BENDANGWATILA Vs. STATE OF NAGALAND

JUDGEMENT

(1.) The appellant was appointed on 28.8.85 as Knitting Instructor with a monthly fixed lumpsum payment of Rs.590/- per month. This appointment, of course was temporary as against the temporary vacancy caused on account of the termination of one Shrimati B. Narola Aier, Knitting Instructor in the Labour Welfare Centre, Nagaland Forest Product Tijit. Later on the appellant with the other temporary employees were asked to appear before the Selection Board for interview on 4.6.86. The Selection Board interviewed the candidates who appeared before it. The Selection Board was to consider the regular appointment in the three posts of Knitting Instructor alongwith other posts in which regular appointment was to be made. The Selection Board on 4.6.86 after going into the selection process and on examination/consideration of the certificates/testimonials/experience etc. found the appellant eligible and holding the merit for appointment in the post of Knitting Instructor. The Selection Board published the selection list for the posts in order of merit in which Smti T. Shilumongla was placed at SI. No. 1, Smti Pongjungmonla was placed at SI. No. 3 and the appellant was placed at SI. No. 9 of the select list against the posts of Knitting Instructor. There were three vacant posts of Knitting Instructors and three candidates were selected by Selection Board. The Selection Board recommended their names for regular appointment against those posts. The persons whose names appeared at SI. No. 1 and 3 were given appointment. However, the appellant was not given appointment and she continued as temporary appointee in the department although she was given regular scale of pay from 31.10.95 on her several representations. But she was all along treated as temporary employee. When the appellant made complaint for not affording her appointment as regular Knitting Instructor the Joint Labour Commissioner, Nagaland, Kohima vide letter dated 2.8.2001 has informed the Secretary to the Govt. of Nagaland, Labour & Employment Department, Kohima that ".... altogether 9 (nine) candidates have appeared interview on 4.6.86 for the post of 3 (three) Knitting Instructors, 3 (three) Tailoring Instructors and 3 (three) Machine Embroidery Instructors as per calling letter issued No. ORD/54/86/203 dated 7.6.86 for Labour Welfare Centres at Nagaland Sugar Mills, Dimapur, Nagaland Pulp & Paper Mills, Tuli and Nagaland Forest Product, Tijit. Amongst the candidates appeared interview, Smti Bendangwatila was also selected for the post of Knitting Instructor. But in the meantime, the then Hon'ble Minister of Labour desired that one Smt. Y. Petei Konyai who stated to have passed Training in Knitting be appointed as Knitting Instructor at Tijit though she did not appeared in the selection test. And as a result Smti Bendangwatila though selected as Knitting Instructor by the selection committee had to be removed and kept in the department on lumpsum basis. Later on by order under Memo No. LBR-10/75 (Pt-II) issued by the Joint Labour Commissioner dated 11.6.2001 the appellants' service has been terminated with retrospective dated 1.6.2001 treating her to be temporary employee without assigning any reason and without conducting any enquiry. Appellant challenged the order of termination before this Court and claimed to be regularised in the post consequent to selection result. The learned Single Judge of this Court by judgment and order dated 23.8.2002 passed in WP(C) No. 175(K)/2002 dismissed the writ petition on the ground that since the petitioner has not approached this Court immediately after she has been denied regular appointment the petition cannot be entertained. Being aggrieved by the said order the present appeal has been filed.

(2.) The petitioner has claimed relief to set aside the order of termination issued by the respondents treating here as a temporary employee without holding any enquiry or assigning any reason and claimed regularisation on the post on the basis of selection held by the Department. In the State of Andhra Pradesh- Vs-T. Ramakrishna Rao and others (1972) 4 SCC 830, the Constitutional Bench of the Supreme Court has held that an applicant seeking appointment does not acquire any right by merely applying for the post either under the rule or otherwise on being selected for the post. In the State of Haryana- Vs-Subhash Chander Marwaha and others, (1974)3 SCC 220, the Apex Court has held that mere inclusion of the name of an applicant in the select list does not give him any right to be appointed to the post. Mere existence of vacancies does not give legal right to a candidate for appointment. It is open to the Government to decide as to in how many posts appointment shall be made. Mere fact that the candidate's name appear in the list, will not be entitled to Mandamus that he be appointed. In Shankarsan-Dash-Vs-Union of India (1991)3 SCC 47, it has been held by the Constitutional Bench of the Supreme Court that on selections qualified candidates do not acquire any vested right to the post unless relevant recruitment rules so indicate. The State is under no legal duty to fill up all or any of the vacancies. However, the State has to act fairly. The decision not to fill up the vacancies has to be taken bonafidely for valid and cogent reason. Mere selection does not create any right to appointment. The ratio has been approved by the Supreme Court in the case of Vice-ChanceHor, University of Allahabad and others-Vs-Dr. Anand Prakash Mishra and others, reported in (1997) 10 SCC 264.

(3.) It is settled law that selection of a candidate does not confer any vested right in his favour much less indefeasible right. The appropriate appointing authority is not obliged to fill up all the vacancies or to appoint any candidate from select list in any resultant vacancy. But at the same time, the Government or the Authority's decision not to fill the vacancies has to be taken bonafidely for a valid and cogent reason. The Government cannot decide as its whims to appoint only some of the selected candidates and deny appointment to others unless there are valid reasons before the Government or the appointing authority for doing so. Strong and cogent reasons are required to show as to why only some of the selected candidates are appointed. In a case where the selection process is completed, unless compelling reasons are given, the appointments on pick and choose basis from the select list would be treated as hostile discrimination by the Government.