State of Tripura and Another vs Abhijit Majumdar

N.S. Singh, J.—The judgment and order dated 8.7.96 passed by the learned Single Judge of this Court in Civil Rule No. 233 of 1995 is the subject matter under challenge in this writ appeal.

On the earlier occasion the writ Petitioner, the Respondent herein filed a writ petition being Civil Rule No. 95 of 1993 before this Court for a direction to the present Appellants to issue the appointment letter in favour of the writ Petitioner-Shri Abhijit Majumdar for appointment to the post of Demographer within a specific period and to join the post of Demographer wLhin a time to be fixed by this Court. The present Appellants as Respondents, contested the said case of the aforesaid writ Petitioner. After hearing the parties of the aforesaid writ petition, being Civil Rule No. 95 of 1993, this Court disposed of the said case on 3.5.94 by observing that the writ Petitioner does not have even the essential qualifications and therefore, this Court is unable to issue any writ directing the present Appellants to appoint the writ Petitioner in the said post of Demographer. However, this Court, considering the facts and circumstances of the case and giving emphasis to Govt. circular dated 8.6.85 relating to preference to the dependant son/daughter of retired Govt. employees, directed the Appellants to consider if the writ Petitioner can be appointed in some other posts for which he has got the requisite qualifications.

This Court further directed that it shall be done within a period of 3 months. The Appellants duly considered the representation of the writ Petitioner and informed the latter that, since the writ Petitioner does not possess the requisite qualification required for the post of Librarian/Medica1 Record Assistant, he is not eligible for appointment and as such, his prayer cannot be acceded to vide Memorandum No. F.2 (6-73)-MS/Estt/93 dated 23.8.94. The writ Petitioner also filed a contempt petition being Civil Original Petition (Contempt) No. 45 of 1994 on 10.8.94 against Shri Sanjoy Kumar Panda, Secretary to the Government of Tripura, Department of Health and Family Welfare and Dr. K.L. Roy, Director of Health Services, Government of Tripura for violation of the said order dated 3.5.94 in Civil Rule No. 95 of 1993. After hearing the parties, the notice of contempt issued against these two officials stands discharged vide order dated 20.9.94. Thereafter, the writ Petitioner, the Respondents herein filed another writ petition being Civil Rule 233 of 1995 for quashing the said memorandum dated 23.8.94 and for a direction to the Respondents to appoint the writ Petitioner in the post of Librarian of Medical Record Assistant lying vacant alougwith other reliefs.

After hearing the parties, this Court disposed of the said writ petition being Civil Rule 233 of 1995 on 8.7.96 directing the authority to give appointment to the writ Petitioner either according to the suitability or even to a post of L.D. Clerk which even the writ Petitioner is ready and willing to accept. Being aggrieved by the impugned order dated 9.7.96 passed in Civil Rule No. 233 of 1995, the present Appellants filed this writ appeal.

Shri U.B. Saha, the learned Govt. Advocate for the Appellants submitted, that as per the direction and order of this Court made in Civil Rule No. 95 of 1993, the competent authority considered the case of the writ Petitioner and the authority duly informed the writ Petitioner that he does not possess the requisite qualifications required for the post of Librarian/Medical Record Assistant and as such, he is not eligible for appointment vide memorandum dated 23.8.94. The Director of Health Services also informed the writ Petitioner under the said memorandum that he may try his candidature against any suitable vacancies as and when advertised by the department from time to time for consideration and appointment. According to Shri U.B. Saha, the writ Petitioner has no right to approach this Court for issuing a writ of Mandamus directing the Appellants to appoint him to the post of Librarian or Medical Record Assistants. It is also contended by Shri U.B. Saha that the learned Single Judge had failed to appreciate the judgment and order of this Court dated 3.5.94 passed in Civil Rule No. 95 of 1993 as well as the order dated 20.9.94 passed in Civil Original Petition (Contempt) No. 45 of 1994 and, also failed to consider the order/impugned memorandum dated 23.8.94 by which the writ Petitioner was informed that his prayer for appointment to the post of Librarian/Medical Record Assistant cannot be acceded to. The learned Single Judge has no jurisdiction to direct the Appellants to appoint the writ Petitioner unless the learned Single Judge come to the conclusion that the writ Appellants had failed to consider the representation as well as the case of the writ Petitioner as per order and direction dated 3.5.94 passed in Civil Rule No. 95 of 1993, Shri U.B. Saha contended.

At the hearing, Shri D.K. Biswas, learned Counsel for the Respondent, contended that this Court in Civil Rule No. 95 of 1993 passed the following order:

Considering the facts of the case and the preference to which he is entitled to, under the Govt. Circular, I direct the Respondents to consider if the writ Petitioner can be appointed in some other posts for which he has got the requisite qualifications and this shall be done within a period of 3 months.

This being the admitted position, the writ Appellants ought to have considered the case of the writ Petitioner and afforded appointment to the writ Petitioner in a post for which he has got ihe requisite qualification. As this was not done and complied with by the writ Appellants, the learned Single Judge passed the impugned judgment datd 8.7.96 directing the writ Appellants to give appointment to the writ Petitioner either according to the suitability or even to a post of L.D. Clerk which even the writ Petitioner is ready and willing to accept instead of facing starvation, within a period of 2 months. Hence, there is no infirmity in the impugnes judgment dated 8.7.96, Shri D.K. Biswas argued.

Now, we are to examine as to whether the present Appellants had duly complied with the judgment and order of this Court passed on 3.5.94 in Civil Rule No. 95 of 1993 or not and, whether the writ Petitioner has any right to be appointed to the post of Librarian/Medical Record Assistant and the writ Appellants are bound to appoint the writ Petitioner or not.

As we highlighted the operative part/portion of the judgment and order dated 3.5.94 passed in Civil Rule No. 95 of 1993 in the foregoing paragraphs, we are of the view that the writ Appellants are bound to consider the case of the writ Petitioner and, if the writ Petitioner can be appointed in some other posts for which he has got the requisite qualifications. We have perused the memorandum/order dated 23.8 94 issued by the competent authority informing the writ Petitioner that since he does not possess the requisite qualifications required for the post of Librarian/Medical Record Assistant, he is not eligible for appointment and as such, his prayer cannot be acceded to. Even the contempt petition was filed by the writ Petitioner against the Secretary to the Govt, of Tripura Department of Health and Family Welfare and the Director of Health Services, Govt.of Tripura, for alleged violation of the Court''s order dated 3.5.94 but the said contempt petition was closed in view of the fact that no contempt has been made out.

In our considered view, the writ Appellants, i.e. the competent authority had duly complied wich the judgment and order of this Court in Civil Rule No, 95 of 1993. Now, the next vital and important question to be determined is, that whether the learned Single Judge can direct the writ Appellants i.e. the competent authority to give appointment to the writ Petitioner either according to the suitability or even to a post of L.D. Clerk which even the writ Petitioner is ready and willing to accept it under the impugned judgment dated 8.7.96,

It is well settled that public employment is a national wealth to which each and every citizen are equally entitled, if the citizen does possess the requisite qualification and is eligible for the post as per related recruitment Rules or prescribed norms for such appointment to the post or posts. The post of L.D. Clerk or Librarian/Medical Record Assistant of the Department concerned are governed by their related Service Rules and the selection for appointment to such posts shall be done in accordance with the prescribed Rules. No one can go beyond the Rules or defy the Rules for appointment to the aforesaid posts. In the instant case, this Court had directed the authority to consider the case of the writ Petitioner for his appointment, that was done by the competent authority, But the High Court, by invoking its extra-ordinary jurisdiction laid down under Article 226 of the Constitution of India cannot direct the competent authority to make appointment of a particular person or persons to a particular post or posts by ignoring the related Recruitment Rules and such a direction does not fall within the scope of Mandamus.

It is also established principles of law that, while exercising the power of judicial review, this Court cannot act as an appellate authority by substituting its opinion, but the Court is concerned only to see whether there is infirmity in the decision-making process. This Court can certainly examine whether "decision making proceses" was reasonable, rational, not arbitrary and violative of Article 14 of the Constitution. At this juncture, we may recall the decision''of the Apex Court rendered in Sterling Computers Limited and Others Vs. M and N Publications Limited and Others, In our considered view, this Court cannot direct appointment in the instant case. In this regard, a reference can be made to a decision of the Apex Court rendered in State of Haryana Vs. Naresh Kumar Bali, wherein Apex Court held thus:

The High Court could have merely directed consideration of the claim of the Respondent in accordance with the rules. It cannot direct apppointment. Such a direction does not fall within the scope of mandamus. Judicial review, it has been repeatedly emphasised, is directed against the decision-making process and not against the decision itself; and it is no part of the court''s duty to exercise the power of the authorities itself. The exercise of the extraordinary jurisdiction constitutionally conferred on Apex Court under Article ) 42(1) of the Constitution can be of no guidance on the scope of Article 226.

Upon hearing the learned Counsel on both sides as well as applying the related decisions of the Apex Court stated above, we are of the view that the learned Single Judge erred in law in directing the writ Appellants/competent authority to give appointment to the writ Petitioner either according to the suitability or even to a post of L.D. Clerk.

For the leasoris and discussions made above, the Appellants could make out a case to justify the interference of the impugned judgment dated 8.7.96 passed by the learned Single Judge in Civil Rule No. 233 of 1995.

Accordingly, we set aside the impugned judgment dated 8.7.96 passed by the learned Single Judge. In the result, this writ appeal is allowed, but no costs.