WA/102/2021
2021 Latest Caselaw 2478 Gua

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GAHC010306432019




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


                                 WA NO.102 OF 2021
                         1. State of Assam,
                            Represented by its Secretary to the Government of
                            Assam, Environment & Forest Department, Dispur,
                            Guwahati-6.

                         2. The Commissioner & Secretary to the Government of
                            Assam, Environment & Forest Department, Dispur,
                            Guwahati-6.

                         3. The Principal Chief Conservator of Forest & Head of
                            Forest Force, Assam, Aranya Bhawan, Punjabari,
                            Guwahati.

                                         ........Appellants/Writ Respondents

-Versus-

1. Sri Arabinda Rabha, S/o- Sri Uren Chandra Rabha, R/O Viill-Jaruwagaon, P.O.-Kulchi, P.S-Chhaygaon, Dist-Kamrup, Pin-781125.

2. Sri Akshay Boro, S/o- Sri Sukuram Boro R/O- Vill.- Holongjuli P.O. Kulchi P.S. Chaygaon Dist.- Kamrup Pin- 781125.

3. Sri Banajit Rabha S/o- Sri Prabhat Rabha R/O- Vill.- Jaruwagaon P.O. Kulchi P.S. Chaygaon Dist.- Kamrup Pin- 781125.

4. Sri. Chintumani Das S/o- Sri Prasanna Das R/O- Vill.- Gargara P.O. Sikarhati P.S. Palashbari Dist.- Kamrup pin- 781125.

5. Sri. Hamanta Rabha S/o- Mono Rabha R/O- Vill.- Bamuni gaon Dist.- Kamrup Pin- 781141.

6. Smt. Junumani Kalita S/o- Sri Hemanta Kalita R/O- Vill.- Rampur (Kanapara) P.O. Rampur Dist.- Kamrup Pin- 781132.

7. Sri Arup Baishya S/o- Sri Dhaneswar Baishya R/O- Vill.- Dalbari P.O. Dadara Dist.- Kamrup Pin- 781104.

8. Sri. Ashim Haloi S/o- Sri Ananta Haloi R/O- Vill.- Baikunthapur P.O. Basistha Dist.- Kamrup(m) pin- 781029.

9. Sri Ramendra Saikia s/o- Sri Amrit Saikia R/O- Vill.- Rongmahal Athgaon P.O. Rongmahal Dist.- Kamrup Pin- 781030.

10. Sri Govindra Kr. Singh S/o- Sri Ganesh Kr. Singh R/O-

Special Branch Head Quarter Complex D.P.I., Kahilipara, Guwahati- 781019.

11. Sri Mridul Ingzal S/o- Mangalu Ingzal R/O- Vill.-

Japorigog Guwahati- 781132.

12. Sri Sanjib Kalita S/o- Sri Hiren Kalita Vill.- Rampur Dist.- Kamrup(r) Pin- 781132.

13. Sri. Amar Boro S/o- Sri Karneswar Boro R/O- Vill.-

Mizra Khat P.O.Bonda Para Dist.- Kamrup Pin- 781135.

14. Sri Udit Bhaskar Borah S/o- Tapan Kumar Borah R/O-

Quarter no. ASZ-014(A) Assam State Zoo R.G. Baruah Road Guwahati- 781005

........Respondents/Writ petitioners

-BEFORE-

HON'BLE THE CHIEF JUSTICE MR. SUDHANSHU DHULIA HON'BLE MR. JUSTICE SOUMITRA SAIKIA

For the Appellants : Mr. P.N. Goswami, Addl. Advocate General, Assam

For the Respondents : Mr. K. N. Choudhury, Sr. Advocate

Date of Hearing : 22.09.2021.

   Date of Judgment          : 08.10.2021

                     JUDGMENT & ORDER (CAV)


   (Soumitra Saikia, J)

1. This Writ Appeal by the State of Assam is directed

against the Judgment and Order dated 07.05.2019 passed in

WPC No.4532/2016 and WPC 2428/2017 whereby the learned

Single Judge allowed the two writ petitions setting aside the

decision of the State Government to cancel the select list as well

as setting aside the impugned Notice dated 17.08.2016 issued

by the State of Assam expressing their intention to cancel the

select list.

2. The petitioners had appeared for a selection process

conducted by the State of Assam for selection to the post of

Assam Forest Protection Force (AFPF) constables in the Forest

Department, which was advertised on 23.07.2014 and

24.01.2016. The petitioners were a part of the selected

candidates, whose names had figured in the selection list

prepared by the Government. However, by notice dated

17.08.2016 the Government proposed to cancel the select list

on the ground that such list suffered from infirmities of not

following the constitutional provisions relating to reservation

and also that the same is not in conformity with the Judgments

pronounced by the Apex Court regarding the reservation laws

and rules.

3. W.P.(C) No. 4532/2016 was filed assailing the notice

dated 17.08.2016, whereby a select list was proposed to be

cancelled. W.P.(C) 2428/2017 was filed assailing the subsequent

advertisement dated 14.04.2017, whereby 132 post of Assam

Forest Protection Force (AFPF) constables in the Forest

Department, was advertised. The petitioners were apprehensive

that in the event of the subsequent advertisement being

permitted to be proceeded with, the rights of the petitioners

accruing on account of the select list would be frustrated in the

event the court upholds their challenge made to the Notice

dated 17.08.2016 proposing to cancel the selection conducted

earlier in point of time by the State of Assam for 104 posts of

Assam Forest Protection Force (AFPF) constables in the Forest

Department. The petitioners contended that there was no

allegation of illegality or fraudulent act being resorted to by the

petitioners or any other candidates who had appeared before

the selection pursuant to which they were selected and their

names appeared in the selection list.

4. The petitioners contended that the selection process did

not suffer from any serious anomalies or that it had violated any

rule relating to reservation and/or Judgments rendered by the

Apex Court. The only ground of the government proposing to

cancel the selection/select list was on the basis of a

communication dated 04.07.2016 issued by the Principal Chief

Conservator of Forest and Head of Forest Force, (PCCF & HoFF)

to the Principal Secretary, Government of Assam, Environment

and Forest Department, Assam. The said communication was

issued enclosing a note showing certain anomalies, irregularities

and violation of the rules. The appellants as the respondents

duly contested the case by filing their counter affidavits and

enclosing the various communications with respect to the

selection made in the select list. The State of Assam contended

that the selection committees were constituted by the then

Minister of the Forest Department himself. It further contended

that the anomalies pointed out in the note appended to the

letter dated 04.07.2016 are justified and in view of such grave

anomalies referred to in the said note, the State of Assam is

justified in proposing to cancel the select list.

5. The learned Single Judge upon hearing the counsels for

the parties accepted the submissions of the respondents as

petitioners that there was no allegation of any wrong doing or

unfair practice or fraudulent activity committed by any of the

candidates and as such the said selection could not be vitiated

by malpractice. The learned Single Judge held that over

representation and under representation of the districts

mentioned as one of the anomalies is in itself not indicative of

any wrong doing. It was held by the learned Single Judge that

although the anomalies may be suggestive of irregularity or

malpractice that by itself is not sufficient to arrive at a definitive

conclusion that malpractice had occurred. In the absence of any

concrete credible materials to show commission of any mal

practice or fraudulent activities the same cannot be a

foundation for invalidating select list.

6. The learned counsels for the parties have been heard. The

Judgment of the learned Single Judge has been carefully

perused. During the course of the hearing the learned counsel

for the appellants on a pointed querry made by the Court, fairly

submitted that as on date there are no Rules governing the

selection and/or service conditions in respect of the post of

Assam Forest Protection Force (AFPF) constables in the Forest

Department. He also submitted that the selection conducted

earlier was also conducted without framing any rules. We find

that the sole ground agitated by the appellant/State in

challenging the order of the impugned of the learned Single

Judge, is the communication dated 04.07.2016, wherein a note

was appended and the anomalies as found by the Assam Forest

Protection Force were indicated. The anomalies indicated in the

said letter are four fold namely,

i) there was over representation in 11 districts of the State in which a total of 104 candidates were selected and there has been complete non representation in respect of 16 districts in which not a single candidate have been selected,

ii) Although 3518 candidates were called for the interview against 104 post making it a ratio of about 34 candidates per post. However, the number of candidates required to be called for under various categories, like Schedule Caste, Schedule Tribes, Schedule Tribes (Plains) etc. have been grossly violative of the Reservation Rules and opposed to the law laid down by the Apex Court,

iii) Against 50 General category posts, 34 Reserve category candidates were counted against the General quota of seats and

iv) A specific case of a candidate namely, Doli Kalita, (Roll No. 18079) who was shown to be selected although her position in the merit list was shown at serial no. 162. Therefore her selection within 50 vacancies cannot be treated to be regular and proper.

7. It is noticed that in the said note appended to the letter

dated 04.07.2016 there is a reference to the Rules, however, it

is not specific as to which rules have been referred to in order

to arrive at a finding that the selection was violative of the

Rules. As discussed above, it is not disputed by the appellants

that there were no Rules framed for governing the selection and

service conditions of Assam Forest Protection Force constables

when the selection were made nor have any rules being framed

till date governing the service. What is seen from a perusal of

the pleadings on record is that although the anomalies were

brought to the notice of the State vide letter dated 04.07.2016

by the Assam Forest Protection Force, no enquiry was directed

to be conducted by the State in respect of the said anomalies.

It is also seen that there is no reference to any proceedings

initiated against the erring officials who may be responsible for

committing/permitting such anomalies as alleged.

8. In support of his contentions the learned counsel for the

petitioner has relied upon the Judgments of the Apex Court

rendered in Union of India & Others Vs. Tarun K. Singh &

Others reported in (2003) 11 SCC 768 , Union of India & Others

Vs. O. Chakradhar reported in (2002) 3 SCC 146 and Jitendra

Kumar and Others Vs. State of Haryana and another reported in

(2008) 2 SCC 161.

9. In Tarun K. Singh (Supra) the interference by the Apex

Court upheld the cancellation of the selection process by the

Government in view of the enquiry held by the departmental

authorities, which revealed gross irregularities and illegalities in

the process of selection. Similarly, in O. Chakradhar (Supra) the

Apex Court sustained the cancellation of the selection process

pursuant to a report of the CBI which revealed that the whole

selection smacks of malafides and arbitrariness. In Jitendra

Kumar and Others (Supra), the selection process was found to

be tainted upon an enquiry initiated by the Vigilance Bureau. In

the facts of the present case, there was no enquiry conducted

by the department in respect of the illegalities alleged to have

been committed during the selection process. No order or Office

Memorandum or Notification has been placed by the appellants

to show that an enquiry into the alleged illegalities/irregularities

in the selection process is initiated through the department or

through any independent agency. The communication dated

04.07.2016 categorically requested the Government to examine

the issue in its entirety and issue necessary order for further

action to be taken into the matter. Pursuant to the such letter

indicating the anomalies, no enquiry was instituted by the

Government in respect of the said selection process. It is also

not the case of the appellants that the communication dated

04.07.2016 referring to the alleged anomalies stated to have

been committed in the selection process was pursuant to any

such enquiry directed to be conducted by the Government in

respect of the said selection process. The discrepancies alleged

to have been committed during the selection process was

attributed to the then Minister of the Department as well as the

selection committees constituted. It is also seen that there is no

challenge by any unsuccessful candidate alleging corrupt

practice and fraudulent activity resorted to by the selected

candidates including the petitioner in respect of the present

selection process of the select list.

10. The selection process is stated to have been concluded

as far back as February, 2016. There was no enquiry conducted

by the Government to find out the veracity of the irregularities

or illegalities alleged. The letter dated 04.07.2016 which

highlighted the anomalies, cannot be treated to be definitive

finding of fact arrived at by the Government in the absence of

any enquiry instituted by the Government. There is also no

subsequent Communication or any order available on the record

which reveal that the anomalies stated to be present in the

select list cannot be rectified by the authorities without

annulling the entire select list by re-fixing or re-allocation of the

candidates selected in accordance of their merit, category and

status upon due notice to those who are likely to be affected.

No such finding of fact had been arrived at by the State

pursuant to any enquiry conducted by any duly constituted

enquiry Committee by the Government.

11. In the peculiar facts and circumstances of the present

proceedings, in the absence of any specific conclusions arrived

at by the Government through a duly constituted enquiry

Committee and in the absence of any Rules governing the

selection procedure and recruitment to Assam Forest Protection

Force (AFPC), the conclusions arrived at by the learned Single

Judge cannot be faulted with. The learned Single Judge on the

facts of the case has taken possible view permissible in law. We

do not find any ground to come to a conclusion, different than

the one arrived at by the learned Single Judge in the peculiar

facts and circumstances of the case. As such in an intra court

appeal where the learned Single Judge arrives at a possible

conclusion permissible in law, the appellate court will not

interfere unless both sides agree for a fairer approach relief or

are the order of the learned Single Judge is perverse in law.

12. In view of the above discussions, we are not persuaded

to take a contrary view to that taken by the learned Single

Judge in the appeal. The Writ Appeal is, accordingly, dismissed.

13. No order as to cost.

                         JUDGE                            CHIEF JUSTICE


Comparing Assistant