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2010 DIGILAW 293 (GAU)

Mahendra Kumar Sharma v. Union of India

2010-04-28

P.K.MUSAHARY

body2010
JUDGMENT P.K. Musahary, J. 1. Heard Mr. A.H. Hazarika, learned Counsel for the Petitioner. Also heard Mr. R. Deb Nath, learned CGC for Respondents No. 1 to 5. None appears for Respondent No. 6. 2. The Petitioner has challenged the order No. 12016/0l/86-Estt/6745-48 dated 26.02.2007 whereby the private Respondent No. 6, Shri Bapan Ranjan Dev was appointed as Syces with effect from 15.02.2007 by the Director, North Eastern Police Academy at Umsaw, Barapani, Meghalaya. 3. The brief facts of the case is that in response to advertisement dated 7.8.2006 issued by the Respondent-Director, the Petitioner applied for appointment to the post of Syces. He was called for interview and appeared the First Trade Test on 23.8.2006 and thereafter he was called for personal interview on 24.8.2006, in which four candidates including the Petitioner appeared. He was found qualified in the personal interview and was asked to appear in the Final Trade Test to be held on 1.9.2006. In the final Trade Test, four candidates namely, (1) Shri Mahendra Kumar Sharma (Petitioner), (2) Shri Mahesh Kumar, (3) Shri Bapan Ranjan Dev (Respondent No. 6) and (4) Shri Khetromoni Singh appeared. In the said Final Trade Test, the Selection Board gave the candidates 15 minutes time for saddle fitting on the horse and to take out the horse from the stable and Anr. 15 minutes time for riding the horse continuously in the field. It is stated that all the four candidates entered into the stable and took the horses in the field except Shri Khetromoni Singh, who could not take the horse from the stable. Other three candidates including the Petitioner took the horse in the field and started fitting saddle to the horse. Shri Bapan Ranjan Dev, Respondent No. 6, could not fit the belt/saddle on the horse and under direction of one of the Board Members, Shri Sukhdew Ram (Syces) helped him and fitted the saddle on the horse to which Anr. Syces, Shri Kashmira Singh made a strong objection. It is also stated that both Shri Mahesh Kumar and Bapan Ranjan Dev (Respondent No. 6) fell down from the horses and soon thereafter they left the field as well as the compound and only the Petitioner had been able to ride the horse continuously for the stipulated time of 15 minutes. Syces, Shri Kashmira Singh made a strong objection. It is also stated that both Shri Mahesh Kumar and Bapan Ranjan Dev (Respondent No. 6) fell down from the horses and soon thereafter they left the field as well as the compound and only the Petitioner had been able to ride the horse continuously for the stipulated time of 15 minutes. The Petitioner claims that he is the only candidate out of the aforesaid four candidates who became successful in the interview. Inspite of such success, the Petitioner was not selected and in his place Respondent No. 6 was selected and appointed to the post of Syces. The Petitioner made an appeal before the Respondent-Director to enquire into the whole matter of illegal selection and appointment, but he refused to order enquiry as demanded by the Petitioner. The Petitioner demanded justice but he failed to get the same and ultimately he approached this Court earlier by filing a W.P. (C) No. 260 (SH) 2006, which was withdrawn with liberty to file a fresh one. While the said writ petition was pending, the Petitioner addressed a letter to the Secretary to the Govt. of India, Ministry of Home Affairs, New Delhi demanding the enquiry into the aforesaid matter and in response to the same, the Home Ministry requested the Chief Secretary to the Govt. of Meghalaya, Shillong to enquire into the matter and accordingly the matter was enquired by the CID of Meghalaya. Subsequently, he filed Anr. with petition, namely W.P. (C) No. 349 (SH) 2008, but the same was also withdrawn in as much as the Petitioner already received the enquiry report dated 11.4.2008 submitted by the Deputy Superintendent of Police, EO. Inspite of submission of enquiry report in favour of the Petitioner, the Respondent authorities did not take any steps for cancellation of the appointment of Respondent No. 6 and appointment of the Petitioner in his place as Syces. On this backdrop, the Petitioner has filed the present writ petition with a prayer for cancellation of the impugned appointment order issued by the Respondent authorities in favour of Respondent No. 6. 4. The Respondent Nos. 1, 2, 3 and 4 have filed their joint affidavit-in-opposition supporting the selection and appointment of Respondent No. 6. On this backdrop, the Petitioner has filed the present writ petition with a prayer for cancellation of the impugned appointment order issued by the Respondent authorities in favour of Respondent No. 6. 4. The Respondent Nos. 1, 2, 3 and 4 have filed their joint affidavit-in-opposition supporting the selection and appointment of Respondent No. 6. In the said affidavit, the Respondent authorities have questioned the impartiality of the enquiry conducted by the CID, Meghalaya and therefore, they are not ready to accept and act upon the same. 5. The enquiry report dated 4.11.2008 has been annexed to the writ petition. I have gone through the same. The Enquiry Officer after examining and recording the statements of Chairman and other Members of the Selection Board as well as other concerned officials came to the following findings: Finding After going through all the statements of allegation, the following are the facts that can be pointed out. From the evidence of Witnesses No. 1, 2, 3 and 4 found that only three candidates namely, 1. Shri Mohendra Kumar Sharma, 2. Mahesh Kumar Thakur and 3. Shri Bapan Ranjan Deb riding the horse during the final trade test conducted. As a result of which, 2(two) candidates Shri Mahesh Kumar Thakur and Shri Bapan Ranjan Deb left the field without performance the horse riding. Whereas, Shri Mohandra Kumar Sharma was able to ride the horse as per direction by the Board Member to do so on that behalf. On the basis of the aforesaid findings, the Enquiry Officer also came to a conclusion which is recorded as under: Conclusion Now on the basis of the facts stated therein in various statements by the Witnesses No. 1, 2, 3, 4 and 5 above, it appears that the selection of Shri Bapan Ranjan Deb for the post of Syces was purely illegal and clear-cut manipulation/bias in allotting marks by the Board Members. Therefore, this unquestionably implies that there was gross discrimination in the process of selection of candidate by allotting underserved marks to the disqualified candidate (Shri Bapan Rajan Deb) arbitrary and illegally despite of being unsuccessful in the final trade test. 6. Mr. Therefore, this unquestionably implies that there was gross discrimination in the process of selection of candidate by allotting underserved marks to the disqualified candidate (Shri Bapan Rajan Deb) arbitrary and illegally despite of being unsuccessful in the final trade test. 6. Mr. R. Deb Nath, learned CGC appearing for the Respondent authorities submits that the findings and conclusions recorded by the Enquiry Officer are not acceptable inasmuch as the Enquiry Officer did not furnish the statements of the concerned witnesses he examined and recorded during the enquiry. Such enquiry report cannot be treated as impartial and no action can be taken on the basis of such enquiry report. 7. I have carefully considered the pleadings and submissions made by the learned Counsel for the parties. It may be pertinent to note that although the Respondent authorities have rejected the enquiry report they have failed to make any written objection before the appropriate forum. Nor have they been able to show that they have appointed Anr. Enquiry Committee for enquiring into the allegations made by the Petitioner. It has been disclosed in the affidavit-in-opposition that the Respondent No. 6 has already tendered resignation from the post of Syces on 9.3.2010 as he has been selected for a higher post. 8. Mr. Deb Nath, learned CGC submits that although a post of Syces is lying vacant due to resignation of Respondent No. 6, the Petitioner cannot be appointed against the said post as the authorities did not prepare a panel/select list and even, assuming but not accepting, that the Petitioner was selected for the said post, he cannot be appointed now as the validity of the selection has already expired. 9. From the averments made in the affidavit-in-opposition and the submissions made by the learned Counsel for the Respondent authorities, it has become clear that a post of Syces is lying vacant ever since the Respondent No. 6 resigned and no advertisement has been made so far for filling up the said post through a new process of recruitment. It must be noted that the Petitioner has been questioning the selection and appointment of Respondent No. 6 by filing writ petitions in 2006 and 2008 as stated earlier before the present writ petition was filed on 20.02.2009. It must be noted that the Petitioner has been questioning the selection and appointment of Respondent No. 6 by filing writ petitions in 2006 and 2008 as stated earlier before the present writ petition was filed on 20.02.2009. While issuing notice of motion in the present writ petition on 23.2.2009, an interim direction was made to the effect that the service of the Respondent No. 6 shall not be regularized. Under such facts and circumstances, there is no question of expiry of validity period of the Select List can arise, moreso, when the Respondent authorities have not issued any advertisement for fresh recruitment after the resignation of Respondent No. 6. It is, thus, an admitted position that a post of Syces is still lying vacant. 10. It is further to note that at the final stage there were only three candidates who appeared in the Final Trade Test. Out of them, Shri Mahesh Kumar was not found qualified and registered no protest against the illegal selection and appointment of Respondent No. 6 by way of filing writ petition before this Court. It is only the present writ Petitioner who has been persistently taking up the matter and therefore, there is no question of considering the case of Shri Mahesh Kumar arises with the resignation of Shri Bapan Ranjan Dev, Respondent No. 6 and there remained only one candidate who is none but the present writ Petitioner. The resignation of Respondent No. 6 has made a room for accommodation of the present Petitioner against the vacant post of Syces. In my considered opinion, the Petitioner has been able to make out a case for issuing a direction to the Respondent authorities to appoint him against the post of Syces which has been lying vacant after the resignation of Respondent No. 6. 11. In view of the aforesaid discussions and consideration, this writ petition succeeds and stands allowed. The Respondent authorities are directed to appoint the Petitioner against the vacant post of Syces forthwith within a period of fifteen days from the date of receipt of this order. 12. The Petitioner shall obtain a certified copy of this order and furnish the same to the Respondent No. 4-Director of North Eastern Police Academy, NEPA Umsaw, Umiam, District - Ri-Bhoi, Meghalaya. Petition allowed.