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2015 DIGILAW 1203 (GAU)

Phatik Chandra Barman v. Union of India

2015-09-17

UJJAL BHUYAN

body2015
JUDGMENT : Ujjal Bhuyan, J. 1. This order will dispose of both WP(C) Nos. 1615 of 2014 and 308 of 2015. Both writ petitions were heard together on 7.9.2015 as the subject matter is interrelated and today is fixed for delivery of judgment. 2. 3 (three) petitioners have joined together and have instituted the 2 (two) writ petitions. 3. Petitioners seek a direction to the respondents to complete the selection process for appointment to the 3 (three) vacancies in the post of Mazdoor pursuant to advertisement dated 23.06.2012 by appointing the selected candidates and seek quashing of subsequent selection process to fill up the said vacancies. 4. Case of the petitioners is that an advertisement was published in the Employment News on 23.06.2012 by the respondent No. 2 inviting applications from eligible candidates to fill up 3 (three) vacancies in the post of Mazdoor and 1 (one) vacancy in the post of Fireman. The 2 (two) writ petitions are concerned with the post of Mazdoor. Out of the 3 (three) notified vacancies, 1 (one) was earmarked for Scheduled Tribe (ST) and 2 (two) for unreserved (UR). Out of the 2 (two) UR vacancies, 1 (one) was earmarked for physically handicapped (hearing impaired) and the other vacancy was reserved for ex-service men. 5. The 3 (three) writ petitioners responded to the said advertisement and submitted their applications for the post of Mazdoor. Petitioner No. 1 is an UR candidate belonging to ex-service men category, whereas petitioner No. 2 is also a general (UR) candidate belonging to physically handicapped category. The third petitioner is an ST candidate. 6. Petitioners received call letters dated 29.09.2012, whereby they were informed that the test/interview was scheduled on 30.10.2012 at 21 Mountain Division Ordnance Unit, Borjhar, Guwahati. Accordingly, interview test was held on 30.10.2012, wherein the petitioners and other candidates participated. 7. According to the petitioners, after conclusion of the test/interview, a select list of successful candidates was prepared, whereby, petitioners were shown selected against the respective categories. 8. Despite such selection, consequential steps were not taken by the respondents for appointment of the selected candidates. When legal notice was issued, petitioners were informed that selection proceedings were forwarded to the higher authorities for scrutiny and approval only whereafter, appointments would be made. Since the Recruitment Board proceedings were still on, the delay had occurred. 9. 8. Despite such selection, consequential steps were not taken by the respondents for appointment of the selected candidates. When legal notice was issued, petitioners were informed that selection proceedings were forwarded to the higher authorities for scrutiny and approval only whereafter, appointments would be made. Since the Recruitment Board proceedings were still on, the delay had occurred. 9. This led to filing of WP(C) No. 3825 of 2013 by the petitioners, seeking a direction to the respondents to complete the selection process. In the counter affidavit filed by the respondents in the said writ petition, it was stated that respondent No. 5 had cancelled the recruitment process on the ground of non-endorsement of ST/SC category in the merit list and that direction was issued to conduct the recruitment process afresh. 10. Thereafter, another advertisement was issued for recruitment to the aforesaid 3 (three) vacancies in the post of Mazdoor and 1 (one) post of Fireman, which was published in the Employment News in its issue dated 1st to 7th of March, 2014. At that stage, WP (C) No. 3825 of 2013 was withdrawn vide order dated 05.03.2013 with liberty to file afresh. Thereafter, petitioners filed WP(C) No. 1615 of 2014, putting into challenge the subsequent advertisement. This Court vide order dated 24.03.2014, issued notice and in the interim, directed the respondents not to fill up the 3 (three) vacancies in the post of Mazdoor as per the recruitment notice published in the Employment News dated 1st to 7th of March, 2014. The interim order was till the next date, i.e., 20.06.2014. However, the interim order was not continued thereafter. 11. Respondents issued another advertisement, which was published in the Employment News in its issue dated 29th November to 5th December, 2014, inviting applications for 6 (six) vacancies in the post of Mazdoor and 1 (one) vacancy in the post of Fireman. According to the petitioner, the 6 (six) notified vacancies in the post of Mazdoor included the 3 (three) vacancies notified earlier, more particularly, in the advertisement dated 23.06.2012. At this stage, WP(C) No. 308 of 2015 was filed. 12. This Court by order dated 28.1.2015, had admitted WP(C) No. 308 of 2015 for hearing and in the meanwhile, passed an interim order to the effect that 3 (three) vacancies in the post of Mazdoor should not be filled up. 13. At this stage, WP(C) No. 308 of 2015 was filed. 12. This Court by order dated 28.1.2015, had admitted WP(C) No. 308 of 2015 for hearing and in the meanwhile, passed an interim order to the effect that 3 (three) vacancies in the post of Mazdoor should not be filled up. 13. While respondents have filed counter affidavit in WP(C) No. 1615 of 2014, they have filed a miscellaneous application in WP (C) No. 308 of 2015 for vacation of the interim order dated 28.01.2015, which has been registered as MC No. 855 of 2015. 14. Heard Mr. U. Dutta, learned counsel for the petitioners and Mr. S.C. Keyal, learned Assistant Solicitor General of India, who has also produced the record. 15. Mr. Dutta, learned counsel for the petitioners, submits that the selection process undertaken for the post of Mazdoor pursuant to the advertisement dated 23.06.2012 did not suffer from any infirmity to warrant cancellation. Petitioners were all along informed that the delay in finalization of the recruitment process was on account of scrutiny by the higher authorities for the purpose of approval. He submits that respondent No. 5 vide letter dated 16.12.2012, had returned back the proceedings of selection for further clarification with regard to selection for the post of Fireman on the ground that the selected candidate had failed to qualify in the 1.4 kilometre run within the specified time and also on account of non-endorsement of category like UR, ST etc. in the merit list. On the basis of the aforesaid letter of respondent No. 5 dated 16.12.2012, respondent No. 2 prepared a report dated 09.02.2013, finding fault with the process of selection for the post of Fireman by selecting a candidate, who failed to qualify in the 1.4 kilometre run. Therefore, it was suggested that the selection board be reconvened or the board proceedings be perused for further actions. Ultimately, respondent No. 3 passed order dated 23.03.2013, recommending cancellation of selection proceedings for both Fireman and Mazdoor and holding denovo selection. Learned counsel submits that there might have been anomalies in the selection for Fireman but that cannot be a ground for quashing the selection process for Mazdoor. The selection process for Mazdoor not being vitiated by any noticeable infirmity should not have been interfered with, causing prejudice to the petitioners who were selected on the basis of their merit. Learned counsel submits that there might have been anomalies in the selection for Fireman but that cannot be a ground for quashing the selection process for Mazdoor. The selection process for Mazdoor not being vitiated by any noticeable infirmity should not have been interfered with, causing prejudice to the petitioners who were selected on the basis of their merit. He, therefore, submits that suitable directions may be issued by this Court to the respondents to finalize the selection pursuant to the advertisement dated 23.06.2012. 16. On the other hand, Mr. Keyal, learned Assistant Solicitor General by placing reliance on the counter affidavit and Miscellaneous Application, submits that since fresh advertisement is being issued petitioners should appear in the selection afresh, in which case, their candidatures would be considered on the basis of their merit. He further submits that in the last advertisement published in the Employment News in its issue dated 29th November to 5th December, 2014, the 3 (three) vacancies notified in the advertisement dated 23.06.2012 are not included. Those vacancies are not part of the latest advertisement, and as such, the interim order passed by this Court on 28.01.2015 has caused prejudice to the respondents in filling up the unrelated vacancies. 17. Submissions made by the learned counsel for the parties have been considered. Also perused the materials on record. 18. From the miscellaneous application filed by the respondents in WP(C) No. 308 of 2015, it is now evident that those 6 (six) vacancies in the post of Mazdoor notified vide the advertisement published in the Employment News in its issue dated 24th November to 5th December, 2014, do not include the 3 (three) vacancies in the post of Mazdoor, notified vide the advertisement dated 23.06.2012. As a matter of fact, petitioners are concerned only with the 3 (three) vacancies in the post of Mazdoor notified vide advertisement dated 23.06.2012. It is also quite evident from the materials placed on record that there is objection regarding the selection for the post of Fireman as it is stated that a candidate who failed to qualify in the 1.4 kilometre run was shown selected. There is no objection as such to the selection relating to the 3 (three) vacancies in the post of Mazdoor though it is stated that in the merit list the respective categories of the selected candidates ought to have been mentioned. There is no objection as such to the selection relating to the 3 (three) vacancies in the post of Mazdoor though it is stated that in the merit list the respective categories of the selected candidates ought to have been mentioned. A perusal of the merit list placed on record as Annexure - C to WP(C) No. 308 of 2015, would go to show that petitioner No. 1 is placed in the 1st position in the ex-service men category with the remark 'selected'. He is undoubtedly an UR candidate belonging to the ex-servicemen category. Petitioner No. 2 is shown in the first position against physically handicapped category with the remark 'selected'. It is also not disputed that petitioner No. 2 is an UR candidate belonging to the PH category. The third petitioner belongs to ST category, which is reflected in the merit list and shown selected at first position of that category. Adverting back to the advertisement dated 23.06.2012, it is seen that as per the said advertisement, 3 (three) vacancies in the post of Mazdoor were notified, 2 (two) for UR and 1 (one) for ST. Out of the 2 (two) UR vacancies, one was further earmarked for ex-service men category and the other for physically handicapped category. Therefore, there appears to be no infirmity at all in the preparation of the merit list of Mazdoor pursuant to the advertisement dated 23.06.2012. Non-mentioning of UR category against petitioner Nos. 1 and 2 in the merit list does not in any way affect the validity of the said merit list. In any case, such non-mentioning has not caused any prejudice to either the petitioner Nos. 1 and 2 or to any other candidate. 19. It goes without saying that in a system of recruitment to public posts there is a great deal of sanctity attached to the selection process., Unless the selection is vitiated by illegality and anomalies, which strike at the root of the selection and which cannot be cured, ordinarily a selection process should not be interfered with. The approach of the authority should be to sustain the selection to the extent possible unless annulment becomes inevitable. It is based on human experience that a candidate selected in one round of selection in a recruitment process may not be able to repeat the performance if it is held again at a later stage. 20. The approach of the authority should be to sustain the selection to the extent possible unless annulment becomes inevitable. It is based on human experience that a candidate selected in one round of selection in a recruitment process may not be able to repeat the performance if it is held again at a later stage. 20. On the materials placed on record, this Court finds no anomaly in the selection for the post of Mazdoor pursuant to the advertisement dated 23.06.2012 to warrant its abandonment Accordingly, the decision taken to abandon the said selection is interfered with and me respondents are directed to give full effect to the merit list prepared for the 3 (three) vacancies in the post of Mazdoor pursuant to the advertisement dated 23.06.2012. After completion of this exercise, respondents may proceed with the recruitment process pursuant to the subsequent advertisement published in the Employment News in its issue dated 29th November to 5th December, 2014. Interim order passed on 28.01.2015 in WP(C) 308 of 2015 is modified accordingly. 21. Both the writ petitions are allowed as indicated above. Record produced by Mr. Keyal is returned back.