No. 40, 41 and 69) were appointed on 18.07.2012 as LDAs in the Meghalaya Secretariat vide impugned order dated 18.07.2012 after one year of the publication of the merit list but the same yardstick had not been applied in the case of the petitioners inspite of the fact that there are another 20 posts of LDA lying vacant in the Meghalaya Secretariat and these actions of the State respondents are clear case of discrimination against them, who also deserved to be appointed in the 20 vacant posts in order of the merit list like other candidates particularly taking into account the directions and observations made by this Court in the judgment and order dated 16.04.2013 passed in WP(C) No. (SH)239/2012.
8. The petitioners further pleaded in the writ petition that either the State respondents should terminate the services of all the candidates/respondents who have been appointed beyond 32 posts of LDA advertised vide advertisement dated 04.06.2008 or otherwise the State respondents should also afford opportunity of appointment to the petitioners herein otherwise, it shall clearly reflect that the State respondents have acted in a discriminatory, arbitrary and bias manner. Further, the non-disposal of the representation dated 30.04.2013 forwarding the judgment and order dated 16.04.2013 by the State respondents within two months from the date of receipt of the said judgment and order thereof, as per the directions of this Court, also reflects that the State respondents have adopted a bias and discriminatory attitude towards the petitioners for having approached this Court for ventilating their grievances and further it prima facie establishes that the State respondents are willfully disobeying the said judgment and order dated 16.04.2013 passed in WP(C) No. (SH)239/2012 and are bent upon willfully disregarding the same which exhibits a clear case of contempt on the part of the said concerned State respondent.
9. The MPSC i.e. respondents No. 5 and 6 filed joint affidavit-in-opposition dated 06.03.2014 in the present writ petition and clearly stated that the interviews of the candidates for the posts of LDA in response of the advertisement dated 04.06.2008 were held from 11th - 15th July 2011 and the result was declared on 16.07.2011. The number of candidates recommended strictly in order of merit was 126. The relevant portions of para 5 of the joint affidavit-in-opposition filed by the respondents No. 5 and 6 i.e. MPSC is quoted hereunder:-
"5......The interviews were held from 11th - 15th July, 2011. The result was declared on 16th July, 2011. The number of candidates recommended, viz 126 was strictly in accordance with the principle laid down under Government O.M. No. PER (AR) 70/93/1 Dt. 21st April, 1993 (copy enclosed as Annexure-3) i.e. equal to the number of vacancies plus 10% or 2 (two) whichever is more. It may be mentioned that the Hon''ble Supreme Court of India, in its judgment passed on 27th January, 2012, in the Special Leave Petition (Civil) No. CC27/2012, Arup Das and Others v. State of Assam and Others, had held that ''.......it is well established that an authority cannot make any selection or appointment beyond the number of vacancies advertised, even if there were a larger number of posts available......'' The principle behind the said decision is that if that is allowed to be done, such action would be entirely arbitrary and violative of Articles 14 and 16 of the Constitution, since other candidates who had chosen not to apply for the vacant posts which were sought to be filled, could have also apply if they had known that the other vacancies would also under consideration for being filled up. In paragraph 4 of the said judgment, the Hon''ble Court observed that ''.... some of the candidates may have, in the meantime acquired the eligibility to undergo such training....'' This landmark judgment was reported in the Hindu on 8th February, 2012 and a copy of the judgment was obtained by the Commission on 17th February, 2012. Since then, all the recommendations made by the Commission were strictly in accordance with the above judgment."
10. Therefore, it is the clear case of the MPSC that the list of the selected candidates was declared/published on 16.07.2011. The number of selected candidates in order of merit is 126. Further, the MPSC in their joint affidavit-in-opposition are not denying that the petitioners are the selected candidates and their names appeared at Sl. No. 58, 60, 62, 63, 64 and 65 respectively. The MPSC in their joint affidavit-in-opposition also stated that requisition for 60 (sixty) posts of LDA in the Meghalaya Secretariat was received by the Commission on 30.08.2012. The posts were advertised on 05.09.2012. The written examination was held on 08.06.2013. 127 candidates were declared qualified to appear for the personal interview, vide result declared on 24.09.2013. The personal interview was held from 21.10.2013 to 23.10.2013. The result was declared on 24.10.2013 and 60 candidates were recommended for appointment to the advertised posts. The names of the recommended candidates were sent to the Govt. vide letter No. MPSC/D-77/1/2012-2013/90 dated 02.12.2013.
11. The State respondents i.e. respondents No. 1-4 also filed joint affidavit-in-opposition wherein, the State respondents stated that the State Govt. have issued appointment orders to the qualified candidates as recommended by the MPSC vide No. MPSC/D-78/2007-2008/30 dated 20.07.2011 (notification dated 20.07.2011) against the 100 vacancies as laid down in the Resolution No. PER.222/71/138 dated 12.01.1972 as indicated below:-
Un-reserved Quota - 15% of 100 = 15 By Khasi and Jaintia candidates Bearing Sl. No. 1 to 15.
Khasi and Jaintia Quota - 40% of 100 = (i) By candidates bearing Sl. No. 16 to 54 and 76 from Sports Quota as recommended by the MPSC
(ii) Appointment Order to another 3 (three) candidates bearing Sl. No. 55, 56, 57 was again issued in place of 3 candidates bearing Sl. No. 38, 42 and 43 who did not join/resigned/released from Meghalaya Secretariat.
Garo Quota - 40% of 100 = 40 (i) By candidates bearing Sl. No. 69, 71 to 73, 75, 77 to 93, 95 to 104, 106 to 113.
(ii) Appointment order to another 7 (seven) Garo candidates bearing Sl. No. 114 to 120 was issued in place of 7(seven) candidates bearing Sl. No. 79, 84, 86, 93, 103, 104, 106 who did not join/released/resigned/expired.
''Other'' - 5% of 100 = 5 (i) By candidates bearing Sl. No. 70, 74, 94, 105 and 124.
(ii) Appointment order to a candidate bearing Sl. No. 125 was issued in place of a candidate bearing Sl. No. 94 who did not join.
The State respondents i.e. respondents No. 1-4 in their joint affidavit-in-opposition also admitted that the list of the selected candidates was published/notified vide Notification No. MPSC/D-78/1/2007-2008/29-A dated 16.07.2011, the MPSC only on 20.07.2011 sent the select list to the Govt. vide letter No. MPSC/D-78/2007-2008/30 dated 20.07.2011. The State respondents in their joint affidavit-in-opposition further stated that the respondents No. 40, 41 and 69 had been appointed vide order dated 18.07.2012 before the expiry period of the list recommended by the MPSC on 20.07.2011. The copy of the said letter of the MPSC dated 20.07.2011 is available at Annexure-I to the joint affidavit-in-opposition of the State respondents. In that letter, it is clearly mentioned that the Commission (MPSC) vide Notification No. MPSC/D-78/1/2007-2008/29-A dated 16.07.2011 declared the list of the selected candidates. For easy reference, the said letter of the MPSC dated 20.07.2011 is quoted hereunder:-
"MEGHALAYA PUBLIC SERVICE COMMISSION SHILLONG
No. MPSC/D-78/1/2007-2008/30, dated Shillong, the 20th July, 2011.
From: Shri. R Rapthap, MCS,
Secretary,
Meghalaya Public Service Commission
Shillong.
To,
The Under Secretary to the Govt. of Meghalaya
Secretariat Administration Department (Estt).
Subject: Recruitment to the post of L.D. Assistant in Meghalaya Secretariat.
Ref: Your letter No. SAE.20/2008/3 dt. 26-3-2008.
Sir,
I am directed to say that the Commission vide Notification No. MPSC/D-78/1/2007-2008/29, dated 16th July 2011 declared the following candidates, in order of merit, for appointment to the above mentioned posts.
1. Smti. Ibadianghun Nongrum
2. Shri Handsome Nongrang
3. Shri Paul Pynskhemborlang Khyriem
4. Shri Teiri John Kharshandi
5. Shri Jeffrey Jyrwa
6. Shri Raphael L. Jarain
7. Shri Wingilbert Chyrmang
8. Smti. Mebari Kharbuli
9. Shri Stardiness Kharsyntiew
10. Shri Wallambok Lyngwa
11. Smti. Venissa Kharsati
12. Shri Maitshaphrang Lyngdoh
13. Smti. Darilang Mylliemngap
14. Shri Stamlin L. Kynshi
***** ***** ***** *****
***** ***** ***** *****
***** ***** ***** *****
***** ***** ***** *****
121. Shri Randolph Q. Ch. Momin
122. SmtL Femmelisha N. Sangma
123. Shri John Clitzer A. Sangma
124. Shri Gobinda Barman
125. Shri Amit Kumar Koch
126. Shri Buddha Dev. Hajong
The inclusion of the candidates'' names in this list shall confer no claim for appointment unless the appointing authority is satisfied after such inquiry as may be considered necessary, that the candidate is suitable in all respects subject to availability of vacancies.
Sd/-
Chairman,
Meghalaya Public Service Commission, Shillong
Memo No. MPSC/D-78/1/2007-2008/29-A Dated 16th July 2011
Copy forwarded for information to:
1. Chairman/Member, MPSC.
2. Secretary, MPSC
3. The Officer on Special Duty, MPSC Cell, Tura
4. The State Informatics Officer, NIC, Shillong"
12. It is the further case of the State respondents in their joint affidavit-in-opposition that all the selected candidates i.e. 126 candidates even if vacancies are available could not be appointed as the validity period of the select list had been expired according to the State respondents on 19.07.2012. But according to the petitioners, the validity period of the select list expired after one year from the date of publication/declaration of the select list i.e. 16.07.2011. From the record as well as from the submissions of the learned counsel appearing for the parties, it is clear that the petitioners are the members of Khasi and Jaintia Communities and 40% of 100 vacancies are reserved for Khasi and Jaintia, 2% is reserved for sports persons and reservation shall be made within the existing percentage of reservation basis in the categories of Khasi, Jaintia and Garo. Against the said 40% reservation vacancies, none of the candidates below the merit list or the petitioners had been appointed as LDAs, except one in sports quota. Therefore, it is clear that none of the selected candidates below the merit list of the petitioners had been appointed in the reserved quotas of Khasi and Jaintia and the claims of the petitioners for appointment shall be confined to their quotas. The advertisement dated 04.06.2008 clearly mentioned that the number of posts indicated in the advertisement is only tentative and subject to change at the time of actual recruitment. The Principal Secretary to the Govt. of Meghalaya under his said letter dated 16.06.2011 had intimated the number of vacancies i.e. 115 in the posts of LDA to the MPSC and requested the MPSC to take necessary action accordingly. It appears that after receiving the said letter dated 16.06.2011, the MPSC conducted the selection test i.e. interviews of the candidates from 11th - 15th July, 2011 for the said 115 vacancies and the result of the selection test was declared by publishing the list of the selected candidates of 126 on 16.07.2011. Both the parties admitted that the validity period of the list of the selected candidates is one year. In this context, in the given case, the question to be decided is from which date the validity period of one year of the select list is to be counted? Admittedly in the present case, the list of the selected candidates was published by the MPSC on 16.07.2011. In the normal service law parlance, the validity of the select list is to be counted from the date of publication of the select list, not from the date pickup from the hat of the authorities. Learned counsel appearing for the parties also admitted that the Govt. of Meghalaya, Personnel and AR (B) Department, Shillong had issued the Office Memorandum being No. PER (AR). 167/82/23 dated 03.07.1982, prescribing the composition, functions etc. of the District Selection Committee for the Districts in the State of Meghalaya for direct recruitment to various categories of posts which come under the purview of the Committee. Para 5.8. of the said Office Memorandum dated 03.07.1982 reads as follows:-
"5.8. A panel of names in order of merit for the category of post shall be prepared and published by the District Selection Committee immediately after the examinations, tests and/or interviews, to be valid for a period of one year with effect from the date of its publication. Each Head of Office/Appointing Authority desiring to appoint candidates to vacancies in various posts in his office, may write to the District Selection Committee for providing candidates from the merit list for appointment. It shall be incumbent upon the District Selection Committee to furnish suitable candidates to the Head of Office/Appointing Authority strictly from the merit list. The list forwarded by the District Selection Committee shall be strictly followed by the Head Office/Appointing Authority while making appointments. The Head of Office/Appointing Authority shall have no choice in the matter of over-looking any person senior in the merit list, duly recommended by the District Selection Committee."
13. From the said Office Memorandum dated 03.07.1982 for functions of the Selection Committee, it is clear that the select list shall be valid for a period of one year w.e.f. the date of its publication. This Court put pointed question to Mr. K. Khan, learned Addl. Sr. GA appearing for the State respondents as to any order or Notification or Office Memorandum other than the said Office Memorandum dated 03.07.1982, prescribing the valid period of the select list and also as to counting valid period of one year. Mr. K. Khan in his usual frankness submitted that there is no order or Notification of the Govt. of Meghalaya other than the said Office Memorandum dated 03.07.1982. Mr. S.P. Mahanta, learned senior counsel appearing for the petitioners by drawing the attention of this Court to the Memorandums of other authorities prescribing the validity period of the select list for one year w.e.f. the date of its publication strenuously contended that the respondents No. 40, 41 and 69 had been appointed after the expiry of the select list as the select list published on 16.07.2011 was expired on 16.07.2012 and they were appointed on 18.07.2012. In the given case, this Court is of the considered view that the validity of the select list published on 16.07.2011 expired on 16.07.2012. The authority by taking undue advantage of their own fault for not sending the select list published on 16.07.2011 on the very day of publishing the select list cannot say that the validity period of the select list published on 16.07.2011 shall be counted from the date of sending the same by the MPSC to the State Govt. on 20.07.2011. The Apex Court in
"13. The appellant is also right in contending before this Court that the power under Section 32-B of the Act to initiate fresh proceedings could not have been exercised. Admittedly, Section 32-B came on the statute book by Bihar Act 55 of 1982. The case of the appellant was over much prior to the amendment of the Act and insertion of Section 32-B. The appellant therefore, is right in contending that the authorities cannot be allowed to take undue advantage of their own default in failure to act in accordance with law and initiate fresh proceedings.
14. In this connection, our attention has been invited by the learned counsel for the appellant to a decision of this Court in
Therefore, this Court is of the further view that the appointment of the respondents No. 40, 41 and 69 to the posts of LDA vide impugned order dated 18.07.2012 is illegal.
14. The Apex Court in
"37. It is well settled legal proposition that if an order is bad in its inception, it does not get sanctified at a later stage. A subsequent action/development cannot validate an action which was not lawful at its inception, for the reason that the illegality strikes at the root of the order. It would be beyond the competence of any authority to validate such an order. It would be ironic to permit a person to rely upon a law, in violation of which he has obtained the benefits. If an order at the initial stage is bad in law, then all further proceedings consequent thereto will be non est and have to be necessarily set aside. A right in law exists only and only when it has a lawful origin. (Vide
15. It is fairly settled law that the same yardstick should apply to all the candidates for the purpose of selection and appointment for the same post for the same authority. The case of the petitioners was not considered by the State respondents for appointment to the posts of LDA only on the ground that the validity period of the select list had been expired. In such case, same principle should also be applied to the respondents No. 40, 41 and 69. But the respondents No. 40, 41 and 69 had been appointed to the posts of LDA by issuing the appointment order dated 18.07.2012 by giving a fanciable reason. The Apex Court in
16. The Apex Court (Constitution Bench) in
17. The Apex Court again in
18. The further case of the petitioners as stated above is that the petitioners should also be appointed after the expiry of the select list as the respondents No. 41, 41 and 69 had been appointed after the expiry of the select list. In the aforementioned paras, this Court had already held that the appointment of the respondents No. 40, 41 and 69 is illegal. The Apex Court in Harpal Kaur Chahal (Smt) v. Director, Punjab Instructions, Punjab and Anr: 1995 Supp (4) SCC 706 held that the benefit of illegal appointment may not be extended to the others. Article 14 of the Constitution cannot be extended to legalize the illegal orders though orders had wrongly got the benefit of the orders. The Court cannot give specific direction to extent the benefit of illegal appointments to others or in other words, and also the Court cannot direct the authority to issue illegal appointments in the manner the authority had issued the earlier illegal orders. The Apex Court in
"13. What remains now to be considered, is the effect of permission granted to the thirty two vessels. As highlighted by learned counsel for the appellants, even if it is accepted that there was any improper permission, that may render such permissions vulnerable so far as thirty two vessels are concerned, but it cannot come to the aid of respondents. It is not necessary to deal with that aspect because two wrongs do not make one right. A party cannot claim that since something wrong has been done in another case; direction should be given for doing another wrong. It would not be setting a wrong right, but would be perpetuating another wrong. In such matters there is no discrimination involved. The concept of equal treatment on the logic of Article 14 of the Constitution of India (in short "the Constitution") cannot be pressed into service in such cases. What the concept of equal treatment presupposes is existence of similar legal foothold. It does not countenance repetition of a wrong action to bring both wrongs on a par. Even if hypothetically it is accepted that wrong has been committed on some other cases by introducing a concept of negative equality respondents cannot strengthen their case. They have to establish strength of their case on some other basis and not by claiming negative equality."
19. Admittedly, the present writ petition had filed by the petitioners after the expiry of the validity period of the select list. It is fairly well settled that if the selected candidate stake the claims by filing the writ petition before the expiry of the select list, merely because a period of one year had lapsed during the pendency of the writ petition relief cannot be denied to the selected candidate which had been found entitled by the High Court (Ref:
"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 respondents 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 for which the respondent has been found entitled by the High Court......"
20. The Apex Court in
"9. Coming to the merits of the matter, in view of the Statutory Rules contained in Rule 26 of the Recruitment Rules the conclusion is irresistible that a select list prepared under the Recruitment Rules has its life only for one year from the date of the preparation of the list and it expires thereafter. Rule 26 is extracted hereinbelow in extenso: ''26. Appointment by appointing authority. - The select list referred to in sub-rules (6) and (7) of Rule 23 shall be forwarded by the Selection Committee to the appointing authority mentioning the aggregate marks obtained at the selection by each candidate. The name of general and reserve candidates shall be arranged by the appointing authority in a common list according to merit of the candidates and the appointment shall be offered in the order in which the names are arranged in the list shall hold good for a period of one year from the date of selection.''
10.........But at the same time it is difficult for us to sustain the direction given by the High Court since, admittedly, the life of the select list prepared on 4-4-1987 had expired long since and the respondents who claim their rights to be appointed on the basis of such list did not have a subsisting right on the date they approached the High Court. We may not be understood to imply that the High Court must issue such direction, if the writ petition was filed before the expiry of the period of one year and the same was disposed of after the expiry of the statutory period. In view of the aforesaid conclusion of ours it is not necessary to deal with the question whether the stand of the State Government that there existed one vacancy in the year 1987 is correct or not." The Apex Court in
"5. Any scheme for selection will depend upon the terms on which selections are made. In the present case, there is a scheme as provided in the circular dated 9-12-1968 and that circular also provided for the panel to be valid/current for a particular period namely one year After that period, the list would lapse and fresh panel has to be prepared. If that is the scheme, none of the decisions relied upon by the learned counsel for the respondent would be of any assistance. The High Court is also not justified in relying upon the decision in Shivsingh case (1988) 1 MPWN 24 inasmuch as the scheme of appointment was entirely different. Moreover the validity/currency of panel was for a particular period; that is a salutary principle, behind that Rule so that after the selections are made and appointments to be made may take long time, it is possible that new candidates may have become available who are better or more qualified than those selected, and if they are appointed it would be in the best interests of the institution. Hence we do not think there was any justification for the High Court to have interfered in the matter and directed appointment of the respondent. The order made by the High Court is set aside and the writ petition filed by the respondent shall stand dismissed. The appeal is allowed accordingly."
21. It is equally well settled that no writ can be issued on the basis of sympathy. The Apex Court in
"25. Furthermore, ordinarily, the writ court should not, in absence of any legal right, act on the basis of sympathy alone. 26. In
''7....It is clear from the order of the learned Single Judge and looking to the very directions given, a very sympathetic view was taken. We do not find it either just or proper to show any further sympathy in the given facts and circumstances of the case. While being sympathetic to the persons who come before the court the courts cannot at the same time be unsympathetic to the larger number of eligible persons waiting for a long time in a long queue seeking employment.''
(See also
22. For the forgoing discussions, this writ petition is allowed only to the limited extent by quashing the impugned order dated 18.07.2012 for appointing the respondents No. 40, 41 and 69 to the posts of LDA in the Meghalaya Secretariat and the respondents No. 40, 41 and 69, shall be no more in service w.e.f. the date of this judgment and order. It is made clear that the other prayers of the petitioners in the writ petition are not entertained in the peculiar facts and circumstances of this case. 23. Writ petition is allowed to the extent indicated above. 24. In the peculiar facts and circumstances of this case, more particularly lapsed of the validity of the select list for the fault of the respondents No. 1-6 as discussed above, this Court is of the considered view that an exemplary cost is required to be imposed to the State respondents and accordingly, a cost of Rs. 10,000/- (Rupees ten thousand) only is imposed to the respondents No. 1-6 jointly and respondent No. 2 shall deposit the said cost of Rs. 10,000/- (Rupees ten thousand) only in the Registry of this Court within a period of one month from the date of receipt of a certified copy of this judgment and order and the Registry in its turn shall deposit the same in the fund of one of the Children''s Homes established and maintained either by the Govt. of Meghalaya or in association with the voluntary organizations.
