Research › Search › Judgment

Gauhati High Court · body

2010 DIGILAW 144 (GAU)

Tarun Ch. Deka v. State of Assam

2010-02-24

AMITAVA ROY

body2010
JUDGMENT Amitava Roy, J. 1. The extraordinary jurisdiction of this Court has been invoked to invalidate the impugned select list published by the Assam Public Service Commission ('the Commission') for the post of Director of State Archives Organization as well as the notification dated 29.8.2006 appointing the Respondent No. 5 to the said office on the basis thereof. By the order dated 28.9.2006, this Court while issuing rule had made the appointment of this Respondent subject to the outcome of the instant proceeding. 2. I have heard Mr. A.K. Goswami, senior advocate for the Petitioner and Mr. T.C. Chutia, learned standing counsel, for the Commission, Mr. N. Dutta, senior advocate for the Respondent No. 5. In the first round of hearing, the Respondent No. 5 having remained unrepresented, the arguments were closed after recording the submissions made on behalf of the Petitioner and the Commission. An application was thereafter filed registered as Misc. Case No. 2191/2009 by the Respondent No. 5 seeking the leave of this Court to contest the proceeding contending principally that he had no knowledge of the pendency of the proceeding earlier. Along with the application, he also offered his affidavit in opposition projecting his stand on merits. After hearing the learned Counsel for the parties, leave as prayed for is granted and the affidavit of the Respondent No. 5 has been taken on record. 3. The abridged version of the Petitioner's pleaded case is that he is a Post Graduate in History in Modern Group and had secured the said degree in the year 1978 from the Gauhati University by obtaining 51.7 per cent marks. He was thereafter appointed as a subject teacher in History and posted at Chakia Higher Secondary School following which he served in the said capacity in different schools between 1981 to 1989. 4. He responded to an advertisement for appointment as Archivist in Assam Archives under the General Administration Department, Government of Assam and on being recommended by the Commission, he was appointed as such by the notification dated 23.6.1989 issued by the Joint Secretary to the Government of Assam, General Administration Department, General (A) Branch. The Petitioner has stated that the primary function of State Archives Organization is the scientific preservation of old documents and records and systematic filing thereof. Additionally, the said Organization has to liaison with Regional and National Committee on Archives. The Petitioner has stated that the primary function of State Archives Organization is the scientific preservation of old documents and records and systematic filing thereof. Additionally, the said Organization has to liaison with Regional and National Committee on Archives. In course of his tenure as the Archivist, the Petitioner successfully completed one year Diploma Course of Archival Studies from National Archives of India, New Delhi, by securing 71 per cent marks. 5. According to the Petitioner, a post of Director in the Assam State Archives Organization was created by upgrading that of Special Officer vide notification No. GAG(A)213/85/106 dated 3.2.1993. The Assam State Archives (Gazetted) Service Rules, 2000 ('the Rules') governs the Assam State Archives (Gazetted) Service ('Service') in which the post of Director is encadred. As contemplated under Rule 8, the academic qualification for the said post has been prescribed to be M.A. in Modern Indian History with High Second Class together with Diploma in Archival Science from National Archives of India. 6. In order to fill up this post, the Commission published an advertisement stipulating an academic qualification rendering the Petitioner ineligible. He, thus, approached this Court with WP(C) No. 870/2002 and by order dated 12.2.2002, as an interim measure he was permitted to participate in the process subject, however, to the result of the writ petition. 7. Incidentally, the said academic qualification was also impeached by the Respondent No. 5 who sought to contend for the post. The Petitioner has introduced this Respondent to be a Diploma holder in Archival Studies from the School of Archival Studies, New Delhi, with Post Graduate in History securing a second class from the aforementioned institution from which he (Petitioner) had also obtained his. The Respondent No. 5 at the relevant time was in-charge of Records, Secretariat Administration (Establishment) Department. In the writ proceeding instituted by this Respondent being No. 1976/2002, this Court, by its order dated 8.10.2005 passed in M.C. 2630/2005 arising there from also permitted him to participate in the same selection process. 8. Accordingly both the Petitioner and the Respondent No. 5 were allowed to appear in the interview by the Commission, which was held in the month of January 2006. The Petitioner has maintained that though he is a much superior candidate for the post of Director, the Respondent No. 5 was selected there for and by the notification impugned was also appointed thereto. 9. The Petitioner has maintained that though he is a much superior candidate for the post of Director, the Respondent No. 5 was selected there for and by the notification impugned was also appointed thereto. 9. The Commission in its affidavit contended inter alia that the norms for the post as advertised by way of conditions of eligibility there for were (i) at least High Second Class in M.A. Degree in Modern Indian History with minimum 55% aggregate marks and a Diploma in Archival Science from National Archives of India (ii) at least 6 years experience as Deputy Director or in any higher capacity in Archival Institutions or having at least 8 years experience in Archives keeping preservation or at least 6 years experience in archival planning. The commission has asserted that the assessment of the candidates was made on the basis of its well established norms and the select list was drawn up on the basis of overall merit, experience and performance in the interview conducted with the assistance of experts deputed by the Government. It maintained that having regard to the post involved, the academic achievements as the sole basis of evaluation could not be resorted to and that experience was also counted. The answering Respondent maintained that the select list so drawn up on 3.3.2006 was forwarded to the Government on the same date following which the appointment was made. The Commission in other words has stood by the selection endorsing the same to be valid. 10. The Respondent No. 5 in his affidavit has introduced himself to be a Post Graduate in History from the Dibrugarh University having also acquired one year Diploma in Archival Studies from the School of Archival Studies, National Archival of India, in the year 1992 securing 57 per cent marks. He also asserted to have completed M. Phil Degree in History from Madurai Kamraj University obtaining 55 per cent marks. He has pleaded that after having worked as Officer-in-Charge (Records) in terms of the recommendation of the Commission dated 30.10.1995, he was, vide notification 10.2.2006 of the Government of Assam appointed as in-charge Director of Archives w.e.f. 14.2.2006 to 29.8.2006 in the Assam Secretariat Administration (Estt.) Department. He underlined that presently he is serving as the Director of Archives under Secretariat Administration (Estt.) Department following the recommendation of the Commission to that effect. 11. He underlined that presently he is serving as the Director of Archives under Secretariat Administration (Estt.) Department following the recommendation of the Commission to that effect. 11. He has averred to have participated in the selection process involved for the post of Director of Archives in terms of the interim order dated 12.2.2002 passed by this Court in WP(C) No. 8703/2002 and has maintained that he had been validly selected as the most suitable candidate as a consequence whereof he has been appointed to the said post on the recommendation of the Commission. While imputing suppression of facts by the Petitioner for not having disclosed that he had meanwhile acquired the degree of M. Phil, in History, the answering Respondent while projecting himself to be a much better candidate than him (Petitioner) academically and otherwise has also emphasized that at all relevant times while he (deponent) had been holding the post of Officer-in-Charge (Records), a Class-I Gazetted post, the Petitioner was in position as Archivist, a Class-II Gazetted post under the Rules. On the measure of experience as well the deponent has contended that he is ahead of the Petitioner. A comparative chart portraying the particulars of the academic qualification, status of service, experience and extra curricular activities of the candidates have been set out as well in the counter. According to the deponent, the Petitioner having participated in the selection process, he is estopped from either challenging the same or questioning the validity of his (deponent) appointment on the basis thereof. 12. Mr. Goswami referring, inter alia, to Rule 6(c) of the Rules has urged that as in terms thereof, the Commission has to imperatively make the selection in accordance with the scheme there for as prescribed, any departure would instantly vitiate the process. Emphasizing on the longer length of service experience of the Petitioner as Archivist compared to that of record in-charge of the Respondent No. 5 as well as in better academic achievements of the former in the Post Graduation as well as the Diploma course, the learned senior counsel has insisted that the impugned selection is visibly in disregard of the relevant criteria for appraisal of suitability and, therefore, is liable to be adjudged illegal, null and void, he urged. As on a comparative assessment of the candidature of the Petitioner and the Respondent No. 5 on essential criterion of suitability, the former obviously ranks higher than the latter, the commission's assessment is purported and flawed rendering the select list null and void, he urged. The appointment of the Respondent No. 5 as a consequence is non est in law as well, he contended. 13. Mr. Chutia with reference to the records pertaining to the impugned selection has maintained that the recommendation in favour of the Respondent No. 5 being based on an objective analysis of all relevant materials, the same is unassailable in law. He insisted that the impugned selection has been made on the basis of norms of uniform application formulated by the Commission and that the Petitioner having participated in the process, is estopped from questioning the validity thereof. Mr. Chutia sought to reinforce his contentions by citing the decision of the Apex Court in Dhananjay Malik v. State of Uttaranchal, (2008) 4 SCC 171 . 14. Mr. Dutta has reiterated the plea of estoppel against the Petitioner vis-a-vis the selection. Referring to the comparative chart set out in the affidavit of his Respondent as well as Rule 3 of the Rules, he has urged that as indisputedly the Petitioner holds the post lower in rank than the Respondent No. 5, a much better candidate by all relevant standards, this Court in the exercise of its power of judicial review would not act as a forum of appeal over the evaluation made by the Commission. The commission in its wisdom having uniformly applied objective norm for the purpose of comparative appraisal of the suitability of the candidates, no interference therewith in the facts and circumstances of the case is warranted. In support of his arguments, Mr. Dutta has placed reliance on the decision of the Apex Court in Madan Lal v. State of Jammu and Kashmir, (1995) 3 SCC 486 . 15. Mr. Goswami in reply while reiterating the plea based on Rule 6(c) of the Rules has insisted that the view expressed in Madan Lal (supra), is not in absolute terms and that depending on the nature of the illegality vitiating the selection proceedings, it is permissible even for a participating candidate to question the validity thereof. 16. The pleaded versions and the arguments advanced had been duly taken note of. 16. The pleaded versions and the arguments advanced had been duly taken note of. There is no dissension on the fact that the post involved is lodged in the Assam State Archives (Gazetted) Service. The norms for recruitment thereto are as prescribed by the Rules. The Rules being an yield of the exercise of power under Article 309 of the Constitution of India assuredly have a binding mandate in this regard. Rule 6, which prescribes direct recruitment amongst others to the cadre of Director, contemplates a selection for the said post by the commission Rule 6(c) obligates the Commission to make the selection in accordance with a scheme submitted by the Government. The commission in that regard may hold such test or interview and undertake scrutiny of certificates and other documents as may be considered necessary. Obviously, therefore, the related exercise of recommending candidates by the Commission cannot be in departure from such a framework of parameters. In absence of any affidavit on behalf of the State Respondent, it is not clear as to whether any such scheme subsists. The affidavit of the Commission is also conspicuously silent in this regard. The official records produced on behalf of the Commission also do not contain either the any scheme or any reference thereof. In its counter, however, the Commission has taken a stand that the candidates have been assessed on the yardstick of overall merit, experience and performance. 17. The Apex Court in Madan Lal and Ors. (supra), as well as Dhananjay Malik (supra), while had declined the locus standi of an unsuccessful participating candidate in a selection process to question the validity of the same subsequently in Raj Kumar and Ors. v. Shakti Raj and Ors., (1997) 9 SCC 527 it had permitted such assailment if the exercise undertaken suffers from glaring illegalities. Their lordships in Raj Kumar (supra), decided against the bar of acquiescence/estoppel of such a candidate. This view of the Apex Court comprised of three Hon'ble Judges was taken note of by a Division Bench of this Court in Assam Animal Husbandry and Veterinary Service Association and Ors. v. State of Assam and Ors., 1999 (2) GLT 121. 18. Their lordships in Raj Kumar (supra), decided against the bar of acquiescence/estoppel of such a candidate. This view of the Apex Court comprised of three Hon'ble Judges was taken note of by a Division Bench of this Court in Assam Animal Husbandry and Veterinary Service Association and Ors. v. State of Assam and Ors., 1999 (2) GLT 121. 18. Thus, two views of the Apex Court on the issue emerge suggesting that the one propounded in Madan Lal (supra), and Dhananjay Malik (supra), does not in absolute terms debar an unsuccessful candidate to impugn the validity of the selection process even on the culmination thereof. The impeachment by the present Petitioner noticeably is not unduly delayed and, therefore, in the considered opinion of this Court in view of the presidential enunciation as hereinabove, the plea of non-suiting him on the ground of having participated in the selection process does not commend for acceptance in the facts of the instant case. 19. The official records though disclose an exercise made by the Commission culminating in the recommendation of the Respondent No. 5 above the Petitioner, in absence of precise norms of comparative evaluation, the aspects assessed and the benchmark applied there for are not forthcoming. In course of the arguments as well no endeavor has been made to furnish to this Court the objective basis of comparative evaluation of the candidates justifying the preference of Respondent No. 5 above the Petitioner. The process involved being one envisaged by the Rules pertaining to recruitment to a public office, the same obligatorily has not only to be in strict conformity therewith but also informed with certitude and transparency. This is notwithstanding the rival claims of superiority of the parties and the statistical reinforcements furnished in the instant proceeding. Though an endeavor has been made on behalf of the Respondents to restrict the scrutiny of this Court, indicating at the constricted scope thereof, in the teeth of the imperative of Rule 6(c) and on the failure of the Respondents to either refer to or produce a scheme of selection prescribed by the Government in consultation with the Commission to administer the same, the exercise undertaken cannot irrefutably be certified to be in accordance with the Rules. The materials on record, thus, do not either demonstrate that the exercise undertaken had been in compliance of the prescript of Rule 6(c) of the Rules or a set of precepts formulated by the Commission to administer the exercise in accordance therewith. In the above view of the matter, having regard to the nature of the challenge mounted by the Petitioner, this Court is constrained to hold that the selection of the Respondent No. 5 cannot be assuredly said to be in conformity with the Rules and, therefore, is liable to be interfered with. Ordered accordingly. 20. The petition is, thus, allowed. The matter stands remanded to the Respondents to redo the exercise for appointment to the post involved strictly in accordance with the imperatives of the Rules. No costs. Petition allowed