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2010 DIGILAW 460 (GAU)

Ratul Bhagabati v. State of Assam

2010-07-01

AMITAVA ROY

body2010
JUDGMENT Amitava Roy, J. 1. The decision of the Government of Assam in the Revenue and Disaster Management Department ('the Department') to cancel the examination of dictation (shorthand) conducted on 28.10.2009 for recruitment to the post of Grade-III Stenographer (Assamese) in the office of the Director of Land Records and Surveys, etc., Assam, has been assailed in the present proceeding. 2. I have heard Mr. S.S. Dey, learned Counsel for the Petitioner, Mr. B.J. Talukdar, learned State counsel for the Respondent No. 1 and Mr. S. Sarma, learned Counsel for the Director of Land Records and Surveys, etc., Assam as well as the Selection Committee. Also heard Mr. A.K. Goswami, senior advocate assisted by Mr. S. Banik, advocate for the Respondent No. 4. 3. The Petitioner has introduced himself to be an employee of the office of the Director of Land Records and Surveys, etc., Assam ('the DLR') holding the post of Senior Plan Table Surveyor since the year 2007. According to him, since the year 2002 he had been performing ministerial works under the DLR. In response to an advertisement dated 15.8.2009, published in the local daily, Assam Tribune, for filling up, amongst others, one post of Stenographer in Assamese in the office of the DLR, the Petitioner along with others offered their candidature. A Selection Committee was constituted, and, as claimed by the Petitioner, the written, oral and practical test/interview were scheduled to be held on 28.10.2009. According to him, he participated in all the tests and fared well. On the next date, i.e., 29.10.2009 one of the candidates submitted a representation before the Principal Secretary to the Government of Assam, Revenue Department, Dispur alleging, inter alia, that the Petitioner had been called for the viva-voce, though he had not appeared in the short hand and typing tests. In response thereto, the Deputy Secretary of the Department vide his letter dated 04.11.2009 addressed to the Addl. Director of Land Records, Assam, sought for the latter's comments thereon. Though, in the reply, it was clarified that the Petitioner had duly appeared in all the tests along with other candidates and that the proceedings of the selection had been kept in the custody of the Addl. Director of Land Records, Assam, by the impugned communication dated 19.11.2009 as above, the dictation/shorthand examination was cancelled and a fresh process therefor, by an expert in stenography, was directed to be undertaken. Director of Land Records, Assam, by the impugned communication dated 19.11.2009 as above, the dictation/shorthand examination was cancelled and a fresh process therefor, by an expert in stenography, was directed to be undertaken. Being aggrieved, the Petitioner applied for and obtained the relevant documents, including the representation/complaint submitted by the Respondent No. 4 on 29.10.2009. He has impugned the decision to cancel the stenography test as unwarranted, arbitrary and motivated to accommodate the person of choice. 4. The Respondent No. 1, in its counter, has asserted that the Revenue and Disaster Management Department, Government of Assam, which is an Administrative Department for the Director of Land Records, on a careful examination of all relevant aspects, had taken the conscious decision to cancel the earlier dictation test (shorthand) and to conduct the same afresh through an expert in Stenography. While referring to the letter dated 27.10.2009 finally constituting the Selection Committee, which, inter alia, left it (Committee) to co-opt an expert in the concerned field relatable to the selection, the deponent affirmed that the impugned decision was preceded by an enquiry conducted by the Department and was taken to ensure a merit based selection. The Petitioner's allegation of mala fide, bias, arbitrariness and unfairness was denied. 5. The Respondent No. 4 while scrupulously abiding by his complaint dated 29.10.2009, has asserted that no written test, as such, was held on 28.10.2009 as claimed by the Petitioner and that the process comprised of dictation test for Stenography (shorthand), type writing test and viva-voce. According to him, his remonstrance in this regard before the DLR expressed on 28.10.2009 remained unheeded and, therefore, being without any alternative, on the next date, he submitted his written complaint before the Principal Secretary, Government of Assam, Revenue and Disaster Management Department. The answering Respondent has denied the correctness of the reply of the Addl. Director of DLR, Assam in his report dated 6.11.2009 vis-a-vis the participation of the Petitioner in the selection process. According to him, the denial of the allegation that the Petitioner had handed over a bunch of doubtful papers to the Director of Land Records, Assam, is also a travesty of truth. Director of DLR, Assam in his report dated 6.11.2009 vis-a-vis the participation of the Petitioner in the selection process. According to him, the denial of the allegation that the Petitioner had handed over a bunch of doubtful papers to the Director of Land Records, Assam, is also a travesty of truth. He has averred that as the Government in the Administrative Department concerned had, on a scrutiny of the attendant facts and circumstances felt the necessity of conducting the dictation (shorthand) test by an expert for a meritocratic evaluation of the participating candidates, the Petitioner's cavil to the contrary is wholly misconceived. He too has denied the imputation of mala fide and arbitrariness levelled by the Petitioner and has affirmed his participation in the fresh exercise involving the shorthand, typing and written tests held on 7.12.2009. According to him, having regard to the post involved, the provision of the Assam Public Services (Direct Recruitment to Class III and Class TV posts) Rules, 1997, ('the 1997 Rules') are applicable, in accordance wherewith the exercise undertaken on 7.12.2009 was administrated. 6. The Petitioner in his affidavit-in-reply, has reiterated and reaffirmed the averments in the writ petition and have clarified that on 28.10.2009, the shorthand test and typing test as well as viva-voce had been held. He has alleged that the person, who had conducted the shorthand and the typing test in the reenacted process on 7.12.2009, is a near relation of the Respondent No. 4 and has reiterated that the impugned decision is apparently to accommodate his interest. 7. Mr. Dey, has insistently urged in the above pleaded background that the chairman of the Selection Board having categorically denied the allegations levelled in the complaint, the decision of the Deputy Secretary of the Department to cancel the shorthand test and to hold a fresh exercise is wholly unwarranted in the facts and circumstances of the case, more particularly, in absence of any binding mandate of the Rules to conduct the dictation for the said test by or in presence of any expert in stenography. While highlighting the fact that the Petitioner is a in-house candidate with eight years experience in the works relatable to the post involved, the learned Counsel has contended that in absence of any finding of authenticity of the allegations levelled by the Respondent No. 4, the impugned decision is, per se, arbitrary and has been taken on co-lateral considerations to accommodate him (Respondent No. 4). He also urged against the application of the 1997 Rules to the selection. On being queried by this Court, Mr. Dey, has disclosed that the Petitioner has not participated in the fresh process. 8. Mr. Sarma, learned Counsel for the DLR, Assam has admitted that in terms of the Rules applicable thereto, neither it is essential for an expert to dictate the test for stenography nor his/her presence therefor, is obligatory. 9. Mr. Talukdar, the learned State counsel, in substance, has urged that the Revenue and Disaster Management Department, Assam, being the Administrative Department of the establishment of the Director of Land Records and Surveys, etc., Assam, its decision, on a scrutiny of the relevant facts and circumstances is valid and ought not to be interfered with. The learned State counsel produced the relevant records pertaining to the two selections. 10. Mr. Goswami, appearing for the Respondent No. 4, while hinting at the latent influence of the Petitioner on the abandoned process as a departmental candidate endorsed the imputations contained in the complaint, contending that the impugned decision in this factual context was called for to ensure transparency in the selection process. While fairly admitting that under the Rules, dictation by an expert or in his presence is not an indispensable prescription, the learned senior counsel urged that as the insistence therefor, would only enhance the credibility of the process, no fault can be attributed to the decision impugned. While pointing out that the Petitioner's contention of participation in a written test, which, in fact, was not held, only demonstrates his non-participation in the pursuit as asserted in the complaint, Mr. Goswami, has pleaded that as the decision to reenact the process is not suggestive of the Petitioner's ineligibility or shortcoming, it ought not to be interfered with in the exercise of this Court's constricted power of judicial review. According to him, the 1997 Rules have application to the exercise involved and that the second venture had been conducted in accordance therewith. According to him, the 1997 Rules have application to the exercise involved and that the second venture had been conducted in accordance therewith. The learned senior counsel questioned the bona fide of the Petitioner as he had deliberately shied away from the second process. 11. I have accorded a conscious consideration to the rival pleadings and the arguments advanced. That the Revenue and Disaster Management Department is the Administrative Department of the Directorate of Land Records and Surveys, etc., Assam, is an undisputed fact. The process, however, as the records reveal for filling up, amongst others, the post of Grade-Ill Stenographer (Assamese) was initiated by an advertisement published in the issue dated 15.8.2009 of the local dally, the Assam Tribune Issued by the DLR, Assam. The advertisement, inter alia, disclosed that the applicants for the said post would be required to appear in shorthand, typing test and oral interview. In-house candidates were also construed to be eligible therefor. Admittedly, the Petitioner and the Respondent No. 4 along with others had offered their candidature and the shorthand and typing tests were held as scheduled on 28.10.2009. On the next date, the Respondent No. 4 represented before the Principal Secretary, Government of Assam, Revenue Department, Dispur levelling the following allegations: (i) The Director of DLR, Assam had rendered the dictation for the stenography (shorthand) test. (ii) The Petitioner an employee of the Directorate was then standing near him, (iii) The Petitioner appeared in the viva-voce examination without partaking in the stenography and typing tests. (iv) After the completion of the dictation and type writing tests, the Petitioner had handed over some doubtful papers to the Director, DLR, Assam, (v) The Director of DLR, Assam is not a member of the Selection Committee, but all the papers of the interview were deposited in his custody, (vi) The shorthand examination should have been conducted by a person having knowledge of stenography. 12. In reply to the letter dated 4.11.2009 of the Deputy Secretary of the Department as a response to these allegations, the Addl. Director of Land Records, Assam and the Chairman of the Selection Committee admitted that the dictation was given for the shorthand Test by the Director of Land Records, Assam, but categorically denied the other allegations at Sl. Nos. (ii), (iii), (iv), (v), and (vi) as above. Director of Land Records, Assam and the Chairman of the Selection Committee admitted that the dictation was given for the shorthand Test by the Director of Land Records, Assam, but categorically denied the other allegations at Sl. Nos. (ii), (iii), (iv), (v), and (vi) as above. This authority specifically asserted that the records of the interview had been kept in his custody. He, however, admitted that an expert with knowledge of Stenography was not present during the dictation. The impugned decision was communicated thereafter by the letter dated 19.11.2009, whereby, the "earlier examination of Dictation (shorthand) for Stenography" was cancelled and a direction was issued for holding the said test afresh through an expert in Stenography. On the eve of the tests as above, by a communication No. RSS.539/2008/28 dated 27.10.2009 of the Deputy Secretary of the Department, a Selection Committee was constituted as per Government Notification No. ABP.28/97/10 dated 01.08.1997. Noticeably, the Director of Land Records and Surveys, etc., Assam was not a member thereof. Thereby, the Selection Committee was left at liberty to co-opt an expert as may be required. By this notification dated 1.8.1997, issued by the Department of Personnel(B), Guwahati, Government of Assam, the 1997 Rules framed under Article 309 of the Constitution of India for regulating direct recruitment to Class III and Class IV posts in the offices of the Heads of Department, the Regional Office, District Offices, Divisional Offices and below District Level Offices was circulated. The composition of the Selection Committee as per the communication dated 27.10.2009 is inconformity with the stipulations contained in Rule 5(c) of the said Rules. Rule 6 thereof, which outlines the selection procedure, enjoins that the selection has to be made on the basis of merit by taking into account the performance in the written test, typing test and interview with reference to the instructions issued by the administrative department as envisaged in Rule 5(3). These Rules, per se, do not obligate the conduct of a shorthand test and that too either by an expert or in his or her presence. The attention of this Court has also not been drawn to any administrative instruction to that effect as envisaged by Rule 6 as above. 13. These Rules, per se, do not obligate the conduct of a shorthand test and that too either by an expert or in his or her presence. The attention of this Court has also not been drawn to any administrative instruction to that effect as envisaged by Rule 6 as above. 13. The Assam Stenographers' Service Rules, 1995 ('the Rules') is also a charter under Article 309of the Constitution of India for regulating the recruitment and conditions of service of a person appointed to the Assam Stenographer's Service. Not only the cadre of the said service includes the post of Stenographer Grade III, the appointing authority as defined in Rule 2 thereof, contemplates, amongst others, the Heads of Department, the Deputy Commissioners or the other Heads of Offices therefor. The selection by the Board contemplated therein has to be in accordance with the scheme therefor, as set out in Schedule III thereto. The appointments are to follow from the list of candidates prepared by the Board on a consideration of other relevant records. The relevant excerpt of the scheme of selection from the aforementioned Schedule is quoted here in below: (2) There will be a trial passage and another test passage selected before hand. (3) The trial passage will be dictated by the same person who will dictate the test passage so that the candidate can get familiar with his mode of dictation and accents of pronunciation. The trial passage will be dictated twice at the same speed as for the test passage, with an interval of one minute in between. (4) The Commission or the Board, as the case man be, will be free to select the person to dictate the passage, but every effort should be made to select the person having a clear and proper pronunciation and experience to dictate at the requisite speed. 14. It would, thus, be conspicuous from the above extract that while the Board/Commission, as the case may, would be free to select the person to dictate the passage to be transcribed, but every effort should be made to ensure that (1) he/she has clear and proper pronunciation, and (2) experience to dictate at the requisite speed. 15. Noticeably, the Department has not pleaded its insistence on the application of the 1997 Rules, except to the extent of the constitution of the Selection Committee. 15. Noticeably, the Department has not pleaded its insistence on the application of the 1997 Rules, except to the extent of the constitution of the Selection Committee. As referred to hereinabove, the 1997 Rules do not contemplate a shorthand test. The Rules, as the scheme for selection would reveal, also do not obligate the dictation for the shorthand test by an expert in Stenography or in his/her presence. 16. The official records on a scrutiny do not reveal any finding in support of the allegations levelled in the complaint. Admittedly, however, the dictation in the shorthand test had been rendered by the Director of Land Records and Surveys, etc., Assam, who is beyond the Selection Committee. The records also do not disclose any cogent, convincing and persuasive reason, in the above framework of the legislations to unavoidably necessitate the re-enactment of the process qua the dictation in the shorthand test. While the administrative dominion of the Department is not in question, the impugned decision on that consideration alone de hors other relevant determinants, cannot be readily countenanced. The records pertaining to the process of selection demonstrates the participation of the Petitioner in the shorthand test and the other segments thereof. It is apparent that the authorities concerned and the Committee in particular, had conceived of and proceeded with the selection in terms of the Rules. An exercise having been initiated contemplating participation of the eligible members of the public in a comprehended legislative model, it ought to be taken to its logical end and assigned a finality, unless visibly pillaged by incurable and irremediable vitiations. A process of this kind cannot be readily annulled on unproved imputations of a dissatisfied participating candidate, unless weighty reasons exist in support thereof. To reiterate, the allegations made by the Respondent No. 4 qua the participation of the Petitioner have remained unproved. The concerned authorities of the department have also not recorded any finding in support thereof. On the other hand, the office notes depict to the contrary. In this backdrop, the decision to cancel the shorthand test to be redone by an expert in Stenography is unwarranted. This is more so, in absence of any inviolable edict of the Rules enjoining such an imperative. The prospect of enhanced certitude of the re-enacted process as suggested by the Respondent No. 4 in the teeth of the above factors cannot justify the impugned decision. 17. This is more so, in absence of any inviolable edict of the Rules enjoining such an imperative. The prospect of enhanced certitude of the re-enacted process as suggested by the Respondent No. 4 in the teeth of the above factors cannot justify the impugned decision. 17. In the wake of the above, this Court is, therefore, inclined to intervene. The petition is allowed. The impugned decision is interfered with. The Respondents would complete the selection on the basis of the first process without undue delay. No costs. Petition allowed