Research › Search › Judgment

Gauhati High Court · body

2018 DIGILAW 697 (GAU)

Manowar Hussain v. State of Assam

2018-04-24

HRISHIKESH ROY

body2018
JUDGMENT AND ORDER : 1. Heard Mr. B. Chetri, the learned Counsel appearing for the petitioners. The respondent Nos. 14 are represented by Mr. S.K. Medhi, the learned Addl. Advocate General, Assam. The private respondent Nos.5 20 who were arrayed subsequently by virtue of the order passed on 17.12.2011 in the Misc. Case No. 2680/2011, are however unrepresented. 2. The matter pertains to recruitment of Assam Forest Protection Force Constable (hereinafter referred to as the "AFPF Constable") in the Social Forestry Department of Assam Government. The three petitioners offered their candidates and being unsuccessful, they challenge the selection process and the select list notified on 8.12.2011 (Annexure-F). All three candidates belong to the General Category and they contend that selection of unmerited candidates was facilitated by including non-matriculates in the select list and also those who have failed to qualify in the Physical Efficiency Test (PET) segment of the recruitment process. The granting of higher credit in the viva-voce segment to ensure selection, is also argued by the petitioners. 3.1 The learned Counsel Mr. B. Chetri pinpointing the grievances firstly submits that the candidate Deben Kutum who is arrayed as respondent No. 5 did not qualify in the PET and yet his Roll Number was included in the final select list. 3.2 The candidates Counsel next contend that although minimum educational qualification was prescribed as Matriculation or equivalent, some non-matriculates have also been selected without justification. 3.3 To project the defective selection Mr. Chetri submits that the respondent No. 20 Jainur Ali is a General Category candidate but is shown to be selected in the Scheduled Caste category and accordingly the selection is projected to be vitiated. 3.4 In so far as the respondent Nos. 10 19 are concerned, the petitioners contend that selection of these candidates were facilitated by granting them higher marks in the viva-voce segment. 4.1 On the other hand, the learned Addl. Advocate General Mr. S.K. Medhi submits that the recruitment was done in a transparent fashion and the only criterion for selection was the merit of the candidate and no extraneous factors played its part. 4.2 The State Counsel refers to the list of selected candidates appended to the counter affidavit to project that each of the selected candidates had aggregate score higher than the petitioners and accordingly the bona fide of the challenge of the unsuccessful candidates, is questioned by the Govt. Advocate. 4.2 The State Counsel refers to the list of selected candidates appended to the counter affidavit to project that each of the selected candidates had aggregate score higher than the petitioners and accordingly the bona fide of the challenge of the unsuccessful candidates, is questioned by the Govt. Advocate. 4.3 In so far as the respondent No. 5 Deben Kutum is concerned, Mr. Medhi points out that inadvertently the wrong Roll Number (27016) was shown in the successful list published in the Assam Tribune on 12.2.2011 whereas the correct Roll Number of the candidate Deben Kutum is 27106. When the mistake was noticed the correction was done through a corrigendum dated 15.2.2011 and accordingly the selection of the respondent No.5 is projected to be justified. The disclaimer issued on inadvertent error in the notification is also mentioned by the Counsel to say that there could be instances of bona-fide error in the large scale recruitment exercise, for 702 vacancies of AFPF Constables. 5. Before proceeding any further, it would be appropriate for the Court to take note of the background and performance of the three petitioners and their aggregate score in the recruitment test. The relevant details for the unsuccessful petitioners are extracted herein below : Sl. No. Roll No. Name (General Category) PE Test Viva-voce Total 1. 21194 Manowar Hussain (Petitioner No.1) 27.5 28.0 55.5 2. 19306 Ejaj Ahmed (Petitioner No. 2) 26.0 10.0 36.0 3. 20167 Kartik Deka (Petitioner No.3) 28.5 25.0 53.5 6. As can be seen from the above chart, all three candidates were competing for the General Category posts of AFPF Constable and the cut off score for the last in the open category vacancies was 69 marks. Therefore, it is obvious that by virtue of their inferior performance in the recruitment test, the three petitioners failed to qualify in the recruitment test. 7. In so far as the inclusion of names of few under-matric candidates in the select list, the eligibility criterion for the in-service casual workers of the Forest Department was not matriculation but Class-VIII pass, as was mentioned in the advertisement and therefore, selection of non-matriculate departmental staff was also envisaged. For instance, one Siddik Ali with Roll No. 16711 had qualified with an aggregate score of 75.5 marks but he was Class-VIII pass only. For instance, one Siddik Ali with Roll No. 16711 had qualified with an aggregate score of 75.5 marks but he was Class-VIII pass only. But this candidate was serving in the Guwahati Wild Life Division, as can be seen from the address of the candidate, in the annexed select list. 8. The typographical error in not showing the Roll Number of the candidate Deben Kutum (respondent No.5) in the list of successful candidates on 21.6.2010 does not suggest any wrong doing. This was also the matter of consideration of this Court in the WP (C) No. 2774/2011 (Jibon Choudhury vs. State of Assam & Others). In the earlier proceeding, the corrigendum published subsequently for the qualified candidate (Deben Kutum) was scrutinized by the Court and the inadvertent exclusion was determined to be a typographical error. The writ petition filed by Jibon Choudhury against the selection of Deben Kutum was thus dismissed on 24.10.2011. In such circumstances, the present challenge on the same cause vis-à-vis candidate Deben Kutum should not in my view be entertained now on the same ground. 9. The select list annexed with the counter affidavit filed by the respondent No.2 shows the respective marks scored by the successful candidate both in the Physical Efficiency Test and in the Viva-Voce Test and their aggregate score is also shown in the select list. The list includes the names of not only General Category candidate but also those from the OBC, ST (P), ST & SC categories. As earlier noted, the cut off marks for the last candidate in the General Category was 69 whereas the petitioners had much lower aggregate score at 55.5, 36 and 53.5 respectively. Therefore, the failure of the petitioners is clearly attributable to their inferior performance in the recruitment test. 10. The next issue is to be considered is whether the non-selection of the petitioners is on account of the deliberate awarding of lesser marks in the viva-voce segment. In this context, the three petitioners in the General Category had comparatively poor score in the Physical Efficiency Test whereas the candidates were subjected to the elimination race, the sprint test, the high jump, the long jump, etc.. In this context, the three petitioners in the General Category had comparatively poor score in the Physical Efficiency Test whereas the candidates were subjected to the elimination race, the sprint test, the high jump, the long jump, etc.. On the other hand, the marks secured by the respondents in the Physical Efficiency Test even on a random scrutiny of the annexed select list indicate that most candidates who succeeded, had better marks in the Physical Efficiency Test. The Court cannot also overlook the aspect that the private respondents who are arrayed in the proceedings, belong to the ST, SC & OBC category and not all of them belong to the General Category within which, the petitioners are competing. The aggregate score of each of the selected candidates in their respective category, was the basis for their selection and no extraneous factor is brought to light by the petitioners. Hence it will not be proper for this Court to interfere with the selection which appears to have been made through a legitimate and objective process. In this context, the Court will be well served to remember the ratio in Sadananda Haloi vs. Momtaz Ali Sheikh reported in (2008) 4 SCC 619 where the Supreme Court had cautioned the Writ Court from making roving inquiry on the factual aspects of large scale selection in cases where the challengers fail to disclose the primary basis of their challenge. 11. But one aspect of the petitioners specific case in my view will justify some scrutiny. The candidate Jainur Ali (respondent No. 20) in the Physical Efficiency Test secured 29.5 but this was higher than all the three petitioners. With addition of 30 marks for the Viva-voce segment the aggregate score of this candidate becomes 59.5 which is again higher than the aggregate score of the three petitioners. Therefore the better performance of respondent No.20 vis-à-vis the petitioners is quite apparent. But most surprisingly, the candidate Jainur Ali is shown to be a SC Category candidate. This could also be a typographical error as was in the case of Deben Kutum but the materials are insufficient to arrive at a definite conclusion on his candidature. In such circumstances it will not be correct for this Court to say straight way 8that Jainur Ali did not merit selection or that the entire selection process is vitiated. This could also be a typographical error as was in the case of Deben Kutum but the materials are insufficient to arrive at a definite conclusion on his candidature. In such circumstances it will not be correct for this Court to say straight way 8that Jainur Ali did not merit selection or that the entire selection process is vitiated. However, it is clear enough that with the aggregate score of 59.5 respondent Jainur Ali is well below the cut off marks of 69 for the General Category and therefore, the SC categorization of Jainur Ali is required to be verified. If the respondent No.20 belongs to the General Category, necessary verification exercise and consequential action will have to be under-taken by the State Authorities and this must be done by the respondents. However, if any interference with the selection of Jainur Ali is to be made, the concerned appointee must be afforded due opportunity before he is visited with any penal action. It is ordered accordingly. 12. With the above order, the case stands disposed of without any order on cost.