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2015 DIGILAW 1522 (GAU)

Happy Gogoi v. State of Assam

2015-12-14

UJJAL BHUYAN

body2015
JUDGMENT : Heard Mr. NNB Choudhury, learned counsel for the petitioner, Mr. J. Singh, learned Standing Counsel, Social Welfare Department and Mr. T.C. Chutia, learned Standing Counsel, Board of Secondary Education, Assam (SEBA). 2. By filing this petition under Article 226 of the Constitution of India, petitioner seeks quashing of rejection list dated 26.09.2013 in respect of her candidature for appointment to the post of Supervisor (Contractual) under ICDS Project in the State of Assam and further seeks a direction to the respondents to appoint her in the post of Supervisor (Contractual) under ICDS Project in the district of Kamrup. 3. Case of the petitioner is that an advertisement was issued on 30.06.2009 by the Director of Social Welfare, Assam inviting applications from eligible candidates to fill up approximately 430 vacancies in the post of Supervisor on contractual basis. Petitioner responded to the said advertisement and was accordingly issued admit card to appear in the written test scheduled on 30.10.2010. Petitioner was given the Roll No. of 14016759. Written examination was conducted by SEBA. Result of the written test was declared on 13.12.2010. Petitioner was declared to have passed in the written examination and was accordingly declared as eligible for the viva voce test. 4. Thereafter, petitioner was called to appear in the viva voce test scheduled from 09.02.2011 onwards. In this connection, general notice was issued by the Directorate of Social Welfare, Assam on 03.02.2011, in which name of the petitioner was included. Accordingly, petitioner appeared in the viva voce test on 09.02.2011. 5. A merit list was prepared by the Director of Social Welfare, Assam wherein name of the petitioner was included. However, in the final select list, name of the petitioner was not included. 6. On 26.09.2013, Directorate of Social Welfare published a list of candidates who were selected on merit but withheld for verification of age, caste and availability of their names in the district lists. In this list name of the petitioner was included at Sl. No. 12 and it was remarked that petitioner’s name did not appear in the list of candidates submitted by the District Social Welfare Officer, Kamrup. Her name was not found in the original list as submitted by the said officer as well as in the reject list. In this list name of the petitioner was included at Sl. No. 12 and it was remarked that petitioner’s name did not appear in the list of candidates submitted by the District Social Welfare Officer, Kamrup. Her name was not found in the original list as submitted by the said officer as well as in the reject list. It was further remarked that petitioner did not appear before the Documents Verification Committee and did not submit any document in support of her claim that she had responded to the advertisement from Kamrup district. In the meanwhile, fresh advertisement dated 24.02.2014 was issued to fill up 71 vacancies in the post of Supervisor (Contractual). 7. Aggrieved, present writ petition has been filed seeking the reliefs as indicated above. 8. This Court by order dated 30.05.2014 issued notice and passed an interim order to the effect that one post of Supervisor should be kept vacant. While passing the interim order this Court made the following observation:- “On going through the pleadings of the petitioner, it is difficult to understand as to how the name of the petitioner is not found in the final list of the District Social Welfare Officer. If at all her application is incomplete in any form or defective or is not received, she should not have been allowed to appear in the recruitment process. Under the circumstances, the petitioner has made out a strong prima facie case for an interim order. Till the returnable date, one post of Supervisor, advertised on 24.2.2014 (Annexure-9) shall be kept vacant.” 9. Thereafter, petitioner has filed additional affidavit wherein she has stated that she had submitted application alongwith the requisite documents in the office of the District Social Welfare Officer, Kamrup which after due scrutiny were forwarded to the SEBA to conduct the written examination. It is also stated that in the rejection list the roll number of the petitioner was wrongly mentioned as 14016750 instead of 14016759. 10. SEBA has filed affidavit and its stand is explained in paragraph 5 thereof which is extracted hereunder:- “5. That with regard to the statement made in paragraph 4 to the writ petition, the deponent states that the Directorate of Social Welfare Department had published an advertisement for recruitment of some Supervisors and statistical Assistants of that Department. 10. SEBA has filed affidavit and its stand is explained in paragraph 5 thereof which is extracted hereunder:- “5. That with regard to the statement made in paragraph 4 to the writ petition, the deponent states that the Directorate of Social Welfare Department had published an advertisement for recruitment of some Supervisors and statistical Assistants of that Department. After receiving the applications of the Directorate had opened the envelops and prepared a list of the candidates which were handed over to the Board along with soft copy prepared by that Directorate on the basis of an agreement between the authorities of the Board and the Social Welfare Department, Government of Assam, for conducting the Written Test on behalf of the Social Welfare Department. The envelops were detached from the application forms for which the Board had to scrutinize and compare all the applications received by the Board from the Directorate. A joint meeting was held on 06.10.2010 between the Social Welfare Department, Govt. of Assam and the authorities of SEBA. In clause 4 of the minutes of discussion it is mentioned- “The officials of both SEBA and Social Welfare Department, will finalize the list already scrutinized by SEBA as per criteria laid down in the advertisement and mutually agree upon to issue calling letters/admit cards to the accepted candidates. However, the Social Welfare Department will be at liberty to modify the list of accepted/rejected candidates at any stage before the conduct of the test as per OM’s and rules.” Though the Social Welfare Department had initially furnished the master copy of the list of the prospected candidates, at the last stage the Social Welfare Department decided to allow some candidates to appear the Written Examination who were rejected earlier. On the basis of the agreement the Employment and Officers of the Board alongwith Officials deputed by Social Welfare Department screened the applications and prepared a list of candidates and issued them printed Admit cards. On the basis of the agreement the Employment and Officers of the Board alongwith Officials deputed by Social Welfare Department screened the applications and prepared a list of candidates and issued them printed Admit cards. Then again the Commissioner and Secretary, SWD issued a WT message vide Memo No. SWD426/2008/140-A dated 20.10.2010 directed the District Social Welfare Officers of all Districts to scrutinize the rejected lists for consideration and allow the eligible candidates to appear the Examination and directed SEBA to send Blank Admit Cards to all the Officer-in-charge of the Examination Centres so that the left out candidates can be issued hand written Admit cards by the Officer-in-charge of the Examination centres on the basis of the eligibility certificates from the DSWO. Accordingly, SEBA issued Notifications and Advertisements vide (1) Memo Nos. SEBA/EX/DSW/176072 dated 20.10.2010 (2) SEBA/EX/DSW/176073-76 dated 21.10.2010 and (3) SEBA/EX/DSW/226078-87 dated 24.10.2010 and issued Blank Admit Cards to the Officer-in-charge of all Centres. It is under this principle that the Board had to issue Blank Admit Cards to the Centre-in-charge of each Centre for issuing hand written Admit cards to the candidates on the basis of the eligibility certificate from the DSWO. Under this provision and on the basis of the eligibility certificate issued by the DSWO some Officers-in-charges issued hand written Admit cards to some candidates. The petitioner is one of such candidate. She had appeared the Written Test under Roll No. 14016759 from Kamrup Academy HS School, Kamrup, Assam and came out successful. Since the Board had received her OMR against a particular Roll No and Admit card issued by the Officer-in-charge of the Centre who was authorized to issue such hand written Admit card, the Board had no alternative but to evaluate the OMR and publish the result accordingly. Since the candidate had been issued hand written Admit card her name was not in the original master list supplied by SWD to SEBA. Nor her name was included later on in the subsequent list prepares at SEBA office after screening of written Admit card by the Officer-in-charge of the center on the strength of the eligibility certificate issued by the DSWO. Nor her name was included later on in the subsequent list prepares at SEBA office after screening of written Admit card by the Officer-in-charge of the center on the strength of the eligibility certificate issued by the DSWO. Now it appears that the SWD had rejected the candidature of some candidates after coming out successful in both the Written and the Viva Voce/Oral interview on the ground of not finding the names of these candidates in the original list submitted by the DSWO nor in the subsequent list submitted by the DSWO to SWD at later stage. Whereas the Board had issued instructions to the Officer-in-charge of the Examination Centres to issue hand written Admit card only to those candidates whose eligibility had been recommended by the DSWO, hence, it is ascertained from SEBA’s end that the candidature of these candidates were duly recommended by the DSWO’s and on the basis of the eligibility certificate issued by them the Admit cards were issued to the concerned candidates. If there were any doubt about the candidature of these candidates the SWD should not have called these candidates to the Oral/Viva-voce interview or result of Viva-voce should have been declared prior to ascertaining candidature. Since the Officers-in-charge were allowed to issue hand written Admit cards from the Examination Centres on instruction from the Commissioner & Secretary of SWD, the responsibility for issuing such Admit cards from the centers also lies with the Department. However, as per terms in clause 4 of the minutes of discussion between SEBA and SWD it is mentioned the Social Welfare Department will be at liberty to modify the list of accepted/rejected candidates at any stage before the conduct of the test as per OM’s and rules. Hence SWD will take appropriate decision in regard to these candidates.” 11. Director of Social Welfare has filed affidavit on 21.07.2015. In paragraph 5 of the said affidavit, it is stated that result of the petitioner was kept withheld due to some anomalies regarding submission of application for the post of Supervisor pursuant to advertisement dated 30.06.2009. It is stated that petitioner did not submit her application in the office of the District Social Welfare Officer, Kamrup which is the requirement under the advertisement. This anomaly has been detected by the State Level Selection Committee consequent upon which result of the petitioner has been withheld. 12. Mr. It is stated that petitioner did not submit her application in the office of the District Social Welfare Officer, Kamrup which is the requirement under the advertisement. This anomaly has been detected by the State Level Selection Committee consequent upon which result of the petitioner has been withheld. 12. Mr. Choudhury, learned counsel for the petitioner has fairly argued that had the petitioner not submitted her application, question of providing her admit card with specific roll number would not have arisen. Petitioner was allowed to appear in the written examination which she successfully completed. Thereafter, she was also called for appearing in the viva voce test where also she appeared. As per the reject list of the Directorate of Social Welfare, petitioner had secured 68 marks in the written test and average of 19.66 in the viva voce test, total marks being 87.66. Just to deprive the petitioner from being appointed, Social Welfare Department has raised a totally untenable ground which has been taken note of by this Court while passing the interim order. According to Mr. Choudhury, contention of the petitioner has been buttressed by the stand taken by the SEBA in its affidavit. Therefore, necessary direction may be issued to the Social Welfare Department to provide appointment to the petitioner following her selection as per her merit. 13. Mr. T. C. Chutia, learned Standing Counsel, SEBA submits that the advertisement was issued by the Social Welfare Department and the appointments were also made by the Social Welfare Department. Since number of candidates was large and as the SEBA possesses the requisite infrastructure to conduct written test of such magnitude, SEBA was entrusted with the task of evaluating the answer scripts. SEBA had evaluated only those answer scripts which were forwarded to it by the Social Welfare Department. Since the petitioner’s answer script was forwarded by the Social Welfare Department, the same was evaluated by the SEBA. SEBA is a responsible public authority and had carried out the duty of evaluation of the answers scripts as per the request of the Social Welfare Department. SEBA should not be dragged into any unnecessary controversy. 14. Mr. J. Singh, learned Standing Counsel, Social Welfare Department submits that on due verification it was found that District Social Welfare Officer, Kamrup did not receive the application form of the petitioner. This anomaly was detected subsequently by the State Level Selection Committee. SEBA should not be dragged into any unnecessary controversy. 14. Mr. J. Singh, learned Standing Counsel, Social Welfare Department submits that on due verification it was found that District Social Welfare Officer, Kamrup did not receive the application form of the petitioner. This anomaly was detected subsequently by the State Level Selection Committee. Since the petitioner did not submit her application and other relevant documents before the District Social Welfare Officer, Kamrup, she was not entitled to a consideration of her case. Accordingly, impugned decision has been taken. 15. Submissions made by learned counsel for the parties have been considered. 16. From the pleadings and submissions as noticed above, it is evident that Social Welfare Department had issued an advertisement to fill up the post of Supervisor. An admit card was issued to the petitioner by the SEBA wherein her roll number was mentioned. Petitioner thereafter appeared in the written test and was successful. Following her success in the written test, petitioner was called to appear in the viva voce test where she appeared and was successful. 17. From the reject list prepared by the Director of Social Welfare, it is seen that the said list contained the names of those candidates who were selected on merit but whose consequential appointment were withheld for verification of age, caste and availability of their names in the district lists. In the said list, name of the petitioner is mentioned at Sl. No. 12 against which it was re-marked that name of the petitioner was not found in the original list submitted by the District Social Welfare Officer, Kamrup as well as in the reject list. It was further remarked that petitioner did not appear before the Documents Verification Committee and had not submitted documents in support of her claim. Affidavit of SEBA clearly discloses that initially a soft copy which was prepared by the Director of Social Welfare containing the names of the eligible candidates was handed over to the SEBA for conducting the written test on behalf of the Social Welfare Department. A meeting was held between the Social Welfare Department and the authorities of SEBA on 06.10.2010 regarding issuance of admit cards to some more candidates whose names were not included in the soft copy. Social Welfare Department had decided to allow some more candidates to appear in the written examination whose candidatures were not accepted earlier. A meeting was held between the Social Welfare Department and the authorities of SEBA on 06.10.2010 regarding issuance of admit cards to some more candidates whose names were not included in the soft copy. Social Welfare Department had decided to allow some more candidates to appear in the written examination whose candidatures were not accepted earlier. Following the intervention of the Commissioner and Secretary of the Social Welfare Department blank admit cards were required to be issued by the SEBA to the Officers-in-charge of the examination centres on the basis of eligibility certificates issued by the District Social Welfare Officers. It is under such circumstances that SEBA had to issue blank admit cards to the Centres-in-charge of examination centres to be issued to the candidates on the basis of eligibility certificates of the District Social Welfare Officers. Thereafter, the officers in-charge issued hand written admit cards to some candidates which included the petitioner who had appeared from the Kamrup Academy Higher Secondary School, Guwahati. Since SEBA received her answers script against the admit card and roll number issued to her by the officer-in-charge of the Centre who was authorized to issue hand written admit card, SEBA evaluated the answer script of the petitioner. As the petitioner was allowed to appear in the written examination on the basis of hand written admit card issued by the authority of Social Welfare Department, her name did not appear in the original list nor in the subsequent list of the District Social Welfare Officer, Kamrup. 18. SEBA is a public authority and in this particular case they had conducted the written examination as per requisition of the Social Welfare Department. There is no reason to disbelieve the stand taken by SEBA. On its part, Social Welfare Department has only taken the stand that petitioner did not submit her application before the District Social Welfare Officer, Kamrup and therefore she was not eligible to participate in the recruitment process. 19. A perusal of the advertisement would show that applications of the candidates alongwith attested xerox copies of certificates mentioned therein should reach the office of the concerned District Social Welfare Officer where the candidate belongs by 5:00 p.m. of 20th July, 2009 with the further stipulation that no application received after the specified date and time would be entertained. 19. A perusal of the advertisement would show that applications of the candidates alongwith attested xerox copies of certificates mentioned therein should reach the office of the concerned District Social Welfare Officer where the candidate belongs by 5:00 p.m. of 20th July, 2009 with the further stipulation that no application received after the specified date and time would be entertained. As per clause (6) of the advertisement, candidature of a candidate would be rejected if the application was found to be incomplete, for furnishing false/forged particulars, for canvassing directly or indirectly, if found engaging middleman or if the candidate suffers from unsatisfactory police verification report. 20. A careful analysis of the advertisement would show that the applications of the candidates were required to reach the office of the concerned District Social Welfare Officer by a particular date and time. The advertisement did not say that the applications had to be filed in that particular office. Moreover, from the language of Clause-(6), it is evident that non-submission of application in the office of the concerned District Social Welfare Officer was not a ground for rejection of candidature. 21. Social Welfare Department has not responded to the specific stand taken by the SEBA in its affidavit as extracted above. SEBA affidavit was filed on 19.11.2014 where as Director of Social Welfare filed his affidavit much later on 21.07.2015. Social Welfare Department has also not stated as to whether any departmental action has been taken against any of its officers. If the stand taken by the Social Welfare Department is correct then some action ought to have been taken against the erring officers including the centre in-charge from where the petitioner had appeared in her written examination. No doubt the system followed by the Social Welfare Department is not at all satisfactory but if the Department had followed such a practice, there cannot be any justifiable reason to penalize a successful candidate who had only participated in such a process. This fact has been noted by the Court in the prima-facie observation made while passing the interim order. In such circumstances, this Court is of the considered opinion that withholding of appointment of the petitioner despite her selection does not appear to be justified. Consequently, rejection of candidature of the petitioner by the Social Welfare Department is interfered with. The same is set aside and quashed. 22. In such circumstances, this Court is of the considered opinion that withholding of appointment of the petitioner despite her selection does not appear to be justified. Consequently, rejection of candidature of the petitioner by the Social Welfare Department is interfered with. The same is set aside and quashed. 22. Director of Social Welfare, Assam shall issue consequential appointment order to the petitioner against the post kept vacant as per interim order of this Court on the basis of her merit within a period of 3 (three) months from the date of receipt of a certified copy of this order. 23. Writ petition is accordingly allowed to the extent as indicated above. No Cost.