Gauhati High Court
Ratul Kumar And 33 Ors vs The State Of Assam And 78 Ors on 21 October, 2019
Equivalent citations: AIRONLINE 2019 GAU 724
Author: Sanjay Kumar Medhi
Bench: Sanjay Kumar Medhi
Page No.# 1/6
GAHC010016622015
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C) 3837/2015
1:RATUL KUMAR and 33 ORS
S/O SRI NAGENDRA NATH KUMAR, R/O KV KHANAPARA, STAFF CAMPUS,
QTR. NO. TYPE -II,/2-A, P.O. KHANAPARA, DIST- KAMRUP, ASSAM
VERSUS
1:THE STATE OF ASSAM AND 78 ORS
REP. BY THE COMMISSIONER AND SECY. TO THE GOVT. OF ASSAM,
HANDLOOM, TEXTILES AND SERICULTURE DEPTT., DISPUR, GHY-6
Advocate for the Petitioner : MR.R ALI
Advocate for the Respondent : GA, ASSAM
Linked Case : WP(C) 5604/2015
1:SMT. MINATI GOGOI MOHAN and 2 ORS.
W/O. SRI KHENESWAR MOHAN
R/O. JAJOLI
P.O. MORANJAN
DIST. SIBSAGAR
ASSAM
PIN-785673.
VERSUS
1:THE STATE OF ASSAM AND 78 ORS
REP. BY THE COMMISSIONER and SECY. TO THE GOVT. OF ASSAM
HANDLOOM
Page No.# 2/6
TEXTILES AND SERICULTURE DEPTT.
DISPUR
GHY-06.
Advocate for the Petitioner : MRN J DAS
Advocate for the Respondent :
BEFORE
HONOURABLE MR. JUSTICE SANJAY KUMAR MEDHI
JUDGMENT
Date : 21-10-2019 As a common grievance is raised in both these writ petitions, the same are taken up for disposal analogously at the Admission stage. This Court has also considered that the matters are of the year 2015 and pleadings are complete.
2. The principal grievance of the petitioners is with regard to the method adopted for recruitment pursuant to an advertisement published in the newspaper on 29.11.2013, for filing up of 80 numbers of Grade-IV posts under the Directorate of Sericulture, Assam. It is the case of the petitioners that though a Selection Committee was constituted that Selection Committee could not have made the selection pertaining to different districts as the vacancies were from different districts all across the State. Since the prescription laid down in the Assam Public Services (Direct Recruitment to Class III and Class IV Posts) Rules, 1997 (hereinafter the Rules) were not followed, it is the case of the petitioners that the entire selection stood vitiated.
3. I have heard Shri N. Hoque, learned counsel for the petitioners in WP(C)/3837/2015 as well as Shri R. Ali, learned counsel appearing on instructions of Shri P. K. Das, learned counsel for the petitioners, so far as WP(C)/5604/2015 is concerned. I have also heard Shri N. Goswami, learned State Counsel appearing on behalf of the State respondents as well as Shri A. K. Das, learned counsel for the private respondents in both the writ petitions.
4. Both Shri Goswami and Shri Das, learned counsels, have submitted that necessary affidavit-in- oppositions have been filed in the case.
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5. Referring to the aforesaid Rules, Shri Hoque, learned counsel for the petitioners, submits that Rule 5 is with regard to constitution of Selection Committee which envisage different Selection Committees for posts at different levels. For ready reference, relevant part of Rule 5 is extracted herein below -
"5. Constitution of Selection Committee- (1) There shall be constituted different Selection Committees for selecting the candidates for Class III and Class IV posts in different offices of the State for which no service Rules or Executive Orders are in existence and are not within the purview of the Commission as stated herein below-
(a) Selection Committee for the posts in the District Level Offices, Divisional Level Offices (like those under the PWD, Forest etc.) and below District Level Offices-
The composition of this Selection Committee shall be as under-
(i) Appointing Authority or the Seniormost Departmental officer available in the district where the vacancy arises nominated by the Appointing Authority........Chairman;
(ii) A departmental officer belonging to the office under which the vacancy arises......
Member Secretary;
(iii) An officer of a department other than the department under which the vacancy arises to be named by the Deputy Commissioner of the District where the vacancy arises.......Member;
(iv) An officer of a Department other than the department under which the vacancy arises and the department from which the deputy commissioner has nominated an officer as a member of this Committee to be named by the Appointing Authority..........Member.
(b) Selection Committee for the posts under the Deputy Commissioner of a District-
(i) The Deputy Commissioner or the senior most Addl. Deputy Commissioner in the office of the Deputy Commissioner nominated by the Deputy Commissioner............Chairman;
(ii) The Senior most Sub-divisional officer (sadar) in the office of the Deputy Commissioner.............Member Secretary;
(iii) Three of offices belonging to three different departmental offices in the district to be named by the Commissioner of the Division in whose Division the district lies ......... Members.
(c) Selection Committee for the posts in the office of the Heads of Department-The composition of this selection Committee shall be as under-
(i)........;
(ii).......;
(iii)......;
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(iv)......;
(d) Selection Committee for the posts in the Regional Level Offices-The composition of this Selection Committee shall be as under-
(i).......;
(ii)......;
(III).....;
(IV)......;
(v)........Member."
6. It is the case of the petitioners that since separate Selection Committees are prescribed for making selection at different levels, one Selection Committee as constituted vide order dated 24.07.2014, would be in the teeth of the prescription of the Rules. Shri Hoque, learned counsel, has also referred to the averments made in the petition that since the advertisement was for 80 numbers of posts, some of the petitioners did not participate on the anticipation that all the posts would be under the Directorate at Guwahati and not district wise and it was only on holding of the selection and publication of the select list that the petitioners came to know that the vacancies were pertaining to different district as well. The learned counsel further submits that since there has been deviation in the prescription of the Rules, the entire selection stands vitiated.
7. Shri R. Ali, learned counsel appearing in WP(C)/5604/2015, endorses the submissions of Shri Hoque, learned counsel for the petitioners in WP(C)/3837 /2015.
8. Shri N. Goswami, learned State Counsel, on the other hand, submits that the advertisement dated 29.11.2013 is itself clear that 80 numbers of posts which were sought to be filled up were under the Directorate of Sericulture and therefore, the selection made by the Committee, constituted vide the order dated 24.07.2014, is strictly in accordance with the Rules. Questioning the locus of the petitioners, Shri Goswami, learned State Counsel, submits that amongst the petitioners in the writ petitions, few of them even did not participate in the selection process and therefore, they do not have the locus to question the selection. In this regard, Shri Goswami, learned State Counsel, further submits that this Court vide an earlier order had directed the petitioner to file an affidavit to state as to whom amongst the petitioners had participated in the recruitment process.
9. Shri Hoque, learned counsel for the petitioners, submits that such affidavit has been filed and further submits that only because a few of the petitioners did not participate in the recruitment process will not extinguish the right at least for the petitioners, who had participated in the recruitment process, moreso, when the Page No.# 5/6 Rules have been violated.
10. Shri A. K. Das, learned counsel for the private respondents, submits that even though some of the petitioners might have participated in the recruitment process, that by itself will not give them locus to challenge the recruitment inasmuch as prior to filing of the writ petitions, no objection whatsoever was raised by the petitioners with regard to the Rules in question. He further submits that no mala fide have been alleged in the writ petitions. Moreover, there is no averment regarding suffering of any prejudice by any of the petitioners in the recruitment process by alleged non-application of the Rules in force. Shri Das, learned counsel, categorically submits that the Committee constituted vide the order dated 24.07.2014, is strictly in accordance with the Rules and the private respondents have been selected in accordance with law as per merit.
11. The rival contentions of the learned counsel for the respective parties have been duly considered. The basic premises of filing of the writ petitions is on the assumption that the vacancies were pertaining to different districts and therefore, separate Selection Committees should have been constituted as per the Rules. However, this Court is of the opinion that there is a fallacy in drawing such presumption in view of the clear and unambiguous projection made in the advertisement itself that 80 numbers of posts, which were sought to be filled, were under the Directorate of Sericulture. There is no indication, whatsoever, that selection process would be constituted district wise. This Court does not find any fault in conducting the selection process by a duly constituted Selection Committee vide the order dated 24.07.2014, which has been brought on record by an affidavit filed by the respondent No. 2, namely, the Director of Sericulture. In fact, along with the affidavit, not only the Order dated 24.07.2014 has been annexed, even the draft order constituting such Committee has been annexed which indicates lack of mala fide on the part of the appointing authority. This Court is also of the view that though at least for the members who had participated in the Selection Committee, these writ petitions may be maintainable, the conduct of the petitioners who had participated and not raising any objection at any earlier point of time regarding non-adherence to the Rules, would also be a relevant consideration for adjudication of this matter.
12. In this connection, one may gainfully refer to the case of Madan Lal & Ors. Vs. State of Jammu & Kashmir & Anr. reported in 1995 SCC (3) 486, wherein, the Hon'ble Supreme Court has laid down as follows -
"9. Before dealing with this contention, we must keep in view the salient fact that the petitioners as well as the contesting successful candidates being concerned respondents herein, were all found eligible in the light of marks obtained in the written test, to be eligible to be called for oral interview. Upto this stage there is no dispute between the parties. The petitioners also appeared at the oral interview conducted by the concerned Members of the Commission who interviewed the petitioners as well as the Page No.# 6/6 concerned contesting respondents. Thus the petitioners took a chance to get themselves selected at the said oral interview. Only because they did not find themselves to have emerged successful as a result of their combined performance both at written test and oral interview, that they have filed this petition. It is now well settled that if a candidate takes a calculated chance and appears at the interview then, only because the result of the interview is not palatable to him he cannot turn round and subsequently contend that the process of interview was unfair or Selection Committee was not properly constituted. In the case of Om Prakash Shukla v. Akhilesh Kumar Shukla and Ors., (AIR 1986 SC 1043), it has been clearly laid down by a Bench of three learned Judges of this Court that when the petitioner appeared at the examination without protest and when he found that he would not succeed in examination he filed a petition challenging the said examination, the High Court should not have granted any relief to such a petitioner.
10. Therefore, 'the result of the interview test on merits cannot be successfully challenged by a candidate who takes a chance to get selected at the said interview and who ultimately finds himself to be unsuccessful. It is also to be kept in view that in this petition we cannot sit as a Court of appeal and try to reassess the relevant merits of the concerned candidates who had been assessed at the oral interview nor can the petitioners successfully urge before us that they were given less marks though their performance was better...."
13. In view of the above, this Court is of the opinion that no case of interference has been made out in these writ petitions and accordingly, the same are dismissed.
JUDGE Comparing Assistant