High Court · 2012

The relevant facts of the case may be briefly noted.

3. The appellants were appointed as Surveillance Worker in Morigaon and Nagaon districts in the year 2000. However, their appointments were cancell ed shortly after their joining. Aggrieved, the appellants had instituted two wri t proceedings before this Court, which were registered and numbered as W.P.(C) N os.1353/2001 and 318/2001. Both the aforesaid writ petitions were dismissed by o rders dated 14-03-2002 against which Writ Appeal Nos. 158/2002 and 159/2002 were instituted. The aforesaid writ appeals were closed by this Court on 27-08-2003 by directing the respondents to consider the case of the appellants for appointm ent against present and future vacancies which were stated to be available.

4. Following the Court order, the Director of Health Services passed order dated 25-06-2004 declaring that the case of the appellants for appointment as Su rveillance Worker/Grade-IV would be considered whenever vacancies were notified as per existing procedure followed for such appointment.

5. The Joint Director of Health Services (M), Assam by communication dated 17-12-2005 sought for candidates from the District Employment Exchanges for fill ing up of vacant Grade-III and Grade-IV posts, including the post of Surveillanc e Worker. The required qualification for the said posts were indicated in the co mmunication itself, as per which, the qualification prescribed for the post of S urveillance Worker was HSLC/equivalent examination passed. The interview schedul e for the different districts was also provided.

6. Pursuant to the above, appellants appeared before the Selection Board which thereafter prepared select list dated 20-01-2006. According to the a ppellants, two separate select lists dated 20-01-2006 were prepared by the Joint Director for the districts of Nagaon and Morigaon wherein their names were incl uded.

7. However, no appointments were made from the select lists. Appell ants then moved this Court in W.P.(C) Nos.2147 and 2149 of 2006. This Court whil e admitting the writ petitions directed that during the pendency of the writ pet itions, no other person outside the select lists dated 20-01-2006 should be appo inted. On miscellaneous applications filed by the appellants, this Court further directed that pendency of the writ petitions should not preclude the respondent s from considering the case of the appellants for their appointment as Surveilla nce Worker/Grade-IV in terms of select lists dated 20-01-2006. However, instead of considering the case of the appellants for a 8. ppointment, an advertisement dated 03-02-2007 was issued by the Director of Heal th Services, Assam for 464 posts of Surveillance Worker for which the qualificat ion prescribed was HSSLC (Higher Secondary) passed. It appears that the said adv ertisement was issued following framing of an administrative order called (cid:28)The A ssam Vector Borne Disease Control Programme Workers Service Orders, 2006 (cid:29) (2006 orders). As per the 2006 orders, the minimum educational qualification prescribe d for the post of Surveillance Worker is Higher Secondary (HSSLC) passed. A cand idate should also not be more than 37 years of age as on the 1st day of January of the year of recruitment. The strength of the cadre of Surveillance Worker was 1679 on the date of framing of the aforesaid 2006 orders.

9. The appellants filed two writ petitions, being W.P.(C) No.677/20 07 (Nagaon) and W.P.(C) No.678/2007 (Morigaon). This Court passed interim orders directing that appointments to the two districts should not be made without the leave of the Court. Further order was passed on 15-05-2008 restraining the auth orities from filling up the vacant posts of Surveillance Worker in the two distr icts by transfer from other districts.

10. On an application filed by the Director of Health Services seeki ng leave of the Court to proceed with the recruitment for appointment to the vac ant posts of Surveillance Worker in the two districts, this Court passed an orde r dated 25-02-2009 granting leave as prayed for. It was ordered that the vacant posts may be filled up by regular selection after due advertisement. The appella nts were permitted to participate in the said selection without prejudice to the ir rights in the pending writ petitions. It was further made clear that the cons equential appointment orders, if issued, would mention that such appointments wo uld be subject to the result of the writ petitions.

11. Pursuant to the leave granted, the Director issued advertisement on 28-02-2009 for 124 posts of Surveillance Worker without disclosing the break up of vacancies for Nagaon and Morigaon districts, which was stated to be 80 (Na gaon-56 and Morigaon-24). This was brought on record by the appellants by way of an affidavit. The writ petitions were resisted by the respondents by filing co 12. unter affidavit through the Director of Health Services, Assam (respondent No.2) . The initial appointments of the appellants were contended to be de hors any se lection process and, therefore, such appointments could not be construed as lega l. Respondent No.2 also denied the legitimacy of the select lists dated 20-01-20 06. Though constitution of the Selection Board with the Joint Director of Health Services (M) as the Member Secretary was admitted, it was stated that the selec t lists were signed by only Dr. K.N.Sarmah, who was the Joint Director and Membe r Secretary of the Selection Board at the relevant time. It was contended that t he select lists containing only his signature could not be construed as valid. P ublication of the advertisement dated 03-02-2007 was justified as being in the p ublic interest. Enhancing the academic qualification from HSLC to HSSLC was on t he basis of the 2006 orders which was a matter of policy. Respondent No.2 furthe r stated that participation of the appellants in any selection process for the p ost of Surveillance Worker would be subject to fulfillment of eligibility requir ement by them. The appellants controverted the averments made in the counter af 13. fidavit by filing rejoinder affidavit, generally reiterating the averments made in the writ petitions. All the four writ petitions, namely, W.P.(C) Nos. 2147/2006, 214 14. 9/2006, 677/2007 and 678/2007 were heard together by the learned Single Judge an d were disposed of by the common judgment and order dated 24-07-2009 whereby all the writ petitions were dismissed. Learned Single Judge held that the select li sts signed only by the Member Secretary did not inspire the confidence of the Co urt to direct appointment of the appellants therefrom. Learned Single Judge furt her held that up-gradation of the academic qualification for the post of Survell iance Worker from Matric to Higher Secondary was the prerogative of the State Go vernment and, therefore, declined to grant relief to the appellants for relaxati on of the eligibility condition.

15. We have heard Mr. D.C.K. Hazarika, learned Counsel for the appel lants as well as Mr. D.Saikia, learned Additional Advocate General, Assam assist ed by Mr. B.Gogoi, learned Standing Counsel, Health Department for the responden ts.

16. Learned Counsels for both the sides have generally reiterated th e submissions made before the learned Single Judge. While learned Counsel for th e appellants submits that denial of appointment to the appellants and the subseq uent move to exclude them from the selection process by enhancing the eligibilit y criteria, in the face of various orders passed by this Court from time to time , would be most unfair and arbitrary. Considering the plight of the appellants, who he contends have been subjected to an unfair treatment, learned Counsel pray s for a decisive intervention by this Court.

17. Learned Counsel for the respondents on the other hand has denied existence of any enforceable right of the appellants and supports the decision of the learned Single Judge.

18. s on record. We have considered the submissions made and perused the material

19. This Court by order dated 23-12-2011 while summing up the issue involved in the present two appeals, took note of the submission made by the lea rned Counsel for the appellants that the posts have still not been filled up ins pite of the interim order of this Court dated 25-02-2009 permitting appointments to be made, subject to outcome of the writ petitions. Learned State Counsel had sought for time to obtain the latest status of the case. Pursuant thereto, Director of Health Services has filed an affid 20. avit dated 16-03-2012. It is stated therein that pursuant to the advertisement d ated 03-02-2007, 464 posts of Surveillance Worker have been filled up, which exc luded the vacancies of Nagaon and Morigaon districts. It is further stated that 59 and 26 posts of Surveillance Worker have been earmarked separately for Nagaon and Morigaon districts respectively. Though the aforesaid posts have been adver tised, interview has not been held till date. Two issues arise for consideration in the two writ appeals. Firs 21. tly, whether the appellants have acquired any right of consideration for appoint ment to the post of Survelliance Worker on the basis of the select lists dated 2 0-01-2006. Secondly, whether in the subsequent selection process, the appellants can be excluded by changing the qualification from Matric to Higher Secondary.

22. In so far the first issue is concerned, we have perused the riva l pleadings and considered the materials on record, including the finding of the learned Single Judge. Learned Single Judge on due consideration held as under : - (cid:28)21 & & & & &The petitioners as such have not denied that the select list contains on ly the signature of the Member Secretary of the Selection Board. Except the lett er dated 17-12-2005 and some intra official missives there is no other material to convincingly demonstrate that a process of selection as contemplated in law h ad in fact been undertaken to culminate in a valid select list to dispense appoi ntments therefrom. The select list dated 20-01-2006 containing only the signatur e of the Member Secretary of the Selection Board, does not unequivocally substan tiate that a legally cognizable process of selection had been undertaken so much so that the petitioners have a legitimate expectation to have their cases consi dered for appointment therefrom in order of merit. The Committee/Board having be en constituted to conduct the process, the select list dated 20-01-2006 signed o nly by its Member Secretary does not inspire the confidence of this Court to dir ect appointment of the petitioners therefrom. Though great emphasis has been lai d on their behalf on the letter dated 20-09-2006 of the Joint Director of Health Services (M), Assam, i.e. the successor in office of the Member Secretary of th e Selection Committee who had signed the said select list, the same ipso facto d oes not assign the required validity thereto to justify a direction to appoint t he petitioners on the basis thereof. This letter at the most affirms the existen ce of the said list but not the legality thereof deserving enforcement. The peti tioners’ plea for a writ for their appointment therefrom thus cannot be upheld. A scrutiny of the official records produced on behalf of the State respondents d oes not reveal anything inconsistent with their pleadings. (cid:29)

23. We are in agreement with the view expressed by the learned Singl e Judge on this issue. The circumstances surrounding the select lists and the ma nner in which those were issued does not inspire the confidence of the Court. Th ere is nothing on record to indicate that a process of selection as is commonly understood preceded the issuance of the select lists. In view thereof, the praye r of the appellants to direct the respondents to confer appointments to them on the basis of the select lists dated 20-01-2006 cannot be acceded to.

24. This brings us now to the issue of eligibility and entitlement o f the appellants to participate in the subsequent selection wherein the academic qualification has been enhanced from Matric to Higher Secondary.

25. While attempting to answer this issue, it will be apposite to re fer to the various orders passed by this Court from time to time, which have alr eady been noticed in the earlier part of this judgment. While disposing of the e arlier batch of writ appeals, this Court had directed the respondents to conside r the case of the appellants for appointment for present and future vacancies in accordance with the provisions of law. In the present round of litigation, this Court as an interim measure had directed that no person outside the select list s dated 20-01-2006 should be appointed. Again, this Court while permitting the r espondents to hold the selection pursuant to the advertisement dated 03-02-2007, directed that no appointment should be made in Nagaon and Morigaon districts wi thout the leave of the Court. Subsequently, this Court further directed that vac ancies in Nagaon and Morigaon districts should not be filled up even by way of t ransfer. Finally, on an application filed by the Director seeking leave of the C ourt to proceed with the recruitment process for appointment against the vacant posts of Surveillance Worker in Nagaon and Morigaon districts, this Court by ord er dated 25-02-2009 while granting leave, ordered that the posts may be filled u p by regular selection after due advertisement, giving liberty to the appellants to participate in the said selection without prejudice to their rights in W.P.( C) Nos. 677/2007 and 678/2007. In the said order dated 25-02-2009 it was recorde d that 85 vacancies existed in the two districts. This figure matches the number of vacancies disclosed for the two districts in the affidavit of the Director d ated 16-03-2012.

26. From the sequence of orders mentioned above, it is evident that the above 85 vacancies occurred in the year 2005-06 and those have not been fill ed up till date. If the vacancies are of the year 2005-06, the question which ar ises is what should be the qualification governing the selection for those vacan cies, whether it should be those existing when the vacancies arose or those subs equently introduced by the 2006 orders on 08-01-2007.

27. It needs to be mentioned that there are no statutory rules gover ning the field. Prior to 08-01-2007, the appointments were made on the basis of prevalent guidelines, such as the communication dated 17-12-2005 which prescribe d matriculation as the eligibility qualification. The 2006 orders which came int o force w.e.f. 08-01-2007, enhanced the qualification from Matric to Higher Seco ndary and fixed the upper age limit for appointment at 37 years. But there is no statutory force behind the 2006 orders. Those have been made pending finalizati on of service rule to be framed in exercise of the powers conferred by the provi so to Article 309 of the Constitution. Therefore, the 2006 orders are only in th e nature of administrative guidelines.

28. Considering the clear direction of this Court in the order dated 25-02-2009 directing the respondents to fill up the posts by regular selection after due advertisement and permitting the appellants to participate in the said selection process, to render such participation meaningful, the authority would be required to allow the appellants to participate in the selection. As noticed earlier in this judgment, a Division Bench of this Court in the order dated 27- 08-2003 had directed the respondents to consider the case of the appellants agai nst present and future vacancies. Following such direction of the Court, the Dir ector had made a categorical declaration on 25-06-2004 that the case of the appe llants would be considered whenever appointments to the post of Survelliance Wor ker are made as per existing procedure. In view of above, appellants cannot be e xcluded from the selection process by relying upon the 2006 orders which lack st atutory force.

29. Admittedly, the posts have remained vacant as the learned Single Judge has recorded that no appointment has been made. The latest affidavit of t he Director also discloses that though advertisement was made for the 85 posts o f Surveillance Worker in Nagaon and Morigaon districts, no interview has been he ld till date.

30. As considerable time have elapsed in the meanwhile, it would be in the interest of justice if fresh advertisement is issued for filling up the 8 5 posts of Surveillance Worker in Nagaon and Morigaon districts by permitting th e appellants also to participate therein. Appellants shall not be disqualified i f they donot possess the Higher Secondary qualification as per the 2006 orders. In the event, the appellants are found to be over-aged, necessary relaxation may be made. The selection process as indicated above should be completed within a period of 4 months from today. As the appointments are intrinsically connected w ith Malaria Eradication Programme, the State respondents should complete the sel ection process within the period specified and thereafter make the appointments at the earliest. To that extent, the impugned judgment of the learned Single Jud ge is interfered with.

31. f, leaving the parties to bear their own cost. With the above directions, the two Writ Appeals stand disposed o