Gauhati High Court
Md. Muminul Hasan Laskar vs The State Of Assam And 2 Ors on 13 February, 2019
Equivalent citations: AIRONLINE 2019 GAU 475
Author: Nelson Sailo
Bench: Nelson Sailo
Page No.# 1/4
GAHC010206712014
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C) 2479/2014
1:MD. MUMINUL HASAN LASKAR
S/O- MD. KAMAL UDDIN LASKAR, R/O- ITHKHOLA GHANIWALA
MALUGRAM SILCHAR- 2, P.O. -SILCHAR, P.S.- SILCHAR SADAR, DIST.-
CACHAR, ASSAM.
VERSUS
1:THE STATE OF ASSAM AND 2 ORS
REP. BY THE SECY. TO THE GOVT. OF ASSAM, JUDICIAL DEPTT., DISPUR,
GHY- 6.
2:THE CHIEF JUDICIAL MAGISTRATE
CACHAR
SILCHAR
P.O.- SILCHAR
DIST.- CACHAR
ASSAM
PIN- 788001.
3:THE CHAIRMAN
SELECTION BOARD
IN THE ESTABLISHMENT OF THE CHIEF JUDICIAL MAGISTRATE
CACHAR
SILCHAR
P.O.- SILCHAR
DIST.- CACHAR
ASSAM
PIN- 788001
Advocate for the Petitioner : MR.S R BARBHUIYA
Advocate for the Respondent :
Page No.# 2/4
BEFORE
HONOURABLE MR. JUSTICE NELSON SAILO
JUDGMENT
Date : 13-02-2019 Heard Dr. B. Ahmed learned counsel for the petitioner. Also heard Mr. G. Pegu, learned State Counsel appearing for respondent No. 1. None appears for respondent Nos. 2 and 3.
2. The case is of the year 2014. The respondents have not filed their affidavit-in- opposition to counter the claim made by the petitioner till date. Considering the issue involved, this Court proposes to dispose of the writ petition today.
3. Brief facts of this case is that the petitioner who has passed Higher Secondary School Leaving Certificate and also underwent a Computer Training Course was sponsored by the District Employment Exchange, Cachar, Silchar against the one post of Peon in the establishment of the Chief Judicial Magistrate, Cachar (Respondent No. 2). Sponsorship of the name of the petitioner was pursuant to the requisition made by the respondent No. 2 vide his communication dated 11.04.2013 (Annexure-4) to the employment officer concerned. The petitioner having fulfilled the eligibility criteria participated both in the written and the Viva voce test which was held on 12.05.2013 in the establishment of the respondent No. 2. Pursuant to the selection process, one Sri Ajoy Kumar Yadav was selected for the post of Peon and the petitioner was kept at serial No. 1 in the waiting list. This result was put up in the notice board of the establishment of the respondent No. 2.
4. The petitioner, however, came to learn that there were in fact two vacant post of Peon and not only one post as was processed to be filled up. The petitioner contends that there was one anticipated vacancy since one Sri Ramendra Kumar Das who was a Peon under the respondent No. 2 was missing since the year 2004. The petitioner, therefore, submitted a representation to the respondent No. 2 on 22.05.2013 requesting the said authority for considering his appointment against the second post of peon by considering the same as an anticipated vacancy under relevant norms and practice. Since the representation was not considered by the respondent No. 2, the petitioner again submitted two representations on 28.06.2013 and 25.03.2014. He also submitted a reminder to the respondent No. 2 on Page No.# 3/4 09.04.2014. Consequently, the respondent No. 2 vide order dated 11.04.2014 rejected the representation and claim of the petitioner to be appointed against the post of Peon by considering the post held by one Sri Ramendra Kumar Das who went missing since 2004 as an anticipated vacancy. The respondent No. 2 in the said order stated that the petitioner being in the waiting list at Serial No. 1 could have been offered the appointment only in the event the selected candidate failed to join the post. However as the select candidate joined the post, there was no scope of appointing the petitioner. Moreover, the interview that was held on 12.05.2013 was only meant for two vacant post i.e. post of Process Server and the post of Peon and not for any anticipated vacancy as the post of the missing person was yet to be declared to be vacant by following due procedure.
5. Dr. B. Ahmed, learned counsel for the petitioner submits that although the respondent authority concerned initiated the process for filling up of one post of Peon but the facts remains that there were two vacancies. The second vacancy was in the form of anticipated vacancy and going by the accepted norms as well as the interpretation of the Court in a catena of decision, the petitioner is only eligible to be considered against the anticipated vacancy. He also submits that Sri Ramendra Kumar Das went missing since the year 2004 and therefore if the authority had undertaken due process for declaring the post to be vacant, vacancy would have occurred as early as in the year 2011. He thus submits that considering the qualification of the petitioner, his position in the waiting list as well as the fact that there was one anticipated vacancy for the post of Peon, Court may issue appropriate direction to respondents to appoint the petitioner against the said vacancy.
6. As already noticed earlier, the respondent No. 2 requisitioned the names of eligible candidate for one post for process Server Reserved for ST Hills and one post of Peon for un- Reserved candidate to the Employment Officer, District Employment Officer, Cachar Silchar. It was in response to such requisition that the name of the petitioner came to be forwarded to the respondent No. 2. The petitioner participated in the selection process and was kept at serial No. 1 in the waiting list. The attempt on the part of the petitioner to project that there were two vacant posts and not one post of Peon in the establishment of the respondent No. 2 at the relevant time in my considered opinion stands answered by the order dated 11.04.2014 passed by the respondent No. 2. Even if it is to be deemed that there was an Page No.# 4/4 anticipated vacancy on account of one missing person, the post occupied by the said person cannot be just filled up without following due procedure. As rightly pointd out by the learned counsel for the petitioner, the process ought to have been done much earlier but he fact remains that delay in undertaking the said process would not by itself give the petitioner a right to be considered for appointment to the post of Peon in terms of the selection which was held on 12.05.2013. At best, the petitioner will be eligible to participate as and when vacancy is declared and selection process held.
7. Since the respondent authority concerned has remained silent over the matter, it is not clear as to whether the post occupied by the missing person has been since declared to be a vacant post. Besides this, it may also be a case that there are other vacancies in the establishment of the respondent No. 2 in the Grade IV post. Be that as it may, the petitioner in my considered view deserves to be fairly considered as and when vacancy arises in the Grade IV post under the establishment of respondent No. 2. At this stage it is also noticed that this Court vide order dated 19.05.2014 had passed an interim order to the fact that one post of Peon advertised in the Dainik Yugasankha on 24.03.2014 shall not be filled up. Admittedly, the interim order has not been vacated.
8. In view of above, considering the case in its entirety, this writ petition is disposed of with a direction to the respondents to consider the case of the petitioner for appointment to the Grade IV post against any vacancy and without considering his case, the respondents shall not fill up any grade-IV post..
9. With the above observation, this writ petition stands disposed of. The interim order passed earlier shall stand merged with this order. No cost.
JUDGE Comparing Assistant