Gauhati High Court
Smti Gita Kumari vs The State Of Assam And Ors on 20 January, 2015
Author: T. Vaiphei
Bench: T. Vaiphei
IN THE GAUHATI HIGH COURT
(High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh)
1) WRIT PETITION (C) No. 148/2012
Smt. Gita Kumari,
Daughter Sri Bishnu Ram Kumar,
Resident of village -Titkuchi,
P.O. - Burha, P.S.- Sipajhar,
Dist. Darrang, Assam
........Petitioner
-Versus-
1) The State of Assam
Represented by the Chief Secretary to the Govt. of
Assam, Dispur, Guwahati-6.
2) The Commissioner & Secretary to the Govt. of
Assam, Secretariat Administration (Establishment)
Department, Dispur, Guwahati.-6
3) The Deputy Secretary to the Government
of Assam, Secretariat Administration (Establishment)
Department, Dispur, Guwahati- 6.
4) Sri D. Sonowal, Officer-in-Charge,
S.A. (Record & Library) Department, Assam
Secretariat (C), Dispur, Guwahati-6.
5) The Selection Committee for Direct
Recruitment of Record Suppliers of SA (Record &
Library) Department under the Secretariat
Administration (Establishment) Department,
Represented by the Commissioner & Secretary to the
Govt. of Assam as Chairman of the Selection
Committee.
6) Sri Baharul Islam,
S/o Sri Saidur Rahman Laskar,
C/o Saidur Rahman Laskar, Superintendent, Assam
Secretariat (C), Animal Husbandry and Veterinary
Department, Dispur, Guwahati-6.
7) Sri Naranath Sonowal,
Son of Sri Ratneswar Sonowal,
R/o of Panjabari, Botahghuli Tinali, House No.5,
P.O.- Bagharbari, P.S.- Satgaon, Dist. Kamrup,
Assam, Guwahati-37,
Permanent resident of Kadam, Moinapara, North
Lakhimpur Sub-Division, P.O.- Kadam, P.S.- North
Lakhimpur, Dist. Lakhimpur, Assam
WP(C) Nos. 148 & 1111 of13/14 Page 1 of 11
8) Sri Karnajit Nath,
S/o Sri Karunamoy Nath, R/o Ananda Nagar, Bye-
Lane -1, P.O.- Dispur, Guwahati-5.
9) Shri Johnmoni Das,
S/o Sri Bhupen Das,
Resident of village- Alekjari, P.O.,- Chhaygaon, Dist.
Kamrup, Assam,
Pin-781124
Respondent Nos. 6 to 9 are impleaded as party
respondents vide Order dated 18.7.2013 in Misc. Case No.1704/2013.
...... Respondents
2) WRIT PETITION (C) No. 1111/2014 Sri Chanakya Talukdar, Son Sri Late Khargeswar Talukdar, Resident of village -Bargandubi, P.O. - Bangaon (Tihu), P.S.- Patasarkuchi, Dist. Barpeta, Assam, Ex-Casual Record Supplier, Under the office of Secretariat Administration (Record & Library) Department.
........Petitioner
-Versus-
1) The State of Assam Represented by the Chief Secretary to the Govt. of Assam, Dispur, Guwahati-6.
2) The Commissioner & Secretary to the Govt. of Assam, Secretariat Administration (Establishment) Department, Dispur, Guwahati.-6
3) The Deputy Secretary to the Government of Assam, Secretariat Administration (Establishment) Department, Dispur, Guwahati- 6.
4) Sri D. Sonowal, Officer-in-Charge, S.A. (Record & Library) Department, Assam Secretariat (C), Dispur, Guwahati-6.
5) The Selection Committee for Direct Recruitment of Record Suppliers of SA (Record & Library) Department under the Secretariat Administration (Establishment) Department, Represented by the Commissioner & Secretary to the Govt. of Assam as Chairman of the Selection Committee.
6) Sri Baharul Islam, WP(C) Nos. 148 & 1111 of13/14 Page 2 of 11 S/o Sri Saidur Rahman Laskar, C/o Saidur Rahman Laskar, Superintendent, Assam Secretariat (C), Animal Husbandry and Veterinary Department, Dispur, Guwahati-6.
7) Sri Karnajit Nath, S/o Sri Karunamoy Nath, R/o Ananda Nagar, Bye- Lane -1, P.O.- Dispur, Guwahati-5.
8) Sri Naranath Sonowal, Son of Sri Ratneswar Sonowal, R/o of Panjabari, Botahghuli Tinali, House No.5, P.O.- Bagharbari, P.S.- Satgaon, Dist. Kamrup, Assam, Guwahati-37, Permanent resident of Kadam, Moinapara, North Lakhimpur Sub-Division, P.O.- Kadam, P.S.- North Lakhimpur, Dist. Lakhimpur, Assam
9) Shri Johnmoni Das, S/o Sri Bhupen Das, Resident of village- Alekjari, P.O.,- Chhaygaon, Dist. Kamrup, Assam, Pin-781124 ...... Respondents PRESENT HON'BLE MR. JUSTICE T. VAIPHEI For the Petitioner ... Mr. JI Borbhuiyan, Mrs. KH Choudhury, Mrs. F. Begum, Mr. L. Mohan , Ms. A. Ahmed, Mr. Z. Arabat, Advocates For the respondents ... Mr. KD Chetry, Sr. Govt.
Advocate.
Mr. UK Nair, Adv.
Date of Hearing .... 02.12.2014
Date of Judgment .... 20-01-2015
JUDGMENT & ORDER
These two writ petitions raising a common question of facts and of law were taken up together for admission hearing, and are now being disposed of by this common judgment. The common question of law involved is whether the selection of the four WP(C) Nos. 148 & 1111 of13/14 Page 3 of 11 private respondents for the posts of Record Suppliers in the Secretariat Administration (Records and Library) Department through Employment Exchange and not through advertisement can be sustained in law, particularly, when the extant Rules do not insist such recruitment through advertisement?
2. Before proceeding further, the undisputed facts on record may be briefly adverted to. Both the writ petitioners used to serve as Record Supplier by way of casual employees in the Secretariat Administration (Establishment) Department, Dispur initially for a period of three months, which were extended from time to time till September, 2007 when their engagement were stopped abruptly. The petitioners had already participated five days of Trainers Training Course in the Record Management, Conservation and Microfilming Digitization under the aegis of the Directorate of Archives, Assam from 18-9-2006 to 22-9-2006. In the meantime, candidates for filling up of the four vacant posts of Record Suppliers were requisitioned from the Assistant Director of Employment Exchange, Kamrup, who then sent a list of 80 candidates. The Selection Committee comprising of Commissioner/Secy, SA(E) Department, Joint Secy, SA(E) Deptt., Deputy Secy, SA(E) Deptt and Officer-in-Charge, SA (Record) Deptt. Interviewed these candidates. When the petitioner came to know about this recruitment process, she submitted the representation dated 31-12-2011 to the Chief Secretary, Assam complaining of the exercise of recruitment by the Selection Committee without advertising the posts and without giving her an opportunity to appear in the interview, but this complaint apparently came a cropper. Ultimately, the newly impleaded respondent No. 6 to 9 in both the writ petitions were selected for WP(C) Nos. 148 & 1111 of13/14 Page 4 of 11 the posts. Before these selectees could be appointed by the respondent authorities, this Court by the order dated 10-1-2012, while issuing notice of motion in WP(C) No. 148 of 2013, passed an interim order suspending the impugned selection. Similar interim order was also passed on 1-1-2014 in WP(C) No. 1111 of 2014.
3. I have carefully gone through the affidavits-in-opposittion filed by the respondent No. 2 and 4 to oppose the writ petitions of the petitioners. Assailing the impugned recruitment process in question, Mr. J.I. Borbhuiya, the learned counsel for the petitioners, contends that the respondent authorities ought to have advertised the posts through local newspapers or through other modes of advertisement so as to enable all eligible and interested candidates to participate in the recruitment process, which is illegal. According to the learned counsel, the recruitment process sans advertisement has been done solely to facilitate the respondent authorities to select candidates of their choice, and such exercise smacks of arbitrariness and discrimination and is, therefore, liable to be quashed. Per contra, Mr. B. Chetri, the learned Senior Government Advocate, argues that filling up of the posts in question by requisitioning candidates from employment exchange is one of the permitted modes of recruitment under Rules 7 and 9 of the Assam Secretariat Supervisory (Record Branch), Record Suppliers, Record sorters and Painter Service Rules, 2010 ("the Rules" for short) and until and unless these rules are challenged and struck down by this Court, the impugned selection process cannot be interfered with: the respondent authorities are duty bound to follow the existing procedures laid down by the extant rules. He further submits that WP(C) Nos. 148 & 1111 of13/14 Page 5 of 11 the requisitioning of candidates through employment exchange was a conscious decision taken by the Department as no eligible candidates could be found by the Deputy Commissioners of six districts to meet the shortage of readily available candidates. It is thus his contention that selection process through employment exchange as per rule cannot be disregarded as irrelevant and the impugned recruitment process, therefore, does not suffer from any infirmity warranting the interference of this Court. To fortify his contentions, he draws my attention to the following decisions:
(a) K. Gunabati v. V. Sangeet Kumar and ors, 2014 (5) SCJ 37; Chief Executive Officer, Pondicherry Khadi & Village Industries Board and anr., (2013) 3 SCC 780; Dhiren Talukda''s case reported in 2012 (5) GLT 167 (DB); Md. T. Ali case in WP(C) No. 2832/13 and State of Assam v. T. Ali and ors. WA No. 258 of 2014.
4. At this stage, it may be apposite to refer to the case-laws of the Apex Court dealing with the question as to whether advertisement of posts under the State and its instrumentalities is mandatory or not. I shall first refer to the decision of the Apex Court in the State of Orissa v. Mamata Mohanty, (2011) 3 SCC
436. Paragraph 35 of the report are relevant, which read thus:
"35. At one time this Court had been of the view that calling the names from employment exchange would curb to certain extent the menace of nepotism and corruption in public employment. But, later on, it came to the conclusion that some appropriate method consistent with the requirements of Article 16 should be followed. In other words, there must be a notice published in the appropriate manner calling for applications and all those who apply in WP(C) Nos. 148 & 1111 of13/14 Page 6 of 11 response thereto should be considered fairly. Even if the names of candidates are requisitioned from employment exchange, in addition thereto it is mandatory on the part of the employer to invite applications from all eligible candidates from the open market by advertising the vacancies in newspapers having wide circulation or by announcement in radio and television as merely calling the names from the employment exchange does not meet the requirement of the said article of the Constitution. (Vide Delhi Development Horticulture Employees' Union v. Delhi Admn 7, State of Haryana v. Piara Singh 8, Excise Supdt. v. K.B.N. Visweshwara Rao 9, Arun Tewari v. Zila Mansavi Shikshak Sangh 10, Binod Kumar Gupta v. Ram Ashray Mahoto 11, National Fertilizers Ltd. v. Somvir Singh 12, Telecom District Manager v. Keshab Deb 13, State of Bihar v. Upendra Narayan Singh 14 and State of M.P. v. Mohd. Abrahim 15.)
5. The proposition of law laid down in the paragraphs extracted, in a nutshell, is that appointment of candidates by merely inviting names from employment exchange without advertising the vacancies or by putting a note on the notice- board, etc., and without interviewing the candidates by the Selection Board will not meet the requirement of Articles 14 and 16 of the Constitution. The learned Senior Government Advocate, however, lays emphasis on the proposition of law laid down by the Apex Court in K. Gunabati case (supra) and forcefully submits 7 (1992) 4 SCC 99 8 (1992) 4 SCC 118 9 (1996) 6 SCC 216 10 (1998) 2 SCC 332 11 (2005) 4 SCC 209 12 (2006) 5 SSCC 493 13 (2008) 8 SCC 402 14 (2009) 5 SCC 65 15 (2009) 15 SCC 214 WP(C) Nos. 148 & 1111 of13/14 Page 7 of 11 that a conscious decision taken by the respondent authorities to requisition candidates from employment exchange under the extant rules can be permitted in terms of the afore-cited decision.
To satisfy the learned senior counsel, para 25 of the report is reproduced below:
"25. The order dated 19-11-2009 directing filling up of 175 existing vacancies and future vacancies of Computer Instructors on the basis of the employment exchange seniority was a conscious decision taken in departure from the virtually settled position in law that recruitment to public service, normally, ought to be by open advertisement and requisitions through the employment exchange can at best be supplemental. (See: Excise Superintendent, Malkapatnam, Krishna District, A.P. v. K.B.N. Vishweshwara Rao and Ors MANU/SC/0980/1996:
(1996) 6 SCC 216, Arun Kumar Nayak v. Union of India and Ors., MANU/SC/8509/2006: (2006) 8 SCC 111 and State of Orissa and Anr. v. Mamata Mohanty, MANU/SC/0110/2011: (2011) 3 SCC 436). Such departure was felt necessary due to the compulsive needs dictated by the peculiar facts of the case. At that point of time, out of the 1880 available posts, 1683 posts had already been filled up by the ad hoc and under-qualified Computer Instructors already working leaving only 175 vacancies and an unknown number of further vacancies which was contingent on the result of the second recruitment test ordered by this Court as a one time measure. Both the recruitment tests, ordered by the High Court as well as this Court, were exclusive to the ad hoc and unqualified persons WP(C) Nos. 148 & 1111 of13/14 Page 8 of 11 leaving a large number of qualified candidates like the petitioners out of the arena of consideration."
[Underlined for emphasis]
6. Thus, the decision in K. Gunavathi (supra) also reiterated the well-settled legal position that recruitment to public service, normally, ought to be by open advertisement and requisitions through the employment exchange can at best be supplemental. However, an exception to open advertisement appears to have been carved out in that decision in one case, namely, when such departure was felt necessary due to the compulsive needs dictated by the peculiar facts of the case. In my opinion, such departure can be permitted only in rarest of the rare cases to avoid nepotism, favouritism, discrimination and arbitrariness in public employment in contradistinction to private employment. In public employment, every eligible candidate has the right to be considered for appointment as and when vacancy is available. This right to be considered for appointment to public service cannot be denied easily. In the instant case, the enquiry of this Court has to be limited to the question as to whether there is compelling necessity for making a departure from recruitment through open advertisement. At this stage, it may be noticed that even a cursory look at the provisions of the Rules does not stipulate that direct recruitment for the post of Record Supplier is to be done by inviting candidates through open advertisement. But then, there is no stipulation either therein that it should be done by collecting names from employment exchange. In the absence of rules, to remove any room for arbitrariness, etc., open advertisement should have been resorted to. In any case, I am tempted to find out the reason for making a departure from open WP(C) Nos. 148 & 1111 of13/14 Page 9 of 11 advertisement in this case. An attempt is made by the respondent authorities to explain the reason for making such a departure in paragraph 4 of the affidavit filed by the respondent No. 2.
7. Interestingly, a perusal of this paragraph is a classic bureaucratic example of saying so many things without actually meaning anything. All that it seems to say is that the respondent authorities as required by the service rules asked the Deputy Commissioners of Dibrugarh, Jorhat, Nagaon, Kamrup(M) and (R) and the Circle Officer, Chaygaon to send the names of candidates who were working under their establishments as Record Supplier and Record Sorter to fulfil the provisions of Rule 9(b) of the Rules, but no response was received from any of them whereafter it decided to call candidates from Employment Exchange, Kamrup, and the Assistant Director of Employment Exchange, Kamrup sent a list of 80 candidates from whom interview was conducted by the Selection Committee with the approval of the Chief Secretary, Assam. In my judgment, the aforesaid reason cannot constitute a compelling necessity to make a departure from the normal rule of recruitment through open advertisement. On the contrary, the avoidance of open advertisement has exposed the respondent authorities to the charges of biasness, nepotism, discrimination and arbitrariness, and lends credence to the allegations made by the petitioners of arbitrariness and biasness against them. In fact, the circumstances projected by the respondent authorities in their affidavit, in my opinion, rather all the more had called for inviting candidates from open market, which can only be ensured through open advertisement. The future of an eligible candidate cannot be left at the whims and caprice of the Employment Exchange Office, which, I am told, is WP(C) Nos. 148 & 1111 of13/14 Page 10 of 11 notorious for indulging in the policy of pick and choose in registering the names of job seekers. True, open advertisement can also be exposed to the charge of not reaching everyone seeking job, but then human ingenuity is yet to invent a fool proof system to prevent all potential mischief. However, given a choice, I will certainly vouch for open advertisement for reaching maximum numbers of eligible candidates instead of resorting to employment exchange route: this will also ensure transparency in the recruitment process. Under the circumstances, the impugned recruitment process suffers from the vice of arbitrariness and unfairness.
8. The net result of the foregoing discussion is that both the writ petitions are allowed. The impugned recruitment process including the selection of the respondent No. 6 to 9 for the posts of Record Suppliers in the Secretariat Administration (Record & Library) Department, Government of Assam is, therefore, quashed. The respondent authorities are, accordingly, directed to restart the recruitment process for the said posts after duly advertising them in prominent newspaper(s). The parties are, however, directed to bear their respective costs.
JUDGE Sinha/ WP(C) Nos. 148 & 1111 of13/14 Page 11 of 11