WA 85/2009 BEFORE HON’BLE MR. JUSTICE RANJAN GOGOI HON’BLE MR. JUSTICE B.P.KATAKEY Ranjan Gogoi, J The writ appellants assail an order dated 11.11.2008 passed in a proceeding registered and numbered as WP(C) No. 6141/2007 by which the challeng e made by the appellants against an order dated 10.10.2007 has been negated by t he learned Single Judge. By the aforesaid order dated 10.10.2007 the services of the appellants/ writ petitioners have been terminated. 2. The brief facts that will be required to be noticed for the purp oses of the present adjudication may be enumerated hereinunder: An advertisement dated 22.10.97 was issued for filling up vacant posts of Assistant Audit Officer in the Assam Local Fund Audit Service. The num ber of posts for which the advertisement was issued was, however, not specified. The appellants along with other candidates took part in the selection that was held pursuant to which a select list was published on 8.5.2001. In the said sele ct list the names of the appellants were included. 70 persons from the aforesaid select list were appointed though, according to the appellants, a total of 104 vacant posts were available. It appears that the select list was extended from t ime to time. The extension of the select list which would be relevant for the pu rpose of the present case is the extension granted for six months w.e.f 8.11.200 2. According to the appellants, after the select list was so extended the Govern ment took a decision to fill up 23 more posts from the select list. Accordingly , on 23.12.2002 the approval of the State Level Empowered Committee (SLEC) was o btained and on 25.2.2003 the appellants were appointed. However, soon thereafter , i.e. on 13.3.2003 the said appointments were cancelled. 3. Aggrieved, WP(C) Nos. 2196, 2040, 2162, 2163 and 2039 of 2003 we re instituted challenging the aforesaid cancellations. Interim orders were passe d in the said writ petitions by virtue of which the petitioners therein continue d in service. The aforesaid writ petitions were disposed of on 22.9.003 by inter fering with the cancellations made and directing the Government to ascertain the number of existing vacancies and, thereafter, to adjust the candidates includin g the writ petitioners in order of merit. The candidates who were likely to be a ffected were required to be heard in person and in the event their services were to be terminated their entitlement to salary was required to be adjudicated. 4. Pursuant to the aforesaid order of this Court, on 17.12.2003 sho w cause notices were issued proposing action by way of termination on three prin cipal grounds, namely, i) that the appointments were made against non-existent p osts; ii) the same were without approval of the SLEC; and iii) in making such ap pointments the merit position in the select list was not adhered to. It appears that the appellants and other affected candidates submitted their written statem ents against the show cause notices and personal hearing was afforded on 5.8.200 4. Thereafter, by order dated 18.1.2005 the services of 23 persons including the appellants were once again terminated. The order dated 18.1.2005 terminating th e services of the appellants was subjected to a fresh round of challenge by mean s of a writ proceeding registered and numbered as WP(C) No. 1013/2005. The said writ petition was disposed of on 18.8.2005 directing the Government to proceed a fresh in the matter after giving personal hearing to the affected parties. It wo uld be useful to notice, in view of the arguments that had been advanced, that o n 4.10.2005, twenty more posts were filled up from the select list and in the sa id process of appointment five of the terminated candidates including four perso ns who had instituted WP(C) No. 1013/2005 were accommodated. 5. At this stage, notice must also be had of the review application filed by the State seeking recall of the order dated 18.8.2005 passed by this C ourt in WP(C) No. 1013/2005. The said review petition was rejected on 25.7.2007. Thereafter, personal hearing to the effected candidates including the appellant s was afforded on 14.9.2007 following which the impugned order dated 10.10.2007 had been passed terminating the services of the present appellants. The said ord er having been affirmed by the learned Single Judge on the grounds and reasons r ecorded in the impugned order dated 11.11.2008, the present appeal has been file d. 6. We have heard Mr AS Choudhury, learned senior counsel for the ap pellants and Mr D Saikia, learned counsel for the respondents. 7. Mr Choudhury, learned counsel for the appellants has vehemently contended that the order of this Court dated 18.8.2005 passed in WP(C) No. 1013 /2005 was not adhered to by the respondents before passing the order dated 10.10 .2007 terminating the services of the appellants. In this regard, it has been co ntended by Mr Choudhury that personal hearing, as required, was not afforded and , instead, all the affected persons were summoned and they had assembled in the office of the concerned authority on 14.9.2007. The said fact, according to the learned counsel, would not amount to affording an opportunity of personal hearin g. Mr. Choudhury has further submitted that in terms of the order of the Court d ated 22.9.2003 passed in WP(C) No. 2196/2003 and other connected cases to determ ine the necessary facts a Committee was constituted consisting of one Mr. R.L. D uwarah, Joint Secretary, Finance. The aforesaid Committee had conducted a fact finding exercise at the end of which a report was submitted to the effect that w ith the 70 (seventy) appointments made from the select list there were no furthe r vacancies available at the time when he appellants were appointed i.e. on 25.2 .2003. According to Mr Choudhury, the findings of the aforesaid Committee were n ot made available to the appellants though in the decision making process the sa id report has been relied upon. It is the further submission of Mr Choudhury tha t by the order dated 10.10.2007 the earlier order of termination dated 18.1.2005 has been affirmed though the order dated 18.1.2005 had been set aside by this C ourt in WP(C) No. 1013/2005. Lastly, it is contended by the learned counsel for the appellants that the appointment of twenty more candidates on 4.10.2005 belie s the claim of the Department that there were no further posts available. 8. Mr D Saikia, learned counsel for the respondents, on the other h and, has contended that from the materials on record it clearly appears that at the time of the advertisement 57 posts were available and 13 more vacancies had occurred during the currency of the selection process. A total of 70 posts were approved by the SLEC for being filled up on the basis of the select list which w ere accordingly filled up on different dates during the year 2002. Mr Saikia has further contended that from the records available including the report of Mr. R.L. Duwarah it clearly appears that the approval of the SLEC in respect of the 23 posts referred to by the appellants was really an approval for filling up 23 promotional posts which posts had been accordingly filled up by a process of pro motion. There was no further approval of the SLEC for filling up any further pos t(s) of Assistant Audit Officer until 4.10.2005 when 20 more posts were filled u p with SLEC approval. The above facts, according to Mr Saikia, would go to show that the appointments of the appellants were without SLEC approval and the refer ence to such approval in their appointment orders is an incorrect statement of f act. In so far as the issue with regard to personal hearing is concerned, it is the submission of the learned counsel for the respondents that the impugned orde r dated 10.10.2007 effectively recites that personal hearing was conducted on 14 .9.2007 and 20.9.2007. In this regard, Mr Saikia has further referred to the not ice dated 27.8.2007 issued to the concerned candidates including the appellants wherein the grounds and the basis on which the action was proposed had been clea rly set out. Referring to para 11 of the counter affidavit of the respondents, M r Saikia has submitted that the appellants and other effected candidates were du ly apprised of the report of Mr Duwarah and the contents thereof. Therefore, acc ording to Mr Saikia, there is no infirmity in the order dated 10.10.2007 and in the facts of the case as demonstrated by the official records, the appointments of the appellants were rightly cancelled as the same were made against non-exist ent posts and, that too, in violation of the established procedure. 9. We have considered the submissions advanced by the learned couns els for the contesting parties. We have also read and considered the very elabor ate judgment of the learned Single Judge and the various documents available on record. 10. On the basis of the selections held pursuant to the advertisemen t issued 280 candidates in order of merit were included in the select list dated 3.5.2001. The minutes of the Selection Board which were produced before the lea rned Single Judge clearly indicated, as recorded in the impugned order, that the select list was required to contain four times the number of the existing vacan cies. Not only the aforesaid fact but the official records considered by the le arned Single Judge and referred to in the impugned order clearly demonstrate tha t after the 70 appointments were made at the initial stage from the select list dated 3.5.2001 there were no further posts available for being filled up. In fac t, the aforesaid 70 posts consisted of 57 posts that were vacant at the time of advertisement and 13 additional vacancies which had occurred during the currency of the selection process. The absence of any SLEC approval for filling up of th e posts against which the appellants were appointed on 25.2.2003 is another fact that had been demonstrated by the official records placed before the learned Si ngle Judge. The 23 appointments which were made on 25.2.2003 including those of the appellants though claimed by the appellants to be with SLEC approval, were r eally without any such approval, inasmuch as, the order relied upon in this rega rd is with regard to filling up of promotional posts which posts were filled up by a separate process. If the official records demonstrated the said facts as ha d been recorded by the learned Single Judge, we do not see how any other conclus ion, save and except that the appointments of the appellants were against non-ex istent posts, could have been reached by the learned Single Judge or can be arri ved at by us in the present appeal. 11. In so far as the opportunity of personal hearing is concerned, t he appellants themselves admitted the fact that they had appeared before the con cerned authority on the dates on which such personal hearing was fixed i.e. on 1 4.9.2007 and 20.9.2007. 12. Furthermore, in para 11 of the counter affidavit of the responde nts it has been clearly averred that the report of Mr. R.L. Duwarah was informed to the affected candidates including the appellants at the time of personal hea ring. The said fact has not been denied or controverted by the appellants. In th e aforesaid fact situation it is not understood as to on what basis the Court h as been asked to come to the conclusion that in the present case there has been a denial of opportunity of personal hearing which was mandated by the order date d 18.8.2005 passed by this Court in WP(C) No. 1013/2005. The appointments agains t 20 additional posts made on 4.10.2005 has been pressed into service by the lea rned counsel for the appellants at the hearing. No challenge against the aforesa id appointments or extension of the select list upto 31.12.2005 to enable the sa id appointments to be made had been raised in the writ petition out of which thi s appeal has arisen. Though it has been stated that such a challenge had been ev entually made in other proceedings, what would be significant is the absence of any such challenge in the present proceeding. In such a situation, this Court wi ll not be required to consider either the correctness or the effect of the said appointments in the present case and the necessary determination in this regard must be left for a just decision in the proceeding(s) where such questions may h ave been raised. 5(five) of the terminated candidates including 4 (four) of the writ petitioners in WP(C) No. 1013/2005 have been appointed in the said round o f appointment. It is not the case of the appellants that by virtue of their meri t position in the select list they were entitled to be appointed against any of the aforesaid 20(twenty) posts. Neither it is the case of the appellants that by virtue of their merit position in the select list they are entitled to be appoi nted against the 70 posts against which the initial appointments were made in th e year 2002. The contention that filling up of the 20 posts belies the claim of the respondents that no further posts were available also cannot be accepted in view of the fact that the aforesaid 20 posts must have become available much aft er the date of determination that on the date of appointment of the appellants t here were no available vacant posts. 13. The above discussion leaves us satisfied that the appointments o f the appellants were made against non-existent posts without the requisite appr oval of the SLEC and also without adhering to the order of merit arranged in the select list dated 3.5.2001. Such appointments, therefore, have to be considered to be non-est in law. Consequently, we deem it proper to concur with the view t aken by the learned Single Judge and affirm the order dated 11.11.2008 passed in WP(C) No. 6141/2007. 14. Resultantly, this writ appeal is dismissed. However, in the fact s and circumstances of the case, we leave the parties to bear their own costs. 15. After the order had been dictated, Mr AS Choudhury, learned sen ior counsel for the appellants has submitted that a fresh advertisement has been issued for some other posts of Assistant Audit Officer. It has been submitted t hat the appellants who have now been rendered unemployed have also become over aged in the meantime and, therefore, are not eligible to submit their applicatio ns pursuant to the advertisement issued. Mr Choudhury has also submitted that th ough the last date for submission of application is over, the Court may consider it appropriate to permit the appellants to submit applications pursuant to the advertisement issued by issuing necessary directions. 16. Mr D Saikia, learned counsel for the respondents has left it to the Court to pass orders as may be considered appropriate in the matter. On due consideration, we are of the view that in the peculiar facts of the case, the ap pellants, if they so desire, may submit their applications pursuant to the adver tisement issued along with applications for condonation of their upper age and o n receipt of such applications, the concerned authority will be at liberty to pa ss necessary orders with regard to the participation of the appellants in the fr esh/impending process of selection.