WP(C) 4549/2004 BEFORE THE HON’BLE MR JUSTICE B K SHARMA IN THE GAUHATI HIGH COURT THE HIGH COURT OF ASSAM, NAGALAND, MEGHALAYA, MANIPUR, TRIPURA, MIZORAM & ARUNAC HAL PRADESH WP(C) No. 4549/2004 Smti Subarna Tamuli, D/o Late Lalit Tamuli, Village-Meragarh, P.O. Bongaon, Dist.-Jorhat, Assam. & Petitioner - Vs - 1. The State of Assam, represented by the Commissioner and Secretary to the Govt. of Assam, Education Department, Dispur, Guwahati-6. 2. The Secretary to the Govt. of Assam, Education Department, Dispur, Guwah ati-6. 3. The Director of Secondary Education, Assam, Kahilipara, Guwahati-19. 4. The Inspector of Schools, Jorhat District Circle, Majuli, Dist.-Jorhat, Assam. 5. The Principal, Meragarh Narayan Dev higher Secondary School, Majuli, Jor hat, Assam. 6. Sri Pradip Saikia, S/o Sri Sonaram Saikia, Village Majuli Mudoigaon, P.O . Bongaon, Dist.-Jorhat, Assam. & Respondents BEFORE THE HONBLE MR. JUSTICE B.K. SHARMA For the Petitioner: Mr. B. Buragohain, Ms. A. Das, Mrs. P. Borah Mr. PK Gogoi, Advocates For the Respondents: Ms. M. Gogoi, SC, Education. Dates of hearing : 19.12.2006 Date of Judgment and Order: JUDGMENT AND ORDER This writ petition has been filed praying for a direction to the respondents to appoint the petitioner as Lower Division Assistant (LDA) in the school in questi on. Such a prayer has been made on the basis of the selection of the petitioner for one of the two posts advertised. 2. The petitioner was first appointed in the school namely Meragarh Narayan Dev Higher Secondary School, Majuli by Annexure-1 order dated 8.12.1981 issued by the Inspector of Schools, Jorhat District Circle, Jorhat. Such appointment wa s against a leave vacancy. He worked against the vacancy upto 30.11.1982. In 199 2 (8.10.1992), one Sri Pradip Saikia (respondent No. 6), was allowed to act as L DA on honourary basis subject to approval by the Development Committee of the Sc hool and the Government. The matter relating to appointment of said Sri Saikia c ame up for discussion before the Development Committee in its meeting held on 2. 1.1993 and in the meeting it was resolved to cancel the appointment and accordin gly, said Sri Saikia was intimated by letter dated 6.1.1993. 3. After the aforesaid cancellation of appointment of the respondent No. 6 the petitioner was asked to work as Typist in the school as and when occasion fo r engagement arose. In the meantime, the school authority sent a proposal to the government for sanctioning a post of LDA. A sanctioned post of 1991 was allotte d to the school in 1994. After such allotment of the post, the petitioner was al lowed to work against the same. He was formally appointed by order dated 5.2.199 4 limiting the same for three months. While he was continuing as such, his servi ce was terminated and in his place the respondent No. 6 was appointed by order d ated 14.2.1995 and the same was stated to be pursuant to the order dated 8.1.199 5 passed by this Court in the writ petition being Civil Rule No. 99/1994 filed b y the respondent No. 6. 4. Being aggrieved by the aforesaid order of this Court, the present petiti oner preferred review application No. 43/1996 and the same was disposed of by or der dated 1.9.1998 providing consideration of appointment for the post of LDA fo llowing the procedure prescribed by the rules. It was provided that it would be open for both the petitioner and the respondent No. 6 to apply for the post. Wit h the passing of the order on the review petition, the order passed in the writ petition got rescinded. According to the petitioner inspite of the said order on review the respondents allowed the respondent No. 6 to continued in his service and in fact he had been upgraded to the post of UDA. It is the further grievanc e of the petitioner that contrary to the direction contained in the said order o n review, the respondents although have conducted interview for two posts of LDA and inspite of the selection of the petitioner have not taken steps for his app ointment. The selection was conducted on 9.12.1999 and both the respondent No. 6 and the petitioner were selected. Their respective merit positions are serial N o. 1 and 2. The advertisement was for two vacancies and the same was issued on 2 5.1.1999. 5. In the aforesaid fact situation, the petitioner preferred writ petition being WP(C) No. 6550/2001 and the same was disposed of by order dated 25.4.2003 directing the respondents that if the select list in question was valid and oper ative and the authority was inclined to act on the basis of the select list, the case of the petitioner be considered as per the merit list against any such vac ancy that may be available in the school. 6. The grievance raised in the instant writ petition is that, inspite of th e aforesaid direction of this Court, the respondents have been dilly-dallying wi th the matter and in the process the petitioner has been made to suffer. As per the said order of this Court, necessary order was to follow within two months fr om the date of receipt of the certified copy of the order. By Annexure-10 commun ication dated 1.8.2001, the Principal of the School requested the Director of Se condary Education, Assam to take necessary action in the matter towards filling up of the vacant post of LDA. By Annexure-11 communication dated 28.7.2003, the Inspector of Schools, Jorhat intimated the Director about holding of the selecti on in 1999 and preparation of the select list. There after by Annexure-12 commun ication dated 26.8.2003, the Director had intimated the Secretary to the Governm ent of Assam in the Education Department that the post of LDA was lying vacant d ue to up gradation of the existing LDA to that of UDA. By the said communication , he asked for necessary approval of the Government for appointment of the petit ioner. 7. After the aforesaid developments, the Secretary to the Government of Ass am in the Education (E&S) Department passed the impugned order dated 15.5.2004. The order has been passed purportedly in compliance of the aforesaid order dated 25.4.2003 passed in WP(C) No. 6550/2003. A bare perusal of the order will go to show that the Secretary has not answered the issue involved, but has only state d that the case of the petitioner would be considered, if she applies for the po st and takes part in the selection process. In the order, nothing has been state d about the selection already conducted and the fact that the petitioner is a se lected candidate. 8. Although the writ petition is pending for the last more than two years a fter its entertainment, neither the official respondents nor the private respond ent has shown any response by filing any counter affidavit or furnishing any ins truction to the learned Standing Counsel, Education Department. 9. I have heard Mr. B. Buragohain, learned counsel for the petitioner as we ll as Ms. M. Gogoi, learned Standing Counsel, Education Department. I have also perused the materials on record. The position, which has emerged is that while t he respondent No. 6 has been accommodated first as LDA and thereafter upgrading him as UDA, the petitioner inspite of his selection against two posts of LDA has not been so accommodated. The Director of Secondary Education, Assam by his afo resaid communication dated 26.8.2003 sought for approval of the Government for a ppointment of the petitioner against one of the vacancies. In the impugned order dated 15.5.2004, no reason has been assigned as to why the select list could no t be acted upon. There is no dispute that two posts of LDA were advertised and s election was also held for the same. While the petitioner occupied merit positio n No. 2, the respondent No. 6 occupied the merit position No. 1 and thus in the normal course both of them ought to have been accommodated against the two vacan cies. While the respondent No. 6 has been accommodated, the respondents have not taken any action to accommodate the petitioner. 10. The impugned order dated 15.5.2004 has been noticed above. There is noth ing substantial in it. Except referring to the factual aspects of the matter and the orders passed by this Court, nothing has been stated as to why the petition er could not be appointed. In the order, it has not been disputed that the petit ioner was selected for appointment against a vacant post. While it is true that mere selection of a candidate does not confer on him the indefeasible right for appointment, but at the same time, the respondents also cannot act arbitrarily s o as to deprive the selected candidate of his legitimate right of appointment pu rsuant to selection. In the instant case, this Court by its order on review as w ell as the order passed in WP(C) No. 6550/2001 provided for consideration the ca se of both the incumbents. While the respondent No. 6 has been appointed and eve n upgraded, the petitioner is still running from pillar to post to get his due b y way of appointment. The respondents as such, as evident from the impugned orde r dated 15.5.2004 have assigned any reason, as to why the petitioner could not b e appointed. 11. In the above context, the observation of the Apex Court in the case of R S Mittal Vs. Union of India reported in 1995 Supp (2) SCC 230 may be noted: It is no doubt correct that a person on the select panel has no vested right to be appointed to the post for which he has been selected. He has a right to be c onsidered for appointment. But at the same time, the appointing authority cannot ignore the select panel or decline to make the appointment on its whims. When a person has been selected by the Selection Board and there is a vacancy which ca n be offered to him, keeping in view his merit position, then a ordinarily, ther e is no justification to ignore him for appointment. There has to be a justifiab le reason to decline to appoint a person who is on the select panel. In the pres ent case, there has been a mere inaction on the part of the Government. No reaso n whatsoever, not to talk of a justifiable reason, was given as to why the appoi ntments were not offered to the candidates expeditiously and in accordance with law. The appointment should have been offered to Mr. Murgad within a reasonable time of availability of the vacancy and thereafter to the next candidate. The Ce ntral Government’s approach in this case was wholly unjustified. 12. When the fact of availability of vacancy and the selection of the petiti oner within the zone of consideration, is not in dispute and the impugned order does not stand to reason, there is no escape from the liability and responsibili ty on the respondents to appoint the petitioner against the vacant post of LDA i n the school. Accordingly, the direction is issued for appointment of the petiti oner against the vacant post of LDA in Meragarh Narayan Dev Higher Secondary Sch ool, Majuli. This shall be done within 28th February, 2007. Whatever formalities required to be observed in this regard in association with any other Department s, which might be involved, shall be so carried out within this stipulated perio d and the said Departments shall also do the needful in this regard within the s aid stipulated period. 13. Writ petition is allowed, without, however, any order as to costs.