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2015 DIGILAW 1352 (GAU)

Karabi Pathak v. State of Assam

2015-10-15

UJJAL BHUYAN

body2015
JUDGMENT AND ORDER : Ujjal Bhuyan, J. Heard Mr. K.K. Mahanta, learned Senior Counsel for the petitioner, Ms. R. Gogoi, learned Government Advocate, Assam and Mr. K. Bhattacharjee, learned counsel for respondent No. 9. 2. This is an application under Article 226 of the Constitution of India, whereby, petitioner seeks quashing of appointment of respondent No. 9 to the post of Make-Up-Man (Female) in the Directorate of Information and Public Relations, Assam, as well as for declaring the selection process leading to such appointment as null and void. 3. According to the petitioner, an advertisement was issued on 10.03.2008 by the Directorate of Information and Public Relations, Assam, inviting applications from eligible candidates to fill up 1 (one) vacancy in the post of Make-Up-Man (Female) in the said Directorate. Qualifications prescribed for the said post were as under:- (i) Degree from any recognised university. (ii) Diploma or Certificate or working experience at least for 3 (three) years on Make-Up from reputed institution. (iii) Aptitude in singing, dancing and acting. (iv) Extra curricular activities like knowledge of computer application would be added qualification. 4. According to the petitioner, she responded to the said advertisement and submitted application. However, she did not receive any call-letter. Therefore, she went to the office of the Director on 14.07.2008, where she was told that call letter was already dispatched by post. However, a second copy of the call letter was furnished to her on the same date, which disclosed that practical test and interview would be held on 19.07.2008 from 11:30 am in the Office of the Director, i.e., respondent No. 3. 5. On 19.07.2008, petitioner appeared in the office of the respondent No. 3 for the practical test and interview. Petitioner found only respondent No. 9 present. No other candidates were present. Petitioner was first interviewed, where after, respondent No. 9 was interviewed. No practical test was held. 6. No select list was published, pursuant to the interview held on 19.07.2008. However, when the petitioner visited the office of respondent No. 3 on 29.07.2008, she found that respondent No. 9 was selected and had already joined her post. 7. Petitioner submitted application before the Director under the Right to Information Act, 2005, seeking the marks secured by her and by respondent No. 9. But no information was furnished to her. 8. Aggrieved, present writ petition has been filed seeking the reliefs as indicated above. 7. Petitioner submitted application before the Director under the Right to Information Act, 2005, seeking the marks secured by her and by respondent No. 9. But no information was furnished to her. 8. Aggrieved, present writ petition has been filed seeking the reliefs as indicated above. 9. Contention of the petitioner is that post of Make-Up-Man (Female) is a Class-III post and is directly recruited. Procedure for such recruitment is laid down in Assam Public Services (Direct Recruitment to Class-III and IV Posts) Rules, 1997 (hereinafter, referred to as "1997 Rules" in short). Rule 5 thereof provides for constitution of selection committee. According to the petitioner, in this case, the selection committee constituted and the interview of petitioner and respondent No. 9 were not in terms of Rule 5 of the 1997 Rules. Expressing grave doubts about the fairness of the selection procedure, present writ petition has been filed. 10. Director has filed affidavit. Stand taken in the affidavit is that call letters were duly dispatched to all the candidates and interview was held as per schedule. Only 2 (two) candidates appeared in the interview. Both the candidates were interviewed for about half-an-hour. Interview was conducted in a proper manner. Selection committee was duly constituted as per Rules. One Sri Naren Das, Producer, Cultural Wing was a member of the selection committee. He himself was a well experienced make-up-man and artist of repute. His participation as a member of the selection committee did not violate the 1997 Rules. While the Director acknowledged receipt of application from the petitioner seeking information under the Right to Information Act, 2005, he, however submits that before proper reply could be furnished, the writ petition was filed. Admitting that no select list was published, it is stated that as per the Assam Fiscal Responsibility and Budget Management Act, 2005, only 1 (one) candidate per vacancy should be selected for appointment. Since there was only 1 (one) vacancy in the post of Make-Up-Man (Female) publication of select list became redundant. 11. Respondent No. 9 has also filed affidavit. Stand taken in the affidavit is that the Director had issued an advertisement dated 10.03.2008, which was published in the daily newspaper Sentinel. She had responded to the advertisement. Thereafter, after receiving the call letter, she appeared before the interview board and based on her better performance, she was selected. 11. Respondent No. 9 has also filed affidavit. Stand taken in the affidavit is that the Director had issued an advertisement dated 10.03.2008, which was published in the daily newspaper Sentinel. She had responded to the advertisement. Thereafter, after receiving the call letter, she appeared before the interview board and based on her better performance, she was selected. Appointment letter was issued to her on 21.07.2008, copy of which has been annexed to her affidavit. Respondent No. 9, thereafter joined her post and is discharging her duties as Make-Up-Man (Female), since then. 12. Basic crux of Mr. Mahanta's elaborate arguments relate to constitution of the selection committee. Rule 5 of the 1997 Rules provides for constitution of different selection committees for different offices. For constitution of selection committee for posts in the offices of the Heads of Department, Rule 5 (1) (c) would be relevant and the said Rule lays down how and in what manner, the Selection Committee has to be constituted. From the affidavit of the Director, it is quite clear that the selection committee which selected respondent No. 9 was not constituted as per the provisions contained in Rule 5 (1) (c). Therefore, the very foundation of the selection and appointment of respondent No. 9 becomes untenable and cannot be sustained. 13. On the other hand, both Ms Gogoi and Mr. K Bhattacharjee, learned counsel for respondents would contend that the selection was carried out in accordance with the laid down procedure and did not suffer from any infirmity. Petitioner having participated in the selection and not being successful cannot later on turn around and challenge the selection and appointment of respondent No. 9; thus this would be a case of estoppel by conduct. Therefore, the writ petition should be dismissed. Additionally, Mr. Bhattacharjee, submits that respondent No. 9 was appointed way back in the year 2008 and since then, she has been serving for more than 7 (seven) years. This is also an aspect, which requires to be considered. 14. On a query by the Court, as to whether at this stage, interference by the Court would be justified, Mr. Mahanta, learned Senior Counsel for the petitioner submits that petitioner had instituted the challenge promptly by filing the writ petition immediately on 25.08.2008. This is also an aspect, which requires to be considered. 14. On a query by the Court, as to whether at this stage, interference by the Court would be justified, Mr. Mahanta, learned Senior Counsel for the petitioner submits that petitioner had instituted the challenge promptly by filing the writ petition immediately on 25.08.2008. For the delay in disposal of the case by the Court, petitioner cannot be denied her relief if she is otherwise entitled to, under the law. 15. Submissions made by learned counsel for the parties have received the due consideration of the Court. 16. Before adverting to the main contention raised by the learned Senior Counsel for the petitioner, namely, constitution of the selection committee, Court is of the view that certain indisputable facts which have become obvious from the affidavit filed by the Director requires to be stated at the outset, so as to have a proper perception of the grievance raised and the adjudication thereof. 17. Affidavit of the Director (respondent No. 3) does not disclose how many candidates had responded to the advertisement dated 10.03.2008. However, it is evident that only 2 (two) candidates had appeared in the interview on 19.07.2008, i.e., petitioner and respondent No. 9. 18. Though the advertisement was silent about the scheme of selection, however, it is discernible from the affidavit of the Director that only interview was held. The affidavit does not disclose the marks obtained by the petitioner as well as by the respondent No. 9 in the interview. In fact, the interview/selection proceedings have not been placed before the Court. 19. Another aspect which has come to light is that no select list was published. Non-publishing of the select list has been justified on the ground that since there was only 1 (one) vacancy and as per the Assam Fiscal Responsibility and Budget Management Act, 2005, only 1 (one) candidate should be selected per vacancy, necessity for publication of select list stood obviated but the question is why the affidavit does not disclose that respondent No. 9 was selected. In fact, there is no statement in the affidavit or any document annexed thereto to show selection of respondent No. 9. To compound the matter further, the marks secured by the 2 (two) candidates, who had appeared in the interview, have also not been disclosed. In fact, there is no statement in the affidavit or any document annexed thereto to show selection of respondent No. 9. To compound the matter further, the marks secured by the 2 (two) candidates, who had appeared in the interview, have also not been disclosed. However, the appointment letter of respondent No. 9 dated 21.07.2008 discloses that the appointment was made on the recommendation of the departmental selection committee. But as noticed above, such recommendation has not been placed on record. Unless there is a select list disclosing selection of candidates, question of appointing the selected candidates would not arise. 20. There is no dispute at the Bar that recruitment to the post of Make-Up-Man (Female), which is a Grade-III post, is covered by the provisions of the 1997 Rules, which have been framed in exercise of the powers conferred by the proviso to Article 309 of the Constitution of India. Rule 4 of the 1997 Rules, in particular, Rule 4 (3) provides that selection committee after conducting necessary test/interview, shall prepare a combined list of successful candidates in order of merit and furnish to the appointing authority a copy of the merit list of candidates recommended by it, which shall remain valid for 12 (twelve) months from the date of recommendation. Thus, as per Rule 4 (3) of the 1997 Rules, preparation of select (merit) list is mandatory. Such preparation of select list is not dependent on the number of vacancies for which the selection is held 21. Rule 6 of the 1997 Rules provides for the selection procedure. Rule 6 (2) provides that selection shall 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 mode of selection as laid down in the Government instruction issued by the Administrative Department under the provisions of Rule 5 (3). As per Rule 5 (3) the Administrative Department is required to issue instructions amongst others as to whether there would be written test and if so, the name of the papers and the maximum marks for each paper, whether there would be typing test, and if so, the maximum marks of the typing test and whether there would be interview and if so, the maximum marks in the interview. 22. 22. The Hon'ble Supreme Court, in a catena of decisions has held that over dependence of marks secured in the interview/viva voce test may not be a correct reflection of the inter-se-merit of the rival candidates. Hon'ble Supreme Court has intervened in a number of cases where it was found that percentage of marks allotted for viva voce test in the overall selection process was such that it was capable of influencing the final outcome of the selection. In other words, depending upon the nature of the post, marks allotted for the interview should be such that it is not determinative of the outcome of the selection process. But in this case, as has been noticed above, neither written test nor practical test was held. Only interview/viva voce test was held. Nothing has been placed on record disclosing the total marks of the viva voce test and the marks secured by the petitioner and respondent No. 9. This coupled with the fact that no select list was published, which is a mandatory requirement under the law, has rendered the selection of respondent No. 9 untenable. Thus, it is evident that appointment of respondent No. 9 is untenable, being in violation of the provisions of the 1997 Rules. 23. Having said so, the provisions of Rule 5 (1) (c) may now be adverted to. Rule 5 (1) says that there shall be constituted different selection committees for selecting candidates for Class-III and Class-IV posts in different offices of the State for which no service rules or executive orders are in place. In respect of selection committee for posts in the offices of the Heads of Departments, the composition of the selection committee would be as under:- (1) Chairman - appointing authority or the senior most departmental officer available in the district where the vacancy arises nominated by the appointing authority. (2) Member Secretary - A departmental officer belonging to the office under which the vacancy arises. (3) Member - An officer to be nominated by the Director of Agriculture, Assam, in case the vacancy arises in the Office of the Director of Employment and Craftsmen Training, Assam and by the Director of Employment and Craftsmen Training, Assam, in all other cases. (4) Members - Two officers to be nominated by the appointing authority from the Offices of two other Heads of Department (one from each office). (4) Members - Two officers to be nominated by the appointing authority from the Offices of two other Heads of Department (one from each office). Having noticed the constitution of the selection committee as per the 1997 Rules, the constitution of the selection committee for the instant selection may now be examined. In paragraph - 7 of the affidavit filed by the Director, it is stated that the following were members of the selection committee:- (1) D.C. Deka, DIPR - Chairman. (2) Jiten Kakaty, Deputy Director - Member Secretary. (3) Rita Das, Deputy Secretary IPR Department - Member. (4) Naren Das, Producer, Cultural Wing of DIPR - Member. (5) Putul Das - Ex-Officio Member. On a scrutiny of the composition of the selection committee as above, vis-a-vis, the statutory prescription, it is evident that other than the Chairman and Member Secretary, none of the other members of the selection committee were appointed as per the provisions contained in Rule 5 (1) (c) of the 1997 Rules. No nominations were made by the Director of Employment and Craftsmen Training, Assam. No nominations were made by the appointing authority from 2 (two) other departments as all the members were found to be belonging to the same department, besides one ex-officio member. 24. Constitution of the selection committee is fundamental to the selection process and if the selection committee is not constituted in accordance with the Rules, it will render the entire selection null and void. 25. In Dalpat Abasaheb Solunke v. Dr B.S. Mahajan; reported in (1990) 1 SCC 305 , the Supreme Court has held that the decision of the selection committee can be challenged in judicial review on limited grounds, such as illegality or patent material irregularity in the constitution of the selection committee or the procedure vitiating the selection process or on the ground of malice. 26. In Dr Biren Das v. Tezpur University; reported in (2003) 3 GLR 714, a Single Bench of this Court had held that objection as to the maintainability of a challenge to a selection on the ground that the challenger had participated in the selection would not be applicable in a case where selection is challenged on the ground of illegal composition of the selection committee in violation of the provisions of the statute. It has been held that if the petitioner succeeds in establishing that composition of the selection committee is contrary to the legal requirement, the fact that he had participated in the selection process would be of no consequence. In taking this view, this Court had relied upon the well-established principle that when a power is given to do a certain thing in a certain manner, the thing must be done in that manner or not at all. This rule is traceable to the English decision in Taylor v. Taylor and followed in Nazir Ahmad v. King Emperor and constitutionally recognised thereafter, by the constitutional courts in India. It has been recognised as a salutary principle of administrative law to ensure non-arbitrariness in decision making. 27. In Bhupendra Nath Hazarika v. State of Assam; reported in (2013) 2 SCC 516 , the Supreme Court has held that where the appointments are made in violation of the recruitment rules, such appointments cannot be sustained. 28. Thus, from a cumulative analysis of the above, there can be no manner of doubt that selection and appointment of respondent No. 9 is wholly untenable and cannot be sustained. 29. This Court is conscious of the fact that 7 (seven) long years have gone by since the illegal appointment of respondent No. 9 was made. However, when an illegality is staring at the face of the Court, the Court will have to weigh legality on one side and equity on the other side in the scale of justice. Certainly, equity cannot overweigh legality in the scale of justice in such a case. 30. Accordingly and in the light of the above, selection and appointment of respondent No. 9 is set aside and quashed. Respondents are directed to hold fresh selection for the post of Make-Up-Man (Female) in accordance with law within a period of 3 (three) months from the date of receipt of a certified copy of this order. Both petitioner and respondent No. 9, if fit and are willing, may be allowed to participate in the selection and if they have become over-aged, respondents may condone their over-age and allow them to participate in the fresh selection. The fresh selection shall be conducted strictly in terms of the 1997 Rules. Both petitioner and respondent No. 9, if fit and are willing, may be allowed to participate in the selection and if they have become over-aged, respondents may condone their over-age and allow them to participate in the fresh selection. The fresh selection shall be conducted strictly in terms of the 1997 Rules. However, having regard to the fact that respondent No. 9 has continued in service for 7 (seven) long years, it would be open to the respondents to continue her engagement on temporary basis without accrual of any right till completion of the fresh selection process. 31. Writ petition is accordingly allowed, but without any order as to costs.