Manipur High Court
Shri Md. Yahiya Khan vs The State Of Manipur on 6 June, 2022
Page 1 of 8
IN THE HIGH COURT OF MANIPUR
AT IMPHAL
WP(C) No. 611 of 2017
Shri Md. Yahiya Khan, aged abouto 44 years, S/O Md.
Maniruddin, resident of LilongUku, P.O & P.S Lilong and District
Thoubal, Manipur-795130
....Petitioner
-Versus-
1. The State of Manipur, through the Chief Secretary,
Government of Manipur, Imphal, Manipur
2. The Commissioner/Secretary, Education (S), Government of
Manipur, Imphal, Manipur.
3. The Manipur Public Service Commission, though its
Secretary, Imphal, Manipur.
... Official Respondents
BEFORE
HON'BLE MR. JUSTICE LANUSUNGKUM JAMIR
For the Petitioner :: Mr.B.P Sahu, Senior Advocate,
For the Respondents:: Ms. Sundari, Government Advocate
Dates of hearing :: 06.02.2019
Date of judgment/ :: 06-06-2022
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Order
JUDGMENT AND ORDER
(C A V)
The Manipur Public Service Commission issued an
Advertisement dated 08-11-2014 inviting applications from
eligible candidates for direct recruitment to the post of Lecturer
of different Government Higher Secondary Schools in the
Education School Department, Government of Manipur for
various subjects.
[2] The petitioner applied for the post of Lecturer in
Botany subject. There were 14 (fourteen) posts with regard to
the Lecturer in Botany subject and out of those 14 (fourteen)
posts, 2 (two) post were meant for General, 7 (seven) for ST
and 5 (five) for OBC(MP). Thereafter, Notification dated 18th
September, 2015 was issued by the Secretary, Manipur Public
Service Commission on the basis of written examination held on
22-02-2015 and personality test held on 03-18 September, 2015
for the post of Lecturer of various subjects of the Government of
Higher Secondary School Examination, 2014, on merit basis. In
the said notification, the name of the petitioner appeared at Sl.
No. 32 against the Botany subject under the OBC (MP) category
with a total mark of 171.25.
[3] By order dated 31st August, 2016, issued by the
Secretary, Education (S), Government of Manipur as many as
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180 (one hundred and eighty) persons were appointed to the
post of Lecturers of Higher Secondary Schools on the
recommendation of the Manipur Public Service Commission in
order of merit and were posted to different Higher Secondary
Schools indicated against their names and subjects.
[4] In the meantime, the petitioner came to learn that
one Majida Begum who belongs to the OBC (MP) category who
was appointed to the post of Lecturer in Botany subject of
Chaoyaima Higher Secondary School have tendered her
resignation to the post on 28-12-2016 and the said resignation
letter was forwarded by the Principal of the said Higher
Secondary School to the Director, Education (S), Government of
Manipur on 02-01-2017. Upon the vacancy being caused due to
the resignation of Majida Begum, the petitioner claims for
appointment to the said vacant post by virtue of merit as
published in the Notification dated 18th September, 2015.
However, as the petitioner was not given appointment, the
present writ petition has been filed.
[5] Heard Mr. B.P Sahu, learned senior counsel for the
petitioner as well as Ms. Sundari, learned GA appearing for the
State respondents.
[6] Mr. B.P Sahu, learned senior counsel for the
petitioner submits that in the merit list published by the
Notification dated 18th September, 2015, the name of the
petitioner appears at Sl. No. 32 and his rank in terms of the
reservation under the OBC (MP) falls at Sl. No. 7. He submits
that one Md. Mustaque Ahmed who was placed at Sl. No. 30 did
not join as Lecturer of Botany subject and therefore, the next
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below person in the merit list with regard to the OBC (MP)
reservation Md. Abdul Hasim was appointed in his place.
Further, as the said Majida Begum whose name appeared at Sl.
No. 14 of the merit list tendered her resignation on 28-12-2016,
the respondents were duty bound to appoint the petitioner in the
vacancy caused due to the resignation of Majida Begum in
terms of the merit list with regard to OBC (MP) reservation in the
Notification dated 18th September, 2015. However, despite the
vacancy being caused due to the resignation of the said Majida
Begum, the official respondents failed to appoint the petitioner
to the said vacant post thereby, discriminating the petitioner
against similarly situated persons who have been given
appointment by applying the principle of "Pushing Up". He
therefore seeks a direction to the respondents to appoint the
petitioner to the vacant post of Lecturer in Botany subject
caused by the resignation of the said Majida Begum.
[7] Ms. Sundari, learned GA on the other hand submits
that the petitioner submitted an application dated 11-04-2017 to
the Commissioner, Education (S), Government of Manipur
requesting to fill up the vacant post of Lecturer caused by the
resignation of Majida Begum. However, the resignation of the
said Majida Begum was accepted by the Director, Education
(S), Government of Manipur by order dated 18-04-2017 w.e.f.,
27-12-2016. The Government accordingly requested the
Secretary, Manipur Public Service Commission to recommend
suitable candidates from the waiting list to fill up the vacant post
on the resignation of Majida Begum and another lecturer by
letter dated 28-06-2017. In reply, the Registrar, Manipur Public
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Service Commission stated that as per Rule 27 of Procedure &
Conduct of Business Rule, 2011 of MPSC, the validity period of
the panel is 1 (one) year. In any case, merit list shall cease to
be in force on the expiry of a period of 1(one) year and 6 (six)
months or when a fresh panel is prepared, whichever is earlier.
The Commission therefore regretted its inability to recommend
candidates to fill up the vacancies resulting out of the
resignation of two lecturers. She submits that as the merit list
was published on 18th September, 2015 and the resignation of
the said Majida Begum was accepted by the Director, Education
(S), Government of Manipur only on 18th April, 2017, the validity
of the select list had expired by then.
[8] Under the circumstances and also taking into
consideration the letter dated 21st July, 2017 written by the
Registrar, Manipur Public Service Commission, the case of the
petitioner could not be considered. She also places reliance in
the case of State of Rajasthan &Ors Vs. Jagdish Chopra
reported in (2007) 8 SCC 161, State of Punjab Vs. Raghbir
Chand Sharma &Anrreported in (2002) 1 SCC 113.
[9] I have considered the submissions made by the
learned counsel for both the parties.
[10] The core question in the present writ petition is
whether the petitioner can be directed to be appointed to the
post of Lecturer in Botany subject due to the resignation of the
said Majida Begum. The final merit list on the basis of written
examination and personality test was published by the
Notification dated 18th September, 2015. Therein, the name of
the petitioner appears at Sl. No. 32 in terms of the overall merit.
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With regard to the reservation of 5 (five) posts of Lecturer in
Botany subject for OBC(MP), the name of the petitioner falls at
Sl. No. 7 under the reservation category. After the said Md.
Abdul Hasim was appointed caused by the vacancy created by
Md. Mustaque Ahmed who did not join, the name of the
petitioner was the senior most under the waiting list for the post
of Lecturer in Botany subject under OBC (MP) reservation
quota. The Department of Education (S) issued appointment
order to 180 persons as lecturers of Higher Secondary Schools
by Order dated 31st August, 2016 consequent to the issuance of
Notification dated 18th September, 2015 whereby the Manipur
Public Service Commission issued merit list of candidates for
the post of Lecturer of Government Higher Secondary Schools
in Education (S) Department.
[11] It is well settled principle of law that the waiting list
shall start to operate only after the post for which the
recruitment conducted has been completed and the waiting list
would commence to operate when offers of appointment have
been issued to those emerging on top of the merit list. In the
present case in hand, appointment order for 180 (one hundred
eighty) persons to the post of Lecturers of Higher Secondary
Schools on temporary basis was issued by the Secretary,
Education (S), Government of Manipur on 31st August, 2016.
Therefore, in the considered opinion of this Court, waiting list
should commence to operate w.e.f., 31st August, 2016.
[12] The resignation tendered by the said Majida Begum
on 28-12-2016 was accepted by the Director, Education (S),
Government of Manipur by order dated 18th April, 2017 w.e.f.,
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27-12-2016. Therefore, when the Director, Education (S),
Government of Manipur accepted the resignation of Majida
Begum by letter dated 18th April, 2017, the validity of the waiting
list was still in operation inasmuch as one year was yet to be
expired after order of appointment dated 31st August, 2016 was
issued. Therefore, this Court is of the considered opinion that
the respondents should have considered the appointment of the
petitioner to the vacant post of Lecturer in Botany subject
caused by the resignation of Majida Begum. The letter dated
21st July, 2017 written by the Registrar, Manipur Public Service
Commission and addressed to the Under Secretary, Education
(S) is misplaced and misconceived.
In the case of State of Jammu & Kashmir
&OrsVs. Sat Pal reported in (2013) 11 SCC 737, the Hon'ble
Supreme Court has held as under:
"11. In view of the factual position noticed hereinabove, the
reason indicated by the appellants in declining the claim of
the respondent Sat Pal for appointment out of the waiting list
is clearly unjustified. A waiting list would start to operate only
after the posts for which the recruitment is conducted, have
been completed. A waiting list would commence to operate
when offers of appointment have been issued to those
emerging on the top of the merit list. The existence of a
waiting list allows room to the appointing authority to fill up
vacancies which arise during the subsistence of the waiting
list. A waiting list commences to operate after the vacancies
for which the recruitment process has been conducted have
been filled
up....................................................................................
.......................................................................................
.......................................................................................
.............................................................................."
DELL
[13] In the facts and circumstances of what has been
discussed herein above, the present writ petition is allowed and
the respondents are directed to appoint the petitioner to the
vacant post of Lecturer in Botany subject caused by the
resignation of the said Majida Begum within a period of one
month from the date of receipt of the order of this Court. In the
appointment of the petitioner to the post of Lecturer in Botany
subject shall be with effect from the date the vacancy arose with
all consequential service benefits. However, the petitioner shall
not be entitled to back wages. Interim order passed on 16-08-
2017 stands merged with this order.
No cost.
JUDGE
kim
Digitally signed by
KH. JOSHUA KH. JOSHUA MARING
MARING Date: 2022.06.07
23:41:47 +05'30'
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