Gauhati High Court
Rajib Bura Gohain vs The Honourable Gauhati High Court ... on 4 March, 2021
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GAHC010033992019
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/1109/2019
RAJIB BURA GOHAIN
S/O. LT. MINA KANTA BURA GOHAIN, R/O. VILLAGE- RUPNAGAR, P.O.-
ARADHAL, P.S. DHEMAJI, DIST. DHEMAJI, ASSAM.
VERSUS
THE HONOURABLE GAUHATI HIGH COURT AND 2 ORS.
REP. BY THE HONOURABLE REGISTRAR GENERAL, GAUHATI HIGH
COURT, GUWAHATI-01.
2:THE CHIEF JUDICIAL MAGISTRATE
DHEMAJI
P.O.
P.S. AND DIST. DHEMAJI
ASSAM
PIN- 787057.
3:THE SELECTION BOARD FOR FILLING UP THE POST OF PEON
IN THE ESTABLISHMENT OF THE CHIEF JUDICIAL MAGISTRATE
DHEMAJI
REP. BY ITS CHAIRMAN
CHIEF JUDICIAL MAGISTRATE
DHEMAJI
PIN- 787057
Advocate for the Petitioner : MR. S Y AHMED
Advocate for the Respondent : SC, GHC
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BEFORE
HONOURABLE MR. JUSTICE MICHAEL ZOTHANKHUMA
ORDER
Date : 04-03-2021
Heard Mr. B.J. Ghosh, learned counsel for the petitioner and Mr. T.J. Mahanta, learned
senior counsel for the respondent Nos. 1, 2 & 3 assisted by Mr. P.P. Dutta, learned counsel.
2. The petitioner's grievance is that despite being the second preferential candidate in
pursuance to the selection process, for filling up the vacant post of Peon in the establishment
of the Chief Judicial Magistrate (CJM), Dhemaji and the appointment of the first preferential
candidate being cancelled due to the fact that she was over-qualified, the petitioner has not
been appointed to the vacant post of Peon till date.
3. The brief facts of the case is that in pursuance to the Advertisement dated 22.05.2013,
which called for filling up the vacant post of Peon in the establishment of the CJM, Dhemaji,
the petitioner and one Ms. Minawati Buragohain Duwarah took part in the selection process.
The eligibility criteria for appointment to the vacant post of Peon was that the candidate
should be of minimum Xth standard and maximum XIIth standard.
4. Ms. Minawati Buragohain Duwarah, who was a graduate, was selected for appointment
to the vacant post of Peon as the first preferential candidate, while the writ petitioner was
selected as the second preferential candidate vide Order dated 03.07.2013 issued by the
Selection Board. The Selection Board in the Order dated 03.07.2013 also resolved that the
petitioner would be appointed in case the first preferential candidate failed or was disqualified
"on the ground like police verification report and medical fitness certificate".
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5. The petitioner being aggrieved by the appointment of the first preferential candidate,
who was over-qualified in terms of the Advertisement dated 22.05.2013 filed WP(C) No.
6980/2013. This Court vide Judgment & Order dated 20.11.2018 disposed of WP(C) No.
6980/2013, holding that a candidate having qualification below the X th standard and above
the XIIth standard were ineligible for appointment to the vacant post of Peon. It also held that
the first preferential candidate, who was the respondent No. 4 in WP(C) No. 6980/2013 had
suppressed the fact that she was a graduate to secure the appointment. This Court thus held
that the appointment of the first preferential candidate was in violation of the advertisement
notice and as such, the respondents were directed to take appropriate action in the matter. In
pursuance to the Judgment & Order dated 20.11.2018 passed in WP(C) No. 6980/2013, the
office of the CJM, Dhemaji issued Order dated 25.01.2019 removing the first preferential
candidate from service on account of being over-qualified. As the petitioner was not
appointed to the vacant post of Peon, though he was the second preferential candidate in
terms of the selection process held in pursuance to the Advertisement dated 22.05.2013, the
petitioner has filed the present writ petition.
6. The petitioner's counsel submits that the petitioner has filed WP(C) No. 6980/2013
within 1 (one) year from the date of the appointment of the first preferential candidate and
as the first preferential candidate has been disqualified from holding the vacant post of Peon,
the petitioner should be appointed in the said vacant post.
7. Mr. T.J. Mahanta, learned senior counsel for the respondent Nos. 1 to 3 submits that
once the first preferential candidate was appointed to the vacant post of Peon on 03.07.2013,
the select list made in terms of the Order dated 03.07.2013 came to an end. He accordingly
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submits that a fresh selection would have to be undertaken to fill up the vacant post of Peon.
8. I have heard the learned counsels for the parties.
9. It is seen that while the first preferential candidate, who was over-qualified had been
appointed on 03.07.2013, the petitioner has filed WP(C) No. 6980/2013 on 28.11.2013. This
Court, while holding that the first preferential candidate was appointed in violation of the
Advertisement dated 22.05.2013 in its Judgment & Order dated 20.11.2018 passed in WP(C)
No. 6980/2013 had permitted the petitioner to approach this Court again, if he continued to
remain aggrieved in the matter.
10. The Order dated 03.07.2013 issued by the Selection Board provides that the petitioner,
who was the second preferential candidate would be appointed in case the first preferential
candidate failed or was disqualified on grounds "like" Police Verification Report and Medical
Fitness Certificate. The use of the word "like" in the Order dated 03.07.2013, is in the general
sense and in the opinion of this Court, would include within the ambit of disqualification, the
over-qualification of the first preferential candidate, due to which she could not have been
selected or appointed for the vacant post of Peon. Though a select/waiting list cannot
normally remain valid beyond a year, it is seen that the petitioner has challenged the
appointment of the first preferential candidate within 4 (four) months vide WP(C) No.
6980/2013. It is amply clear that if the disqualification of the first preferential candidate had
been detected in the first instance, the petitioner would have been appointed to the vacant
post.
11. Paragraph No. 9 of the affidavit-in-opposition filed on behalf of the respondent Nos. 1 &
2 also shows that the application of the petitioner to be appointed in place of the first
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preferential candidate had been forwarded to the Selection Board, Dhemaji by the respondent
Nos. 1 & 2 and the meeting was to be held for the said purpose on 08.03.2019. However, the
meeting could not take place in view of the fact that this Court had passed a direction not to
fill up the vacant post of Peon vide Order dated 22.02.2019. As such, the Selection Board has
not been able to take any decision with regard to the petitioner's application for appointment
to the vacant post of Peon.
12. On considering the above facts, this Court is of the view that the petitioner's case for
appointment to the vacant post of Peon has to be considered by the Selection Board, Dhemaji
as he was the second preferential candidate in terms of the Selection process held in
pursuance to the Advertisement dated 22.05.2013. In the peculiar facts and circumstances of
this case, the disqualification and subsequent cancellation of the appointment of the first
preferential candidate requires consideration of the petitioner's case for appointment to the
vacant post of Peon.
13. In the case of State of Jammu & Kashmir & Another Vs. Ravinder Singh & Others, Civil
Appeal No. 11976/2016, which was disposed of by the Apex Court on 06.12.2016, it was held
that while the over-qualified diploma holders could not have been considered for appointment
to the post of Technician-III, there was no question for the Service Selection Board or the
State Government not to appoint the qualified writ petitioners to the post of Technician-III
either on the posts which were available in 1998, when the advertisement was issued or
which may become available in subsequent years or by creating supernumerary posts.
14. In view of the reasons stated above and keeping in view the fact that this case should
not be used as a precedent, this Court directs the respondent Nos. 2 & 3, to consider the
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case of the petitioner for appointment to the vacant post of Peon in the establishment of the
CJM, Dhemaji, as he was the second preferential candidate. The exercise should be
completed within a period of 1 (one) month from the date of receipt of a certified copy of this
order.
The writ petition is accordingly disposed off.
JUDGE
Comparing Assistant
