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2018 DIGILAW 1410 (GAU)

Syed Khairul Hussain v. State of Assam

2018-09-21

NELSON SAILO

body2018
JUDGMENT : Nelson Sailo, J. Heard Mr. N.K. Kalita, the learned counsel for the petitioners and Mr. M.R. Adhikari, the learned Additional Senior Government Advocate for the respondent Nos. 1 to 4. Mr. A.K. Azad, the learned counsel appears for the respondent Nos.5 & 6. 2. Brief facts of the case may be noticed at the outset. The petitioner No.1 is a matriculate and orthopedically handicapped to the extent of 45%. The petitioner No.2 is a Higher Secondary School Leaving Certificate Examination pass and also orthopedically handicapped to the extent of 50%. The petitioner Nos. 3 & 4 are also orthopedically handicapped to the extent of 40% and 45% respectively and they both have passed their Higher Secondary School Leaving Certificate Examination. 3. The Director of Social Welfare Department (respondent No.4) issued an advertisement for filling up of 662 numbers of backlog vacancies in the Grade-III and Grade-IV posts lying vacant under various departments of Government of Assam which were reserved for physically disabled persons. The advertisement was published in the Assamese Daily Newspaper "Asomiya Khobor" dated 09.06.2005 (Annexure-3). It was notified that the candidates whose names were forwarded by the District Employment Exchange Officer to the Office of the respondent No.4 will be invited by the District Social Welfare Officer to appear for interview. 4. The names of the petitioners were forwarded by the concerned District Employment Exchange Officer to the Office of the respondent No.4 for Grade-IV post as was advertised and thereafter, all of them were invited by the District Social Welfare Officer for facing interview at different centers by issuing individual call letters. Be it is stated herein that the call letter that was issued to the petitioner No.1 wrongly indicated the post as Grade-III post instead of Grade-IV post. Nevertheless, all the petitioners participated in the interview whereafter, a select list was prepared by the District Social Welfare Officer and the list was forwarded to the respondent No.4 for preparing a common state-wise list. After preparation of the state-wise list, the petitioners found themselves amongst those who were selected by the State Level Selection Committee. The petitioner Nos. 1 and 2 were selected for Grade-IV post lying vacant under the Industries Department while the petitioner Nos.3 and 4 were selected against the existing vacancies in the post of Khalasi (Grade-IV) post under the Irrigation Department. 5. Despite being selected as the petitioner Nos. The petitioner Nos. 1 and 2 were selected for Grade-IV post lying vacant under the Industries Department while the petitioner Nos.3 and 4 were selected against the existing vacancies in the post of Khalasi (Grade-IV) post under the Irrigation Department. 5. Despite being selected as the petitioner Nos. 1 & 2 were not appointed, they lodged a complaint alongwith other selected persons before the Joint Mobile Court of the Chief Commissioner for Persons with Disabilities, Government of India and also before the Commissioner for Persons with Disabilities, Government of Assam. The Joint Mobile Court after hearing complaints vide order dated 03.11.2007 (Annexure-5) directed the Social Welfare Department and the Department of Industries and Commerce to sort out the issues regarding the number of backlog vacancies and further directed the Director of Industries and Commerce to issue appointment letters to the complainants if they were eligible by 03.01.2008. A compliance report was also directed to be submitted to the Commissioner for Persons with Disabilities, Government of Assam within a time frame of 10 (ten) days. 6. Thereafter, the respondent No.4 only on 23.11.2009 forwarded the select list containing the names of the petitioner Nos. 1 & 2 to the Commissioner and Secretary to the Government of Assam, Social Welfare Department for further action. The Deputy Secretary to the Government of Assam Social Welfare Department then on 12.02.2010 forwarded the list of selected candidates for the Grade-IV post in the Industries and Commerce Departments to the Deputy Secretary of the same Department for necessary action. In the order passed by the Joint Mobile Court on 03.11.2007, there were some discrepancies in the name of the father of the petitioner No.1 and in his qualification. Likewise, there was discrepancy in the date of birth of the petitioner No.2. The Additional Director (FP) in the Office of the Commissioner of Industries and Commerce on 19.05.2010 wrote to the Under Secretary to the Government of Assam, Industries and Commerce Department requesting him to obtain necessary clarification from the Social Welfare Department. 7. The petitioner Nos. 1 & 2 on coming to learn about the discrepancies submitted their application with supporting documents before the Commissioner and Secretary to the Government of Assam, Social Welfare Department on 08.07.2010, but, however, no steps was taken by the said authority for rectification of the discrepancies. 8. The petitioner Nos. 7. The petitioner Nos. 1 & 2 on coming to learn about the discrepancies submitted their application with supporting documents before the Commissioner and Secretary to the Government of Assam, Social Welfare Department on 08.07.2010, but, however, no steps was taken by the said authority for rectification of the discrepancies. 8. The petitioner Nos. 3 & 4 also submitted their representation before the Social Welfare Department for issuance of their appointment orders in the post of Grade-IV in the Irrigation Department. Thereafter, a list of selected candidates including their names was forwarded by the Joint Secretary to the Government of Assam, Social Welfare Department to the Chief Engineer, Irrigation Department on 22.02.2012. The respondent No.3 and the respondent No.4 were then appointed as Khalasi vide order dated 16.10.2012 (Annexure-13) in the Office of the Executive Engineer, Nalbari Division (Irrigation) and the Office of the Executive Engineer, Guwahati, West Division (Irrigation) respectively. They were asked to join their post within 15 days from the date of issuance of the appointment order. However, to their surprise, their appointment orders were cancelled by the Chief Engineer, Irrigation Department on the next date i.e. 17.10.2012. The petitioner Nos. 3 & 4 upon making a query were verbally informed that some complaints had been lodged before the Commissioner for Persons with Disabilities, Government of Assam and resultantly, the Commissioner vide order dated 17.10.2012 had directed that an inquiry be made to the complaint and that no appointments should be made until further orders. An observation was also made by the Commissioner on the appointment orders of the petitioner Nos.3 & 4 to the effect that they appeared to be fake since it was issued a year after the expiry of the select list. 9. In view such steps taken, similarly situated disabled candidates approached this Court by filing W.P(C) No.1424 of 2011 and W.P(C) No.3994 of 2011. The petitioners approached the respondent authorities for their appointment but the same was turned down on the ground that the aforesaid 2 (two) writ petitions were pending before this Court. 9. In view such steps taken, similarly situated disabled candidates approached this Court by filing W.P(C) No.1424 of 2011 and W.P(C) No.3994 of 2011. The petitioners approached the respondent authorities for their appointment but the same was turned down on the ground that the aforesaid 2 (two) writ petitions were pending before this Court. The writ petitions were consequently disposed of vide a common judgment and order dated 23.04.2015 with a direction to appoint the petitioners therein against the available vacancies relatable to the recruitment drive carried out in the year 2005-06 and by keeping in mind the mandate of all the Persons with Disabilities (Equal Opportunities, Protection of Right and Full Participation) Act, 1995. It was directed that the concerned administrative Department being the nodal department shall verify the position of the petitioners vis-a-vis the selection process and proceed with their appointment in terms of their position. Such exercise was directed to be completed within a period of 4 (four) months from the date of receipt of a certified copy of the order. 10. The petitioners upon coming to learn about the direction of this Court approached the respondent authorities for considering their case as well, but, however, they were informed that the directions was not general in nature and therefore, all the disabled candidates will not be considered against the available vacancies. They were also informed that their case was not similar. It is under such circumstance that the petitioners have filed the present writ petition. 11. Mr. N.K. Kalita, the learned counsel submits that the case of the petitioners are in fact similar to the petitioners in W.P(C) No.1424 of 2011 and W.P(C) No.3994 of 2011 as it was by the same recruitment process that 662 numbers of backlog vacancies in the Grade-III and Grade-IV posts under various Departments of the State Government was sought to be filled up. He submits that petitioners were duly selected in the screening process conducted by the Social Welfare Department and the minor discrepancies found in their particulars cannot be the ground to reject their selection. Opportunity should have been given to them to clarify the discrepancies. Such opportunity having not been given to them, the interference of this Court is therefore called for. 12. Mr. Opportunity should have been given to them to clarify the discrepancies. Such opportunity having not been given to them, the interference of this Court is therefore called for. 12. Mr. N.K. Kalita, the learned counsel for the petitioners, further submits that besides the 2 (two) writ petitions under reference, similar directions were passed in many other writ petitions filed by similarly situated disabled candidates. He submits that W.P(C) No.929 of 2011 was disposed of on 21.08.2017 and likewise 2 (two) writ petitions i.e. W.P(C) No.2001 of 2011 and W.P(C) No.2012 of 2011 were disposed of vide a common judgment and order on 03.05.2018. Therefore, a similar direction may be issued in the present writ petition as well. 13. Mr. M.R. Adhikari, the learned State counsel appearing for the respondent Nos. 1 to 4 by referring to the affidavit-in-opposition filed by the respondent No.4 on 29.05.2017 submits that the merit list compiled at the State level was valid only upto 31.07.2011. Further, there were discrepancies with regard to the forwarding of the names of the petitioners Nos. 1 & 2 to the Industry Department for their appointment. Likewise, the genuineness' of the appointment orders issued to the petitioner Nos.3 & 4 is also in doubt. Lastly, the petitioners having approached this Court belatedly i.e. after the disposal of the W.P(C) No.1424 of 2011 and W.P(C) No.3994 of 2011, the writ petition should be rejected. 14. Mr. A.K. Azad, the learned counsel for the respondent Nos. 5 & 6, adopts the argument of Mr. M.R. Adhikari and submits that the writ petition should be dismissed. 15. I have heard the learned counsel for the rival parties and I have also perused the materials available on record, including the decisions rendered by this Court in the earlier petitions on the same issue. 16. As may be noticed, the State Government in order to fill up a total number of 662 backlog vacancies in the Grade-III and Grade-IV posts undertook a recruitment drive in the year 2005-06 from amongst eligible candidates who are physically disabled. The petitioners participated in the recruitment process and they found place amongst those who were selected in the merit list prepared by the nodal department i.e. Social Welfare Department. The petitioners participated in the recruitment process and they found place amongst those who were selected in the merit list prepared by the nodal department i.e. Social Welfare Department. The petitioners have annexed the select list said to have been prepared at the State Level by the Social Welfare Department and the respondents have not disputed the fact that the petitioners were amongst the applicants who participated in the selection process. Certain discrepancies in their selection and appointment and also in their particulars have been pointed out by the respondents. If such discrepancies were found, it would be a duty of the respondent authorities concerned to find out whether such discrepancies will be detrimental or whether the same can be redressed keeping in mind the mandate of the provisions of the Persons with Disabilities Act, 1995. Furthermore, even if such process was undertaken, the respondent authorities will also be duty bound to afford the petitioners reasonable opportunity to clarify the discrepancies. However, as may be noticed, the same was not done. The validity of the select list prepared in the year 2005 and which was continued up to July 2011 has already been taken into consideration by this Court when W.P(C) No.1424 of 2011 and W.P(C) No.3994 of 2011 were taken up for disposal on 23.04.2015. Likewise, this Court vide Judgment and Order dated 21.08.2017 had also considered a similar if not identical issue that cropped up through W.P(C) No.929 of 2011 (Moromi Dutta & Another. Vs. State of Assam and Others.). Therefore, the same cannot be the ground for rejecting the case as projected by the respondents. As may be further noticed, this Court at the time of disposing of the 2 (two) writ petitions referred to herein above on 23.04.2015 has passed the following direction: "In this case what transpires is that a recruitment drive was carried out in the year 2005-06 to fill up 662 backlog vacancies in Grad-III and IV. These vacancies therefore obviously pertained to previous years i.e., prior to the year 2005-06. Even in this drive, 134 of the backlog vacancies could not be filled up. It appears that since the year 2005- 06 no review has been carried out by the State regarding identification of posts earmarked to be filled up by persons with disability or to update the list so prepared. Even in this drive, 134 of the backlog vacancies could not be filled up. It appears that since the year 2005- 06 no review has been carried out by the State regarding identification of posts earmarked to be filled up by persons with disability or to update the list so prepared. In such circumstances, when admittedly petitioners could not be appointed because of anomalies in the selection process particularly at the time of preparation of state level select list, Court is of the view that it would meet the ends of justice if a direction is issued to the respondents to appoint the petitioners in the available vacancies relatable to the recruitment drive carried out in the year 2005-06. Naturally, these vacancies are available in the different departments, the list of which is available with the Social Welfare Department. Ordered accordingly. Keeping in view the mandate of the Persons with Disabilities Act, all the concerned administrative departments shall cooperate with the Social Welfare Department in ensuring that petitioners are suitably accommodated against the identified posts in the respective departments. The Social Welfare Department being the nodal department shall verify the position of the petitioners vis-a-vis the selection process and proceed with their appointment in terms of their position. Let the above exercise be carried out within a period of 4 (four) months from the date of receipt of a certified copy of this order." 17. Even after the disposal of the 2 (two) writ petitions in the above manner, similar directions were passed in W.P(C) No.2001 of 2011 and W.P(C) No.2012 of 2011 through a common Judgment & Order dated 03.05.2018 and in W.P(C) No.4826 of 2018 vide Order dated 25.07.2018 as well. Therefore, in the aforesaid backdrop and keeping in mind the mandate of the provisions of the Persons with Disabilities (Equal Opportunities, Protection of Right & Full Participation) Act, 1995, I am of the considered opinion that the case of the petitioners deserves similar consideration like the petitioners in the earlier writ petitions as referred to above. 18. In that view of the matter, this writ petition is disposed of with a direction to the respondent Nos.2 and 4 to consider the case of the petitioners as was directed vide order dated 23.04.2015 passed in WP(C) No.1424 of 2011 and WP(C) No.3994 of 2011, the operative portion of which is abstracted above. 18. In that view of the matter, this writ petition is disposed of with a direction to the respondent Nos.2 and 4 to consider the case of the petitioners as was directed vide order dated 23.04.2015 passed in WP(C) No.1424 of 2011 and WP(C) No.3994 of 2011, the operative portion of which is abstracted above. Such exercise shall be carried out as expeditiously as possible and completed within a period of 4 (four) months from the date of receipt of a certified copy of this order. 19. Under the given facts and circumstances, there shall be no order as to cost.