WA/1/2019
2022 Latest Caselaw 1440 Gua

                                                                     Page No.# 1/13

GAHC010148432018




                                          Judgment reserved on :4th March, 2022

                                          Judgment delivered on : 05.05.2022



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



                     WRIT APPEAL NO.01 OF 2019

                     Sri Chittaranjan Nath,
                     Son of-Sri Dhaneswar Nath, resident of Village-Baniapara
                     No.1, P.O-Andherighat, P.O-Khoiraari, District-Udalguri,
                     Assam, Pin-784148 and presently residing at Primus
                     Imaging Pvt. Ltd., G.S. Road, Bhangagarh, Guwahati-
                     781005, District-Kamrup (Metro), Assam.


                                                                ........Appellant


                          -Versus-

                     1. The State of Assam,
                     Represented by the Chief Secretary to the Government
                     of Assam, Dispur, Guwahati-781006.

                     2. The Principal Secretary, Assam Legislative Assembly
                     Secretariat, Dispur, Guwahati-781006.

                     3. The Additional Secretary, Assam Legislative
                     Assembly Secretariat, Dispur, Guwahati-781006.
                                            Page No.# 2/13

4. The Secretary, Government of Assam, Finance
Department, Dispur, Guwahati-781006.

5. The Under Secretary (Estt), Assam Legislative
Assembly Secretariat, Dispur, Guwahati-6.

6.   Anima Gogoi (Biswas).

7.   Tripti Lekha Kalita.

8.   Ranjana Sarkar.

9.   Bidyut Medhi.

10. Dhrubajyoti Haloi.

11. Jagat Haloi.

12. Pranamika Haloi.

13. Kumud Chandra Deka.

(All are Language Reporter Grade-II (Assamese), C/o
Assam Legislative Assembly Secretariat, Dispur,
Guwahati-781006, in the District of Kamrup (Metro),
Assam)




                                   ........Respondents

Page No.# 3/13

-B E F O R E -

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

Advocate for the appellants : Mr. M. Talukdar, Advocate. Advocate for the respondents : Mr. P. Sarmah, Additional Senior Government Advocate, Mr. A.K. Bhuyan, Advocate for R.5 and Mr. R.C. Saikia, Advocate for R.6 to 12.

JUDGMENT AND ORDER (CAV) (Soumitra Saikia, J)

This Writ Appeal arises out of impugned Judgment and Order dated

21.05.2018 passed in WP(C) No. 6590/2018 by the learned Single Judge,

whereby the writ petition filed by the petitioner was dismissed.

2. The writ petitioner who claims to be an unemployed youth came

across the advertisement dated 03.02.2015 published in the Assam

Tribune advertising vacant posts of Assamese Language Reporter Grade-

II in the Assam Legislative Assembly. The said advertisement was for

filling up of 8(eight) numbers of posts of Language Reporter (Assamese)

Grade-II, 2 (two) numbers of post of Bengali Reporter, 1 number of post

of English Reporter, Grade-II and 3(three) numbers of Stenographer Page No.# 4/13

Grade-III (English). Subsequently, corrigendum advertisement was also

issued on 05.02.2015 modifying the age limit only. All other conditions

remained the same.

3. The petitioner is an OBC candidate and being desirous of seeking

employment, applied for the selection in terms of the said advertisement

dated 03.02.2015 read with the corrigendum dated 05.02.2015. The

petitioner applied for the post of Grade-II Language Reporter Assamese.

The petitioner appeared for the interview and according to the petitioner

he faired very well in the interview and the speed test conducted by the

Selection Committee. The recruitment to the said posts are governed by

the Assam Legislative Assembly Secretariat (Recruitment and Conditions

of Service) Rules, 1986. In terms of the said Rules, the Selection

Committee was constituted comprising of :-

     (i) Deputy Speaker          -           Chairman,


     (ii) Secretary              -           One Member


     (iii) Joint Secretary        -          One Member.

The interview was conducted on 29.10.2015. After about 3(three)

months, the results were declared on 03.03.2016. The select list was Page No.# 5/13

hung in the Notice Board indicating only the Roll numbers of the selected

candidates. According to the petitioner, the select list was not published in

the local newspaper, which is a violation of the Rules. The petitioner,

thereafter, filed a Right to Information application on 05.03.2016, asking

for the speed test copies of the selected candidates as well as the

category wise breakup of the posts advertised pertaining to Assamese

Language Reporter Grade-II. As per the reply submitted on 04.04.2016, it

was informed that out of 12(twelve) posts 8(eight) posts were filled up by

Un Reserved category, 2(two) posts by OBC Category and 2(two) posts

by SC category. The Speed test copies of the selected candidates sought

for were refused as the same were information which are considered to

be exempted from disclosure without the consent of the third party,

under the RTI Act. Being aggrieved, the writ petition was filed.

4. The learned counsel appearing for the petitioner submits that it is the

mandate of Rule 16 of the Assam Legislative Assembly Secretariat

(Recruitment and Conditions of Service) Rules, 1986 that the select list

after due approval by the appointing authority shall be published in the

Assam Gazette. The learned counsel for the petitioner submits that there

is no dispute that the said Rule of publication in the Assam Gazette as

required under the Rule had not been complied with. The learned counsel Page No.# 6/13

for the petitioner submits that the selection results were declared on the

eve of the Model Code of Conduct issued by the Election Commission of

India. According to the learned counsel for the petitioner, the Model Code

of Conduct by ECI was issued on 03.03.2016 and the same was made

effective from 7:30 p.m. on the same date. The respondent authorities

hurriedly and surreptitiously issued the impugned order of the

appointments to the selected candidates on the same date i.e.

03.03.2016, which cannot be done as the same is in violation of the

Model Code of Conduct issued by the Election Commission of India. That

apart, it is contended that there was complete nepotism, favoritism

resorted to in the selections besides the same being in conflict with the

Rules. The learned counsel for the petitioner submits that these aspects

were not taken note of by the learned Single Judge. Therefore, the

impugned Judgment needs to be interfered with and set aside and the

appropriate orders be passed interfering with the Selection conducted.

5. Per contra, Mr. A. K. Bhuyan, learned counsel appearing for the

Department disputes the contention made by the learned counsel for the

petitioner. The learned counsel for the respondent Mr. Bhuyan submits

that the selection has been conducted as per the Rules and there is no

infirmity in the process of selection. The petitioner having appeared in the Page No.# 7/13

selection and being an unsuccessful candidate now cannot turn around

and challenge the selection process.

6. Mr. Bhuyan, learned counsel for the Department, however, fairly

submits that as a matter of practice selection lists were not published in

the Assam Gazette but were hung on the Notice Board. Mr. Bhuyan, the

learned counsel appearing for the State also submits that the results were

declared on the evening prior to the imposition of the Code of Conduct by

the Election Commission of India. The results were declared on

03.03.2016 and the Code of Conduct was imposed w.e.f. 04.03.2016. On

that count also there is no infirmity in the selection process and the

appointments made.

7. Mr. Bhuyan submits that the petitioner did not fare well in the

selection process and, therefore, after having appeared in the selection

he cannot now turn around and challenge the selection upon being

declared unsuccessful. The learned counsel appearing for the respondent

submits that the candidates were selected on merit and, therefore, there

is no ground to interfere with the selection process. The learned Single

Judge, therefore, rightly dismissed the writ petition. Accordingly, there

being no infirmity in the order of the learned Single Judge, the present Page No.# 8/13

writ appeal should also be dismissed.

7.1. Mr. R. Saikia, learned counsel appearing for the

respondents/selected candidates submits that the writ petition is not

maintainable for non-joinder of necessary parties. The learned counsel

submits that there were total 12 (twelve) candidates selected and only 8

(eight) has been arrayed as respondents. Even if the two SC category

candidates are not arrayed as because the petitioner is a candidate for

the OBC only then total selected candidates in unreserved and OBC being

ten in number all the selected candidates evidently have not been arrayed

in the present proceedings and therefore, the writ appeal ought to be

dismissed for non-joinder of necessary parties. The learned counsel

adopts the argument of the learned Standing counsel for the Department

and submits that there is no infirmity in the selection process and the

petitioner having appeared in the selection process and being

unsuccessful in the said selection, he cannot now be permitted to turn

around and question the selection process to which he subjected himself

to.

8. We have heard the learned counsels for the parties and have

carefully perused the pleadings on record as well as the order of the Page No.# 9/13

learned Single Judge impugned in the present proceedings. In the writ

petition filed by the petitioner, it is seen that the primary ground for

challenge to the selection made is the non-publication of the results in

the newspaper which is stated to be violative of the Rules. However, a

perusal of the Rules reveal that there is no prescription for publishing the

results in the local news paper, although in terms of Rule 16, the Rules

does prescribe for publication of the results in the Official Gazette upon

due approval by the appointing authority. The same admittedly has not

been done. The other ground of challenge is that the results were

declared in violation of Model Code of Conduct imposed by the Election

Commission of India. A perusal of the communication issued by the

Election Commission of India does not reveal that the Model Code of

Conduct was imposed w.e.f. 03.03.2016 rather it is stated that the same

will be w.e.f. 04.03.2016. There is no dispute that the results were

declared on 03.03.2016 and appointment orders issued on the same

date. As such, it cannot be said that the results were declared in violation

of the Model Code of Conduct issued by the Election Commission of India.

The only question which falls for consideration before this Court is

whether non-publication of the results as mandated under Rule 16 will

invalidate, the results so declared and thereby make the entire selection Page No.# 10/13

invalid.

9. Upon a careful perusal of the averments made in the writ petition by

the petitioner, it is seen that there is no allegation of bias and/or

infraction of any procedures made by the Selection Committee Members.

The allegations or contentions made that the selection is arbitrary,

irregular and nepotism, favouritism, corruption was rampant in the said

selection process is also not supported by any specific averments which

demonstrate such action. On the contrary, from the RTI reply issued to

the petitioner, it is evident that two posts of OBC had been filled up. The

allegation made by the petitioner that he being an OBC candidate, was

overlooked at the time of the selection and no OBC candidate was

selected is incorrect in view of the reply of the RTI received by the

petitioner himself. In the affidavit filed by the Department, there is an

averment made in paragraph-13, that the petitioner was intimated that

he can come and inspect the answer sheets on any working day with

prior intimation, but however, the petitioner never approached the

authority in response to such offer made. In the affidavit-in-reply filed by

the petitioner although the petitioner denied the statement made in

Paragraph- 13 of the Department's affidavit as false, and stated that the

petitioner made several attempts to inspect the answer scripts but could Page No.# 11/13

not inspect and was instead harassed by the actions of the respondents.

However, no details as to when the petitioner went to inspect the answer

scripts or when such attempts of the petitioner were denied by the

respondents, have not been specifically averred by the petitioner.

10. It is well settled that ordinarily the selection process shall not be

interfered with in judicial review at the instance of a candidate who had

appeared in a selection but was declared unsuccessful. However, the

exception to this Rule is when any such selection is conducted de hors

the Rules or in complete contravention to any set norms or parameters as

may be stipulated under the Rules or in the absence of any Rules as

declared by the appointing authority prior to any such selection process

initiated. In the facts of the present case, the allegations of the appellant

are omnibus in nature. There is no challenge to the constitution of the

Selection Committee or in its function as being contrary to the Rules.

There is no challenge to the manner/process by which the selection was

conducted and to which process the petitioner admittedly subjected

himself to. Except for the mandate under Rule 16 for publication of the

select list in the official gazette, no other contravention of the Rules have

been specifically pleaded to by the petitioner. The selected persons have

been in employment since the past six years pursuant to their selection.

Page No.# 12/13

It is also fairly submitted by the writ petitioner that there was some delay

in approaching this Court because the petitioner was in the process of

acquiring information. The petitioner also could not explain specifically as

to why he could not accept the offer of the respondents to examine the

answer scripts in the office with prior intimation to the respondents.

11. Under the circumstances, there is no material to hold that the

selection process conducted was in conflict with the Rules or that there

was gross irregularity or illegality resorted to by the authorities while

conducting the selection process. Unless this Court comes to a definite

conclusion that there was illegality and irregularity in conducting the

selection process, no useful purpose will be served by interfering with the

selection merely on the ground that the select list was not published in

the official gazette as required under Rule- 16 of the Rules. In the

absence of specific details/instances which are required to arrive at a

finding that the selection process was conducted in violation of the Rules

or irregularity or illegality had crept in, a writ Court will decline to

interfere with selection made more particularly when the selected

candidates have been appointed and are rendering their services for the

past six years.

Page No.# 13/13

12. We are, therefore, not persuaded to accept the contentions of the

appellant to interfere with the findings of the learned Single Judge.

13. The Writ Appeal is devoid of merit and, therefore, is dismissed.

14. No order as to cost.

                      JUDGE                 CHIEF JUSTICE



Comparing Assistant