Bipul Doley & 18 Ors vs The State Of Assam And Ors on 28 September, 2015

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Gauhati High Court

Bipul Doley & 18 Ors vs The State Of Assam And Ors on 28 September, 2015

An advertisement was issued on 21-05-2010 by the office of the Executive Engineer, Public Works Department (PWD), Sonitpur Rural Road Division, Biswanath Chariali inviting applications from eligible candidates to fill up 21 vacancies in Grade III and Grade IV posts under his establishment, the breakup of vacancies being as under:-

                 Lower Division Assistant (LDA)   --    04
                 Section Assistant                --    15
                 Tracer                           --    01
                 Chowkidar                        --    01

It appears that there was some error regarding reservation because of which a corrigendum was issued on 03-06-2010 giving the correct breakup of the 21 vacancies category wise.

W rit P etition (C) No.5542/ 2011 P age 1 of 18 W rit P etition (C) No.145/ 2012 The procedure for selection as prescribed by the advertisement was through written test and interview.

As per provisions contained in Rule 5 of the Assam Public Services (Direct Recruitment to Class III and Class IV Posts) Rules, 1997, a five member Selection Committee was constituted as under:-

1. Chairman -- Shri Babul Ch. Baruah, Superintending Engineer, PWD, Tezpur Road Circle.

2. Member -- Shri Maneswar Baruah, Executive Secretary Engineer, PWD, Sonitpur Rural Road Division.

3. Member -- Shri Gunajit Roy Choudhury, ACS, Circle Officer, Biswanath Revenue Circle (nominated by Deputy Commissioner, Sonitpur).

4. Member -- Smti. D.D. Saikia, Assistant Employment Officer, Biswanath Revenue Circle (nominated by Deputy Commissioner, Sonitpur).

5. Member -- Shri Nagen Borthakur, Principle, DIET, Biswanath Chariali, as Educationist Petitioners of both the writ petitions had responded to the advertisement and appeared in the written test which was held on 25-07-

2010. The written test comprised of one question paper of 3 hours duration W rit P etition (C) No.5542/ 2011 P age 2 of 18 W rit P etition (C) No.145/ 2012 containing questions on the subjects of (a) General Knowledge (b) English (c) Assamese and (d) Mathematics.

Following the written test, selected candidates were shortlisted and they were called to appear in the interview which was scheduled from 22-11-2010 to 22-12-2010.

Both sets of petitioners claim to have been selected in the written test and appeared in the interview where they claimed to have performed well.

A meeting of the Selection Committee was held on 20-01-2011. The meeting adopted two resolutions. As per resolution No.1, it was noted that various elected representatives had requested appointment of their candidates and since the Selection Committee could not come to any conclusion in this regard, it was decided to send the entire selection record including list of marks obtained by the candidates to the Deputy Commissioner, Sonitpur and to abide by such decision that may be taken by the Deputy Commissioner. As per resolution No.2, the Selection Committee entrusted the Member Secretary to make communication on the subject maintaining confidentiality.

Deputy Commissioner, Sonitpur vide his WT message dated 25- 01-2011 informed the Member Secretary that complaints were received regarding anomalies in the selection process. Member Secretary was directed W rit P etition (C) No.5542/ 2011 P age 3 of 18 W rit P etition (C) No.145/ 2012 to keep the selection process in abeyance and to submit detail report to the Deputy Commissioner under sealed cover.

On an application filed by some of the candidates under the Right to Information Act, 2005, the Member Secretary in his reply furnished a copy of the select list where names of petitioners of WP(C) No.5542/2011 were included. This information was furnished by way of reply by the Member Secretary dated 27-01-2011.

On 29-01-2011, Additional Deputy Commissioner, Sonitpur wrote to the Member Secretary informing him that the Deputy Commissioner had ordered him to examine the whole matter thoroughly. Therefore the Member Secretary was requested to depute one responsible officer alongwith the record.

It appears that the incumbent Executive Engineer who was the Member Secretary was transferred in the meanwhile. The Superintending Engineer was also transferred. Consequently the Selection Committee was reconstituted on 08-02-2011 with a new Chairman and Member Secretary, the three other members remaining the same.

In the meanwhile, the Deputy Commissioner vide order dated 09-02-2011 decided to re-examine / re-evaluate the answer scripts as well as the tabulation and scrutiny process and for that purpose 12 officers were deputed. It was ordered that after re-evaluation, mark sheet should be prepared which should be reported to the Deputy Commissioner. As per the W rit P etition (C) No.5542/ 2011 P age 4 of 18 W rit P etition (C) No.145/ 2012 said order, two officers were entrusted with the duty of re-scrutiny whereafter tabulation was to be done by one officer under the supervision of another high officer. The entire process was to be conducted under the supervision of the Additional Deputy Commissioner.

At this stage, some of the candidates had approached this Court by filing a writ petition to quash the WT message dated 25-01-2011 of the Deputy Commissioner. The said writ petition was registered as WP(C) No.768/2011. Another writ petition, being WP(C) No.1009/2011, came to be filed before this Court by a candidate who claimed that he was selected as Section Assistant in the selection process conducted by the Selection Committee. This Court while issuing notice passed an interim order to the effect that no appointment should be made to the post of Section Assistant pursuant to the advertisement dated 21-05-2010.

It appears that Additional Deputy Commissioner submitted his report to the Deputy Commissioner on 19-02-2011. Deputy Commissioner was informed that the answer scripts of the written test were re-examined and re-scrutinized where after separate merit lists, all dated 19-02-2011, were prepared for the 4 posts. The select lists were signed by the re-evaluator / re-examiner and by the re-scrutinizers, countersigned by the Sub- Divisional Officer (Sadar). It also had the signatures of the tabulation officers.

Candidates who claimed to be selected through the original Selection Committee approached this Court by filing WP(C) No.1449/2011 W rit P etition (C) No.5542/ 2011 P age 5 of 18 W rit P etition (C) No.145/ 2012 for quashing the select lists dated 19-02-2011 and for restoring the original select list.

Additional Deputy Commissioner submitted a report dated 15- 06-2011 to the Deputy Commissioner pointing out various anomalies committed by the earlier Selection Committee and stated that the merit lists dated 19-02-2011 were prepared with utmost care and sincerity and those were approved by the re-constituted Selection Committee. Copy of the enquiry report was forwarded to the Additional Chief Secretary to the Government of Assam, PWD by the Deputy Commissioner, Sonitpur vide his forwarding letter dated 27-06-2011.

It appears that in connection with the hearing of the aforesaid three cases i.e. WP(C) Nos.768, 1009 and 1449 of 2011, PWD had sought for the opinion of the learned Additional Advocate General, Assam. It further appears that the learned Additional Advocate General had suggested cancellation of the entire process including the select list prepared by the Selection Committee and the merit lists prepared by the office of the Deputy Commissioner. In this regard Commissioner and Special Secretary to the Government of Assam, PWD (Roads) wrote to the learned Additional Advocate General vide letter dated 05-09-2011 stating that the Executive Engineer had conducted the selection process observing all necessary formalities but appointments could not be made because of the "judgment" of the Court. He was informed that the Department agreed to his views in respect of cancellation of the selection process.

W rit P etition (C) No.5542/ 2011 P age 6 of 18 W rit P etition (C) No.145/ 2012 On 06-09-2011 when the above cases were taken up by the Court, learned Additional Advocate General made a statement in terms of the letter dated 05-09-2011. This Court while disposing of the writ petitions directed the State to issue an administrative order in terms of the letter dated 05-09-2011. All the contesting parties were given liberty to approach the Court again if they felt aggrieved by such administrative order.

Following the same, Commissioner and Special Secretary, PWD (Roads) issued notification dated 23-09-2011 cancelling the entire selection process made for appointment against the 21 vacancies in Grade III and Grade IV posts under Sontipur Rural Road Division.

Thereafter WP(C) No.5542/2011 was filed for quashing of the said notification dated 23-09-2011 and for a direction to the respondents to restore the select list prepared by the Selection Committee and to make appointments therefrom. This Court vide order dated 04-11-2011 admitted the writ petition and passed an interim order directing the respondents not to take any consequential steps pursuant to the notification dated 23-09- 2011. Thereafter, WP(C) No.145/2012 was filed by another set of petitioners for quashing of notification dated 23-09-2011 and for a direction to the respondents to make appointments from the merit lists approved by the Deputy Commissioner, Sonitpur.

Heard Mr. PK Goswami, learned Senior Counsel for the petitioners in WP(C) No.5542/2011 and Mr. BD Konwar, learned Senior Counsel for the petitioners in WP(C) No.145/2012. Also heard Mr. BJ W rit P etition (C) No.5542/ 2011 P age 7 of 18 W rit P etition (C) No.145/ 2012 Talukdar, learned Government Advocate, Assam and Mr. G. Rahul, learned Standing Counsel, PWD (Roads).

Mr. Goswami, learned Senior Counsel for the petitioners in WP(C) No.5542/2011 submits that there were no infirmities and anomalies in the selection carried out by the original Selection Committee. On the strength of their merit, the petitioners were selected. However, the Deputy Commissioner, Sonitpur in a totally unauthorized manner usurped the powers of the Selection Committee and not only re-evaluated the answer scripts of the candidates who had appeared in the written examination but also prepared separate merit lists. He submits that under the Assam Public Services (Direct Recruitment to Class III and Class IV Posts) Rules, 1997, the Deputy Commissioner has no role to play in the selection process. Therefore, the steps taken by the Deputy Commissioner in holding enquiry, re- evaluation of the answer scripts and preparation of fresh merit lists are totally beyond the scope of the 1997 Rules. Consequently, the merit lists prepared by the Deputy Commissioner dated 19-02-2011 would be of no legal consequence. That leaves the selection conducted by the original Selection Committee intact. When the Department was of the view that the Executive Engineer (Member Secretary) had conducted the selection process by observing all necessary formalities, cancellation of the entire selection process including the select list is not justified.

On the other hand, Mr. BD Konwar, learned Senior Counsel for the petitioners in WP(C) No.145/2012 submits that in view of wide spread W rit P etition (C) No.5542/ 2011 P age 8 of 18 W rit P etition (C) No.145/ 2012 complaints about conduct of selection process by the Selection Committee, interference by the Deputy Commissioner was justified. In the course of enquiry by the Additional Deputy Commissioner, various anomalies committed by the Selection Committee had come to light. Deputy Commissioner very rightly got all the answer scripts of the written test re- examined whereafter fresh merit lists were prepared in order of merit in which names of his clients appear. The merit lists were subsequently approved by the re-constituted Selection Committee. Therefore the said merit lists are valid ones and the respondents are required to give effect to the approved merit lists. He therefore submits that in such circumstances, cancelling the entire selection process was not all justified.

Mr. G. Rahul, learned Standing Counsel, PWD (Roads) referring to the affidavit filed by the Chief Engineer in WP(C) No.5542/2011 submits that though the selection process was started after observing all necessary formalities the same could not be completed because of certain irregularities in the selection process. He submits that while the Department acknowledges that certain irregularities had crept into the selection process when it was conducted by the Selection Committee with the Executive Engineer as Member Secretary, it is however contended that intervention of the Deputy Commissioner in the selection process was totally unauthorized, arbitrary and unsustainable. He submits that merit lists prepared by the Deputy Commissioner, Sonitpur are illegal being violative of the 1997 Rules. Department had gone for legal opinion and as per legal opinion, decided to cancel the entire selection process. Learned Standing Counsel therefore W rit P etition (C) No.5542/ 2011 P age 9 of 18 W rit P etition (C) No.145/ 2012 submits it would be in the interest of justice to have the selection process afresh. He submits that decision of the Department to cancel the selection is justified in the facts and circumstances of the case.

Mr. Talukdar, learned Government Advocate has produced the record.

On a query by the Court that even if it is assumed that the Deputy Commissioner had acted beyond the 1997 Rules, however after the enquiry conducted by the Additional Deputy Commissioner on orders of the Deputy Commissioner, when several anomalies in the selection process carried out by the Selection Committee came to light, whether it would still be possible and justified to give effect to the outcome of such selection process, Mr. Goswami, learned Senior Counsel fairly submitted that in such a situation the Court may consider directing the PWD authorities to undertake fresh exercise of re-evaluation of the answer scripts of the written examination through independent experts and thereafter based on the outcome of such re-evaluation, a fresh merit list may be prepared on the basis of which Department may consider making the appointments. Such a course of action would be fair to all the parties, he submits.

Submissions made by learned Counsel for the parties have received the due consideration of the Court. Also perused the materials on record.

W rit P etition (C) No.5542/ 2011 P age 10 of 18 W rit P etition (C) No.145/ 2012 At the outset, relevant provisions of the 1997 Rules may be referred to.

The 1997 Rules have been framed in exercise of the powers conferred by the proviso to Article 309 of the Constitution of India regulating direct recruitment to Class III and Class IV posts in the offices of the Heads of Department, the Regional offices, District offices, Divisional offices and below District Level offices. As per Rule 3, the 1997 Rules shall apply only to those Class III posts, both technical and non-technical, and Class IV posts where there are no service rules/ executive orders regulating the recruitment and conditions of service and which are not within the purview of the Assam Public Service Commission (APSC). Further exceptions to the applicability of the 1997 Rules are also mentioned under Sub-Rule (2) of Rule 3. As the title of the Rules itself suggest, the 1997 Rules are concerned with direct recruitment to Class III and Class IV posts and the procedure for direct recruitment is laid down in Rule 4. Before the end of each year, the appointing authority is required to make an assessment of the existing vacancies and the probable vacancies likely to occur during the next 12 months and thereafter to inform the Selection Committee about availability of such vacancies with details of reservations. The appointing authority is required to advertise the vacancies with breakup for the reserve category. Selection Committee after conducting the selection shall prepare a combined merit list of successful candidates and furnish the same to the appointing authority. The select list shall remain valid for 12 months. Rule 5 deals with constitution of Selection Committee. As per Rule 5 there shall be four types W rit P etition (C) No.5542/ 2011 P age 11 of 18 W rit P etition (C) No.145/ 2012 of Selection Committees, one for posts in Divisional/District Level offices, including below District Level offices, one for posts under the Deputy Commissioner of a district, one for posts in the offices of Heads of Department and one for posts in the Regional Level offices. Since the present case is concerned with Divisional Level Office, the composition of the Selection Committee would be as under:-

1. Chairman -- Appointing authority or the Senior-

most departmental officer available in the district where the vacancy arises nominated by the appointing authority.

2. Member -- Departmental Officer belonging to the Secretary office under which the vacancy arises.

3. Member -- Officer of the rank of EAC upto SDO to be named by the Deputy Commissioner of the concerned district.

4. Member -- An officer of a department other than the department under which the vacancy arises to be named by the Deputy Commissioner of the concerned district.

5. Member -- An officer of a department to be named by the appointing authority other than the department under which the vacancy arises and the department from which the Deputy Commissioner has nominated an officer as member.

W rit P etition (C) No.5542/ 2011 P age 12 of 18 W rit P etition (C) No.145/ 2012 Before commencement of the selection process, the appointing authority is required to constitute and notify the Selection Committee. The qualifications for the notified posts and the scheme of selection shall be notified by the concerned administrative department. Selection procedure is laid down in Rule 6. As per Rule 9(2) any person who attempts to enlist support for his candidature directly or indirectly by any recommendation, either written or oral or by any other means, shall not be appointed.

Having noticed the relevant provisions of the 1997 Rules and the relevant facts, the following aspects of the litigation can be culled out as under:-

(1) In respect of the present recruitment process, the Deputy Commissioner had a very limited role. The role of the Deputy Commissioner was confined to nominating officials to the Selection Committee.

(2) The Selection Committee had committed an error in sending the entire selection record to the Deputy Commissioner and deciding to abide by the decision of the Deputy Commissioner.

Selection Committee was mandated to conduct the selection and to declare the results of the selection in accordance with the 1997 Rules. Therefore, the Selection Committee abdicated its statutory duty and responsibility in not discharging its duties statutorily conferred on it by referring the selection W rit P etition (C) No.5542/ 2011 P age 13 of 18 W rit P etition (C) No.145/ 2012 record to the Deputy Commissioner for finalization of the selection by him. This course of action was totally unauthorized and de-hors the 1997 Rules.

(3) The reason for referring the selection record to the Deputy Commissioner is wholly untenable. As per resolution No.1 of the Selection Committee meeting dated 20-01-2011 various elected representatives had requested appointment of their candidates through letters and various means of communication and since the Selection Committee could not come to any conclusion in this regard, therefore it was decided to send the entire selection record to the Deputy Commissioner for his decision. This is totally unacceptable. Rule 9(2) makes it abundantly clear that no person who attempts to enlist support for his candidature directly or indirectly by any recommendation either written or oral or by any other means shall be appointed to the post notified. Therefore duty was cast upon the members of the Selection Committee to have identified the candidates who had attempted to enlist support for their candidature through the elected representatives so as to debar them from appointment. Thus, this decision was totally contrary to the 1997 Rules.

(4) Deputy Commissioner, Sonitpur thereafter embarked upon a totally unauthorized course of action when he passed the order W rit P etition (C) No.5542/ 2011 P age 14 of 18 W rit P etition (C) No.145/ 2012 dated 09-02-2011 by directing re-examination/re-evaluation of the answer scripts of the candidates afresh by officials under the establishment of the Deputy Commissioner with the Additional Deputy Commissioner as the nodal authority, thereby usurping the role of the Selection Committee. The Deputy Commissioner is not entrusted with any such duties and responsibilities under the 1997 Rules. Therefore the merit lists dated 19-02-2011 prepared by the office of the Deputy Commissioner have no legal sanctity and are nonest in law. (5) Having said that, the report of the Additional Deputy Commissioner dated 15-06-2011 addressed to the Deputy Commissioner, Sonitpur did disclose various irregularities in the selection process conducted by the Selection Committee. It says that a written complaint dated 14-02-2011 was submitted by three of the Selection Committee members alleging that they were kept in the dark about examination of the answer scripts by the Member Secretary. They had alleged that they had no knowledge about the marks obtained by the candidates in the written examination. As per the report of the Additional Deputy Commissioner, the Member Secretary had got the answer scripts evaluated without issuing any guidelines or instructions through some Junior Engineers of the Department without the knowledge of the Selection Committee members. No scrutinizers, tabulators etc. were engaged. No model answer W rit P etition (C) No.5542/ 2011 P age 15 of 18 W rit P etition (C) No.145/ 2012 key was available at the time of evaluation. Uniform marks were awarded for all additional qualifications beyond the prescribed eligibility criteria. The Member Secretary also tried to unduly favour one candidate who had applied as a Scheduled Caste candidate though she belongs to the general category. When the compilation sheet and merit list were placed before the Selection Committee members, they refused to sign the same. (6) In the affidavit filed by the Chief Engineer, PWD (Roads) in WP(C) No.5542/2011 it is admitted that the selection process conducted by the Executive Engineer, PWD (Roads), Sonitpur Rural Roads Division suffered from the following irregularities:-

(i) Criteria introduced in the selection process was not mentioned.

(ii) Weightage given for having higher degree or having any technical qualification beyond the prescribed qualification was not justified.

(iii) Intervention of the Deputy Commissioner in the selection process and finalizing the selection is arbitrary and unsustainable.

(iv) 8 candidates had tried to bring in outside influence and their names found place in the select lists prepared by the Deputy Commissioner.

Thus the select lists prepared by the Deputy Commissioner are violative of Rule 9(2) of the 1997 Rules.

W rit P etition (C) No.5542/ 2011 P age 16 of 18 W rit P etition (C) No.145/ 2012 From the above it is evident that while the select lists prepared by the office of the Deputy Commissioner have no legal sanctity besides containing names of candidates who had tried to influence the selection process through extraneous consideration, the report of the Additional Deputy Commissioner on the other hand discloses irregularities in the selection process conducted by the Selection Committee. Despite intervention of the Deputy Commissioner being unauthorized in law, the Court cannot ignore the report submitted by the Additional Deputy Commissioner disclosing irregularities in the conduct of selection by the Selection Committee. This is a relevant information which is available before the Court. The Court is not concerned with the legality and validity of the source of the information. As a matter of fact, some of the observations made by the Additional Deputy Commissioner have been acknowledged by the Chief Engineer in his affidavit.

Thus it is quite apparent that the entire selection process had got mired in controversy. It is of utmost importance that sanctity of a selection process for public employment is maintained at any cost. It will be a complete negation of the rule of law if people lose confidence in the fairness of such selection process. Therefore, it is in the public interest that purity of the selection process is maintained and upheld at any cost and no dilution thereof is permitted.

W rit P etition (C) No.5542/ 2011 P age 17 of 18 W rit P etition (C) No.145/ 2012 In the light of the above, decision taken by the respondents to cancel the entire selection process based on legal opinion cannot be faulted. Relief(s) as sought for and canvassed before the Court cannot be granted.

Accordingly, both the writ petitions are dismissed. No cost.





                                                             JUDGE



Aparna




W rit P etition (C) No.5542/ 2011                               P age 18 of 18
W rit P etition (C) No.145/ 2012

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