Sukur Ali vs The State Of Assam And 12 Ors
2021 Latest Caselaw 1552 Gua

                                                              Page No.# 1/13

GAHC010023212017




                      THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                       Case No. : WP(C)/3327/2017


         SUKUR ALI
         S/O-LT. LALCHAND MOLLAH
         VILL- ALOMGANJ PART-IX
         PO-ALOMGANJ
         PS-GAURIPUR
         DIST. DHUBRI
         ASSAM
         PIN-783339


          VERSUS

         THE STATE OF ASSAM and 12 ORS.
         REP. BY THE COMMISSIONER and SECRETARY TO THE GOVT OF ASSAM
         DEPTT. OF POWER ELECTRICITY
         DISPUR
         GUWAHATI-06

         2:THE ASSAM STATE ELECTRICITY BOARD
         REP. BY ITS CHAIRMAN
          BIJULEE BHAWAN
          PALTANBAZAR
          GUWHATI-06
          3:THE CHIEF GENERAL MANAGER HR
         ASSAM POWER DISTRIBUTION CO LTD
          BIJULEE BHAWAN
          PALTAN BAZAR
          GUWAHATI-01
          DIST. KAMRUP M
         ASSAM
          4:THE GENERAL MANAGER
         GUWAHATI ZONE
         APDCL
          SIXMILE
                                                      Page No.# 2/13

GUWAHATI-22
DIST. KAMRUP M
ASSAM
5:THE CHIEF EXECUTIVE OFFICER
KOKRAJHAR ELECTRICAL CIRCLE
APDCL
KOKRAJHAR
PO-KOKRAJHAR
DIST. KOKRAJHAR
BTAD
ASSAM
6:THE DEPUTY GENERAL MANAGER
KOKRAJHAR ELECTRICAL CIRCLE
APDCL
KOKRAJHAR
PO and PS-KOKRAJHAR
BTC
ASSAM
PIN-783370
7:THE DIRECTOR

TRAINING ASSAM POWER DISTRIBUTION CO. LTD. NARENGI
GUWAHATI-26
DIST. KAMRUP M
ASSAM
8:PURNABASHI PAUL
S/O GONESH CH. PAUL
VILL-BAHAKATI
PO-PAGLAHAT
PS-TAMARHAT
DIST. DHUBRI
ASSAM
PIN-783334
9:ANISUR ISLAM
S/O AJIMUDDIN AHMED
VILL-GAURIPUR
WARD NO.4
PO-GAURIPUR
PS-GAURIPUR
DIST. DHUBRI
ASSAM
PIN-783331
10:RINASH BASUMATARY
S/O GAJEN BASUMATARY
VILL-KACHUGAON
PO-GOSSAIGAON
DIST. KOKRAJHAR
BTAD
                                                                              Page No.# 3/13

           ASSAM
            PIN-783360
            11:SANJOY KUMAR ROY
           S/O PRANESWAR ROY
           VILL-BOWMARI
            PO and PS-CHAPAR
            DIST. DHUBRI
           ASSAM
           PIN-783371
            12:SAMBHU CHANDRA NATH
           S/O RAMKAMAL CH NATH
            R/O VILL-BIDYAPARA PT.-II NATHPARA
            PO- KHALILPUR
            DIST. DHUBRI
           ASSAM
            PIN-783324
            13:SAHABUDDIN SHEIKH
           S/O KABUL SHEIKH
           VILL-KHUDIMARI PT-II
            PO-KHUDIMARI
            PS-GAURIPUR
            DIST. DHUBRI
           ASSAM
            PIN-783331
            ------------

           For the petitioner:             Mr. F.K.R. Ahmed, Mr. J. Uddin, 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:               12.05.2021.




                                 BEFORE
                 HONOURABLE MR. JUSTICE KALYAN RAI SURANA

                               JUDGMENT AND ORDER
                                         (CAV)

Heard Mr. J. Uddin, 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 Page No.# 4/13

respondent nos. 2 to 7. None appears on call for private respondent nos. 8 to 13.

2. 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 13 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.

3. 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.

4. 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 03.10.2013 and interview on 04.10.2013 at ASEB Complex, Narengi. Thereafter, by virtue of an advertisement, the respondent no.4 had published the 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 Page No.# 5/13

[ST(H)] and none (PH).

5. The learned counsel for the petitioner has submitted that though the petitioner had obtained 73.00 marks out of 100 marks and his name was placed at serial no. 21 of the merit list, his name was left out and instead, the respondent nos. 8 to 12, who had got lesser marks than the petitioner and placed at senior no. 48, 28, 26, 31, 47 and 59 had got selected. It is also submitted that the challenge to the selection and appointment of the private respondents in this writ petition, amongst others, are on the following counts, viz., (a) the private respondent nos. 8 to 13 had scored lesser marks than the petitioner, (b) experience certificate of respondent nos. 8 to 13 were submitted after 30.04.2013, i.e. after the expiry of last date of submission of the application, (c) the respondent no. 10 belonged to ST category and respondent no. 12 belonged to OBC category, but they were selected under unreserved category, (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.

6. 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 interview/ fitness test 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.

7. 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 Page No.# 6/13

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 was also submitted that the merit list (Annexure-4 of 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 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).

8. 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).

9. 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.

Page No.# 7/13

10. Perused the writ petition, additional affidavit filed by the petitioner towards service of notice on the private respondent nos. 8 to 12 in dasti mode, 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.

11. 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 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 13. 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 had 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 Page No.# 8/13

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 13. Accordingly, it is held that the present writ petition is maintainable and is not hit by non- joinder of proper and necessary parties.

12. 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 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.

13. 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 therein 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, the selection and appointment of the private respondents has been assailed on specific grounds, which is the Page No.# 9/13

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.

14. 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, there are two merit lists, one with word 'Experience' hand-written at the top of first sheet contains 10 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. 194 is of the petitioner, i.e. Sukur Ali. 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.

15. 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 belongs to Category-A, as such, he 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 Page No.# 10/13

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 maintainable in view of the facts peculiar to the present case in hand.

16. As regards the plea that the names of the private respondent nos. 8 to 13 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 records produced have 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 Page No.# 11/13

61.25 marks out of 100 and was placed at serial no. 96. 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, as the petitioner is relying on the cancelled select list, both the plea fails and, as such, 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.

17. One of the pleas urged by the learned counsel for the petitioner was that the respondent no.10 and 12 belonged to reserved category, being ST and OBC respectively but were selected as unreserved category. In this regard, it is seen that in the affidavit-in- opposition, the respondent no.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               GENERAL        78.25       ------
2.       9               GENERAL        77.25       ------
3.       10              ST             76.25       Treated     as      unreserved
                                                    considering higher marks
4.       11              GENERAL        75.25       ------
5.       12              OBC            73.5        Treated     as      unreserved
                                                    considering higher marks
6.       13              GENERAL        68.5        ------

Therefore, as the respondent nos. 10 and 12 had secured marks more than the last eligible candidate in unreserved category, 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 respondent no. 10 and 12 as unreserved category candidate in the merit list is not vitiated by any illegality, arbitrariness, or in aberration of any Rules.

18. As regards plea that the experience certificate of the respondent nos. 8 to 10 was issued after 30.04.2013, being the last date of submission of application. In this regard, Page No.# 12/13

as pleaded by the petitioner, the records produced by the learned standing counsel for the respondent nos. 2 to 7 also reveals that the earlier tests and interview conducted on 25.07.2013 and 26.07.2013 was cancelled and subsequent test and interview were conducted on 03.10.2013 and 04.10.2013, which formed the basis of preparing the select list. As per the statements made in the affidavit-in- opposition filed by the respondent nos. 2 to 7, the recruitment exercise Kokrajhar Electrical Circle was completed on 31.07.2013, but the process was cancelled by the Chief General Manager, APDCL (LAR) due to some allegations and complaints. The entire process of examination of applications, tests and interview was thereafter held on 03.10.2013 and 04.10.2013 and the final select list was thereafter prepared. The petitioner has not been able to show that that the respondent nos. 2 to 7 have discriminated against any specific person by rejecting his or her application on the ground of delayed submission of experience certificate. Thus, the said action of acceptance of experience certificate after 30.04.2013 by the respondent nos. 2 to 7 after 30.04.2013, though in aberration of the conditions contained in the employment advertisement published on 09.04.2013, is not found to be arbitrary or violative of Article 14 of the Constitution of India.

19. 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 13. 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 Page No.# 13/13

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 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 respondents no. 8 to 13 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.

20. Therefore, the reasons assigned to assail the present section process and appointment of private respondent nos. 8 to 13 fails and resultantly, the writ petition stands dismissed, leaving the parties to bear their own cost.

21. 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