Gauhati High Court
WP(C)/7615/2017 on 7 January, 2025
Author: Manish Choudhury
Bench: Manish Choudhury
Page No. 1/14
GAHC010244702017
2025:GAU-AS:438
THE GAUHATI HIGH COURT
[THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH]
WRIT PETITION [C] NO. 7615/2017
Sri Pramud Kumar Mili, S/o Sri Nanda Kumar
Mili, R/o - Village - Taxi Mathadong, P.O.
Chaukora, District - Sivasagar, Assam.
..................Petitioner
-VERSUS-
The State of Assam to be represented by the
Commissioner and Secretary to the
Government of Assam, Department of
Industry and Commerce, Dispur, Guwahati -
781006.
2. The Industries and Commerce, Assam,
represented by its Commissioner, Assam
Udyog Bhawan, Bamunimaidam, Guwahati -
781021, Kamrup [M], Assam.
3. The Commissioner, Industries and
Commerce, Assam Udyog Bhawan,
Page No. 2/14
Bamunimaidam, Guwahati - 781021,
Kamrup [M], Assam.
4. The General Manager, District Industries and
Commerce, Kamrup, Bamunimaidam,
Guwahati - 781021, Kamrup [M], Assam.
5. The General Manager, District Industries and
Commerce Centre, Sivasagar, Dist.
Sivasagar, Assam.
6. The Assistant Director, Cottage Industries,
Sonari, Dist. Sivasagar, Assam.
7. Nirupam Barua, S/o Sri Gobind Ch. Barua,
R/o Vill/Town - Amolapatty, H.C.B. Road,
P.O. Sivasagar, Dist. Sivasagar, Assam.
8. Deborshi Bora, D/o Lt. Mohendra Bora, R/o
Vill/Town - Nahor Ali, Sonari Town, Ward No.
1, P.O. Sonari, Dist. Charaideo, Assam.
9. Chintumoni Handique, S/o Lt. Gojen
Handique, R/o Vill/Town - Santipur,
Moranhat, P.O. Moranhat, Dist. Charaideo,
Assam.
10. Rajib Deori, S/o Sri Khogen Deori, R/o
Vill/Town - Koliapani, P.O. Demow, Dist.
Sivasagar, Assam.
...................Respondents
Advocates :
Petitioner : Mr. M.K. Sharma, Advocate
Respondent nos. 1 - 6 : Mr. A. Kalita, Standing Counsel,
Industries and Commerce
Department
Date of Hearing, Judgment & Order : 07.01.2025
BEFORE
HON'BLE MR. JUSTICE MANISH CHOUDHURY
JUDGMENT & ORDER
The instant writ petition under Article 226 of the Constitution of India is
preferred to assail a process of selection and appointment initiated by an
Advertisement published in January, 2015 under the hand of the
Commissioner of Industries & Commerce, Assam for filling up a number of
vacancies in the post of Junior Assistant in different offices, to be mentioned
hereinafter. The petitioner has inter-alia sought setting aside and quashing of
the appointment of the respondent no. 9 in the post of Junior Assistant, made
pursuant to the selection process initiated vide the Advertisement in the post
of Junior Assistant, on the premise that the respondent no. 9 has been treated
as an OBC candidate in the selection process. The petitioner has also sought
setting aside and quashing of the appointment of the respondent no. 10 on
the ground that the respondent no. 10 has been treated as an ST[P]
candidate. The petitioner has also sought a direction for considering his case
for appointment as Junior Assistant in the post reserved for ST[P] in the
establishment of the respondent no. 6 in terms of the merit list, as advertised
in the Advertisement.
2. The genesis of the challenge is an Advertisement published in the daily English
newspaper, 'The Assam Tribune' in its issue dated 13.10.2015.
3. By the Advertisement, which was issued under the hand of the Commissioner
of Industries & Commerce, Assam, Guwahati, applications were invited for
filling up a number of vacancies in the post of Junior Assistant in the offices of
the General Manger, District Industries & Commerce Centre, Kamrup [Metro],
Shivsagar, Nagaon, Karimganj, Jorhat and the office of the Assistant Director
of Cottage Industries, Sonari in the Pay Band - 2 of Rs. 5,000-20,000/- and
Grade Pay of Rs. 2,200/- per month plus other allowances, as admissible
under the Government Rules from time to time.
4. The relevant excerpts of the Advertisement, showing the vacancies advertised
for the various offices, are extracted hereinbelow :-
No. of Application to be Exam
Name of Office Name of Post Category
Vacancy submitted Centre
District Industries & District Industries &
Commerce Centre, Junior Assistant 1 ST[P] Commerce Centre, Guwahati
Kamrup [Metro] Kamrup [Metro]
District Industries & District Industries &
GEN - [1]
Commerce Centre, 2 Commerce Centre, Sivasagar
SC - [1]
Sivasagar Sivasagar
Junior Assistant
Asst. Director of GEN - [1]
Asst. Director of Cottage
Cottage Industries, 3 ST[P] - [1] Sonari
Industries, Sonari
Sonari SC - [1]
District Industries and District Industries and
Commerce Centre, Junior Assistant 1 GEN Commerce Centre, Nagaon
Nagaon Nagaon
District Industries & District Industries and
Commerce Centre, Junior Assistant 1 GEN Commerce Centre, Karimganj
Karimganj Nagaon
District Industries &
District Industries &
Commerce Centre, Junior Assistant 1 GEN Jorhat
Commerce Centre, Jorhat
Jorhat
5. In the Advertisement, the selection procedure to be followed was also
mentioned. As per the Advertisement, the candidate would be selected
through a written test and a practical test on computer, followed by oral
interview. The written test paper would contain 60 marks of multiple choice
questions, the practical test would contain 25 marks and oral interview would
contain 15 marks. It was further mentioned that the candidate obtaining 60%
and above in the written test would be qualified for the practical test. The
qualifying marks in practical test was 70% of total marks earmarked of the
practical test. The Advertisement further stipulated that those who were
qualified in the practical test would be called for the oral interview. The final
merit list would be prepared on the basis of marks obtained in the written
test, the practical test and the oral interview.
6. Responding to the said Advertisement, the petitioner and others submitted
their applications. The petitioner has stated that he belongs to the Scheduled
Tribes [Plains] category and he submitted his candidature finding that the
Advertisement mentioned about a vacancy in the post Junior Assistant for
ST[P] in the Office of the Assistant Director, Cottage Industries, Sonari [the
respondent no. 6].
7. The petitioner has stated that in the selection process, he qualified in the
written test and the practical test. After conclusion of the written test and the
practical test, the petitioner appeared along with the other qualifying
candidates in the oral interview. As in the estimation of the petitioner, he
performed well in the oral interview and he was likely to be selected for the
post of Junior Assistant reserved for a candidate belonging to ST[P] in the
Office of the Assistant Director of Cottage Industries, Sonari [the respondent
no. 6], he was expecting that his name would figure in the selection list, to be
published by the respondent authorities. However, the petitioner did not
receive any information as to whether the process of selection was brought to
its logical conclusion as the respondent authorities did not publish the final
merit list despite elapse of sufficient time period after completion of the
interview process. The petitioner thereafter, made applications under the
Right to Information Act to obtain information about the process of selection
initiated by the Advertisement dated 13.10.2015 and the consequent
appointments made, if any. On the basis of the information the petitioner
received under the RTI Act, the petitioner came to learn that the respondent
authorities had prepared a merit list, purportedly on 04.03.2016, wherein the
name of the petitioner had figured at merit position no. 14. The petitioner also
came to learn that against five advertised vacancies, only four appointments
had been made and the respondent no. 7 to respondent no. 10 were
appointed in those four posts on 09.01.2017.
8. Alleging commission of irregularities by the respondent authorities in the
process of selection undertaken pursuant to the Advertisement dated
13.10.2015 and appointments made thereafter, the petitioner has preferred an
instant writ petition seeking inter-alia the reliefs, mentioned herein.
9. I have heard Mr. M.K. Sharma, learned counsel for the petitioner; and Mr. A.
Kalita, learned Standing Counsel, Industries and Commerce Department for
the respondent nos. 1 - 6. Notices were issued and served upon the
respondent no. 7 to the respondent no. 10 through the respondent no. 5, who
has submitted an affidavit placing on record the notices served upon the
respondent nos. 7 - 10. Despite service of notices upon the respondent nos. 7
- 10, none of them has appeared in the instant proceedings.
10. Mr. Sharma, learned counsel appearing for the petitioner has submitted that
the offices of the District Industries and Commerce Centre, Sivasagar and the
Assistant Director of Cottage Industries, Sonari had five vacancies in the post
of Junior Assistant in total and out of those five vacancies, one post was
reserved for the candidate belonging to ST[P]. Out of the remaining four, two
were shown for general category [unreserved] candidates and two were
shown reserved for SC category candidates. But the respondent authorities
had deviated from the vacancy position shown in the Advertisement and
appointed only four candidates, that too, three candidates from the general
category and one candidate from the OBC category. It is his contention that
there was no Advertisement for filling up any post by a candidate from the
OBC category.
10.1. Drawing attention to the merit list, Mr. Sharma has contended that had the
respondent authorities adhered to the Advertisement, the petitioner would
have been appointed for the post reserved for ST[P] category as there was
only one candidate from the ST[P] category in a higher position in the merit
list than the petitioner, that is, the respondent no. 10. The petitioner was
provided with the information under the RTI Act that the respondent no. 10
was appointed against roster point no. 2, which was a post reserved for OBC
category. It is his further contention that the records of the respondent no. 6
relating to roster register goes to indicate that the roster point no. 3, reserved
for unreserved category, was to be filled up by a candidate from ST[P] under
backlog. Mr. Sharma has contended that such irregularities committed by the
respondent authorities in the process of selection and appointment have
vitiated the entire selection process. It is his further contention that there is
already a vacancy for ST[P] in the post of Junior Assistant in the establishment
of respondent no. 6 and a direction may be issued to the respondent
authorities to consider the case of the petitioner against the said vacancy.
11. Au Contraire, Mr. Kalita, learned Standing Counsel, Industries and Commerce
Department appearing for the respondent nos. 1 - 6 has submitted that
inadvertently, some mistakes regarding vacancy position had crept in in the
Advertisement dated 13.10.2015. He has contended that at the time of
publication of the Advertisement, the post based roster registers for the
offices of the respondent no. 5 and the respondent no. 6 were not finalized
and approved by the Government and it was only on 30.12.2016, the
competent authority in the Industries & Commerce Department had accorded
approval to the post based roster registers in the cadre of Junior
Administrative Assistant [JAA] in the establishments of the respondent no. 5
and the respondent no. 6. After approval of the post based roster registers, it
was found out that there was only one vacancy at the relevant time in the
establishment of the respondent no. 5 and the said vacancy was meant for
unreserved category. On the other hand, as per the post based roster register
for the post of Junior Assistant in the establishment of the respondent no. 6,
there were three vacancies at the relevant time and out of those three
vacancies, 2nd vacancy and 4th vacancy were to be filled up from candidates of
unreserved category and 3rd vacancy was to be filled up through a candidate
belonging to the OBC category. By projecting so, Mr. Kalita has submitted that
the appointments were made on the basis of the actual vacancy positions at
the relevant time and as per the approved post based roster registers
maintained for the establishment of the respondent no. 5 and the respondent
no. 6. With such submissions, he has contended that no interference in the
case is called for, as the petitioner is not in such a position in the merit list to
assail the appointments of the respondent no. 7 to the respondent no. 10,
who figured in the merit position no. 1 to 4 in the merit list.
11.1. Mr. Kalita has further submitted that since no vacancy for ST[P] was in
existence at the relevant time, there cannot be any consideration of the case
of the petitioner against any further vacancy.
12. I have duly considered the submissions of the learning counsel for parties and
have also perused the materials brought on record by the learned by the party
through their pleadings.
13. After publication of the Advertisement and scrutiny of the applications
received from the candidates, the respondent authorities proceeded with the
selection process by conducting the written test at first and thereafter, the
practical test. Oral interview, as per the selection procedure mentioned in the
Advertisement, were held amongst the candidates qualified after the first two
tests. The petitioner and the other candidates appeared in the written test at
first and thereafter, the qualified candidates appeared in the practical test.
The petitioner was one of the candidates who had qualified in the written test
to appear in the practical test. As the petitioner secured qualifying marks in
the practical test as well, he was called to appear in the oral interview along
with the other qualifying candidates. The selection process was held district-
wise.
14. After completion of the selection process, the respondent authorities had
prepared a merit list on the basis of marks obtained in the written test, the
practical test and the oral interview on 04.03.2016. As per the merit list, the
petitioner securing 72.5 marks, figured in merit position 14, meaning thereby,
there were thirteen candidates who secured higher marks than the petitioner
after the three stage of the selection process. For ready reference, the merit
list of first fourteen candidates are extracted hereinbelow :-
TOTAL MARKS OBTAINED [Written,
Sl Roll No. Category Name
Computer, Practical, Viva]
1 404 Gen 86.25 Nirupam Barua
2 233 ST[P] 83.25 Rajib Deori
3 239 OBC 81.75 Chintamoni Handique
4 318 Gen 81.75 Deborshi Borah
5 393 OBC 80.75 Mridul Baruah
6 346 Min 79.75 Bastab Hussain
7 209 Gen 76.50 Angraj Kakoty
8 210 Min 74.50 Mustafijur Rahman
9 231 OBC 74.25 Purobi Borah
10 317 OBC 74.00 Saurav Borah
11 100 SC 74.00 Hamen Das
12 75 MOBC 73.20 Rupam Khanikar
13 257 SC 73.00 Tinamoni Das
14 225 ST[P] 72.50 Pramud Kumar Mili
15. From the merit list, it transpires that the names of the respondent no. 7, the
respondent no. 8, the respondent no. 9 and the respondent no. 10 figured at
merit position no. 1, merit position no. 4, merit position no. 3 and merit
position no. 2 respectively. After publication of the merit list, the respondent
no. 6 to the respondent no. 10 came to be appointed in the post of Junior
Assistant on 09.01.2017.
16. In the affidavit-in-opposition filed by the respondent nos. 1 - 6, it has been
admitted that the Advertisement showed the vacancy position in Sivasagar
District as five which included two vacancy positions in the establishment of
the District Industries and Commerce Centre, Sivasagar and three vacancy
positions in the establishment of the Assistant Director of Cottage Industries,
Sonari. It has been further averred that the above vacancy positions were not
shown as per the post based roster registers for Junior Assistant for Sivasagar
District, as the post based roster registers were not then approved by the
competent authority in the State Government at that point of time. Due to the
above situation, there was a mistake in showing the number of vacancy
positions in respect of Sivasagar District in the afore-stated Advertisement.
The respondents have further averred that there were only four vacancies of
Junior Assistants to be filled up at the relevant point of time in the Sivasagar
District.
17. It is noticed from a Communication bearing no. Cl.52/2016/36 dated
30.12.2016 of the Industries & Commerce Department, Government of Assam
and addressed to the Commissioner, Industries & Commerce, Assam that the
State Government in the Industry & Commerce Department had accorded
approval to the post based roster registers for Junior Administrative Assistant
[Junior Assistant] in Sivasagar District only on 30.12.2016, that is, after
publication of the Advertisement on 13.10.2015. As per the approved post
based roster registers, the cadre strength of Junior Administrative Assistant
[Junior Assistant] in the establishment of the respondent no. 5 was shown as
four and similarly, the cadre strength of Junior Administrative Assistant [Junior
Assistant] in the establishment of respondent no. 6 was shown as 4. The
approved post based roster registers in the establishment of the respondent
no. 5 indicated the cadre strength as : 4 nos. [STP : Roster Position Point
[R.P.] no. 5; SC : R.P. no. 8; STH : R.P. no. 14; and OBC / MOBC : R.P. nos.
2, 6 & 10]. The approved post based roster registers in the establishment of
the respondent no. 6 indicated the cadre strength : 4 nos. [STP : Roster
Position Point [R.P.] no. 5; SC : R.P. no. 8; STH : R.P. no. 14; and OBC /
MOBC : R.P. nos. 2, 6 & 10].
18. It was on the basis of the approved post based roster registers dated
30.12.2016, the respondent no. 5 and the respondent no. 6 prepared their
respective post based roster register. As per the post based roster register of
the establishment of the respondent no. 5, there was one vacancy in the post
of Junior Administrative Assistant [Junior Assistant] at Roster Point no. 4 at
the relevant point of time and the same was to be filled up by a candidate
from the unreserved [UR] category. On the other hand, as per the approved
post based roster register of the establishment of the respondent no. 6, there
were three vacancies to be filled up in the post of Junior Administrative
Assistant [Junior Assistant] at Roster Point nos. 2, 3 & 4 and they were meant
for OBC, unreserved [UR] and unreserved [UR] categories respectively. On
perusal of the approved post based roster registers, it transpires that at the
time of Advertisement as well as at the time of making the appointments,
there was no vacancy in the approved post based roster registers for either
ST[P] or SC category. As mentioned earlier, the sanctioned cadre strength in
the establishment of the respondent no. 5 and the respondent no. 6 are four
each respectively. There is no dispute to the settled proposition that vacancies
can be filled up only as per the sanctioned strength in the cadre and not
beyond. Thus, at the relevant time, there are only three vacancies to be filled
up by candidates from unreserved [UR] category and one vacancy to be filled
up by candidate from OBC category in the establishments of the respondent
no. 5 and the respondent no. 6.
19. In so far as the contention of the learned counsel for the petitioner regarding
existence of a vacancy in the post of Junior Administrative Assistant [Junior
Assistant] for ST[P] is concerned, the same after consideration, is not found
acceptable for the reason that at the relevant time, there was no vacancy for
the candidate in the approved post based roster registers in the
establishments of the respondent no. 5 and the respondent no. 6 qua the
cadre strength of those two establishments for a candidate belonging to ST[P]
category.
20. Reverting back to the merit list, it is found that though the respondent no. 10
belonged to the ST[P] category, he secured 2 nd merit position by virtue of the
marks he obtained in the selection process and as a result, he came to be
appointed against a post meant for unreserved [UR] category. The respondent
no. 7, who secured the highest marks and belonged to the unreserved [UR]
category, came to be appointed as per his 1st merit position. On the other
hand, the respondent no. 8 and the respondent no. 9 secured the same total
marks, 81.75 and they were appointed for the remaining two vacancies
belonging to the unreserved [UR] category and OBC category respectively.
Amongst the candidates belonging to ST[P] categories whose names figured
in the merit list containing the names of fifty-seven candidates, the petitioner
secured the 2nd merit position. It is true that had a vacancy been available, as
per the Advertisement dated the 13.10.2015, for the ST[P] category, the
petitioner could have been appointed in the post shown for ST[P] category as
the respondent no. 10 would have been appointed, by virtue of its 2 nd merit
position, against a vacancy meant for unreserved [UR] category. But, for the
fact that there was no vacancy as per the cadre strength in the establishment
of the respondent no. 5 & the respondent no. 6 and as per the approved post
based roster registers for a candidate belonging to the ST[P] category at the
relevant time, the petitioner could not be appointed ultimately.
21. It is also a fact that in the Advertisement, it was not mentioned that there was
any vacancy for the OBC category. Yet, at the end of the selection process,
the respondent no. 9 came to be appointed in a vacancy in the post of Junior
Administrative Assistant [Junior Assistant] in the establishment respondent no.
6 as an OBC category candidate. It does not appear that such appointment of
respondent no. 9 as an OBC category has affected the legal right of the
petitioner herein in any manner whatsoever, firstly, for the reason that the
petitioner secured much lesser marks than the respondent no. 9; and
secondly, no candidate from the OBC category has challenged the
Advertisement and the selection process culminating in the appointment of the
respondent no. 9. Be that as it may.
22. In view of the discussions made above and for the reasons assigned therein,
this Court finds that the petitioner has not been able to make out any case
that his rights under Article 14 and Article 16 of the Constitution of India have
been violated due to the actions on the part of the respondent authorities
and/or due to the appointment of the respondent no. 7 to the respondent no.
10 made pursuant to the selection process initiated by the Advertisement
dated 13.10.2015. Consequently, the writ petition is found to be devoid of
merits and is liable to be dismissed. It is accordingly ordered.
23. There is one aspect which also requires a consideration. When an
advertisement is published for filling up vacancies, due care and caution is
required to be exercised by the appointing authority so that no discrepancy
creeps in. The appointing authority requires to exercise due diligence before
publication of an advertisement. It cannot be denied that in view of the
unemployment situation, the candidates who respond to an advertisement on
the basis of vacancies shown therein, put efforts in preparation and participate
in the recruitment process with the expectation that they would come out
successful due to their efforts. When a recruitment process consists of written
test, practical test and oral interview, the candidates, to participate in such
recruitment processes, have to make preparation, often arduous, to come out
successful and after participation, they wait for a favourable outcome. In the
case in hand, the Advertisement was published on 13.10.2015 and finally, the
selected candidates came to be appointed on 09.01.2017. The petitioner
herein who after seeing that a post of Junior Assistant in the establishment of
the respondent no. 6 was going to be filled up from candidates belonging to
ST[P] category, participated in the recruitment process and had, in fact,
secured a position in the merit list which might have resulted into his
appointment because of the marks secured and merit position obtained by him
and the respondent no. 10. But, it was due to mistakes, might be bonafide,
committed by the respondent authorities in indicating the vacancy positions in
the advertisement correctly, the petitioner had to undergo the process of
recruitment during the period from 13.10.2015 to 09.01.2017 and had to
come out with empty hands. Similar perhaps are the fates of the candidates
belonging to the SC category as in the Advertisement, two posts were shown
reserved for candidates belonging to the SC category. Had the respondent
authorities exercised due diligence before publication of the advertisement,
such unpleasant situation could have been averted.
24. For the facts mentioned in the preceding paragraph hereinabove, the Court is
of the considered view that the respondent authorities in the Industries &
Commerce Department, more particularly, the respondent no. 3 under whose
hand the Advertisement dated 13.10.2015 was published, shall pay a cost of
Rs. 5,000/- to the petitioner within 1 [one] month from today.
JUDGE
Comparing Assistant
