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2009 DIGILAW 744 (GAU)

Diganta Gogoi v. Diganta Gogoi

2009-10-27

AMITAVA ROY

body2009
JUDGMENT Amitava Roy, J. 1. The petitioners, contenders for the post of Typist lodged with the Assam Secretariat and participants in a related selection, process initiated by the advertisement No. B(E)3/2006/26 dated 12.4.2007, are before this Court for being eliminated from the exercise at the stage, prior to the viva-voce. They have impugned the selection process to be illegal and unconstitutional and, thus, liable to be adjudged non est in law. 2. I have heard Mr. G.C. Phukan, learned Counsel for the petitioners and Mr. B.J. Ghosh, learned State Counsel for the official respondents. 3. The pleaded version of the parties, in short, would have to be indispensably set out to better comprehend the arguments advanced. The petitioners being eligible in terms of the advertisement aforementioned, had responded thereto, offering their candidature and were, thus, called to appear in the Typing test in English and in Assamese held district wise. In the results of the said tests which were published in the issue dated 8.11.2008 of the local daily, the Assam Tribune, their names did not appear. In terms of the scheme of selection as set out in the advertisement, passing of the Typing test was an essential pre-condition for being eligible to take part in the viva-voce. According to the petitioners, the selection process is vitiated by bias, mala fide and gross transgressions of the law of reservation pertaining to physically challenged candidates and women candidates as secured by the Assam Women (Reservation of Vacancies in service and posts) Act, 2005 (the Act). They have categorically contended that the respondent No. 3 Shri Chandra Kanta Haloi at all relevant time was the Senior Administrative Assistant of the Secretariat (Administration), Department of the State and had been associated with the relevant examination, where his two sons were the candidates with them (petitioners) for the said posts. As a result, according to them, there was a possibility of his involvement in the decision making process regarding selection of his sons. Incidentally, the two sons of respondent No. 3, namely, respondent Nos. 4 and 5 were shown to have been passed the Typing tests and were, thus, called for the viva-voce test. As a result, according to them, there was a possibility of his involvement in the decision making process regarding selection of his sons. Incidentally, the two sons of respondent No. 3, namely, respondent Nos. 4 and 5 were shown to have been passed the Typing tests and were, thus, called for the viva-voce test. The petitioners have further asserted that though indicated in the call letters to the candidates for the Typing test that short listed candidates five times the number of vacancies would be entitled to sit in the second test for assessing their Computer competence and viva-voce, in fact, only 64 candidates were determined to be eligible, which per se was in departure from the professed norms, thus, rendering the selection process invalid. This inexplicable deviation from decision of the Selection Committee taken in its meeting held on 30.9.2008 has also left the exercise vitiated by an incurable illegality. The respondent No. 2 in his affidavit filed in WP(C) No. 912 of 2009, as the Secretary to the Secretariat Administration (Estt.) Department of the State has disclosed that Typing speed tests were held in different districts of Assam under the direct supervision of the concerned Deputy Commissioner and that the answer scripts were evaluated by the officers of the rank of Under Secretary to the Government of Assam. The answering respondent has averred that a Typing speed test was held to evaluate the typing skill of the candidates concerned on the basis of their performance, vis-à-vis the written passage given to them. While admitting that at the relevant point of time the respondent No. 3 was the Senior Administrative Assistant in the Secretariat Administration Department of State, the answering deponent has categorically denied that he had any substantial role in the selection process so much so, to vitiate the same as apprehended by the petitioners. The office note-sheet dated 27.6.2008 has also been cited whereby one Sri K.C. Bezbarua, Senior Administrative Assistant had been deputed as the Invigilator for the Typing test in Kamrup (Metro) district, the petitioners' station, to obviate any possibility whatsoever of undue influence by the respondent No. 3. The answering respondent has further stated that the respondent Nos. 4 and 5, the sons of respondent No. 3 in Typing tests (both English & Assamese) secured the following marks:– 1. The answering respondent has further stated that the respondent Nos. 4 and 5, the sons of respondent No. 3 in Typing tests (both English & Assamese) secured the following marks:– 1. Respondent No. 4 (Shri Pulak Haloi) in WP(C) No. 912 of 2009 English – 32.6 Word Per minute (w.p.m.) Assamese – 28.0 w.p.m. 2. Respondent No. 5 (Shri Biren Haloi) in WP(C) No. 912 of 2009 English – 37.0 word per minute (w.p.m.) Assamese – 29.6 w.p.m. Vis-a-vis, the petitioners, their marks are disclosed as hereunder:– 1. Shri Dadul Thakuria (Petitioner No. 1) in WP(C) No. 912 of 2009 English – 15.6 word per minute (w.p.m.) Assamese – 08.4 (w.p.m.) 2. Shri Jiten Kr. Das (Petitioner No. 2) in WP(C) No. 912 of 2009 English – 19.2 word per minute (w.p.m.) Assamese – 05.0 (w.p.m.) In WP(C) No. 4743 of 2008, the marks obtained by the petitioners in Typing tests, both in English and Assamese are as follows:– 1. Shri Diganta Gogoi (Petitioner No. 1) English – 26.2 word per minute (w.p.m.) Assamese – 10.8 (w.p.m.) 2. Miss Kabari Bhattacharjya (Petitioner No. 2) English – 23.2 word per minute (w.p.m.) Assamese – 11.6 (w.p.m.) 3. Shri Pradyut Rajkhowa (Petitioner No. 3) English – 23.6 word per minute (w.p.m.) Assamese – 04.8 (w.p.m.). 4. The affidavit discloses that in all, 13,086 candidates had been called for Typing Test, out of which, 6779 had actually appeared. As a cut off marks of 30 words per minute (w.p.m.) in English in the Typing test was decided upon depending on the performance of the candidates, only 64 candidates who qualified on the basis thereof were called to appear in the Computer test. According to the answering respondent, in view of shortfall in eligible candidates, vis-à-vis, the vacancies advertised all posts could not be filled up. The deponent has averred that though, the Selection Committee had recommended to call 87 candidates who could type more than 15 words per minute in Assamese and 20 words per minute in English in relaxation of the qualifications prescribed, the Government did not accede thereto and decided to call the candidates who had secured 30 words per minute and above in English irrespective of their performance in Assamese typing. In this premise, the answering respondent has denied the allegations leveled against the selection process. The learned Counsel for the parties have reiterated their respective pleaded stands. 5. In this premise, the answering respondent has denied the allegations leveled against the selection process. The learned Counsel for the parties have reiterated their respective pleaded stands. 5. The averments on record and the arguments advanced have received the due consideration of this Court. The advertisement dated 12.4.2007 evidently mentioned 93 (ninety-three) vacancies in the posts of Typist in the Assam Secretariat sought to be filled up by the process initiated thereby. The essential stipulation as mentioned therein and having a definitive bearing on the adjudication of the petitions is to be extracted as herein-below: (2) The minimum typing speed is 30 (thirty) words per minute in English. Preference will be given to those candidates who have proficiency in Assamese typing also with a speed of at least 20 (twenty) words per minute in addition to English Typing. Over and above, it is also desirable that, the candidates should possess basic knowledge of Computer. The advertisement in dear terms mentioned that:- Success in the Typing Speed Test would confer no right for appointment unless the Government is satisfied after such enquiry that the candidate is suitable in all respects for public service. 6. Noticeably, the respondents have filed their affidavit only in WP(C) No. 912 of 2009, wherein as indicated hereinabove, they have disclosed the marks secured by the petitioners in the typing test in English and Assamese. Significantly this revelation in their affidavit has remained unrefuted by the petitioners, as on date. The marks awarded to the petitioners in WP(C) No. 4743 of 2008 have been gathered from the official records. It would be obvious on the face of the records that the petitioners had failed to secure the required marks in Typing test in English to be eligible for appointment in terms of the advertisement. As, the norms declared in the advertisement in a public participatory process are professed to be adhered to without any departure therefrom, in the opinion of this Court on this ground alone the grievance of the petitioners that they are wrongfully excluded from the process ought to be negated. They have noticeably not questioned the marks awarded to them. 7. Be that as it may, as the petitions evidence an impugnment of the selection process on other counts as well, it has been considered expedient to examine the official records to that effect. They have noticeably not questioned the marks awarded to them. 7. Be that as it may, as the petitions evidence an impugnment of the selection process on other counts as well, it has been considered expedient to examine the official records to that effect. A perusal thereof, reveals a cautious and conscious approach of the authorities concerned to all essential details concomitant of the exercise undertaken. The note-sheets disclose that considering the huge number of participants, it was decided to hold the Typing Test at various centers to be supervised by the Deputy Commissioner of the respective districts. The Selection Committee was constituted in terms of the Assam Secretariat Sub-ordinate, 1963. Necessary decisions and instructions seem to have been taken/issued to the authorities associated with the process from time to time to ensure smooth and flawless administration thereof. The officers at the level of Under Secretary of the Department were identified for examination of the answer scripts of the Typing Test. In the interest of quality and competence of the prospective recruits, the norm of 30 words per minute for Typing test in English was insisted upon them by uniformly applying the same. Altogether 64 candidates were, thus, adjudged to be eligible against 93 posts proposed to be filled up. While adhering to the said requirement, the recommendation of the Selection Committee for a relaxation in this regard as noted hereinabove was noticed and disapproved. The merit list of selected candidates on the basis of their performance in the typing test was, thus, drawn up for the next phase of the selection process. The records disclose that as on date, the Computer test has been held where 52 candidates have qualified for final appointments. The note dated 5.2.2009/6.2.2009 in clear terms show the awareness of the concerned authorities of the prescriptions of reservations of all varieties, as well as, the roster points for appointment and the selected candidates had been adjusted against the same. There is no trace whatsoever of any involvement of the respondent No. 3 in the process, to even infer any bias or mala fide as alleged by the petitioners in the matter of selection and appointment of respondent Nos. 4 and 5. There is no trace whatsoever of any involvement of the respondent No. 3 in the process, to even infer any bias or mala fide as alleged by the petitioners in the matter of selection and appointment of respondent Nos. 4 and 5. Though, an attempt has been made on behalf of the petitioners to contend in course of the arguments that as expected, the records would not reveal any such involvement of respondent No. 3 in the selection process, this Court in exercising its jurisdiction of judicial review is unable to appreciate such paranoia otherwise belied by the records. This plea, thus, has to be mentioned only to be rejected. 8. Transparency in governance is an essential feature of the democratic polity. However, each and every allegation of profanation thereof impelled by wild and reckless assumptions ought not to be encouraged or entertained by a court of law, unless the same is reinforced by tangible and irrefutable materials based on contemporaneous records. There is none in the instant case. On a totality of the considerations as hereinabove, this Court is of the opinion that the petitions lack in merit and are liable to be dismissed. Though having regard to the disclosures from the records the litigation pursued is construed to be an abuse of the process of this Court, considering the fervent appeal on their behalf by their learned Counsel citing unemployment and financial distress, this Court refrains from imposing exemplary cost. The petitions are dismissed. Petition dismissed.