Gauhati High Court
Md. Fulchan Ali Sk vs The State Of Assam And 26 Ors on 12 May, 2021
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GAHC010023212017
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/7070/2015
MD. FULCHAN ALI SK.
S/O-O ASHER UDDIN SK.
VILL. and P.O.- ASHARIKANDI
P.S.- GAURIPUR
DIST.- DHUBRI
ASSAM
PIN- 783331.
VERSUS
THE STATE OF ASSAM AND 26 ORS
REP. BY THE COMMISSIONER and SECY. TO THE GOVT. OF ASSAM
DEPTT. OF POWER ELECTRICITY
DISPUR
GHY- 6.
------------
For the petitioner: Mr. M.R. Khandakar, Mr. A. Rahman,
Ms. W. Nasrin, Advocates.
For the respondent no.1: Mr. N. Goswami, Govt. Advocate.
For the respondent nos. 2 to 7: Mr. B.D. Das, Senior Advocate,
Ms. R. Deka, Standing Counsel.
Date of hearing: 22.02.2021.
Date of judgment: 12.03.2021.
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BEFORE
HONOURABLE MR. JUSTICE KALYAN RAI SURANA
JUDGMENT AND ORDER
(CAV)
Heard Mr. M.R. Khandakar, learned counsel for the petitioner. Also heard Mr. N.
Goswami, learned Government Advocate appearing for the State respondent no.1 and Mr.
B.D. Das, learned senior counsel assisted by Mrs. R. Deka, learned standing counsel for
respondent nos. 2 to 7. None appears on call the private respondent nos. 8 to 27.
2. On perusal of the record, it appears that there is no order accepting due
service of notice on respondent no.27 and although on 24.11.2017, the learned counsel for
the petitioner had prayed for taking steps on respondent nos. 9 to 11, 13, 20, 21, 23 and 25
to 27, the Court had allowed the petitioner to take steps for service of notice only on
respondent nos. 9 to 11, 13, 20, 21, 23, 25 and 26 by dasti mode. Thus, there is no order to
accept due service of notice on the respondent no. 27. Nonetheless, in view of the nature of
order proposed to be passed, the Court has proceeded to deliver the judgment in absence of
the respondent no. 27.
3. By filing this writ petition under Article 226 of the Constitution of India, the
petitioner has assailed the engagement of the private respondent nos. 8 to 27 as trainee
Sahayak, and also prayed for a direction to the APDCL authorities, i.e. respondent nos.2 to 7
to select and appoint the petitioner as Sahayak.
4. In short, the case of the petitioner is that he had successfully completed the
course of Industrial Training Institute of Government of Assam (ITI for short) and had passed
out the prescribed test in the Trade of Electrician. The petitioner belongs to unreserved
category.
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5. By virtue of an employment advertisement published on 09.04.2013, the
respondent no.3 had invited applications from eligible candidates for filing up of 1064 posts of
Sahayak under APDCL out of which 73 posts were under Kokrajhar Electrical Circle.
Accordingly, the petitioner had submitted his application in the said Electrical Circle Office of
the respondent nos. 2 to 7. It has been pleaded that the petitioner was issued call letters to
appear in physical fitness test scheduled on 22.07.2013 and 23.07.2013 at Dwimalu Field,
near Kokrajhar S.P. Office, Kokrajhar and after successful completion of the test, the
petitioner had appeared for interview for engagement as Trainee Sahayak on 25.07.2013 and
26.07.2013 in the office of the General Manager, Guwahati Zone, APDCL (LAZ) (respondent
no.4). However, without publishing any selection list and without assigning any reasons, the
interview was cancelled and the authorities issued another re-examination call letter to again
appear for physical fitness test on 04.10.2013 ( sic. ought to be 03.10.2013) and for interview
on 04.10.2013 at ASEB Complex, Narengi. Thereafter, by virtue of an advertisement, the
respondent no.4 had published a selection list dated 21.02.2014 of the candidates for
Training (sic. ought to be Trainee) Sahayak selected for engagement in the seven Circles
under Guwahati Zone, viz., Guwahati Electrical Circle-I, Guwahati Electrical Circle-II, Rangia
Electrical Circle, Mangaldoi Electrical Circle, Barpeta Electrical Circle, Bongaigaon Electrical
Circle and Kokrajhar Electrical Circle. As per the said Select List, out of 73 selected candidates
in respect of Kokrajhar Electrical Circle, category-wise selection was as follows, viz., 40
(unreserved), 20 (OBC), 7 [ST(P)], 5 (SC), 1 [ST(H)] and none (PH).
6. The learned counsel for the petitioner has submitted that the petitioner had
obtained 74.00 marks out of 100 marks and his name was placed at serial no. 16 of the merit
list, still his name was left out and the respondent nos. 8 to 27 had got selected despite
obtaining lesser marks than the petitioner. It is submitted that the names of respondent nos.
25, 26 and 27 was not in the merit list, but their names got included in the impugned select
list. Thus, the present challenge is, amongst others, on three grounds, viz., (a) the
respondent nos. 25, 26 and 27 were from outside the merit list, (b) the respondent nos. 8 to
27 had scored lesser marks than the petitioner, (c) some reserved category candidates
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belonging to SC, ST, OBC and MOBC were selected as unreserved candidates, and (d) as per
the employment advertisement, engagement under Category-B, the temporary workers were
required to have experience as workers engaged in any power utility, but as many as 53 out
of 73 selected candidates had not submitted experience certificate issued by a power utility
company. Accordingly, it is submitted by the learned counsel for the petitioner that the
experience certificates based on which the private respondents had secured service were
invalid and the selection of the private respondents was liable to be set aside.
7. In their affidavit-in-opposition, the respondent nos. 2 to 7 have stated that
as per employment advertisement dated 09.03.2013, appointment of Sahayak were under
two categories, i.e. Category-A for candidates having ITI certificate and Category-B for
experienced candidates engaged in any Power Utility Company. It has been stated that
initially the fitness test and interview was held on 25.07.2013 and 26.07.2013, but the
process was cancelled by the Chief General Manager, APDCL (LAR) at that stage due to some
allegations and complaints and subsequently, physical fitness test was held on 03.10.2013
and interview was held on 04.10.2013, where the petitioner had also participated.
8. The learned senior counsel for the respondent nos.2 to 7 has submitted that
as per the employment advertisement, it was provided that two categories of candidates
were eligible to apply, being (1) Category-A: for candidates having ITI certificate, and (2)
Category-B: temporary workers engaged in any power utility to work as Sahayak. It is
submitted that the APDCL had out-sourced the repairs and maintenance work to third party
vendors, as such, the selected and appointed persons under Category-B had gathered
sufficient experience so as to entitle them to apply for being appointed as Sahayak. It is
submitted that the petitioner is holder of ITI certificate and belongs to Category-A, as such,
he cannot challenge the appointment made to the private respondents under Category-B. It is
also submitted that the merit list (Annexure-4 to the writ petition) was not the correct list as
the said list was cancelled and superseded by the subsequent select list which is annexed as
Annexure-1 to their affidavit-in-opposition. In support of his submission the learned Senior
counsel for the respondent nos.2 to 7 places reliance on the following cases, viz. (1) Public
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service Commission, Uttaranchal Vs. Mamta Bisht and ors. (2010) 12 SCC 204, (para-9), (2)
Bikash Sarma Vs. Dharitri Kalita and ors. (2020) 2 GLR 473, and (3) Rantu Dutta and ors. Vs.
APDCL and ors. 2019 (2) GLT 1048 (para-9).
9. The learned standing counsel for the respondent nos. 2 to 7 has produced
the following original records of selection, viz., (i) Equipment identification sheet (three sheets
available out of eight) (Flag-A), (ii) Interview evaluation sheet by General Manager (Flag-B),
(iii) Interview evaluation sheet by Employment Officer (Flag-C), (iv) Experience evaluation
sheet (Flag-D), (v) Interview evaluation sheet by Deputy General Manager (Flag-E), (vi)
Interview evaluation sheet by Deputy General Manager (Flag-F), (vii) Academic evaluation
sheet (Flag-G), (viii) Physical fitness test marks (Flag-H), (ix) Merit list forwarded to the CEO,
Kokrajhar (Flag-I), (x) Select List (Flag-J), (xi) minutes of meeting of the selection committee
for recruitment of trainee Sahayak under Kokrajhar Electrical Circle (Flag-K), and Merit list
[two lists with word 'Experience' and 'ITI' hand-written by ink at the top; 'experience' list is of
10 sheets and 'ITI list is of 5 sheets) (Flag-L).
10. The learned Government counsel has submitted that the State is merely a
formal party in this writ petition and, as such, his only interest is that no order adverse to the
interest of the Government may be passed in this writ petition.
11. Perused the writ petition, additional affidavit filed by the petitioner regarding
service of notice on respondent nos. 9 to 11, 13, 20, 21, 23, 25 and 26, affidavit-in-
opposition by respondent nos.2 to 7 and affidavit-in-reply by the petitioner. Submissions
made by the learned counsel for the petitioner, learned Govt. Advocate and the learned senior
counsel for the respondent nos. 2 to 7 have received due consideration. The records
produced have been perused.
12. One of the pleas urged by the learned senior counsel for the respondent nos.
2 to 7 is regarding maintainability of this writ petition on the ground that all the selected
candidates had not been impleaded. Hence, it is submitted that the writ petition was not
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maintainable due to non-joinder of proper and necessary parties. In support of his
contention, the learned senior counsel for the respondent nos. 2 to 7 had relied on ratio laid
down in the case of Mamta Bisht (supra). It is seen that the specific stand of the petitioner is
that he had applied for being appointed under the Kokrajhar Electrical Circle. Therefore, in
the considered opinion of the Court, this writ petition would be maintainable on facts and in
law as the petitioner has assailed the selection and appointment of the private respondent
nos. 8 to 27. Under the facts of this case, it was not necessary to implead all the 1064
appointees in the State or all the 73 selected candidates under Kokrajhar Electrical Circle as
party respondents. The case of Mamta Bisht (supra), cited by the learned senior counsel for
the respondent nos. 2 to 7 is distinguishable on facts because in that case the High Court had
allowed the writ petition, amongst others, on the ground that as the last selected candidate,
receiving the benefit of horizontal reservation had secured more marks that the last selected
general category candidate, she ought to have been appointed against vacancy in general
category and the respondent no.1 ought to have been given the benefit of reservation,
however, the Supreme Court of India had interfered with the judgment by the High Court,
amongst others, on the ground that the because the respondent no.1 wanted her selection
against the reserved category candidate, the last selected candidate in that category, though
a necessary party, had not been impleaded. In the present case in hand, the petitioner has
impleaded the private respondents whose selection and appointment have been specifically
challenged. In the present case in hand, the advertisement envisaged filing up of 1064 vacant
posts of Sahayak in 17 Electrical Circles. As per the advertisement published in newspaper to
announce the result of selection, it contained roll nos. of 339 selected candidates in seven
circles under Guwahati Zone, as such, the Court does not find that it was necessary for the
petitioner to implead all the selected candidates, when he has assailed appointment of
specific persons, arrayed as respondent nos. 8 to 27. Accordingly, it is held that the present
writ petition is maintainable and is not hit by non- joinder of proper and necessary parties.
13. On the issue of maintainability, the learned senior counsel for the respondent
nos. 2 to 7 had placed reliance on the case of Rantu Dutta (supra). Although the said case
also relates to same selection process as in the present case, but the said case was decided
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on another point. In that case, the selection and appointment of respondent nos. 6 to 9 had
been challenged as they were not residents of Sivasagar District and had less experience than
the petitioners therein and in that context, it was held that there was no bar in applying for
the post of Sahayak in APDCL office situated outside the district of their permanent residence.
Moreover, in that case, prayer was made to interfere with the selection list, but out of 93
selected candidates only respondent nos. 6 to 9 were impleaded and, as such, the writ
petition was held to be not maintainable because if the select list was interfered with, the
interest of non-parties to the writ petition would be adversely affected. Thus, on the aforesaid
distinguishing facts, the ratio of the case of Rantu Dutta (supra) is not applicable in the
present case.
14. In the case of Bikash Sarma (supra), pursuant to selection as per notification
dated 25.06.2015, the appellant therein was issued appointment letter dated 25.06.2015 and
accordingly he had joined on 29.06.2015. The writ petition was filed by respondent no.1 on
01.10.2015 to challenge the appointment on the ground that requirement of the Assam
Women (Reservation of Vacancies in Services and Posts) Act, 2005 and Rules framed
thereunder was not followed. The employment advertisement was issued without providing
for reservation and the respondent no.1 participated without assailing the advertisement and
accordingly, on facts, it was held that the respondent no.1 had allowed the appellant to join
and work for four months, as such, the appeal was allowed by dismissing the writ petition on
ground of delay and laches. In the present case in hand, it the selection and appointment of
the private respondents are assailed on specific grounds, which is the factor that
distinguishes the present case from the cited case of Bikash Sarma (supra), as such, the
Court is of the considered opinion that the petitioner cannot be non-suited in the case on the
ground of delay and laches.
15. On a perusal of the materials available on record, it is seen that a common
merit list of the selected candidates belonging to Category-A and Category-B had been
prepared. It would also be relevant to mention that as per records produced, the merit list is
in two parts, one with word 'Experience' hand-written at the top of first sheet contains 10
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sheets and the other with word 'ITI' hand-written at the top of first sheet contains 5 sheets)
and collectively marked as Flag-L. However, random sample examination of both the lists
discloses that the names and roll numbers are same, for example, Roll No. 1 in both lists is of
Rahul Karmakar; Roll No. 2 is of Balbahadur Thapa; Roll No. 3 is of Mithun Sarma; Roll No.
405 is of Jayanta Das; and Roll no. 134 is of the petitioner, i.e. Md. Fulchan Ali Sk. As it is not
possible that four persons in both Category-A and Category-B would have similar names and
roll numbers, the only possible conclusion is that two copy of same list with incorrect hand-
written words 'experience' and 'ITI' has been produced before the Court. The list with word
'experience' appears to be complete containing serial numbers from 1 to 278 in 10 sheets,
whereas the list with word 'ITI' containing 5 sheets appears to be incomplete. Although the
said two lists do not indicate whether the candidates were from Category-A and Category-B,
but with the name of the petitioner appearing therein, it is evident that the merit list is a
combined list of Category-A and Category-B.
16. As regards the point urged by the learned senior counsel for the respondent
nos. 2 to 7 that the petitioner is holder of ITI certificate and belonging to Category-A, as
such, they cannot challenge the appointment made to the private respondents under
Category-B is taken up first. In this connection it is seen from the employment advertisement
dated 09.04.2013 that it does not mention how many of the vacant posts of Sahayak was
ear-marked for Category-A and Category-B. Therefore, it is plausible that any number of
applicants in either category could have been selected for appointment to the 1064 posts of
Sahayak including 73 posts within Kokrajhar Electrical Circle. This position is fortified by the
fact that the impugned select list approved on 21.02.2014 contains names of candidates of
Category-A and Category-B. Therefore, as vacancy was not determined separately for
Category-A and Category-B, the writ petition would be maintainable because it is quite
possible that the vacant posts could have been filled up in order of merit from either
Category-A or Category-B. Therefore, if selection and appointment of any person from
Category-B is interfered with, there is a possibility that in order of merit, the person from
Category-A might get an opportunity to be appointed, as such, the present writ petition is
found to be maintainable in view of the facts peculiar to the present case in hand.
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17. As regards the plea that the names of the private respondent nos. 8 to 10
appeared below the petitioner in the merit list and that they had scored lesser marks than the
petitioner and yet they were selected and appointed, the record produced has been perused.
It is seen from the Minutes of the Selection Committee, containing signature of GM, APDCL
(LAZ) with date of 24.10.2013 that in respect of recruitment of trainee Sahayaks under
Kokrajhar Electrical Circle a total of 858 applications were received and that the physical test
and interview was held at Kokrajhar and Guwahati on 22 nd, 23rd, 25th and 26th July, 2013
under the Chairmanship of the then General Manager, GZ, APDCL. Due to some anomalies in
the recruitment process, the evaluation made by the committee was cancelled by CGM(D),
LAR vide his order dated 06.09.2013 and holding of fresh physical test and interview was
ordered to be held under the Chairmanship of the then GM, LAZ. The applications were again
scrutinized and 541 applications were rejected. Accordingly, a total of 317 candidates were
called for fresh physical fitness test and interview, out of which 204 were Category-A and 113
were under Category-B. Under the 4 (four) member committee, the physical re-test and
interview were held at Narengi, Guwahati on 03.10.2013 and 04.10.2013. The petitioner had
participated in the fresh selection process. Thereafter, two lists were prepared, one containing
73 selected candidates and other containing 37 wait-list candidates as per guidelines issued
by CGM(HR), APDCL, following the 100 point roster dated 20.12.2005, issued by the Govt. of
Assam. Due to non availability of ST(H) candidate at roster point 7 and 27, the list was
prepared considering two roster ST(H) points as unreserved by providing that there would be
backlog of 2 (two) nos. in ST(H) category. The record relating to merit list discloses that as
per the merit list the petitioner had secured 57.5 marks out of 100 and was placed at serial
no. 119. Thus, the petitioner has not been able to show that any selected candidate had
secured less marks than the petitioner or that he had been discriminated against. Therefore,
the Court is inclined to return a finding that the selection process is neither vitiated by any
illegality, arbitrariness nor the selection process was illegal or discriminatory. It may be
mentioned that the selection process is not under challenge.
18. One of the pleas urged by the learned counsel for the petitioner was that
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some selected candidates belonged to reserve category but were selected as unreserved
candidate. In this regard, the petitioner has made a vague allegation without disclosing
names and other particulars of such candidates and therefore, such vague and
unsubstantiated plea is liable to be rejected at the threshold. Nonetheless, it would be
relevant to reiterate at the cost of repetition that records reveal that two lists were prepared,
one containing 73 selected candidates and other containing 37 wait-list candidates as per
guidelines issued by CGM(HR), APDCL, following the 100 point roster dated 20.12.2005,
issued by the Govt. of Assam and that due to non availability of ST(H) candidate at roster
point 7 and 27, the list was prepared considering two roster ST(H) points as unreserved by
providing that there would be backlog of 2 (two) nos. in ST(H) category. Moreover, in the
affidavit-in- opposition, the respondent nos. 2 to 7 had stated that in the final select list, 37
candidates were selected in general category, 20 in OBC/MOBC category, 7 in ST(P) category,
5 in SC category and although 4 posts were reserved for ST(H) category, only 1 candidate of
that category was available and therefore, 3 vacancies ear-marked for ST(H) category was
treated as unreserved category and 3 unreserved candidates were selected. Moreover, it is
seen that in their affidavit-in-opposition the respondent nos. 2 to 7 have given the marks and
position of the respondents, which is as under:-
Sl.No. Respondent Category Marks Remarks
No. Secured
1. 8 OBC 79 Treated as unreserved
considering higher marks
2. 9 General 78.25 -----
3. 10 General 77.25 ------
4. 11 OBC 76.75 Treated as unreserved
considering higher marks
5. 12 OBC 76 Treated as unreserved
considering higher marks
6. 13 OBC 75.75 Treated as unreserved
considering higher marks
7. 14 General 75.25 ------
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8. 15 OBC 73.5 Treated as unreserved
considering higher marks
9. 16 General 73.25 ------
10. 17 OBC 72.75 Treated as unreserved
considering higher marks
11. 18 OBC 72.75 Treated as unreserved
considering higher marks
12. 19 OBC 71.25 Treated as unreserved
considering higher marks
13. 20 General 71 ------
14. 21 OBC 70.75 Treated as unreserved
considering higher marks
15. 22 General 70.5 ------
16. 23 OBC 70.25 Treated as unreserved
considering higher marks
17. 24 General 68.50 Appointed after de-reservation of
ST(H) vacancy
18. 25 General 70.25 -----
19. 26 ST 71.50 Treated as unreserved
considering higher marks
20. 27 General 67.75 Appointed after de-reservation of
ST(H) vacancy
Therefore, the respondent nos. 8, 11, 12, 13, 15, 17 to 19, 21, 23 and 26 had
secured marks more than the last eligible candidate in unreserved category. Moreover,
respondent nos. 24 and 27 were appointed after de-reservation of ST(H) vacancy. Therefore,
in light of the law well settled in this regard, the Court is inclined to hold that the action of
the respondent nos. 2 to 7 of treating the herein before referred respondents as unreserved
category candidate in the merit list is not vitiated by any illegality, arbitrariness, or in
aberration of any Rules.
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19. The selection and appointment of private respondent nos. 25 to 27 has been
assailed on the ground that they were from outside the merit list. The said plea is not found
sustainable because the said allegation is found contrary to the record of the re-selection
done on 03.10.2013 and 04.10.2013, but the petitioner is relying on previous merit list
(Annexure-4 to the writ petition), which had been cancelled and superseded by merit list at
Annexure-I to the affidavit-in- opposition. The names of the respondent nos. 25 to 27 appear
in the final merit list. The herein before referred chart shows that none of the private
respondent nos. 8 to 27 had scored lesser marks than the petitioner. Therefore, as the
petitioner is relying on the cancelled select list, both the plea fails.
20. As regards the plea that as many as 53 out of 73 selected candidates had not
submitted experience certificate issued by a power utility company, the petitioner has
impleaded only the private respondent nos. 8 to 27. Moreover, the petitioner has not annexed
any document to support the argument made by his learned counsel, as such, the selection
and appointment of the private respondents cannot be tinkered with in the absence of any
adverse material on record. Nonetheless, there is another way to look at this aspect of the
matter. As per the employment advertisement, engagement under Category-B, the temporary
workers were required to have experience as workers engaged in any power utility. In this
regard, it is well known that the APDCL had out-sourced maintenance to third party. However,
on a perusal of the documents annexed to the connected writ petition, i.e. W.P.(C)
3014/2015, it appears that the workers engaged by such third party had obtained experience
certificates which were duly counter-signed by the AGM concerned. In this regard, the Court
is of the considered opinion that the respondent nos. 2 to 7 is entitled to some amount of
freedom in the matter of selection and appointment as they are aware of what is their
requirement when issuing employment advertisement. It would lead to absurdity if applicants
in Category-B could only be persons who were temporarily engaged in power utility as
Sahayak, because by no stretch of imagination, this was a recruitment process to regularise
service of temporary or casual workmen engaged as Sahayak by APDCL or its licencee. There
is no doubt that this exercise was a fresh recruitment drive, as such, it is acceptable that the
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APDCL had wanted to give an opportunity to outsourced temporary workers of third
party/vendors, who were rendering actual service to the APDCL as a beneficial employer.
Thus, the Court is of the considered opinion that there was no infirmity in the action of the
respondent nos. 2 to 7 to select and appoint private respondent nos. 8 to 27 based on
certificates counter-signed by the AGM, which was as per the terms and conditions of the
advertisement dated 09.04.2013. The said action is not found to be arbitrary or violative of
Article 14 of the Constitution of India.
21. Therefore, the reasons assigned to assail the present section process and
appointment of private respondent nos. 8 to 27 fails and resultantly, the writ petition stands
dismissed, leaving the parties to bear their own cost.
22. Before parting with the records, it may be mentioned that inclusive of the
present writ petition, seven writ petitions, being W.P.(C) nos. 5454/2017, 3014/2015,
7070/2015, 2938/2017, 3071/2017, 3086/2017 and 3327/2017, challenging the same
selection process were heard together. However, separate judgments have been delivered.
JUDGE
Comparing Assistant
