Research › Search › Judgment

Gauhati High Court · body

2009 DIGILAW 822 (GAU)

Mausumi Borah v. State of Assam

2009-11-20

AMITAVA ROY

body2009
JUDGMENT Amitava Roy, J. 1. I have heard Mr. T.C. Khatri, senior advocate assisted by Mr. P. Mahanta, advocate for the petitioner and Mr. B.J. Ghosh, learned State counsel, Assam. 2. The petitioner's pleaded case in brief is that she together with others had responded to the advertisement dated 15.5.2008 issued by the respondent No.1, Deputy Commissioner, Sonitpur, Tezpur, Assam (as the respondent No.2) for appointment amongst others against 24 posts of Junior Assistant in the amalgamated establishment of the said respondent. She appeared in the written test held on 26.10.2008, having been allotted Roll No. 1229 along with several other candidates and was declared to be successful, the results of the written test having been declared on 20.11.2008. In the unreserved category of candidates her roll number appeared at Sl. No. 6. She was, thereafter, called for attending the type test and the computer test, which she did on 28.11.2008, subsequent whereto she also participated in the viva-voce. According to the petitioner, the interview was held on 10.12.2008, 11.12.2008, 12.12.2008 and 29.12.2008 and on the very next date, i.e., 30.12.2008 the impugned order of appointment was issued. 3. Being shocked and surprised by her exclusion from the list of appointees, the petitioner on 2.1.2009 sought for detailed information's regarding the process under the Right to Information Act, 2005. At or about the same time she also came across a news item published in the issue dated 7.1.2009 in the local daily "Asamiya Pratidin" carrying the impeachment of the said process on various counts as detailed therein. This in particular has been emphasized by the petitioner by asserting that though the process was initiated and conducted in the case in hand for the post of Junior Assistant (Grade-III), appointments were made for that of the Chainman, which is a Grade-IV post. She has further alleged that appointments have been made in departure from the break up of posts as set out in the order dated 20.11.2008, declaring the results of the written test and that no provision for reservation of women has been made in terms of the Assam Women (Reservation of Vacancies in Services and Posts) Act, 2005 (Women's Reservation Act). The process has been condemned to be violative of all acknowledged norms to inform a public participatory process and transgressive of the guarantee of equality in the matter of appointment to public office. 4. The process has been condemned to be violative of all acknowledged norms to inform a public participatory process and transgressive of the guarantee of equality in the matter of appointment to public office. 4. The respondent No.2 in his affidavit, while categorically denying the charges laid against the selection process, has refuted the contention that appointments on the culmination of the selection process, had been made to the post of chainman as alleged. While admitting that the post of Junior Assistant and Chainman are encadered in Grade-Ill and Grade-IV of the service respectively, the answering respondent has underlined that the impugned appointments have been made on the basis of merit-cum-performance, having regard to the 100 Point Roster, backlog of vacancies as well as reservations, inter alia, for physically handicapped and woman candidates. While asserting that the order dated 20.11.2008 declaring the results of the written examination was not the final merit list and that the same only disclosed the short listed candidates identified for the type test and the computer test, the deponent has further averred that where as the type test and computer test was held on 28.11.2008 and 29.11.2008, oral interview was conducted on 10.12.2008, 11.12.2008 and 12.12.2008. The petitioner's claim of having secured 6th position in order of merit has denied. The break up of marks for the various segments of the selection has been indicated as (1) Written Test - 100, (2) Type Test - 20 (English - 10 and Assamese - 10), Computer test only for preference and (3) Viva-voce - 50. The deponent has disclosed that after short listing the successful candidates in the written test 240 candidates were invited for the typing test/computer test and eventually 190 candidates based on their performance in the type test and computer test were screened for the oral interview. The answering respondent has categorically denied the petitioner's averment that interview was also held on 29.11.2009 and indicated that in terms of the letter Finance/SIU/Deptt./No. FSI-5/2005VOL-III/25-A dated 1.8.2008, the sanction for the posts of Junior Assistant sought to be filled up was to remain valid up to 31.12.2008. A compilation of the marks secured by the petitioner and the candidates appointed in the different segments of the selection process has been furnished in the affidavit. A compilation of the marks secured by the petitioner and the candidates appointed in the different segments of the selection process has been furnished in the affidavit. It has been reiterated that the appointments have been made in compliance of the prescriptions of the advertisement, the relevant norms as well as the provisions of the Assam Fiscal Responsibility and Budget Management Act, 2005 (as the Act, 2005). 5. The petitioner in her affidavit-in-reply, while reiterating that the appointments visibly have been made against the post of chainman as demonstrated by the impugned order, has pleaded that though the total marks earmarked for oral interview/viva-voce has been stated to be 50, the result sheet accompanying the respondent's affidavit disclosed various candidates to have secured more than 100 thereat. Instances of some candidates performing poorly in the written examination but finally selected, have also been underlined to question the validity of the process. Deviation in the matter of appointment from the distributions of posts as disclosed in the order declaring the results of the written examination have been reemphasized. The petitioner has reiterated that the exercise having been initiated for the post of Junior Assistant, appointments could not have been made for that of Chainman and on that count alone the impugned order of appointment ought to be interfered with. 6. Mr. Khatri, has vehemently argued that the anomalies and illegalities pleaded by the petitioner and as apparent on the face of the records have vitiated the selection of the persons appointed by the order impugned and, therefore, the same, is liable to be set aside and quashed. While contending that the petitioner on the basis of her performance is entitled to be appointed, if the same is assessed fairly, the learned Senior Counsel has urged that it is a fit case where an appropriate direction ought to be issued to the respondent to re-enact the process from the stage of the oral interview. 7. Per contra, the learned State counsel with reference to the official records pertaining to the impugned selection has urged that none of the impugnments is borne out thereby and, thus, the petition is liable to be rejected. While endorsing the stand of the official respondents, Mr. 7. Per contra, the learned State counsel with reference to the official records pertaining to the impugned selection has urged that none of the impugnments is borne out thereby and, thus, the petition is liable to be rejected. While endorsing the stand of the official respondents, Mr. Ghosh has maintained that the selection process has been conducted strictly in accordance with the accepted precepts applicable for public employment and that therefore, the allegations to the contrary are wholly untrue. According to him, the exercise undertaken by the said authorities has been unnecessarily subjected to uncalled for criticism, which ought to be strongly disapproved. 8. The pleadings of the parties and the arguments advanced on the basis thereof, has been closely marshalled. The advertisement dated 15.5.2008 (Annexure A to the writ petition) in clear terms proclaim that the process initiated thereby, amongst others was for the filling up of 24 posts of the Junior Assistant in Grade-III of the service in the amalgamated establishment of the respondent No. 2. This communique, inter alia, disclosed that the posts would be filled up in compliance with the provisions of the Act, 2005, Women's Reservation Act and other relevant procedural formalities. It also revealed that in the matter of appointments, backlog of vacancies in respect of physically handicapped persons/scheduled caste/scheduled tribe as well as induction on compassionate grounds would be considered. The advertisement, however, did not disclose the distribution of the posts vis-a-vis the categories of candidates. Admittedly, the petitioner had participated in the process. By the order dated 20.11.2008 of the respondent No. 2, the results of the written examination were declared notifying, inter alia, that the successful candidates were qualified to appear in the typing test to be held on 28.11.2008. That a computer test would follow the typing test was also indicated therein. The roll numbers of the successful candidates in the written test were grouped in six categories, namely, (i) Unreserved (ii) OBC/MOBC, (iii) Scheduled Tribe (Plains), (iv) Physically handicapped, (v) Scheduled Caste, (iv) Scheduled Tribe (Hills). Though the petitioner's roll number in the list of such successful candidates appeared at Sl. No. 6, having regard to the remaining phases of the selection, the same, per se, does not signify her inter se merit position for the final appointments. Though the petitioner's roll number in the list of such successful candidates appeared at Sl. No. 6, having regard to the remaining phases of the selection, the same, per se, does not signify her inter se merit position for the final appointments. Moreover, the categorization of the candidates as evidenced by the order dated 20.11.2008 being based on their performance and drawn up to identify those, who had qualified to appear in the type test and computer test, the same, ipso facto, in absence of an apportionment of the posts involved, would not connote a final allotment of posts for eventual appointments, the consideration of backlog of vacancies and reservations otherwise, etc., notwithstanding. The distribution of the posts amongst the persons appointed by the order impugned, therefore, has also to be examined in this perspective, more particularly, in view of the stipulations with regard to the backlog of vacancies, reservation, etc., made in the advertisement. 9. Noticeably, there is no mention of any post of chainman in the advertisement, which admittedly, again is a Grade-IV post. The petitioner as such has not expressed any reservation with regard to any existing backlog of vacancies. No specific grievance has been registered against either the interview Board or the selection committee. The categories of the candidates appointed by the impugned order have also not been questioned by the petitioner. Her grievance does not relate to the written test, type test and the computer test as well. The break up of marks for the written test, computer test and viva-voce has also not been disputed by her. The impugned order as annexed to the writ petition is evidently a photo copy, shown to be signed by the Sub-Divisional Officer, Sadar, Tezpur with the substitution of the word Junior Assistant by Chainman, following mutilation of the latter. Significantly the alterations/cancellations have not been initialed by the author thereof. 10. The official records pertaining to the selection confirm that the 24 posts of Junior Assistant in the amalgamated establishment of the Deputy Commissioner, Sonitpur, Tezpur, for the year 2007-08 had been approved to be filled up by communication No. GAG(B)174/2006/144 dated 19.4.2008 along with 20 posts in the Grade-IV. 10. The official records pertaining to the selection confirm that the 24 posts of Junior Assistant in the amalgamated establishment of the Deputy Commissioner, Sonitpur, Tezpur, for the year 2007-08 had been approved to be filled up by communication No. GAG(B)174/2006/144 dated 19.4.2008 along with 20 posts in the Grade-IV. The letter required the posts to be filled up in the compliance of the Act, 2005, the Employment Exchanges (Compulsory Notification of Vacancies) Act, the Reservation Act and other rules/procedures/formalities as well as the directions of the courts as mentioned therein. It further stipulated that priority be extended in the matter of appointment towards backlog vacancies of handicapped persons/scheduled caste/scheduled tribes as well as on compassionate ground. The approval, which thereby was to remain valid up to 31.7.2008 was, thereafter, extended till 31.12.2008. The records disclose that a process was thus, initiated for appointment to the said posts in terms of the above prescriptions and as the first step the advertisement dated 15.5.2008 was issued. The authorities concerned as the records demonstrate were clearly alive to the successive stages of the exercise and decided to conduct the same by holding written test, type test, computer test and oral interview in that order. The note sheets and the documents available in the records demonstrate in clear terms that due care and caution was taken by the concerned authorities, right from the stage of publication of the advertisement till the issuance of the order of appointment. The records demonstrate the decision taken from time to time with regard to the syllabus for the written test, preparations of the question papers of written test, identification venues of such examination, evaluation of the answer scripts, cut off marks for short listing the candidates for type test/computer test and viva-voce, constitution of the interview board as well as the selection committee, etc. 11. The distribution of marks for evaluation of the candidate in the viva-voce (out of 50) was also prescribed, as indicated in the affidavit. The concerned authority decided to screen the candidates, who had appeared in the written test for the type test and the computer test in order of merit in the ratio of 1:10 for various categories of candidates participating in the process. The concerned authority decided to screen the candidates, who had appeared in the written test for the type test and the computer test in order of merit in the ratio of 1:10 for various categories of candidates participating in the process. It was decided as well that the final merit list be prepared on the basis of overall performance of the candidates in the various segments of the selection process and that appointments be provided having regard to the roster, the law of reservation in its entire gamut as well as other relevant rules in force. Though, the records divulge that the written examination and the type test/computer test were held on 26.10.2008, 28.11.2008 and 29.11.2008 and that the viva-voce was conducted on 10.11.2008, 11.11.2008 and 12.11.2008, the petitioner's assertion that interview was also conducted on 29.12.2008 is not borne out thereby. Various endorsements made by the State authorities involved from time to time proclaim their constant vigil and surveillance over the process undertaken so as to ensure that the same is free from any vitiating infirmities. The selection committee finally met on 22.12.2008 and on the basis of the merit and performance of the candidates, prepared a panel of 24 candidates having regard to the 100 Point Roster, backlog of vacancies in the matter of appointment, physically handicapped, woman candidates, etc. On the completion of the process a detailed note was put up before the Deputy Commissioner, Sonitpur, Tezpur detailing the various stages of the selection process culminating in the final recommendation of the selection committee as above. The Deputy Commissioner, Sonitpur, Tezpur, Assam directed verification/scrutiny of the final list on the basis of the 100 Point Roster, backlog of reservation and following a report of confirmation to that effect approved the list as recommended by the Selection Committee. The impugned order was, thereafter, passed. There is no trace of any unauthorized or unwarranted interference by any outside agency in the process with an endeavour to promote the cause of any undeserving candidate. No apparent violation of any provision of law or procedure is also discernible. The order of appointment in original as available in the records and signed by the Deputy Commissioner, Sonitpur, Tezpur, Assam, vis-à-vis the 24 persons empanelled are to the post of Junior Assistant approved by the Government vide letter dated 19.4.2008 referred to hereinabove. No apparent violation of any provision of law or procedure is also discernible. The order of appointment in original as available in the records and signed by the Deputy Commissioner, Sonitpur, Tezpur, Assam, vis-à-vis the 24 persons empanelled are to the post of Junior Assistant approved by the Government vide letter dated 19.4.2008 referred to hereinabove. The impugned order as annexed to the writ petition, therefore, does not relate either to the post of Junior-Assistant or to the process involved in the instant proceeding. The petitioner's impeachment on the basis of an interpolated document seemingly manipulated, therefore, is liable to be rejected in limine. As the interview board was comprised of five members, who had individually awarded marks in the viva-voce/interview, in many cases on an aggregate, the Candidates had secured in excess of 50. However, the average of the marks awarded by taking a mean of the total tally was added to his/her marks obtained in written examination and the type test to ascertain his/her final inter se merit position . The petitioner's endeavour to discredit the process on the plea that the candidates sought to be favoured, were, thus, awarded marks in excess of 50 in viva-voce is misconceived. Her plea that she though, had fared better in the written examination had been denied adequate marks, as the interview is more out of desperation than based on any factual foundation. The records of the selection as well do not support this imputation. As alluded hereinabove, the respondent authorities in-charge of the selection process had been throughout meticulously alert and attended on all conceivable and relevant aspects thereof to ensure its authenticity, efficacy, confidentiality and credibility as necessitated for public employment. The grounds of challenge raised by the petitioner when judged on the basis of the contemporaneous official records are determined to be utterly untenable and, thus, in the exercise of power of judicial review of this Court, no interference with the impugned order is called for. The petition is, thus, rejected. 12. Before parting, this Court wishes to record its concern over the growing trend of unrestrained and cavalier endeavours to impugn and discredit selection processes is undertaken for appointment to public offices. The petition is, thus, rejected. 12. Before parting, this Court wishes to record its concern over the growing trend of unrestrained and cavalier endeavours to impugn and discredit selection processes is undertaken for appointment to public offices. Though, indubitably, if a scrutiny of such assailments reveals infirmities vitiating a process, it would be the constitutional obligation of this Court to interfere therewith and issue appropriate directions, but it is considered imperative as well to firmly discountenance casual, irresponsible, incautious and slipshod attempts to condemn the same and in the process chance a decision to frustrate a lawful exercise conducted devoting public time and expending State revenue. Considering that every such process involves substantial amount of time, human resources and public money, such indulgences should not only be denounced and discouraged, but must be stifled with deterrent measures. In the facts and circumstances of the present case, this Court on a consideration of the pleadings of the parties and the official records is of the unhesitant view that the petitioner without being equipped with the correct facts, has indulged in the present litigation leveling wild and unfounded allegations. Not only her challenge in absence of the persons appointed is unsustainable besides being unfair, none of her assertions is, even prima facie, borne out by the records. The petitioner noticeably, in spite of clear and categorical stand of the respondent No. 2 has obstinately chosen to reiterate and reaffirm her pleas, though on the face of the records opposed to the contemporaneous facts. In the attendant factual premise this Court is, therefore, of the view that the petitioner ought to be saddled with exemplary cost, the instant proceeding being viewed as an attempt to interfere with the course of administration of justice without any cogent and valid ground. This Court, therefore, requires the petitioner to deposit a cost of Rs. 25,000 within a period of 2 (two) weeks herefrom. The Registry would ensure that above direction is implemented forthwith.