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2005 DIGILAW 740 (GAU)

Chandrajit Dutta Choudhury v. State of Assam

2005-09-30

BIPLAB KUMAR SHARMA

body2005
JUDGMENT B.K. Sharma, J. 1. By means of this writ petition, the petitioner has made a challenge to the order by which the respondent No. 5 has been appointed as Revenue Sheristadar in the office of the Deputy Commissioner, Hailakandi. 2. Referring to the service particulars of the petitioner vis-a-vis the respondent No. 5, it is the case of the petitioner that apart from the service seniority, he is having more and better experience than the respondent No. 5. It is the case of the petitioner that as against his position in the seniority list as on dated 1.1.1997 at serial No. 16, seniority position of the respondent No. 5 is at serial No. 25. However, both of them were appointed substantively and confirmed in the substantive grade of UDA w.e.f. 30.11.2002. 3. By Annexure-V advertisement dated 11.11.2003, applications were invited for the post of Revenue Sheristadar in the amalgamated establishment of the Deputy Commissioner, Hailakandi 15 years of service in different branches of any of the establishments of the office of Deputy Commissioner in any district in Assam was laid down as the eligibility criteria. It was also stipulated that preference would be given to the candidate having experience in deferent branches of the Deputy Commissioner's establishment in general and revenue branch in particular. 4. In response to the said advertisement, candidatures were offered by the eligible candidates which included the candidatures of the respondent No. 5 and the petitioner. It is the case of the petitioner that as per the conditions stipulated in the advertisement, he having had the experience of working in different branches of the Deputy Commissioner's establishment in general and revenue branch in particular, he was entitled to get preference over those candidates including the respondent No. 5 in the matter of appointment as Revenue Sheristadar. 5. As against the aforesaid case of the petitioner for his appointment as Revenue Sheristadar, it is the case of the respondent No. 5 that he has been selected by this Selection Board and as per the recommendation made by it, he has been appointed by the impugned notification dated 1.11.2004 making a grievance against which the instant writ petition has been filed. 6. Although the official respondents have not filed any counter, they have produced the records through the learned State counsel, Mr. H.K. Mahanta. A counter affidavit has been filed by the respondent No. 5. 6. Although the official respondents have not filed any counter, they have produced the records through the learned State counsel, Mr. H.K. Mahanta. A counter affidavit has been filed by the respondent No. 5. The respondent No. 5 has denied the contentions raised in the writ petition. It is his case that when the Selection Board has recommended the case of the respondent No. 5 for appointment as Revenue Sheristadar, in absence of any allegations of mala fide and colourable exercise of power by the Selection Board, the order appointing him as Revenue Sheristadar is not liable to be interfered with. Referring to the past service records of the petitioner, the respondent No. 5 has asserted in his counter affidavit that service career of the petitioner is not unblemished. 7. I have heard Mr. B.C. Das, learned senior counsel assisted by Mr. Roy, learned Counsel for the petitioner. I have also heard Mr. H.K. Mahanta, learned State counsel for the official respondents. Mr. R. Goswami alongwith Mr. T. Kalita, learned Counsel argued for the respondent No. 5. 8. It is admitted at the bar that appointment to the post of Revenue Sheristadar is to be made by way of selection from amongst the persons who must have served at least 15 years in any of the Deputy Commissioner's establishment and have experience of working in different branches in general and in the revenue branch in particular. There is also no dispute that both tie respondent No. 5 and the petitioner were eligible for consideration for such appointment. In this connection, learned Counsel for the parties referred to the provisions of Rule 6 of the Assam Ministerial Establishment Service Rules, 1967 (As amended vide notification dated 25.8.1999). As per the requirement of Rule 6, the ACRs for the last 5 consecutive year are to be taken into account by the Selection Board while considering the case of the applicants. 9. The records produced by the learned State counsel indicate that the Selection Board was constituted by the members envisaged under Rule 6 of the amended Rules, 1999. The Selection Board considered the candidature of five candidates along with their ACRs for the last 5 consecutive years as well as the service particulars. 9. The records produced by the learned State counsel indicate that the Selection Board was constituted by the members envisaged under Rule 6 of the amended Rules, 1999. The Selection Board considered the candidature of five candidates along with their ACRs for the last 5 consecutive years as well as the service particulars. It is on the basis, the respondents No. 5 was selected and thereafter on the recommendation of the Selection Board, the respondent No. 5 was appointed as Revenue Sheristadar by the impugned order. To quell any doubt I have verified the ACRs of the respondent No. 5 and the petitioner. I have also perused the minutes of the meeting of the Selection Board. Upon such perusal and by considering the confidential nature of such selection, I have no hesitation to hold that no illegality was committed towards selecting the respondent No. 5 for the post of Sheristadar. 10. As regards the contention of the learned Counsel for the petitioner that the petitioner having had more experience than the respondent No. 5 and accordingly in terms of the advertisement, he was to get preference, I am of the considered opinion that the question of granting preference would have arisen had the other things been found to be equal in respect of both the respondent No. 5 and the petitioner. When there is no dispute that both of them had fulfilled the eligibility criteria in terms of the advertisement and recruitment rules, the Selection Board found the respondent No. 5 to be better candidate then the petitioner, the principle involving granting preference to one of the equals will not be applicable. Although in the advertisement it was indicated that preference would be given to a candidate having experience in different branches of the Deputy Commissioner's establishment in general and revenue branch in particular, the provision of Rule 6 of the Rules, 1967 applicable to the instant case do not indicate any such preference. Rather as per the said provisions, such preference is one of the eligibility criterion. 11. Even if the alignment advanced by the learned senior counsel for the petitioner on the basis of the advertisement is to be considered, such preference contextually also cannot mean an absolute enblock preference, a key to reservation or separate and distinct method of selection for the petitioner alone. 11. Even if the alignment advanced by the learned senior counsel for the petitioner on the basis of the advertisement is to be considered, such preference contextually also cannot mean an absolute enblock preference, a key to reservation or separate and distinct method of selection for the petitioner alone. As has been held by the Apex Court in the case of Secretary, AP Public Service Commission v. Y.V.V.R. Srinivasulu and other reported in (2003) 3 SCR 742, a mere rule preference meant to give weightage to the additional qualification cannot be enforced as a rule to reservation or rule of complete precedence. Such a construction would not only undermine the scheme of selection envisaged under the rules, but also would work great hardship and injustice to those who possess the required eligibility criteria. In that case the Apex Court pointed out that such preference is not to be viewed as a preferential right preferred even for taking up their claims for consideration. The preference envisaged in the advertisement has to be given only when the claim of all candidates who are eligible are found to be equally positioned. 12. Apart from the above, as has been held, in absence of any allegation of mala fide and colourable exercise of power by the members of the Selection Board and having regard to the nature of selection involving evaluation of the ACRs and other service records, I am the considered opinion that no interference is called for to the assessment made by the Selection Board. As has been held by the Apex Court in the case of Badrinath v. Govt. of Tamil Nadu and other reported in AIR 2000 SC 3243 , the courts will not interfere with the assessment made by the Departmental Promotion Committee unless the aggrieved officer establishes that non promotion was bad according to Wednesbury principles by the members or was based on mala fide and/or colourable exercise of power. The consideration made to the case of the respondent No. 5 was a fair consideration according to the established principles governing the service jurisprudence. It is not a case of any unreasonable and arbitrary exercise of power by the Selection Board so as to interfere with the decision of the Selection Board 13. In view of the above, no relief can be granted to the petitioner and consequently, the writ petition stands dismissed. It is not a case of any unreasonable and arbitrary exercise of power by the Selection Board so as to interfere with the decision of the Selection Board 13. In view of the above, no relief can be granted to the petitioner and consequently, the writ petition stands dismissed. However, having regards lo the facts and circumstances involved in the case, there shall be no order as to costs. Petition dismissed.