WP(C) 6141/2007 BEFORE HON’BLE MR. JUSTICE AMITAVA ROY JUDGMENT AND ORDER (ORAL) The instant proceeding witnesses a relentless struggle by the petitioners to sav e their appointments as Assistant Audit Officers in the Assam Local Fund Audit S ervice under the Administrative Control of Director of Audit (Local Fund) Assam, Guwahati. They seek herein annulment of the order dated 10.10.2007 passed by t he Commissioner and Secretary to the Govt. of Assam, Finance (Estt-B) Department , terminating their services. A claim for salary without prejudice to the above for the period commencing from 18.01.2005, has also been registered. 02. I have heard Mr. AS Choudhury, Senior Advocate assisted by Mr. M H Ahmed, Advocate for the petitioners and Mr. D Saikia, learned Standing Counsel , Finance Department for the official respondents. 03. The pleaded narrations of the parties would provide the foundati on of their emulous contentions. In response to an advertisement dated 22.10.19 97 published by the Director of Audit (Local Fund) Assam (hereafter for short re ferred to as the ’Director’), in the local daily namely, Dainik Assam , invitin g applications from qualified and intending candidates for recruitment of the Au dit Officers as referred to hereinabove, the petitioners along with others offer ed their candidature. They appeared in the written test and thereafter were cal led in the interview on the schedule dates. They having passed the written test were empanelled in the select list and claim to have performed well in the viva -voce, as well. According to them, at the relevant time though, there were 104 vacant posts in the cadre of Assistant Audit Officer, the respondent authorities appointed only 70 candidates from the final select list. The Director having r equested the Government on 03.05.2002 to extend the validity of the select list, the same was acceded to and the decision to that effect was conveyed by the let ter dated 23.12.2002 of the Deputy Secretary to the Government of Assam, Finance (Estt-B) Department, whereby the term of the select list was extended for a per iod of 6 months w.e.f. 08.11.2002. The petitioners have maintained that the respondent authorities thereafter took a decision to fill up further 23 posts as per the approval of the State Level Em powered Committee (hereafter for short also referred to as the ’SLEC’), conveyed by it on 23.12.2002 and accordingly, they by order dated 25.02.2003 were appoin ted in the aforementioned post. The petitioners, accordingly, joined the office immediately thereafter and started rendering their services. Soon thereafter, in compliance of the direction contained in the letter dated 13.03.2003 of the D eputy Secretary, Government of Assam, Finance (Estt-B) Department to the Directo r to cancel the appointment of the petitioners, the latter on the same date gave effect thereto. 04. The petitioners being aggrieved, approached this Court with W.P( C) Nos.2196, 2040, 2162, 2163, 2039/2003, assailing the cancellation of their ap pointments. The orders of termination of their services having been kept in abe yance, the petitioners continued in their respective posts. Incidentally, in a similar fashion the appointments of several LDA and peons in the same office hav ing been cancelled, they had also approached this Court with a series of writ pe titions, which were allowed on 26.06.2003 interfering with the orders impugned, however, leaving the State respondents at liberty to serve notice to the persons concerned to show cause as to why their services would not be terminated. By c ommon judgment and order dated 22.09.2003, the orders of termination dated 13.03 .2003 vis-a-vis the petitioners were set aside and the concerned administrative authority was directed to ascertain the number of existing vacancies and thereaf ter adjust the candidates including the writ petitioners and others in order of merit. The candidates, who were thus likely to be ousted, were required to give a predecisional hearing and in case they were not likely to be retained, the is sue pertaining to payment of their salary, was also ordered to be considered. 05. The Deputy Secretary to the Government of Assam, Finance (Estt-B ) Department, thereafter on 17.12.2003 issued show cause notices to the petition ers asking them to submit their written statement against the action proposed on the grounds that the appointments had been made i) against non-existing posts, ii) without the approval of the SLEC and observing the reservation policy and ii i) without maintaining the seriality in the select list by overlooking candidate s superior to them in merit. The petitioners submitted their written statements on 17.12.2003, whereafter, th ey were on 05.08.2004 asked to appear before the concerned departmental authorit ies. The petitioners have alleged that without conducting an enquiry as ordered by this Court in W.P(C) No. 2196/2003, by various orders dated 18.01.2005 their services were terminated with effect therefrom. According to them, though, the similarly appointed LDAs and Peons were served with such notices, they were ret ained in service. 06. Being dissatisfied with the termination of their services, the p etitioners again approached this Court with W.P(C) No. 1013/2005, which was disp osed of on 18.08.2005 permitting the competent State authorities to proceed afre sh in the matter after affording personal hearing to the petitioners in accordan ce with law. The impugned orders dated 18.01.2005 were set aside. The petition ers have complained that inspite of the above, they were not allowed to continue in service and their salary w.e.f. 18.01.2005 was also withheld. In the above premise, they initiated a contempt proceeding being Cont. Case No. 63/2006, whic h is pending. The respondent authorities, however, by order dated 04.10.2005 fi lled up 20 more vacancies from the same select list, in the process whereof, 4 p etitioners in W.P(C) No. 1013/2005 were also accommodated. This the petitioners have insisted, was done after a lapse of 3 years of the publication of the sele ct list, which in the above view of the matter, have been declared to be invalid by this Court in W.P(C) No. 1995/2005. 07. In the meantime, a review application being Review Petition No. 130/2006 filed by the State respondents for modification of the order dated 18.0 8.2005 passed in W.P(C) No. 1013/2005, was dismissed on 25.07. 2007. The petiti oners have asserted that after the dismissal of the review petition, the Commiss ioner and Secretary, Government of Assam, Finance Department by his order dated 27.08.2007 required them to appear in person before him on 14.09.2007 for person al hearing, which they complied with. After hearing them, by the impugned order dated 10.10.2007 the aforementioned authority sustained the decision of cancell ing their appointment as recorded in the order dated 18.01.2005. 08. The State respondents in their counter, have categorically averr ed that at the relevant point of time, the existing number of vacancies in the p ost of Assistant Audit Officer, had been 70 and not 104 as pleaded by the petiti oners. These 70 posts in terms of the approval of the SLEC conveyed in the year 2002 were, accordingly, filled up from the select list in order of merit. Acco rding to the answering respondents, at the time of the advertisement the number of vacancies stood at 57, which rose to 70 for filling up of which SLEC had comm unicated its approval in January, 2002. The contention that the State Governmen t had taken a decision to fill up further 23 posts of Assistant Audit Officers f rom the select list as per the approval of the SLEC has been denied. According to the State respondents, the letter dated 31.12.2002 referred to in the appoint ment letters of the petitioner carried the approval of the SLEC for filling up t he posts mentioned therein by way of departmental promotion and not through dire ct recruitment. The State respondents have maintained that the posts referred t o in the letter dated 31.12.2002 were, accordingly, filled up by promotion. According to the answering respondents, not only the appointments of the 23 cand idates including the present petitioners were made against non-existent posts, b ut also at random by disregarding the interse merit reflected in the select list . It has been contended that in terms of the order dated 22.09.2003 passed by t his Court in W.P(C) No. 2196/2003, one Shri RL Duara, ACS, the then Joint Secret ary, Government of Assam, Finance Department, was on 05.11.2003 appointed as enq uiry officer to identify the candidates appointed against the existing as well a s non-existent vacancies and that the exercise revealed that the 23 candidates i ncluding the petitioners, had been appointed against non-existent posts in total violation of the procedure in a highly arbitrary manner. The State respondents have reaffirmed that after 12.06.2002, there was no vacancy in the post of Assi stant Audit Officer and that accordingly, the appointments of the said 23 person s were terminated on 18.01.2005. 09. The answering respondents have asseverated that pursuant to the decision of this Court in W.P(C) No. 1013/2005 and in the review petition, a fre sh process was initiated and after due examination of the relevant records and u pon hearing the petitioners, the impugned orders dated 10.10.2007 have been pass ed reiterating the order dated 18.01.2005. The said respondents have sought to explain that the reinstatement of the petitioners, meanwhile, was not considered due to the pendency of the review petition. They have, however, affirmed that following the extension of the validity of the list till 31.12.2005 on 04.10.200 5, 20 more candidates from the same select list were appointed against resultant vacancies on merit with the approval of the SLEC by duly complying with the res ervation policy. The State respondents have confirmed that out of the 20 candid ates, 4 persons, whose services were initially terminated, have been inducted. It has been further affirmed that in compliance of the order dated 22.09.2003 of this Court in W.P(C) No. 2196/2003, the persons concerned, have been paid their salary upto 18.01.2005. The answering respondents have endorsed the impugned a ction contending that the appointment of the petitioners had been made against n on-existent posts without the approval of the SLEC and also in breach of the mer it position projected in the select list. 10. The petitioners in their affidavit-in-reply, have substantially reiterated their plea in the writ petition. They have also by an additional aff idavit brought on records, the impugned order dated 10.10.2007 relating to all o f them. 11. In the above backdrop, Mr. Choudhury, has strenuously urged that the grounds enumerated in the show cause notices being incompatible with those on which the impugned orders are founded, the cancellation of the appointments o f the petitioners is, per se, arbitrary and unconstitutional and is liable to be adjudged as such. The learned Senior Counsel has contended that if the appoint ments had actually been made against the non-existent posts, the other purported vitiable factors are rendered wholly irrelevant. Reference thereto, therefore, only betrays the untenability of the State action, he pleaded. Mr. Choudhury, maintained that appointment of 20 fresh candidates on 04.10.2005, per se, belies the ostensible assertion of the State respondents against the existence of vaca nt posts beyond 70 after 12.06.2002. More over, lack of bona fide on their part is writ large from their abstinence to reinstate the petitioners following the annulment of the earlier termination orders dated 18.01.2005 set at naught by th is Court in W.P(C) No. 1013/2005. The learned Senior Counsel also urged discrim ination, contending that the LDAs and Peons, who had been similarly appointed, h ad been allowed to continue in service, though, they were earlier sought to be d eposed on grounds identical to the one applied against the petitioners. 12. The learned Standing Counsel, with reference to the official rec ords, in reply, maintained that though, there were 57 posts of Assistant Audit O fficer lying vacant at the time of the advertisement, the same increased to 70 t ill the conduct of the process and the SLEC having granted its approval to fill up those, candidates from the select list in order of merit, were appointed ther eto. Mr. Saikia, urged that the appointments of the 23 persons including the pe titioners beyond the said posts were, thus ex-facie, illegal, the same having ma de against the non-existent posts. Drawing the attention of this Court to the n otification dated 04.10.2005 of the Under Secretary, Government of Assam, Financ e (Estt-B) Department, extending the validity of the select list upto 31.12.2005 , the learned Standing Counsel, has affirmed that 20 fresh candidates had been a ppointed against the resultant vacancies occurring meanwhile by the candidates f rom the same select list. While reiterating that 5 of the 23 persons, whose ser vices were earlier terminated, have in terms of their merit, been appointed in t he second phase, Mr. Saikia, has emphatically contended that the impugned orders have been passed in strict compliance of the directions of this Court following an elaborate enquiry and on examination of the contemporaneous records and thus no interference therewith is warranted. The learned Standing Counsel to endors e his arguments placed reliance on the official records produced before this Cou rt for inspection. 13. I have extended my cautious attention to the rival pleadings and the arguments based thereon. Noticeably, the validity of the selection process involved, is not in question. The advertisement, per se, does not disclose the number of posts of Assistant Audit Officer for which the exercise had been init iated. In terms thereof, however, written tests as well as interviews were cond ucted and the Selection Board constituted for the purpose, in its meeting held o n 08.05.2001 drew up a list of 280 candidates including the petitioners and othe rs. The minutes of the meeting as contained in the official records nomenclatur ed as No. DAE.6/97/2001/100, discloses that the list was prepared to include 4 t imes the number of existing vacancies in order of preference. This in turn proc laims that there were 70 existing vacancies in the aforementioned post for which the empanelment was made at the relevant time. The said records also contain a letter dated 09.01.2002 of the Deputy Secretary, Government of Assam, Finance ( Estt-B) Department, conveying the sanction of the Government of Assam to the cle arance of SLEC to fill up 70 vacant posts of Assistant Audit Officer by way of d irect recruitment from the said select list. The records reveal that appointmen ts to the said 70 posts were, thereafter, made on 11.01.2002 onwards. The conte mporaneous materials available, therefore, evince that before the appointment of the petitioners 70 existing vacant posts of Assistant Audit Officer had been fi lled up from the select list, as approved by the SLEC. There is nothing on reco rd to suggest that at that point of time 104 vacancies for such posts in all exi sted. There is, thus, nothing to doubt the State’s version that 70 existing posts of A ssistant Audit Officer had been filled up from the select list in order of merit in the year 2002 and that no other vacancy in the said post existed on 25.02.20 03 to accommodate the petitioners and 6 others (23 in all). Significantly, it i s not the case of the petitioners that from the view point of their interse meri t, they were entitled to be accommodated against the said 70 posts at the first instance. The letter No. FEB.26/2002/1 dated 31.12.2002 referred to in the appo intment letters of the petitioners and signifying the approval of the SLEC, ther efor, in fact pertains to promotion to the posts of Audit Officer and Assistant Audit Officers as referred to therein and not for direct recruitment from the se lect list in question. The assertion of the State respondents that the appointm ent of the petitioners lacked approval of the SLEC, therefore, cannot be brushed aside, more particularly, in absence of such approval in the official records p roduced before this Court. Admittedly, however, meanwhile by letter dated 23.12 .2002, the validity of the select list had been extended for a period of 6 month s w.e.f. 08.11.2002. 14. The records further divulge that in compliance of the order date d 22.09.2003 passed in W.P(C) No. 2196/2003 show cause notices were issued on 17 .12.2003 to the petitioners disclosing the grounds on which their appointments w ere sought to be cancelled. The petitioners having submitted their written expl anation, by orders dated 18.01.2005 their appointments were adjudged to be void ab initio, the same having been made against the non-existent posts and also in breach of the interse merit of the candidates as catalogued in the select list. The records further unveil that before the issuance of the show cause notice da ted 17.12.2003, by order dated 15.11.2003, Shri RL Duara, ACS, the then Joint Se cretary of the Department was appointed to conduct an enquiry to identify the ca ndidates appointed against existing and non-existing vacancies and to ascertain the excess appointments in compliance of the order dated 22.09.2003 passed in W. P(C) No. 2196/2003. The report submitted on the conclusion of the enquiry, test ified that on filling up of 70 vacant posts of Assistant Audit Officer from the select list, all available vacancies as on 12.06.2002 were exhausted and thus on 25.02.2003 the appointments of the petitioners and 6 others were against non-ex istent posts. The report substantiated that there was neither any approval of t he SLEC for the said appointments nor was the order of merit as projected by the select list adhered to in appointing them. It also confirmed that the letter d ated 31.12.2002 referred to in the appointment orders of the petitioners, convey ed the approval of the SLEC for promotion to the posts mentioned therein and had no nexus whatsoever with direct recruitments from the select list. The petitio ners and 6 others were, in the enquiry duly identified, to be illegal appointees . 15. Be that as it may, in compliance of the order dated 18.08.2005 p assed in W.P(C) No. 1013/2005, a fresh process was initiated by the Commissioner and Secretary, Government of Assam, Finance Department, in course of which the petitioners were heard in person whereafter, the impugned orders dated 10.10.200 7 were passed sustaining the earlier decision to cancel their appointments. In the meantime, by letter dated 28.07.2005 the Under Secretary to the Government o f Assam, Finance (Estt-B) Department conveyed the approval of the Finance (SIU) Department for filling up of further 20 posts of Assistant Audit Officer by dire ct recruitment. It was, subsequent thereto that by notification dated 04.10.200 5 of the Under Secretary, Government of Assam, Finance (Estt-B) Department, the term/validity of the select list dated 08.05.2001 was extended till 31.12.2005. In the list of 18 candidates so identified for filling up the posts at this sta ge, five namely, Hironmoy Bhuyan, Arun Das, Tarikhuj Zaman Choudhury, Jiban Maha nta and Akhendra Das, who had joined the present petitioners to assail the termi nation orders dated 18.01.2005 in W.P(C) No. 1013/2005, were empanelled and even tually appointed and understandably they are not in the instant fray. 16. The extension of the validity of the select list till 31.12.2005 , the approval of the Finance (SIU) Department for filling up further 20 posts t herefrom and the appointment orders dated 04.10.2005 have not been assailed in t he instant petition as contemplated in law. A reading of the order dated 11.03. 2005 passed in W.P(C) No. 1995/2005 instituted by a separate set of candidates s eeking appointment on the basis of the same select list, does not reveal that th e factum of extension of the term thereof (select list), had been brought to the notice of this Court. The claim was also negated on the consideration that the petitioners were not in the zone of consideration vis-à-vis the first 70 vacanc ies. The fact of existence of further vacancies had also not been brought to th e notice of the Court. This order, therefore, cannot be construed to be insurmo untable bar for the State authorities to extend or revalidiate the list as done by the notification dated 04.10.2005. It has not been urged on behalf of the present petitioners that on the basis of their merit position in the select list , they were entitled to be appointed against 20 posts filled up on 04.10.2005. Nothing decisive therefore, turns in favour of the petitioner on the extension o f the validity of the list upto 31.12.2005 or the approval of the Finance (SIU) Department for filling up the additional 20 vacancies in the post of Assistant A udit Officer by direct recruitment. 17. The revelations from the records not only support the findings i n the enquiry report referred to hereinabove, but also authenticate and reinforc e the factual foundation of the impugned order dated 10.10.2007. The petitioner s having been appointed against the non-existent posts, the decision to cancel t he same cannot be repudiated as illegal, arbitrary and unfair. Continuation of the LDAs and Peons said to have been similarly appointed like the petitioners an d confronted with identical grounds of vitiation, cannot be ipso facto be a cert itude of validity of their (petitioners) recruitment and demonstrative of hostil e discrimination or inequality in treatment in public employment. The observati on to uphold the order dated 18.01.2005 as contained in the impugned order being only by way of reaffirmation of the invalidity of the petitioners appointment, does not construe restoration or revival thereof to afflict the same with an inc urable illegality justifying interference therewith on that count alone. The ab ove notwithstanding, as the order dated 18.01.2005 has since been interfered wit h by this Court in W.P(C) No. 1013/2005, the impugned order dated 10.10.2007 can not be deemed to be retroactive from that date and the petitioners are deemed to be in service till 10.10.2007. Consequently, they are entitled to their servic e benefits as due to them in law till that date. The respondents would ensure t hat the same is made available to them forthwith. For reasons cited hereinabove, the present is not considered to be a fit case fo r interference with the impugned orders in the exercise of the power of judicial review of this Court. The decision assailed being based on facts available fro m the coeval records, does not warrant any judicial intervention. The petition is, thus dismissed with the above observations. No costs.