Page No.# 1/ vs The State Of Assam And 3 Ors
2025 Latest Caselaw 4912 Gua

Gauhati High Court

Page No.# 1/ vs The State Of Assam And 3 Ors on 22 May, 2025

Author: Devashis Baruah

Bench: Devashis Baruah

                                                               Page No.# 1/10

GAHC010107292023




                                                         2025:GAU-AS:6508

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

                        Case No. : WP(C)/2814/2023

         PRABHAKAR KAKATI
         S/O-LATE AJIT KAKATI,
         R/O- VILL- NO 2, GALIYAHATI,
         P.O AND P.S- BARPETA, DIST- BARPETA, ASSAM



         VERSUS

         THE STATE OF ASSAM AND 3 ORS
         REP. BY COMMISSIONER SECRETARY , JUDICIAL DEPARTMENT, GOVT. OF
         ASSAM, DISPUR, GUWAHATI

         2:DISTRICT AND SESSIONS JUDGE
          BARPETA
         ASSAM

         3:NARAYAN DAS
          S/O- BALABHADRA DAS

         R/O- VILLAGE BUDARURTUP

         P.O AND P.S- BARPETA
          DIST- BARPETA
         ASSAM

         4:GAUTAM DAS
          S/O- AMULYA DAS

         R/O- VILLAGE GANAK KUCHI (KANARASATRA)

         P.O- GANAK KUCHI

         P.S- BARPETA
                                                                           Page No.# 2/10

             DIST- BARPETA
             ASSA

For the Petitioner(s)       : Mr. K. Sarma, Advocate


For the Respondent(s)       : Ms. D.D. Barman, Addl. Sr. Govt. Advocate
                              Mr. H.K. Das, Standing Counsel
                              Mr. H.A. Ahmed, Advocate


Date of Hearing                          : 22.05.2025
Date of Judgment                          : 22.05.2025
                                       BEFORE
                        HONOURABLE MR. JUSTICE DEVASHIS BARUAH

                              JUDGMENT AND ORDER (ORAL)

Heard Mr. K. Sarma, the learned counsel appearing on behalf of the petitioner. Ms. D.D. Barman, the learned Additional Senior Government Advocate appears on behalf of the respondent No. 1; Mr. H.K. Das, the learned Standing Counsel appears on behalf of the respondent No. 2 and Mr. H.A. Ahmed, the learned counsel appears on behalf of the respondent No. 3.

2. None appears on behalf of the respondent No. 4.

3. The petitioner herein has assailed the appointment of the respondent No. 3 to the post of the Office Peon (Contractual) primarily on the ground that the respondent No. 3 was appointed to the said post without there being any application filed for the post of the Office Peon (Contractual).

4. Let this Court now take up the facts which led to the filing of the instant proceedings. It is seen from the materials on record that on 12.01.2023, an Page No.# 3/10

Advertisement was issued by the District and Sessions Judge, Barpeta i.e. the respondent No. 2 herein. In terms with the said advertisement, 3 (three) posts were advertised. Two (2) posts were for Office Peon, which was on scale of pay and of the 2 (two) posts, one was reserved for OBC. The third post advertised was a post of Office Peon (Contractual).

5. The petitioner applied for both the posts i.e. Office Peon and Office Peon (Contractual) by filing separate applications and in that regard the petitioner was issued 2 (two) Roll Nos. being Roll Nos. 32 and C-14. The respondent Nos. 3 and 4 also applied for the post of Office Peon and they were assigned Roll Nos. 022 and 050 respectively. It is very relevant to take note of the Advertisement dated 12.01.2023 which categorically stipulates at Clause 11 that no application would be accepted after 30.01.2023.

6. Pursuant to the said submission of applications, the Office of the respondent No. 2 prepared 2 (two) separate lists of the applications accepted to the respective posts. One was the list of candidates for the post of Office Peon which contained names of 123 (One Hundred Twenty Three) candidates. The petitioner's name in the said list was at Serial No. 32, whereas the name of the respondent Nos. 3 and 4 were at Serial Nos. 22 and 50 respectively. It is very pertinent at this stage to mention that a perusal of the Call Letters which were issued on 28.03.2023 enclosed as Annexure- 5 (colly) to the writ petition would show that the respective Roll Nos. for the post of Office Peon in the scale of pay given to the petitioner and the respondent Nos. 3 and 4 were on the basis of the Serial No. maintained in the list of candidates for the post of Office Peon.

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7. It is further seen from the materials on record, more particularly, the Annexure-3 that the Office of the respondent No. 2 had also prepared a list of candidates for the post of Office Peon (Contractual) wherein the petitioner's name is found at Serial No. 14, wherein the names of the respondent Nos. 3 and 4 were not there. The compilation of separate lists which are Annexure-2 and Annexure-3 to the writ petition therefore makes it clear that the respondent No. 2 envisaged separate selection to the respective posts. It also appears that the respondent Nos. 3 and 4 only applied for Office Peon and not Office Peon (Contractual).

8. Be that as it may, the respondent No. 2 issued Call Letters to the petitioner and the private respondents. It is interesting to take note of that in respect to the petitioner, the Call Letter specifically referred to Roll No. 32 which was meant for the post of the Office Peon on the scale of pay and Roll No. C-14 which was for the purpose of Office Peon (Contractual), whereas in respect to the respondent Nos. 3 and 4 they were provided only one Roll No., i.e. Roll No. 022 and 050 respectively, on the basis of the list so prepared, which is Annexure 2 to the writ petition.

9. It is further seen from the order dated 31.03.2023 that 2 (two) persons, namely Pranjal Ojah (General) and Gobinda Das (OBC) were duly selected for the purpose of the post of Office Peon in the scale of pay. It has been brought to the attention of this Court that pursuant to the order dated 31.03.2023 the persons concerned, namely Sri Pranjal Ojah and Sri Gobinda Das have already joined the said post. However, in respect to the Office Peon (Contractual), the respondent No. 3's name was shown as selected and the petitioner was put at Page No.# 5/10

Serial No. 2 of the waiting list.

10. Being aggrieved, the petitioner submitted a representation to the District and Sessions Judge, Barpeta which was rejected vide the communication dated 04.04.2023 and it is under such circumstances, the present writ petition has been filed. It is seen that pursuant to filing of the instant writ petition, this Court issued notice on 24.05.2023, but there was no interim order passed.

11. The record reveals that the respondent No. 2 had filed an affidavit-in- opposition. The stand so taken in the said affidavit-in-opposition is as the advertisement did not specify that for the post of Office Peon in the scale of pay as well as the post for the Office Peon (Contractual) required separate applications, the respondent No. 2 had considered the applications of all the candidates who submitted for the posts of Office Peon in the scale of pay as well as Office Peon (Contractual). It was also mentioned that the lists so prepared are enclosed as Annexure-2 and Annexure-3 to the writ petitioner was for the sake of administrative convenience.

12. The petitioner thereupon submitted a reply reiterating his statements made in the writ petition. It was further mentioned that not having a separate selection process for the post of Office Peon in the scale of pay with the Office Peon (Contractual) in itself makes the entire selection process bad in law and required to be interfered with.

13. In the backdrop of the above, this Court while hearing the learned counsels appearing on behalf of the parties enquired with the learned counsel Page No.# 6/10

who represents the respondent No. 3, as to whether, the respondent No. 3 was appointed pursuant to the order dated 31.03.2023. The learned counsel appearing on behalf of the respondent No. 3 has produced a copy of the order dated 05.04.2023 by which the respondent No. 3 was appointed to the post of Office Peon (Contractual) in the Establishment of the District and Sessions Judge, Barpeta. The contents of the order dated 05.04.2023 being relevant for the purpose of the instant dispute is reproduced herein under:

"OFFICE OF THE DISTRICT & SESSIONS JUDGE::::::::BARPETA

Present :- Sri P.K. Bora, District & Sessions Judge, Barpeta.

O R D E R 05.04.2023

On recommendation of the Selection committee dated 31.03.2023 and in the interest of public service, the following candidate is provisionally appointed as Office Peon (contractual) under the establishment of District & and Sessions Judge, Barpeta in the fix pay of Rs. 15,000/- (Rupees Fifteen Thousand) per month from the date of joining.

     Sl. No.   Name of the Candidate           Address of the Candidate

     1         Sri Narayan Das                 S/o- Balabhadra Das

                                               R/o-Village-Budarurtup,P.O.-    Barpeta,
                                               P.S.-Barpeta, District-Barpeta, Assam

The expenditure will be debitable under the Head of Accounts Major Head 2014, Minor Head 105, Detailed Head 02, Sub-Detail Head 99.

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He is directed to join in his new assignment within 15 days from the date of order subject to production of medical fitness certificate from the competent authority.

Police Verification Report must be satisfactory to the appointing authority. Unsatisfactory Police verification Report will lead to termination of service without assigning any reason.

Inform accordingly.

(Sri P.K. Bora) District & Sessions Judge, Barpeta Memo No. DJB/1447-50 (E), Dated, Barpeta, the 05th day of April, 2023"

14. This Court during the course of the hearing inquired with Mr. H.K. Das, the learned Standing Counsel for the Gauhati High Court as well as the learned counsel appearing on behalf of the respondent No. 3, as to whether, the order dated 05.04.2023 whereby the respondent No. 3 was appointed was supplemented with an agreement fixing a particular period for appointment taking into consideration that the appointment was contractual in nature. Both the learned counsels submitted that there is no such agreement.

15. In the backdrop of the above, let this Court analyse and determine the respective submissions so made by the learned counsels appearing on behalf of the parties which were on the basis of the pleadings so referred to hereinabove.

16. It is seen from the Advertisement dated 12.01.2023, the post of the Office Page No.# 8/10

Peon which is in the scale of pay has been put at Serial No. 1, whereas the Office Peon (Contractual) has been put at Serial No. 2. It is further seen that in the Advertisement dated 12.01.2023, it has been categorically mentioned with the words "Intending candidate shall submit their applications in the standard form of application to the undersigned on or before 30.01.2023 along with all the testimonials". The use of the word "Intending candidate" in the singular followed by the word "applications" to be filed in plural makes it very clear that for each post i.e. Office Peon in the scale of pay and Office Peon (Contractual), separate applications were required to be filed. This aspect of the matter is further clear from the fact that the Office of the respondent No. 2 had prepared 2 (two) separate lists, one for the list of candidates for the post of Office Peon in the scale of pay and one for the list of candidates for Office Peon (Contractual). Those candidates who were in the list of candidates for the post of Office Peon in the scale of pay were provided Roll Nos. on the basis of their Serial No. in the list of candidates for the post of Office Peon in the scale of pay, and those candidates who have applied for the post of Office Peon (Contractual) were issued Roll Nos. as per the Serial No. of the list of the candidates for the post of the Office Peon (Contractual), with the word "C" prefixing the Serial No. The said aspect would be clear from a perusal of Annexure 5 (colly) wherein the petitioner as well as the respondent Nos. 3 and 4 having applied for the post of Office Peon in the scale of pay were accorded the Roll Nos. 32, 22, and 50 respectively insofar as the selection for the post of the Office Peon in the scale of pay. The petitioner who had also applied for post of the Office Peon (Contractual) was provided the Roll No. C-14.

17. This Court further finds it very pertinent to take note of Clause 11 of the Page No.# 9/10

Advertisement dated 12.01.2023, which categorically stipulates that no application would be accepted after 30.01.2023. This Court upon taking into account the Annexure-2 and Annexure-3 which were the lists so prepared, it is apparent that the respondent Nos. 3 and 4 did not apply for the post of the Office Peon (Contractual) on or before 30.01.2023. Under such circumstances, it is therefore the opinion of this Court that the respondent No. 2 could not have selected the respondent No. 3 to the post of Office Peon (Contractual). Therefore, the order dated 31.03.2023 insofar as selecting the respondent No. 3 to the post of Office Peon (Contractual) is contrary to Article 14 and Article 16 of the Constitution of India as well as even the Advertisement dated 12.01.2023 for which the appointment so made on the basis of such selection in favour of the respondent No. 3 is required to be interfered with.

18. This Court further is shocked and surprised in the manner in which the respondent No. 2 had issued the order of appointment of the respondent No. 3. Taking into account that the post in question is a Contractual post, it is beyond imagination, as to how, the respondent No. 2 could have issued an appointment order without stipulating the period of the contract. It is further unimaginable, as to how, the respondent No. 2 had issued the order of appointment dated 05.04.2023 in favour of the respondent No. 3 that too without entering into a contractual agreement. The above transgressions on the part of the respondent No. 2 speaks large on the question of total non-application of mind and suffers from malice in law.

19. Considering the above, this Court, therefore, disposes of the instant writ petition with the following observations and directions:

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i) The order dated 31.03.2023 passed by the respondent No. 2 by which the respondent No. 3 was selected for the post of Office Peon (Contractual) is interfered with. For the sake of clarity, this Court observes that the selection of Sri Pranjal Ojah (General) and Sri Gobinda Das (OBC) in the order dated 31.03.2023 is not interfered with.

ii) This Court interferes with the order dated 05.04.2023 by which the respondent No. 3 was appointed as Office Peon (Contractual).

iii) Taking into account that this Court had interfered with the order of appointment dated 05.04.2023, made in favour of the respondent No. 3, the post of the Office Peon (Contractual) be filled up by following the due mandate of law.

iv) This Court further in the interest of justice, observes that the setting aside of the order dated 05.04.2023 by this Court shall not permit the Respondent Authorities, more particularly, the respondent Nos. 1 and 2 to take any actions for recovery from the respondent No. 3, any amount, for the period, the respondent No. 3 had worked.

JUDGE

Comparing Assistant