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2014 DIGILAW 309 (GAU)

Lunadekabaruah v. State of Assam

2014-03-13

UJJAL BHUYAN

body2014
Judgment Ujjal Bhuyan, J. 1. By way of this petition under Article 226 of the Constitution of India, petitioners seek a direction to the respondents to appoint them in the post of Lower Division Assistant (LDA)/Junior Administrative Assistant (JAA) under the establishment of Directorate of Archives, Government of Assam. The 2 petitioners have joined together and have jointly instituted the present proceeding as their grievance and the relief they seek are identical. 2. Facts of the case may be briefly noted. 3. Directorate of Archives, Assam issued an advertisement which was published in the daily newspaper Assam Tribune on 4.7.2012. By the said advertisement, applications were invited for 2 reserved posts of LDA/JAA under the establishment of Director of Archives, Assam. As per the advertisement, out of the 2 posts, one was reserved for ST(P) and the other for SC. Minimum educational qualification prescribed was Higher Secondary pass or equivalent qualification with a recognized Diploma in Computer and English/Assamese DTP. 4. Petitioner No. 1 belongs to the Sonowal Kachari community which is recognized as ST(P) whereas petitioner No. 2 belongs to Koibortya community which is recognized as SC in the State of Assam. Both of them possessed the minimum educational qualification prescribed for the post as per the advertisement 5. Being eligible and interested, both the petitioners applied for the said post pursuant to the advertisement dated 4.7.2012. Call letters were issued to them asking them to appear in the written test which was scheduled on 13.11.2012. Petitioners appeared in the written test and they were selected for the viva voce test. For the post reserved for ST(P), 27 candidates were selected for viva voce whereas for the post reserved for SC, 17 candidates were declared to have passed the written test and called for the viva voce; thus a total of 44 candidates including the 2 petitioners passed the written test and were called to appear in the viva voce test. 6. Petitioners appeared in the viva voce test held on 17.12.2012. According to them, they performed well. Directorate of Archives, Assam published a notice in the Assam Tribune on 19.12.2012 declaring that the viva voce test for selection to the 2 posts of LDA/JAA was conducted by the Interview Board which thereafter recommended the 2 petitioners for appointment against the 2 posts in order of merit. According to them, they performed well. Directorate of Archives, Assam published a notice in the Assam Tribune on 19.12.2012 declaring that the viva voce test for selection to the 2 posts of LDA/JAA was conducted by the Interview Board which thereafter recommended the 2 petitioners for appointment against the 2 posts in order of merit. Petitioner No. 1 has been selected against the post reserved for ST(P) whereas petitioner No. 2 has been selected against the post reserved for SC. According to the petitioners, appointing authority thereafter has also obtained the police verification reports in respect of both the petitioners paving the way for their appointment, police verification report dated 2.2.2013 in respect of petitioner No. 1 and police verification report dated 16.2.2013 in respect of petitioner No. 2. 7. It is the grievance of the petitioners that inspite of their selection and verification by the police, no appointment letter has been issued to them. When they visited the office of respondent No. 4, they were told that their appointment letters would be issued very shortly but those were not forthcoming. Further grievance of the petitioners is that a parallel recruitment process was initiated by the Directorate of Archives, Assam for filling up 7 posts of Accountant, LDA/JAA, Accounts Assistant etc. vide advertisement dated 13.12.2012 published in the newspaper the Assam Tribune. All the posts were open category posts and not reserved for any category. Selection was not only carried out and completed, the selected candidates have also been appointed. But petitioners being reserved category candidates, they were not appointed. Feeling aggrieved and discriminated, petitioners submitted representation before the Chief Secretary to the Government of Assam seeking his intervention in the matter but no decision was taken on the said representation. 8. Aggrieved, petitioners have filed the present writ petition seeking the relief as indicated above. 9. This Court by order dated 3.10.2013 issued notice and in the meanwhile directed that the 2 posts of LDA/JAA against which the petitioners were selected/recommended by the Interview Board for appointment should not be filled up. It was further observed that pendency of the writ petition would not be a bar for the respondents to redress the grievance of the petitioners. 10. Though time was granted to the respondents, no affidavit has been filed. It was further observed that pendency of the writ petition would not be a bar for the respondents to redress the grievance of the petitioners. 10. Though time was granted to the respondents, no affidavit has been filed. By order dated 6.1.2014, this Court while granting time till 29.1.2014 to file affidavit had made it clear that no further chance would be granted and in case no affidavit is filed, the writ petition would be taken up for disposal on the basis of the averments made therein. Still no affidavit has been filed. No instructions have also been placed on record. Accordingly, the case is taken up for disposal on the basis of the materials on record. 11. I have heard Mr. B. Goswami, learned counsel for the petitioners and Mrs. H.M. Phukan, learned Government Advocate, Assam. 12. Mr. Goswami, learned counsel for the petitioners submits that there is no justifiable reason to deny appointment to the petitioners to the 2 posts of LDA/JAA despite their selection and recommendation by the Interview Board. Failure of the respondents to file affidavit or to place instruction before the Court is itself indicative of the fact that there is no justifiable reason to deny appointment to the petitioners. In such circumstances, learned counsel for the petitioners submits that ends of justice warrants a positive direction from this Court to the respondents to appoint the petitioners following their selection and recommendation. 13. Learned State Counsel, on the other hand, submits that in the absence of instruction, she is not in a position to effectively assist the Court in the case and therefore submits that considering the facts and circumstances of the case, Court may consider passing appropriate order. 14. Submissions made have been considered. 15. Facts projected in the writ petition are not disputed. Averments made in the writ petition have not been controverted. Petitioners have gone through a selection process following which they were selected and recommended against the 2 posts of LDA/JAA, petitioner No. 1 for the post reserved for ST(P) and petitioner No. 2 for the post reserved for SC. The select list was published in the newspaper on 19.12.2012. Thereafter it appears, police verification was also carried out in respect of the 2 petitioners following which verification report was submitted by the police to the appointing authority paving the way for their appointment. The select list was published in the newspaper on 19.12.2012. Thereafter it appears, police verification was also carried out in respect of the 2 petitioners following which verification report was submitted by the police to the appointing authority paving the way for their appointment. Yet, appointments were not forthcoming compelling the petitioners to approach this Court by filing the present writ petition which was filed on 20.9.2013 i.e. within a period of one year from the date of issue of the select list. 16. It is true that a person selected and empanelled in the select list has no vested right to be appointed to the post for which he has been selected but he has a right to be considered for appointment. However, in the case of R.S. Mittal Vs. Union of India reported in 1995 Supp (2) SCC 230, the Hon'ble Supreme Court held that the appointing authority cannot ignore the select panel or decline to make the appointment on its whims and when there is a vacancy which can be offered to him, keeping in view his merit position, then, ordinarily, there would be no justification to ignore him for appointment. There has to be justifiable reason to decline to appoint a person who is on the select panel. 17. In Director, SCTI for Medical Science and Technology & Anr. Vs. M. Pushkaran reported in (2008) I SCC 48, the Apex Court after noticing some of the decisions operating in the field, including R.S. Mittal, held that application of law would, therefore, depend upon the fact situation obtaining in each case. 18. Referring to the above decision, the Hon'ble Supreme Court in the case of Union of India Vs. Pradip Kumar Kedia reported in (2012) 1 SCC 432 , held that where the Court does not find any reason for the authorities not to offer any appointment to the candidate placed in the selection panel, the Court can direct appointment. 19. Coming to the facts of the present case, Court is of the view that there is no reason or justification to deny appointment to the petitioners, who have been selected/recommended for appointment following a due selection process. Some sanctity has to be attached to the selection process initiated by the authority. Selected candidates have a legitimate expectation that they would be appointed. Some sanctity has to be attached to the selection process initiated by the authority. Selected candidates have a legitimate expectation that they would be appointed. Selection process is undertaken to select candidates for making appointment and not to keep the selected candidates in a state of uncertainty by denying them appointment. 20. That being the position, Court is of the view that respondent No. 4 i.e. Director of Archives, Assam should now issue the consequential appointment letters to the petitioners. Ordered accordingly. The same shall be done within a period of 4(four) weeks from the date of receipt of a certified copy of this order. 21. Writ petition is accordingly allowed. No cost. Petition allowed.