Page No.# 1/9 vs The State Of Assam And 3 Ors
2025 Latest Caselaw 4917 Gua

Gauhati High Court

Page No.# 1/9 vs The State Of Assam And 3 Ors on 22 May, 2025

Author: Devashis Baruah

Bench: Devashis Baruah

                                                              Page No.# 1/9

GAHC010138842023




                                                        2025:GAU-AS:6501

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

                           Case No. : WP(C)/1344/2023

         SAMUJJAL KALITA
         S/O- SRI BIPIN KALITA
         R/O- VILL- HAHRA
         P.O. PUTHIMARI
         P.S. KAMALPUR
         DIST.- KAMRUP
         ASSAM
         PIN- 781380


          VERSUS

         THE STATE OF ASSAM AND 3 ORS
         REP. BY THE LEGAL REMEMBRANCER-CUM-COMMISSIONER AND
         SECRETARY
         JUDICIAL DEPTT.
         DISPUR
         GHY-06
         KAMRUP (M)
         ASSAM

         2:THE HONBLE GAUHATI HIGH COURT
         REP. BY THE REGISTRAR GENERAL
          GAUHATI HIGH COURT
          GUWAHATI- 781001
          KAMRUP (M)
         ASSAM

         3:THE REGISTRAR ADMINISTRATION
         GAUHATI HIGH COURT
         GUWAHATI- 781001
         KAMRUP (M)
         ASSAM
                                                                     Page No.# 2/9

         4:THE DISTRICT AND SESSIONS JUDGE
         DHUBRI
         PIN- 783301
         DHUBRI
         ASSAM
         ------------
         For the Petitioner(s) : Mr. A. Chamuah, Advocate

         For the Respondent(s)   : Mr. H.K. Das, Standing Counsel
                                  Mr. B. Gogoi, Standing Counsel


         Date of Hearing                      : 22.05.2025
         Date of Judgment                      : 22.05.2025




                               BEFORE
                HONOURABLE MR. JUSTICE DEVASHIS BARUAH

                           JUDGMENT AND ORDER (ORAL)

Heard Mr. A. Chamuah, the learned counsel appearing on behalf of the petitioner. Mr. B. Gogoi, the learned Standing Counsel appears on behalf of the respondent No. 1. Mr. H.K. Das, the learned Standing Counsel appears on behalf of the respondent Nos. 2, 3 and 4.

2. The present petition has been filed by the petitioner seeking a mandamus directing the Respondent Authorities, more particularly, the respondent No. 4 to appoint the petitioner in the post of Office Peon which had fallen vacant due to the promotion of Sri Nizam Page No.# 3/9

Hussain and Ms. Suman Kumari to the post of LDA and further seeking a writ in the nature of certiorari for setting aside the communication dated 09.02.2023.

3. The case of the petitioner, as would be seen from the materials on record is that the establishment of the District and Sessions Judge, Dhubri had issued an Advertisement on 18.02.2022 for filling up of 2 (two) posts of Office Peon. The petitioner participated in the said selection process and vide the select list dated 15.03.2022, 2 (two) persons were selected to the post of the Office Peon and the petitioner along with 3 (three) others were put in the waiting list. It was further mentioned that the said select list shall be valid for 1 (one) year from the date of the said list.

4. Subsequent thereto, one Sri Nizam Hussain and Ms. Suman Kumari who were holding the post of Office Peon were promoted to the post of LDA on the basis of a select list prepared on 18.01.2023 and under such circumstances, the petitioner submitted a representation on the ground that against these 2 (two) posts, the petitioner be appointed as the petitioner was in the waiting list of the select list dated 15.03.2022. The said application was rejected vide the communication dated 09.02.2023 stating inter alia that the waiting list was made in the select list, in case the selected candidate Page No.# 4/9

for appointment does not join, but the said candidates having joined the establishment, the petitioner's application cannot be considered. It is under such circumstances, the petitioner has approached this Court seeking the reliefs as already above mentioned.

5. It is seen from the records that the respondent No. 4 had filed an affidavit-in-opposition thereby supporting the stand which has been mentioned in the impugned communication dated 09.02.2023.

6. In the backdrop of the above, this Court heard the learned counsels appearing on behalf of the petitioner as well as the respondents.

7. Mr. A. Chamuah, the learned counsel appearing on behalf of the petitioner drew the attention of this Court to the Assam District and Sessions Judges Establishment (Ministerial) Service Rules, 1987 (for short, "the Rules of 1987") and, more particularly, to the note appended to Rule 6(5) of the said Rules of 1987. The learned counsel appearing on behalf of the petitioner submitted that for filling up of the post in the cadre of Lower Division Assistant there is a requirement that the District and Sessions Judge shall call for applications to fill up temporary vacancies of any kind of posts which are likely to occur in the course of the year in their respective Page No.# 5/9

establishments. He therefore submitted that as the subsequent posts arose in the same year, the petitioner who was in the waiting list ought to have been appointed against the vacancies which arose upon the promotion of Sri Nizam Hussain and Ms. Suman Kumari. He further submitted that the select list was valid for 1 (one) year.

8. Per contra, Mr. H.K. Das the learned Standing Counsel appearing on behalf of the respondent Nos. 2, 3 and 4 submitted that the waiting list is being prepared for the purpose of allowing the wait listed candidates to join if the selected candidates opts out after due selection. He therefore submitted that with the selected candidates having already joined their post, the select list dated 15.03.2022 stands exhausted.

9. Mr. B. Gogoi, the learned Standing Counsel appearing on behalf of the respondent No. 1 submitted that the concept of waiting list can no longer exist in view of the Assam Fiscal Responsibility and Budget Management Act, 2005 (for short, "the Act of 2005") and, more particularly, Section 7(1)(g) of the Act of 2005 which mandates that notwithstanding any other provisions contained in any Act or Rules, the select list prepared for the fresh appointments to vacant sanctioned post shall contain names equal to the number of vacant posts notified at the time of calling for applications for filling up of the Page No.# 6/9

post. He therefore submitted that by virtue of Section 7(1)(g) of the Act of 2005, the provisions contained in the note appended to Rule 6(5) of the Rules of 1987 for preparation of a waiting list would be permissible as the provisions of the Act of 2005 overrides the said provision.

10. I have heard the learned counsels appearing on behalf of the parties and have given an anxious consideration to the materials on record.

11. From the materials on record, it is seen that the advertisement so made was only in respect to 2 (two) post of Office Peon vide the Advertisement dated 18.02.2022. Pursuant thereto, a selection was carried out whereupon a select list was published on 15.03.2022. In the said select list, Sri Bikash Kalita and Sri Dilip Kumar Barman were mentioned as selected against the 2(two) posts of the Office Peon. The petitioner along with 3 (three) others were put in the waiting list. It is an admitted fact that the said Sri Bikash Kalita and Sri Dilip Kumar Barman had duly joined the posts in respect to which they were selected.

12. At this stage this Court finds it relevant to take note of the judgment of the Supreme Court in the case of Surinder Singh & Page No.# 7/9

Others Vs. State of Punjab & Another reported in (1997) 8 SCC 488

wherein the Supreme Court specifically dealt with the question as to when a waitlist candidate may have a right to be appointed against the post so advertised. Paragraph No. 15 of the said judgment being relevant is reproduced herein under:

"15. Prem Singh case was decided on the facts of that case and those facts do not hold good in the present case. In the case of Gujarat State Dy. Executive Engineers' Assn. this Court has explained the scope and intent of a waiting list and how it is to operate in service jurisprudence. It cannot be used as a perennial source of recruitment filling up the vacancies not advertised. The Court also did not approve the view of the High Court that since vacancies had not been worked out properly, therefore, the candidates from the waiting list were liable to be appointed. Candidates in the waiting list have no vested right to be appointed except to the limited extent that when a candidate selected against the existing vacancy does not join for some reason and the waiting list is still operative."

13. In view of the said judgment, taking into consideration that the said Sri Bikash Kalita and Sri Dilip Kumar Barman upon being selected and appointed have already joined the post, the said select list stood exhausted.

14. This Court further finds it relevant to take note of the submission made by Mr. B. Gogoi, the learned Standing Counsel, Judicial Department, as to whether, in view of the Act of 2005, whether preparation of a waiting list in the select list is permissible any longer.

Page No.# 8/9

Section 7(1)(g) of the Act of 2005 being relevant is reproduced herein under:

"7. Measures to ensure Fiscal Discipline- (1).....

(a) ............

(g) notwithstanding any other provision contained in any Act or Rules, the select list prepared for the fresh appointments to vacant sanctioned posts shall contain names equal to the number of vacant posts notified at the time of calling for applications for filling up of the posts."

15. From a perusal of the above provision, it is therefore clear that the said provision has a non obstante clause making it clear that the said provision shall override any Act or Rules and further mandates that the select list prepared for the fresh appointments to vacant sanctioned post shall contain names equal to the number of vacant posts notified at the time of calling for applications for filling up of the posts.

16. In that view of the matter, though the Rules of 1987 permits preparation of a waiting list but as the Act of 2005 overrides any Act or any Rules, it is not permissible with effect from the date on which the Act of 2005 had come into operation, i.e. from 17.05.2005 that a Page No.# 9/9

select list would contain names beyond the number of posts advertised.

17. Consequently, therefore, this Court finds no merit in the instant proceedings, for which, the instant writ petition stands dismissed.

JUDGE

Comparing Assistant