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2022 DIGILAW 672 (GAU)

Sishuram Gogoi v. State of Assam

2022-06-21

SANJAY KUMAR MEDHI

body2022
JUDGMENT : SANJAY KUMAR MEDHI, J. 1. Heard Shri R.P. Sarmah, learned Senior Counsel assisted by Shri D. Doley, learned counsel for the petitioners. Also heard Shri J.K. Goswami, learned Addl. Sr. Govt. Advocate, Assam appearing on behalf of the official respondents. The private respondents were served through newspaper publications and they have chosen not to contest this writ petition. 2. The issue raised in this writ petition is in connection with a recruitment process for filling up of the posts of Constables (AB) in the district of Lakhimpur. It is the case of the petitioners who are 10 in numbers that a recruitment process was initiated vide an advertisement dated 10/10/2007 for a number of posts of Constables in the various districts of the State of Assam and so far as the district of Lakhimpur is concerned, the vacancies were identified to be 67 in numbers. The selection was to be made district wise. The petitioners, who were aspirants, had duly participated in the said recruitment process and were unsuccessful. The petitioners could learn that there were several anomalies and illegalities in the recruitment. The learned senior counsel, Shri Sarmah appearing for the petitioners has made the following submissions in support of his challenge to the entire recruitment process: (1) Though the recruitment was done district wise, persons whose residence was outside the district had also participated and were selected which had caused prejudice to the petitioners who are all permanent residents of Lakhimpur. (2) The advertisement itself is a flawed one so far as the quota of reservation for women is concerned, instead of 30%, 10% has been reserved and in the instant case, five numbers of petitioners are women. (3) The selected persons include some persons who did not even participate in the selection process. 3. The learned Sr. Counsel by drawing the attention of this Court to the averments made in paragraphs-11 and 12 has given specific instances of certain persons who did not even appear in the interview and have been selected. Instances of candidates from other districts have also been given. The learned Senior Counsel, accordingly submits that so far as the recruitment in the district of Lakhimpur is concerned, the same be interfered with and the cases of the petitioners be considered afresh by adhering to the rules of reservation including that of woman. 4. Instances of candidates from other districts have also been given. The learned Senior Counsel, accordingly submits that so far as the recruitment in the district of Lakhimpur is concerned, the same be interfered with and the cases of the petitioners be considered afresh by adhering to the rules of reservation including that of woman. 4. On the other hand, Shri Goswami, the learned Addl. Sr. Govt. Advocate submits that the writ petition, as such, is not maintainable in view of the fact that the petitioners took a chance in the selection process and having failed in the same cannot be allowed to turn around and challenge the same. Secondly, it is submitted that the ground regarding women reservation has not been pleaded in the writ petition and, therefore, at the time of final hearing, it cannot be taken up as the respondents were not in a position to controvert the same in the affidavit-in-opposition filed. It is further submitted that the grounds of illegality and anomalies are absolutely vague and without any material particulars and, therefore, a writ Court cannot be used for making a roving enquiry into such allegations. It is also contended that the recruitment was of the year 2008 and in absence of any interim order, the selected candidates, who have been working for a long period of about 14 years, should not be disturbed from their employment. The Govt. Advocate, accordingly submits that the writ petition is liable to be dismissed. 5. Rejoining his submissions, Shri Sarmah, the learned Senior Counsel submits that the issue of 30% reservation for women is a pure question of law which can be raised at any point and to rebut such grounds, the learned Govt. Advocate can produce the records and no pleadings, per se, is necessary. 6. This Court has given its anxious consideration to the rival submissions advanced on behalf of the parties. This Court is of the opinion that the learned Senior Counsel for the petitioners has rightly submitted that the percentage of reservation for women would not have been reduced to 10. However, at the same time, it is to be seen that instead of challenging the advertisement, the petitioners had submitted application and participated in the recruitment process without any objections. However, at the same time, it is to be seen that instead of challenging the advertisement, the petitioners had submitted application and participated in the recruitment process without any objections. It is true that there is no estoppel in law, but in the instant case, from the date of recruitment, long 14 years have passed and interfering with the appointment of certain persons on the ground of women reservation would amount to unsettling settled position. Moreover, the beneficiaries are not to be found fault with as it is the fault of the authorities in not maintaining the proper percentage of reservation for women. As regards the allegations of candidates from other districts participating in the present recruitment process, this Court is of the opinion that since the recruitment was done for the entire State and was divided district wise, the objective was to deter any attempt of a candidate to participate in the recruitment in two different districts separately. However, in the instant case, since the recruitment was common, there cannot be any restrictions for a candidate whose permanent residence is outside the district to participate in the recruitment process. 7. This Court is also of the view that as the Hon'ble Supreme Court in a catena of decisions, including in the case of Madan Lal vs. State of Jammu and Kashmir, (1995) 3 SCC 486 has laid down that unsuccessful candidates cannot be allowed to challenge the legality of the recruitment process after participating in the same, the present challenge would not be maintainable. For ready reference, the relevant extract is quoted herein-below: “9. Before dealing with this contention, we must keep in view the salient fact that the petitioners as well as the contesting successful candidates being respondents concerned herein, were all found eligible in the light of marks obtained in the written test, to be eligible to be called for oral interview. Up to this stage there is no dispute between the parties. The petitioners also appeared at the oral interview conducted by the Members concerned of the Commission who interviewed the petitioners as well as the contesting respondents concerned. Thus the petitioners took a chance to get themselves selected at the said oral interview. Only because they did not find themselves to have emerged successful as a result of their combined performance both at written test and oral interview, they have filed this petition. Thus the petitioners took a chance to get themselves selected at the said oral interview. Only because they did not find themselves to have emerged successful as a result of their combined performance both at written test and oral interview, they have filed this petition. It is now well settled that if a candidate takes a calculated chance and appears at the interview, then, only because the result of the interview is not palatable to him, he cannot turn round and subsequently contend that the process of interview was unfair or the Selection Committee was not properly constituted. In the case of Om Prakash Shukla vs. Akhilesh Kumar Shukla it has been clearly laid down by a Bench of three learned Judges of this Court that when the petitioner appeared at the examination without protest and when he found that he would not succeed in examination he filed a petition challenging the said examination, the High Court should not have granted any relief to such a petitioner.” 8. Of course, in a given case an unsuccessful candidate may still have the locus to maintain a challenge, in the instant case, taking into account the nature of allegations and also the time which has elapsed during the pendency of this writ petition, this Court is of the opinion that no substantial relief is able to be granted to the petitioners. 9. In view of the above, this writ petition stands dismissed.