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2004 DIGILAW 174 (GAU)

Md. Nasior Rahman v. State of Assam

2004-03-10

RANJAN GOGOI

body2004
JUDGMENT Ranjan Gogoi, J. 1. Heard Mr. H. R. A. Choudhury, learned counsel for the petitioner and Mr. N.C. Phukan, learned Govt. Advocate, Assam. Also heard Mr. M Nath, learned counsel appearing for the respondent No(s). 5, 6 and 7. 2. An advertisement was published in the newspapers on 4.8.2002 inviting applications for filling up, inter alia, some vacant posts of Sr. Tuberculosis Laboratory Supervisor (SLTS). In so far as the present case is concerned, three vacancies, which were earmarked in the advertisement dated 4.8.2002, for the Barpeta District would be relevant. In the advertisement issued, two different essential qualifications were prescribed and the bone of contention between the parties being with regard to the same, the aforesaid two essential qualifications may well be reproduced. "(1) 10+2 in Science with Diploma or certificate course in Medical Laboratory Technology or its equivalent. (2) Minimum two years of experience of working in a Bacteriological laboratory of repute." 3. According to the writ petitioner, he was the only eligible candidate possessing the requisite conditions of eligibility; he performed well in the interview ; yet appointment was given to the respondent No(s). 5, 6 and 7 who do not have 10+2 qualification in Science. This appears to be core of the writ petitioner's case, as projected in the writ petition. 4. The State as well as the contesting respondents 5, 6 and 7 have filed their respective affidavits. According to the State, though, 10+2 in Science has been prescribed as an essential qualification in the advertisement issued, yet, in the comprehension of the State, the said qualification could be dispensed with and others who did possess the said qualification could also be considered for appointment. The State respondents have further stated in the affidavit filed that the selection was made by a committee and on the basis of the merit assessed, the writ petitioner's position was far below the persons selected, i.e., respondent Nos. 5, 6 and 7. 5. The present respondents 5, 6 and 7 have not filed any affidavit but reliance by the learned Counsel for the said respondents, has been placed on the statements made in the Misc. Application filed by the respondents for vacation, modification or alteration of the interim order. In the aforesaid Misc. Application filed, the action of the State in issuing a subsequent advertisement dated 12.11.2003, for the same post of Sr. Application filed by the respondents for vacation, modification or alteration of the interim order. In the aforesaid Misc. Application filed, the action of the State in issuing a subsequent advertisement dated 12.11.2003, for the same post of Sr. Tuberculosis Laboratory Supervisor (SLTS), prescribing Matriculation as the essential qualification has been placed before the Court. On the said basis it is argued that 10+2 qualification in Science is not an imperative/inflexible requirement for the performance of duties attached to the post and therefore, though there may have been slight infraction of the advertisement while selecting the respondents, the same ought not to be disturbed by this Court. That apart, it has been submitted on behalf of the respondents that the writ petitioner not being a selected candidate and his name not being included in the waiting list either, is not likely to secure any appointment even if the writ petition is to be allowed. Any interference by this Court, it is therefore argued, would amount to grant of relief to persons who are not aggrieved and who are not before the Court. 6. The rival submissions of the parties have been duly considered. It is true that the essential qualification prescribed by the advertisement dated 4.8.2002 is 10+2 qualification in Science and the respondent Nos. 5 and 6 admittedly do not possess the said qualification. The respondent No. 7, it is claimed, does possess the requisite qualification, a position which has been conceded to on behalf of the petitioner. From the stand taken by the State in the affidavit filed as well as the subsequent advertisement dated 12.11.2003, issued for the same category of post, it is evident that though in the advertisement dated 4.8.2002 it has been prescribed, 10+2 qualification in Science is not an indispensable requirement for performance of the duties attached to the post in question. The question, therefore, that would arise is whether interference ought to be made merely because the respondents No(s). 5 and 6 were not qualified in terms of the essential qualification prescribed in the advertisement issued. 7. The exercise of the writ power is a highly discretionary remedy and in deciding whether the facts of a particular case would justify the exercise this extraordinary power, regard must be had to a wide variety of facts and circumstances, apart from the purely legal issues that may be advanced. 7. The exercise of the writ power is a highly discretionary remedy and in deciding whether the facts of a particular case would justify the exercise this extraordinary power, regard must be had to a wide variety of facts and circumstances, apart from the purely legal issues that may be advanced. It is settled law that a writ will not be issued as a matter of course and merely because a legal point has been made out by an aggrieved party. 8. Adverting to the facts of the present case, it has already been noticed that in so far as the post of Senior Tuberculosis Laboratory Supervisor is concerned, the State has taken the stand that 10+2 qualification in Science, though prescribed, would not be an essential/indispensable qualification. Another relevant consideration in deciding whether the writ power should be exercised in the present case to interfere with the selection made would be whether the writ petitioner will be in any way be benefited from the exercise of such power. The writ petitioner admittedly is not even included in the waiting list. If this Court is to interfere with the appointment of the respondent No(s). 5 and 6, naturally, the authority may be called upon to offer appointment to the wait-listed candidates. Such wait-listed candidates are not before the Court. Interference in the facts of the present case would, therefore, amount to grant of benefit to persons who do not feel aggrieved by the selections made. Taking into account the totality of the facts and circumstances of the case as noticed above, I am inclined to take the view that in the facts of the present case, it will not be a prudent exercise of the power vested in this Court to interfere with the selections made. For all the aforesaid reasons, I decline to interfere and consider it proper to dismiss the writ petition. No costs. Petition dismissed.