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2019 DIGILAW 825 (GAU)

Md. Atikur Rahman v. State of Assam

2019-07-15

KALYAN RAI SURANA

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JUDGMENT (CAV) KALYAN RAI SURANA, J. Heard Mr. V.K. Barooah, learned counsel for the petitioner. Also heard Mr. N. Upadhayay, learned standing counsel for the Irrigation Department. 2. By this writ petition filed under Article 226 of the Constitution of India, the petitioner is seeking appointment in the post of Section Assistant in the establishment of the Superintendent Engineer, Irrigation Department, Guwahati Project Circle. 3. The learned counsel for the petitioner has submitted that vide advertisement published in newspapers on 28.08.2010, applications were invited for recruitment in respect of vacancy of various Grade-III posts including the Section Assistant (70 posts) under the District Level Offices in Irrigation Department. It is projected that the petitioner had applied for the post of Section Assistant. The said advertisement envisaged a written test of 100 marks for the subjects of English (35 marks), Mathematics (35 marks) and General Knowledge (30 marks). It was also provided that successful candidates would be called for viva voce test carrying 30 marks. It is submitted that the petitioner was allotted roll no. 13258. The result of written test was declared on 07.06.2011, wherein the petitioner was short listed as successful candidate and he was called for oral interview scheduled on 29.06.2011. As per the final select list published in the newspaper on 08.10.2011, the Chief Engineer, Irrigation Department (respondent No. 3) had announced selection of 42 candidates for filling up 42 vacant posts of Section Assistant including 9 candidates for the Guwahati Circle. It is submitted that as per RTI information received, the petitioner had obtained 79 marks in the written test and 16.50 marks in the oral interview, as such, he had secured total marks of 95.50. The learned counsel for the petitioner has submitted that the petitioner had given a RTI application for being furnished with copy of answer sheets of all 42 selected candidates, but by way of RTI reply dated 15.11.2011, he was informed that the answer sheets of all 42 selected candidates would be provided subject to taking their consent and that he would have to bear a cost of Rs. 21,000/- and that his own answer sheet would be provided on receipt of Rs. 500/- by way of bank draft. 21,000/- and that his own answer sheet would be provided on receipt of Rs. 500/- by way of bank draft. Accordingly, it is submitted that owing to the prohibitive cost for getting the requisite information, the petitioner has made a prayer in this writ petition for a direction to the respondents to disclose the marks obtained by the successful candidates in Guwahati Circle. It is projected that the Irrigation Department had, inter-alia, advertised 70 No. posts for the Section Assistant but they had declared the results in respect of 42 candidates/posts only, as such, 28 vacant posts were still to be filled up. It is, therefore, submitted that the respondents could easily appoint the petitioner in any one of the 28 vacant posts of Section Assistant. By referring to the affidavit in opposition of the respondents, the learned counsel for the petitioner has submitted that one person securing lesser marks than the petitioner was appointed and, as such, the selection process was not done correctly, not in order of merit, and in a non-transparent manner. 4. The learned Standing Counsel for the respondents has referred to the affidavit-in-opposition filed on behalf of the Secretary to the Govt. of Assam, Irrigation Department (respondent no. 1). It is submitted that the stand of the Government was that against the vacancies advertised on 28.08.2010, some in-service Grade-IV employees under the Irrigation Department had filed writ petitions before this Court. It is submitted that there is no specific service rules in force for filling up the vacant post of Section Assistant. However, the Irrigation Department was following the promotion pattern envisaging 10% of total vacancies occurring in a calendar year kept for promotion to (i) qualified Grade-IV employees who have completed 15 years of continuous service as Khalasi and had read upto Class-VII, and (ii) qualified Grade-IV employees who have completed 10 years of continuous service and had read upto Class-X. Accordingly, another selection process was initiated for filling up additional posts on promotion for departmental candidates over and above the posts advertised on 28.08.2010 by direct recruitment. 5. It is submitted that against the advertised 70 No. posts of Section Assistant, 28 posts were allotted to Bodoland Territorial Council for filling up vacancies arising within their jurisdiction and, as such, the respondents had declared results only in respect of 42 posts available to them. 5. It is submitted that against the advertised 70 No. posts of Section Assistant, 28 posts were allotted to Bodoland Territorial Council for filling up vacancies arising within their jurisdiction and, as such, the respondents had declared results only in respect of 42 posts available to them. In this regard, the learned standing counsel for the respondents has placed reliance on the Minutes of Meeting held on 08.11.2010 in the Office of the Chief Engineer, Irrigation Department. 6. It is further submitted that the marks and answer scripts of other candidates could not be provided by way of RTI reply to the petitioner because those were third party documents and that the other candidates did not give their respective consent. However, in paragraph 14 of their Affidavit-in-Opposition, the respondents have disclosed the marks of all 9 candidates selected for appointment as Section Assistant in the Guwahati Circle. It is submitted that the petitioner was a “general category” candidate and he had secured 95.50 marks, whereas the last “general category” candidate selected at Sl. No. 4 had obtained 106.40 marks, and that a “general category” female candidate at Sl. No. 7 had obtained 97.00 marks and, as such, she was placed above the petitioner. It is further submitted that the “reserved category” candidates at Sl. No. 5, 6 and 8 had secured marks higher than the petitioner. However, the “reserved category” Schedule Caste (S.C.) candidate at Sl. No. 9 had obtained 93.59 marks, but as per the reservation policy in force, the said candidate was placed before the petitioner. It is, thus, submitted that selection was absolutely on merit and there was no scope of appointing the petitioner. Moreover, it is submitted that the select list had lapsed after the selected candidates were appointed and that the unfilled vacancies, if any remained thereafter, were filled up in subsequent recruitment process. 7. It is seen that the respondents have been able to demonstrate that the selection process is not vitiated on the ground that it was unfair, or non-transparent. The respondents have been able to demonstrate that the only candidate who was selected with marks lower than that secured by the petitioner was the candidate at Sl. No. 9, but he was selected under reservation ear-marked for “Schedule Caste” reserved category, as such, the grievance of the petitioner that candidates securing lesser marks than him were selected is without any substance. No. 9, but he was selected under reservation ear-marked for “Schedule Caste” reserved category, as such, the grievance of the petitioner that candidates securing lesser marks than him were selected is without any substance. Moreover, this Court finds that the respondents have been able to justify why they had declared results only in respect of 42 out of 70 Nos. vacant posts advertised, by clarifying that the remaining 28 posts were allotted for appointment by Bodoland Territorial Council for filling up the vacancies falling under its exclusive domain. Therefore, there is no scope for issuing any direction to the respondents to consider the candidature of the petitioner and to appoint him to the post of Section Assistant pursuant to the advertisement dated 28.08.2010. 8. Accordingly, the petitioner is not found entitled to any relief in this writ petition. Hence, this writ petition stands dismissed. The rule issued by order dated 05.11.2014 stands discharged in terms of this order. 9. No cost.