JUDGMENT
I.A. Ansari, J.
1. The present writ petition reflects a very sad state of affairs in the realm of public appointments made by the State Government inasmuch as the State Government has denied appointment to selected persons in order to accommodate and, in fact, retain, in service, those, who were appointed under Regulation 3(f) of the Assam Public Service Commission (Limitation and Functions) Regulations, 1951, (in short, ‘the Regulations’).
2. The material facts, which are not in dispute, leading to the present writ petition, may, in brief, be stated as follows:
(i) An advertisement was published, in the year 1996, by the Assam Public Service Commission (in short, ‘the Commission’), inviting applications for appointment to 13 posts of lecturer in Art Education in the District Institute of Education and Training, popularly known as ‘DIET’. In terms of the advertisement, so published, out of the 13 posts, 5 of posts were to be filled up from amongst the reserved categories’ candidates and the remaining 8 posts by the candidates from the general category. The present writ petitioner, who falls under the general category, was one of the applicants for selection and appointment to the said advertised posts. Following the selection tests held, in this regard, by the Commission, a select list was published, on 3.6.1996, containing names of 23 number of applicants in order of their merit. Pursuant to the select list, so published, the Government appointed 5 of the said selected candidates against the said 5 reserved posts. The Government also appointed 6 of the selected candidates, in order of merit, as against the 8 posts, which were meant for the candidates of the general category. The present petitioner occupies 7th (seventh) position in order of merit in the said select list. After making the said 6 appointments from amongst the candidates of the general category, the Government stopped making further appointments. Notwithstanding, thus, the 8 posts, which were advertised for being filled up by the process of regular selection from amongst the candidates of the general category, the Government chose to appoint only 6 candidates. In course of time, the petitioner came to know that further appointments from amongst the candidates of the general category were not being made by the Government on account of the fact that the remaining posts of lecturer in Art Education, in DIET, including the said remaining 2 advertised posts, already stood occupied by the appointees of Regulation 3(f). Aggrieved by the decision of the Government not to appoint the petitioner in order to accommodate the interest of the appointees of Regulation 3(f), the writ petitioner has approached this court, with the help of the present application made under article 226 of the Constitution of India, seeking issuance of a writ of mandamus commanding the respondents/authorities concerned to appoint the petitioner as a lecturer of Art Education, in DIET, under Education (Higher) Department, Government of Assam.
3. I have heard Mr. U.K. Nair, learned Counsel, appearing on behalf of the petitioner, and Mr. V.M. Thomus, learned Counsel, appearing on behalf of the State respondents. None has appeared on behalf of the private respondents, who are appointees under Regulation 3(f).
4. For the purpose of appreciating the real issue, which arises for determination, in the present writ petition, it is apposite to refer to, and quote hereinbelow, the relevant provisions of Regulation 3(f), which read as follows:
3. …
(a) …
(b) …
(c) …
(d) …
(e) …
(f) When an appointment is to be made by direct recruitment to a temporary post created in a service, if it is necessary in the public interest that the appointment should be made immediately and reference to the commission would cause undue delay ; provided that if the post has been sanctioned for or is likely to last for more than four months, the Commission shall, as soon as possible, be consulted in all matters mentioned in Sub-clause (3) of Article 320 of the Constitution.
5. From a bare reading of the relevant provisions of Regulation 3(f), it becomes transparent that every appointment, made under Regulation 3(f), shall be wholly temporary in nature. The power vested in the Government by Regulation 3(f) cannot, therefore, be resorted to for the purpose of making permanent appointments or appointments in the nature of permanent appointment. The appointment made under Regulation 3(f) is, thus, inherently temporary in nature. Imperative it is also to note that it is open to an appointee under Regulation 3(f) to apply for, and get selected, when the selection process for making regular appointment commences.
6. A Division Bench of this court, in Santanu Baruah and Ors. v. State of Assam and Ors. reported in 1996 (III) GLT323, explained the rights of selected candidates vis-a-vis the rights of the appointees under Section 3(f), thus:
19. In our opinion, this observation has been made by the learned Single Judge in the context of the rights of the selected candidates vis-a-vis the rights of the appointees under Regulation 3(f). A reading of Sub-regulation (f) would show that the appointment made under it is purely temporary pending selection by the APSC and the appointment letters issued in favour of the appointees under Regulation 3(f) contain a clause that regularisation of service of the appointee will depend upon his selection by the APSC within the required position in the list of the candidates recommended by the APSC for regularisation. Since the parties in these batch of cases who were ay appointed under Regulation 3(f) did get the opportunity of applying to the APSC for the selection, and their names do not find place within the required position of the list of candidates recommended by the APSC for appointment to the 39 vacancies in the post of Assistant Engineer (Civil) under the PWD as on 30.12.1994, they should make room for appointment of the candidates selected by the APSC and the authorities would be entitled to terminate their services. To retain such appointees under Regulation 3(f) in the 39 vacancies as on 30.12.1994 for which candidate have been selected and recommended by the APSC would in our opinion violet the rights of selected candidates under Articles 14 and 16 of the Constitution.
7. Even in Debabrat Bargohain and Ors. v. Dilip Hazarika and Ors. reported in 1996 (III) GLT 310, a Division Bench of this court, while considering the nature of the appointments made under Section 3(f), observed,
16. The law, thus, having been enunciated by the Apex Court, let us examined the cases of those petitioners, who have been appointed under Regulation 3(f) and as to whether any of their rights under the statutory provision, the appointment letter or the Constitution have been violated. The statutory provision in Regulation 3(f) makes it clear that the appointment under it is purely temporary pending reference to and selection by the APSC. The appointment letters issued to the 3(f) appointees clearly contain a clause that the appointment being under Regulation 3(f) continuance in service vis-a-vis regularisation in service thereof will depend upon in being selected by the APSC within the required position in the list of candidates recommended by the APSC for regularisation. It will be the responsibility of the appointee, who apply and to appear in the selection notified/advertised by the APSC for filling up the posts of Junior Engineer and that in case he does not appear or is not able to appear or in case he is not selected by the APSC within the required position of the select list, the appointment will stand automatically terminated. From the facts narrated earlier, it clear that except the two petitioners in Civil Rule No. 2623/95, all other appointees under Regulation 3(f) have had the opportunity of appearing in the APSC selection for public employment and hence their rights under Articles 14 and 16 of the Constitution or under Regulation 3(f) or their appointment letters have not been violated. All these appointees, except two, did apply and appear and thus did avail of a Chance and at the behest of such appointees under Regulation 3(f) who have been found unsuccessful, this Court in exercise its extraordinary jurisdiction under Article 226 of the Constitution will not grant them any relief of quashing the selection of the candidates by the APSC in excess of the advertised posts or in continuing them in the post to which they were temporarily appointed pending regular selection by the APSC.
8. From observations made in Santanu Baruah (supra) and Debabrat Bargohain (supra), it becomes abundantly clear that the appointments made under Regulation 3(f) are purely temporary in nature until regular selection is made by the Commission. Once regular selection is made, the appointee, under Regulation 3(f), must make way for the regular selectee and the Government must appoint the regular selectee by terminating, if necessary, the service of the appointee under Regulation 3(f). If an appointee, under Regulation 3(f), desires to be permanently appointed, he must apply and appear in the selection process, when the post, which such an appointee is holding, is advertised by the Commission for filling up the same by regular selection process. If the appointee, under Regulation 3(f), does not appear or does not get selected in the regular selection process, ‘the appointment of such an appointee shall, on regular selection being made, stand automatically terminated. In the case at hand too, when the selection process commenced, all the private respondents, who were appointees under Regulation 3(f), did participate in the said selection process, but failed to make their way within the 8 (eight) candidates, finally selected in order of merit.
9. As already indicated hereinabove, 8 posts of lecturer in Art Education for the candidates of the general category were advertised. Under this category, candidates, whose names appeared, in the select list, in order of merit, from the position No. 1 to position No. 6 were already appointed; but the petitioner, whose position is 7th in the said list, was not appointed, for, the posts, meant for the candidates of the general category, were allowed by the Government to be held and retained by the appointees of Regulation 3(f), such as, respondent No. 3, namely, Indira Singh, who had participated in the said selection process, but could not make her within the eight number of candidates, who came to be selected in order of merit including the present petitioner. Viewed thus, it is crystal clear that respondent No. 3 could not have been allowed to stand in the way of giving appointment to the petitioner, whose name, as already pointed out above, finds place at position No. 7 of the said select list.
10. During the course of hearing of the present writ petition, it has, however, been brought to the notice of this Court that two writ petitions, namely. Civil Rule Nos. 4597/97 and 5007/97 were filed, in this court, by the appointees of Regulation 3(f) and private respondent No. 3 herein was also a petitioner in the said two writ petitions and that in both these writ petitions, the court was informed that steps had been taken by the Department concerned to get approval from the State Cabinet for regularization of the services of the said writ petitioners. Since the cases of these appointees under Regulation 3(f) were, thus, under consideration of the State Cabinet, both the said writ petitions were disposed of, on 16.11.2005, leaving the same to the State Cabinet to take decision in the matter.
11. I have already indicated hereinabove that in terms of the law laid down by the Division Bench of this Court, in Santanu Baruah (supra) and Debabrat Bargohain (supra), since an appointee under Regulation 3(f) cannot be allowed to stand in the way of the selected candidates, it is imperative for the Government to appoint the petitioner herein as a lecture of Art Education in DIET.
12. In view of the fact that the reluctance, on the part of the State respondents, to appoint the present writ petitioner is on account of the fact that the post against which the present petitioner can, and must, be appointed is occupied by the appointees under Regulation 3(f), a writ of Mandamus, in the facts of the present case, deserves to be issued commanding the Government to appoint the present petitioner as a lecturer of Art Education, in DIET, by removing, if necessary, the appointee(s) under Regulation 3(f). However, in view of the fact, as already indicated hereinabove, that on 16.11.2005, the Court has already disposed of the Civil Rule Nos. 4597/97 and 5007/97 aforementioned leaving it to the State Cabinet to take a decision in the matter, appropriate directions need to be issued, in this case, in order to remedy the wrong that the Government action has resulted into.
13. While considering the above aspects of the matter, what needs to be noted is that on a further query made by this Court, what has surfaced is that one Smt. Geeta Devi (Deka), who had occupied the second position in the selection list, in question, in order of merit and was appointed as a lecturer in Art Education, has already resigned from her post and the post, so occupied by her, is, now, lying vacant.
14. Considering, therefore, the matter in its entirety and in the interest of justice, it is hereby directed that the State respondents shall appoint the present petitioner against the post of the lecturer of Art Education, in DIET, which has fallen vacant on account of the fact that the earlier incumbent of the said post, namely, Geeta Devi (Deka) has resigned. The whole exercise, so directed, shall be completed by the respondents/ authorities concerned within a period of two months from the date of receipt of a certified copy of this order alongwith a copy of the writ petition and annexure thereto by the respondent No. 1, namely, the Commissioner & Secretary to the Government of Assam, Education (Elementary) Department, Dispur, Guwahati-6.
15. With the above observations and directions, this writ petition shall stand disposed of.
16. No order is passed as to cost.