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2019 DIGILAW 784 (GAU)

Deepjyoti Das v. State of Assam

2019-06-25

KALYAN RAI SURANA

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JUDGMENT : Kalyan Rai Surana, J. Heard Mr. Biswadev Sinha, the learned advocate for the petitioner. Also heard Mr. G. Pegu, the learned Govt. Advocate appearing for State respondents No. 1 to 3 as well as Mr. R. Sarma, the learned advocate for the private respondent No. 4 herein. 2. The selection and appointment of respondent No.4 as Junior Assistant in the Office of the Labour Officer, Mangaldoi is the subject matter of challenge in this writ petition filed under Article 226 of the Constitution of India. 3. In view of the nature of grievance raised in this writ petition, this writ petition has been heard at the instance of the learned advocates appearing for all sides by issuing rule returnable forthwith. 4. The case projected in this writ petition is that by an advertisement dated 28.05.2014, application were invited for filling up various posts in various establishments under the Labour Commissioner, Assam. The petitioner applied for the post of Junior Assistant in the Office of the Labour Officer, Mangaldoi, which was reserved for SC category candidates. As per one of the several conditions provided in the advertisement, a candidate clearing the written test would be called for oral interview. The petitioner received his call letter for written examination and accordingly, he appeared in the written test conducted on 07.12.2014. The petitioner claims that he had gone to the Office of the Labour Officer, Mangaldoi to collect the information about the result of the written test on 24.12.2014 and he was surprised to find that the oral interview process of the private respondent No.1, who was the nephew of the Assistant Labour Commissioner, Tezpur going on. When petitioner made repeated demand, he was issued a duplicate call letter bearing the date of 18.12.2014. The respondent No.4 was selected and thus, challenged in this writ petition. 5. The learned advocate for the petitioner has submitted that the petitioner had pleaded in the writ petition that the respondent No.4 was the son of the sister of the Assistant Labour Commissioner, Tezpur and, as such, the selection and appointment of respondent No.4 is vitiated by nepotism and favouratism. It is submitted that despite all efforts, the petitioner was not provided with copy of result sheet or the marks obtained by respondent No.4 and, as such, the writ petition was filed without annexing those documents. It is submitted that despite all efforts, the petitioner was not provided with copy of result sheet or the marks obtained by respondent No.4 and, as such, the writ petition was filed without annexing those documents. It is further submitted that the comparative statement of marks annexed to the affidavit- inopposition ('AO' for short) had disclosed that although the petitioner had shown better performance than the respondent No.4, by changing the rules of the game after the game was played, the State respondents had added up the marks secured in written examination to give an illegal advantage to the respondent No.5. Accordingly, it is submitted that the addition of marks of written test to the oral interview (viva voce) was only to oust the petitioner. In support of his contention, the learned advocate for the petitioner has relied on paragraph (vii) of the said employment advertisement. 6. The learned counsel for the petitioner had questioned how the respondent No.4, who was using surname of 'Deka' could belong to a Schedule Caste "Koiborta" community i.e. fisherman community. Similarly, the learned counsel for the petitioner has referred to the photo of the respondent No.4 as affixed in the caste certificate issued on 16.08.1988 and by comparing it to the photograph of the respondent No.4, as annexed to the call letter issued on 21.11.2014, it is submitted that there was remarkable dissimilarity in the said two photographs and accordingly, the learned advocate for the petitioner had attempted to question the identity of the respondent No.4. 7. The learned Govt. Advocate has produced the selection records and he has made his submissions in support of the selection process. It is specifically submitted that the result of the written test has not been questioned by the petitioner and, as such, the records do not contain the answer sheet of the written test. It is submitted that there were only two participants in the selection process for the post of Junior Assistant in the Office of the Labour Officer, Mangaldoi, which was reserved for SC category candidates. It is submitted that there were only two participants in the selection process for the post of Junior Assistant in the Office of the Labour Officer, Mangaldoi, which was reserved for SC category candidates. It is submitted that the then respondent No.2 had stated in his AO that the petitioner had visited the office of respondent No.3 on 18.12.2014 and he was informed that the call letters were being issued and he was also informed that he was selected in written test and also informed about the viva voce scheduled on 24.12.2014 and that if he did not receive his call letter in few days, he could collect duplicate call letter. Accordingly, on 24.12.2014, the petitioner came prepared with all his original testimonials and appeared in the viva voce test after collecting duplicate call letter. The learned Govt. Advocate has submitted that without his original documents/ testimonials being shown at the time of viva voce test, the candidature of the petitioner would have been rejected, as such, he was aware of the interview and he had came prepared and, as such, the plea of the petitioner was not tenable. 8. The learned advocate for the respondent No.4 has submitted that in his AO filed on 03.06.2015, the respondent No.4 had categorically denied that he was the nephew of the respondent No., but till date the petitioner had not produced any admissible proof that the petitioner was the nephew of respondent No.2. Moreover, it is submitted that the petitioner has not impleaded the alleged uncle of the respondent No.4 in this writ petition in his personal capacity, but the office of the Assistant Labour Commissioner, Assam, Zone-III, Tezpur cum Chairman, Selection Committee for Mangaldoi/ Narayanpur/ Behali/ Tezpur, Sonitpur was arrayed as respondent No.2 in official capacity. Accordingly, it is submitted that the allegations of favouratism and nepotism is not tenable on facts and in law. 9. Having examined the materials available on record, the records had been returned back to the learned Govt. Advocate on the date of hearing itself. 10. The plea that the respondent No.4 was the nephew of respondent No. 2 has not been substantiated by the petitioner. Firstly, the name of the alleged uncle is not disclosed. Secondly, the petitioner has not impleaded the alleged uncle of the respondent No.4 in this writ petition in his personal capacity. Advocate on the date of hearing itself. 10. The plea that the respondent No.4 was the nephew of respondent No. 2 has not been substantiated by the petitioner. Firstly, the name of the alleged uncle is not disclosed. Secondly, the petitioner has not impleaded the alleged uncle of the respondent No.4 in this writ petition in his personal capacity. Instead, the Assistant Labour Commissioner, Assam, Zone-III, Tezpur cum Chairman, Selection Committee for Mangaldoi/ Narayanpur/ Behali/ Tezpur, Sonitpur is the respondent No.2. The respondent No.4 had categorically denied in his AO that he was the nephew of the respondent No.2. However, in the affidavit- in - reply, the petitioner had not denied the stand of the respondent No.4, nor he has produced any cogent material to show that the petitioner was indeed the nephew of respondent No.2. Hence, the allegations of favouratism and nepotism are not found to be tenable on facts and in law. 11. Another plea urged by the learned advocate for the petitioner is that the respondent No.4, who was using surname of 'Deka' did not belong to a Schedule Caste "Koiborta" community. It is seen that on the said point, the writ petition contains no pleading. The said plea has been raised in affidavit- in- reply by the petitioner without challenging the caste certificate of the respondent No.4 in this writ proceeding. Thus, in the absence of any challenge, this Court would not embark on deciding the veracity and/or tenability of the caste certificate of the respondent No.4. Hence, the said plea deserves to and is hereby rejected. 12. Similarly, in respect of the plea that the photograph of respondent No.4 that was annexed in the caste certificate was different from the photograph affixed in the call letter, it is seen that the said plea has not been taken in the writ petition, but only raised in course of oral argument without making any attempt to challenging the identity of the respondent No.4 in this writ proceeding. It is seen that the respondent No.4 claims to be 43 years of age on 03.06.2015, when he had sworn his AO in this case, as such, on 16.08.1988, when caste certificate was issued, his estimated age might have been about 16 years. It is seen that the respondent No.4 claims to be 43 years of age on 03.06.2015, when he had sworn his AO in this case, as such, on 16.08.1988, when caste certificate was issued, his estimated age might have been about 16 years. In the said context, firstly, this Court is not an authority to visually compare two photographs of a person taken in different point of time after a gap of about 26 years and give an opinion thereon and secondly, no admissible scientific research data has been produced which rules out that facial appearance of a person does not change with passage of 26 years time. Hence, this plea has no basis to be sustained and, as such, the said plea is rejected. 13. On examining the records, it is seen that only two candidates, being the petitioner and the respondent No.4 had appeared in the written test. It is further seen that while awarding marks in viva voce test, the third member of the interview board had allotted 9.5 marks to the petitioner, but in the final tabulation sheet, the marks given by the third member is erroneously shown as 9.0. That apart, there appears to be no discrepancy in the entry of marks in the final tabulation sheet. The said mistake of non- reflecting of 0.5 marks is not fatal in this case because of the fact that in viva voce test, the petitioner had secured 45.0 marks, which translates to an average of 9.0 marks, whereas, the respondent No.4 had obtained only 37.0 marks, leading to average of 7.4 marks. In the final tabulation sheet, the marks allotted is as under:- Name Total marks obtained in HSLC Exam PC% of marks obtained in HSLC Exam 10% of marks of the PC% of HSLC Exam Bonus marks @ 2.5 for HS passed candidate Bonus marks @ 2.5 for B.A. pass candidate Marks obtained in personalit y test Marks obtained in Type/ Computer test Marks obtained in written test Grand total R/4 337 45% 4.5 2.5 2.5 7.4 8.0 66.0 90.9 Pet. 217 36% 3.6 2.5 NIL 9.0 9.5 15.5 40.1 14. The plea taken by the learned advocate for the petitioner is that rules of the game were altered/ changed after the game was played. 217 36% 3.6 2.5 NIL 9.0 9.5 15.5 40.1 14. The plea taken by the learned advocate for the petitioner is that rules of the game were altered/ changed after the game was played. It was submitted that the State respondents had added up the marks secured in written examination to give an illegal advantage to the respondent No.4. It is also submitted that the addition of marks of written test to the oral interview (viva voce) was only to oust the petitioner. In this regard, the question which crops up for decision is whether the procedure of adding the marks obtained by candidates in written test to the marks obtained in viva voce so absurd that no person would have done so, which in other words is the principle which is commonly known in legal parlance as whether the procedure adopted by the State respondents is hit by the "Wednesbury's principle of reasonableness". In this regard, this Court is of the opinion that the Court does not sit as a Court of appeal, but merely reviews the manner in which the decision has been made. The Court does not have the expertise to correct the administrative decision. If a review of the administrative decision is permitted it would be substituting its own decision, without the necessary expertise which itself may be fallible. The Government must have the freedom of the manner of declaring result, if such procedure is not so absurd that no reasonable man shall do so. It is an acceptable system of awarding marks where the marks obtained in viva voce test is added to the written test. Merely, because it has been mentioned in the advertisement that first four persons clearing the written test would be called in oral test, would not mean that in the final tabulated statement of marks, the marks obtained in written test cannot be declared. The decision to declare result by adding marks obtained by the candidates in written test and viva voce test does not fail in the test by the application of Wednesbury's principle of reasonableness, but procedure is not found to be arbitrary, or affected by bias or actuated by mala fides. In the considered opinion of this Court, by adopting the procedure of adding the marks obtained by candidates in written test, type/ Computer test, no illegality has been committed by the State Respondents. In the considered opinion of this Court, by adopting the procedure of adding the marks obtained by candidates in written test, type/ Computer test, no illegality has been committed by the State Respondents. Moreover, it appears that even if only the marks obtained in (i) written test, (ii) type/ computer test, and (iii) viva vice test are only considered with 0.5 marks awarded by third member of interview board in respect of the petitioner is also considered, still the respondent No.4 would be way ahead of the petitioner. Hence, this plea of the petitioner is not found sustainable. 15. Therefore, on all the points urged by the learned advocate for the petitioner, this writ petition fails and the same is dismissed. 16. The rule stands discharged in terms of this order. No cost.