Gauhati High Court
Page No.# 1/13 vs The State Of Assam And 10 Ors. B on 18 February, 2025
Page No.# 1/13
GAHC010133022022
2025:GAU-AS:1701-DB
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WA/316/2022
BITUL NEOG
S/O LATE SANARAM NEOG, C/O HEAD QUARTERS, S.B. ORGANIZATION,
ASSAM, KAHILIPARA, GUWAHATI- 19.
VERSUS
THE STATE OF ASSAM AND 10 ORS. B
REP. BY THE COMMISSIONER TO THE GOVT. OF ASSAM, HOME AND
POLITICAL DEPTT., DISPUR, GUWAHATI.
2:THE DIRECTOR GENERAL OF POLICE
ULUBARI
GUWAHATI- 7.
3:THE INSPECTOR GENERAL OF POLICE
ADMINISTRATION
GOVT. OF ASSAM
ULUBARI GUWAHATI- 7.
4:THE ADDL. DIRECTOR GENERAL OF POLICE (TAP)
CHAIRMAN S.I. (AB) SELECTION BOARD
ULUBARI GUWAHATI- 7.
5:THE ASSTT. INSPECTOR GENERAL OF POLICE (T)
ASSAM ULUBARI GUWAHATI- 7
Advocate for the Petitioner : MR M H AHMED, MS. N SULTANA
Advocate for the Respondent : GA, ASSAM, MS P SARMA (R6 TO 11),MR. P P DUTTA (R6 TO
11)
Page No.# 2/13
BEFORE
HONOURABLE THE CHIEF JUSTICE
HONOURABLE MR. JUSTICE N. UNNI KRISHNAN NAIR
Date of hearing : 12.02.2025
Date of Judgment & Order : 18.02.2025
JUDGMENT & ORDER (CAV)
(N. Unni Krishnan Nair, J.)
Heard Mr. M. H. Ahmed, learned counsel, appearing on behalf of the
appellant. Also heard Mr. D. K. Sarma, learned Addl. Senior Government
Advocate, appearing on behalf of respondents No. 1 to 5; and Mr. P. P.
Dutta, learned counsel, appearing on behalf of respondents No. 6 to 11.
2. The appellant, herein, by way of instituting this intra-Court appeal,
has presented a challenge to a judgment & order, dated 28.10.2011,
passed by the learned Single Judge in WP(c)1750/2011. The appellant has
also presented a challenge to an order, dated 15.06.2022, passed by the
learned Single Judge in Review Pet. No.90/2022.
3. The brief facts requisite for adjudication of the issue arising in the
present proceeding, is noticed as under:
The Additional Director General of Police(TAP), had issued an
advertisement, dated 17.12.2008, inviting applications for filling up of
vacant posts of Sub-Inspector of Police(AB). The said advertisement
prescribes the manner of recruitment and also stipulates that the
candidates shall have to secure qualifying marks in each of the segments of
the recruitment process.
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The appellant, herein, being eligible, had submitted his application
pursuant to the said advertisement, dated 17.12.2008.
The appellant on account of his over-age not being condoned, was not
permitted to take part in the recruitment process and being so aggrieved;
the appellant had approached the writ Court by way of instituting a writ
petition being WP(c)2121/2018, seeking a direction for relaxation of the
upper age limit to enable him to participate in the said recruitment process.
The writ Court, vide order, dated 22.06.2009, passed in Misc. Case No.
1623/2009 [filed in WP(c)2121/2008], was pleased to permit the appellant,
herein, to participate in the said recruitment process pursuant to the
advertisement, dated 17.12.2008. However, it was directed that the result
of the appellant be not declared. Accordingly, the appellant, herein,
participated in the said recruitment process. Subsequently, the writ Court
vide order, dated 22.04.2010, disposed of the said writ petition being
WP(c)2121/2008, directing the respondent authorities to consider the case
of the petitioner for relaxation of his upper age limit and in the event, the
upper age of the appellant, herein, is so condoned; to declare the result of
the appellant.
The result of the appellant was, accordingly, declared and the
Assistant Inspector General of Police(T), Assam, vide communication, dated
01.03.2011, intimated the appellant, herein, that he had secured 144
marks in the written test, 47.5 marks in the physical test and 23 marks in
the interview, the aggregate of which stood as 214.5 marks. However, it
was informed to the appellant, herein, that he was not selected, in-as-
much as, he had not qualified in the interview segment of the recruitment
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process.
Being aggrieved by the rejection of his case; the appellant, herein,
had approached the writ Court by way of instituting a writ petition being
WP(c)1750/2011, inter alia, contending that there being no prescription of
securing qualifying marks in the interview so disclosed in the
advertisement, dated 17.12.2008; the respondent authorities could not
have changed the rules of the game after the game had begun. It was
further projected that in the event, the appellant, herein, is held to be
qualified in the recruitment process, considering the marks secured by him
in the recruitment process, he would be eligible for being so appointed
against any of the posts of the Sub-Inspector of Police(AB), so advertised
vide the advertisement, dated 17.12.2008, in-as-much as, he had secured
more than the specified cut-off marks so mandated for recruitment to such
post.
The learned Single Judge, thereafter, took up WP(c)1750/2011, along
with WP(c)3524/2011, for final consideration. On appreciating the
contentions so raised before him and also appreciating the materials
coming on record; the learned Single Judge proceeded to conclude that the
denial of selection to the appellant, herein, for want of securing qualifying
marks in the interview is hit by the principle of law laid down in the case of
K. Manjusree v. State of Andhra Pradesh & anr., reported in (2008) 3 SCC
512. It was further noticed that the selected candidates who were
impleaded as private respondents in the matter, had secured lower marks
than the appellant, herein, in the said recruitment process.
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Having drawn the said conclusion, the learned Single Judge restrained
from granting any relief to the appellant, herein, on the ground that there
were further candidates included in the select list who had secured lesser
marks than the candidates so arrayed as respondents in the said writ
petition. Proceeding to hold that it would be unfair and unjust to interfere
with the selections of private respondents No. 6 to 11 in the writ petition
when there were further candidates in the select list who had even secured
lesser marks than the said respondents No. 6 to 11, and the said
candidates not being arrayed as respondents in the writ petition; the writ
Court refused to grant any relief to the appellant, herein. Accordingly, the
said writ petition was dismissed on the ground of non-joinder of necessary
and proper parties to the proceeding.
Being aggrieved; the appellant, herein, had instituted a review
petition being Rev. P. No. 90/2022 before the writ Court. In the said review
petition, it was contended that there were posts of Sub-Inspector of
Police(AB) lying vacant which formed part of the advertisement, dated
17.12.2008, and accordingly, a direction is called upon to be issued to the
respondent authorities for consideration the case of the appellant, herein,
against such vacant post. The learned Single Judge on consideration of the
contentions so raised in the said review petition, was pleased, vide order,
dated 15.06.2022, to dismiss the same.
4. Being aggrieved, the appellant, herein, has instituted the present
proceeding before this Court.
5. Mr. Ahmed, learned counsel for the appellant, herein, has submitted
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that the recruiting authority having not specified in the advertisement,
dated 17.12.2008, that the candidate for selection in the recruitment
process in addition to achieving the cut-off marks in each of the segments
of the recruitment process, would also be required to acquire 25 marks out
of 50 marks so prescribed for the interview segment of the recruitment
process; the said prescription could not have been so introduced
subsequent to the initiation of the recruitment process.
6. Mr. Ahmed, learned counsel, by relying upon the decision rendered in
the case of K. Manjusree(supra), has submitted that the prescription with
regard to achieving cut-off marks in the interview segment of the
recruitment process involved in the present proceeding; having been so
made after the process of recruitment having been initiated vide the
issuance of the advertisement, dated 17.12.2008; the said prescription
would not be valid and accordingly, the same cannot be applied by the
recruiting authority.
7. Mr. Ahmed, learned counsel, has further submitted that the decision
so rendered by the Hon'ble Supreme Court in the case of K.
Manjusree(supra) was doubted in the case of Tej Prakash Pathak & ors. v.
Rajasthan High Court & ors., reported in (2013) 4 SCC 540, and the
matter was required to be placed before a larger Bench, for an
authoritative pronouncement. The matter was, accordingly, referred to a
larger Bench. The constitution Bench, vide order, dated 07.11.2024,
[reported in (2025) 2 SCC 1], had held that the decision of the Hon'ble
Supreme Court in the case of K. Manjusree(supra) lays down a good law
and was not in conflict with the earlier decisions. The learned counsel, has,
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accordingly, submitted that the qualifying marks as required to be obtained
by a candidate in the interview segment of the recruitment process, having
not been specified in the advertisement, dated 17.12.2008, the same
cannot be now projected for denying to the appellant his due appointment
against any of the advertised post of Sub-Inspector of Police(AB). The
learned counsel has further submitted that the appellant having achieved
the cut-off marks required for selection against any of the posts of Sub-
Inspector of Police(AB) so advertised vide advertisement, dated
17.12.2008; a direction is called upon to be issued by this Court to the
respondent authorities for accommodating the appellant, herein, against
any of such vacant post which was contended to be available in the
Department concerned.
8. Per contra, Mr. Sarmah, learned Addl. Senior Government Advocate,
appearing for respondents No. 1 to 5, has submitted that in the
advertisement, dated 17.12.2008, it was clearly stipulated that a candidate
must secure the qualifying marks in each of the segments of the
recruitment process. The learned Addl. Senior Government Advocate has
further submitted that the Government in the Home(A) Department, vide
communication, dated 04.12.2008, while conveying the approval for
initiation of recruitment process filling up of 115 nos. of vacant posts of
Sub-Inspector of Police(AB), had stipulated that the said selection should
be made by following the procedure that was prescribed vide the
communication, dated 19.11.2007, in relation to recruitment of 116 nos. of
posts of Sub-Inspector(UB) of Police.
9. Mr. Sarmah, learned Addl. Senior Government Advocate, has
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submitted that in the communication, dated 19.11.2007, it was, amongst
others, prescribed that the candidate for selection, has to obtain a
qualifying mark of 25 out of 50 marks in the interview segment of the
recruitment process. The learned Addl. Senior Government Advocate has
further submitted that the appellant, herein, not having obtained the
qualifying mark in the interview segment of the recruitment process; he
cannot be said to be a selected candidate and accordingly, no direction
would be called for to be issued by this Court requiring the respondent
authorities to appoint the appellant, herein, against any post of Sub-
Inspector of Police(AB) so advertised.
10. We have heard the learned counsels appearing for the parties and
also perused the materials available on record.
11. The Director General-cum-Inspector General of Police, Assam, had
forwarded a draft advertisement for the purpose of initiating direct
recruitment against 115 [nos. of vacant sanctioned posts of Sub-Inspector
of Police(UB)]. The Home(A) Department, Government of Assam, vide
communication, dated 04.12.2008, proceeded to convey its approval to the
said recruitment. While conveying the said approval, the Government had
required that the procedure for recruitment to the post of Sub-Inspector of
Police(AB), would be in line with the procedure so prescribed vide
communication, dated 19.11.2007, in connection with the recruitment of
Sub-Inspector of Police(UB).
12. A perusal of the communication, dated 19.11.2007, would go to
reveal that the Government had mandated therein that for selection of a
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candidate; the candidate concerned must qualify in each segment of the
recruitment process. It was further stipulated therein that the intending
candidate must acquire a qualifying marks of 25 out of 50 in the interview
segment of the recruitment process for being eligible to be included in the
select list. In terms of the said approval so granted vide the
communication, dated 04.12.2008; the advertisement, dated 17.12.2008,
was published by the Additional Director General of Police(TAP)-cum-
Chairman, Sub-Inspector(AB) Selection Board. In the said advertisement,
dated 17.12.2008, the following stipulations were made:
"Interview:
§ Merit list shall be prepared on the basis of aggregate marks secured in the
above-mentioned tests. Candidate shall have to secure qualifying marks in each
of the above segments:
§ The Govt. will not be responsible for any physical injury sustained during the
physical tests.
§ No travelling allowance shall be paid for appearing in the tests.
§ The candidate appointed will be governed by new pension rules.
§ Canvassing directly or indirectly shall render the candidates unfit."
13. The appellant, herein, being eligible to participate in the recruitment
process, had submitted his application and in terms of the directions
passed by this Court; the over-age of the appellant, herein, was also
condoned by the respondent authorities. However, on conclusion of the said
recruitment process; the appellant was informed vide an order, dated
09.09.2010, issued by the Director General of Police, Assam, that he had
not qualified in the recruitment process, in-as-much as, he had not
acquired the qualifying mark in the interview segment of the recruitment
process. The break-up of marks secured by the appellant, herein, in the
said recruitment process, was also communicated to him. The appellant
had secured an aggregate of 214.5 marks. However, in the interview
segment of the recruitment process, the appellant had secured only 23
Page No.# 10/13
marks which was below the qualifying mark of 25 so prescribed for the
interview segment of the recruitment process vide the advertisement,
dated 17.12.2008. Accordingly, the appellant, herein, was not included in
the select list.
14. The contention of Mr. Ahmed, learned counsel for the appellant,
herein, that the said prescription of qualifying in the interview segment by
securing marks 25 having been so made after the recruitment process was
so initiated with the issuance of the advertisement, dated 17.12.2008; in
view of the decision of the Hon'ble Supreme Court rendered in the case of
K. Manjusree(supra), the same could not have been so made and the
appellant, herein, was required to be included in the select list so prepared
by reckoning the aggregate marks so secured by him in the recruitment
process, in question, would now be called upon to be examined.
15. While it is a trite law that the criteria pertaining to the procedure of
selection, cannot be changed after the recruitment process has been
initiated; in the present case, given the materials available on record, the
said situation is not found to arise. In the recruitment process involved, as
noticed hereinabove, the Government while conveying its approval for
proceeding with the process of recruitment against 115 nos. of vacant
sanctioned posts of Sub-Inspector of Police(AB), vide communication, dated
04.12.2008, had stipulated that the procedure of recruitment to be so
followed, would be the one which was so prescribed vide communication,
dated 19.11.2007, by the Government for recruitment against the posts of
Sub-Inspector of Police(UB).
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16. The communication, dated 19.11.2007, clearly stipulates that the
candidate must secure a qualifying mark of 25 out of 50 in the interview
segment of the recruitment process for being considered, to have qualified
in the recruitment process. The advertisement, dated 17.12.2008, having
been so issued in terms of the approval so granted by the Government vide
the communication, dated 04.12.2008; the stipulations so made therein,
would automatically stand applied to the recruitment process, involved in
the matter.
17. As noticed hereinabove, the advertisement, dated 17.12.2008, having
also specified that the candidate shall have to secure qualifying mark in
each of the segments of the recruitment process; it cannot be said in the
facts and circumstances of the present case that there was no prescription
of a qualifying mark prior to the initiation of the recruitment process, in
question. Accordingly, the contentions so raised by the appellant, herein, in
the matter, would not merit an acceptance.
18. The constitution Bench of the Hon'ble Supreme Court, had, in the
case of Tej Prakash Pathak(supra), had drawn the following conclusions:
"65. We, therefore, answer the reference in the following terms:
65.1. Recruitment process commences from the issuance of the advertisement calling
for applications and ends with filling up of vacancies;
65.2. Eligibility criteria for being placed in the select list, notified at the
commencement of the recruitment process, cannot be changed midway through the
recruitment process unless the extant Rules so permit, or the advertisement, which is
not contrary to the extant Rules, so permit. Even if such change is permissible under
the extant Rules or the advertisement, the change would have to meet the requirement
of Article 14 of the Constitution and satisfy the test of non-arbitrariness;
65.3. The decision in K. Manjusree lays down good law and is not in conflict with the
decision in Subash Chander Marwaha. Subash Chander Marwaha deals with the right
to be appointed from the select list whereas K. Manjusree deals with the right to be
placed in the select list. The two cases therefore deal with altogether different issues;
65.4. Recruiting bodies, subject to the extant Rules, may devise appropriate procedure
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for bringing the recruitment process to its logical end provided the procedure so
adopted is transparent, non-discriminatory/non-arbitrary and has a rational nexus to
the object sought to be achieved;
65.5. Extant Rules having statutory force are binding on the recruiting body both in
terms of procedure and eligibility. However, where the rules are non-existent, or silent,
administrative instructions may fill in the gaps;
65.6. Placement in the select list gives no indefeasible right to appointment. The State
or its instrumentality for bona fide reasons may choose not to fill up the vacancies.
However, if vacancies exist, the State or its instrumentality cannot arbitrarily deny
appointment to a person within the zone of consideration in the select list."
19. A perusal of the conclusions as drawn by the Constitution Bench of
the Hon'ble Supreme Court in the case of Tej Prakash Pathak(supra) in
paragraph No. 65.2, would go to reveal that the eligibility criteria for being
placed in the select list, notified at the commencement of the recruitment
process, cannot be changed midway through the recruitment process
unless the extant Rules so permit, or, the advertisement, which is not
contrary to the extant Rules, so permit.
20. In the case on hand, it is seen that there was no change of
prescription of eligibility criteria after the recruitment process involved was
so initiated. The advertisement, dated 17.12.2008, had stipulated that the
candidate shall have to secure the qualifying marks in each of the
segments of the recruitment process involved.
21. In view of the above conclusions so drawn by us; the appellant,
herein, cannot be held to be a qualified candidate in the recruitment
process involved in the matter, for being included in the select list.
22. We having concluded that the appellant, herein, was not qualified to
be included in the select list, we would not be called upon to consider as to
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whether the case of the appellant, herein, would now be required to be
considered against any of the vacant post of Sub-Inspector of Police(AB), if
so available, from amongst the posts so put up for recruitment vide the
advertisement, dated 17.12.2008.
23. At this stage, it is to be noted that the learned Single Judge, had, in
the order, dated 15.06.2022, drawn a conclusion to the effect that in view
of the decision of the Hon'ble Supreme Court in the case of K.
Manjusree(supra); the appellant, herein, could not have been held to have
not qualified in the recruitment process for failure on his part to secure the
qualifying marks in the interview segment of the recruitment process, in-
as-much as, it was held that the said stipulation was made after the
initiation of the recruitment process. Basing on the said conclusion, it was
held by the learned Single Judge that the appellant, herein, was entitled for
being included in the select list. The said conclusion of the learned Single
Judge in view of the conclusions drawn by us, hereinabove, would not merit
acceptance and accordingly, stands interfered with. However, such
interference would not be of any consequence insofar as the merit of the
present appeal, is concerned.
24. In view of the above; the instant writ appeal is held to be bereft of
any merit and accordingly, the same is hereby dismissed. However, there
shall be no order as to costs.
JUDGE CHIEF JUSTICE
Comparing Assistant
