Gauhati High Court
Page No.# 1/12 vs The State Of Assam And 6 Ors on 31 July, 2025
Author: Devashis Baruah
Bench: Devashis Baruah
Page No.# 1/12
GAHC010270802024
2025:GAU-AS:9859
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/6777/2024
RANJIT SARKAR
S/O. MRINAL KANTI SARKAR, R/O. WARD NO. 15, TOWN SONKUCHI
COLONY, BARPETA, ASSAM, PIN-781314.
VERSUS
THE STATE OF ASSAM AND 6 ORS.
REP. BY THE LEGAL REMEMBRANCER AND SECRETARY TO THE GOVT.
OF ASSAM, DISPUR, GUWAHATI, KAMRUP(M), ASSAM, PIN-781006.
2:THE REGISTRAR GENERAL
GAUHATI HIGH COURT
GUWAHATI.
3:THE REGISTRAR (ADMIN.) CUM IN CHARGE OF CENTRALISED
RECRUITMENT
GAUHATI HIGH COURT
4:THE DISTRICT AND SESSION JUDGE
BARPETA
5:THE CHIEF JUDICIAL MAGISTRATE
BARPETA
6:HEAD ADMINISTRATIVE OFFICER
OFFICE OF THE CHIEF JUDICIAL MIGISTRATE
BARPETA
7:RIJAUL HAQUE
S/O. SARIFUL HAQUE
PROCESS SERVER
OFFICE OF THE CHIEF JUDICIAL MAGISTRATE
BARPETA
Page No.# 2/12
For the petitioner (s) : Mr. B. P. Borah, Advocate
For the respondent (s) : Mr. B. Gogoi, Addl. AG
Ms. S. Sarma, SC, GHC
BEFORE
HONOURABLE MR. JUSTICE DEVASHIS BARUAH
Date of Hearing : 31.07.2025
Date of Judgment : 31.07.2025
JUDGMENT AND ORDER (ORAL)
Heard Mr. B. P. Borah, the learned counsel appearing on behalf of the petitioner; Mr. B. Gogoi, the learned counsel appearing on behalf of the respondent No.1 as well as Ms. S. Sarma, the learned counsel appearing on behalf of the respondent No.7.
2. The petitioner herein has approached this Court challenging the advertisement dated 04.07.2024 issued by the Chief Judicial Magistrate, Barpeta only to the extent where the qualification of HSLC passed has been included for promotion to the post of Process Server and further sought for directions that the selection to the post of Process Server shall be carried out as per the mandate of the Draft Rules which stipulate that the post of the Process Server to be filled up by way of promotion only includes the eligibility of 5 years of continuous service in Grade-
Page No.# 3/12 IV (D-II) of the service as per the Draft Rules of 2018. The petitioner has also assailed the selection of the respondent No.7 vide the Select List dated 24.09.2024. In addition to that, another advertisement which has been issued for the post of Jarikarak dated 09.12.2024 has been challenged on similar grounds.
3. The case of the petitioner herein is that the petitioner was appointed to the post of Peon on 03.05.1999 in the establishment of the Chief Judicial Magistrate, Barpeta. By the notification dated 13.02.2020, the Gauhati High Court had directed all Appointing Authorities of the District Judiciary to consider all eligible Grade-IV employees other than Process Server for promotion to the post of Process Server in the light of the Draft District Court Employees Service Rules, 2018. On 04.07.2024, the Office of the Chief Judicial Magistrate had invited applications from eligible and experienced employees of the establishment to fill up one vacant post of Process Server (Jarikarak), and in the said advertisement, the eligibility criteria so mentioned was HSLC passed and the incumbent must complete 5 years of continuous service in Grade-IV (D-II), i.e. Peon and Chowkidar.
4. It is the specific case of the petitioner as stated in paragraph No.9 to the writ petition that the petitioner submitted a Page No.# 4/12 representation on 27.11.2024 before the District and Sessions Judge, Barpeta stating that the learned Chief Judicial Magistrate, Barpeta had not considered the application submitted by the petitioner on 01.10.2024. The petitioner also mentioned that he approached the Head Administrative Officer in pursuance to the advertisement dated 04.07.2024 and the Head Administrative Officer did not accept his application.
5. The grievance of the petitioner is that the petitioner was not allowed to participate in view of the advertisement containing the eligibility criteria that the employee must be a HSLC passed which as per the learned counsel appearing on behalf of the petitioner could not have been included as an eligibility criteria in as much as for the post of Process Server to be filled up by promotion, the only requirement is that the incumbent must complete 5 years of continuous service in Group-IV (D-II) of the service whereas the requirement of passing HSLC examination is only for direct recruitment.
6. It is pertinent to take note of that the instant writ petition was filed on 16.12.2024. This Court enquired with the learned counsel appearing on behalf of the petitioner as to whether the petitioner was permitted to apply pursuant to the advertisement dated 09.12.2024. The learned counsel for the petitioner submitted that the petitioner was permitted to apply and the Page No.# 5/12 petitioner duly applied and the results are awaited. The learned counsel for the petitioner further submitted that there was another advertisement issued on 13.06.2025 for filling up the post of a Process Server and the petitioner had also applied.
7. It is relevant to take note of that pursuant to the filing of the writ petition on 16.12.2024, this Court vide an order dated 20.12.2024 issued notice and further observed that the selection and appointment of the respondent No.7 pursuant to the advertisement dated 04.07.2024 would be subject to the outcome of the writ petition. Additionally, there was also a direction passed by this Court that in respect to the advertisement dated 09.12.2024, the respondent authorities shall accept the application filed by the petitioner, notwithstanding the fact that the petitioner does not have the HSLC examination pass qualification and further allow the petitioner to participate in the said selection process. It was further observed by this Court that in the event, the respondent authorities decide to proceed with the selection process, then the results of the selection process shall not be declared without the leave of the Court.
8. The record reveals that the respondent Nos.5 & 6 had filed an affidavit-in-opposition on 03.3.2025. In the said affidavit-in- opposition, it was categorically mentioned at paragraph No.7 that the selection process for promotion to the post of Process Server Page No.# 6/12 (Jarikarak) from eligible Grade-IV (D-II) employees was initiated on the basis of the advertisement dated 04.07.2024 and the same ended on 24.09.2024. During this entire process, the petitioner never submitted any application, although application was invited. It was further mentioned that it was only on 01.10.2024 that the petitioner submitted an application claiming his demand for the post of Process Server before the Chief Judicial Magistrate, Barpeta. It was also mentioned that the petitioner's representation dated 01.10.2024 was placed before the Selection Board Meeting on 03.10.2024 and 30.10.2024 and the said representation was disposed of with a direction that the petitioner may further file appropriate application at a later stage along with educational testimonials as and when the advertisement will be issued by the Office of the Chief Judicial Magistrate, Barpeta, Assam and the same was never rejected by the Office of the Chief Judicial Magistrate, Barpeta.
9. This Court further takes note of the affidavit filed by the respondent Nos.2 & 3 to the writ petition. This affidavit is important taking into account that the petitioner in the writ petition had alleged that for the purpose of promotion to the post of process server, the eligibility is merely 5 years of service in D-II post and it is only in respect to the direct recruitment, there was a requirement of the candidate having passed the Page No.# 7/12 HSLC examination. The petitioner made the said contention on the basis of the Draft Rules of the 2018 being made a part of the writ petition and enclosed as Annexure-2.
10. It is relevant to observe that the respondent Nos.5 & 6 in their affidavit-in-opposition enclosed another set of Draft Assam District Court Employees Service Rules, 2018 as Annexure-22. A comparison of the Annexure-2 which is the Draft Rules of 2018 enclosed by the petitioner and Annexure-22 which is the Draft Rules of enclosed by the respondent Nos.5 & 6, there appears to be a variance in Clause 19 of Schedule B in so far as the eligibility criteria.
11. The affidavit-in-opposition filed by the respondent Nos.2 & 3, however, clarifies the said aspect of the matter as would appear from paragraph No.4 of the said affidavit-in-opposition. Paragraph No.4 of the said affidavit-in-opposition being relevant is reproduced herein under:-
"4. That with regard to the statements made in paragraph 3 & 4 of the petition, I state that vide the notification No. HC.XXXVII- 56/2012/83/R.Cell dated 13-02-2020 (appearing as annexure-1, page 22 of the writ petition therein) the Hon'ble Gauhati High Court directed all the appointing authorities of Subordinate Court establishments of Assam to consider all eligible Grade-IV employees, other than the Process Server for promotion to the post of Process Page No.# 8/12 Server, in the light of the Draft Assam District Court Employees Service Rules, 2018.
Further, vide another notification No. HC.VII-44/2018/4299/A dated 15-06-2022, this Hon'ble Court directed all the appointing authorities of District Judiciary of Assam to follow the draft Assam District Court Employees Service Rules, 2018 ( pending with the Government for notification ) while filling up the post of Process Server by way of direct recruitment.
A copy of the aforesaid notification dated 15/06/2022 is annexed hereto and marked as ANNEXURE-A. It is further state that the Draft Assam District Court Employees Service Rules, 2018 (appearing as annexure-2, pages 24- 69 of the writ petition therein) in it's Schedule-B in respect of serial no. 19 provides the following two modes regarding filling up the posts of Process Server:
For Direct Recruitment:-
1. Must be HSLC exam passed.
2. Must have knowledge in official language of Assam.
For Promotion:-
1. Must complete 5 years of continuous service in Group D-II of the service."
12. From a perusal of the above quoted paragraph No.4 of the affidavit-in-opposition filed by the respondent Nos.2 & 3, it is Page No.# 9/12 apparent that the post of Process Server can be filled up either by direct recruitment or by promotion. In the case of direct recruitment, the candidate must be HSLC examination passed and must have knowledge in official language of Assam. On the other hand, for the purpose of promotion to the post of Process Server, the candidate must complete 5 years of continuous service in Group-IV (D-II) of the service.
13. In view of the stand so taken by the respondent Nos.2 & 3, which clarifies as to what is the eligibility criteria to be set out for promotion to the post of Process Server, it appears to this Court that the eligibility criteria so set out in the advertisement dated 04.07.2024 was not in consonance with the Draft Rules of 2018, which was required to be followed as per the notification dated 13.02.2020 issued by the Gauhati High Court. This Court, however, finds it very pertinent to mention that when the advertisement was issued on 04.07.2024, the petitioner did not challenge the said advertisement immediately thereupon. The stand so taken by the respondent No.5 & 6 in the affidavit-in- opposition, more particularly at paragraph No.7, makes it also clear that the petitioner did not approach the authorities till 01.10.2024 when the petitioner for the first time submitted a representation. In the meantime, the selection proceedings pertaining to the advertisement dated 04.07.024 had already Page No.# 10/12 concluded with the selection of the respondent No.7 by the Select List dated 24.09.2024.
14. Accordingly, in the opinion of this Court, as the petitioner did not take steps in pursuance to the advertisement dated 04.07.2024 within the period when the selection proceedings were on going, the question of interference to the selection proceedings initiated on the basis of the advertisement dated 04.07.2024 does not arise.
15. In the foregoing segments of the instant judgment, this Court has duly mentioned that the petitioner had filed the instant writ petition on 16.12.2024, i.e. pursuant to the advertisement dated 09.12.2024 and this Court had passed certain interim directions as observed herein above. There is no material available before this Court as to how many candidates who would be entitled to promotion to the post of Process Server in the establishment of the Chief Judicial Magistrate, Barpeta having 5 years of continuous service in Grade-IV (D-II). The stipulation contained in the advertisement dated 09.12.2024, that there is a requirement that the candidate has to be HSLC passed appears to be contrary to the very stand of the Gauhati High Court in as much as from the above quoted paragraph No.4 of the affidavit-in-opposition filed by the respondent Nos.2 & 3, it is apparent that for the purpose of filling up the post of Process Page No.# 11/12 Server on promotion, the only requirement is having 5 years of continuous service in Grade-IV (D-II) of service.
16. Accordingly, the instant writ petition stands disposed of with the following observations and directions:-
(i) This Court is not inclined to interfere with the advertisement dated 04.07.2024 as well as the selection so made in favour of the respondent No.7 on the basis of the advertisement dated 04.07.2024 in as much as the petitioner never applied pursuant to the said advertisement and only after the entire selection process was over, the petitioner submitted the representation on 01.10.2024.
(ii) The eligibility criteria in the advertisement dated 09.12.2024, i.e. HSLC passed and must have 5 years of continuous service in Group D-II of service is contrary to the Draft Rules of 2008. It is noticed that vide the order dated 20.12.2024, this Court had passed certain interim directions that the result of the selection proceedings initiated on the basis of the advertisement dated 09.12.2024 should not be declared without the leave of the Court. Taking into account the above, as the stipulation of HSLC passed was made an eligibility criteria in the advertisement dated 09.12.2024, this Court sets aside the Page No.# 12/12 said advertisement dated 09.12.2024 as well as all selection proceedings conducted in pursuance thereto.
(iii) This Court further directs that the respondent Nos.5 & 6 to initiate a fresh selection process for the purpose of promotion to the post of Process Server in their establishment in respect to the post which were advertised vide the advertisement dated 09.12.2024 as well as the advertisement dated 13.06.2025 by not including HSLC passed as an eligibility criteria.
(iv) There shall be no order as to costs.
JUDGE Comparing Assistant