Ratul Boruah vs State Of Assam And Ors
2021 Latest Caselaw 2579 Gua

                                                               Page No.# 1/11

GAHC010006862011




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

                        Case No. : WP(C)/3524/2011

         RATUL BORUAH
         S/O- LT. SURENDRA NATH BORUAH, R/O- DERGAON TOWN, WARD NO.- 1,
         RAJKHUWA GAON, P.O.- DERGAON, P.S.- DERGAON, DIST.- GOLAGHAT,
         ASSAM- 785614.



         VERSUS

         STATE OF ASSAM and ORS.
         REP. BY THE COMMISSIONER, GOVT. OF ASSAM, HOME AND POLITICAL
         DEPTT., DISPOUR, GUWAHATI.

         2:THE DIRECTOR GENERAL OF POLICE
          ULUBARI
          GHY- 7.

         3:THE INSPECTOR GENERAL OF POLICE
         ADMINISTRATION
          GOVT. OF ASSAM
          ULUBARI
          GHY- 7.

         4:THE ADDL. DIRECTOR GENERAL OF POLICE TAP
          CHAIRMAN
          S.I. AB SELECTION BOARD
          ULUBARI
          GHY- 7.

         5:THE ASSTT. INSPECTOR GENERAL OF POLICE T
         ASSAM
          ULUBARI
          GHY- 7.
                                                                    Page No.# 2/11

            6:PULAKESH SAIKIA


            7:PABITRA BORAH


            8:DIPANKAR BHARALI


            9:PANKAJ KUMAR BHATTACHARIYA


            10:ANIL DEKA


            11:ROBIJIT GOGOI
             SL. NO. 6 TO 11 ARE C/O- DIRECTOR GENERAL OF POLICE
            ASSAM
             ULUBARI
             GHY- 7

Advocate for the Petitioner   : MR.U K DUTTA

Advocate for the Respondent :




             Linked Case : WP(C)/1750/2011

            BITUL NEOG
            S/O LT. SONARAM NEOG
            C/O HEAD QUARTER
            S.B.ORGANISATION
            ASSAM
            KAHILIPARA
            GHY-19.


             VERSUS

            THE STATE OF ASSAM AND ORS
            REP. BY THE COMMISSIONER TO THE GOVT. OF ASSAM
            HOME AND POLITICAL DEPTT
            DISPUR
            GHY.
                                                              Page No.# 3/11


         2:THE DIRECTOR GENERAL OF POLICE

         ULUBARI
         GHY-7
         3:THE INSPECTOR GENERAL OF POLICE

         ADMINISTRATION
         GOVT. OF ASSAM
         ULUBARI
         GHY-7
         4:THE ADDL. DIRECTOR GENERAL OF POLICE TAP

         CHAIRMAN
         S.I. AB SELECTION BOARD
         ULUBARI
         GUWAHATI-7
         5:PULAKESH SAIKIA

         6:PABITRA BORAH

         7:DIPANKAR BHARALI

         8:PANKAJ KR. BHATTACHARYA

         9:SAMARESH BARUAH

         10:HIMANGSHU DEKA
         SL.NO.6 TO 11 ARE C/O DIRECTOR GENERAL OF POLICE
         ASSAM
         ULUBARI
         GUWAHATI-7
         ------------
         Advocate for : MR I HUSSAIN
         Advocate for : GA
         ASSAM appearing for THE STATE OF ASSAM AND ORS



                                BEFORE
                    HONOURABLE MR. JUSTICE NANI TAGIA

                               JUDGMENT

Date : 28.10.2021

Heard Mr. N. Nath, learned counsel for the petitioner in WP(C) Page No.# 4/11

3524/2011, Mr. M.H. Ahmed, learned counsel for the petitioner in WP(C) 1750/2011 and Mr. R. Dhar, learned Additional Senior Govt. Advocate for the State.

2. WP(C) 3524/2011 and WP(C) 1750/2011 have been filed seeking appointment of the petitioners as Sub-Inspector of Police (AB) in pursuant to advertisement dated 17.12.2008 issued by the Additional Director General of Police (TAP) Chairman, SI (AB) Selection Board, inviting applications for filling- up of 115 posts of Sub Inspector of Police (AB), by setting aside the appointment of the candidates, who had secured lesser marks than the petitioners.

3. The brief facts of the case of the petitioners are that an advertisement dated 17.12.2008 was issued by the Additional Director General of Police (TAP) Chairman, SI (AB) Selection Board, inviting applications from the Indian citizens, who are ordinarily a resident of Assam for filling up 115 posts of Sub Inspector of Police (AB). Minimum educational qualification prescribed was a graduate degree from any recognized university, age between 20 and 24 years as on 01.01.2008, physical standard: minimum hight-5'3", chest measurement- 78.5cm (normal) 83.5cm (expanded). The recruitment test was prescribed to consist of 3 segments, written examination, physical test followed by interview. Merit list has been prescribed to be prepared on the basis of aggregate marks secured in the above mentioned tests. It was also prescribed that the candidate shall have to secure qualifying marks in each of the above segments. At the relevant point of time, the petitioner in WP(C) 3524/2011 was working as Constable at Assam Police Radio Organization and the petitioner in WP(C) 1750/2011 was working as Constable at Assam Police Battalion and as the Page No.# 5/11

petitioners were over aged for participation in the selection to be held in terms of advertisement dated 17.12.2008, they had filed WP(C) No.2121/2008 seeking a direction for relaxation of their upper age limit to enable participation in the selection process.

4. In Misc. Case No.1623/2009 filed in WP(C) No.2121/2008 by the petitioners, this Court by order dated 22.06.2009 had allowed participation of the petitioners in the selection process to be held in pursuant to advertisement dated 17.12.2008. The result of the petitioners however was directed not to be declared without further orders of this Court. In pursuant thereto, the petitioners along with others had participated in the selection test held in pursuant to the advertisement dated 17.12.2008. WP(C) No.2121/2008 was disposed of by this Court by order dated 22.04.2010 directing the respondent authorities to consider the case of the petitioners for relaxation of their upper age limit and in the event, the upper age relaxation of the petitioners are considered favorably, to declare the result of the petitioners in the selection held in pursuant to advertisement dated 17.12.2008.

5. The result of the petitioner in WP(C) 3524/2011 was intimated by the Assistant Inspector General of Police(T), Assam, Ulubari by his letter under Memo No.TAP/C/RTI/11/442 dated 27.05.2011, wherein it was indicated that the petitioner had secured 147 marks in written test, 40 marks in physical test and 19 mark in personal interview, the aggregate of which makes it to 206. Likewise, the result of the petitioner in WP(C) 1750/2011 was intimated by the Assistant Inspector General of Police(T), Assam, Ulubari by his letter under Memo No.TAP/C/RTI/420 dated 01.03.2011, wherein it was indicated that the petitioner had secured 144 marks in written test, 47.5 marks in physical test and Page No.# 6/11

23 mark in personal interview, the aggregate of which makes it to 214.5. In addition to the result of the petitioners, select list of 115 candidates was also furnished to the petitioners, which has been annexed as Annexure-7 in WP(C) 3524/2011 and Annexure-5 in WP(C) 1750/2011. The petitioners, however, were informed by an order dated 09.09.2010 passed by the Director General of Police, Assam, which was an order issued pursuant to direction given by this Court in WP(C) No.2121/2008, whereby the petitioners have been informed that the petitioners have not been selected because the petitioners did not qualify in the test.

6. It is the further case of the petitioners that candidates who have secured lesser marks than the petitioners have been selected and appointed by the respondent authorities, some of whom have been made as respondent no.6 to 11 in both the writ petitions. The petitioners therefore contends that since candidates, who have secured lesser marks than the petitioners have been selected and appointed, they are also liable to be appointed in pursuant to the selection held by the advertisement dated 17.12.2008.

7. The State respondents through the respondent no.4 has filed a counter affidavit, where it has been stated that the petitioners have not been selected because the petitioners failed in the personal interview. By referring to a Govt. instruction annexed as Annexure-A to the affidavit-in-opposition filed by the respondent no.4, the respondent authorities contends that qualifying marks in the personal interview is 25 marks out of total 50 marks set out for the personal interview. Both the petitioners having not secured qualifying marks of 25 in the personal interview, the petitioners have been denied selection.

8. Mr. N. Nath, learned counsel for the petitioner in WP(C) Page No.# 7/11

3524/2011 contends that in the advertisement dated 17.12.2008 though it was indicated that the candidate shall have to secure qualifying marks in each of the above segments, yet it was not specified in the said advertisement as to how much was the qualifying marks that candidates would have to secure in each of the segments and therefore, without specifying the qualifying marks in the advertisement dated 17.12.2008, which is the day from which recruitment commences, the respondent authorities cannot prescribe a particular qualifying marks after the commencement of the recruitment process. Accordingly, the prescription of 25 as qualifying marks in the personal interview by referring to the Govt. instruction annexed as Annexure-A to the counter affidavit cannot be accepted and is liable to be held as illegally denied the petitioners' selection, for which respondent authorities are liable to be directed to appoint the petitioners as Sub Inspector of Police (AB).

9. He further contends that the Govt. instruction prescribing the qualifying marks annexed as Annexure-A to the counter affidavit is an inter- departmental communication pertaining to recruitment of 116 numbers of Sub- Inspector (UB) and therefore the said inter-departmental communication cannot be applied in the instant case, which is meant for filling up of 116 numbers of Sub-Inspector (UB) as distinct from Sub Inspector of Police (AB).

10. Mr. M.H. Ahmed, learned counsel for the petitioner in WP(C) 1750/2011 endorses the submissions made by Mr. Nath, learned counsel for the petitioner in WP(C) 3524/2011.

11. Mr. R. Dhar, learned Additional Senior Govt. Advocate on the other hand contends that the petitioners having participated in the selection process without challenging the prescription of qualifying marks in each of the Page No.# 8/11

segments in the advertisement dated 17.12.2008 cannot now turn back and challenge the selection held and the petitioners have rightly been denied selection for failure to secure the qualifying marks in the personal interview as had already been indicated in the advertisement dated 17.12.2008. He therefore submits that these writ petitions are not maintainable and the same ought to be dismissed summarily.

12. On merit, the learned Additional Senior Govt. Advocate has submitted that the Govt. instruction annexed as Annexure-A to the counter affidavit having indicated the necessity to secure minimum qualifying marks of 25 in personal interview, the petitioners have been rightly denied selection and therefore no interference is called for by this Court.

13. Rival contentions advanced by the learned counsel for the contesting parties have received due consideration of the Court and the material available on record have also been perused.

14. On perusal of advertisement dated 17.12.2008 issued by the Additional Director General of Police (TAP) Chairman, SI (AB) Selection Board, inviting applications for filling up 115 post of Sub Inspector of Police (AB), it is noticed that amongst other qualifications required to be possessed by the candidates intending to appear in the selection test to be held for filling up of the post of Sub Inspector of Police (AB), it also provides that the candidates shall have to secure qualifying marks in each of the segments, which inter alia comprises of written examination, physical test and interview. Though the advertisement dated 17.12.2008 specifies securing of qualifying marks by the candidates, but it does not prescribe what would be the qualifying marks in each of the segments for selection of the candidate for the post of Sub Page No.# 9/11

Inspector of Police (AB).

15. On perusal of the Govt. instruction referred to by the respondent authorities in their counter affidavit, which has been annexed as Annexure-A, it is noticed that it is a letter dated 19.11.2007 written by the Deputy Secretary to the Govt. of Assam, Home (A) Department to the Director General & Inspector General of Police, Assam, Ulubari vide Memo No.HMA.540/2007/31 on the subject "Recruitment of 116 nos. of Sub-Inspector (UB), - approval of the draft advertisement". Thus, it is evident from the aforesaid letter dated 19.11.2007 that the subject matter of the correspondence between the Deputy Secretary to the Govt. of Assam, Home (A) Department and the Director General & Inspector General of Police, Assam, Ulubari is with regard to the recruitment of 116 nos. of Sub-Inspector (UB), which is distinct and different from the Sub Inspector of Police (AB). The instant proceeding relates to recruitment of 115 post of Sub Inspector of Police (AB) and therefore, the correspondence dated 19.11.2007 stated by the respondent authorities in their counter affidavit to be a letter or Govt. instruction prescribing 25 marks as qualifying marks in the personal interview, which pertains to Sub Inspector of Police (UB) cannot be applied in the recruitment held for filling up the post of Sub Inspector of Police (AB). Therefore, the order dated 09.09.2010 issued by the Director General of Police, Assam, Guwahati vide Memo No.LC/WP (C) No.2121/2008/2010/142/144 informing the petitioners that they have not qualified the test for failure to secure qualifying marks in the personal interview can only be termed as a criteria of selection prescribed after the selection process has commenced, which is impermissible in view of the law laid down by the Honourable Supreme Court of India in the case of K. Manjusree Vs. State of Andhra Pradesh & Anr., (2008) 3 SCC 512, wherein the Honourable Supreme Court of India has held Page No.# 10/11

that if the selection committee wants to prescribe minimum marks for interview, it should do so before the commencement of selection process.

16. The petitioners herein however have not prayed for quashing of the selection held and select list furnished to the petitioners by the respondent authorities whereby as many as 115 candidates have been selected, which select list has been annexed as Annexure 7 in WP(C) 3524/2011 and annexure 5 in WP(C) 1750/2011. While praying for direction to appoint the petitioners, the petitioners have made 6 (six) selected candidates each in their respective writ petitions as respondent nos.6 to 11 respectively, who had secured lesser marks than the petitioners.

17. On perusal of the select list annexed as Annexure-7 and 5 of WP(C) 3524/2011 and WP(C) 1750/2011 respectively, it is noticed that respondent nos.6, 7, 8, 9, 10 and 11 in WP(C) 3524/2011 have secured 189.5, 191, 193, 197, 203 and 204.5 respectively. Likewise, the respondent nos.6, 7, 8, 9, 10 and 11 in WP(C) 1750/2011 have secured 189.5, 191, 208, 197, 213 and 213.5. Since the petitioner in WP(C) 3524/2011have secured 206 marks and the petitioner in WP(C) 1750/2011 have secured 214.5, the respective respondent nos.6 to 11 in each of the writ petitions appears to have secured lesser marks than the petitioners. Having noticed that each of the private respondents in the two writ petitions have secured lesser marks than the petitioners, this Court having held the denial of the selection of the petitioners for want of securing qualifying marks in personal interview is hit by the principle of law laid down in the case of K. Manjusree (supra), in order to give relief to the petitioners, this Court could have set aside one appointment of the private respondent in each of the writ petitions, who had secured lowest marks, but on perusal of the Page No.# 11/11

select list of 115 candidates, it is found that there are other candidates, who have secured lesser marks than the respondent nos.6 to 11 in each of the writ petitions. Therefore, it would be unfair and unjust to interfere with the selection of the respondent nos.6 to 11 in each of the writ petitions, when there are candidates in the select list on 115 candidates, who scored even lesser marks than the respondent nos.6 to 11 in the two writ petitions. It, therefore, follows that it is the two candidates, who had secured the lowest marks in the select list of 115 candidates, whose selection could have been set aside by this court after the selection concluded pursuant to advertisement dated 17.12.2008 have been found to be hit by the principle of law laid down in the case of K. Manjusree (supra). However, the candidates, who have secured lowest marks in the select list prepared pursuant to selection held in terms of advertisement dated 17.12.2008 being not before this Court, no any relief can be given to the petitioners in the facts and circumstances of the case.

18. Resultantly, these writ petitions stands disposed of with no consequential relief to the petitioners for non-joinder of necessary and proper parties.

JUDGE

Comparing Assistant