WP(C)/6857/2013 of MD HAIDAR ALI Vs THE STATE OF ASSAM AND 6 ORS on 22 December 2017

(1) Narendra Nath Kalita Vs. State of Assam (1992) GLR 89,

(2) Rajeswar Das Vs. State of Assam & Ors. 2006 (4) GLT 925,

(3) State of Orissa & Anr. Vs. Rajkishore Nanda & Ors.(2010) 6 SCC 777,

(4) State of Assam & Anr. Vs. Nahar Chutia & Anr.1974 ALR 163.

5. Mr. G. Alam, the learned counsel for the petitioner submits that theofficial respondents have taken a stand that the situation demands for having afresh selection inasmuch neither select list nor merit list was published and therefore, the earlier selection process lapsed and thus, requiring a fresh selection. He submits that such stand of the official respondents cannot be accepted inasmuch as the post of Gaonburha is not comparable to other civil posts. Certain criterias are to be taken into consideration in the manner of selection or appointment of Gaonburhas as done in the Executive Instruction as already referred to above. This Court in fact had clearly appreciated the contents of 162(A) of the Executive Instructions in the case of Narendra Kalita (Supra) by acknowledging the fact that due to the specific nature of work assigned to a Gaonburha, the criteria and consideration for their appointment cannot be treated at par with other civil posts. As for the educational qualification of the petitioner in WP(C) No.6857/2013, the same was only a mistake committed while issuing the School Certificate to the petitioner. The petitioner in fact is only a Matriculate who thereafter passed Class-XI only at the time of the applying for the post of Gaonburha. He submits that as the mistake in issuance of the Certificate has already been rectified, there is no reason why he should not be appointed as per the final assessment sheet prepared by respondent concerned.

6. Mr. G. Alam, the learned counsel for the petitioners by referring to the 1997 Rules submits that the same is not applicable to the case of the petitioner in the instant case inasmuch as Rule 3 of the same Rules provide that the Rules will have to be applied only in the absence of service Rules and Executive Instructions etc. He also submits that in his application for the post of Gaonburah, he never applied as HSSLC pass candidate and therefore, the contention of the private respondents are unfounded. He also submits that the Mouzadar concernedhad clearly stated that the petitioner is a Matriculate/HSLC pass only and therefore, the question of petitioner passing Higher Secondary Examination does not arise.

7. He thus submits that the grievances of the petitioners are legitimate and therefore, an appropriate direction should be issued to the respondent authorities to appoint the petitioners as Gaonburhas while setting aside the subsequentadvertisements issued for the same post.

8. Mr. B.P. Borah, learned counsel appearing for respondent No.7 submitsthat the petitioners cannot be said to have any indispensible right to be appointed to the post of Gaonburha merely on the ground that their names found place in the final assessment sheet. The official respondents are well within their rights to go for fresh selection if they are not satisfied with the earlier selection process. In this connection he relies upon the decision of the Apex Court rendered in the case of Jai Singh Dalal & Ors. Vs. State of Haryana & Anr. 1993 Supp(2) SCC 600 wherein it was held that it is settled law that even candidates selected for appointment have no right to appointment and it is open to the StateGovernment at a subsequent date not to fill up the posts or to resort to fresh selection according to revised criteria. — He submits that the case of the private respondents in the instant case is in a much better footing then the case referred to inasmuch as no select list or merit list has been published by the official respondents. Therefore, there is no impediment for the respondent authorities to go for a fresh selection. Mr. Borah, further, submits that in fact educational qualification of the petitioner being corrected at subsequent stage would have no relevance inasmuch as the damage has already been done. He submits that with the incorrect educational qualification submitted by the petitioner, the sele ction committee, more particularly the Circle Officer had awarded exceedingly high marks to the petitioner which only shows that he has taken into account the higher educational qualification that was projected by the educational qualification certificate prior to correction. In that view of the matter he submits that entire selection process stands vitiated and since the petitioners themselves are not barred from participating in the fresh selection contemplated, the writ petitions have no merit and should be dismissed.

9. Appearing for the respondent No. 6, Mr. F.U. Borbhuiya the learned counsel adopts the arguments and submissions advanced by Mr. B.P. Borah. Mr. Borbhuiyasubmits that merely because the names of the petitioners are reflected in the final assessment sheet, that by itself do not give the petitioners the right to be appointed. Moreover the petitioners have belatedly challenged the alleged impugned action of the official respondents after more than a year of the preparation of the assessment sheet and therefore, no interference is called for at this stage. He also submits that even the representations submitted by the petitionersare only belated and therefore, should not be accepted. Although the Executive Instructions does not specify the life span of a select list but nevertheless, the principle followed in the Assam Public Services (Direct Recruitment to Class III and Class IV Posts) Rules, 1997 (Assam Public Service Rules, 1997) will haveto be followed wherein the validity of a select list is provided as 12 months or 1 year. He submits that as the select list was prepared on 15.03.2012 therefore, it remained valid only up to 15.03.2013. Since the petitioner approached thisCourt by filing the writ petition only on 14.11.2013, it should be rejected anddismissed even on this ground alone. In support of his submission the learned counsel relies upon the decision of the Apex Court in the case of State of Orissa& Another Vs. Rajkishore Nanda & Others (2010) 6 SCC 777. He, thus submits thatthere is nothing wrong in the action taken by the official respondents in goingfor a second advertisement wherein all eligible candidates including the petitioners themselves can participate in the process. Hence, he prays that the case of the writ petitioner should be dismissed.

10. Mr. A. Chakravorty, the learned Government Advocate appearing for the State respondents at the outset submits that although he had sent communication tothe Deputy Commissioner of Darrang District on 14.11.2017, he is yet to receivethe relevant record of the selection process and prays that he may be given time for production of the records. It can be seen that the respondent No.3 i.e., the Additional Deputy Commissioner, Darrang District filed his affidavit-in-opposition on 11.04.2014 wherefrom the specific stand of the State respondent can be appreciated that since the prepared selected merit list was not published/notified, time lapsed for more than one year and therefore, validity of the said list was not considered.

11. I have heard the learned counsels appearing for the rival parties and perused the materials available on record including the records produced by the learned Government Advocate subsequently. The respondent No.3 i.e., the Additional Deputy Commissioner has filed his affidavit-in-opposition only in WP(C) No.6682/2013 and the respondent No.6 and 7 have also filed theirs in WP(C) No.6857/2013.No other respondents have filed the same. It can be seen that facts are broadlynot in dispute. After selection was conducted for the post of Gaonburah pursuant to the advertisements issued on 01.06.2011 and 21.10.2011, the official respondents instead of completing the process have instead issued a fresh advertisement on 27.09.2013. The respondent No.3 i.e., the Additional Deputy Commissioner, Darrang District in his affidavit-in-opposition has stated as follows:-

10. That, as regard Para 8 of writ petition the answering deponent begs to state that, with a view to complete the process for appointment of 24 Gaonburhasincluding Balipara village, the advertisement was issued. Also, since the prepared selected merit list was not published/notified and the time elapsed in between for more than a year the validity of the said list was not considered. 12. What can be understood from the above stand taken is that although selection was held for the post in question but due to non-declaration and non-publishing of the select list or merit list for over a year, fresh selection was found tobe necessary. If such is the stand of the official respondents, it would be nec essary to examine the same to see as to whether the same is consistent with the procedure governing the field. Rule 3 of the Assam Public Service Rules, 1997 provides that the Rules would apply only in the absence of Service Rules and Executive orders regulating the recruitment and conditions of service. Admittedly, the appointment of Gaonburahs is governed by Executive Instruction 162(A) of the Assam Land Revenue Regulation, 1886. Further, even assuming that the Assam PublicService Rules, 1997 would apply, it would still be necessary that the merit list or select list to be published which however as admitted by the official respondents have not been published. The records produced by the learned Government Advocate is of no help as well as it does not disclose anywhere why the merit list or select list was not published/notified. That being the position, I am of the considered view that the Assam Public Service Rules, 1997 has no application to the instant case.

13. It can also be further seen from the affidavit-in-opposition of the respondent No.3 that besides contending that the time had lapsed, no reason has been assigned as to why the select list or merit list could not be published or why afresh selection became necessary besides time lapse. Therefore, having regard to the decision taken by the Division Bench of this Court in Ripa Sarma & Ors.(Supra), I am of the considered view that the instant case is covered by the Division Bench judgment.14.Having taken the above view, the case of Jai Singh Dalal & Ors. (Supra) cited by learned counsel for the respondent No. 7 in WP(C) No. 6856/2013 and the case of Rajkishore Nanda & Ors (Supra) relied upon by the learned counsel for the respondent No. 6 in WP(C) No. 6857/2013 will not apply to the present case. As for the authorities relied upon by the learned counsel for the petitioners, since the writ petitions have been decided in favour of the petitioners, the same may not be required to be dwelt upon.15.Under the facts and circumstances, the writ petitions are disposed with a direction to the respondent authorities, more particularly, the respondent No.2 i.e. the Deputy Commissioner, Darrang District at Mangaldoi to complete the process of selection undertaken pursuant to the advertisements dated 01.06.2011 and 21.10.2011 for filling up the concerned posts of Gaonburhas under the Sipajhar Revenue Circle and Dalgaon Revenue Circle. Such exercise shall be completed within a period of 1 month from the date of receipt of a certified copy of this order.16.There shall be no order as to costs.