Joyita Das vs The State Of Assam And 6 Ors
2022 Latest Caselaw 4796 Gua

                                                              Page No.# 1/11

GAHC010077432021




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

                          Case No. : WA/144/2021

         JOYITA DAS
         W/O- SRI MANOJ KUMAR ROY, BHASKAR NAGAR, JYOTIPATH, 3RD BYE
         LANE, H/NO. 28(A), P.O. BINOVANAGAR, P.S. FATASHIL AMBARI,
         GUWAHATI-18, KAMRUP(M), ASSAM


         VERSUS

         THE STATE OF ASSAM AND 6 ORS.
         REP. BY THE PRINCIPAL SECRETARY TO THE GOVT. OF ASSAM,
         MINORITIES WELFARE AND DEVELOPMENT DEPARTMENT, DISPUR,
         GUWAHATI-6.

         2:THE CHAIRMAN
         THE ASSAM MINORITIES DEVELOPMENT BOARD
          R.G.B.
          ROAD
          GANESHGURI
          GUWAHATI-6.

         3:THE DIRECTOR

          THE ASSAM MINORITIES DEVELOPMENT BOARD
          R.G.B.
          ROAD
          GANESHGURI
          GUWAHATI-6.

         4:SURAIYA AHMED
          D/O- LATE ALLAUDDIN AHMED
          R/O- T.R. PHOOKAN ROAD
          NEAR PUCCA MASJID
          MACHKHOWA
          DIST.- KAMRUP(M)
         ASSAM
                                               Page No.# 2/11

             GUWAHATI- 781009.

            5:ABU SHAHID AI-IMAM
             S/O- LATE SHANTESH ALI
             R/O- VILL.- ALOPATI
             P.O. AND P.S. ALOPATI CHAR
             DIST.- BARPETA
            ASSAM
             PIN- 781127.

            6:TUHIN SEN
             S/O- LATE TAPAN SEN
             C/O- S.B. PALIT
             H/NO. 4
             KAHILIPARA COLONY BAZAR
             P.O. BINOVANAGAR
             GUWAHATI-18
             DIST.- KAMRUP(M)
            ASSAM.

            7:DARIN HAZARIKA
             D/O- ANIL HAZARIKA
             R/O- H/NO. 164
             BATAHGHULI TINIALI
             GUWAHATI
             P.O. PANJABARI
             DIST.- KAMRUP(M)
            ASSAM
             PIN- 781037.

            8:MD. ABDUR RASHID MANDAL
             S/O LATE SANTESH ALI MANDAL
             (MLA
             38-GOALPARA WEST CONSTITUENCY)
            VILL.- DHUMBANDHA CHAKLA
             P.O.- BASHBARI
             P.S.- BAGUN
             DISTICT - GOALPARA
            ASSAM
             PIN-783 129

Advocate for the Petitioner   : MR M K ROY

Advocate for the Respondent : SC,AMDB

Page No.# 3/11

BEFORE HONOURABLE THE CHIEF JUSTICE HONOURABLE MR. JUSTICE SOUMITRA SAIKIA

For the Appellant : Mr. M. K. Roy, Adv.

               For the Respondents       : Mr. D. Nath, Sr. Gov. Adv.
                                           (For Respondent No.1, 2 & 3)
                                         : Mr. M. Shelim, Adv.
                                          (For Respondent No. 4 to 7)
                                          : Mr. T. Gogoi, Adv.
                                           (For Respondent No. 8)


               Date of Hearing            : 14.11.2022
               Date of Judgment & Order : 06.12.2022


                                     JUDGMENT & ORDER


(Soumitra Saikia, J)

Heard Mr. M. K. Roy, learned counsel for the appellant. Also heard Mr. Mr. D. Nath, learned senior Government Advocate for the Respondent No.1, 2 & 3; Mr. M. Shelim, learned counsel for the Respondent No. 4 to 7 and Mr. T. Gogoi, learned counsel for the respondent No. 8.

2. The respondent Nos. 4 to 7 are represented by their counsels and had filed their affidavit contesting the contention made by the appellant.

3. The appellant is aggrieved by the order dated 24.03.2021 passed in WP(C) No. 2090/2016 whereby her challenge to the selection and appointments of the private respondents No. 4 to 7 to the post of Lower Division Assistant (LDA) in the Office of Director, Assam Minorities Development Board was rejected by the learned Single Judge and the writ petition was dismissed. The present writ Page No.# 4/11

appeal is preferred by the writ petitioner No. 1 in WP(C) No. 2215/2016. The writ petitioner No. 2 has not filed any appeal.

4. The essential facts which are noticed from the pleadings are that the appellant was working as an LDA on a fixed pay basis in the Assam Minorities Development Board since 01.05.2010. Initially she was paid salary of Rs.4,000/- per month which was subsequently enhanced to Rs.5,500/- in the month of April, 2011. The appellant claimed to have been discharging her duty regularly and continuously since then. Certificate in respect of her service continuity was also issued by the Director of the Board.

5. By an advertisement dated 18.09.2015 issued by the Director, Assam Minorities Development Board, namely, the respondent No. 3 herein invited applications for filling up vacancies in various posts including the posts of LDA. The appellant and another challenged by way of WP(C) No. 6678/2015, the said advertisement praying for quashing of that portion of the impugned advertisement dated 18.09.2015 insofar as it relates to the appointment to the post of Junior Assistant (LDA). They had also prayed for regularization of their services in the post of LDA. This Court by an order dated 04.11.2015 passed in WP(C) No. 6678/2015 while issuing Notice directed the respondent authorities to permit the writ petitioners in the said writ petition including the appellant herein, to appear in the selection test and give weightage to their past experiences. The result of the selection process was however directed not to be declared without the leave of this Court. As permitted by this Court, the writ petitioners in WP(C) No. 6678/2015, where the appellant was the petitioner No. 1, appeared in the written test which was held on 20.12.2015. Subsequently, upon leave being granted by this Court vide order dated 17.02.2016 passed in I.A. No. 605/2016, the list of selected candidates for interview was published in Page No.# 5/11

the Assam Tribune fixing 26.02.2016 as a date for interview. The appellant however failed to clear the written test and was not selected for the interview. Although the appellant as the petitioner preferred I.A. No. 868/2016 challenging the impugned result of the written test, however in the meanwhile the viva voce test was completed and the private respondents Nos. 4, 5, 6 & 7 were appointed in the posts of Junior Assistant (earlier known as LDA) and who have since joined their services.

6. Being aggrieved, the WP(C) No. 2215/2016 was filed challenging the appointments of the private respondents No. 4, 5, 6 & 7 with the following prayers:-

"In the premises aforesaid, it is therefore, most respectfully prayed that Your Lordships may be graciously pleased to admit this petition, call for the records, issue a Rule, calling upon the respondents to show cause as to why a writ in the nature of Certiorari should not be issued setting aside and quashing the entire selection process including the appointments of the respondent nos. 4 to 7 and or as to why a writ of Mandamus should not be issued directing the respondents to regularize of the services of the writ petitioners, as LDAs in the office of the respondent no.3, i.e. the Assam Minorities Development Board, and, or direct an enquiry by an independent body in respect of entire process of selection for the post of L.D.A. and for forensic evaluation, and or as to why such further or other Writ, Order or Direction of like nature should not be issued granting appropriate, adequate and complete relief to the writ petitioner; And, upon cause or causes being shown, and upon hearing the parties, Your Lordships may be pleased to make the Rule absolute, and/or pass such further or other order /orders as Your Lordships may deem fit and proper.

-AND-

Pending disposal of the Rule Your Lordships may be pleased to direct the respondents to allow the petitioners to continue in their services.

-AND Page No.# 6/11

Pass order / orders staying / keeping in abeyance the appointments of the respondent nos. 4 to 7.

-AND -

Pass order for an enquiry by an independent body in respect of entire process of selection for the post of L.D.A. and for forensic evaluation."

7. The private respondents contested the case by filing their pleadings and disputing the contentions raised by the writ petitioner. The learned Single Judge after considering the matter in its entirety dismissed the writ petition.

8. Considering certain allegations which are made against the then Chairman, Assam Minorities Development Board one- Abdur Rashid Mandal in the present writ appeals, this Court vide order dated 15.11.2021 directed impleadment of Abdur Rashid Mandal as party respondent in the present appeal. Pursuant thereto notices were issued on Mr. Abdur Rashid Mandal and as per the endorsement dated 03.02.2022 made by the Registry in the case records it was shown that the said Abdur Rashid Mandal who was impleaded as respondent No. 8 in the present proceedings was duly represented by the counsels and who have entered appearance by filing necessary power.

9. Before this Court, learned counsel appearing for the appellant strongly urged that the selection and appointment of the private respondents in the post of LDA pursuant to the advertisement dated 18.09.2015 is totally contrary to the procedure prescribed by the Rules. The learned counsel appearing for the appellant submits that the Selection Committee constituted for conducting the selection was not in terms of the provisions of the Rule 5(1)(a)(i) of the Assam Public Services (Direct Recruitment to Class-III and Class-IV Posts) Rules, 1997. The learned counsel for the appellant strenuously urged that in terms of the said provisions of the Rule, the appointing authority was required to be the Page No.# 7/11

Chairman as per the Rule 5(1)(a)(i) of the said Rules. But, one of the candidates happened to be the brother of the Chairman of the Board. Similarly, a cousin sister of the Director of the Board was also a candidate. As such, it is submitted that the entire selection process was a farce and that the sole motive was to facilitate appointments of the relatives of the members of the selection Board. It is contended that such process is unacceptable as per provisions of law and is therefore illegal. As the selection and subsequent appointment of the private respondent Nos. 4 to 7 were by illegal means and as the entire selection smacks with illegality and nepotism. The selection and appointment of the private respondents No. 4 to 7 ought to have been interfered with and set aside by the learned Single Judge. As such, the impugned Judgment and Order of the learned Single Judge being bad in law should be set aside. It is submitted that there was also a public protest in respect of such illegal selection which was held on 26.02.2016 which was also reported in the Assamese Newspaper on 27.02.2016. The Judgment of Apex Court rendered in Secretary, State of Karnataka Ors. -Vs- Uma Devi and Ors. reported in (2006) 4 SCC 1 and Dr. D. C. Wadhwa and Ors. -Vs- State of Bihar reported in (1987) 1 SCC 378 was relied by the learned counsel for the petitioner to contend that the State authorizes could not have violated the Rules framed under Article 309 of the Constitution of India and non-compliance of the procedure laid down will make the entire selection process illegal and non est in law. It is contended that the respondents No. 2, 3 and 8 were Members of the Selection Committee which undertook the selection of private respondents No. 4 to 7.

10. Per contra, the Government Advocate appearing for the State submitted that the appellant could not have challenged the selection process after having appeared and failed to clear the written examination. It was also contended that Page No.# 8/11

the prayers in the writ petition essentially was for regularization of the services of the petitioner/appellant. It is further urged by the Government counsel that the petitioner/appellant was not engaged by means of any regular process and which is evident from the documents enclosed to the writ petition. No formal order was issued in favour of the writ petitioner. The certificate issued by the respondent No. 3 on which the appellant was relying to contend that she was in continuous service in the post on LDA, is not reliable as the same does not contain any date. It is submitted that the respondent No. 2, namely, the Chairman of the Assam Minorities Development Board was a Member in respect of the Selection process for the process server and he was not a Member of the Selection Committee for selection of Junior Assistant (LDA).

11. Mr. T. Gogoi, learned counsel appearing for the respondent No. 8 disputes the contentions made by the appellant and submits that the allegation that any of the private respondents are relatives of the then Chairman, namely, respondent No. 8 is wholly incorrect and same is not substantiated by any material presented before the learned Single Judge and before this Court. The learned counsel for the respondent No. 8 submits that the appellant being a contender for post and having failed to clear the written test, he cannot be now permitted to turn around and challenge the selection process.

12. The learned counsels for the parties have been heard. Pleadings on record have been duly perused. The Judgment under appeal has also been carefully perused.

13. It is seen that the writ petition has been filed by the appellant as the writ petitioner No. 1 with two fold prayers. The appellant/writ petitioner No. 1 prays for setting aside of the entire selection process and appointments of private respondents No. 4 to 7. The further prayer is for a direction to the official Page No.# 9/11

respondents to regularize their services as LDAs in the Office of the Director, Assam Minorities Development Board and to direct an enquiry by an Independent Body in respect of the entire selection process for the post of LDAs and for Forensic Evalution.

14. In the pleadings before the learned Single Judge as well as before this Court, the appellant has not challenged the written test conducted by the authorities during the process of selection and which they had failed to qualify. No ground has been urged to contend that the said written test was not conducted as per the mandate of the Rules or that they are aggrieved by the results of the written test on the ground that it fails adhere to the prescribed norms and procedures as per the Rules. The entire challenge is in respect of the interview which was conducted pursuant to the written test / written examination and which admittedly the appellant failed to qualify for having failed to clear the written test. It is not the case of the appellant that the selection was only by way of oral interview. There is no dispute that the selection process comprised of a written test followed by an oral interview. Since the appellant admittedly was not declared successful in the written test, there was no question of the appellant being called for oral interview. Even assuming that there was some infraction of the Rules and Procedure insofar as the oral interview was concerned, it could at best have been assailed by a candidate who had successfully cleared the written test and had also appeared in the oral interview. Insofar as the present appellant is concerned, the challenge is made in respect of the selection and appointment to the post of LDA. There is also no dispute that insofar as the posts of LDAs are concerned, the selection process comprised of a written test followed by an interview. As is evident from the pleadings as well as by the findings recorded by the learned Single Judge that Page No.# 10/11

insofar as the selection for the post of LDA is concerned, a written test was held and the appellant could not successfully clear the said written test. Although, the appellant has contended that the selection and appointment to the posts of LDAs which was conducted by the respondent authorities is violative of Rule- 5 of the Assam Public Services (Direct Recruitment to Class-III and Class-IV Posts) Rules, 1997, no specific averment is made as to how and in what manner the Rules have been violated by the respondent authorities while conducting the selection process including the oral interview. There is no specific averment as to how the respondent authorities had violated the prescription of Rule- 5 of the Rules of 1997 while conducting the selection process. However, insofar as the appellant is concerned, as discussed hereinabove since the appellant could not successfully clear the written test she was not called for the interview. By the advertisement dated 18.09.2015, it was clearly mentioned that for the posts of Senior Assistant (UDA) and Junior Assistant (LDA), candidates with valid application will be called for to appear in written test and the candidates who are found to be qualified in the written test will be called for viva voce and computer test. It is not disputed that the appellant had applied for the post of LDA and therefore, was required to appear in written test followed by interview and computer test. Such requirement is also as per prescription of Rule- 5(3) of the Assam Public Services (Direct Recruitment to Class-III and Class-IV Posts) Rules, 1997 under which the Administrative Department is competent to issue instructions regarding minimum qualification, minimum essential experience, whether written test is to be conducted, whether typing test is to be conducted and whether interview is required to be held. There being no challenge to the advertisement dated 18.09.2015 issued by the Department, a mere reference to Rule- 5 of the Rules of 1997 being alleged to have been violated without specific instances and averments made, cannot be accepted in view of the facts involved Page No.# 11/11

in the present proceedings. Such omnibus contentions cannot be accepted. On the facts of this case it cannot be held that there was any violation of Rule- 5 of 1997 Rules.

15. The other prayer of the appellant that her services in the post of LDA be regularized, also cannot be accepted in view of the fact that there is no appointment order shown by the appellant whereby she was appointed to the post of LDA pursuant to any selection process conducted. The only document produced in support of the contentions by the appellant is a certificate issued by the Director, Assam Minorities Development Board stating that she is in continuous service. The correctness of the certificate has also been questioned by the learned Government counsel as well as by the learned counsel appearing for the private respondents. That being the position which is evident from the record, the prayers made by the appellant cannot be granted. The learned Single Judge upon due consideration of all the pleadings on record had correctly rejected the prayers made in the writ petition and had dismissed the writ petition accordingly.

16. We are in agreement with the reasons and the conclusions arrived at by the learned Single Judge. The impugned order of the learned Single Judge does not call for any interference in an intra Court appeal.

17. The Writ Appeal is, accordingly, dismissed. No order as to cost.

                                    JUDGE                    CHIEF JUSTICE


Comparing Assistant