WP(C) 816/2008 BEFORE THE HON’BLE MRS JUSTICE ANIMA HAZARIKA Heard Mr. N Choudhury, learned counsel appearing for the petitioner. Als o heard Mr. M Khataniar, learned SC, Education Deptt. appearing for respondent N os.1, 2 and 4. Mr. C Baruah, learned counsel appearing for respondent No.3, Assa m Public Service Commission (’APSC’ for short) and Mr. SK Medhi, learned SC, NC Hills Autonomous Council. 2. The instant writ petition has been filed under Article 226 of the Consti tution of India praying for a direction to the respondents to appoint the petiti oner as Lecturer in District Institute of Education & Training (’DIET’ for short ) in the stream of Educational Technology (’ET’ for short) in any of the existi ng vacancies which are lying vacant in DIET, Golaghat, Dergaon and DIET Jorhat, Titabor he being the selected candidate pursuant to the advertisement dated 28.9 .05. 3. Considering the grievance raised in the petition and also as agreed to b y the learned counsel appearing for the parties, this writ petition is disposed of at the admission stage itself. 4. The petitioner’s case in brief is narrated hereinbelow: The petitioner, who is working as Lecturer in the stream of ET in the DI ET NC Hills, was appointed on contractual basis by the NC Hills Autonomous Counc il on 24.9.05 and since the date of joining, he has been serving as Lecturer in the stream of ET in DIET NC Hills without any break. By advertisement dated 28.9.05 issued in the English daily newspaper ’As sam Tribune’, APSC invited applications from the eligible candidates for filling up 7 (seven) vacancies of Lecturer in DIET in the stream of ET vide Entry No.3 of the said advertisement. In the said advertisement, a clause was included unde r the head ’Preference’, which stipulates that preference will be given to the candidates willing to serve in NC Hills DIET . Being eligible in terms of the ad vertisement for the post of Lecturer in the stream of ET, the petitioner offered his candidature for the same. He was interviewed along with other eligible cand idates. The APSC recommended the name of the petitioner at Sl. No.10 of the sele ct list for the post of ET. As the petitioner was serving since before the date of publication of the advertisement and also he being selected by the APSC, the authority of the NC Hills Autonomous Council made a request to the State respond ents to regularize the service of the petitioner along with two other selected c andidates. The letter dated 12.12.06 whereby the authority of NC Hills Autonomous C ouncil requested the Commissioner and Secretary to the Govt. of Assam, Education (Elementary) Department, respondent No.1 to regularize the services of the sele cted candidates is quoted hereunder: THE NORTH CACHAR HILLS AUTHONOMOUS COUNCIL:: HAFLONG:: NO.AC/DIET/1/Pt.I/2005/33, Dated Haflong, the 12th Dec/2006. To, The Commissioner & Secretary to the Govt. of Assam, Education (Elementary) Depar tment, Dispur, Guwahati-6. Sub:- Regularisation of services of lecturers engaged on contract basis in Dis trict Institute of Education & Training, Kalachand, NC Hills. Sir, With reference to the subject cited above I am to inform you tha t the NC Hills Autonomous Council has already engaged the following persons as D IET lecturer (I) Smti Maiphal Kemprai (Lect DRU) (2) Miss Ashima Bhattacharjee ( lect PSTE Science) and (30 Shri Arup Deb (Lect PSTE Education Technology) on con tract basis against the sanctioned and vacant post for a period of 1 (one) year for smooth functioning of DIET, Kalachand NC Hills and their applications alongw ith documents has already been sent for appearing in the APSC Exam and the candi dates are declared passed vide letter No.89/PSC/DR-48/2/2004-2005, dt.3/3/06. Ho wever, their services could not be regularized by the Govt. of Assam. As per Adv ertisement it is mentioned that the preference will be given to the candidate wh o are willing to serve in NC Hills DIET (Copy Enclosed). Therefore, I would like to request you to kindly consider and re gularize the service of above candidates as they complied to the APSC provision to work in NC Hills DIET and the post of lecturer are essential to run the ongoi ng Training in DIET and the post of lecturer are essential to run the ongoing Tr aining in DIET, Kalachand, NC Hills. Yours faithfully, Principal Secretary, NC Hills, Autonomous Council, Haflong. NO./AC/DIET/1/Pt-I/2005/_______/Dated Haflong, the 12th December, 2006. Copy to:- 1) The principal, DIET, Kalachand for favour of information and necessary a ction. Issue No & &. Dated & & &.. Principal Secretary, NC Hills, Autonomous Council, Haflong. 5. In the meanwhile, the official respondents issued appointment letter to all the selected candidates. But, out of them Smt. Rajashree Chakrabory and Smt. Dilmoni Changmai did not join in service in the said department. Subsequently, the post, in question, of DIET Karimganj and DIET NC Hills were filled up on 1.3 .08. There are two other posts lying vacant since before the advertisement dated 28.9.05. However, the advertisement was made only for 7 posts excluding the sai d two posts. As the petitioner was not appointed to the post though he was regul arly selected in the due selection process, he made several representations befo re the authority to appoint him in anyone post lying vacant in DIET Golaghat, De rgaon and DIET Jorhat, Titabor as per his position in the merit list. The respon dent No.2, on all occasions, when met personally, assured the petitioner of appo intment. But, till date, the petitioner has not been appointed. 6. On the other hand, once again the authority of NC Hills Autonomous Counc il vide letter dated 8.2.08 requested the Government of Assam to regularize the service of the petitioner in the post he was holding being the selected candidat e. The letter dated 8.2.08 is quoted hereunder: THE NORTH CACHAR HILLS AUTONOMOUS COUNCIL, HAFLONG No.AC/DIET/PT 2005-74 Dated Haflong the 8th February. To, The Commissioner & Secretary to the Govt. of Assam, Education (Ele) Department, Dispur, Guwahati-6. Subject: Filling up of vacant posts of Faculty members of District Instit ute of Education and Training, Kalachand, NC Hills and regularization of service of Sri Arup Deb, Lecturer, Educational Technology, engaged on contractual basis , thereof. Sir, With reference to the subject cited above, I am directed to info rm you that the District Institute of Education and Training, Kalachand, NC Hill s has been running with the shortage of Faculty members since its establishment, although the Govt. has sanctioned the posts as per requirement meant for runnin g the Institute and accordingly, the Govt. was also moved for filling up of all the posts which are lying vacant including the Principal, Vice-Principal posts. But, due to non filling up the vacant posts, the North Cachar Hills Council Auth orities appointed few faculties for smooth running of the Institute in the great er interest of Education in this hilly district. In this connection, it is also informed here that Sri Arup Deb w as also appointed as Lecturer on Contractual basis against the sanctioned and va cant posts on 24.09.2005 by the Autonomous Council Authorities, Haflong and Sri Deb since then has been rendering his services satisfactorily. Subsequently, application of Sri Deb along with the documents ha s already been sent for appearing in the APSC Examination and he also been selec ted APSC merit list vide letter No.89/PSC/DR-482/2001-2005 Dt.3.3.2006. For re gularization of his service, the NC Hills Autonomous Council authorities has mov ed vide letter No.AC/DIET. &/Pt-1/2005 33 Dt.12.12.2006. But till date his servic e is not regularized by the Govt. As per advertisement it may also be mentioned here that The preference will be given to the candidate who are willing to serv e in NC Hills DIET (Copy enclosed) and Sri Arup Deb, Lecturer Educational Techno logy has been working on the said post on contractual basis since 26.09.2005. Mo reover, Lecturers from outside NC Hills are not al all interested to stay here w hich hamper to implement quality education at elementary level. Therefore, I would like to request you to kindly take necessary action for immediate filling up all other vacant posts and regularize the servic e of Sri Arup Deb as he complied to the APSC provision to work in NC Hills Diet and his post is essential to run the on going Training in DIET, Kalachand, NC Hi lls. Yours faithfully, Principal Secretary, NC Hills, Autonomous Council, Haflong No.AC DIET &.PT 2005 74 Dated Haflong the 8th February, 2008 Copy to:- 1. The Director of SCERT, Assam, Kahilipara, Guwahati19 for favour of infor mation and necessary action. 2. The Additional Director of Education (H) Assam, Haflong for information and necessary action. 3. The Principal &.Diet, Kalachand, NC Hills for information. Principal Secretary, NC Hills, Autonomous Council, Haflong 7. In the meanwhile, the validity of the select list was extended up to 3.3 .08. Therefore, finding no other alternative, the petitioner has filed the insta nt writ petition on 1.3.08, i.e. within the validity period of the select list. It is the pleaded case of the petitioner that one Smt. Dilmoni Changmai, who ref used to join DIET NC Hills, official respondents by their notification dated 29. 2.08 appointed one Kanailal Dey as Lecturer in the stream of ET in DIET NC Hills . But, said Kanailal Dey also refused to join in DIET NC Hills and thereafter, h e was re-posted in DIET, Karimganj vide notification dated 2.6.09 and for the sa me the post of Lecturer in the stream of ET in DIET NC Hills is still lying vaca nt. 8. As mentioned hereinabove, vide letters dated 12.12.06 and 8.2.08, the NC Hills authority requested the Govt. of Assam to regularize the service of the p etitioner against the post holding by him since 2005 on the ground that DIET, Ka lachand, NC Hills has been running with the shortage of faculty members since it s establishment though the Govt. has sanctioned the post as per requirement. Due to non-filling of the vacant post, the institution was suffering and therefore, requested the Govt. to regularise the service of the petitioner, inasmuch as, n o other selected/appointed candidate was willing to serve in DIET NC Hills, wher eas the petitioner was a duly selected candidate and he was working as Lecturer on contractual basis in the ET stream in DIET NC Hills since 2005 and in the adv ertisement dated 28.9.05, it has been specifically mentioned that the preference will be given to the candidate who is willing to serve in the NC Hills. 9. An affidavit-in-opposition has been filed on behalf of respondent No.1. At paragraph 9 of the same, it has been stated that as per information received from Director, SCERT, one more post of Lecturer is lying vacant in the ET stream . Thus the position of vacant post became 7+1=8. The only ground as to why the p etitioner was not appointed though he was regularly selected is that the select list prepared was extended up to 3.3.08 and the petitioner has approached this C ourt by filing this writ petition on 2.3.08 and the said case was moved before t his Court after expiry of validity of the recommended list of selected candidate s by the APSC. Therefore, it has been contended by respondent State that the pet itioner does not have any right to be appointed from the aforementioned list of APSC. 10. Mr. Choudhury, learned counsel appearing for the petitioner would urge t hat the candidates appeared at Sl. No.5, 6 and 9 having not joined against any o f the 7 (seven) advertised vacancies in the concerned subject viz. Educational T echnology and the petitioner’s name having been appeared at Sl No.10 of the sele ction list his position is automatically elevated to 7th position and as such, t he petitioner is entitled to be appointed, more so, he has approached this Court during the validity of the select list. The second limb of argument of Mr. Choudhury is regarding terms of the a dvertisement. The advertisement itself provided a preference clause stipulating clearly that the preference will be given to the candidate who is willing to se rve in NC Hills and it is apparent that none other than the petitioner of the s elect list is interested to go and/or willing to serve in the NC Hills district and willingness of the petitioner is apparent as he has been serving in the NC H ills since 2005 till date without any break. Therefore, the petitioner is entitl ed to be appointed on regular basis against the said post, more so, by letters d ated 12.12.06 and 8.2.08, the NC Hills authority requested the Govt. to fill up the post on regular basis and because of non-filling up the post, the institutio n is suffering which shows the urgency for filling up the said post by a regular ly selected candidate and therefore, non-regularisation of the post held by the petitioner though he being a regularly selected candidate by the APSC is arbitra ry and discriminatory. The third limb of argument of the learned counsel for the petitioner is that 4 (four) numbers of posts being still lying vacant, respondent authority ou ght to have appointed the petitioner or regularize the service of the petitioner in the post held by him since 2005. 11. With regard to validity of the select list as contended by the responden t No.1 in his affidavit-in-opposition, Mr. Choudhury, in support of his submissi on, has relied upon the following decisions: i) AIR 2000 SC 1097, State of UP -vs- Ram Swarup Saroj, ii) (1999) 6 SCC 49, Purushottam -vs- Chairman, MSEB and another, iii) (1995) Supp. (2) SCC 230, RS Mittal -vs- Union of India. In Ram Swarup (supra), the Apex Court at para 10 observed as follows: Similarly, the plea that a list of selected candidates for appointment to the State services remains valid for a period of one year only is primarily a question depending on facts and yet the plea was not raised before the High Cou rt. Secondly, we find that the select list was finalized in the month of Novembe r, 1996 and the writ petition was filed by the respondent in the month of Octobe r, 1997, i.e. before the expiry of one year from the date of the list. Merely be cause a period of one year has elapsed during the pendency of litigation, we can not decline to grant the relief to which the respondent has been found entitled to by the High Court. We may place on record that during the course of hearing o f SLP before this Court, on 29-9-1999 we had directed the learned Additional Adv ocate General for the State of UP to bring on record on affidavit the status of present recruitment of the judicial officers and the present vacancy position in the subordinate judiciary. In the affidavit of Joint Secretary, Department of A ppointment, State Government, Uttar Pradesh sworn in on 4-11-1999 and filed befo re this Court it is stated that as on 14-10-1999 there were 231 vacancies existi ng in the cadre of Munsif Magistrates (now Civil Judge, junior Division/Judicial Magistrates). That being the factual position we see no reason why the directio n made by the High Court should be upset in an appeal preferred by the State of Uttar Pradesh. In Purushottam (supra), the question raised for consideration before the Apex Court was whether the duly selected person for being appointed and illegal ly kept out of employment on account of untenable decision on the part of the em ployer, can be denied the said appointment on the ground that the panel has expi red in the meantime. The Hon’ble Apex Court held that right of the appellant to be appointed against the post to which he has been selected cannot be taken away on the pretext that the said penal has in the meantime expired and the post has already been filled up by somebody else. The Apex Court, therefore, set aside t he impugned order and judgment of the High Court and directed the Maharashtra St ate Electricity Board to appoint the appellant to the post for which he was duly selected within two months from the date of passing of the order. In RS Mittal (supra), the Apex Court held that when there is a vacancy which can be offered to selected candidate on the basis of his merit position, d enial of appointment to him without any proper reason is unjustified. 12. In the present case in hand, admittedly, the petitioner is a selected ca ndidate for the post of ET and he was serving in the post on contractual basis i n NC Hills since before the advertisement. It is also an admitted fact that he w as selected in the said post in due selection process held by the APSC and his n ame appeared at Sl No.10 in the select list. Further, three of the selected cand idates did not join in the post and therefore, petitioner’s position got elevate d to the 7th position in the select list. Respondent No.1 in his affidavit-in-op position has stated on oath that 8 (eight) numbers of ET posts are lying vacant. Therefore, on the pretext that the petitioner has filed the instant writ petiti on within the validity of the select list but, no order was passed by the Court during the validity of the select list and thus the petitioner has no right to b e appointed cannot be accepted. The statement made by the petitioner has not bee n refuted except the statement that no order has been passed by the Court during the validity of the select list. 13. In view of the above discussion and the decisions of the Apex Court reli ed upon by the learned counsel for the petitioner, respondent No.2, the Commissi oner & Secretary to the Govt. of Assam, Education (Elementary) Department is dir ected to appoint the petitioner in the post of Educational Technology at present lying vacant in any of the following places viz. DIET Kalachand, NC Hills, DIET Golaghat, Dergaon and DIET Jorhat, Titabor within a period of 2 (two) months fr om today. It is, however, made clear that the appointment would be prospective i n nature. 14. The writ petition is accordingly allowed. However, considering the facts and circumstances of the case, there shall be no order as to cost.