Tongbram Deepa Dev vs State Of Manipur And Others

Kh. Nobin Singh, J

[1] Heard Shri N. Mahendra, the learned counsel appearing for the petitioners and Shri Y. Ashang, the learned Government Advocate appearing for the respondents.

[2] By the instant writ petition, the petitioners have prayed for issuing a writ of certiorari or any other appropriate writ to quash the Office Order dated 04-11-2017 issued by the Chief Engineer, Minor Irrigation Department, Manipur, the respondent No.4 herein cancelling the recruitment process initiated pursuant to the Notification dated 29-11-2016.

[3.1] The facts and circumstances as narrated in the writ petition, are that a Notification dated 29-11-2016 was issued by the Chief Engineer, Minor Irrigation Department, Manipur, inviting applications from amongst the eligibility candidates for appointment to various posts including the post of Office Assistant-cum-Computer operator/ LDC on temporary basis through sponsorship of the concerned employment exchange and in response thereto, the petitioners being eligible applied for appointment to the post of Office Assistant-cum-Computer Operator/ LDC and accordingly, the admit cards were issued in their favour.

[3.2] On 22-12-2016 the written test was held and the petitioners were found to be successful therein as is evident from the Notification dated 27-12-2016 issued by the Chief Engineer, Minor Irrigation Department, Manipur and on the basis of the result of the written test, the Computer Test was held on 02-01-2017 at NIELIT, Akampat, Imphal East vide Notification dated 28-12-2016 and the petitioners were found to be successful in the Computer Typing Test as well vide Notification dated 02-01-2017. The Viva-Voice test was held on 04-01-2017 and the result thereof was declared on the same day and the State Government vide its letter dated 04-01-2017 approved the recommendation made by the Selection Committee which recommended the names of the petitioners.

[3.3] In view of a memorandum issued by the Election Commission of India in respect of the assembly election, the Chief Engineer, Minor Irrigation Department, Manipur issued an order dated 04-01-2017 stopping the recruitment process till the election process was completed and after the assembly election having been held in the month of March 2017, the petitioners were eagerly waiting for appropriate order to be issued by the State Government with respect to the recruitment process. The respondent No.1, after reviewing the earlier order dated 18-03-2017 regarding the ban on transfer and posting and appointment, issued an order 15-04-2017 informing that all Departments might issue orders of appointment and transfer and posting with approval from the competent authority. On 14-11-2017 the petitioners came to know from the reliable sources that the Chief Engineer, Minor Irrigation Department, Manipur had issued the impugned order dated 04-11-2017 cancelling the recruitment process on the ground that the recruitment process was undertaken by the Department during the enforcement period of the model code of conduct. Being aggrieved by the said order 04-11-2017, the instant writ petition has been filed by the petitioners.

[4] Despite sufficient number of opportunities being granted to the respondents, no counter affidavit was filed on behalf of the respondents. Since the averments made in the writ petition have not been denied, the same shall be deemed to have been admitted by the respondents in terms of the law laid down by the Hon'ble Supreme Court in a catena of decisions.

[5] It has been submitted by Shri N. Mahendra, the learned counsel appearing for the petitioners that the cancellation of the recruitment process was illegal; that the recruitment process was almost over by the time when the model code of conduct was imposed by the Election Commission of India except issuance of appointment order, offer forms etc. and that there was no complaint from anyone with respect to the manner in which the recruitment process was undertaken by the Selection Committee. On the other hand, Shri Y. Ashang, the learned Government Advocate relying upon two decisions rendered by the Hon'ble Supreme Court, has contended justifying the cancellation of the recruitment process vide impugned order dated 04-11-2017 issued by the State Government. The first decision relied upon by him is the one rendered in District Basic Education Officer & anr. Vs. Dhananjai Kumar Shukla & ors., (2008) 3 SCC 481 wherein the Hon'ble Supreme Court has held that the appointment of the respondent No.1 being contrary to the mandatory provisions as contained in Rule 6 of the Rules, the same was a nullity. An appointment which was perse illegal could not have been directed to be legalised only because the appellant did not file its counter affidavit. The second is the one in Amarjeet Singh & ors. Vs. Devi Ratan & ors., (2010) 1 SCC 417 wherein the subject matter in relates to the change of criteria for promotion from "merit" to "seniority subject to rejection of unfit". The Hon'ble Supreme Court has held that the seniority which is consequential to the promotion could not be challenged without challenging the promotion. Challenging the consequential order without challenging the basic order is not permissible. On perusal of the said decisions, it appears to this court that the same are not applicable to the facts of the present case for the reason that the facts of that case are not identical to that of the present case. The short question that arses for consideration by this court, is as to whether the action of the State Government in cancelling the recruitment process is reasonable and valid having regard to the facts and circumstances of the present case. The Hon'ble Supreme Court, after having considered various issues relating to cancellation of recruitment process in some cases, has settled the law that in view of the provisions of Article 14 of the Constitution of India, such decision shall be taken by the Government bonafide and on valid reasons. By way of illustration, some of the decisions of the Hon'ble Supreme Court are referred to herein. In Mrs. Asha Kaul & anr. vs. State of Jammu & Kashmir & ors., (1993) 2 SCC 573, the Hon'ble Supreme Court held:

"8. It is true that mere inclusion in the select list does not confer upon the candidates included therein an indefeasible right to appointment (State of Haryana v. Subhash Chandra Marwaha; Mani Subrat Jain v. State of Haryana; State of Kerala v. A. Lakshmikutty) but that is only one aspect of the matter. The other aspect is the obligation of the government to act fairly. The whole exercise cannot be reduced to a farce. Having sent a requisition/ request to the commission to select a particular number of candidates for a particular category, - in pursuance of which the commission issues a notification, holds a written test, conducts a notification, holds a written test, conducts interviews, prepares a select list and then communicates to the government-the government cannot quietly and without good and valid reasons nullify the whole exercise and tell the candidates when they complain that they have no legal right to appointment. We do not think that any government can adopt such a stand with any justification today. This aspect has been dealt with by a Constitution Bench of this Court in Shankarsan Dash v. Union of India where the earlier decisions of this court are also noted. The following observations of the court are apposite: (SCC pp. 50-51, para 7)

"It is not correct to say that if a number of vacancies are notified for appointment and adequate number of candidates are found fit, the successful candidates acquire an indefeasible right to be appointed which cannot be legitimately denied. Ordinarily the notification merely amounts to an invitation to qualified candidates to apply for recruitment and on their selection they do not acquire any right to the post. Unless the relevant recruitment rules so indicate, the State is under no legal duty to fill up all or any of the vacancies. However, it does not mean that the State has the licence of acting in an arbitrary manner. The decision not to fill up the vacancies has to be taken bona fide for appropriate reasons. And if the vacancies or any of them are filled up, the State is bound to respect the comparative merit of the candidates, as reflected at the recruitment test, and no discrimination can be permitted. This correct position has been consistently followed by this Court, and we do not find any discordant note in the decisions in State of Haryana v. Subhash Chander Marwaha, Neelima. Shangla v. State of Haryana or Jatendra Kumar v. State of Punjab."

In East Cost Railway & anr. Vs. Mahadev Appa Rao & ors., (2010) 7 SCC 678, the Hon'ble Supreme Court held:

"14. It is evident from the above that while no candidate acquires an indefeasible right to a post merely because he has appeared in the examination or even found a place in the select list, yet the State does not enjoy an unqualified prerogative to refuse an appointment in an arbitrary fashion or to disregard the merit of the candidates as reflected by the merit list prepared at the end of the selection process. The validity of the State's decision not to make an appointment is thus a matter which is not beyond judicial review before a competent writ court. If any such decision is indeed found to be arbitrary, appropriate directions can be issued in the matter.

It is trite that Article 14 of the Constitution strikes at arbitrariness which is an anti thesis of the guarantee contained in Articles 14 and 16 of the Constitution. Whether or not the cancellation of the typing test was arbitrary is a question which the Court shall have to examine once a challenge is mounted to any such action, no matter the candidates do not have an indefeasible right to claim an appointment against the advertised posts."

[6] In the present case, it is not in dispute that a Notification dated 29-11-2016 was issued by the Chief Engineer, Minor Irrigation Department, Manipur, inviting applications from amongst the eligibility candidates for appointment to various posts including the post of Office Assistant cum Computer operator/ LDC and in response thereto, the petitioners applied for it. On 22-12-2016 the written test was held and on the basis of the result thereof, the Computer Test was held on 02-01-2017 vide Notification dated 28-12-2016 and the petitioners were found to be successful in both the Tests. The Viva-Voice test was held on 04-01-2017 and the result thereof was declared on the same day and the State Government vide its letter dated 04-01-2017 conveyed its approval on the recommendation made by the Selection. But in compliance with the letter dated 04-01-2017 issued by the Chief Electoral Officer, the Chief Engineer, Minor Irrigation Department, Manipur issued an order dated 04-01-2017 stopping the process of recruitment till the election process was completed and after the assembly election having been held in the month of March 2017, the respondent No.1, after reviewing the earlier order dated 18-03-2017 regarding the ban on transfer and posting and appointment, issued an order dated 15-04-2017 informing that all Departments might issue orders of appointment and transfer and posting with approval from the competent authority. However, on 14-11-2017 the petitioners came to know that the Chief Engineer, Minor Irrigation Department, Manipur had issued the impugned order dated 04-11-2017 cancelling the recruitment process on the ground that the process of recruitment was undertaken by the Department during the enforcement period of the model code of conduct. The reason for cancellation does not appear to be correct for the reason that as seen hereinabove, the recruitment process was initiated vide Notification dated 29-11-2016 and was completed on 04-01-2017 on which the model code of conduct came into force. At the most, it can be said that the recruitment process was brought to an end in haste but that by itself cannot be a valid ground for cancellation. The State Government ought to have examined whether the recruitment process was undertaken in accordance with law and in other words, the State Government ought to have seen if there was any lapse in the recruitment process or considered the issues like-whether the posts were created; whether the equal opportunity as enshrined in Article 16 of the Constitution of India, was given; whether the eligibility criteria was fulfilled: whether the principles of natural justice were followed etc. But it is nowhere mentioned in the impugned order that any provision of law has been violated while undertaking the recruitment process. The only reason given in the impugned order is that the recruitment process was cancelled because it was undertaken during the period of enforcement of the model code of conduct which appears to be improper and bad in law in terms of the decisions of the Hon'ble Supreme Court as aforesaid. As has been stated hereinabove, the recruitment process was almost complete but the appointment orders could not be issued prior to the enforcement of the model code of conduct. What has been virtually left in the recruitment process is only a mere formality for issuing appointment orders by the State Government.

[7] In view of the above and for the reasons stated hereinabove, the instant writ petition is allowed and consequently, the impugned order dated 04-11-2017 issued by the Chief Engineer, Minor Irrigation Department, Government of Manipur is quashed and set aside with no order as to costs. The respondents shall take appropriate steps to complete the recruitment process at an early date.