Mallabika Das vs The State Of Assam And 4 Ors
2024 Latest Caselaw 5421 Gua

Gauhati High Court

Mallabika Das vs The State Of Assam And 4 Ors on 1 August, 2024

Page No.# 1/13

GAHC010012822021




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

                             Case No. : WP(C)/477/2021

            MALLABIKA DAS
            D/O. AMIYA KR. DAS, VILL. NAYAGRAM, P.O. NEELAMBAZAR, DIST.
            KARIMGANJ, ASSAM.



            VERSUS

            THE STATE OF ASSAM AND 4 ORS
            REP. BY THE COMM. AND SECY., SOCIAL WORKS DEPTT., DISPUR,
            GUWAHATI, ASSAM, PIN-781006.

            2:DIRECTOR OF SOCIAL WELFARE
             UZANBAZAR
             GUWAHATI
             PIN-781007.

            3:DISTRICT SOCIAL WELFARE OFFICER

            KARIMGANJ
            ASSAM
            PIN-788710.

            4:CHILD DEVELOPMENT PROJECT OFFICER

            SOUTH KARIMGANJ ICDS PROJECT
            VILL. KALIGANJ
            P.O. SHYAMNAGAR
            DIST. KARIMGANJ
            ASSAM
            PIN-788720.

            5:SAHADA BEGUM CHOUDHURY
 Page No.# 2/13

             SUPERVISOR
             OFFICE OF CHILD DEVELOPMENT PROJECT OFFICER
             SOUTH KARIMGANJ ICDS PROJECT
             VILL. KALIGANJ
             P.O. SHYAMNAGAR
             DIST. KARIMGANJ
             ASSAM
             PIN-788720

Advocate for the Petitioner   : MR. B CHAKRABORTY, MRS P HAZARIKA

Advocate for the Respondent : GA, ASSAM, MR. M DUTTA,DR. B AHMED (r-5),MR. M A
CHOUDHURY (r-5)




             Linked Case : WP(C)/1769/2021

            NAZRIN SULTANA CHOUDHURY
            W/O MD. ABDUL HAMID
            R/O VILL. SHARIFNAGAR
            P.O. KARNAMADHU
            DIST. KARIMGANJ
            ASSAM


             VERSUS

            THE STATE OF ASSAM AND 4 ORS
            REP. BY THE COMMISSIONER AND SECRETARY
            SOCIAL WORKS DEPTT. DISPUR
            GUWAHATI
            ASSAM
            PIN-781006

            2:DIRECTOR OF SOCIAL WELFARE
            UZANBAZAR
             GUWAHATI
             PIN-781007

            3:DISTRICT SOCIAL WELFARE OFFICER
            KARIMGANJ
            ASSAM
            PIN-788710
 Page No.# 3/13

            4:CHILD DEVELOPMENT PROJECT OFFICER
            SOUTH KARIMGANJ ICDS PROJECT
            VILL. KALIGANJ
            P.O. SHYAMNAGAR
            DIST. KARIMAGANJ
            ASSAM
            PIN-788720

            5:SAHADA BEGUM CHOUDHURY
            SUPERVISOR
            OFFICE OF CHILD DEVELOPMENT PROJECT OFFICER
            SOUTH KARIMGANJ ICDS PROJECT
            VILL. KALIGANJ
            P.O. SHYAMNAGAR
            DIST. KARIMGANJ
            ASSAM PIN-788720
            ------------

Advocate for : MR B CHAKRAVORTY Advocate for : GA ASSAM appearing for THE STATE OF ASSAM AND 4 ORS

BEFORE HONOURABLE MR. JUSTICE N. UNNI KRISHNAN NAIR

Judgment & Order (Oral)

Date : 01.08.2024

Heard Mr. B. Chakraborty, learned counsel for the petitioners in both the above noted writ petitions. Also heard Mr. C. S. Hazarika, learned counsel for the State respondents and Mr. N. Dutta, learned counsel appearing for the respondent no. 5 in the above noted writ petitions.

2. The petitioners, by way of instituting the present writ petitions have presented a challenge to the selection of appointment of the respondent no. 5, herein (Sahada Begum Choudhury).

3. The facts required for adjudication of the issue involved in the above noted writ proceedings, are noticed as under:-

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The petitioners in the above noted writ petitions (hereinafter referred to as the petitioners) as well as the respondent no. 5, therein, were all appointed as Anganwadi Workers under South Karimganj ICDS project. The Government of Assam, in the Social Welfare Department had adopted a decision to reserve 25% posts in the cadre of Supervisor, to be so filled up by way of recruitment from in- service Anganwadi Workers. In terms of the said decision, the guidelines to be followed for the purpose was laid down vide notification dated 04.06.2012. Thereafter, the posts of Supervisor as available were so put up for recruitment and the petitioners and the respondent no. 5 having so applied, were issued with Admit Cards for appearing in the Written Examination so scheduled on 17.01.2016. Thereafter, the petitioners and the respondent no. 5 having cleared the written test were required to appear for the Viva-Voce component for the selection process.

On conclusion of the selection process, the respondent authorities proceeded to publish a select list and with regard to the 3(three) vacant posts of Supervisor as available in South Karimganj ICDS project, 3(three) persons came to be so selected, including the respondent no. 5. The petitioners not being selected, proceeded to prefer RTI applications and from the reply as furnished to them thereof, the petitioners could come to learn that they had scored more marks than the respondent no. 5, however, they were not favoured with a promotion to the post of Supervisor and the respondent no. 5 in spite of scoring low marks in the selection process, was favoured with such promotion.

Being aggrieved, the petitioners had approached the respondent authorities, praying for redressal of their grievances and the same not being considered, has approached this Court by way of instituting the present proceedings.

4. Mr. B. Chakraborty, learned counsel for the petitioners, by referring to the Page No.# 5/13

RTI replies as received from the respondent authorities has submitted that the respondent no. 5 in the selection process, had scored 58 marks while the petitioner in WP(C)477/2021 had scored 69.33 marks and the petitioner in WP(C)/1769/2021 had scored 69 marks. Accordingly, it is submitted that the petitioners having scored more marks than the respondent no. 5 and all of them belonging to the Un-reserved (UR) category, the respondent no. 5 could not have been selected for the said promotion ignoring the cases of the petitioners, herein. Mr. Chakraborty, has submitted that the marks scored by the respondent no. 5 and the petitioners not having been revealed to the petitioners, they had submitted RTI applications in the year 2016 itself and the same was first replied to vide an RTI reply dated 04.08.2016; wherein the marks of the respondent no. 5 was so disclosed. The petitioners came to learn about the said RTI reply only in the month of January, 2019 and accordingly, further RTI applications were submitted for receiving the marks as scored by them in the selection process. Thereafter, vide an RTI reply dated 16.05.2019, the marks scored by the petitioners were so granted.

5. Mr. Chakraborty, learned counsel for the petitioners further submits that it being an admitted position that the petitioners having scored more marks than the respondent no. 5, it is they, who should have been considered for selection and appointment against the vacant post of Supervisor as was available at the relevant point of time at the said ICDS project. The learned counsel for the petitioners has further submitted that the respondent no. 5, who also belongs to the Un-reserved category, could not have been so selected and accordingly, her selection being void-ab-initio requires interference from this Court.

6. The petitioners in the above noted writ petitions have advanced contentions with regard to the delay occasioning in approaching this Court after receiving the RTI replies regarding the marks scored by them, as well as the respondent no. 5, Page No.# 6/13

in the connected selection process.

7. One of the common grounds taken by the petitioners in the matter for justifying the delay in approaching this Court is the onset of the Covid-19 pandemic in the country and the lockdown following the same. The petitioners have also contended that even the meager salary drawn by them as an Anganwadi Worker also prevented them from approaching this Court, promptly,

8. Mr. C. S. Hazarika, learned Government Advocate appearing for the State respondents by referring to the affidavits filed in the matter by the Director of Women & Child Development Department, has contended that the marks scored by the petitioners in the above noted writ petitions, i.e. 69.33 and 69, respectively, would not entitle them to an appointment, inasmuch as, in the said selection process the cut off marks for Un-reserved category was worked out as

71. The petitioners not having achieved the cut off marks, they would not be entitled to be selected and consequently, appointed to the post of Supervisor. With regard to the selection and appointment of the respondent no. 5, the learned Government Advocate has submitted that in the selection process, the respondent no. 5 was denoted as an candidate belonging to the OBC category and she having secured 58 marks and being within the cut off marks prescribed for the category of OBC, she came to be so appointed.

9. Mr. C. S. Hazarika, learned Government Advocate has further submitted that as to how the respondent no. 5, who belongs to the Un-reserved category came to be denoted as a candidate belonging to the OBC category, is not revealed from the records of the matter. Mr. Hazarika, has further submitted that the select list in question was finalized by a Selection Committee, in its meeting held on 02.02.2016 and the validity thereof, was so stipulated to be of one year. It was further contended that around 284 nos. of posts of Supervisor was filled up by way of promotion/up-gradation from amongst the Anganwadi Workers, as per the Page No.# 7/13

select list prepared, in various ICDS project of the State.

10. Mr. C. S. Hazarika, learned Government Advocate has further submitted that

the entire examination process involved was outsourced to a 3 rd party i.e. Amain Tech Consultants Private Limited and in terms of the agreement entered into in

the purpose with the said 3 rd party, the records of the selection including the OMR sheets were mandated to be preserved for a period of 3(three) years. It is contended that the period for preservation of the said OMR sheets had come to an end on 21.12.2018, and accordingly, the same cannot be produced in the matter.

11. Mr. M. Dutta, learned counsel for the respondent no. 5 has submitted that the present writ petitions, on account of the delay in institution of the same, assailing the selection and appointment of the respondent no. 5, would not merit a consideration. It is contended that the select list having been published in the year 2016 and the writ petitions being filed in the year 2021 i.e. after lapse of around 5(five) years, a vested right had accrued to the respondent no. 5 to continue with her selection and appointment in the matter. Mr. Dutta, has further submitted that the petitioners had not explained the steps taken by them in the matter after submission of RTI applications and it is seen that the petitioners had sought for the marks scored by them in the selection process only in the RTI applications filed by them in the year 2019. Mr. Dutta, further submits that the explanation as put forth by the petitioners in their writ petitions, are all vague and does not justify the delay so occasioning in instituting the present proceedings. Accordingly, he submits that the respondent no. 5 having been in service w.e.f. 06.02.2016, this Court would be pleased not to interfere with her such appointment.

12. I have heard the learned counsel appearing for the parties and also perused the materials brought on record.

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13. It is to be noted that, no dispute exists to the fact that both the petitioners and the respondent no. 5 possessed the mandated eligibility criteria to participate in the selection process, for promotion to the post of Supervisor.

14. The respondent authorities in terms of the notification dated 04.06.2012, had initiated a recruitment process for filling up of 25% posts in the cadre of Supervisor, available in various ICDS project of the State including the South Karimganj ICDS project. The Written Examination was held on 17.01.2016, wherein the petitioners and the respondent no. 5 had participated. The result of the Written Examination was declared on 27.01.2016 and the same was followed by a Viva-Voce Examination, held on 29.01.2016 and 30.01.2016. The marks scored by the candidates participating in the said selection process for the post of Supervisor was placed before a selection committee, constituted in the matter. The said selection committee, in its meeting held on 02.02.2016; proceeded to verify the marks scored by the candidates in the written, as well as the Viva-Voce component along with examining the fact as to whether the candidates possessed the requisite eligibility criterias mandated for recruitment against the post of Supervisor. On such examination being made, a select list came to be published for 284 nos. of posts of Supervisor. In the select list so published, the respondent no. 5 was shown as a candidate, selected for one of the post of Supervisor, as existing in the South Karimganj ICDS project and she was shown to have scored 58 marks. However, it is to be noted that the respondent no. 5 was denoted therein as a candidate belonging to the OBC community. Basing on the said projection as made in the select list, the respondent no. 5, herein, came to be so selected and appointed as Supervisor against one of the three posts identified under the said ICDS project. The respondent no. 5 in terms of her such appointment, which was in the nature of a contractual appointment, proceeded to join her services.

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15. This Court, vide an order dated 28.02.2024; on noticing the contentions of the petitioners in the above noted writ petitions, held that the respondent no. 5 belonged to the Un-reserved category and the contentions raised by the authorities that she belonged to the OBC category was perverse, had directed the State respondents to clarify the matter as to under what circumstances the respondent no. 5 came to be treated as candidate belonging to the OBC category.

15. In terms of the said directions passed by this Court, an additional affidavit has been filed in the matter on behalf of the Director, Women & Child Development Department, wherein it was contended that although the documents pertaining to the selection process were not available, however, on a perusal of the official records maintained in connection with the service rendered by the respondent no. 5, the CDPO, South Karimganj ICDS project had reported that the respondent no. 5 belongs to the Un-reserved category. It was contended that the selection records not being available, it could not be stated as to how the respondent no. 5 came to be denoted in the select list to belong to the OBC category.

16. Having noticed the above position coming on record in the writ proceedings, it can be safely concluded that the petitioners had scored more marks in the selection process than that scored by the respondent no. 5. The petitioners, in the above noted writ petitions, had scored 69.33 and 69 marks, respectively, in the said selection process. From the RTI replies, as furnished to the petitioners, as well as from the affidavit filed in the matter by the Director of Women & Child Development Department, it is clear that insofar as the Un-reserved category is concerned, the cut off marks for selection and inclusion in the select list against the post of Supervisor was 71 marks. The petitioners having admittedly, not secured 71 marks, they would not be entitled to be included in the select list in question under any circumstances. Accordingly, the claim of the petitioners for Page No.# 10/13

being appointed as supervisor in terms of the selection process undergone by them would not merit acceptance.

17. This would now bring this Court to consider the challenge as made by the petitioners to the selection and appointment of the respondent no. 5.

18. The materials coming on record reflects that the respondent no. 5 had scored 58 marks in the selection process. It is also not disputed that the respondent no. 5 belongs to the Un-reserved category. The cut off marks for Un- reserved category being so fixed at 71 marks, the respondent no. 5 admittedly, would not be entitled to be selected in the selection process. Accordingly, she would be also not entitled for being appointed as Supervisor against one of the three posts figuring in the said ICDS project.

19. A perusal of the select list as prepared by the Selection Committee, in its meeting held on 02.02.2016, would reveal that the respondent no. 5 was reckoned as an OBC candidate. There is no material brought on record by the respondent no. 5 and/or the respondent authorities to justify the reckoning of the respondent no. 5 in the said select list as a candidate belonging to the OBC category. Accordingly, it can be concluded that the respondent no. 5 was erroneously denoted as a candidate belonging to an OBC category. As to whether the said projection was so made on the basis of materials submitted by the respondent no. 5 in the selection process, or was on account of an error made in

the matter by the respondents, as well as the 3 rd party conducting the selection process cannot be discerned at the stage, in view of the fact that the selection records were so destroyed after 21.12.2018.

20. The respondent no. 5, on being so selected had found her name to be so incorporated in the select list published by denoting her to be a candidate belonging to the OBC category, however, the same was not pointed out by her Page No.# 11/13

before the authorities and she accepting such placement, proceeded to join her services as a Supervisor on her being appointed against the same in terms of her placement in the said select list.

21. The respondent no. 5, in view of the marks scored by her cannot under any circumstances be placed in the said select list by reckoning her actual caste status and she admittedly, was placed in the said select list on account of the fact that she was projected to be a candidate belonging to the OBC category.

22. On account of the undisputed facts leading to the appointment of the respondent no. 5 as a Supervisor, it can be safely concluded that she was not entitled to be placed in the select list at the first place and consequently was not entitled to be appointed against the post of Supervisor as existing in the said ICDS project.

23. The appointment of the respondent no. 5 admittedly, having been so effected without she being eligible for the same, the said appointment as Supervisor has to held to be void-ab-initio and the respondent no. 5, would not be entitled to any benefit, on account of such an appointment which admittedly, was so made basing on wrong premises.

24. The learned counsel for the respondent no. 5 had made categorical contentions to the extent that the selection and appointment of the respondent no. 5 being so challenged in the present proceeding by the petitioners after around 5(five) years from effecting of such appointment, the appointment of the respondent no. 5 ought not to be interfered by this Court.

25. While it is a settled position of law that promotions effected are required to be challenged by an aggrieved person at the earliest opportunity. The petitioners, herein, had claimed for a promotion to the post of Supervisor w.e.f., the date, the respondent no. 5, herein, was so promoted. This Court, herein above, on Page No.# 12/13

consideration of such prayer had rejected the same on account of the fact that the petitioners have not got the cut off marks requisite for a placement in the select list and therefore, not entitled for appointment against the post of Supervisor. However, it having brought to the notice of this Court that the respondent no. 5 was, on account of the marks scored by her was also not entitled to be placed in the select list in question and consequently, not entitled to be appointed as Supervisor, this Court, on perusal of the materials brought on record, having drawn a satisfaction that the initial appointment of the respondent no. 5 against the post of Supervisor, having so occasioned on account of a wrong projection made with regard to her caste status in the select list, the respondent no. 5 is to be held to have not been appointed in the manner required and such appointment not being so effected basing on the merit position as obtained by her in the selection process, such selection and appointment is void-ab-initio. Further, such selection and appointment of the respondent no. 5 had also deprived a genuine candidate belonging to the OBC category from securing a appointment against the post of Supervisor so involved in the selection process.

26. While the petitioners are not be entitled to a direction for appointment, however, the selection and appointment of the respondent no. 5, which is vitiated on account of the wrong projection as noticed herein above, made in her case, for inclusion in the select list in question also cannot be sustained and the same also would recall for an interference.

27. Accordingly, the selection and appointment of the respondent no. 5, as a Supervisor under the South Karimganj ICDS project, stands interfered with. However, the pay and allowances as drawn by the respondent no. 5, since the date of her such appointment as Supervisor under the said ICDS project, shall not be recovered by the respondent authorities and the respondent no. 5 shall be now discharge her duties as an Anganwadi Worker and the period of service as Page No.# 13/13

rendered by her, as a Supervisor, would now be construed to have been so rendered, as an Anganwadi Worker, for all intent and purpose.

28. With the above observations and directions, the above noted writ petitions stands disposed of.

JUDGE

Comparing Assistant