Sunanda Dutta vs State of Chhattisgarh and Others

Prashant Kumar Mishra, J—Petitioner has preferred this writ petition seeking writ of mandamus directing the respondents No. 4 & 5 to consider the case of the petitioner and issue the posting order. The matter pertains to appointment on the post of Shiksha Karmi Grade-II now re-named as Teacher (Panchayat). A centralized recruitment process was conducted by the Vyavsayik Pariksha Mandal (for short, ''Vyapam'') Chhattisgarh in the year 2009. There is no dispute about the fact that on the strength of mark secured by the petitioner she was placed in the waiting list prepared by the Jila Panchayat, Bastar.

Under the then recruitment rules known as Chhattisgarh Panchayat Shiksha Karmi (Recruitment and Conditions of Services) Rules, 2007 the validity of the waiting list was 12 months. Since the select list for subject recruitment was issued on 08/01/2010 the wait list was also valid till 07/01/2011, however, the said period of validity of waiting list was extended by one month by amending the Rules 2007, thus the subject waiting list was valid till 07/02/2011.

Due to non-availability/non-joining of the persons who were placed above the petitioner in the merit list, Jila Panchayat decided to operate the waiting list and in the said process the petitioner was offered appointment on 03/02/2011 summoning her to appear in the counselling for deciding the place of posting. It is not in dispute that under the procedure for subject recruitment, whenever the select list is operated the Shiksha Karmis are invited for counselling for opting the place of posting. The petitioner did appear in the counselling on 18/02/2011, however, from the information supplied to the petitioner by the officer in-charge of Jila Panchayat, Bastar (Annexure P/7) it would appear that after the petitioner appeared in the counselling on 18/02/2011 the Director Panchayat, Raipur issued some telephonic message to the Jila Panchayat informing that the posting order should have been issued prior to 07/02/2011. After receiving this communication, the Jila Panchayat did not proceed further to issue the posting order in favour of the petitioner.

Learned counsel for the petitioner would submit that it is not a case where the petitioner is claiming appointment from the waiting list because the petitioner having been invited for counselling, the Jila Panchayat had already decided to appoint her, however, only the place of posting remained to be decided for which counselling was necessary and the petitioner having already appeared in the counselling the respondent -Jila Panchayat was duty bound to issue a formal order of posting. He would submit that the respondents have acted in an arbitrary and illegal manner by not issuing the posting order.

Per contra, learned Dy. Advocate General and learned counsel for Jila Panchayat, Bastar would submit that the waiting list was valid only till 07/02/2011, therefore, after receiving the communication from Director, Panchayat the petitioner was not issued the posting order. They would submit that there is no enforceable right in favour of the petitioner to seek appointment merely on the ground that her name appeared in the waiting list.

The law is well settled that a person whose name appears in the select list or waiting list has no right of appointment on the post. Though denial of appointment for an arbitrary, unreasonable or malafide reason is also not permissible (see : Manoj Manu and Another Vs. Union of India (UOI) and Others, (2013) 139 FLR 475 : (2013) 11 JT 374 : (2014) LabIC 1075 : (2013) 4 LLN 21 : (2013) 10 SCALE 204 : (2013) 12 SCC 171 : (2013) 4 SCT 532 : (2013) 114 SLJ 351 ).

Be that as it may, in the case in hand the petitioner is not claiming appointment or posting only on the ground that her name appeared in the waiting list. The claim is based on the fact that the respondent Jila Panchayat has already decided to act upon the waiting list, therefore, the letter of counselling was issued to the petitioner on 03/02/2011 vide Annexure P/3 which was well within the validity of the waiting list. The opening paragraph of the letter of counselling Annexure P/3 reads as under:--

Thus, it is apparent that based on petitioner''s position in the waiting list, the petitioner was directed to appear for counselling for the purpose of issuing a posting order. The posting order always follows a decision by the authority to appoint the person, unless the decision is taken to appoint a person an order of posting is not possible. Thus, the letter of counselling is, in fact, a decision to operate the waiting list in favour of the petitioner which was well within the validity period.

The nature of power and jurisdiction under Article 226 of the Constitution of India conferred on the High Court has been explained by the Supreme Court in Dwarka Nath Vs. Income Tax Officer, Special Circle D-ward, Kanpur and Another, AIR 1966 SC 81 : (1965) 57 ITR 349 : (1965) 3 SCR 536 as under:

"4. .....This article is couched in comprehensive phraseology and it ex facie confers a wide power on the High Courts to reach injustice wherever it is found. The Constitution designedly used a wide language in describing the nature of the power, the purpose for which and the person or authority against whom it can be exercised. It can issue writs in the nature of prerogative writs as understood in England; but the scope of those writs also is widened by the use of the expression ''nature'', for the said expression does not equate the writs that can be issued in India with those in England, but only draws an analogy from them. That apart, High Courts can also issue directions, orders or writs other than the prerogative writs. It enables the High Courts to mould the reliefs to meet the peculiar and complicated requirements of this country. Any attempt to equate the scope of the power of the High Court under Article 226 of Constitution with that of the English Courts to issue prerogative writs is to introduce the unnecessary procedural restrictions grown over the years in a comparatively small country like England with a unitary form of Government to a vast country like India functioning under a federal structure. Such a construction defeats the purpose of the Article itself......"

(Emphasis supplied)

Yet again in Gujarat Steel Tubes Ltd. and Others Vs. Gujarat Steel Tubes Mazdoor Sabha and Others, AIR 1980 SC 1896 : (1980) 1 LLJ 137 : (1980) 2 SCC 593 : (1980) 2 SCR 146 , the Supreme Court held thus :

"73. While the remedy under Article 226 is extraordinary and is of Anglo-Saxon vintage, it is not a carbon copy of English processes. Article 226 is a sparing surgery but the lancet operates where injustice suppurates. While traditional restraints like availability of alternative remedy hold back the court, and judicial power should not ordinarily rush in where the other two branches fear to tread, judicial daring is not daunted where glaring injustice demands even affirmative action. The wide words of Article 226 are designed for service of the lowly numbers in their grievances if the subject belongs to the court''s province and the remedy is appropriate to the judicial process. There is a native hue about Article 226, without being anglophile or anglophobic in attitude. Viewed from this jurisprudential perspective, we have to be cautious both in not overstepping as if Article 226 were as large as an appeal and not failing to intervene where a grave error has crept in. Moreover, we sit here in appeal over the High Court''s judgment. And an appellate power interferes not when the order appealed is not right but only when it is clearly wrong. The difference is real, though fine."

(Emphasis supplied)

In a recent judgment rendered in Eastern Coalfields Ltd. and Others Vs. Bajrangi Rabidas, (2014) 140 FLR 732 : (2013) 13 JT 62 : (2014) LabIC 1510 : (2013) 12 SCALE 69 : (2014) 2 SCT 581 , the Supreme Court held thus :

"19. .....It is well settled in law that jurisdiction of the High Court under Article 226 of the Constitution is equitable and discretionary. The power of the High Court is required to be exercised "to reach injustice wherever it is found". In Sangram Singh v. Election Tribunal, it has been observed that jurisdiction under Article 226 of the Constitution is not to be exercised whenever there is an error of law. The powers are purely discretionary and though no limits can be placed upon that discretion, it must be exercised along recognised lines and not arbitrarily and one of the limitations imposed by the courts on themselves is that they will not exercise jurisdiction in such class of cases unless substantial injustice has ensued or is likely to ensue. That apart, the High Court while exercising the jurisdiction under Article 226 of the Constitution can always take cognizance of the entire facts and circumstances and pass appropriate directions to balance the justice. The jurisdiction being extraordinary it is required to be exercised keeping in mind the principles of equity..... "

Emphasis added

While exercising the jurisdiction under Article 226 of the Constitution of India endeavour should be made to do complete justice to the parties. ( Madhya Pradesh Special Police Establishment Vs. State of Madhya Pradesh and Others, AIR 2005 SC 325 : (2004) 5 CTC 454 : (2004) 9 SCALE 302 : (2004) 8 SCC 788 : (2005) 1 UJ 165 : (2004) AIRSCW 6843 : (2004) 8 Supreme 147 ).

After placing reliance on various decisions of the Supreme Court, this Court in Dashrath Gupta (HUF) & others v. State of Chhattisgarh and Others Writ Petition (C) No. 1761 of 2013 (decided on 30-1-2015), at para 9, held thus :

"9. The common thread flowing from the above referred judgments of the Supreme Court with regard to the nature of power and jurisdiction under Article 226 is to the effect that the High Court''s power is equitable and discretionary. The High Court is required to exercise the jurisdiction to reach injustice wherever it is found. There are no limits to the power, the same should not be exercised unless substantial injustice has ensued or is likely to ensue and further that the Court can always take cognizance of the entire facts and circumstances and pass appropriate directions to balance the justice. It also follows that the wide words of Article 226 are designed for service of the lowly numbers in their grievances if the subject belongs to the court''s province and the remedy is appropriate to the judicial process and that the High Court should not fail to intervene when a grave error has crept in and injustice or arbitrariness has ushered."

It is well settled proposition of law that the writ Court has to protect a citizen from being deprived of public office to which he has a right.

The Supreme Court in Renu and Others Vs. District and Sessions Judge, Tis Hazari and Another, AIR 2014 SC 2175 : (2014) AIRSCW 1303 : (2014) 3 JT 1 : (2014) 3 LLJ 257 : (2014) 2 SCALE 262 , has held thus :

"15. ......... In other words, the procedure of quo warranto gives the judiciary a weapon to control the executive from making appointment to public office against law and to protect a citizen from being deprived of public office to which he has a right...... "

In Anoop Mishra v. State of Chhattisgarh WP (S) No. 7569 of 2014 (decided on 2-7-2015), this Court held thus :

"16. Articles 14 & 16 of the Constitution of India provide for equality of opportunity in the matters concerning public employment. The rigour of the said principles of equality does not stop to have its effect when a person is granted opportunity to compete, but the same runs through the entire process i.e. from the stage of issuance of advertisement till the appointment letters are issued and the candidate is permitted to join. Equality is envisaged at all stages. Any arbitrary action or conduct of the employer or the recruiting agency to deny the benefits of recruitment process by not properly issuing and serving the appointment order to a candidate would equally amount to infringement of Articles 14 & 16. If it is not held so, a suitable person would be provided opportunity, but denied appointment."

In view of the foregoing, this Court is of the considered opinion that the letter of counselling Annexure P/3 was issued after a decision was already taken by the Jila Panchayat to appoint the petitioner. Since the said decision was within the period of validity of the waiting list, mere failure of the Jila Panchayat to issue the formal posting order on or before 07/02/2011 would not defeat the petitioner''s right to obtain a posting order for which she was entitled in law.

The respondent-Jila Panchayat is directed to issue posting order in favour of the petitioner within a period of one month from today.

As a sequel, the writ petition is allowed. No order as to costs.