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2009 DIGILAW 182 (GAU)

Dhruba Choudhury v. State of Assam

2009-03-16

BIPLAB KUMAR SHARMA

body2009
JUDGMENT B.K. Sharma, J. 1. The matter relates to selection and appointment to the post of Lower Division (L.D.A.). While the pleaded case of the petitioner is that the respondent No. 7 has been selected for appointment because of her close association with the chairman of the selection committee, who could also influence the other members of the selection committee, but the argument of the learned Counsel for the petitioner during the course of hearing of the matter was completely different. 2. The pleaded case of the writ petitioner is that he was appointed as L.D.A-cum-Typist in the office of the respondent No. 2 purely on temporary and fixed pay basis. Such appointment was made on the basis of Annexure-P-1 letter dated 9.12.2005 addressed to the respondent No. 2 by the respondent No. 1 by which direction was issued to engage the petitioner as Grade-III staff on a monthly fixed pay basis. Admittedly, such appointment was de hors the recruitment rules. 3. According to the petitioner, he was discharging his duties as casual employee to the satisfaction of all concerned. By Annexure-P-4 letter dated 23.2.2007, the respondent No. 2 requested the respondent No. 4 to forward the names of two candidates for two posts of LDA, one unreserved (general) and another reserved for Scheduled Caste. By Annexure-P-5 letter dated 7.3.2007, the names of 17 candidates were forwarded including that of the petitioner, the respondent No. 7 and the newly impleaded respondent No. 8. 4. The typing test and written test was held on 2.7.2007 in which the petitioner and others duly appeared and thereafter, the oral test was held on 25.9.2007. In paragraph 10 of the writ petition, the petitioner has stated that he has come to know that the respondent No. 7 has been selected for the post of LDA not on her merit but purely because of her close relationship with the respondent No. 6, the chairman of the selection committee, who also could influence the other members of the committee. In paragraph 11 of the writ petition, the petitioner has given comparative statement of the qualification, experience, etc., between himself and the respondent No. 7 so as to project that he is a better candidate than the respondent No. 7. In paragraph 11 of the writ petition, the petitioner has given comparative statement of the qualification, experience, etc., between himself and the respondent No. 7 so as to project that he is a better candidate than the respondent No. 7. Throughout the writ petition, the pleaded case of the petitioner is that he is a better candidate than the respondent No. 7, but it is the Respondent No. 7, who has been selected for appointment because of her close nexus and/or relationship with the chairman of the selection committee, i.e., the respondent No. 6. 5. With the aforesaid pleaded case, the prayer made in the writ petition is as follows: In the premises aforesaid it is hereby humbly prayed that Your Lordships would be pleaded to admit this petition, call for the records, issue rule calling upon the respondents to show cause as to why a writ of mandamus, certiorari or any other appropriate writ, order or direction shall not be issued directing the respondents to appoint/regularize the petitioner for the post of LDA in which he has already been working under the respondent No. 2 and set aside and quash the selection of respondent No. 7 and upon hearing the parties and on the cause or causes that may be shown be pleased to make the rule nisi absolute and/or pass such further order/orders as your lordship may deem fit and proper. 6. From the above, it will be seen that there is no challenge to the entire selection as such and the only challenge is to the selection of Respondent No. 7 and nothing else. 7. The respondents have filed their counter affidavit denying the allegations made in the writ petition. As against the whole basis of the claim of the petitioner about the relationship with the respondent No. 6 with that of the respondent No. 7 because of which she could get the selection, it is the case of the respondents that the respondent No. 6 is not at all aware of anything about the respondent No. 7 and that the respondent No. 7 has not even appeared in the written test nor was called for oral test. It has also been stated that no select list having been published, the story made out in the writ petition and the personal allegation made against the respondent No. 6 are all false and has been so made to malign the members of the selection committee. 8. When the above is the case on the basis of the pleadings of the parties, there is no manner of doubt that the writ petition is liable to be dismissed without any further hearing. However, Mr. D.K. Sarmah, learned Counsel for the petitioner, during the course of his argument, tried to develop the case of the writ petitioner on some other grounds, which are totally non-existent in the writ petition. He argued that the selection committee was not properly constituted and that the list of 17 candidates could not have been forwarded, as according to him, the same was against the requisition made by the aforesaid Annexure-P-4 letter dated 23.2.2007, by which the names of only two candidates were sought for. He has also questioned the sending of name of candidate at Sl. No. 17 of the list, whose name, according to him, could not have been forwarded he being an O.B.C. candidate. Upon a reference to the notification dated 1.8.1997 and the Assam Directorate Establishment (Ministerial) Service Rules, 1973, Mr. Sarmah, learned Counsel for the petitioner submitted that the procedure for selection as envisaged in the said notification and the rules having not been followed, the entire selection is liable to be set aside and quashed. 9. As against the aforesaid submission made by Mr. Sarmah, learned Counsel for the petitioner, Mr. R.K. Borah, learned State counsel, referring to the case of the petitioner, submitted that the petitioner having obtained an interim order on the basis of the misleading statements in the writ petition regarding the alleged relationship between the respondent No. 6 and the respondent No. 7, he is not entitled to any relief and the writ petition is liable to be dismissed on that score alone. He further submitted that the petitioner cannot take the respondents by surprise by arguing altogether a different case than the pleaded case in the writ petition. Mr. M.J. Baruah, learned Counsel for the respondent No. 8 also made the submissions adopting the same line of argument advanced by Mr. Borah, learned State counsel. 10. He further submitted that the petitioner cannot take the respondents by surprise by arguing altogether a different case than the pleaded case in the writ petition. Mr. M.J. Baruah, learned Counsel for the respondent No. 8 also made the submissions adopting the same line of argument advanced by Mr. Borah, learned State counsel. 10. I have considered the submissions made by the learned Counsel for the parties and the materials on record. As already indicated above, the argument advanced by the learned Counsel for the petitioner is not on the basis of the pleadings in the writ petition. The basic foundation of the writ petition is that the petitioner being more meritorious than the respondent No. 7, he is entitled to get preference in the matter of selection and appointment and but for the relationship of the respondent No. 7 with that of the respondent No. 6, the chairman of the selection committee, she would not have been selected. The prayer made in the writ petition has also been noted above. Although the allegation has also been made against other members of the selection committee by making statement in paragraph 10 of the writ petition that the respondent No. 6 could influence all other members of the committee, but the said members are not party respondents to this proceeding. Further, none of the candidates recommended for selection except the respondent Nos. 7 and 8 is also party respondent to this proceeding. They are necessary parties to this proceeding in view of the fact that in view of the allegation made against the members of the selection committee and also in view of the fact that the recommended candidates appeared in the selection and at least right of consideration on the basis of the said selection has accrued to them. 11. As noted above, no particulars and no facts have been given in the writ petition nor the petitioner has filed any rejoinder affidavit relating to the kind of argument advanced at the time of hearing of the writ petition, but the particular point(s) have been sought to be substantiated at the time of hearing by referring to certain facts no where in the pleading. As observed by the Apex Court in Bharat Singh v. State of Haryana AIR 1988 SC 2181 , when a point which is ostensibly a point of law is required to be substantiated by facts, the parties raising the point, if he is the writ petitioner, must plead and prove such facts by evidence which must appear from the writ petition and if he is the respondent, from the counter affidavit. If the facts are not pleaded or the evidence in support of such facts is not annexed to the writ petition or to the counter affidavit, as the case may be, the court will not entertain the point. 12. In the aforesaid case, the Apex Court pointing out the distinction between a pleading under the CPC and the writ petition or a counter affidavit, observed that while in a pleading, i.e., a plaint or a written statement, the facts and not evidence are required to be pleaded, in a writ petition or in the counter affidavit, not only the facts but also the evidence in proof of such facts have to be pleaded and annexed to it. 13. Needless to say that the petitioner has to establish the strength of his case on the basis of the pleaded case in the writ petition and not on the basis of the inferences drawn without any foundation thereof in the writ petition itself. As noted above, only case of the petitioner is that he having worked under the respondents No. 4, he is entitled to get preference and thus, the prayer made in the writ petition is to regularize his services and set aside the selection of the respondent No. 7. Both the prayers are misconceived. Merely because, the petitioner had worked under the respondent No. 4 on casual and temporary basis for few months, he cannot claim automatic regularization of his service de horse the recruitment rules. Secondly, the prayer of the petitioner for setting aside the selection of the respondent No. 7 is totally misplaced inasmuch as the said respondent did not even appear in the selection. But the petitioner could get the writ petition entertained with an interim order solely on the basis of the absolute pleaded case that the said respondent got the selection because of her relationship with the chairman of the selection committee, i.e., the respondent No. 6. 14. But the petitioner could get the writ petition entertained with an interim order solely on the basis of the absolute pleaded case that the said respondent got the selection because of her relationship with the chairman of the selection committee, i.e., the respondent No. 6. 14. Although the learned Counsel for the petitioner, during the course of his argument, contended that the selection committee was not properly constituted, but from own pleading of the case of the petitioner, it is seen that the quorum of the selection committee was duly formed. However, this aspect of the matter, which is a development during the courser of hearing, need not be gone into in view of the fact that in the writ petition, the petitioner has not raised any grievance regarding constitution of the selection committee. That apart, the petitioner duly appeared before the selection committee without raising any protest and thereby took a chance for favorable consideration for selection. Thus, he is estopped from raising the plea of improper constitution of the selection committee and that too, not by way of any pleading but by way of development during the course of hearing taking the respondents by surprise. It is in this context, the Apex Court in Madan Lal v. State of Jammu AIR 1995 SC 1088 , made the following observation: ...The petitioners also appeared at the oral interview conducted by the concerned Members of the Commission who interviewed the petitioners as well as the concerned contesting respondents. Thus the petitioners took a chance to get themselves selected at the said oral interview. Only because they did not find themselves to have emerged successful as a result of their combined performance both at written and oral interview, that they have filed this petition. It is now well settled that if a candidate takes a calculated chance and appears at the interview then, only because the result of the interview is not palatable to him, he cannot turn round and subsequently contend that the process of interview was unfair or Selection Committee was not properly constituted. It is now well settled that if a candidate takes a calculated chance and appears at the interview then, only because the result of the interview is not palatable to him, he cannot turn round and subsequently contend that the process of interview was unfair or Selection Committee was not properly constituted. In the case of Om Prakash Shukla v. Akhilesh Kumar Shukia AIR 1986 SC 1043 , it has been clearly laid down by a Bench of three learned Judges of this Court that when the petitioner appeared at the examination without protest and when he found that he would not succeed in examination he filed a petition challenging the said examination, the High Court should not have granted any relief to such a petitioner. (emphasis added) 15. Similarly, in Suneeta Aggarwal v. State of Haryana (2000) 2 SCC 615 , the Apex Court in same tune made the following observations: We have heard learned Counsel for the parties. Narration of aforestated facts would show that the appellant had disentitled herself to seek relief in the writ petition filed by her before the High Court. The appellant did not challenge the order of the Vice-Chancellor declining to accord approval to her selection and, on the contrary, she applied afresh to the said post in response to re-advertisement of the post without any kind of protest Not only did she apply for the post, but also she appeared before the Selection Committee constituted consequent upon re-advertisement of the post and that too without any kind of protest, and in the same day she filed a writ petition against the order of the Vice Chancellor declining to accord his approval and obtained an ad-interim order. In the writ petition she also did not disclose that she has applied for the post consequent upon second advertisement. The appellant having appeared before the Selection Committee without any protest and having taken a chance, we are of the view that the appellant is estopped by her conduct from challenging the earlier order of the Vice-Chancellor. The High Court was justified in refusing to accord any discretionary relief in favour of the appellant. The writ petition was rightly dismissed. (emphasis added) 16. The High Court was justified in refusing to accord any discretionary relief in favour of the appellant. The writ petition was rightly dismissed. (emphasis added) 16. As in the said cases, in the instant case also, the petitioner firstly got entry into the temporary and casual services of the respondent No. 4 not by virtue of any merit but on the basis of the Annexure-P-1 letter dated 9.12.2005 addressed to the respondent No. 4 by the respondent No. 1 and thereafter, took a calculated chance to get the selection by appearing before the selection board without any protest whatsoever and now, has sought the intervention of the court not on the basis of the pleaded case in the writ petition, but on the basis of the development made during the course of hearing without any foundation thereof. It is only on the basis of the specific pleaded case that, the chairman of the selection committee, i.e., the respondent No. 6 because of his relationship with the respondent No. 7 selected her, the petitioner could get the writ petition entertained and also obtained an interim order. Such pleaded case of the petitioner is totally misconceived inasmuch as the said respondent No. 7 did not even appear in the selection. Thus, on this score alone and for highly unfounded abuse against the respondent No. 6, the writ petition is liable to be dismissed. 17. For all the aforesaid reasons, the writ petition is dismissed leaving the parties to bear their own case. Petition dismissed.