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2015 DIGILAW 623 (GAU)

JINAT ARA BEGUM v. GAUHATI MUNICIPAL CORPORATION

2015-05-25

UJJAL BHUYAN

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JUDGMENT Heard Mr. D. P. Chaliha, learned Sr. Counsel for the petitioner and Mr. S. Bora, learned Standing Counsel, Guwahati Municipal Corporation (GMC). Also heard Mr. P. P. Das, learned counsel for respondent No. 4. By filing this petition under article 226 of the Constitution of India petitioner seeks quashing of selection and appointment of respondent No. 4 as contractual teacher in Manik Chandra Baruah Higher Secondary School, Uzanbazar, Guwahati (School). Case of the petitioner is that she is an MSc. degree holder and has also obtained BEd. degree. An advertisement was issued by the Commissioner, GMC in the month of May, 2013 for filing up two vacancies in the post of BSc. teacher in the school on contractual basis. Be it stated that the school is under the GMC. Qualification prescribed was BSc. with Physics, Chemistry and Mathematics for one vacancy and Bio Chemistry for the other vacancy. Petitioner responded to the above advertisement for the vacancy of Science teacher in Bio-Chemistry and submitted her application. She received call letter on the basis of which she appeared before the Interview Board on 25.10.2013. Respondent No. 4 had also applied for the post of Science teacher in Bio-Chemistry. According to the petitioner, she performed well in the interview but was not selected. Respondent No. 4 was selected in her place and subsequently appointed. On the basis of information furnished to the petitioner under the Right to Information Act, 2005, petitioner could gather that she had secured a total of 63 marks whereas respondent No. 4 had secured 61 marks. Yet respondent No. 4 was selected and appointed overlooking her better merit. This led to filing of the writ petition. Respondent Nos. 1, 2 & 3 have filed a common affidavit. Stand taken in the affidavit is that one of the members of the Interview Board which conducted the interview for selection of candidates for the two posts was Md. T. Rahman who is the brother of the petitioner. He participated in the interview of the petitioner. The fact that Md. T. Rahman is the brother of the petitioner was not informed to the other members of the Interview Board. Upon discovery of the aforesaid fact, it was decided to appoint the second position holder i.e. respondent No. 4. In her reply affidavit petitioner has admitted the fact that Md. The fact that Md. T. Rahman is the brother of the petitioner was not informed to the other members of the Interview Board. Upon discovery of the aforesaid fact, it was decided to appoint the second position holder i.e. respondent No. 4. In her reply affidavit petitioner has admitted the fact that Md. T. Rahman was a panel member of the Interview Board which had interviewed her and he is her brother. But it is asserted that he had not shown any undue favour to the petitioner. Respondent No. 4 in her affidavit has stated that participation of the brother of the petitioner in the interview of the petitioner had vitiated the selection proceeding in so far petitioner was concerned and therefore respondent No. 4 was rightly selected. Contractual appointment of respondent No. 4 is for a period of 1 year w.e.f. 01.08.2014. Therefore, no interference is called for in the selection and appointment of respondent No. 4. Mr. Chaliha, learned Sr. Counsel for the petitioner submits that petitioner had secured the highest marks in the interview and therefore her merit position could not have been ignored. If participation of her brother in the interview process had vitiated the selection, the entire selection process should be set aside and the respondents be directed to hold fresh selection. Mr. Bora, learned Standing Counsel has produced the record but fairly submits that there are clear overwritings in the marks awarded to the petitioner under the head “experience” where initially 4 marks were given but subsequently another 4 marks were added to make it 8. On the other hand, though initially 8 marks were given to respondent No. 4 there is over writing and the marks awarded have been reduced from 8 to 7. In the process, for the total 30 marks for “experience”, “for knowledge of subject” and “for personality”, petitioner was shown to have secured 15 marks as against 14 marks by respondent No. 4 which affected the ultimate marks secured by the petitioner and the respondent No. 4 as the difference between the two was only two marks i.e. 63 and 61. He submits that not only such over-writings, Md. T. Rahman the brother of the petitioner had participated in the interview of the petitioner. Such participation was clearly illegal and had vitiated the candidature of the petitioner. He submits that not only such over-writings, Md. T. Rahman the brother of the petitioner had participated in the interview of the petitioner. Such participation was clearly illegal and had vitiated the candidature of the petitioner. Referring to the record, he admits that at least two of the Interview Board members did not put their signature in the statement of marks of interview. There is also no noting in the record to indicate that GMC had considered the matter regarding presence of Md. T. Rahman in the selection process leading to rejection of the candidature of the petitioner and recommendation of respondent No. 4 in her place. Mr. Das, learned counsel for respondent No. 4 has referred to the appointment order dated 17.07.2014 issued in favour of respondent No. 4 by the Commissioner, GMC and submits that respondent No. 4 has been appointed on contractual basis following decision of the Managing Committee in its meeting held on 26.04.2014. The contractual appointment is for a period of 1 year w.e.f. 01.08.2014. After hearing learned counsel for the parties and on careful scrutiny of the record of the case as produced by Mr. Bora, this Court is unable to trace out the minutes of the meeting of the Managing Committee stated to have been held on 27.06.2014. On a query by the Court, learned Standing Counsel has fairly admitted that he also could not locate the minutes of the meeting held on 26.07.2014 in the record. Be that as it may, from the discussions made above, it is clear that the appointment of respondent No. 4 is on contract basis for a period of 1 year which is expiring on 31.07.2015. It is also clear that petitioner’s candidature stood vitiated because of presence of her brother in the Interview Board and his participation in her interview, which was clearly in violation of the principles of natural justice. It is also clear that petitioner’s candidature stood vitiated because of presence of her brother in the Interview Board and his participation in her interview, which was clearly in violation of the principles of natural justice. Though the record has not been maintained properly by the GMC and the selection was also not conducted properly, atleast the record of selection, in view of the contractual nature of engagement of respondent No. 4 for a period of 1 year and the obvious anomaly in the candidature of the petitioner due to participation of her brother in her interview, this Court is not inclined to interfere with the contractual appointment of the respondent No. 4 for a period of 1 year vide the order dated 17.07.2014. As is evident, respondent No. 4 was the next best candidate after the petitioner on merit and therefore her recommendation appears to be justified. However, if the GMC authorities are inclined to hold fresh selection for further contractual appointment against the post of Science teacher with Bio Chemistry, it will be open for them to hold selection afresh but at the same time it should be ensured that the selection is conducted in accordance with law. It must be ensured that no relative of any candidate participate in the selection process so as to ensure complete fairness in the selection process. Subject to the observations made above, this Court finds no merit in the writ petition. Writ petition is accordingly dismissed. Record produced by Mr. Bora is returned back.