Gauhati High Court
Page No.# 1/13 vs The State Of Assam And 5 Ors on 8 May, 2025
Author: Devashis Baruah
Bench: Devashis Baruah
Page No.# 1/13
GAHC010263422024
2025:GAU-AS:5859
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/6669/2024
PARVEZ ALI AHMED
S/O- ASHRAF ALI AHMED, R/O- VILLAGE SONAPUR, P.O. FEKAMARI, P.S.
MANKACHAR, DISTRICT- SOUTH SALMARA MANKACHAR, ASSAM, PIN
CODE- 783135
VERSUS
THE STATE OF ASSAM AND 5 ORS.
THROUGH THE COMMISSIONER AND SECRETARY, TO THE GOVERNMENT
OF ASSAM, JUDICIAL DEPARTMENT, DISPUR, GUWAHATI- 781006
2:GAUHATI HIGH COURT
THROUGH- THE REGISTRAR GENERAL GUWAHATI- 781001
3:DISTRICT AND SESSIONS JUDGE
SOUTH SALMARA MANKACHAR
FEKAMARI DISTRICT SOUTH SALMARA MANKACHAR
ASSAM
PIN CODE- 783135
4:THE CHAIRMAN/MEMBER - 1
SELECTION BOARD CUM CHIEF JUDICIAL MAGISTRATE
SOUTH SALMARA MANKACHAR
FEKAMARI
DISTRICT SOUTH SALMARA MANKACHAR
ASSAM
PIN CODE- 783135
5:THE CHIEF JUDICIAL MAGISTRATE
SOUTH SALMARA MANKACHAR
FEKAMARI
DISTRICT SOUTH SALMARA MANKACHAR
Page No.# 2/13
ASSAM
PIN CODE- 783135
6:SRI. SANKAR DAS
C/O CHIEF JUDICIAL MAGISTRATE
SOUTH SALMARA MANKACHAR
FEKAMARI
DISTRICT SOUTH SALMARA MANKACHAR
ASSAM
PIN CODE- 78313
For the Petitioner(s) : Mr. B. D. Das, Sr. Advocate
: Mr. H. Rohman, Advocate
For the Respondent(s) : Mr. H. K. Das, SC, GHC
: Mr. M. Khan, Advocate
Date of Hearing : 08.05.2025
Date of Judgment : 08.05.2025
BEFORE
HONOURABLE MR. JUSTICE DEVASHIS BARUAH
JUDGMENT AND ORDER (ORAL)
Heard Mr. B. D. Das, the learned Senior counsel assisted by Mr. H.
Rohman, the learned counsel appearing on behalf of the petitioner and Mr.
H. K. Das, the learned Standing counsel appearing on behalf of the Gauhati
High Court. I have also heard Mr. M. Khan, the learned counsel appearing on
behalf of the respondent No.6.
2. The issue involved in the present of writ petition is the challenge to the
order bearing No.250 dated 09.12.2024 issued by the Chief Judicial
Magistrate, South Salmara, Mankachar (hereinafter referred to as 'the
impugned order') primarily on the ground that the respondent authorities in
order to appoint the respondent No.6 had given very high marks in the viva-
Page No.# 3/13
voce test compared to all other candidates including the petitioner that too
without prescribing such type of marks prior to the advertisement or till such
date the respondent Selection Board had learnt that the petitioner herein
had secured high marks in the test so conducted by the District Transport
Authority.
3. To ascertain the merits of the said challenge, it is relevant to take note
of the facts which led to the filing of the instant writ petition.
4. On 20.05.2022, the Chief Judicial Magistrate who is the respondent
No.5 in the instant proceedings had issued an advertisement calling from
intending eligible candidates for filling up of various posts. The subject
matter of the instant writ petition pertains to the post of driver. In the said
advertisement, the details in respect to the driver being relevant is
reproduced herein under.
Sl. Name of No. of Category Scale of Pay Educational
No. Post Posts with Grade Pay Qualifications
2. Driver 01 Unreserved-01 Rs.14000-49000 Minimum Class VIII
+ GP Rs.5200 standard. Candidates
(PB-2) must hold valid
Driving License to
drive LMV/Four
wheeler vehicles for
not less than 5 (five)
years.
5. From the above quoted portion, it would be seen that the post in
question was for an unreserved category candidate and the educational
qualifications necessary was minimum Class-VIII standard and a candidate
Page No.# 4/13
must hold valid Driving License to drive LMV/four wheeler vehicles for not
less than 5 years. Clause-11 of the said advertisement further stipulated that
those candidates applying for the post of Driver shall have to appear in a
Driving Test to be conducted by the District Transport Authority, South
Salmara, Mankachar and viva voce. Certain records were placed before this
Court when this Court heard this matter on 01.05.2025 wherefrom it would
be seen that a resolution was adopted on 18.11.2024 that the 60 marks
would be allotted for viva voce. It is not out of place to mention that this
resolution was adopted on 18.11.2024 after the District Transport Authority
carrying out the assessment of the various candidates who applied for the
post of the Driver had assessed the petitioner at 70 marks out of 100 and
the respondent No.6 at 40 marks out of 100.
6. This Court enquired with the learned Standing counsel appearing on
behalf of the Gauhati High Court as to whether there was any resolution
adopted prior or immediately after the issuance of the advertisement as to
how the marks would be allocated towards the Driving Test as well as for
viva voce. No such resolution was adopted is the submission so made by the
learned Standing counsel appearing on behalf of the Gauhati High Court.
The learned counsel further submitted that it was only on 18.11.2024 that a
resolution was adopted to hold the viva voce test for 60 marks in view of the
fact that the District Transport Authority had already assessed the various
candidates for the post of the Driver upon 100 marks i.e. 30 marks for Traffic
Signal Test and 70 marks for Driving Test.
7. Proceeding further, it is relevant to take note of that in terms with the
resolution so adopted on 18.11.2024, the respondent No.6 was granted 55
Page No.# 5/13
marks out of 60 whereas the petitioner was granted only 20 marks. The
records so produced today before this Court reveals that the Selection Board
consisting of three members had given individual marks to the candidates
out of 20 and the aggregate of the marks given by the three members was
taken into consideration. The petitioner was given 20 marks by the three
members out of 60 whereas the respondent No.6 was given 55 marks out of
60 and thereby the respondent No.6 marched ahead with 95 marks
compared to the petitioner receiving 90 marks. It is under such
circumstances, the present writ petition has been filed.
8. This Court vide an order dated 11.12.2024 while issuing notice, this
Court stayed the filling up of the post of the Driver and the interim order has
been continued since then.
9. The respondent Nos. 2 to 5 has filed an affidavit-in-opposition. In the
said affidavit-in-opposition so filed by the respondent Nos. 2 to 5, it was
mentioned that 60 marks was fixed for viva voce which was distributed
amongst the three members in 20 marks each and therefore there was no
excessive mark allotted for viva voce. It was mentioned that in the High
Court, the manner of assessment for the post of the Driver cannot be
equated and there being no challenge to the advertisement, the petitioner
cannot question the factum of not specifying the marks of different tests in
the advertisement. It was mentioned that the predecessor of the deponent
vide a letter dated 13.10.2022 only requested the DTO, South Salmara,
Mankachar to undertake skill test. However, the concerned MVI on his own
awarded marks in two components totaling to 100 marks i.e. 70 marks for
driving skill test and 30 marks for traffic signal test. It was further stated
Page No.# 6/13
that the petitioner herein got 45 out of 70 and the selected candidate got 30
out of 70 in the driving test and there was nothing to be shocked and
arbitrary in earmarking 60 marks for viva voce followed by distribution of the
said amongst the three members as 20 marks each.
10. It was also mentioned that all the candidates were awarded marks
based upon their replies/answers to the questions put to them, their
presentation, attitude, manner and demeanor before the Selection Board. It
was also mentioned that other candidates had secured more marks than the
petitioner. At paragraph No.10 of the said affidavit, it was mentioned that as
the petitioner was driving 108 ambulance for the last 11 years which he
stated during his viva voce held on 05.12.2023 and as the petitioner did not
drive any official or private vehicle for the last 11 years, the petitioner was
not well accustomed to certain ways of driving inasmuch as an ambulance
usually gets some relaxation under the traffic rules and regulations being on
emergency duty and driving 108 ambulance for such a long period creates
doubt in the mind of the Selection Board as to whether he would be having
the qualities of driving official vehicle of a Judicial Officer which requires
utmost care, responsibility and has to observe some restrictions as per
norms/protocols of the District Judiciary.
11. The respondent Nos. 2 to 5 to the affidavit-in-opposition have
enclosed various advertisements so issued by the different District Judiciary
establishment within Assam for the post of Driver to substantiate that in all
these advertisements, there is no mention about what marks is to be
allocated.
12. This Court has further taken note of the communication dated
Page No.# 7/13
13.10.2022 which was issued by the respondent No.5 to the District
Transport Officer wherein the District Transport Officer was asked to shortlist
candidates suitable for the post of Driver in the establishment by carrying
out a driving skill test.
13. The respondent No.6 has also filed an affidavit-in-opposition whereby
the respondent No.6 justified his selection.
14. To the affidavit-in-opposition filed by the official respondents as well as
by the private respondent, affidavit-in-replies were filed by the petitioner
stating inter alia that the petitioner apart from driving 108 ambulance vehicle
had also been driving LMV/four wheeler private vehicles including of his
elder brother. It was also mentioned that the petitioner has other skills apart
from driving skills as is required for a driver such as road sense, road safety,
driving habit, location, GPS navigation knowledge etc. for which he had been
awarded 25 out of 30 marks whereas the respondent No.6 had been
awarded only 10 marks in traffic signal test. It was also mentioned that as
the petitioner had an amicable temperament, personality, behavior and
attitude, he had been driving 108 ambulance for the last 11 years without
any complaint from any quarter and the said fact was apparent from the
records.
15. This Court while hearing the matter also seen the records. Upon
perusal of the records, it is seen that the three members of the selection
board have awarded the respondent No.6 with 18, 18 and 19 marks
respectively totaling to 55 out of 60 whereas the petitioner has been
awarded only 20 marks in aggregate.
Page No.# 8/13
16. In the backdrop of the above, this Court has duly heard the learned
counsels appearing on behalf of the parties and duly taken note of their
respective submissions.
17. From the above discussions, it would be seen that the advertisement
which was issued did not contain the marks to be allocated to the two tests
to be conducted i.e. driving test as well as to the viva voce test. There is
also no materials on record to show that immediately prior or post the
advertisement, there was any resolution adopted by the Selection Board as
to how marks would be allocated towards the driving test as well as towards
the viva voce test. In fact, a perusal of the communication dated
13.10.2022, issued by the respondent No.5 enclosed as Annexure-R2 to the
affidavit-in-opposition of the respondent Nos. 2 to 5 also do not mention as
to on what basis or what marks, the said driving test is required to be
conducted.
18. From a reading of the affidavit-in-opposition filed by the respondent
No.5 and the communication issued dated 13.10.2022, it appears that once
the driving test is conducted, the selection will be made on the basis of viva
voce. Though the respondent Nos. 2 to 5 in their affidavit-in-opposition have
enclosed various advertisements issued by the various establishment of the
District Judiciary to show that in all such advertisements there is no mention
of marks to be allocated towards the driving test as well as the viva voce but
there appears to be no justification as to why the selection procedure was
not formulated prior to the advertisement or even immediately post the
advertisement. There is also no justification why 60 marks was allocated for
viva voce on 18.11.2024 and not any other marks.
Page No.# 9/13
19. In the case of Kiran Gupta and Others Vs. The State of U.P. and Others
reported in (2000) 7 SCC 719, the Supreme Court observed that there is no
rule of thumb with regard to allotment of percentage of marks for interview.
It depends on several factors and a question of permissible percentage of
marks for an interview test has to be decided on the facts of each case.
20. In a recent judgment of the Supreme Court in the case of State of
Assam and Others Vs. Arabinda Rabha and Others reported in (2025) SCC
Online SC 523, the Supreme Court observed that it cannot be gainsaid that
the factors of "when", "which", "what", "who" and "how" that are associated
with the recruitment/selection process is the prerogative of the recruiting
authority and the selectors; however, at the same time the process has to be
conducted consistent with the statutory provisions governing the same, if
any, as well as the principles of absolute fairness and complete non-
arbitrariness. The Supreme Court observed that what would be the various
stages the candidates aspiring for appointment have to pass through in
order to be placed in the select list, who would be the selectors and how the
weightage is to be given to each of the testing methods, a great deal of
credence is lent to the process if it is fairly and transparently conducted in
accordance with the rules, whatever be its source, without the slightest hint
of any bias or favoritism on nepotism. It was observed that normally it is not
for the Courts to interfere unless the process smacks of malafide. The
Supreme Court observed that taking into account that a right to be
considered for public employment being a Fundamental Right, it would be
safe and prudent to have recruitment rules to govern the process of
selection so that the best possible talent is appointed in public service.
Page No.# 10/13
Paragraph 35 of the said judgment being relevant is reproduced herein
under:
"35. It cannot be gainsaid that the factors of "when", "which", "what", "who"
and "how" that are associated with a recruitment/selection process is the
prerogative of the recruiting authority and the selectors; however, at the same
time, the process has to be conducted consistent with statutory provisions
governing the same, if any, as well as principles of absolute fairness and
complete non-arbitrariness. Though it is true that the law does not postulate a
fetter on the authority of the employer-State and it is within the domain of the
Government when to initiate a process of recruitment for public employment,
either according to recruitment rules or even in the absence thereof, it is for the
Government of the day to decide in which manner it proposes to conduct
selection, what would be the various stages the candidates aspiring for
appointment have to pass through in order to be placed in the select list, who
would be the selectors, and how weightage is to be given to each of the testing
methods, a great deal of credence is lent to a process if it is fairly and
transparently conducted in accordance with rules, whatever be its source, without
the slightest hint of any bias or favouritism or nepotism. Normally, it is not for the
courts to interfere unless the process smacks of mala fides. However, the right to
be considered for public employment being a Fundamental Right, it would be safe
and prudent to have recruitment rules to govern the process of selection so that
the best possible talent is appointed in public service. Obviously, assessing the
merit of the candidates aspiring for public employment on the basis of a
prescribed standard would not only provide a level playing field for each of them,
the excellence of any institution to which the appointment is to be made would
depend directly on the proficiency of its members/staff and that would, in turn,
depend on the quality and merit of those who offer themselves for selection and
ultimately get selected, necessitating the selection to be conducted without any
hidden taint or masked mala fides. Last but not the least, having regard to
present times when corruption has been held to be a walk of life by certain
Page No.# 11/13
responsible citizens of the country, it would have been desirable if the process of
recruitment of 104 Constables were conducted after framing of recruitment rules
and also prescribing a written examination to keep the process absolutely above
board."
21. This Court further finds it also relevant to take into consideration the
submissions so made by the learned counsels appearing on behalf of the
respondents that there is no challenge to the advertisement on the ground
that the selection process have not been mentioned in advertisement and
how much marks would be awarded for each. It is the opinion of this Court
that there is no requirement of challenging the advertisement if the selection
process is in the teeth of Articles 14 and 16 of the Constitution.
22. In the instant case, it would be seen that neither prior or immediately
post the advertisement, the Selection Board envisaged what would be the
marks to be allocated for each of the test, i.e. Driving Test as well as the
viva voce. It further appears from the very records, reference to which was
made in the order dated 01.05.2025 that it was only on 18.11.2024 after
ascertaining what marks have been allocated by the District Transport
Authority, the Selection Board then decided that they would have 60 marks
on account of viva voce. There is no reason why 60 marks was required. No
doubt, the respondent authorities had the right to choose how much marks
are required to be given but the timing of fixing the marks of 60 at a stage
after learning that the marks obtained by the candidates smacks of malice in
law. This Court is of the opinion that when a selection process is initiated,
the process has to be fair and transparent. Transparency is the hall mark of
a valid selection process. The non-fixing of the method of selection prior or
Page No.# 12/13
immediately after the advertisement and the allocation of 60 marks at this
fag end of the selection proceedings do not reflect that the selection
proceedings was conducted in a fair and transparent method. Lack of
fairness and transparency violates the mandate of Articles 14 and 16 of the
Constitution. Accordingly, the entire selection process is required to be
interfered including the order of appointment of the respondent No.6 which
is impugned in the instant proceedings.
23. This Court further takes note of the submission of Mr. B. D. Das, the
learned Senior counsel appearing on behalf of the petitioner to the effect
that the petitioner herein as on date is nearing 43 years and as such, if the
selection proceedings is interfered with, the petitioner should be granted age
relaxation upon issuance of a fresh advertisement.
24. In view of the above analysis and determination, this Court disposes of
the instant writ petition with the following observations and directions:
(i) The selection to the post of the Driver in the establishment of the Chief
Judicial Magistrate, South Salmara, Mankachar dated 05.12.2024 is
interfered with.
(ii) The notification dated 05.12.2024 by which the respondent No.6 herein
was selected for the post of the driver is interfered with.
(iii) The impugned order bearing No.250 dated 09.12.2024 issued by the
Chief Judicial Magistrate, South Salmara, Mankachar is interfered with.
(iv) The respondent No.5 is directed to carry out a fresh selection to the
post of the Driver. In doing so, the Selection Board of the establishment of
Page No.# 13/13
the respondent No.5 shall issue an advertisement which apart from
containing the various other details, shall mention the selection process and
the marks to be allocated against such selection process.
(v) The petitioner along with other eligible candidates who had
participated in the selection process pursuant to the advertisement dated
10.04.2023 shall be granted appropriate age relaxation.
(vi) Interim order passed on 11.12.2024 stands vacated.
JUDGE
Comparing Assistant
