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2010 DIGILAW 164 (GAU)

Saifudaullah Khan v. State of Assam

2010-03-04

C.R.SARMA, RANJAN GOGOI

body2010
JUDGMENT Ranjan Gogoi, J. 1. The writ Petitioner seeks to challenge the selection of the Respondent No. 6 made by the Assam Public Service Commission (herein after referred to as the Commission) for appointment in the Assam Civil Service on the basis of Combined Competitive Examination, 2006. 2. The relevant facts that will be necessary to be noticed may be, briefly, enumerated herein under. The writ Petitioner claims to be a physically disabled person suffering from locomotor disability to the extent of 50%. An advertisement bearing No. 6/2006 dated 10.8 2006 was issued by the Commission intending to hold the preliminary examination of the Combined Competitive Examination, 2006 for screening candidates for the main examination for recruitment to the Assam Civil Service and other allied cadres. In the aforesaid advertisement no reservation of posts in any of the Services was provided for physically handicapped candidates under the provisions of the Persons with Disabilities (Equal Opportunities, Protection of Right and Full Participation) Act, 1995. The Petitioner submitted his application for the preliminary examination. In the said application the details of the disability suffered by the Petitioner were not mentioned as the application in the prescribed format did not contain any clause requiring candidates to mention the said fact. It appears that PIL No. 61 of 2006 was instituted before this Court in the matter of reservation of posts for physically handicapped candidates under the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. Pursuant to the order dated 13.3.2007 passed by this Court in the said PIL No. 61/2006 a corrigendum/fresh advertisement was issued by the Commission on 5th of June, 2007 specifically for persons suffering from locomotor disability wherein it was, inter alia, mentioned that one post in the Assam Civil Service (Junior Grade) was reserved for physically handicapped candidates. In the said corrigendum/2nd advertisement it was also mentioned that candidates who had already applied pursuant to the earlier advertisement dated 10.8.2006 belonging to the category of physically handicapped persons need not apply again but such candidates would be required to produce the necessary supporting documents in the office of the Commission or in the examination hall before commencement of the preliminary examination. 3. The preliminary examination was held on the scheduled dates and on the basis of the results published the Petitioner was declared to have qualified to participate in the main examination. 3. The preliminary examination was held on the scheduled dates and on the basis of the results published the Petitioner was declared to have qualified to participate in the main examination. Candidates found eligible to sit in the main examination were required to submit another application in the prescribed format. Clause-11 of the said application required candidates to mention whether the candidate is suffering from any locomotor disability and if so to give particulars therefore along with a certificate from the competent authority. The writ Petitioner who submitted his application in the prescribed format for the main examination had, against column No. 11, stated that he suffers from locomotor disability up to 50%. According to the Petitioner, he had submitted a certificate issued by the District Medical Board, Dhubri dated 21.1.2004 in support of his claim to be a physically handicapped person along with the identity card issued by the District Social Welfare Officer. Both the aforesaid documents have been enclosed to the writ petition as Annexures-A & B. It is the further case of the Petitioner that he had qualified in the main examination and was called for interview by call letter dated 1.12.2008. According to the Petitioner, as required in terms of the aforesaid call letter dated 1.12.2008, he had produced the necessary documents in support of his claim of locomotor disability to the extent of 50% along with other certificates and testimonials at the time of the interview. 4. The Commission published the list of selected candidates for different services on 15th of June, 2009. The name of the Petitioner did not appear in the said list though the Respondent No. 6 was shown to have been selected for appointment in the Assam Civil Service as a physically handicapped candidate. The said Respondent No. 6 had secured 695 marks. The Petitioner filed an application under the provisions of the Right to Information Act, 2005 before the appropriate authority seeking the details of the marks secured by him as well as the details of the physically handicapped candidates called for interview. On 10.9.2009 the marks secured by Petitioner (totalling 817) along with the particulars of four candidates belonging to the category of physically handicapped (locomotor disability) who were called for the interview were mentioned alongwith the marks secured by them. On 10.9.2009 the marks secured by Petitioner (totalling 817) along with the particulars of four candidates belonging to the category of physically handicapped (locomotor disability) who were called for the interview were mentioned alongwith the marks secured by them. According to the Petitioner, on receipt of said information, by representation dated 14th of September, 2009 addressed to the Chairperson as well as the Secretary of the Commission he had raised objections as to how though in spite of securing higher marks (817) he could have been overlooked and the Respondent No. 6 could be selected though the said Respondent had secured 695 marks. In the said representation the Petitioner had specifically stated that he is a physically handicapped person suffering from locomotor disability upto 50% and further that all documents in support of the said fact were submitted along with the application form and the said documents were also verified at the time of interview on 11.12.2008. Copies of the said documents were enclosed along with the representation dated 14.9.2009. According to the Petitioner on 4th December, 2009 the Deputy Secretary of the Commission had informed him that the identity card showing the Petitioner to be suffering from locomotor disability was not submitted along with the application form for the main examination though the same is a "compulsory document". The Petitioner was accordingly asked to submit the same to the Commission as early as possible. On receipt of the said communication dated 4.12.2009 the Petitioner replied by his letter dated 10.12.2009 addressed to the Deputy Secretary of the Commission stating that all necessary documents showing that he is a physically handicapped person suffering from locomotor disability were submitted along with the application form of the main examination. That apart, the Petitioner contended that all such documents including the identity card were verified by the Commission at the time of his interview on 11.12.2008. In the letter dated 10.12.2009 the Petitioner also mentioned that as directed by the Deputy Secretary of the Commission an attested copy of the identity card issued to him by the District Social Welfare Officer, Dhubri is being forwarded. 5. It will be necessary to notice, at this stage, that the select list dated 15.6.2009 published by the Commission was set aside by this Court by order dated 3.9.2009 passed in W.P. (C) No. 2755 of 2009 and other connected cases. 5. It will be necessary to notice, at this stage, that the select list dated 15.6.2009 published by the Commission was set aside by this Court by order dated 3.9.2009 passed in W.P. (C) No. 2755 of 2009 and other connected cases. By the aforesaid order this Court had permitted the Public Service Commission to take further action in the matter in accordance with the directions contained in the order dated 3.9.2009. In view of the above as well as developments that had taken place in the case of the Petitioner, as noticed above, the Petitioner instituted a writ proceeding before this Court i.e. W.P. (C) No. 67 of 2010 seeking a direction for inclusion of his name in the fresh select list to be published by the Commission. As the said writ petition was filed before publication of any such select list by the Commission and the relief prayed therein was based on an apprehension of the Petitioner, by order dated 7.1.2010, this Court had refused to entertain the writ petition leaving it open for the Petitioner to agitate his grievances, if any, after publication of the revised select list. Thereafter, on 5.2.2010 the Commission has published a revised select list wherein the name of the Petitioner has not been included and that of the Respondent No. 6 has been shown as a candidate selected for appointment in the Assam Civil Service against the seat earmarked for physically handicapped candidates. Aggrieved, this writ petition has been filed. 6. We have heard Sri I. Choudhury, learned Counsel for the Petitioner; Sri C. Baruah, learned Counsel appearing for the Assam Public Service Commission and Sri A. K. Goswami, learned senior counsel appearing for the Respondent No. 6. As agreed to by the learned Counsels for the parties and in view of the issue involved the Court is proceeding to pass final orders on the writ petition at the admission stage. 7. Sri Choudhury, learned Counsel for the Petitioner, has drawn the attention of the Court to a copy of the application form submitted by the Petitioner for the main examination which has been enclosed as Annexure-D to the writ petition. By referring to the said document learned Counsel has submitted that against Column No. 11 of the application form the Petitioner had clearly mentioned that he suffers from locomotor disability to the extent of 50%. By referring to the said document learned Counsel has submitted that against Column No. 11 of the application form the Petitioner had clearly mentioned that he suffers from locomotor disability to the extent of 50%. According to the learned Counsel, the certificate and the identity card issued by the District Social Welfare Officer, Dhubri, which have been enclosed as Annexures-A & B to the writ petition had been submitted by the Petitioner along with his application form. Learned Counsel for the Petitioner has also drawn the attention of the Court to the specific averments made in para 10 of the writ petition to the above effect and to the further averments made in para 7 of the writ petition to the effect that the documents in support of the Petitioner's claim to be a physically handicapped person including his identity card were produced and verified at the time of interview of the Petitioner held on 11.12.2008. Learned Counsel has further submitted that on the representations dated 14.9.2009 submitted by the Petitioner the Deputy Secretary of the Commission had required the Petitioner to submit his identity card, once again, by stating that the same was not submitted along with his application form for the main examination. It is submitted that by letter dated 10.12.2009 the Petitioner had pointed out to the Deputy Secretary of the Commission that the said document was submitted along with application form and also at the time of the interview. Furthermore, according to the learned Counsel, the Petitioner had, once again, forwarded an attested photocopy of the identity card which clearly showed the locomotor disability of the Petitioner to be to the extent of 50%. In such circumstances, according to the learned Counsel for the Petitioner, there can be no basis for the inclusion of the name of the Respondent No. 6 in the select list inasmuch as while the said Respondent has secured 695 marks the Petitioner has secured 817 marks. It is, therefore, submitted that the case of the Petitioner has been overlooked and his entitlement to be included in the select list has been ignored resulting in arbitrary action on the part of the Commission which is liable to be corrected by the Court. 8. It is, therefore, submitted that the case of the Petitioner has been overlooked and his entitlement to be included in the select list has been ignored resulting in arbitrary action on the part of the Commission which is liable to be corrected by the Court. 8. In reply, Sri C. Baruah, learned Counsel for the Commission, has submitted that the Petitioner is a candidate who had already submitted his application for the preliminary examination pursuant to the original advertisement dated 10.8.2006. By virtue of the corrigendum/second advertisement dated 5.6.2007 it was incumbent on the Petitioner to submit proof of his claim to be suffering from locomotor disability and the extent thereof at any time before the preliminary examination. Sri Baruah has pointed out that there is no statement in the writ petition that the aforesaid condition was fulfilled by the Petitioner. According to Sri Baruah, for the first time, the Petitioner mentioned his locomotor disability in the application filed for the main examination and the certificate enclosed to the application in support of the said claim though issued by the District Medical Board certified the Petitioner to be suffering from physical disability of 50% without clearly mentioning the nature of such disability. Sri Baruah has placed before the Court the application, in original, filed by the Petitioner for the preliminary examination along with the enclosures to establish what has been contended by him and also to specifically establish that the identity card which the Petitioner has enclosed along with the writ petition was not submitted by him along with his application for the main examination. In this regard, Sri Baruah has also placed before the Court two registers containing the names of the candidates who had qualified for the main examination from Dhubri and Kamrup Districts. From the said registers Sri Baruah has pointed out the names of the writ Petitioner and the Respondent No. 6 to show that in the said registers the name of the writ Petitioner has been recorded as a general category candidate whereas the name of the Respondent No. 6 has been recorded as a physically handicapped candidate. Another register of physically handicapped candidates who had appeared in the examination conducted by the Commission has been produced before the Court to show that only 3 candidates from Dhubri District have been treated by the Commission to be physically handicapped candidates. Another register of physically handicapped candidates who had appeared in the examination conducted by the Commission has been produced before the Court to show that only 3 candidates from Dhubri District have been treated by the Commission to be physically handicapped candidates. Sri Baruah has submitted that because of the above facts the Petitioner had been treated as a general category candidate and as a physically handicapped candidate. Insofar as the letter of the Deputy Secretary of the Commission dated 4.12.2009 is concerned, Sri Baruah has submitted that the said letter is not pursuant to any decision of the Commission and that the same has been addressed by the Deputy Secretary acting unilaterally. In this regard, Sri Baruah has also placed before the Court a register containing the various resolutions of the Commission taken in the calendar year 2010. Learned Counsel has pointed out a resolution dated 8.1.2010 of the Commission signed by the Chairperson and 3 out of 4 Members wherein the decision has been taken that as the Petitioner did not submit his identity card along with his application for the main examination "the Commission could not ascertain that he was physically handicapped (locomotor disability)". In the said resolution it has also been recorded that: Earlier, the Commission had rejected the cases who did not furnish the essential documents with the applications within the time frame as per the advertisement. Based on the earlier decision, the Commission could not entertain the documents furnished after declaration of the final results of the select list and accordingly the Commission sticked to its earlier decision. Therefore, the Commission resolved to stick to its earlier decision so far the P.H. (Locomotor) case is concerned. 9. Sri A.K. Goswami, learned Counsel for the Respondent No. 6 while adopting the arguments made on behalf of the Commission has additionally submitted that in para 10 of the writ petition the Petitioner had stated that he has submitted all requisite documents while submitting his application for the preliminary examination as well as the main examination. According to Sri Goswami, the first part of the statement is not correct as the writ Petitioner had submitted his application pursuant to the initial advertisement dated 10.8.2006 there could have been no occasion for him to submit any documents in support of his claim to be a physically handicapped person. According to Sri Goswami, the first part of the statement is not correct as the writ Petitioner had submitted his application pursuant to the initial advertisement dated 10.8.2006 there could have been no occasion for him to submit any documents in support of his claim to be a physically handicapped person. Sri Goswami has further submitted that nowhere in the writ petition it has been stated that the Petitioner had produced the documents in support of his claim to be a physically handicapped candidate at any time before commencement of the preliminary examination as required by the corrigendum/second advertisement dated 5.6.2007. The Petitioner was, therefore, treated as a general category candidate and his name was not included in any of the relevant registers showing him as a candidate belonging to the physically handicapped category. Sri Goswami has further submitted that the certificate issued by the District Social Welfare Officer enclosed as Annexure-A to the writ petition refers to the appearance of the Petitioner before the District Medical Board on 21.1.2004. Though the identity card issued to the Petitioner is dated 18.2.2004 the date appearing on the side of the signature and seal of the District Social Welfare Officer would go to show that the said certificate was prepared on 18.1.2004 i.e. before appearance of the Petitioner before the District Medical Board. On the said facts it is submitted by Sri Goswami that the identity card subsequently produced by the Petitioner is a highly suspicious document which ought not to be relied upon. It is the further submission of the learned Counsel that as the laid down norms were not followed by the writ Petitioner he was not treated as a candidate of the physically handicapped category and further that there is no infirmity in the selection of the Respondent No. 6 as a candidate belonging to the said category. There is no infirmity in the decision making process, according to the learned Counsel, to warrant interference of the Court. 10. We have carefully considered the rival submission advanced on behalf of the contesting parties. Judicial reluctance to approve the grant of a further opportunity to establish the conditions of eligibility is primarily founded on Article 14. Such reluctance is due to the fact that grant of such opportunity to one person may have the effect of giving him an unfair advantage over others in the fray. Judicial reluctance to approve the grant of a further opportunity to establish the conditions of eligibility is primarily founded on Article 14. Such reluctance is due to the fact that grant of such opportunity to one person may have the effect of giving him an unfair advantage over others in the fray. The above principle of law, laid down in several decisions of the Apex Court, however, are to be found in cases where citizens aspire for distribution of State largesse. The same may not, therefore, be appropriate for automatic application to the domain of appointment in public offices where the employer must strive to pick the best talent available. To achieve the said result the employer must be conferred a wide discretion to act in relaxation of the rigour of the terms of an advertisement. The requirements spelt out in an advertisement for appointment in public offices must, therefore, not be understood to be inflexible leaving no room for elasticity. 11. In the present case a perusal of the two registers containing the details of the candidates who had appeared in the main examination from Dhubri and Kamrup Districts, as placed before the Court, would clearly indicates that the Commission had treated the candidatures of many candidates to be provisional on account of the fact that requisite certificates of age or educational qualifications had not been submitted along with the application form. At least, three of such candidates i.e. Ashamayee Das (Roll No. 40806), Pranab Kumar Pegu (Roll No. 44062) and Biswajit Pegu (Roll No. 44133) whose candidatures were provisional had been selected and included in the select list dated 15.6.2009. In the select list dated 5.2.2010, which has been impugned in the present case, out of the aforesaid three candidates the name of Pranab Kumar Pegu (Roll No. 44062) is included. Such selection can only be understood on the basis that the said candidates had submitted their requisite certificates at a subsequent stage. The above facts would squarely demonstrate that the Public Service Commission itself had treated the certificates and testimonials mentioned in the advertisement dated 10.8.2006 read with the corrigendum/second advertisement dated 5.6.2007 to be not mandatory and inflexible requirements. Rather, the actions of the Commission indicate that it had proceeded on the basis that such certificates could be furnished subsequently. 12. The above facts would squarely demonstrate that the Public Service Commission itself had treated the certificates and testimonials mentioned in the advertisement dated 10.8.2006 read with the corrigendum/second advertisement dated 5.6.2007 to be not mandatory and inflexible requirements. Rather, the actions of the Commission indicate that it had proceeded on the basis that such certificates could be furnished subsequently. 12. In the above situation even if the Court is to proceed on the basis that the Petitioner did not submit his identity card showing that he suffers from locomotor disability to the extent of 50% at any time before the preliminary examination as required by the corrigendum/second advertisement dated 5.6.2007 and even if it is assumed that the Petitioner had not enclosed the said identity card along with his application for the main examinations there can be no escape from conclusion that the identity card was submitted by the Petitioner at least pursuant to the letter of the Deputy Secretary of the Commission dated 4.12.2009. Coupled with the aforesaid fact, there is no denial on the part of the Public Service Commission of the specific pleading of the Petitioner that he had produced the identity card at the time of the interview on 11.12.2008 as required in terms of the call letter dated 1.12.2008 issued to him. In such a situation it is difficult to accept the stand taken by the Commission in its resolution dated 8.01. 2010 that as the Commission had rejected all cases wherein essential documents were not furnished along with the applications within the time frame as per the advertisement the case of the Petitioner should also be rejected. The aforesaid stand is belied what has been recorded by the Court to be revealed by the registers in question which clearly indicate that the applications of candidates who did not submit certificates in proof of age or educational qualifications were provisionally accepted and some of such candidates were actually selected by the Commission. In the above situation, the Commission should have proceeded to accept the identity card produced by the Petitioner and on that basis ought to have determined his entitlement to be selected or not. 13. The next question that has to be addressed by the Court is what relief should be provided to the Petitioner in the facts and circumstances of the case. 13. The next question that has to be addressed by the Court is what relief should be provided to the Petitioner in the facts and circumstances of the case. The final decision of the Commission in selecting the Respondent No. 6 and in excluding the writ Petitioner has been found to be legally infirm for not considering the identity card made available by the Petitioner to the Commission. Objections have been raised on behalf of the Respondent No. 6 with regard to the acceptability of the identity card. In any case, whether a certificate (identity Card in the present case) Should be accepted as establishing the claim of a person that he belong to a particular category of candidates i.e. physically handicapped in the present case, is for the Commission and not for the Court to decide. We are, consequently, of the view that the matter needs reconsideration by the Commission. We, therefore, allow the writ petition and direct the Commission to examine the entitlement of the Petitioner for selection as a candidate belonging to the physically handicapped category on the basis of the identity card submitted by him to the Commission by his letter dated 10.12.2009 in response to the letter dated 4.12.2009 of the Deputy Secretary of the Commission. Naturally, until the said exercise is over appointment in the Assam Civil Service insofar as the post earmarked for a physically handicapped candidate is concerned will remain in abeyance and only after the Commission finalises the matter, as directed, the appointing authority will proceed to make appointment against the said post. 14. The writ petition, consequently, is allowed to the extent indicated above. Appeal allowed.