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2010 DIGILAW 915 (GAU)

Mandira Das Sarma v. State of Assam

2010-12-07

MADAN B.LOKUR, UTPALENDU BIKAS SAHA

body2010
JUDGMENT U.B. Saha, J. 1. The instant appeal is filed, against the judgment and order of the learned Single Judge dated 29.6.2010 passed in WP (C) 3680 of 2009 which was heard along with WP (C) 5444 of 2008, WP (C) 4965 of 2009 and WP (C) 4966 of 2009 whereby and whereunder the writ petition of the present Appellant was dismissed along with other writ petitions. 2. As according to us, when in the appeal there is not much merit, it would not be proper to dismiss the appeal on technical ground of condonation of delay, before taking up the instant appeal for admission hearing. We have condoned the delay of 74 days in filing the present appeal and taken up the writ appeal for admission hearing. 3. Heard Mr. K.P. Sarma, learned senior counsel assisted by Mr. K.R. Patgiri, learned Counsel for the Appellant as well as learned Government Advocate, Assam for the State Respondents. 4. The Appellant herein, who obtained her Bachelor of Arts Degree from Lumding College under Gauhati University in the year 1995 and successfully completed MS-OFFICE from National Vocational School, New Delhi-21 and has also completed a Diploma, in Manual typing (Assamese) as well as in English and belongs to scheduled caste community, being fully qualified for the post of Junior Assistant in the Office of the Heads of Departments of Assam, pursuant to advertisement dated 7.3.2007 (Annexure 7 to the writ petition) submitted her candidature along with others. 5. Upon receipt of the application of the Appellant, the Respondent authority issued the Admit card (Annexure 8A to the writ petition) in favour of her wherein she was asked to appear in the written examination on 23.3.2008 which she received accordingly and ultimately appeared in the written examination. The result of the written examination was declared on 30.11.2008 by the Director of Employment and Craftsman Training, Assam, Respondent No. 3 herein, in the loca1 daily the "Tribune" and the successful candidates were called for type writing and computer test as well as for viva voce test scheduled to be held on 17th, 18th and 19th of December, 2008. 6. 6. Through according to the Appellant, she had fared well in the written examination and having regard to her academic qualification and performance she ought to, have qualified for the next segments of the selection process but to her shock and surprise the results disclosed otherwise, i.e., her name did not find place in the result of the written examination and, thus, she was not called for type writing, computer test and viva voce. As such, being highly aggrieved, the Appellant and another filed a writ petition which was registered as WP (C) 3860 of 2009 wherein they questioned the selection process and also prayed for invalidating the same on the following grounds, which were noted by the learned Single Judge in his judgment and would be evident from para 8 and 9 of the writ petition: (a) To the knowledge of the Petitioners in any advertisement number of posts vacant is required to be mentioned but whereas in the advertisement issued by the Director of Employment Craftsmen Training, Assam, Rehabari, Guwahati-08 dated 7.3.2007 for the post of Junior Assistant in all Heads of Department of Assam there was no mention of number of posts. And further there was no mention of any reservation policy for ST/SC/Women. (b) In some of the admit cards issued by the Director of Employment Craftsmen Training, Assam, Rehabari, Guwahati-08 the venue of the written examination is not mentioned. And further, many candidates have not received admit cards for which they made complaint because of which the Director of Employment Craftsmen Training, has to publish notice in newspaper to collect admit cards from Employment Exchange. (c) That the total numbers of admit cards issued were 20,103 but only 10,103 candidates received admit cards. Further, for issuing admit cards as a rule certificate of posting is required to be adopted but here ordinary posted service was adopted for issuing admit cards to the candidates. (d) In every competitive examination method of coding is used for written examination in order to maintain neutrality and secrecy but in the examination in question method of coding was not used. In the answer scripts the candidates were allowed to write theirs roll number and name. (d) In every competitive examination method of coding is used for written examination in order to maintain neutrality and secrecy but in the examination in question method of coding was not used. In the answer scripts the candidates were allowed to write theirs roll number and name. (e) There are complaints that children of some members appeared in the examination but the members of the examination committee instead of keeping themselves out from the examination process they took active part in the examination process. (f) There were 3 candidates who had not received admit cards for the written examination approached the Hon'ble Court vide WP (C) 1347/2008 (Mahanbasi Arjya and Ors. v. State of Assam and Ors.) and by that time the written examination was over. But, the Director of Employment Craftsman Training, Assam, Rehabari, Guwahati-08 on his own, has conceded the matter and again held written examination for those candidates who failed to appear in written examination held on 23.3.2008. Therefore, for the same post of Junior Assistant two separate written examinations were held on different dates. (g) That it is known what is cut-off mark for selection of candidates to the oral interview and what is the ratio against which the candidates were selected for oral interview? (h) The Government of Assam, Appointment (B) Department, Appointment Branch issued an Office memorandum as far back as on 31.7.1975. By the said Office Memorandum instructions have been issued as to who will hold selection examinations; how and when the vacancy position is to be informed Employment Exchange and the marks allotted against each subjects, etc. But, it appears from the advertisement dated 7.3.2007 and the minutes dated 18.2.2008 that the Respondent have totally violated the aforesaid Office Memorandum dated 31.7.2007 and advertised for posts without disclosing the vacancy position and conducted the competitive examination with their sweet will. (i) Many doubtful roll numbers in the list of successful candidates of the written examination was published in the newspaper creating apprehension in the mind of the Petitioners of anomalies in selection of those candidates for oral interview as, according to the Petitioners, they were much inferior in comparison to the Petitioners. 7. (i) Many doubtful roll numbers in the list of successful candidates of the written examination was published in the newspaper creating apprehension in the mind of the Petitioners of anomalies in selection of those candidates for oral interview as, according to the Petitioners, they were much inferior in comparison to the Petitioners. 7. Respondent No. 3, Director of Employment Craftsmen Training, Government of Assam contested all the writ petitions including the writ petition of the Appellant by way of filing affidavit-in-opposition in WP (C) 5444/2008 wherein all the imputations leveled against the selection process of Junior Assistant were denied and it was averred that as the vacancies sought to be filled up were distributed over various offices of the Heads of Department in the State, it was not possible to specify the number thereof in the advertisement and also to indicate the extent of reservation applicable thereto and it was, thus, open for all categories of candidates to apply for the post. As requirement/requisition of various offices of the Heads of Department of the State was received subsequently the candidates selected were recruited against the same by rigorously applying the law of reservation in all respects. While reiterating the contents of the advertisement the answering Respondent has also contended that the omission to mention marks of the various examinations/tests as well as the viva voce per se did not vitiate the process. He has asserted that the constitution of Selection Board comprising of the Director of Land Records, Government of Assam as the Chairman and Director of Employment and Craftsmen Training and Director of Higher Education, Government of Assam as Members was as per relevant rules. 8. In the said affidavit-in-opposition, it is also stated that the selection board decided to hold written examination on 23.3.2008 with the following break up of marks for the subjects in the written examination: General Knowledge - 50 General English - 50 Arithmetic - 50 9. Admit cards were issued to all the applicants and information to that effect was also circulated in the newspaper (Ajir Agradoot) on 14.3.2008 and accordingly 10,325 candidates participated in the written examination and the result of the written examination was published on 30.11.2008 through notices and newspapers and 1112 numbers of candidates were declared qualified for the viva voce and computer type writing test against the available vacancies of 272. 10. 10. The Respondent also denied the claim of the Appellant that she did well in the written examination and a specific averment is also there that the Petitioner could not do well in the written examination, and she did not obtain the cut-off marks as prescribed. The cut-off marks were as follows: Category Cut off Marks General 65 OBC 60 SC 52 ST(P) 44 ST(P) 30 11. Respondent No.3 in his affidavit took a specific plea that the charges levelled against the selection are wholly unfounded as the selection process has been conducted strictly in accordance with the guidelines and Rules as prescribed. 12. Learned single Judge, after hearing the learned Counsel for the parties dismissed the writ petition of the present Appellant and others by the judgment in question and in paragraph 12 of the said judgment has given the reasons in support of his decisions. The paragraph 12 is reproduced hereunder: 12. The records reveal that the selection board had decided to call for the candidates for computer typing test as wed as viva voce five times the number of posts category wise in order of their performance in the written examination. By applying the said criteria those who had secured marks as furnished in the affidavit in opposition of the Director of Employment and Craftsman Training, Government of Assam, could be accommodated. The answer scripts of the Petitioners called for by this Court for scrutiny having regard to their respective categories, thus, bear out the justification for their ineligibility to participate in the typing/computer test, viva voce etc. Their answer scripts, on a perusal also do not divulge any apparent anomaly to reject the evaluation thereof. To infer otherwise based on the individual perceptions of the Petitioners of better performance would be wholly speculative. Not only the norm vis-a-vis the zone of eligibility and the application of the cut off marks is informed with rationality and logic, the same having been applied uniformly to all concerned, there is no apparent illegality to defile the process thereby. That their prospects in the selection had suffered a set back for conducting a separate test for the Petitioners in WP (C) 1347/2008 in absence of any tangible material to that effect would also be presumptive. This is more so as the said test had to be conducted in deference to the directions of this Court. That their prospects in the selection had suffered a set back for conducting a separate test for the Petitioners in WP (C) 1347/2008 in absence of any tangible material to that effect would also be presumptive. This is more so as the said test had to be conducted in deference to the directions of this Court. This as well does not have the potential ipso facto to invalidate the entire process. Not only the selection board had been constituted in accordance with the office memoranda dated 31.7.1975 and 23.10.2006, no breach or violation to decisively and incurably desecrate the exercise is decipherable. The assailment is clearly omnibus and indeterminate without any veritable foundation inadequate to invoke the extra ordinary jurisdiction of this Court to sustain the same and annul a process otherwise taken to its logical end. A Selection pursuit of the kind undertaken ought to be necessarily transparent, fair, objective and legal so as to inspire public confidence, however, each and every impingement thereof on imputations general, vague and unfounded ought not to be entertained. 13. Mr. Sarma, learned senior counsel while urging for admitting the appeal and setting aside the judgment of the learned single Judge raised a question regarding the hearing of the Appellant's writ petition analogously with other writ petitions though the affidavit-in-opposition was not filed in her writ petition. He further submits that in the impugned judgment the learned Single Judge also did not make any clear finding, inter alia that the Petitioner could not obtain the required cut off marks of 52% for scheduled caste candidates in the written examination for which she did not qualify for the next segment of selection process. 14. We have considered the submission of Mr. Sarma as well as the judgment of the learned Single Judge, which is impugned herein. More so, we have also gone through the contentions made in the writ petition. 15. We are unable to accept the submission of Mr. 14. We have considered the submission of Mr. Sarma as well as the judgment of the learned Single Judge, which is impugned herein. More so, we have also gone through the contentions made in the writ petition. 15. We are unable to accept the submission of Mr. Sarma, inter alia that the Appellant's writ petition wan heard analogously with other writ petitions though the affidavit-in-opposition was not filed in her writ petition, as the said point was not raised before the learned Single Judge and also for the fact that the Appellant herein, who was the writ Petitioner before the writ Court, while participating in the hearing/proceeding did not raise any objection to hearing of all the writ petitions analogously and for to the first, time raised the aforesaid question herein, as it is a settled position that the points which have not been raised before a writ Court cannot be raised later on in an appeal Court to criticize the views of the earlier Court. 16. It appears from paragraph 5 of the writ petition, wherein the Petitioner stated that in response to their application the director of employment and Craftsmen Training, Assam, Rehabari, Guwahati-08 issued admit cards to the Petitioner along with others for written examination which was held on 23.3.2008. The Petitioner accordingly appeared in the written examination held on 23.3.2008, According to us, learned Single Judge did not commit any wrong while deciding the writ petition of the Appellant along with other writ petitions when the subject-matter of all the writ petitions was same. More so, in view of the decision of the Apex Court in Om Prakash Shukla v. Akhilesh Kumar Shukla and Ors. AIR 1986 SC 1043 it is settled that a candidate who appeared in the examination without protest, has no right to challenge the validity of the said examination. The principle laid down in Om Prakash Shukla (supra) would be evident from paragraph 23 of the said judgment which is reproduced herein below. 23. More over, this is a case where the Petitioner in the writ petition should not have been granted any relief. He had appeared for the examination without any protest. He filed the petition only after he had perhaps realized that he would not succeed in the examination. 23. More over, this is a case where the Petitioner in the writ petition should not have been granted any relief. He had appeared for the examination without any protest. He filed the petition only after he had perhaps realized that he would not succeed in the examination. The High Court itself has observed that the setting aside of the results of examinations held in the other districts would cause hardship to the candidates who had appeared there. The same yardstick should have been applied to the candidates in the District of Kanpur also. They were not responsible for the conduct of the examination. 17. From the pleadings of the Appellant, it appears that admittedly the Appellant appeared in the written examination without making any protest and after being unsuccessful in the written examination she approached the writ Court by way of filing writ petition. From the aforesaid fact we are of the considered opinion that the case of the Appellant is squarely covered by the decision of Om Prakash Shukla (supra) and no case is made out for admission of the appeal and interference with the judgment of the learned Single Judge. 18. Hence, we are of the opinion that this is not a fit case for admission. In the result, the instant writ appeal is dismissed. No order as to costs. Appeal dismissed.