Gopal Krishna Saikia vs The Assam Power Distribution ...
2022 Latest Caselaw 4797 Gua

                                                                   Page No.# 1/6

GAHC010225852019




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

                         Case No. : WP(C)/7707/2019

         GOPAL KRISHNA SAIKIA
         S/O- SATYANARAYAN SAIKIA, R/O- ATHABARI, KHUWANG, DIST-
         SIVASAGAR, ASSAM



         VERSUS

         THE ASSAM POWER DISTRIBUTION COMPANY LTD. (APDCL) AND 7 ORS
         REP. BY THE MANAGING DIRECTOR, APDCL, BIJULEE BHAWAN, PALTAN
         BAZAR, GUWAHATI- 781001

         2:THE CHIEF CENTRAL MANAGER (HH)
         APDCL
          BIJULEE BHAWAN
          PALTAN BAZAR
          GUWAHATI- 781001

         3:THE GENERAL MANAGER
          UPPER ASSAM ZONE
         APDCL
          NA ALI
          JORHAT
          DIST- JORHAT

         4:THE DEPUTY GENERAL MANAGER
          SIVASAGAR
          ELECTRICAL CIRCLE
         APDCL
          SIVASAGAR

         5:ROBIN KONWAR
          S/O- LATE RAMESWAR KONWAR
          DHANDHULI GARPHOLIAGAON
                                                                      Page No.# 2/6

             PIN- 785686
             P.O- TENGAPUKHURI
             SIVASAGAR

            6:GOPAL KHANIKAR
             S/O- BANSHI KHANIKAR
             R/O- KHANIKAR GAON
             P.O- GARGAON
             SIVASAGAR
             PIN- 785685

            7:DIPAK BURAGOHAIN
             S/O- LATE GHANAKANTA BURAGOHAIN
             R/O- VILL AND P.O- GARGAON
             SIVASAGAR
             PIN- 785685

            8:BHASKAR JYOTI BORAH
             S/O- GURUDHAR BORAH
             R/O- HARIPURA ALI GAON
             DIST- SIVASAGA

Advocate for the Petitioner   : MR. R P HAZARIKA

Advocate for the Respondent : SC, APDCL

BEFORE HONOURABLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA

JUDGMENT & ORDER (ORAL)

06.12.2022

Heard Mr. RP Hazarika, learned counsel for the petitioner. Also heard Mr. B Choudhury, learned counsel for the authorities under the APDCL.

2. The petitioner participated in a selection process for filing up of 1064 Page No.# 3/6

number of posts of Sahayak under the respondent APDCL as per the advertisement issued by the Chief General Manager, APDCL bearing Reference No.EA/2013/46. Upon being unsuccessful in the selection process, the petitioner instituted WP(C)No.4002/2015 along with 31 other unsuccessful candidates which resulted in the order dated 16.09.2016 by which it was held that the petition became infructuous and accordingly, the said writ petition was closed as infructuous. Being aggrieved, the present petitioner as petitioner No.29 instituted Review Pet.No.162/2016. The review petition was given a final consideration by the order dated 02.08.2018 wherein in paragraph 11, it was provided as extracted:

"11. Accordingly, in view of the above reasons, the impugned order

dated 16.09.2016, passed in WP(C) 4002/2015, is recalled, so far as it relates to the review petitioners and the review petitioners are given the liberty to make a challenge with regard to why they have not been given any marks under the head "experience", while marks under the same head had been given to the selected candidates."

3. A reading of the provisions of the order dated 02.08.2018 in Review Pet.No.162/2016 makes it discernible that the review petitioners were given the liberty to make a challenge with regard to as to why they were not given any marks under the head 'experience', whereas marks were given to the other selected candidates. Accordingly, as per the liberty granted, this writ petition is instituted and the core question raised is that in the select list prepared by the respondent APDCL pursuant to the said advertisement, the petitioner Gopal Krishna Saikia was given '0' marks under the heading Educational/Experience Page No.# 4/6

marks. The petitioner refers to an experience certificate which is annexed as Annexure-3 page 25 to the writ petition, wherein it is certified that the petitioner Gopal Krishna Saikia was employed in a firm namely ELMECH INDIA for the past three years, wherein it is stated that ELMECH INDIA is a firm dealing with Electrical and Mechanical Engineers.

4. Mr. B Choudhury, learned standing counsel APDCL refers to the Annexure-1 advertisement at page 40 to the writ petition at Clause (2)(i) wherein it is provided that for experience the temporary workers engaged in any power utility for performing the job of Sahayak continuously for more than 3(three) years would also be counted for experience.

5. Mr. B Choudhury, learned standing counsel further contends that the ELMECH INDIA is not a power utility organisation as provided under Clause (2)

(i) of the Annexure-1 advertisement, and, therefore, even if the petitioner has any experience of working with ELMECH INDIA, the same would not be accepted towards experience as it is not a power utility and hence he was given '0'.

6. In order to appreciate the contention of the learned standing counsel, APDCL, we are required to examine as to what is the meaning of the expression 'power utility'. No specific meaning of the expression 'power utility' is provided to the Court other than by referring to the agreement between the Union of India and the International Bank for Reconstruction and Development wherein the expression 'power utility' has been given the meaning to be a State Page No.# 5/6

Electricity Board, a Government Undertaking, or a Government Company engaged in the business of power generation and or transmission under the Electricity (Supply) Act, 1948.

7. The aforesaid definition of power utility was for a specific purpose for that agreement and no material is produced as to what would be the meaning of the expression 'power utility' in general perception or that a meaning was adopted by the respondents APDCL prior to the Annexure-1 advertisement. It being so, we have to accept the situation that the expression 'power utility' does not contain a specific meaning of its own for the purpose of the Annexure-1 advertisement, and, therefore, once the selection process has started a discretion would not remain with the authorities to give any kind of meaning to it. If a meaning to the expression 'power utility' is allowed to be given after the selection process has started, such procedure in our view would be unsustainable in law and would be arbitrary. Accordingly, the petitioner having worked in the firm ELMECH INDIA and having produced a certificate the respondents to look into the said certificate and have their own assessment as to what should be the marks to be given to the petitioner under the heading Educational/Experience marks. The marks that may be given may be acted upon for the purpose of selection of the petitioner pursuant to the Annexure-1 advertisement and accordingly a reasoned order be passed. The reasoned order be passed within one month from the date of receipt of a certified copy of this order. In doing so, it would always be open for the respondents in the APDCL to form their own views on the credibility and the quantitative evaluation that may be required to be given to such certificate.

Page No.# 6/6

8. In the event, the marks given to the petitioner under the heading Educational/Experience marks results in the petitioner being selected on merit, it may be acted upon accordingly and on the other hand, if the petitioner is not selected upon assessment of the marks under the heading Educational/Experience marks, he may be informed about the outcome.

9. Writ petition stands disposed of in the above terms.

JUDGE

Comparing Assistant