Gauhati High Court
Nirmal Talukdar vs The State Of Assam & 24 Ors on 14 October, 2015
Author: Ujjal Bhuyan
Bench: Ujjal Bhuyan
WP(C) No. 6033/2014
WP(C) No. 6040/2014
BEFORE
THE HON'BLE MR. JUSTICE UJJAL BHUYAN
14.10.2015
This order will dispose of both WP(C) Nos. 6033/2014 and
6040/2014.
2. Heard Ms. B. Bhuyan, learned counsel for the petitioners
in both the cases and Mr. U. Rajbongshi, learned Addl. Advocate
General in-charge of Transport Department assisted by Ms. K. Dutta,
learned Standing Counsel, Transport Department. Also heard Mr. N.
Dutta, learned Sr. Counsel assisted by Mr. P. Mahanta, learned
counsel for respondent Nos. 5 to 25.
3. Commissioner of Transport, Assam had issued an advertisement dated 09.11.2012 inviting applications from eligible candidates to fill up 21 vacancies in the post of Junior Assistant (District level) under the Commissioner of Transport, Assam. The breakup of the 21 vacancies were stated as under:-
SC - 1
ST(P) - 2
ST(H) - 1
OBC/MOBC - 3
PH - 3
Women - 6
General - 5
_______________________
Total - 21.
WP(C) Nos. 6033 & 6040 of 2014 Page 1 of 14
4. Since qualification for the post is not an issue in this litigation the same is not discussed. As per the advertisement, the selection would be on the basis of written examination and viva voce test i.e. 100 marks for written examination and 50 marks for viva voce test.
5. Petitioners of both the writ petitions responded to the said advertisement and submitted their applications as general (UR) category candidates. Written examination was held on 27.10.2013. A select list was published thereafter on 26.05.2014 short listing candidates declared successful in the written examination. Names of both the petitioners were included in the list of short listed candidates. Pursuant thereto, they were called to appear in the viva voce test scheduled from 11.06.2014 to 13.06.2014. Accordingly, petitioners appeared in the viva voce test. Thereafter, final select list was published on 01.07.2014. However, names of both the petitioners were not included in the said select list.
6. Aggrieved, the two writ petitions have been filed.
7. Petitioner in WP(C) No. 6033/2014, Sri Nirmal Talukdar has contended that as per information furnished to him by the authority he had secured 95 marks. However, six questions attempted by him were not properly evaluated. These questions are questions WP(C) Nos. 6033 & 6040 of 2014 Page 2 of 14 Nos. 24, 47, 66, 74, 76 and 97. Contention of the petitioner is that he had answered the six questions correctly and had proper marks been allotted to him for the answers to the six questions, he would have secured more than 99 marks which in turn would have enabled his selection.
8. Similar contention has been raised by the petitioner in WP(C) No. 6040/2014, Sri Safiqul Ahmed. According to him he had secured 98 marks. Answers given by him to questions Nos. 26, 44, 60, 73, 74 and 96 were not properly evaluated though those questions were correctly answered by him. Had proper marks been allotted for the above questions he would have certainly got more marks which in turn would have enabled his selection.
9. With the above contentions, both the writ petitions came to be filed.
10. Respondent Nos. 5 to 25 have filed identical affidavits in both the cases. Stand taken in the affidavits is that petitioners had participated in the selection without raising objection at any stage and it was only when they were not selected that they have raised grievance relating to evaluation of their answer scripts. Therefore, they would be estopped from raising their grievance against the selection process at this belated stage. The answering respondents are the WP(C) Nos. 6033 & 6040 of 2014 Page 3 of 14 selected candidates and thereafter on the basis of appointment orders issued on 24.07.2014, 25.07.2014, 30.07.2014 and 08.08.2014, they were appointed as Junior Assistant in the different districts of the State where they are now working.
11. An interlocutory application has been filed in WP(C) No. 6040/2014 by the petitioner contending that there are 28 additional vacancies in the post of Junior Assistant and one vacancy should be kept apart for the petitioner. In the course of hearing, learned Addl. Advocate General informed the Court on 15.07.2015 that the Commissioner of Transport wanted to carry out a thorough scrutiny of the recruitment process. In the light of the above, the following order was passed on 15.07.2015:-
" The two petitioners had responded to the advertisement dated 09.11.2012 for recruitment to the post of Junior Assistant (District Level) in the Transport Department, Assam. However, petitioners were not selected.
Grievance of the petitioners is that they had given correct answers in respect of five questions which were in the OMR format but inspite of giving correct answers, marks were not awarded to them. Contention of the petitioners is that if marks are awarded to them for the answers given in respect of the above five questions, they would stand selected. The questions are, Question Nos. 26, 44, 60, 73, 74 and 96.
Mr. U. Rajbongshi, learned Addl. Advocate General, Assam appearing for the Transport Department submits that the present Commissioner has joined his post very recently and he desires to conduct a thorough scrutiny of the recruitment process.
While the Commissioner may carry out the exercise as desired by him, Court is of the view that since these two cases are pending in this Court since 2014, those should be taken up on priority basis. The Commissioner should apply his mind to the answers given by the petitioners in respect of the above questions and if the Commissioner finds that marks are required to be awarded to the petitioners he shall indicate the consequential marks/position of the petitioners vis a vis the selected candidates.WP(C) Nos. 6033 & 6040 of 2014 Page 4 of 14
Let the above exercise be carried out within a period of 2 (two) weeks' from today whereafter the Commissioner shall inform the Court through Mr. Rajbongshi about the outcome of the exercise."
12. On 05.08.2015, Mr. U. Rajbongshi, learned Addl. Advocate General submitted on the basis of written instruction that answer scripts of the written examination were manually re-examined by experts whereafter Sri Safiqul Ahmed, petitioner in WP(C) No. 6040/2014 has secured 102 marks as against 98 secured earlier whereas Sri Nirmal Talukdar, petitioner in WP(C) No. 6033/2014 has secured 99 marks as against 95 secured earlier. Because of the re- examination, Sri Safiqul Ahmed elevated himself to the first position though Sri Nirmal Talukdar despite increase in marks would not come into the zone of consideration. In the light of the above submission, this Court directed Mr. Rajbongshi to place before the Court details of marks of the candidates category wise in the form of a statement. In so far general category is concerned it was directed that two statements should be placed before the Court; one, a list of the already selected candidates and the second, a list of candidates after revision of marks following re-examination from 99 upwards, as Sri Nirmal Talukdar has secured 99 marks on re-examination.
13. On 01.09.2015, Mr. Rajbongshi produced before the Court a recast statement of general (UR) category candidates in order of merit. However, the Court took the view that the subsequent WP(C) Nos. 6033 & 6040 of 2014 Page 5 of 14 development should be placed before the Court in the form of an affidavit and also to indicate as to whether both the petitioners can be accommodated without dislodging any of the selected candidates.
14. Thereafter, an affidavit has been filed on behalf of respondent No. 2 (Commissioner of Transport). Alongwith the said affidavit, a list of general (UR) category candidates already selected with marks, statement of general (UR) category candidates securing 99 marks and above after re-examination of answers scripts and a list of 120 candidates short listed for viva voce test after re-examination have been enclosed. It is stated that there are additional 28 sanctioned vacancies in the post of Junior Assistant (District level), for filling up of which process would be undertaken shortly.
15. Before adverting to the documents placed on record alongwith the affidavit of respondent No. 2, it would be apposite to refer to the advertisement dated 09.11.2012. As has already been noticed above, the advertisement was for 21 notified vacancies in the post of Junior Assistant. A bare perusal of the advertisement would show that a fundamental mistake was committed by the Commissioner of Transport by separately earmarking specific number of vacancies for special categories like physically handicapped (PH) and women instead of the percentage of reservation. Such reservation for special categories are known as horizontal reservation in WP(C) Nos. 6033 & 6040 of 2014 Page 6 of 14 contradistinction to vertical reservation for social categories, such as, SC, ST, ST(P), ST(H) and OBC/MOBC. It is not necessary to delve into details about the distinction between vertical reservation and horizontal reservation. The same has been elaborately explained by the Hon'ble Supreme Court in the cases of Indra Sawhney Vs Union of India reported in AIR 1993 SC 477 (para 95) and in Rajesh Kr. Daria Vs Rajasthan Public Service Commission reported in (2007) 8 SCC 785. This decisions have been discussed and referred to in the judgment of this Court in the case of Ratul Kumar Das Vs. State of Assam reported in 2009 (4) GLT 648. Suffice it to say, going by the very nature of horizontal reservation, it is not meant to provide for additional reservation beyond the reservation covered by the vertical reservation. Horizontal reservation would be accommodated in the respective socially reserved categories under the vertical reservation. In other words, there would be overlapping between the two categories of reservation. For example, a PH candidate belonging to the ST category would be accommodated in the ST category; likewise, a woman candidate belonging to unreserved (UR) category would be accommodated in the UR category. By this process, special reservation is carried out in a horizontal manner without disturbing the overall percentage of reservation for the social categories covered by vertical reservation. This position has been succinctly explained by the Supreme Court in Union of India-Vs-National Federation of the WP(C) Nos. 6033 & 6040 of 2014 Page 7 of 14 Blind reported in (2013) 10 SCC 772 by holding that horizontal reservation cuts across vertical reservation in what is called interlocking reservation and persons selected against the quota for persons with disability (horizontal reservation) would have to be placed in the appropriate category to which they belong viz, ST, SC, OBC or UR. That being the position, separate earmarking of specific number of vacancies for PH (3 vacancies) and for women (6 vacancies) instead of mentioning percentage of vacancies thereby providing additional reservation for PH and women candidates over and above reservations for SC, ST and OBC/MOBC was incorrect and had started all the confusion which has characterized the selection. This has already been held to be untenable by this Court in (2015) 3 GLR 574 (Md. Najmul Islam -Vs- State of Assam). More about this a bit later.
16. Under the general category (UR), as per the affidavit of respondent No 2, 7 such candidates were initially selected including two women candidates and 1 SC candidate on merit. These 7 candidates alongwith the marks secured by them are as under:-
1. Manash Das - 103
2. Gunadip Thakuria - 102
3. Prabuddha Dev Goswami - 102
4. Gourab Jyoti Choudhury - 101
5. Mahasweta Das - 101
6. Dharitri Kalita - 101
7. Sandeep Kumar Sarkar - 101 WP(C) Nos. 6033 & 6040 of 2014 Page 8 of 14
17. Following re-examination of the answers scripts of the written examination by the experts at the instance of respondent No. 2 himself, a recast list of 21 UR candidates has been prepared. In this recast list, petitioner Sri Safiqul Ahmed is at Sl. No. 1 securing 102 marks and petitioner Sri Nirmal Talukdar is at Sl. No. 18 securing 99 marks. Out of the 7 earlier selected candidates as noticed above, only 5 are included in the recast list of 21, namely, Sri Gunadip Thakuria and Sri Manash Das placed at Sl. Nos. 5 & 6 respectively securing 101 marks; Smt. Mahasweta Das is placed at Sl. No. 12 securing 100 marks; Sri Gourab Jyoti Choudhury is placed at Sl. No. 15 securing 100 marks and Sri Prabuddha Dev Goswami is placed at Sl. No. 19 below the petitioner Sri Nirmal Talukdar securing 99 marks. Two of the earlier selected UR candidates, namely, Smt. Dharitri Kalita and Sri Sandeep Kumar Sarkar are not included in the recast list of 21 for UR category.
18. In the recast list of 120 candidates after re-examination, it is seen that Smt. Dharitri Kalita and Sri Sandeep Kumar Sarkar are placed at Sl. Nos. 26 & 27 respectively with 98 marks each. The position which thus emerges from the above is that petitioner Sri Safiqul Ahmed is at the top of the list with 102 marks and petitioner Sri Nirmal Talukdar having secured 99 marks on re-examination is placed at Sl. No. 19 in the list of 120 candidates. Three of the UR WP(C) Nos. 6033 & 6040 of 2014 Page 9 of 14 candidates originally selected and consequently appointed, namely, Sri Prabuddha Dev Goswami with 99 marks, Smti. Dharitri Kalita with 99 marks and Sri Sandeep Kumar Sarkar with 99 marks are placed below Sri Nirmal Talukdar. The situation is that candidates securing lesser marks than both the petitioners have been selected under the UR category and appointed.
19. From the above, two clear mistakes are discernible in the selection. The first mistake occurred in the advertisement itself with regard to earmarking of specific number of vacancies for horizontal reservation as against percentage of vacancies as discussed above. The second mistake occurred at the time of evaluation of the answer scripts of the written examination which has been brought to light by the suo moto decision of the Commissioner to re-examine the answer scripts leading to recasting of the select list of general (UR) category. After the selected candidates have already joined their respective posts, these two mistakes are now staring at the face. The complexity of the situation can be gauged from the fact that though in the advertisement 5 vacancies were earmarked for general (UR) candidates, 7 general candidates were selected; as against 1 vacancy for SC, 2 were selected; as against 2 vacancies for ST(P), 3 were selected though against 4 vacancies for OBC/MOBC, four were selected. In addition, 4 physically handicapped candidates were WP(C) Nos. 6033 & 6040 of 2014 Page 10 of 14 selected against 3 notified vacancies without being accommodated against the respective socially reserved category (vertical reservation). The complications have become so complex that any attempt to correct or rectify the two mistakes now at this stage may lead to unravelling of the entire selection itself. The entire selection process may fall apart. On the other hand, this Court finds that there is no allegation of any malafide against the authorities or against the examiners who had undertaken the exercise of conducting the selection. The selected candidates had already joined their respective posts and are working for more than a year now. They are in no way responsible for creating this mess. It is a creation of the Transport Department and therefore it is the Transport Department which will now have to remedy the situation.
20. The Hon'ble Supreme Court in the case of Rajesh Kumar Vs State of Bihar reported in (2013) 4 SCC 690 was confronted with a situation where application of an erroneous model answer key had led to erroneous results and an equally erroneous selection. In the facts and circumstances of that case, the Apex Court held that the selected candidates had not in any manner contributed to the preparation of the erroneous key or the distorted result. There was no mention of any fraud or malpractice against the selected candidates who had rendered service for nearly seven years. It was held that WP(C) Nos. 6033 & 6040 of 2014 Page 11 of 14 ouster of such candidates need not be an inevitable and inexorable consequence of re-evaluation. The re-evaluation process may additionally benefit those who were initially left out because of application of the wrong answer key but on re-evaluation may come within the selection range. In such circumstances, the Apex Court held that such of the candidates as may be found entitled to selection and appointment upon re-evaluation may pick up their appointments on that basis according to their inter se position in the recast merit list. Those of the appellants who did not make the grade after re- evaluation were directed not to be ousted from service but to be placed at the bottom of the recast select list. Faced with a similar situation, the Supreme Court again in the case of Vikas Pratap Singh Vs State of Chhattisgarh reported in (2013) 14 SCC 494 held that dislodging of the selected and appointed candidates from their service who had rendered service for more than 3 years would be highly unjust and grossly unfair since they were innocent appointees of an erroneous evaluation of the answer scripts; however, their continuation in service should neither give any unfair advantage to them nor cause undue prejudice to the candidates selected qua the revised select list. Accordingly, direction was issued to appoint the earlier selected candidates by placing them at the bottom of the revised merit list. WP(C) Nos. 6033 & 6040 of 2014 Page 12 of 14
21. Coming to the facts of the present case, as has already been noticed above, following re-evaluation, petitioner Sri Safiqul Ahmed is placed at Sl. No. 1 with 102 marks and petitioner Sri Nirmal Talukdar is placed at Sl. No. 19 with 99 marks in the UR category. Three of the selected and appointed UR candidates Sri Prabuddha Dev Goswami, Smt. Dharitri Kalita and Sri Sandeep Kumar Sarkar are placed below the petitioner Sri Nirmal Talukdar having secured 99 and 98 marks respectively. In the light of the Supreme Court decisions as discussed above, while the Court would not like to dislodge them from their appointments, a way however will have to be found out to ensure that those above them are not left out of the selection.
22. Affidavit of respondent No. 2 discloses that there are 28 additional sanctioned vacancies in the post of Junior Assistant (District level). Ordinarily, the Court would not have brought the additional vacancies into the picture those being beyond the advertised vacancies but because of the mess created by the Transport Department as discussed above. Accordingly and in the light of the discussions made above, it would now be incumbent upon the Commissioner of Transport to provide appointment to those candidates who are above Sri Sandeep Kumar Sarkar and Smt. Dharitri Kalita without disturbing their appointments though there WP(C) Nos. 6033 & 6040 of 2014 Page 13 of 14 can be no dispute that petitioner Sri Safiqul Ahmed will have to be appointed. Accordingly, the following directions are issued:-
1. Respondent No. 2 shall issue appointment order in favour of petitioner Sri Safiqul Ahmed within a period of 30 (thirty) days from the date of receipt of a certified copy of this order.
2. Appointments already given to Sri Prabuddha Dev Goswami, Smt. Dharitri Kalita and Sri Sandeep Kumar Sarkar as well as the other UR candidates already appointed need not be disturbed. All candidates placed above Sri Sandeep Kumar Sarkar in the UR category including petitioner Sri Nirmal Talukdar on the basis of the recast merit list following re-evaluation should be offered appointment against the 28 additional vacancies and those who accept the offer of appointment should be appointed.
3. Thereafter, a combined recast merit list would have to be prepared for all those who have been appointed on the basis of marks secured after re-
examination. Inter se seniority shall be decided on the basis of positions secured by the respective candidates in the combined recast merit list. This shall be done within a period of 2 (two) months from the date of receipt of a certified copy of this order.
23. Both the writ petitions are allowed. No costs.
JUDGE Aparna WP(C) Nos. 6033 & 6040 of 2014 Page 14 of 14