1. Heard Mr. K. Tagyang, learned counsel for the petitioner. Also heard Mr. L. Perme, learned Standing counsel for the Agriculture Department, representing the respondent nos. 1 & 2; Mr. I. Riram, learned Additional Senior Government Advocate for the respondent nos. 3 & 10 and Mr. H. Lampu, learned counsel for the respondent no. 9.
2. The respondent nos. 4, 5, 6, 7 & 8 have been deleted by an order of this Court dated 30.03.2022.
3. This writ petition is directed against the order dated 18th June, 2019, issued by the Deputy Director, Agriculture, Lower Subansiri District, Ziro, vide No. Agri/E-67/2019-20, whereby, the respondent no. 9 has been regularised in the post of Peon under the establishment of Deputy Director, Agriculture, Lower Subansiri District, Ziro, Government of Arunachal Pradesh.
4. The facts leading to filing of the instant writ petition, briefly stated, are as under:
The petitioner was appointed as contingency staff in the Office of the District Agriculture Officer, Lower Subansiri District, Ziro, Arunachal Pradesh, on 02.05.2003, whereas the respondent no. 9 was appointed as a contingency staff in the Office of the District Agriculture Officer, Lower Subansiri District, Ziro, on 18.01.2016. According to the petitioner, though regularisation of the service of the contingency staffs are required to be made from those who have served 20 years as contingent staff as per the Office Memorandum, dated 09.01.2012, issued by the Chief Secretary to the Government of Arunachal Pradesh, from a common list of serving contingency staff maintained by the Department, the respondent authorities had regularised the service of the respondent no. 9 in the post of peon in violation of the Office Memorandum, dated 09.01.2012 and ignoring the Seniority position of the petitioner vis-à-vis the respondent no. 9 in a Board Proceeding held on 18th of June, 2019. The petitioner accordingly contends that since the regularisation of the service of the respondent no. 9 as peon has been made, ignoring the seniority position of the petitioner as well as in violation of the Office Memorandum, dated 09.01.2012, the impugned order of appointment dated 18th June, 2019 is liable to be set aside and quashed.
5. The respondent no. 10, the Deputy Director of Agriculture, Lower Subansiri District, Ziro, has filed a counter-affidavit, wherein, in paragraph-5, thereof, the manner in which the appointment of respondent no. 9 was made, has been stated, which is as under:
“…5. That with regards to the statement made in paragraph-3 of the writ petition, the answering respondent begs to state that there was no infirmity in the selection process as the board of DPC have taken all material facts into consideration. It is pertinent to mention here that prior to DPC proceeding, all the contingency staff of Deputy Director, Agriculture, Ziro and Govt. Agriculture Farm, Yazali was duly served notice vide No. Agril/E-86/Vol-V/2018-19 dated 04/06/2019 informing them to submit their Performance Report of 3 (three) years i.e., from 2016-17, 2017-18 and 2018-19, qualification certificate and appointment order to be considered during the DPC. Accordingly, the regularization of Smti Hage Yabyang (Private respondent No. 9) to the post of peon was made purely on the performance report, punctuality and overall efficiency including expertise, discipline and integrity of the candidate as there was no seniority list at that relevant period of time. The DPC proceeding held on 18/06/2019 was conducted by the Board Members comprised of Smti Tame Yajum, EAC, Ziro as Chairman, Sri Nabam James, DFDO, Ziro, Sri Komri Murtem, DHO, Ziro, Sri Boria Nakum, DDA, Ziro and Sri Kago Lailyang, LDC as members after complying all the codal formalities and the conditions that laid down in board proceeding to be filled up one post of peon amongst the contingency staff primarily based on the performance report guided by the ability and efficiency of the person concerned in the office works as there was no seniority list placed before the board members of DPC and accordingly the board has recommended Smti Hage Yabyang (Private respondent No.9) to the post of peon against the retirement vacancy of Sri Bamin Taw, Ex-Peon. The DPC dated 18/06/2019 was primarily considered based on evaluation of the performance of the candidate and accordingly the Board had selected the Private respondent No. 9 and regularized to the post of peon. Hence, the DPC dated 18/06/2019 was conducted after following a due selection process in which merit of the candidates were properly assessed.”
6. Though the respondent no. 3/the Deputy Commissioner, Lower Subansiri District, Ziro, appears to be not connected with the impugned appointment order, dated 18.06.2019, the respondent no. 3/the Deputy Commissioner, Lower Subansiri District, Ziro, has also filed an affidavit, wherein, the stand taken by the respondent no. 10, the Deputy Director of Agriculture, Lower Subansiri District, Ziro, in the counter-affidavit filed, indicating the manner in which, the appointment of respondent no. 9 was made has been reiterated.
7. The respondent no. 9 has also contested the case by filing a counteraffidavit, wherein, it has been stated that notice, dated 4th June, 2019, was issued by the Deputy Director of Agriculture, Lower Subansiri District, Ziro, inviting all the contingency staffs of the Deputy Director of Agriculture, Lower Subansiri District, Ziro, to submit their performance report of 3(three) years from 2016-17, 2017-18 and 2018-19, qualification certificate with attested from gazette officer and a copy of the appointment order. It was pursuant to submissions of the performance report of the 3 (three) years mentioned in the notice, dated 4th June, 2019, by the contingent staffs of the Office of the Deputy Director of Agriculture, Lower Subansiri District, Ziro, a Board Proceeding was held on 18th June, 2019, whereafter, on selection made, by the Board, the respondent no. 9 was regularised as peon in the Department, vide order of appointment dated 18th June, 2019. The respondent no. 9 in the counter-affidavit filed has also contended that the seniority list annexed by the petitioner is dated 01.06.2020, which means, the seniority list of the contingent staffs in the department was prepared after the Board Proceeding was held on 18.06.2019 as well as the order of appointment of the respondent no. 9 dated, 18th June, 2019 was issued. The respondent no. 9 in the counter-affidavit filed has also contended that since the notice dated 4th June, 2019, issued by the Deputy Director of Agriculture, Lower Subansiri District, Ziro, calling for performance report of the 3 (three) years was not objected to by the petitioner herein and the petitioner had also submitted her performance report in pursuance of the notice dated 4th June, 2019, the petitioner now cannot turn back and challenge the appointment of the respondent no. 9 made on the basis of the performance report that was called for vide notice dated 4th June, 2019, issued by the Deputy Director of Agriculture, Lower Subansiri District, Ziro.
8. I have heard the learned counsels appearing for the parties.
9. Mr. Tagyang, learned counsel for the petitioner, has argued that since the respondent no. 9 has been regularised in the post of peon in violation of the General Arunachal Service, Group ‘C’ Common Recruitment Rules, 2011, referred to in the Office Memorandum, dated 9th January, 2012, issued by the Chief Secretary, Government of Arunachal Pradesh, Itanagar (AnnexureV), providing absorption of contingent staffs in a regular post from the list of contingent staff maintained by the Department who have completed 20 years of service as contingent staff and ignoring the seniority position of the petitioner vis-à-vis the respondent no. 9 , the impugned order of appointment issued, regularising the service of the respondent no. 9 as Peon is liable to be set aside and quashed.
10. Mr. I. Riram, learned Additional Senior Government Advocate representing the respondent nos. 3 & 10 has argued that since the respondent no. 9 was appointed on the basis of selection made by the board on 18.06.2019, having regard to the performance report of the year from 2016-17, 2017-18 and 2018-19, pursuant to a notice issued to all the contingent staffs of the Department to submit their respective performance report for the year mentioned above, there is no illegality committed in issuing the order of appointment to the respondent nos. 9 by the respondent authorities and accordingly, no interference is called for by this Court.
11. Mr. Perme, learned Standing counsel for the Agriculture Department representing the respondent nos. 1 & 2 has endorsed the submission of Mr Riram, learned Additional Senior Government advocate representing the respondent nos. 3 & 10.
12. Mr. Lampu, learned counsel for the respondent no. 9 has submitted that the Deputy Director of Agriculture, Lower Subansiri District, Ziro, had issued a notice dated 4th June, 2019, to submit performance report of all the contingent staff of the Department for the year from 2016-17, 2017-18 and 2018-19, along with qualification certificate and copy of the appointment order. It was on the basis of the performance report submitted by the contingency staffs of the Department for the year mentioned, hereinabove, that a comparative analysis was made, wherein, the respondent no. 9 was found to have been graded “excellent”, whereas, none of the other candidates who had submitted the performance report was graded “excellent” and it was on the basis thereof, that in the Board Proceeding held on 18th June, 2019, the respondent no. 9 was selected for appointment for regularisation as peon in the Department, pursuant to which, the order of appointment dated 18th June, 2019, appointing the respondent no. 9 as peon in the Office of the Deputy Director of Agriculture, Lower Subansiri District, Ziro was issued.
13. Mr. Lampu, learned counsel for Respondent No. 9; has further argued that the writ petitioner at no point of time did challenge the notice, dated 04.06.2019, issued by the Deputy Director, Department of Agriculture, Government of Arunachal Pradesh, Ziro, informing all the contingent staffs of the Department to submit the performance report for three years i.e. 2016- 17, 2017-18 and 2018-19 which was the basis for selection of the respondent no. 9. The petitioner, having not challenged the notice, dated 04.06.2019, issued by the Deputy Director, Department of Agriculture, Government of Arunachal Pradesh, Ziro, and she herself also having submitted the performance report for the years, mentioned-above; for selection by the Board; she cannot, now, turn back and challenge the appointment of Respondent No. 9 after she has found that she has not been selected.
14. In support of his contention that the writ petitioner having consciously taken a calculated chance in the selection process, cannot now turn back and challenge the selection, Mr. Lampu, learned counsel for Respondent No. 9, has referred to two decisions of the Hon’ble Supreme Court rendered in the cases of Ramesh Chandra Shah & Ors vs Anil Joshi & Ors. reported in (2013) 11 SCC 309 [LQ/SC/2013/369] and Manish Kumar Shahi v. State of Bihar, reported in (2010) 12 SCC 576 [LQ/SC/2010/581] .
15. Rival contentions advanced by the contesting parties have received due consideration of this Court.
16. Upon hearing the learned counsels appearing for the parties and on perusal of the materials on record; it is noticed that a Board proceeding was held on 18.06.2019, wherein, the respondent No. 9 was recommended for regularization in the post of Peon against the resultant retirement vacancy of one Shri Bamin Taw, ex-Peon, under the establishment of Deputy Director, Department of Agriculture, Government of Arunachal Pradesh, Ziro.
17. The Board proceeding, dated 18.06.2019, is reproduced hereinbelow for ready reference:
BOARD PROCEEDING
In pursuance of Govt. order No. Agri/E-67/2019, dated Ziro the 18th June, 2019. The board/committee consisting of the following members assemble in the office chamber of the Deputy Director, Agriculture, Lower Subansiri District, Ziro on 18/06/2019 for selection and filing of one number of vacant post of peon under Deputy Director, Agriculture, Lower Subansiri District, Ziro through selection of Candidate from the Contingency list amongst the skilled/unskilled contingent staff on the basis of merit and performance report submitted.
Board Member:
1. Smti Tame Yajum, EAC, Ziro Chairman 2. Shri Nabam James, DFDO, Ziro Member 3. Shri Komri Murtem, DHO, Ziro Member 4. Shri Boria Nakum, DDA, Ziro Member 5. Shri Kago Laliyang, LDC, Ziro Member OBSERVATIONS: -
1. It is placed before the Board that Deputy Director Agriculture, Lower Subansiri District, Ziro has not maintained Seniority List of the 24 Contingency sanctioned against the District as per the Direction issued by the Govt vide No. Agri/Dev-2/2014-15 dated Itanagar the 29th May 2014 & Vide No. Agri/Dev-11/2018-19 Dated Itanagar the 19th June 2018 whereby it is ordered for deduction of wage for one day with a break in the service which bars the contingencies from claiming seniority in the service.
2. No appointment order is given to most of the contingencies due to which no service book is opened and available for the board to peruse.
3. There are 24 (Twenty four) Nos of contingency (Unskilled/Skilled) sanctioned against DDA Ziro for which no Seniority List has been maintained as per the direction given at Sl. 1 above.
4. The only criteria left with the board for considering a suitable candidate for appointing to the post of Peon lying against retirement vacancy of Shri Bamin Taw, Ex-peon is the Performance Report submitted by the Controlling Officer concerned under whom the Contingencies are attached.
5. On the basis of Performance report, the analysis is placed at Annexure-A.
RECOMMENDATION
After going through all relevant records, performance report, overall efficiency, including expertise, discipline, integrity of candidates and as per the provision of recruitment rules the board hereby unanimously suggest and recommended the following staff for regularization for the categories of skilled/unskilled contingent staff to the post of regular peon erstwhile group ‘D’ post on the following ground.
1. Regularization of Smti. Hage Yabyang to the post of peon against resultant retirement vacancy of Shri Bamin Taw, ex-peon under Deputy Director, Agriculture, Lower Subansiri District, Ziro since the candidate being eligible for regularization and up gradation to the post of peon, under the department of Agriculture.
2. Waiting List
1.
2.
18. From perusal of the Board Proceeding, in which proceeding, the Respondent No. 9 has been recommended, it transpires that the seniority list of the contingent staffs in the Department was not placed before the Board which fact would be evident from the observation made by the Board at Serial No. 1 of the Board Proceeding to the effect that the Deputy Director, Department of Agriculture, Government of Arunachal Pradesh, Ziro, has not maintained the seniority list of 24 contingency staffs as per the direction issued by the Government vide Memo. No. Agri/Dev-2/2014-15, dated 29.05.2014.
19. It is also noticed from the Board proceeding that in the absence of the seniority list of the contingent staffs placed before the Board; the Board had observed that the only criteria for consideration of a suitable contingency staff for appointing to the post of Peon lying vacant against the retirement vacancy of one Shri Bamin Taw, ex-Peon, is the performance report of the Controlling Officer for three years i.e. 2016-17, 2017-18 and 2018-19.
20. It, therefore, is evident that the recommendation of private respondent No. 9 was made on the basis of the performance report submitted by the Controlling Officer, which, in the instant case, is the Deputy Director, Department of Agriculture, Government of Arunachal Pradesh, Ziro, who, vide the impugned notice, dated 04.06.2019, issued by the Deputy Director, Department of Agriculture, Government of Arunachal Pradesh, Ziro, had informed all the Contingent Staffs of the Deputy Director, Department of Agriculture, Government of Arunachal Pradesh, Ziro, to submit their performance reports for three years i.e. 2016-17, 2017-18 and 2018-19.
21. Thus, it appears that the recommendation of the private respondent No. 9 in the Board proceeding held on 18.06.2019 was made solely on the basis of the comparative assessment of performance reports of the Contingent Staffs including the writ petitioner and private respondent No. 9, submitted by the Controlling Officer i.e. Deputy Director, Department of Agriculture, Government of Arunachal Pradesh, Ziro. Pursuant to the recommendation made by the Board Proceeding held on 18.06.2019, the appointment order of private respondent No. 9 as Peon was issued by the Deputy Director, Department of Agriculture, Government of Arunachal Pradesh, Ziro.
22. The petitioner, in paragraph No. 4 of the writ petition, has contended that there is an Office Memorandum, dated 09.01.2012, issued by the Chief Secretary to the Government of Arunachal Pradesh, wherein, it is provided that the absorption to regular post/service of the contingent staffs who have rendered 20 years as Contingent Staffs, is required to be made in terms of the General Arunachal Pradesh Service Group ‘C’ Common Recruitment Rules, 2011, from the common seniority list/register of the serving contingency staff maintained by the Department.
23. The applicability of the Office Memorandum, dated 09.01.2012, and the General Arunachal Pradesh Service Group ‘C’ Common Recruitment Rules, 2011, mentioned in the Office Memorandum, dated 09.01.2012, as contended by the petitioner in paragraph No. 4 of the writ petition; have not been controverted, either, by the State Respondents, or, by the respondent No. 9.
24. Since the applicability of the Office Memorandum, dated 09.01.2012, and the General Arunachal Pradesh Service Group ‘C’ Common Recruitment Rules, 2011, have not been controverted by the State Respondents as well as by the Respondent No. 9; to appreciate the contents of the Office Memorandum, dated 09.01.2012; it is reproduced hereinbelow:
THE ARUNACHAL PRADESH GAZETTE
EXTRAORDINARY
PUBLISED BY AUTHORITY
No. 15, Vol XIX, Naharlagun, Thursday, January 19, 2012 Pausa 29, 1933 (Saka)
GOVERNMENT OF ARUNACHAL PRADESH
DEPARTMENT OF ADMINISTRATIVE REFORMS
CIVIL SECRETARIAT, OLD DC’s OFFICE
‘C’ SECTOR
ITANAGAR
OFFICE MEMORANDUM
The 9th January, 2012
Subject: Procedure for maintenance of common seniority list for skilled and unskilled contingent staff- regarding.
No. AR-152/2011 – The Governor of Arunachal Pradesh had notified the General Arunachal Service. Group ‘C’ Common Recruitment Rules, 2011 to amend the General Arunachal Service, Group ‘C’ Common Recruitment Rules, 2008. The 25% posts have been earmarked for appointment of Contingent serving staff vide notification No. AR-175/2011/II dated 27th January, 2011. The Deputy Commissioner, East Siang District, Pasighat has sought a clarification asking whether 25% of posts of Peon, Chowkidar, Dak Runner, Kenalman, Helper, Water Carrier and equivalent can be filled up from amongst the Unskilled contingent staff who have completed the prescribed service span and do not possess the minimum entry level qualification for these posts. Similar approaches are being made by various Appointing Authorities/Departments seeking clarification on this matter. After meticulous examination of the matter in relation to the relevant Government notification and orders, the Governor of Arunachal Pradesh is hereby please to prescribe and incorporate the following guidelines: -
(a) All Departments/Appointing Authorities should maintain a common list/register of serving contingent staff which invariably should include both the skilled and unskilled serving contingent staff in their Departments/offices in order of their date of joining as such staff.
(b) Absorption to regular posts/services of the contingent staff who have rendered 20 (twenty) years as contingent staff in terms of Recruitment Rules notified vide F. No. AR175/2011/II dated 27th January, 2011 should be based purely and strictly in the order of the common seniority list register of the serving skilled and unskilled contingent staff.
(c) 20% of the unreserved posts in the grade/cadre should be normally filled on the basis of common seniority list and in case of non-availability of general category candidates in the seniority list, the vacancy may be filled by the eligible senior most APST candidates.
(d) 80% of the posts out of the 25% posts in the lowest rung of Pay Band (PB)- 1 earmarked for absorption of the serving contingent staff should be filled by APST candidates as per the Reservation Policy of the Government.
(e) Absorption of the serving contingent staff who do not possess minimum educational qualification of matriculation/ITI or equivalent (for direct recruitment) to the regular posts/services shall be regulated in the same manner as prescribed for Multi-Tasking Staff under the relevant provision of the Central Civil Services (Revised Pay) Rules, 2008 or procedures prescribed thereunder by the State Government.
Henceforth, the above guidelines shall strictly be followed by all the Appointing Authorities while filling up 25% posts/ services for absorption of serving contingent staff under the Government of Arunachal Pradesh.
All the Heads of Departments/Appointing Authorities etc. are requested to bring this decision to all concerned for strict compliance.
23-12-2011
Tabom Bam,
Chief Secretary to the
Government of Arunachal Pradesh, Itanagar
25. On perusal of the Office Memorandum, dated 09.01.2012, issued by the Chief Secretary to the Government of Arunachal Pradesh; it appears that the appointment to Group ‘C’ post is regulated by the General Arunachal Pradesh Service Group ‘C’ Common Recruitment Rules, 2011, under which Rule, 25% posts of the Group ‘C’ posts, have been ear-marked for appointment from the contingent serving staffs. The Office Memorandum, dated 09.01.2012, further provides that the Departments/appointing authorities are required to maintain a common seniority list which invariably should include the skilled and unskilled contingent staffs in their Departments and the absorption to the regular post/service of the contingent staffs be made from those who have rendered 20 years as contingent staff in terms of the General Arunachal Pradesh Service Group ‘C’ Common Recruitment Rules, 2011, and the same should be based purely and strictly in the order of the common seniority list/register of the serving skilled and unskilled contingency staffs.
26. Thus, on perusal of the Office Memorandum, dated 09.01.2012, it appears that absorption of the contingency staff to regular post in the Department is required to be made as per the General Arunachal Pradesh Service Group ‘C’ Common Recruitment Rules, 2011, under which Rule, 25% posts of the Group ‘C’ posts, have been ear-marked for appointment of the contingent serving staff.
27. As has been discussed, hereinabove, that the respondent No. 9 was appointed/regularized as Peon, vide the impugned appointment order, dated 18.06.2019, pursuant to a recommendation made by the Board Proceeding held on 18.06.2019, in which Board proceeding, it has already been noted above that while the Board was considering the case of the contingent staffs of the Department for regularization of service in one of the vacant post due to retirement of one Shri Bamin Taw; the seniority list of the contingency staff was not placed before the Board.
28. Though the seniority list of the contingent staffs under the establishment of the Deputy Director, Department of Agriculture, Government of Arunachal Pradesh, Ziro, annexed as Annexure-1 to the writ petition, is dated 01.06.2020, which is subsequent to the Board proceeding held on 18.06.2019, as well as the appointment order of the private respondent No. 9, dated 18.06.2019, the seniority position assigned in the seniority list, dated 01.06.2020, insofar as the writ petitioner and private respondent No. 9 are concerned; it has not been disputed either by the State Respondents or by the Respondent No. 9.
29. In view of the above, it is found from the seniority list of the contingency staff of the establishment of the Deputy Director, Department of Agriculture, Government of Arunachal Pradesh, Ziro, notified on 01.06.2020, that the writ petitioner was appointed as contingency staff on 02.05.2003 and the respondent No. 9 was appointed as contingency staff on 18.01.2016.
30. From the above, there remains no manner of doubt that neither the writ petitioner nor the private respondent No. 9 had completed 20 years as contingent staff in the Department when the Board proceeding dated 18.06.2019 was held for filling up of one post of Peon.
31. Accordingly, neither the petitioner nor the private respondent No. 9 was eligible to be considered and appointed as Peon on regular basis either in terms of the General Arunachal Pradesh Service Group ‘C’ Common Recruitment Rules, 2011, or, the Office Memorandum, dated 09.01.2012, issued by the Chief Secretary to the Government of Arunachal Pradesh.
32. In that view of the matter, the Board proceeding held on 18.06.2019, recommending the name of the respondent No. 9 to the post of Peon on regular basis and the appointment of Respondent No. 9 as Peon vide the impugned order, dated 18.06.2019, is found to have not been done, in accordance with law.
33. Having found that the appointment of Respondent No. 9 to the post of Peon on regular basis was not made in accordance with law; the contention raised by Mr. Lampu, learned counsel for Respondent No. 9, that the writ petitioner having participated in the selection process, in question, cannot, now, turn back and challenge the appointment of Respondent No. 9 to the post of Peon on regular basis, be considered now.
34. Raising the argument of estopple by conduct against the petitioner; Mr. Lampu, learned counsel, has placed reliance in the decision of the Hon’ble Supreme Court, rendered in the case of Ramesh Chandra Shah (supra) wherein, in paragraph Nos. 18 and 24 it has held as follows, which is quoted as under:
“18. It is settled law that a person who consciously takes part in the process of selection cannot, thereafter, turn around and question the method of selection and its outcome.
24. In view of the propositions laid down in the above noted judgments, it must be held that by having taken part in the process of selection with full knowledge that the recruitment was being made under the General Rules, the respondents had waived their right to question the advertisement or the methodology adopted by the Board for making selection and the learned Single Judge and the Division Bench of the High Court committed grave error by entertaining the grievance made by the respondents.”
From perusal of the ratio laid down by the Hon’ble Supreme Court in the aforesaid case; it is noticed that estopple by conduct was applied in that case because the authorities had proceeded with the selection process after informing the candidates/participants that general rules of selection will be followed and not the special rules.
It was in the above context that since the candidates/participants of the selection held were informed that it is the general rules which will be followed in the selection held and not the special rules; therefore, the candidates/participants having participated with their full knowledge that it is the general rules which will be followed in the selection process; it was held that the petitioners had waived their right to question the methodology adopted by the Selection Board.
In contradistinction to the facts of the Ramesh Chandra Shah (supra) case; in the instant case, the authorities had not informed any of the contingent staffs as to which method of selection or as to which rule(s) of selection will be followed. What the authorities had informed the contingent staffs was only to submit their performance reports for three years i.e. 2016-17, 2017- 18 and 2018-19. All the contingent staffs including the writ petitioner and the respondent No. 9 were, therefore, not in know of the fact as to which method of selection would be adopted in the instant case whereas, there existed the General Arunachal Pradesh Service Group ‘C’ Common Recruitment Rules, 2011, which admittedly, was not followed while making the selection by the authorities.
In view of the above, the ratio laid down by the Hon’ble Supreme Court in the case of Ramesh Chandra Shah (supra) is distinguishable and not applicable in the present case.
35. In the case of Manish Kumar Shahi (supra), relied on by Mr. Lampu, learned counsel for Respondent No. 9, the Hon’ble Supreme Court, in paragraph No. 16, has held as under:
“..16. We also agree with the High Court that after having taken part in the process of selection knowing fully well that more than 19% marks have been earmarked for viva voce test, the petitioner is not entitled to challenge the criteria or process of selection. Surely, if the petitioner’s name had appeared in the merit list, he would not have even dreamed of challenging the selection. The petitioner invoked jurisdiction of the High Court under Article 226 of the Constitution of India only after he found that his name does not figure in the merit list prepared by the Commission. This conduct of the petitioner clearly disentitles him from questioning the selection and the High Court did not commit any error by refusing to entertain the writ petition. Reference in this connection may be made to the judgments in Madan Lal v. State of J&K6, Marripati Nagaraja v. Govt. of A.P.15, Dhananjay Malik v. State of Uttaranchal16, Amlan Jyoti Borooah v. State of Assam17 and K.A. Nagamani v. Indian Airlines14.”
36. On perusal of the ratio laid down by the Hon’ble Supreme Court in the aforesaid case, it appears that the petitioner had challenged the criteria of 19% of marks ear-marked for viva-voce test, which the petitioner already knew before participating in the selection process. It was on that ground that the conduct of the petitioner was held to be disentitling him to challenge the selection process for the sole reason that the petitioner knew the criteria of selection before he took part in the selection process.
37. In the instant case, unlike in the case of Manish Kumar Shahi (supra), the contingent staffs including the petitioner and Respondent No. 9 were not aware of the criteria of selection when they were asked to submit their performance reports for three years i.e. 2016-17, 2017-18 and 2018-19, vide the notice, dated 04.06.2019, issued by the Deputy Director, Department of Agriculture, Government of Arunachal Pradesh, Ziro, whereas, the General Arunachal Pradesh Service Group ‘C’ Common Recruitment Rules, 2011 as well as the Office Memorandum, dated 09.01.2012, does not indicate that the performance report of the contingent staffs for three years i.e. 2016-17, 2017-18 and 2018-19 would be the sole criteria for selection to the regular post of Peon.
38. What the General Arunachal Pradesh Service Group ‘C’ Common Recruitment Rules, 2011 and the Office Memorandum, dated 09.01.2012, inter alia, provides is, maintenance of a common seniority list of the contingent staff of the Department for absorption to regular posts/service for the contingency staff from the common seniority list prepared by the Department, who have rendered 20 years as contingency staff.
39. Thus, when the performance reports of the preceding three years of the contingency staff, was called for vide the impugned notice, dated 04.06.2019, issued by the Deputy Director, Department of Agriculture, Government of Arunachal Pradesh, Ziro; none of the contingent staffs of the Department including the petitioner and the Respondent No. 9, unlike in the case of Manish Kumar Shahi (supra), was aware of the criteria of selection that the selection authority was proposing to adopt. In that view of the matter; the ratio laid down in the case of case of Manish Kumar Shahi (supra) is also distinguishable and not applicable in the facts of the instant case.
40. After having perused the impugned notice, dated 04.06.2019, issued by the Deputy Director, Department of Agriculture, Government of Arunachal Pradesh, Ziro, calling for the performance reports of the contingency staff for three years i.e. 2016-17, 2017-18 and 2018-19, whereby, the Respondent No. 9 was recommended for regularization as Peon in the Department concerned, there remains no manner of doubt that the recommendation of Respondent No. 9 by the Board proceeding held on 18.06.2019 and the order of appointment, dated 18.06.2019, issued by the Deputy Director, Department of Agriculture, Government of Arunachal Pradesh, Ziro, appointing/regularizing the service of Respondent No. 9 as Peon, has not been done in accordance with law i.e. in terms of the General Arunachal Pradesh Service Group ‘C’ Common Recruitment Rules, 2011, as well as Office Memorandum, dated 09.01.2012, issued by the Chief Secretary to the Government of Arunachal Pradesh.
41. For the reasons and discussions made hereinabove; the impugned order of appointment dated 18th June, 2019, issued by the Deputy Director, Agriculture, Lower Subansiri District, Ziro, vide No. Agri/E-67/2019-20, appointing the Respondent No. 9 to the post of Peon in the establishment of Deputy Director, Department of Agriculture, Government of Arunachal Pradesh, Ziro, cannot be sustained in law and the same is hereby set aside and quashed.
42. The writ petition stands allowed and disposed of in terms above.
