Research › Search › Judgment

Gauhati High Court · body

2016 DIGILAW 877 (GAU)

SAMIUL ISLAM v. STATE OF ASSAM

2016-09-21

MICHAEL ZOTHANKHUMA

body2016
JUDGMENT : Micheal Zothankhuma, J. Heard Mr. I. Rafique, counsel for the petitioner. Also heard Mr. J. Singh, counsel for the Social Welfare Department. 2. As per the office note dated 15.11.2014, AD Card has been returned back from the respondent No. 4 and as per the Court's order dated 15.06.2016, services are deemed to be completed against the respondent Nos. 5 to 8. However, despite the above, no one appears for the respondent Nos. 4 to 8. 3. The petitioner's case in brief is that the petitioner took part in the selection process in pursuant to the advertisement made in the year 2005, for filling up of 12 vacant posts of Statistical Assistant, under the Social Welfare Department in Dhubri District. The petitioner took part in the selection process held in the year 2006, and, thereafter, a merit list was issued by the State respondents, wherein the petitioner, whose Roll Number 1719, was placed at Serial No. 6 in the merit list. 4. The petitioner's counsel submits that initially 6 persons were appointed in the year 2006 out of 12 vacant posts of Statistical Assistant. As the remaining 6 posts were not filled up by the State respondents, the respondent Nos. 5 to 8 filed WP(C) 4320/2006 and WP(C) 3833/2008, praying for a direction that the remaining 6 posts should be filled up on the basis of the merit list. 5. The above two writ petitions were disposed of by a common order dated 08.06.2011, wherein this Court directed the Commissioner & Secretary to the Government of Assam, Social Welfare Department, to take on record the grievance of the respondents Nos. 4 to 8, regarding the inaction in giving appointment orders, and, thereafter, to pass appropriate order in consultation with the relevant records. 6. The petitioner's counsel submits that the petitioner was placed at Serial No. 6 in the merit list and the respondent Nos. 4 to 8 were placed at Serial Nos. 7, 8, 10, 11 and 12 in the merit list. He also submits that in view of the direction passed by this Court in WP(C) 4320/2006 and WP(C) 3833/2008, to the effect that appropriate orders should be passed in consultation with the relevant records, the State respondents were bound to give the appointment orders on the basis of the position secured by the candidates in the merit list. 7. Mr. He also submits that in view of the direction passed by this Court in WP(C) 4320/2006 and WP(C) 3833/2008, to the effect that appropriate orders should be passed in consultation with the relevant records, the State respondents were bound to give the appointment orders on the basis of the position secured by the candidates in the merit list. 7. Mr. J. Singh, counsel for the Social Welfare Department, submits that the petitioner has no right to claim appointment on the basis of the merit list, in view of the fact that he did not file any case in the High Court with regard to his grievance, while the respondent Nos. 4 to 8 had filed WP(C) 4320/2006 and WP(C) 3833/2008, regarding their grievance. He also submits that the writ petitioner had filed the instant writ petition only in the year 2013, after the private respondents were appointed on 29.06.2013. 8. The counsel for the State respondents also submits that the 6 vacancies filled up in the year 2006 were given to the candidates, who secured the position 1, 2, 3, 4, 5 and 9 in the merit list. The person at Serial No. 9 in the merit list was given appointment against the quota reserved for a person with disability. 9. Mr. J. Singh also submits that the respondent Nos. 4 to 8 were appointed in terms of the order dated 08.06.2011 passed by this Court in WP(C) 4320/2006 and WP(C) 3833/2008. The petitioner's case was, however, not considered as the petitioner had not made any application for appointment on the basis of the merit list. 10. I have heard the learned counsels for the parties. 11. The fact that the respondent Nos. 4 to 8 were appointed on the basis of the merit list, prepared in pursuant to the selection process held in 2006 is not in dispute. It is also not disputed that the petitioner had secured the 6th position in the merit list, while the private respondents herein have secured 7, 8, 10, 11 and 12 positions in the merit list. 12. It is also not disputed that the petitioner had secured the 6th position in the merit list, while the private respondents herein have secured 7, 8, 10, 11 and 12 positions in the merit list. 12. This Court, in its order dated 08.06.2011 passed in WP(C) 4320/2006 and WP(C) 3833/2008, had given a direction to the Commissioner & Secretary to the Government of Assam in the Social Welfare Department, to take on record the grievance of the petitioners of the above cases and pass appropriate order in consultation with the relevant records. 13. The direction passed by this Court makes it abundantly clear that the relevant records would have to be considered for giving appointment to the remaining 6 vacant posts of Statistical Assistant, which in the present case is relatable only to the merit list. It is not disputed by the parties that the respondent Nos. 4 to 8 have been appointed as Statistical Assistant on the basis of the merit list, made in pursuant to the advertisement published in the year 2005 and the selection process held in the year 2006. 14. The meaning and intention of the order dated 08.06.2011, passed in WP(C) 4320/2006 and WP(C) 3833/2008, makes it abundantly clear that the merit list would have to be taken into consideration for appointment to the remaining 6 vacant posts of Statistical Assistant. As the petitioner was in a higher position than any of the private respondents herein, the State respondents could not have ignored the merit position of the petitioner. 15. In view of the above reasons, the appointment of the private respondents, while overlooking the petitioner's merit position to the post of Statistical Assistant, is not in conformity with the direction passed by this Court on 08.06.2011, in WP(C) 4320/2006 and WP(C) 3833/2008. The merit position secured by the petitioner, having been overlooked, the appointment orders of the respondent Nos. 4 to 8 are arbitrary. If 6 persons were appointed to the post of Statistical Assistant in the year 2006 and the 5 private respondents were appointed in the year 2013, on the basis of the order dated 08.06.2011 of this Court in WP(C) 4320/2006 and WP(C) 3833/2008, then it shows that only 11 out of the 12 vacant posts of Statistical Assistant have been filled up from the merit list. One post of Statistical Assistant is thus vacant and the same should be filled up on the basis of the merit list, which should be in consonance with the direction passed by this Court in WP(C) 4320/2006 and WP(C) 3833/2008. The respondents are thus directed to consider the petitioner's appointment to the remaining vacant post of Statistical Assistant, in consultation with the merit list prepared by the respondents, in pursuant to the selection process held in the year 2006. In the event of the petitioner's appointment as Statistical Assistant, the same should be w.e.f. the date of appointment of the private respondents, with consequential benefits pertaining to seniority on the principle of Next Below rule. The petitioner would be entitled to notional pay w.e.f. the date of his appointment and receive the actual pay from the day the petitioner joins his post. In the event that all 12 posts are filled up, the service of the last person in the merit list, who was given appointment, shall be terminated by the State respondents to make room for the petitioner. The entire exercise shall be carried out within a period of 2 months from today. 16. Writ petition is accordingly allowed.