Gauhati High Court

Saif Uddin Khan vs The Union Of India And 9 Ors on 23 November, 2022

Page No.# 1/11

GAHC010229012022

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

Case No. : I.A.(Civil)/3352/2022

SAIF UDDIN KHAN
S/O LATE ABDUL GONI KHAN, VILLAGE SARIATPUR, PO SHOWPUR, PS
BAGHBAR NOW KALGACHIA, DIST BARPETA ASSAM 781319

VERSUS

THE UNION OF INDIA AND 9 ORS.
REPRESENTED BY THE SECRETARY TO THE GOVERNMENT OF INDIA,
MINISTRY OF PETROLEUM AND NATURAL GAS, SHASTRI BHAWAN, NEW
DELHI 11001

2:THE GENERAL MANAGER (HR)
ONGC
DDU BHAVAN
5 NELSON MANDEL MARG
2ND FLOOR VASANT KUNJ
NEW DELHI

3:THE OIL AND NATURAL GAS CORPORATION LIMITED
ASSAM ASSET. NAZIRA REPRESENTED BY THE DEPUTY GENERAL
MANAGER (HR) ONGC ASSAM ASSET. NAZIRA SIVASAGAR
785685

4:THE DEPUTY GENERAL MANAGER (HR) i/c HR/ER
ONGC
ASSAM ASSET
NAZIRA 785685

5:THE DEPUTY COMMISSIONER
BARPETA
DISTRICT BARPETA ASSAM
Page No.# 2/11

6:THE ADDITIONAL DEPUTY COMMISSIONER
BARPETA
DISTRICT BARPETA ASSAM

7:KRISHAJIT PHUKON
S/O- SRI DIMBESWAR PHUKON
PERMANENT R/O- CHANGMAI GAON
MOUZA- SIMLUGURI
P.S. TEOK
P.O.- KALIAPANI
DIST. JORHAT
ASSAM
PRESENTLY RESIDING AT NIHAL PATH
OPPOSITE ANAMIKA DEALER
NEAR LIC OFFICE
GAR ALI RAJABARI
JORHAT- 785014
PRESENT OFFICE- SHRI KRISHAJIT PHUKON
CPF NO. 138007
ONGC CINNAMARA COMPLEX
BUILDING- NAMBAR-2
JORHAT
ASSAM- 785704
BEARING REGD. NO. 180301001397.

8:ASHIM GOSWAMI

JUNIOR ENGINEERING ASSISTANT (ELECTRONICS)
CPF NO. 138488
O/O ASSAM ASSET
INFOCOM FEIELD COMMUNICATION
ONGC
NAZIRA
DIST- SIVASAGAR
ASSAM
PIN-785685.

9:SADIQUL RAHMAN
.JUNIOR ENGINEERING ASSISTANT (ELECTRONICS)
CPF NO.138464
JORHAT ASSET
INFOCOM FIELD COMMUNICATION
LUIT BHAVAN
ONGC
CINNAMARA COMPLEX
P.O. CINNAMARA
DIST- JORHAT
ASSAM
Page No.# 3/11

PIN-785704.

10:SAUKAT ALI

JUNIOR ENGINEERING ASSISTANT (ELECTRONICS)
REGISTRATION NO.180301045679
O/O ASSAM ASSET
INFOCOM FIELD COMMUNICATION
ONGC
NAZIRA
DIST- SIVASAGAR
ASSAM
PIN-785685

Advocate for the Petitioner : MR H R A CHOUDHURY

Advocate for the Respondent : ASSTT.S.G.I.

Linked Case : WP(C)/3201/2020

SAIF UDDIN KHAN
S/O LATE ABDUL GONI KHAN
VILLAGE SARIATPUR
PO SHOWPUR
PS BAGHBAR NOW KALGACHIA
DIST BARPETA ASSAM 781319

VERSUS

THE UNION OF INDIA AND 9 ORS.
REPRESENTED BY THE SECRETARY TO THE GOVERNMENT OF INDIA
MINISTRY OF PETROLEUM AND NATURAL GAS
SHASTRI BHAWAN
NEW DELHI 11001

2:THE GENERAL MANAGER (HR)
ONGC
DDU BHAVAN
5 NELSON MANDEL MARG
2ND FLOOR VASANT KUNJ
NEW DELHI
3:THE OIL AND NATURAL GAS CORPORATION LIMITED
Page No.# 4/11

ASSAM ASSET. NAZIRA REPRESENTED BY THE DEPUTY GENERAL
MANAGER (HR) ONGC ASSAM ASSET. NAZIRA SIVASAGAR
785685
4:THE DEPUTY GENERAL MANAGER (HR) i/c HR/ER
ONGC
ASSAM ASSET
NAZIRA 785685
5:THE DEPUTY COMMISSIONER
BARPETA
DISTRICT BARPETA ASSAM
6:THE ADDITIONAL DEPUTY COMMISSIONER
BARPETA
DISTRICT BARPETA ASSAM
7:KRISHAJIT PHUKON
S/O- SRI DIMBESWAR PHUKON
PERMANENT R/O- CHANGMAI GAON
MOUZA- SIMLUGURI
P.S. TEOK
P.O.- KALIAPANI
DIST. JORHAT
ASSAM
PRESENTLY RESIDING AT NIHAL PATH
OPPOSITE ANAMIKA DEALER
NEAR LIC OFFICE
GAR ALI RAJABARI
JORHAT- 785014
PRESENT OFFICE- SHRI KRISHAJIT PHUKON
CPF NO. 138007
ONGC CINNAMARA COMPLEX
BUILDING- NAMBAR-2
JORHAT
ASSAM- 785704
BEARING REGD. NO. 180301001397.
8:Ashim Goswami

Junior Engineering Assistant (Electronics)
CPF No. 138488
O/o Assam Asset
Infocom Feield Communication
ONGC
Nazira
Dist- Sivasagar
Assam
Pin-785685.
9:Sadiqul Rahman
.Junior Engineering Assistant (Electronics)
CPF No.138464
Jorhat Asset
Page No.# 5/11

Infocom Field Communication
Luit Bhavan
ONGC
Cinnamara Complex
P.O. Cinnamara
Dist- Jorhat
Assam
Pin-785704.
10:Saukat Ali
Junior Engineering Assistant (Electronics)
Registration No.180301045679
O/o Assam Asset
Infocom Field Communication
ONGC
Nazira
Dist- Sivasagar
Assam
Pin-785685.
------------
Advocate for : MR H R A CHOUDHURY
Advocate for : ASSTT.S.G.I. appearing for THE UNION OF INDIA AND 9 ORS.

BEFORE
HONOURABLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA

ORDER

Date : 23-11-2022

Heard Mr. F.U. Barbhuiya, learned counsel for the applicant, Mr. S.K. Medhi, learned counsel for the respondent No. 1, Mr. G.N. Sahewalla, learned senior counsel for the respondents No. 2, 3 and 4, Mr. C.S. Hazarika, learned Junior Government Advocate for the respondents No. 5 and 6, Mr. H.K. Sarma, learned counsel for the respondent No. 7, Mr. A. Dey, learned counsel for the respondent No. 8 and Mr. J. Ahmed, learned counsel for the respondent No. 10.

2. By this interlocutory application, the applicant seeks for certain amendments to be incorporated in WP(C) No. 3201/2020 which are described in paragraphs 6 to 17 of the interlocutory application. Paragraphs 6 to 17 of the interlocutory application are extracted as below:

Page No.# 6/11

6. That the applicant begs to state that in the Cause Title at Page 2 after "Appointment of the Respondent No. 7 as Assistant Technician (Electronics) in terms of selection made by the Respondent No. 4 vide select list dated 16.07.2020 against Adv. No. 01/2019 for non-Executives) in ONGC Assam Asset, Nazira." the following may be inserted-

"-AND-

IN THE MATTER OF:-

Impugned Selection and appointment of Respondent Nos. 7, 8, 9 and 10 vide Appointment Letters dated 16.3.2021 and 06.08.2020 issued by Respondent authority and cancelling the Selection and appointment of the petitioner in the name of PRC."

7. That the applicant begs to state that in the Cause Title at Page-2 bottom that " Arbitrary selection of Respondent No. 7 without considering the required valid documents (PRC) of the petitioner thereby depriving him of his legitimate right/claim for appointment as Assistant Technician (Electronics) against Adv. No. 01/2019 in ONGC, Assam Asset, Nazira" may be substituted and inserted as follows-

-AND-

IN THE MATTER OF:-

Illegal and arbitrary action of Respondent authority

without considering the required valid documents (PRC) of the petitioner thereby depriving him of his legitimate right/claim for appointment as Assistant Technician (Electronics) against Adv. No. 01/2019 in ONGC, Assam Asset, Nazira"

8. That the applicant begs to state that in the Cause Title after the Respondent No. 10 the following Respondent may be inserted as Respondent No. 11 as follows:

11. Kalyanjee Barman Junior Engineering Assistant (Electronics) Registration No. 180301013465 ONGC, Assam Assets Nazira, Logging Services Department P.O.-Nazira, District-Sivasagar, Assam Pin-785685.

9. That the applicant begs to state that the paragraph 9 of the Writ Petition may be substituted and in its place new paragraph No. 9 may be inserted as follows:-

"9. That the petitioner begs to state that thereafter the Respondent authority Page No.# 7/11

separately prepared a list of short listed candidates for the post of Assistant Technician of all the candidates based on Computed Based Test (CBT) as per their merit wherein the position of the petitioner stands at Sl. No. 5 and the merit position of the Respondent No. 7 stands at 7, although the Respondent No. 7 belongs to OBC category but shortlisted him in the General category. However, the merit position of Respondent No. 10 stands at 6 and the merit position of Respondent Nos. 8 and 9 comes to 8 and 9 respectively. The petitioner states that since in the advertisement 12 posts of Assistant Technician (Electronics) are to be filled up and as such the Respondent ONGC published a final select list dated 16.7.2020 of all categories of posts including 12 posts of Assistant Technician (Electronics) as per registration numbers of the candidates in ascending order post wise but in the list the name of Respondent No. 7 and 10 whose merit position stands at 6 and 7 have been included whereas the petitioner whose position stands at Sl. No. 5 of the short list has been excluded.

A copy of the final list of short listed candidates for the post of Assistant Technician is annexed hereto as Annexure-9B to this petition."

10. That the applicant begs to state that in paragraph 10 in the 2 nd line after the Respondent No. 7 the word "and 8" to be inserted.

11. That the applicant begs to state that in between paragraphs 13 and 14 of the Writ Petition the following paragraphs may be inserted as follows:- "13A. That the petitioner begs to state that the Respondent authority advertised 12 posts of Assistant Technicians (Electronics) and out of which 6 (Six) posts were earmarked for unreserved category candidates and since the name of the petitioner was not considered for selection and appointment to the post in question although the merit position of the petitioner was at Sl. No. 5 but due to non-inclusion of his name in the final select list the merit position of Sl. No. 6 i.e. the Respondent No. 10 comes at Sl. No. 5 and the merit position of Sl. No. 7 i.e. the Respondent No. 7 comes at Sl. No. 6 i.e. the Respondent No. 7 came into the zone of unreserved category and he was also shortlisted in the unreserved category. Being aggrieved by non-inclusion of the name of the petitioner in the select list on the ground of technical reason in the name of PRC and included the Respondent No. 7 in the place of the petitioner and thus the petitioner preferred the instant Writ Petition challenging the Selection of Respondent No. 7 for appointment of Assistant Technicians (Electronics) in the category of unreserved candidates and prayed for his appointment by accepting the Verification report in respect of Residential Status of the petitioner. This Hon'ble Court vide Order dated 01.09.2020 issued notice of Motion, returnable by six weeks and in the interim it was directed that the appointment of Respondent No. 7 shall be subject to outcome of the Writ Petition. The Respondent ONGC contested the case by filing affidavit-in-opposition but the Respondent No. 7 did not contest the case inspite of receipt of notice. The Page No.# 8/11

Hon'ble Court after hearing the matter vide judgment and order dated 09.08.2021 allowed the Writ Petition setting aside the selection and appointment of Respondent No. 7 thereby directing the ONGC to consider the appointment of the petitioner.

A copy of the Judgment and order dated 09.08.2021 passed in W.P.(C) No. 3201/2020 is annexed hereto as Annexure-13 to this petition."

"13B. That the petitioner begs to state that the Respondent No. 7 being aggrieved by the judgment and order dated 09.08.2021 passed in the instant Writ Petition preferred a Review Petition being Review Petition No. 69/2021 contended that he had not received the copy of the notice and as such he could not place his case before this Hon'ble Court. This Hon'ble Court vide order dated 27.01.2022 passed in Review Petition No. 69/2021 allowed the Review Petition by recalling the judgment and order dated 09.08.2021 passed in the instant Writ Petition and the said Writ Petition is restored to file and shall be heard afresh.

A copy of the Order dated 27.01.2022 is annexed hereto as Annexure-14 to this Writ Petition."

"13C. That the petitioner begs to state that during the pendency of the Review Petition No. 69/2021, the petitioner preferred an Interlocutory Application being I.A. No. 2064/2021 for impleadment of Respondent Nos. 8, 9 and 10 in the instant Writ Petition and this Hon'ble Court vide order dated 14.9.2022 allowed to implead the Respondent Nos. 8, 9 and 10 in the instant Writ Petition."

12. That the applicant begs to state that the paragraph 14 of the Writ Petition may be substituted and in its place the new paragraph 14 may be inserted as follows:-

"14. That the petitioner begs to state that on receipt of notice of Review Petition No. 69/2021, the petitioner vide RTI Application dated 26.8.2021 through online sought for Registration Nos. of the shortlisted candidates, date of appointment, date of joining of the selected candidates, place of posting alongwith the categories of the candidates. In terms of RTI Application of the petitioner the Respondent ONGC vide Reply dated 20.9.2021 provided the merit list of all the candidates along with date of appointment, date of joining and place of posting of all the 12 selected candidates. Here it may be mentioned that in the Review Petition No. 69/2021 the Respondent ONGC in their affidavit-in-opposition has annexed Annexure-I wherein it appears that the petitioner got 76.3 marks and the Respondent Nos. 7, 8, 9 and 10 got marks below the petitioner. The petitioner states that the Respondent authority advertised 12 posts of Assistant Technician (Electronics) and as such Page No.# 9/11

12 candidates have been selected for appointment in all the categories including 6 posts of unreserved category. However, on perusal of the RTI Reply dated 20.9.2021 it appears that Sl. Nos. 2 and 3 who were selected in the select list dated 16.7.2020 at Sl. Nos. 10 and 4 respectively but they did not join their respective posts as it appears from the Annexure-III of the affidavit-in- opposition filed by te Respondent ONGC in Review Petition No. 69/2021 and against their place the Respondent Nos. 8 and 9 have been appointed subsequently on 16.3.2021 whose merit position appear at Sl. Nos. 8 and 9. The petitioner states that the merit position of the petitioner appears at Sl. No. 5 whereas the merit position of the Respondent Nos. 7 to 10 are below the petitioner but they have been selected and appointed depriving the petitioner only on Technical ground and this has prejudiced the petitioner.

A copy of the RTI Reply dated 20.9.2021 is annexed hereto as Annexure-15 to this petition.

A copy of the affidavit-in-opposition filed by the Respondent ONGC in Review Petition No. 69/2021 is annexed hereto as Annexure-16 to this petition."

13. That the applicant begs to state that in between paragraphs 14 and 15 the following paragraph may be inserted as paragraph 14A. "14A. That the petitioner begs to state that one of the non-selected candidates namely Lutfar Kazi whose Registration No. is 180301024174 sought for details of appointment of 6(Six) selected unreserved category with the date of appointment, date of joining, place of posting and the marks obtained by them in the CBT through online application dated 31.8.2021. Accordingly, the Respondent ONGC through online reply dated 20.9.2021 provided the list of 6(Six) appointed candidates against unreserved posts. On bare perusal of the RTI reply provided to Mr. Lutfar Kazi and the documents annexed in the affidavit-in-opposition of the Respondent ONGC as Annexure-I, II and III of Review Petition wherein it appears that there is serious discrepancies of marks obtained by the candidates in the CBT as well as Select list and appointment of the candidates which goes to show that the selection of the candidates by the Respondent ONGC was made being influenced by extraneous consideration and as such the selection and appointment of the candidates whose position stands below the petitioner is arbitrary, discriminatory, unjust, improper warranting cancellation of selection and appointment of the Respondent Nos. 7 to 10 as well as Respondent No. 11 who was appointed in violation of merit list.

14. That the applicant begs to state that paragraph 15 of the Writ Petition is to be substituted and in its place new paragraph 15 will be inserted as follows:-

"15. That the petitioner begs to state that action of the Respondent authority in denying the appointment of the petitioner on technical ground and appointing Respondent Nos. 7, 8, 9, 10 and 11 whose merit positions are below Page No.# 10/11

the petitioner in the merit list is arbitrary, malafide and unfair and this was done only to deprive the petitioner of his legitimate claim for appointment and as such in the interest of justice the petitioner's appointment may be considered against post held by any of the private Respondent as this Hon'ble Court may deem fit and proper."

15. That the applicant begs to state that paragraph 16 of the Writ Petition may be substituted and in its place new paragraph 16 will be inserted as follows:-

"16. That the petitioner begs to state that he has secured 5 th rank in the select list whereas the Respondent Nos. 7 to 10 secured 7 th, 8th, 9th and 6th rank in the merit list and as such the petitioner accrued right to get preference over the Respondent Nos. 7, 8, 9 and 10 and denial of the same is violation of fundamental and legal rights of the petitioner."

16. That the applicant begs to state that paragraph 18 may be substituted and in its place new paragraph 18 will be inserted as follows:- "18. That the petitioner begs to state that in terms of Select list dated 16.7.2020 the Respondent Nos. 7 and 10 have been appointed on 06.08.2020 as per their merit position and the Respondent Nos. 8 and 9 who were originally not included in the Select list dated 16.7.2020 but due to non-joining of original selectee whose merit positions were at Sl. Nos. 1 and 2 and as such the Respondent Nos. 8 and 9 were subsequently appointed on 16.3.2021 against the place of original selectee. The petitioner states that since his position in the merit list above the Respondent Nos. 7, 8, 9 and 10 and as such he accrued right to get preferential treatment above the Respondent Nos. 7, 8, 9 and 10 and hence this Hon'ble Court may be pleased to set aside and quash the selection and appointment of either one of the Respondent Nos. 7, 8, 9 and 10 and direct the Respondent ONGC to give appointment to the petitioner otherwise the petitioner shall be prejudiced."

17. That the applicant begs to state that the prayer portion of the Writ Petition may be substituted and in its place the following may be inserted:-

"Under the circumstances, it is therefore prayed that Your Lordships may be pleased to admit this petition, call for the records in respect of selection of the post of Assistant Technicians (Electronics) and issue a Rule calling upon the Respondents to show cause as to why a Writ in the nature of Certiorari shall not be issued setting aside the Selection and appointment of Respondent Nos. 7, 8, 9, 10 and 11 who were appointed vide Appointment Orders dated 06.08.2020 and 16.3.2021 as Assistant Technician (Electronics) in terms of Select list dated 16.07.2020 (Annexure-11) Page No.# 11/11

and short list of the candidates (Annexure-15) against Adv. No. 01/2019 and also to quash the Communication dated 07.08.2020 issued by the Respondent authority (Annexure-13) and/or as to why a writ of Mandamus shall not be issued commanding the Respondent authority to accept the Verification Report of the petitioner in respect of Residential Status issued by the Competent authority and consider the appointment of the petitioner to the post of Assistant Technician (Electronics) in ONGC, Assam Asset, Nazira against Adv. No. 01/2019 (Non-Executive) with retrospective effect by quashing and setting aside the selection and appointment of Respondent Nos. 7, 8, 9, 10 and 11 and cause or causes being shown and after hearing the parties be pleased to make the Rule absolute giving full and complete relief to the petitioner and/or pass such other or further, order or orders Your Lordships may deem fit and proper."

3. As there is no objection to the amendments sought for by the applicant by any respondents, we allow the amendment as indicated above.

4. I.A. stands allowed.

5. The applicant/petitioner to file a consolidated writ petition incorporating the amendments and thereupon, serve copies of the amended writ petition to all the learned counsel for the parties.

JUDGE

Comparing Assistant