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[2024] 10 S.C.R. 18 : 2024 INSC 733
Khunjamayum Bimoti Devi v. The State of Manipur & Ors.
(Civil Appeal No. 10682 of 2024)
19 September 2024
[Hrishikesh Roy,* Sudhanshu Dhulia and S.V.N. Bhatti, JJ.]
Issue for Consideration
Issue arose whether all aspirants whose names find place in the revised select list, pursuant to the course correction process, would secure appointment against the notified 1423 posts of Primary Teachers, irrespective of whether they were litigating for appointment.
Headnotes
Service law – Appointment/recruitment – Recruitment process for 1423 posts of Primary Teachers – Written examination held and interviews were pending, meanwhile local daily published the result of the selection process when official results were yet to be declared – Enquiry Committee constituted – Government notified 1051 Primary Teachers to be engaged on contract basis – Later clarified that said appointments made was temporary arrangement – Thereafter, official result of the selection notified and 1423 candidates selected for the posts – Appellant and others challenged the selection – High Court condoned the allegation about publication of names of selected candidates in local newspaper – State directed to constitute Review DPC to submit fresh recommendation – Recommendations directed to confine to only unreserved, SC and ST categories and candidates shortlisted in OBC category to be excluded from the fresh select list – Challenge to:
Held: When there is a declaration of law by court, the judgment can be treated as judgment in rem and require equities to be balanced by treating those similarly situated – Thus, as this Court is directing appointments strictly in accordance with merit of the candidates in the recruitment test, as per the revised list, parity relief should be considered for all similarly situated persons – Differential treatment for those who did not approach the Court earlier may not be warranted and would amount to denial of opportunity u/Arts.14 and 16 – Selected candidates are put in limbo waiting for employment for last several years – This Court is quite capable of hearing the selectees, possibly incapacitated to approach the Court by reasons beyond their control – High Court’s judgment to be construed as judgment in rem with intention to give benefit to all similarly situated persons irrespective of whether they were before the Court or not – Whereas, this Court’s judgment is confined only to those covered by the order and should be considered to be judgment in personam – Beneficiaries of this judgment subject to their respective merit position in the revised select list, should be accommodated only against the notified 1423 posts – Appointment to the OBC category candidates was set aside by the High Court and as such these vacancies would be available to accommodate most of the deserving selectees – Appointment ordered for those whose names would figure in the revised select list, strictly in order of merit against the 1423 vacancies notified – Concerned appointees have been serving for over 13 years and disruption of their service may lead to unimaginable hardships, thus, left to the Government’s discretion to take a decision for those who are serving and whose names may not figure in the revised select list, pursuant to the ordered exercise – Judgment by the High Court upheld – State authorities to draw up the revised select list in terms of the High Court’s judgment – Appointment orders for those who figure in the revised select list to be issued. [Paras 21-25, 27, 28]
Service law – Appointment / recruitment – Recruitment process for posts of Primary Teachers – Written test conducted in 2006, and the answer scripts destroyed in 2008 – Allegations of selection being vitiated:
Held: When recruitment for public posts is being made by the State, preservation of the answer scripts till reasonable time after the final declaration of result is the prudent course to adopt – This omission was overlooked which definitely was disappointing for those who failed to qualify in the written test – Since things can’t be undone, it is expected all concerned to be mindful of their responsibility in future recruitments, to preserve the answer scripts till the selection process is successfully completed, to obviate similar such allegation of wrong doings. [Para 9]
Case Law Cited
Uttar Pradesh and Others v. Arvind Kumar Srivastava and Others [2014] 12 SCR 193 : [2015] 1 SCC 347; Shoeline v. Commissioner of Service Tax & Ors. [2017] 8 SCR 582 : [2017] 16 SCC 104 – referred to.
List of Keywords
Revised select list; Appointment; Posts of Primary Teachers; Acquiescence; Recruitment process; Enquiry Committee; Answer scripts for written test destroyed; Practice of weeding out; Treating those similarly situated, similarly; Denial of opportunity; Prolonged recruitment process; Multiple litigations; Judgment in rem; Judgment in personam; Recruitment for public posts; Preservation of answer scripts; Allegation of wrong doings.
Case Arising From
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 10682 of 2024
From the Judgment and Order dated 29.03.2016 of the High Court of Manipur at Imphal in WPC No. 620 of 2011
With
Civil Appeal Nos. 10683, 10684, 10685 and 10686 of 2024, Writ Petition (Civil) No. 817 of 2016 and Writ Petition (Civil) No. 22 of 2017, Civil Appeal Nos. 10687-10688 and 10689-10690 of 2024, Writ Petition (Civil) Nos. 1355 and 1476 of 2020 and Special Leave Petition (Civil) No. 22118 of 2024
Appearances for Parties
Tushar Mehta, Solicitor General, Gopal Sankaranarayanan, V. Giri, K. Parameshwar, Ms. Aparna Bhat, Sanjay Hegde, Anupam Lal Das, N Jotendro Singh, Dr. Joseph Aristotle, Sr Advs., F. I. Choudhury, David Choudhury, Somiran Sharma, Purushottam Sharma Tripathi, Amit, Ravi Chandra Prakash, Ms. Vani Vyas, Ms. Shivani Vij, Prakhar Singh, Ashutosh Dubey, Abhishek Chauhan, Ms. Rajshri A Dubey, H.B. Dubey, Amit P. Shahi, Shashi Bhushan Nagar, Rahul Sethi, Ms. Sona Khan, Sumant A Khan, Mayank Sapra, Ms. Lalima Das, Pratik R. Bombarde, Mohit Bidhuri, Abdulrahiman Tamboli, Jitendra Kumar, Kirti Anand, Abhishek Kumar, Raj Kumar Mehta, Elangbam Premjit Singh, Niraj Bobby Paonam, Ms. Karishma Maria, Yash S. Vijay, Ms. Pooja B. Mehta, Abhisheck Chauhan, Harshad Sunder, Sumant Akram Khan, Amit Kumar, Anshuman Singh, Shah Rukh Ali, Ankit Tiwari, Ms. Tatini Basu, Bharat J Joshi, Kumar Shashank, Ahanthem Henry, Ahanthem Rohen Singh, Mohan Singh, Aniket Rajput, Ms. Khoisnam Nirmala Devi, Kumar Mihir, D. Abhinav Rao, David Ahongsangbam, Sayed Murtaza Ahmed, Rahul Kumar, Rajeev L Mahunta, Ms. Rajkumari Banju, Maibam Nabaghanashyam Singh, K Sita Rama Rao, Shakti K Pattanaik, Sanjeev Kumar Verma, Sandeep Kapoor, M.P. Parthiban, R. Sudhakaran, Bilal Mansoor, Shreyas Kaushal, S. Geyolin Selvam, Alagiri K, Mohit Biduri, Divakar Kumar, Satya Kam Sharma, Garv Bajaj, Advs. for the appearing parties.
Judgment / Order of the Supreme Court
Order
Hrishikesh Roy, J.
1.Delay condoned. Leave granted.
2.Heard Mr. Gopal Sankaranarayanan and Ms. Aparna Bhat, learned senior counsel appearing for the appellants. The State of Manipur is represented by Mr. Tushar Mehta, learned Solicitor General and Mr. V. Giri and Mr. K. Parameshwar, learned senior counsel. Also heard Mr. Anupam Lal Das, learned senior counsel appearing for the already appointed candidates.
3.These matters pertain to the process of recruitment of, inter-alia, 1423 posts of Primary Teachers in the state of Manipur. The recruitment process commenced with the notification dated 12.09.2006 issued by the Employment Officer, Imphal West which required the aspirants to have their names sponsored through the Employment Exchange. The same notice also notified vacancies of 203 Primary Hindi Teachers and 46 Hindi Graduate Teachers, all in the Directorate of Education in Government of Manipur. At the outset, it is made clear that in this order, we are dealing with the case of 1423 Primary Teachers only.
4.For the purpose of this order, the records of Civil Appeal arising out of SLP (Civil) No. 15482 of 2016 together with the convenience compilation filed in the W.P (C) No.817 of 2016 are taken into account to narrate the salient circumstances of the case.
5.On 22.12.2006, the Board of Secondary Education, Manipur (hereinafter referred to as, “the Board”) conducted a written test and the result of the test was declared on 16.04.2007 by the Secretary of the Board indicating that 5322 candidates were successful in the written examination. The interviews for the short-listed candidates were held from 06.02.2009 and continued till August, 2009. At that stage a local daily in Manipur on 26.06.2010, published the result of the selection process when official results were yet to be declared for the subject recruitment. The said newspaper publication led to an Enquiry Committee being constituted by the Government of Manipur to determine whether any illegality has been committed by the Recruitment Committee (referred to as, “the DPC” by the authorities and courts) in the selection process pursuant to notification dated 12.09.2006.
6.Thereafter, on 07.03.2011, the Director (Education), Government of Manipur notified that 1051 Primary Teachers would be engaged on contract basis on remuneration of Rs.7600 per month. The breakup of the list of 1051 appointees was (Gen.-512, OBC–177, ST–322, SC–21 and PH–19). Since most of the names in the notification dated 7.3.2011 were amongst the names published in the local newspaper on 26.06.2010, the leakage of the select list received the attention of the Manipur Legislative Assembly when it was clarified by the Chief Minister of Manipur before the House that the appointments made through the notification dated 07.03.2011 was a temporary arrangement, since the academic session is to commence from April, 2011.
7.As the official result of the selection process was not declared despite the process having commenced on 12.09.2006, some of the aggrieved candidates moved the High Court and pursuant to the order passed by the High Court on 27.07.2011, the result of the selection was notified on 04.09.2011 by the Director of Education, Government of Manipur indicating that 1423 candidates are selected for the 1423 posts of Primary Teachers, in pursuant to the recruitment process which commenced on 12.09.2006.
8.The appellant - Khunjamayum Bimoti Devi and others moved the High Court challenging the selection process. Besides other petitions, the challenge was also made, inter-alia, through the W.P (C) No.815 of 2011 and W.P(C) No.127 of 2012. These writ petitions were taken up for consideration and the learned Judge of the High Court through the common judgment dated 6.10.2015, concluded as follows:-
“[9] In the present case, the selection process can be divided into two parts - one, the part relating to the written examination being conducted by the Board and the second, the rest of the selection process till the end. The first part is the responsibility of the Board and its role was limited to the conduct of written examination only and the moment the result thereof was declared, its role came to an end and it had nothing to do with the rest of the selection process. There is no material on record to show that the Board was instructed by the State Government not to destroy the answer scripts till the completion of the selection process. As has been stated in its affidavit which is not controverted by the petitioners, the Board in its normal course disposes of answer scripts after three months from the date of declaration of result thereof. In the absence of any instruction from the State Government, the Board was not supposed to and could not be expected to keep the answer scripts un-destroyed or preserved for indefinite period when it was not sure as to when the selection process would be completed by the DPC. In the present case, one year after which the Board destroyed the answer scripts, is reasonable time for keeping the answer scripts un-destroyed or preserved. It is understandable if the Board was entrusted to complete the entire selection process but it was not so in the present case. Therefore, keeping in mind the peculiar facts and circumstances, there is no reason as to why this court ought to interfere with the written examination being conducted by the Board, when there was no grievance from any of the unsuccessful candidates against the Board except only the fact that the answer scripts were destroyed before the completion of the selection process which was not in its control and the reasons as to why the answer scripts were to be destroyed, have been narrated above. As regards the interview also, there appears to be no allegation/complain from any of the unsuccessful candidates raising objection against the DPC. The petitioners have not stated in their petition anything about the irregularities, manipulation, arbitrariness committed by the DPC in the viva-voce test. When the select list came to be published in the newspaper, the public suspected the genuineness of it and therefore, it attracted the attention of the Cabinet which directed to constitute a Committee to look into it. At that point of time also, there is no material on record to show that any one demanded that the viva-voce be repeated in the interest of public. The fact that only some of the petitioners approached the Hon’ble High Court praying that the State respondents be directed to make the official declaration of the result, shows that they were not aggrieved by the viva-voce being conducted by the DPC and they wanted only the result to be declared by the State respondents. Accordingly, on the recommendation of the Review DPC, the result of the selection was declared on 04-09-2011. Thus, it can be seen that there is nothing wrong in the selection process upto the stage of viva voce test and therefore, no order can be passed by this court quashing the entire selection process, as prayed for by the petitioners, only on the ground that the answer scripts had been destroyed before the completion of the selection process.
[10] As regards the second issue, the contention of the learned counsel appearing for the petitioners that in the declaration of result, some candidates were shown to have been selected against the seats allegedly reserved for the OBC category which was totally contrary to the Notice dated 12-09-2006, merits consideration by this court. In the said Notice dated 12-09-2006, nothing is mentioned about any seat being reserved for the OBC category and it could not be done also, at that point of time, for the simple reason that admittedly, the Office Memorandum prescribing reservation of seats for the OBC category came to be issued only on 27-12-2006 after the Notice dated 12-09-2006 having been issued by the Employment Officer and even after the written examination having been held by the Board. Moreover, this OM dated 27-12-2006 does not indicate that it would apply retrospectively. There is no material on record to show that after the said OM dated 27-12-2006 having been issued, a decision was taken by the State respondents to make an amendment in the breakup of seats, as detailed in the said notice, allotted amongst the categories by adding OBC category therein and a notice thereof was issued informing the candidates about such amendment. From the perusal of the proceedings of the Review DPC, it appears that it had proceeded on an erroneous assumption that seats were reserved for the candidates belonging to OBC and the DPC had not referred to any order issued by the State respondents, subsequent to the issuance of the said OM, that the OM would apply to the then ongoing selection process after due notice being given to the candidates. The Review DPC, in its proceeding, has merely stated that it has followed the 200 point reservation roster which came to be introduced only after the written examination and the viva-voce test were over.
……. ……... ……… …….. …… ….
As is evident from the above decision of the Hon’ble Supreme Court, an advertisement shall be issued in matters of public employment. The purpose of requiring the issuance of an advertisement is to give wide publicity to the eligible candidates as regards the terms and conditions including the criteria in respect of the details of selection. Any change in the terms and conditions shall be made known to all the candidates so that they could act accordingly. As mandated under Article 16 of the Constitution of India, equal opportunity shall be given to all in matters of public employment. In this regard, the learned counsel appearing for the petitioners has submitted that although almost all the petitioners belong to OBC category, they did not get an opportunity to get their names sponsored as OBC candidates. There is no statement in the writ petition in support of his submission but when he made the submission during the course of hearing, the same was not denied by any of the counsels appearing for the respondents. It may also be noted at this juncture that the grievance of the petitioner in W.P. (C) No. 127 of 2012 is that in spite of her name being sponsored as OBC candidate, she had been treated as unreserved candidate and accordingly, her name was not included in the impugned list of OBC candidates, though she secured more marks than many of the candidates shown in the said OBC list. Thus, it is not clear as to how the candidates were sponsored by the Employment Officer. At the time of getting his/her name sponsored, was the concerned person required to indicate whether he/she belongs to OBC category because by then, the OM dated 27-12-2006 had not yet been issued at all? Or is it the case that the candidates were sponsored by the Employment Officer based on the information furnished by the person concered at the time of registration of his name in the employment exchange and if that be so, why was the petitioner in W.P. (C) No. 127 of 2012 denied the benefit of being OBC candidate. On a query put to the learned Government Advocate by this court in this regard, he was unable to give a concrete answer saying that the Government file was silent about it. No additional affidavit in compliance with the order dated 10-09-2015 passed by this court, has been filed by the State respondents in respect of similar queries. In the present case, in the Notice dated 12-09-2006, it is specifically provided as under:
1)
Primary Teacher
Gen. Category
910
ST
442
SC
29
Phy. Handicapped
42
1423
……. ……. ……. …… …….
It is nowhere mentioned in the said notice that certain seats are reserved for the OBC category and on the contrary, when the result of the selection was declared, the names of as many as 242 candidates were shown to have been selected against the seats reserved for the OBC category. To contend that the criteria cannot be changed after the process for selection has commenced, the learned counsel appearing for the petitioners has placed reliance on the decision of the Hon’ble Supreme Court in the case of Madan Mohan Sharma Vs. State of Rajasthan & ors, reported in AIR 2008 SC 1657 wherein the Hon’ble Supreme Court has held that once the advertisement had been issued on the basis of the circular obtaining at that particular time, the effect would be that the selection process should continue on the basis of the criteria which was laid down and it cannot be on the basis of the criteria which has been made subsequently. The Review DPC had committed error while recommending the candidates belong to OBC category as if there was reservation for them as per the Notice dated 12-09-2006 and the State respondents had blindly accepted the same. In fairness and in order to give equal opportunity, the State respondents ought to have given a notice to all the candidates that the OM dated 27-12-2006 would apply to the then onging selection process and all those candidates, including the petitioners, belonging to OBC category who could not get themselves sponsored as OBC candidates, could have been given an opportunity to do so. In other words, in case certain seats were to be reserved for the OBC, the State respondents must have ensured that all the candidates belonging to OBC category had got themselves sponsored by the Employment Officer. It appears that no such excercise had been done by the State respondents at all in the present case and no opportunity was granted to them. Denial of such opportunity to the petitioners has attracted the provisions of Article 16 of the Constitution of India. Failing to do that, the actions of the State respondents are unreasonable, arbitrary and illegal as being violative of Article 14 and 16 of the Constitution of India. The part of the selection process, as indicated above, i.e., from the stage where the error had crept in, is arbitrary, illegal and is liable to be quashed and in other words, the recommendation of the Review DPC, Notification dated 04-09-2011 and the Government order dated 09-12-2011 are liable to be quashed.
[11] That since this court having held in the preceding para that the selection of as many as 242 candidates as Primary Teachers against the seats reserved for the OBC category, without the same being mentioned in the Notice dated 12-09-2006, is bad and liable to be quashed, no order is required to be passed in this writ petition being W.P. (C) No. 127 of 2012 and accordingly, the writ petition stands disposed of.”
9.The learned Judge in the judgment dated 06.10.2015 noted that for the written test conducted on 22.12.2006, the answer scripts were destroyed on 15.5.2008. The Court however opined that the Board of Secondary Education did not preserve the answer scripts because of paucity of space and also because of the practice followed by the Board for weeding out answer scripts within a fix time frame. When recruitment for public posts is being made by the State, the preservation of the answer scripts till reasonable time after the final declaration of result is the prudent course to adopt. This omission was however overlooked which definitely was disappointing for those who failed to qualify in the written test. Since things can’t be undone, we expect all concerned to be mindful of their responsibility in future recruitments, to preserve the answer scripts till the selection process is successfully completed, to obviate similar such allegation of wrong doings.
10.As can be seen, the High Court condoned the allegation made by the writ petitioner(s) in Writ Petition (C) No.815 of 2011 about the selection being vitiated by publication of names of the selected candidates in the local newspaper, well before the official declaration of result. The learned judge concluded that this by itself will not warrant interference with the selection process. With such findings, the Writ Petition (C) No.815 of 2011 was partly allowed and the recommendation of the Review DPC, the notification dated 04.09.2011 and the related Government Order, were set aside with direction to the State-respondents to constitute a Review DPC to submit fresh recommendation strictly in accordance with the Notification dated 12.09.2006. The recommendations were directed to confine to only the unreserved, SC and ST categories. The candidates shortlisted in the OBC category were directed to be excluded altogether from the fresh select list.
11.The Writ Petition (C) No.620 of 2011 filed by the appellant Khunjamayum Bimoti Devi was disposed of on 29.03.2016 with the declaration that her case is covered by the judgment and order dated 6.10.2015 in the W.P (C) No.815 of 2011 and W.P (C) No.127 of 2012. This judgment of the High Court is under challenge in the Civil Appeal arising out of SLP (Civil) No. 15482 of 2016.
12.When the challenge to the High Court judgment dated 06.10.2015 came to be considered by this Court, an affidavit dated 11.03.2016 came to be filed on behalf of the State of Manipur, by Mr. H. Daleep Singh, Commissioner (Education/S). The said affidavit being of some relevance, is extracted herein below:-
“An Affidavit on behalf of the Respondent No.4
I, H. Deleep Singh, IAS, now serving as Commissioner (Education/S) Government of Manipur, have gone through the contents of the I.A. No. 2 of 2016 and I am acquainted with the facts of the case and having been authorized by the other State Respondents, I am competent to swear this affidavit and accordingly, I swear this affidavit on solemn oath and affirm as hereunder.
1.That, with reference to para Nos. I and II of the above referred I.A., the answering deponent has no comment to offer as the same are the matter of records.
2.That, with reference to para Nos. Ill and IV of the above referred I.A., the answering deponent begs to submit that the Respondent No. 6 to 1428 are the selected candidates for appointment to the post of Primary Teachers and they have been serving as Primary Teachers for the last about 5 years in different Schools under the Department of Education (S), Government of Manipur. On considering the length of service rendered by the Respondent Nos. 6 to 1428, the Government of Manipur is agreeable to accommodate the Writ petitioners against the existing vacancies if the Hon’ble Supreme Court is pleased to protect the appointment of the Respondent Nos. 6 to 1428 and at the same time, the Hon’ble Supreme Court may be pleased to pass an order restraining the unsuccessful candidates who had chosen not to challenge selection process for the last about 5 years to raise any claim in future in order to make the end of litigation on the same issue.
In the light of the above facts and circumstances, it is, therefore, prayed that Your Lordships may graciously be pleased enough to dispose of the above referred I.A. and the connected SLP No. 32728 of 2015 in the lines stated in para No.2 of the present affidavit for the ends of justice.”
13.This Court considered the averments of the Commissioner in the above affidavit and disposed of the challenge to the High Court’s order dated 6.10.2015. The Supreme Court specifically referred to the affidavit (dated 11.3.2016) filed by the State of Manipur and after extracting the contents therein, recorded the following in its order dated 16.03.2016:-
“In the circumstances, we deem it appropriate to record that no further claim at the instance of any other unsuccessful candidate on the basis of the present order and undertaking given by the Government shall be entertained by the High Court.
Shri Dushyant Dave, learned senior counsel for the petitioner in SLP(C) No. 32728/2015 prayed that the respondent-State be directed to issue the appointment orders within a reasonable period of time as per the undertaking of the State referred to above.
In the circumstances, we deem it appropriate to direct the State to issue the appointment orders in favour of the writ petitioners (before the High Court) within a within a period of eight weeks from today.
Pending applications, if any, also stand disposed of.”
14.When this Court disposed of the SLP (Civil) No. 32728 of 2015 and Special Leave Petition (Civil) arising out of CC No. 4129 of 2016, the Court was not informed that other petitions of aggrieved candidates were also pending in Courts. The Bench passed the order on 16.3.2016 oblivious of the fact that multiple petitions challenging the selection process were pending in the High Court. This Court being unaware about the pendency of other petitions filed by other aspirants, had no occasion to address the concern raised in those petitions and thereby observed that further claim at the instance of any other unsuccessful candidates on the basis of the present order and undertaking given by the Government, shall not be entertained by the High Court.
15.In the affidavit dated 11.03.2016 filed by Mr. H. Daleep Singh, Commissioner (Education/S), it was stated that the respondent Nos. 6 to 1428 in the Civil Appeal arising out of SLP (Civil) No. 32728 of 2015, are the selected candidates and they have been serving as primary school teachers. It was also averred in the affidavit that the Government of Manipur is agreeable to accommodate the writ petitioners against the existing vacancies. The Supreme Court in the order dated 16.03.2016 barred appointment of those who had chosen not to challenge the selection process for last about 5 years. Such impression in the Commissioner’s affidavit was not only incorrect factually but the same also gave an impression to this Court that no other petitions were pending in the Courts. Therefore, the right of those aspirants in the pending cases was overlooked and not addressed by this Court in its order dated 16.03.2016.
16.As can be gathered from the judgment dated 06.10.2015, the Manipur High Court set aside the recommendation for appointment to 242 posts carved out for the OBC category candidates. The said pronouncement was not disturbed by the Supreme Court. In fact this Court did not really adjudicate the merits of the challenge to the High Court’s judgment or had occasion to address the appointment claims of those, whose names may appear in the revised select list, in terms of the High Court’s judgment dated 06.10.2015.
17.We have considered the nature of the recruitment process challenged in this proceeding. The inevitable conclusion from the foregoing discussion is that the selection list should be redrawn, in terms of High court’s Judgment dated 06.10.2015. Let us now look at the three categories of candidates claiming selection in the redrawn final list. The first category would be those who have qualified the interview and are already included in the list filed before this Court, the second category would be those who have qualified the interview but are not included in said list and the third category would consist of candidates who have not qualified the interview as such but are admitted as OBC candidates.
18.The selection of the OBC category candidates was found to be unmerited by the High Court. As can be appreciated the notification dated 12.09.2006 for appointment of 1423 primary teachers notified the State’s reservation policy in the following manner-
Primary Teacher
Gen. Category
910
ST
442
SC
29
Phy. Handicapped
42
1423
However, the review DPC noted that by way of the subsequent notification (dated 27.12.2006), the benefit of reservation has been extended to OBC category in the State of Manipur, following the 200-point formula.
19.Some of the selectees (after the revised exercise) may already be serving amongst the OBC category candidates by virtue of their open category merit. They would naturally be accommodated accordingly as per the revised exercise. Some of the selectees (after the revised exercise), could be amongst the appellants/petitioners in these pending cases, who would also be entitled to benefit of selection. Since the appointment to the 242 posts in the OBC category was interfered by the High Court, those posts would now be available for making appointment after the select list is redrawn, in terms of the High Court’s judgment dated 06.10.2015. Since the appellants/petitioners had filed petitions or were agitating their claims for appointment, around the same time as those who secured relief in the WP (C) No.815 of 2011, these claimants in our opinion, also deserve similar consideration.
20.Next, we have to consider those who are not before the Court but are in the category of job seekers, who responded to the notification dated 12.09.2006, succeeded in the written test and also appeared in the interview segment. When the select list is being revised in terms of High Court’s order dated 6.10.2015, new names are bound to figure in the revised select list, as per the respective performance of the candidates, in the recruitment test. The question is whether all aspirants whose names find place in the revised select list, pursuant to the course correction process, will secure appointment against the notified 1423 posts of Primary Teachers, irrespective of whether they were litigating for appointment. Should this Court deny relief to them by considering that there is an element of acquiescence by those, who did not move Court? For answer, we may benefit by referring to the ratio in State of Uttar Pradesh and Others vs. Arvind Kumar Srivastava and Others, reported in (2015) 1 SCC 347 where the following was said:
“22. The legal principles which emerge from the reading of the aforesaid judgments, cited both by the appellants as well as the respondents, can be summed up as under.
22.1. The normal rule is that when a particular set of employees is given relief by the court, all other identically situated persons need to be treated alike by extending that benefit. Not doing so would amount to discrimination and would be violative of Article 14 of the Constitution of India. This principle needs to be applied in service matters more emphatically as the service jurisprudence evolved by this Court from time to time postulates that all similarly situated persons should be treated similarly. Therefore, the normal rule would be that merely because other similarly situated persons did not approach the Court earlier, they are not to be treated differently.
22.2. However, this principle is subject to well recognized exceptions in the form of latches and delays as well as acquiescence. Those persons who did not challenge the wrongful action in their cases and acquiesced into the same and woke up after long delay only because of the reason that their counterparts who had approached the court earlier in time succeeded in their efforts, then such employees cannot claim that the benefit of the judgment rendered in the case of similarly situated persons be extended to them. They would be treated as fence-sitters and laches and delays, and/or the acquiescence, would be a valid ground to dismiss their claim.
22.3. However, this exception may not apply in those cases where the judgment pronounced by the court was judgment in rem with intention to give benefit to all similarly situated persons, whether they approached the court or not. With such a pronouncement the obligation is cast upon the authorities to itself extend the benefit thereof to all similarly situated persons. Such a situation can occur when the subject-matter of the decision touches upon the policy matters, like scheme of regularization and the like. On the other hand, if the judgment of the court was in personam holding that benefit of the said judgment shall accrue to the parties before the court and such an intention is stated expressly in the judgment or it can be impliedly found out from the tenor and language of the judgment, those who want to get the benefit of the said judgment extended to them shall have to satisfy that their petition does not suffer from either laches and delays or acquiescence.”
21.The principles laid down in the case of Arvind Kumar Srivastava (supra) are referred by this court in Shoeline vs. Commissioner of Service Tax & Ors.” reported as (2017) 16 SCC 104 to observe that when there is a declaration of law by court, the judgment can be treated as judgment in rem and require equities to be balanced by treating those similarly situated, similarly.
22.Therefore, as this Court is directing appointments strictly in accordance with merit of the candidates in the recruitment test, as per the revised list, we are of the view that parity relief should be considered for all similarly situated persons. A differential treatment for those who did not approach the Court earlier may not be warranted in the facts of the present case, by treating them to be fence sitters and would amount to denial of opportunity under Article 14 and Article 16 of the Constitution of India. One reason for taking such a view is the prolonged recruitment process commencing from 12.09.2006 culminating in the official declaration of result on 04.09.2011, interspersed with multiple litigations by the aggrieved candidates.
23.Also, one cannot ignore that the job seekers who participated in the recruitment test following the Board’s notification dated 22.12.2006 and are selected, are put in limbo waiting for employment for last several years. So far those who are not yet appointed, the door of justice must be opened as this Court is quite capable of hearing the silent knocks of the selectees, possibly incapacitated to approach the Court by reasons beyond their control.
24.That apart, the High Court’s judgment dated 6.10.2015 as earlier stated, must be construed as judgment in rem with intention to give benefit to all similarly situated persons irrespective of whether they were before the Court or not. On the other hand, this Court’s judgment rendered on 16.03.2016 is confined only to those covered by the order and should be considered to be a judgment in personam. For this reason also, the benefit of the High Court’s judgment dated 6.10.2015 should be made available by the State Authorities to everyone as per their respective merit position, in the revised select list, against the notified 1423 posts of Primary Teachers.
25.It is also projected that many more vacancies of primary teachers have since become available. As the recruitment process was initiated on 12.9.2006, vacancies are bound to occur by efflux of time but to order appointment against the later vacancies (beyond the 1423 posts notified on 12.9.2006) will mean, infringing the rights of those who have since become eligible to apply for consideration, for the subsequent vacancies. Therefore, the beneficiaries of this judgment subject to their respective merit position in the revised select list, should in our opinion be accommodated only against the notified 1423 posts. The appointment to the 214 OBC category candidates was set aside by the High Court on 6.10.2015 and the said decision was left undisturbed by the Supreme Court in its judgment dated 16.03.2016 and as such these vacancies will be available to accommodate most of the deserving selectees.
26.Mr. V. Giri, the learned Senior Counsel representing the State of Manipur in the above context informs the Court that the Primary Teachers who were appointed on 09.12.2011 are serving for over 13 years and some of them might have to make way for the selectees. Mr. Anupam Lal Das, the learned senior counsel in his turn submits that the clients he represents were appointed on substantive basis by the Government on 9.12.2011. Despite their long service, a few of them may not find place in the revised select list for adjustment against the 1423 notified vacancies. The submission is that since the cases before the High Court and this Court had continued for over a decade in one form or the other, the appointment of the long serving teachers should be protected.
27.On the above contention of Mr. Giri supported by Mr. Das, we need to observe that appointment is being ordered for those whose names would figure in the revised select list, strictly in order of merit against the 1423 vacancies notified on 12.9.2006. We do appreciate that the concerned appointees have been serving for over 13 years and disruption of their service may lead to unimaginable hardships for this group of people. It is therefore left to the Government’s discretion to take a decision for those who are serving and whose names may not figure in the revised select list, in pursuant to the ordered exercise.
28.In conclusion, the judgment rendered by the High Court on 6.10.2015 in the W.P (C) No.8153 of 2011 and W.P(C) No.127 of 2012 are upheld. In consequence, the appeals/writ petitions filed by the aspirant teachers stand disposed of and those filed by the State of Manipur stand dismissed. The State authorities must draw up the revised select list in terms of the High Court’s judgment within 4 weeks from today. The appointment orders for those who figure in the revised select list are ordered to be issued, within 4 weeks of the publication of the select list. By virtue of such appointments, the fresh appointees shall have no claim towards arrears salary. But they shall be granted benefit of notional appointment w.e.f. 9.12.2011 when the substantive appointments were given to those who are serving but this notional benefit is ordered only for the purpose of superannuation benefits. It is ordered accordingly.
29.Pending application(s), if any, including impleadment/intervention application(s) stand closed.
SPECIAL LEAVE PETITION (CIVIL) No. of 2024 (ARISING OUT OF DIARY NO. 20462 OF 2021)
1.Delay condoned.
2.In view of the today’s order passed in Civil Appeal arising out of SLP (Civil) No. 15482 of 2016, the Special Leave Petition stands dismissed.
3.Pending application(s), if any, shall stand closed.
Result of the Case: Matters disposed of.
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