Judgment · High Court · 2009

#02. I have heard Ms. NS Thakuria, learned counsel for the petitioner s and Mr. SK Das, learned Standing Counsel, Education Department, Assam for the official respondents as well as the respondent No. 3. Also heard Mr. N Dutta, S enior Advocate assisted by Ms. B Bhuyan, Advocate for the private respondents.

#03. The petitioners’ version is that some of them are serving in Gra de - IV posts in the College following a test/interview conducted in the year 20 06 in a process initiated by an advertisement to that effect. Though, they had been rendering unblemished services since then, inspite of repeated requests, th ey have not yet been regularized. On 26.06.2008 another advertisement was publi shed in the notice board of the College, whereby, the Principal thereof, i.e. th e respondent No. 3 invited applications for 31 Grade-IV posts in the institution in the pay scale of Rs. 2450-3670/- per month. The petitioners along with othe rs applied and they were, accordingly, called to appear in the written test held on 17.12.2008 and they took the same. According to the petitioners, three copi es of the result sheet were, thereafter, hung in the notice Board of the College without the signature of the respondent No. 3 or any other authority thereof, w hich, however, contained their roll numbers. Thereby, the successful candidates were intimated the dates of oral interview to be 20.12.2008 and 21.12.2008. Th e petitioners, accordingly, appeared in the oral interview, as scheduled. While , thereafter, they remained under a bonafide expectation of being selected for r egular appointment, they came to learn from a reliable source that names of 17 c andidates favoured by the respondent No. 3 had been forwarded for police verific ation surreptitiously. This move on the part of the respondent No. 3 met with l ivid resentments in the locality.

#04. The petitioners have averred that on 27.01.2009, a list was publ ished in the notice board of the College, purportedly of the successful candidat es. Not only, the same did not bear the signature of the respondent No. 3 or an y other authority of the College, the names of the petitioners also did not appe ar therein. A spate of protests followed and on 29.01.2009 another select list was published, this time containing the signature of the respondent No. 3 contai ning the names of persons, who are either the relatives or serving employees of the respondents. The names of the petitioners did not figure therein. It is in this backdrop that they are before this Court seeking redress contending that t he selection process is vitiated by lack of transparency, fairness and bonafide. The respondent No. 2, the Director of Technical Education, Assam 04 A. , in his affidavit, while admitting that the petitioners had been working tempor arily for different periods in the College, has denied that any kind of assuranc e was extended to them to regularize their services. While affirming that the P rincipal of the College as the Chairman of the Selection Committee had duly sign ed the select list dated 19.12.2008 of 234 successful candidates qualified for t he viva-voce test to be held on 20.12.2008, the answering respondent has avowed that the final select list was drawn up on 29.12.2008 and was on the very same d ate dispatched for police verification of the selectees. This respondent has av erred against publication of any list on 21.01.2009 or 29.01.2009, but has insis ted that the final select list signed by the Principal of the College was publis hed on 29.12.2008.

#05. The respondent No. 3, in her counter, while denying the petition ers’ assertion of assurance for regularization of their services by her, confirm ed the initiation of the selection process by the advertisement dated 26.06.2008 and the conduct of the written test on 17.12.2008. She maintained that on 19.12 .2008 three lists duly signed by the concerned authority were published containi ng the names of 234 candidates identified for the viva-voce examination fixed on 20.12.2008 and 29.12.2008. The final select list of the successful candidates recommended for appointment, was published on 29.12.2008 in the notice board of the College. The answering respondent confirmed that all the 31 selected candid ates had duly appeared in the written test and viva-voce and that the copy of th e final select list was forwarded to the Director of Technical Education, Assam, Employment Exchange, Kamrup and the Superintendent of Police, Kamrup for police verification on the very same date. She has emphatically denied the allegation of favouritism and illegality in the selection process as well as the averment of publication of select list of 29.01.2009. She has maintained that the Select ion Committee was comprised of five members including her as the Chairman of the Body and that the viva-voce was held out of 50 marks. Each member of the Commi ttee awarded marks separately to the candidates and the selection was made on th e basis of their overall performance in the interview, academic qualifications a nd work experience. The answering respondent, however, indicated that there is no proposal as yet to dislodge the petitioner from their posts. She, however, m aintained that out of the 31 selected candidates, 21 have been working as casual workers in various departments of the College and that in the selection, they w ere adjudged to be superior than the petitioners.

#06. The private respondents, in their interim application (registere d as MC No. 552/2009), while claiming to be the selected candidates empanelled i n the select list dated 29.12.2008, in essence, have insisted that they are all qualified to be appointed to the posts. They having applied in response to the advertisement dated 26.06.3008, were issued individual call letters on the basis of which they appeared in the written test held on 17.12.2008, whereafter, they being successful, were called for the viva-voce held on 20.12.2008 and 21.12.20 08. They performed well in the interview as well and were selected following th e select list 29.12.2008 was published and their names and particulars were forw arded for police verification. They have asserted to have learnt about their se lection from the select list. Maintaining that the selection is valid in all re spects, the respondents have categorically denied the allegations to the contrar y as made by the writ petitioners. Ms. Thakuria has urged that the Respondent-College not having ad 07. hered to the procedure for conducting a public participatory process, the select ion is invalid. According to her, no select list was published on 29.12.2008 an d it was on 29.01.2009 instead that a list signed by the respondent No. 3 was hu ng in the notice board of the College. Ms. Thakuria, has urged that the selecti on of the private respondents and others is not based on merit and suitability, but extraneous considerations and, therefore, the same is liable to be adjudged illegal, null and void. On being queried by this Court, the learned counsel for the petitioners, however, admitted of their participation in the written test a nd viva-voce test on 20.12.2008 and 21.12.2008.

#08. The learned Standing Counsel, Education Department also appearin g for the College, has argued with reference to the records of the selection tha t the imputation against the validity thereof, is frivolous being without any fa ctual basis. The petitioners having failed to make their mark in the comparativ e assessment of the candidates, their grievance is misplaced. As their appointm ents in Grade-IV posts have been temporary, they cannot claim to continue in ser vice, as a matter of right having failed to get themselves selected, he urged.

#09. Mr. Dutta, while endorsing the validity of the selection process , has insisted that it being apparent on the face of the records that the petiti oners have failed in the competitive appraisal of suitability vis-a-vis the sele ctees empanelled in the select list dated 29.12.2008, their challenge as laid in the instant petition, is liable to be rejected in limine. They having particip ated in the process, are estopped from turning around to assail the same, he urg ed. Moreover, there being no semblance of any illegality in the exercise undert aken by the College, the instant proceeding being only a design to abort the pro cess of appointment of the selectees, it lacks bonafide as well.

#10. The pleadings of the parties have been duly scrutinized and the arguments evaluated on the basis thereof. The parties are not at issue on the i nitiation of the process for selection by the advertisement dated 26.06.2008 iss ued by the Principal of the College. Admittedly, the petitioners had appeared i n the written examination and were amongst the successful candidates to be calle d for the interview/viva-voce, wherein, they had participated on 20.12.2008 and 21.12.2008, as scheduled.

#11. The official records produced by the College reveal that the Sel ection Committee/Interview Board was composed of five persons with the Principal of the College as the Chairman thereof, the other constituents being Ms. Alpana Mahanta, Assistant Director, Employment Exchange, Smti Parijat Bhuyan, ACS, DC, Kamrup (M), Prof. Bipin Ch. Bhuyan, Ex-Faculty of AEC and Dr. PK Goswami, Ex-Di rector of Technical Education, Assam. The records reveal that the Committee/Board in its meeting held on 19.11.2008, h ad decided to hold a written test for screening the candidate for viva-voce. Th e date of the written test was fixed to be 17.12.2008. The minutes of the meeti ng of the Committee/Board held on 29.11.2008, disclose that it was resolved ther ein to publish the results of the written test on 19.12.2008 and thereafter, hol d the viva-voce on 20.12.2008. Final selection was resolved to be made on the b asis of the marks secured by the candidates in the interview to be awarded by ta king into consideration work experience, educational qualifications, overall per formance and humanitarian factors. It was decided in the meeting of the Committ ee/Board on 19.12.2008 that candidates equal four times the number of vacant pos ts be called in the interview fixing 20.12.2008 and 21.12.2008 for the said purp ose. The official records bear out the fact that viva-voce/interview was, there after, conducted on these two dates and on 29.12.2008, the final list of selecte d candidates by applying the above criteria was published by the College. On th e same date, a copy of the said list was also forwarded to the Superintendent of Police, Special Branch, Kahilipara, Guwahati for submission of police verificat ion report vis-a-vis the selected candidates for their appointments against the vacant posts involved in the process. The final select list dated 29.12.2008 co ntains the names of following number of candidates category wise, namely, 1) Gen eral Category - 18, 2) OBC/MOBC - 8, 3) SC - 2, 4) ST(P) - 3. Whereas, the names of the private respondents are included there 12. in, the petitioners do not figure in the list. The selection of the candidates as resolved by the Interview Board/Selection Committee has been on the basis of the marks secured by them as well as their work experience. Noticeably, though, the petitioner No. 2, Kushal Chandra Bez with Roll No. 883 belonging to the OBC category had secured 35 marks at par with one Shri Prasanta Kr. Das, Roll No. 1 81 also in the same category, it transpires from the record that he was preferre d for having longer length of experience. The marks secured by the other petiti oners compared to those of the candidate selected, on the face of the records do not justify their (petitioners) selection. On a scrutiny of the records, no ap parent anomaly in the comparative assessment of the candidates and award of mark s on the basis thereof is discernible. The imputation of non-compliance of the prescribed procedure made by the petitioners also is not demonstrated thereby. The process undertaken by the College is inconformity with the fundamentals of a public participatory exercise contemplated in law for appointments to a public post/office. The records do not reveal a shred of material to even infer the ex istence of any select list dated either 27.01.2009 or 29.01.2009 as asserted by the petitioners. In the estimate of this Court, had any such list been prepared or published, the records would have borne a testimony to that effect.

#13. On a totality of the considerations set out hereinabove, this Co urt, in the exercise of its power of judicial review, is not inclined to sustain the challenge laid to the process of selection involved. The petition lacks in substance and is, therefore, dismissed. Accordingly, the interim restraint her eby, stands vacated. No costs.