Judgment · High Court · 2012

#06. o the four proceedings proposed to be disposed of deserve attention. In the above factual setting, some salient features pertaining t WP(C) No. 547/2008 Petitioner Nos. Community Name Sri Dhiren Talukder Shri Ramen Ch. Baishya No. 1 No. 2 Koch community/OBC Bania Caste/SC Both of them claimed to be eligible in terms of the notified criteria. Pleaded Stand of the Respondents. The selection process has been conducted strictly in accordance with the prescri ptions of Rule 14 of the Rules. As reiterated by the Employment Officer, Nalbari , on the scrutiny of the relevant records, names of 20 candidates belong to SC, ST(P), OBC and physically handicapped categories were sponsored on the basis of various factors, viz, i) Seniority of registration ii) Age of the candidate iii) Requirement criteria of the Employer iv) Consideration on rotational basis. Petitioner No. 2, Sri Ramen Ch. Baishya had been registered with the said exchange vide registration No.4799/2004 under General Category and his claim of being a member of the Scheduled Caste community is not substantiated b y the records. Vis-a-vis Shri Dhiren Talukdar, petitioner No. 1, his registratio n had lapsed in the year 2009, whereafter, he had not sought for any renewal. Th e letter dated 10.01.2008 had been received by the District Employment Exchange, Nalbari on 02.02.2008, whereafter, the list of suitable candidates was prepared and forwarded to the Commissioner of Transport, Assam, Guwahati. Out of 54079 r egistered candidates, the following were eligible in terms of the advertisement: - SC - 3159, ST(P) - 7740, OBC - 7138, Physically handicapped - 790. Five names under the Scheduled Caste category, which were considered for being s ponsored, had been registered in the year 1995, 1996, 1999, 2000 and 2002.

#07. WP(C) No. 3200/2008 Petitioner Nos. Community Name Sri Ramen Ch. Baishya Sri Kamal Kr. Das Sri Jayanta Mazumder Sri Paban Kr. Deka Sri Deepjyoti Mazumder Sri Heman Mali No. 6 No. 1 No. 2 No. 3 No. 4 No. 5 SC SC SC SC SC SC Kamrup Name of Employment Exchange Kamrup Kamrup Kamrup Kamrup Kamrup They claimed to be eligible in terms of the notified criteria and alleged as wel l that various general category candidates had been called for the written test and had qualified for the interview, though all the vacancies, as notified, were reserved. Pleaded Stand of the Respondents. The requisition for the candidates from the District Employment Exchanges of Ass am has been in conformity with the prescription of Rule 6 of the Rules. Only tho se candidates, who had been sponsored by the respective District Employment Exch anges, allowed to participate in the selection process constituting written test , viva-voce and type writing/speed test. Though, initially a few general categor y candidates were also permitted to take part, eventually on the decision of the Committee constituted in accordance with Rule 14 of the Rules, though, they had qualified in the written test, they were not called for the interview. The writ ten test was held on 04.07.2008 and the viva-voce as well as type writing/speed test on 29.07.2008 and 30.07.2008 respectively. As the petitioners had not provi ded their registration numbers in the writ petition, the relevant records could not be verified to ascertain the reasons why their employment exchanges did not forward their names.

#08. WP(C) No. 3048/2008 Name Ramen Ch. Baishya Petitioner Nos. Community No. 1 Bania He claimed to be eligible in terms of the notified criteria. For filling up the posts, the advertisement ought to have been published by the concerned authoriti es in two daily news papers and the same should have been hung at the district l evel offices of the concerned department. Pleaded Stand of the Respondents. The petitioner Shri Ramen Ch. Baishya had been registered with the District Empl oyment Exchange, Nalbari in the general category and his claim to be a member of the Scheduled Caste community is not substantiated by the records. He was regis tered in the year 2004 and the Scheduled Caste certificate annexed to the writ p etition had been issued in the year 2006.

#09. WP(C) No. 857/2009 Petitioner Nos. Community Name Ms. Millika Baruah Sri Kapil Kr. Saikia Sri Rajib Bhuyan Sri Manash Bania Sri Lakhi Narayan Bora Sri Babul Saikia Sri Rajib Kr. Nath Ms. Rina Baruah No. 8 Sri Banjit Sonowal No. 1 No. 2 No. 3 No. 4 No. 5 No. 6 No. 7 UR No. 9 UR UR OBC UR OBC OBC OBC ST(P) According to them, they all are eligible as per the criteria notified. They have impugned the vires of Rule 6 (1) (b) of the Rules. They have averred that their names have been registered with the District Employment Exchanges of the State, viz, Nagaon, Jorhat and Darrang. Pleaded Stand of the Respondents. The respondents contended that advertisement in the newspaper for notification o f the vacancies is not necessary under the Rules. According to them, the registr ation of the petitioner Nos. 4 & 6 with their respective employment exchanges ha d lapsed at the relevant point of time. Further, the petitioner Nos. 2 to 6 and 8 did not possess the necessary qualification as prescribed and thus did not com e within the zone of consideration for which their names were not sent. As the p etitioner No. 7 did not mention his registration number, his status could not be verified. They further stated that the petitioner No. 9, though, had passed HSL C, he did not possess any diploma of type writing either in English or Assamese. He did not indicate as to whether he had acquired a diploma in computer. Petiti oner No. 1, though, a graduate he did neither have any knowledge in computer nor of type writing in English or Assamese. Pleaded reply of the petitioners The petitioner not 4 was also physically handicapped and was thus eligible alway s to be included in the general category. The requirement of knowledge of type w riting in English and Assamese as well as in computer was not an essential condi tion of eligibility and, thus, the petitioners could not have been disqualified on this ground.

#10. Mr. Mannan has argued that the restriction of number of particip ating candidates to only those registered with the employment exchanges of the S tate in purported compliance of Rule 6 (1) (b) is violative of the constitutiona l guarantee of equality before law and in public employment and, thus, the selec tion process being obviously invalid is liable to be adjudged as such. Not only, the names forwarded by the District Employment Exchanges were beyond the deadli ne of time mentioned in the communications laying the requisition therefor, the constitution of the Selection Committee vide the notification dated 27.11.2007 a lso lacks in authority and sanction of law, he urged. Additionally, the District Employment Exchanges having handpicked the candidates on irrelevant and extrane ous factors, the process of selection confined to them is apparently unfair, dis criminatory and lacking in transparency and is, thus, liable to be declared null and void, he contended.

#11. Drawing the attention of this Court to Rule 6 of the Rules and R ule 4 of the Assam Public Services (Direct Recruitment to Class-III and Class-IV Posts) Rules, 1997 (hereafter for short also referred to as the 1997 Rules), th e learned counsel insisted that the exercise for filling up the posts involved o ught to have been undertaken in compliance of the provisions of the latter. On a conjoint reading of Rule 6 of the Rules and Rule 4 of the 1997 Rules, according to Mr. Mannan, advertisement of the posts facilitating participation of all eli gible candidates was obligatory to conform to the constitutional mandate qua pub lic employment. That the selective approach of the District Employment Exchanges in forwarding the names of the candidates is also not in conformity with the le tter and spirit of the Employment Exchanges (Compulsory Notification of Vacancie s) Act, 1959, was emphasized as well. According to Mr. Mannan, such omissions ar e not only in repudiation of the constitutional enjoinment to Article 14 & 16 of the Constitution of India, but also has reduced the selection process to a farc e, access thereto of more meritorious candidates for participation having been p revented thereby. To reinforce his arguments, Mr. Mannan has placed reliance on the decisions of Apex Court in EXCISE SUPERINTENDENT MALKAPATNAM, KRISHNA DISTRI CT, A.P. VS. KBN VISWESHWARA RAO & ORS., (1996) 6 SCC 216, Arun Kr. Nayak Vs. Un ion of India & Ors., (2006) 8 SCC 111, State of Bihar Vs. Upendra narayan Singh & Ors., (2009) 5 SCC 65 and State of Orissa & Anr. Vs. Momata Mahanty, (2011) 3 SCC 436.

#12. In reply, Mr. Dey has urged that the decision to requisition eli gible candidates from the District Employment Exchanges of the State being in ha rmony with the prescription of Rule 6 (1) (b) of the Rules, the same cannot be f aulted with. Relying on the notification No.TMV.34/93/ Pt/95, dated 01.07.2002, the learned counsel has contended that in terms thereof the application of Rule 7 of the 1997 Rules to the Commissionerate of Transport, Assam is visibly exclud ed and, thus, reference thereto is wholly inconsequential. According to Mr. Dey, having regard to the averments in the pleadings of the Director, Employment & C raftsman Training, Assam, disclosing the reasons for not furnishing the candidat ure of the petitioners, the plea of discrimination and unfair treatment is misco nceived. While admitting that the composition of the Selection Committee has bee n in terms of Rule 14 of the Rules, Mr. Dey has urged that as direct recruitment to the same post also within its purview was contemplated, such a step also is unassailable in law. He insisted that as the Selection Committee contemplated by Rule 14 is one also for conducting the process of promotion from Grade-IV to Ju nior Assistant, it was permissible in absence of any other prescription to the c ontrary to entrust the exercise of direct recruitment to the said entity. The le arned counsel, while insisting that the Rules are still in force and that the im pugned process has been conducted strictly in accordance therewith, he urged, ag ainst any interference therewith, contending that 900 expectant candidates were involved. According to him, the decisions cited on behalf of the petitioner are distinguishable on facts, as the same had been rendered without reference to the Rules of the kind involved herein. Mr. Dey has submitted that as the selection is otherwise complete, the respondents may be permitted to take further conseque ntial steps in terms thereof. The decisions of the Apex Court in ARUN TEWARI & O RS. VS. ZILA MANSAVI SHIKSHAK SANGH & ORS., (1998) 2 SCC 332 and State of Orissa & Ors. Vs. Bhikari Charan Khuntia & Ors., (2003) 10 SCC 144 were pressed into s ervice by Mr. Dey, in endorsement of these pleas. We have extended our thoughtful consideration to the rival plead 13. ings as well as the submissions based thereon. Noticeably, though, the vires of Rule 6 (1) (b) of the Rules was, in the pleadings, endeavoured to be challenged being violative of Article 14 and 16 of the Constitution of India, in course of the arguments the same was not pursued. Instead, it was sought to be emphasized that on a reading of the said provision of the Rules as a whole, it was incumben t for the respondents to advertise the vacancies in addition to requisitioning o f the names of the eligible candidates from the District Employment Exchanges of the State. This was an enjoinment, according to the petitioners, in view of the stipulation for compliance with the scheme of selection prescribed by the Gover nment as envisaged in Rule 6 (1) (b) of the Rules. The pleaded impugnment of the vires of this provision of the Rules would thus require scrutiny in this perspe ctive.

#14. The Rules are an yield of an exercise of powers conferred by pro viso to Article 309 of the Constitution of India for regulating the recruitment to and other conditions of service of persons appointed to the Assam Ministerial District Establishment (Transport) Service and are applicable to persons appoin ted to the posts of Head Assistant, Upper Division Assistant and Lower Division Assistant of the offices of the District Transport Officer and Secretary, Region al Transport Authority of the State under the Commissioner of Transport, Assam. The methods of recruitment to the service as laid down in Rule 5 prescribes that appointment to the post of Lower Division Assistant has to be by direct recruit ment up to 90% of the vacancies occurring in a year in accordance with Rule 6 an d by promotion in accordance with Rule 11 to the remaining 10% of vacancies from amongst Grade-IV employees of district offices. Rule 6 occupying the centre sta ge of the debate, is extracted hereinbelow: - (cid:28)6. Direct recruitment : - (1) Direct recruitment to the cadre of LDA upto 90 pe rcent of Vacancy occurring in a year shall be made by the appointing authority i n accordance with the procedure here in after provided :- (a) Before the end of each year the appointing authority shall make an assessmen t regarding the likely number of vacancies to be filled up by direct recruitment during the next year together with the details about reservation of candidates belonging to S.C., S.T. or any other category as laid down by the Government as provided under rule 10 and about carry forward of such reservation. (b) The appointing authority shall then invite applicants from all the District Employment exchange of the State and shall make the selection in accordance with the scheme of selection prescribed by the Government and prepare a list of cand idates found suitable for appointment in order of preference. The number of cand idates in such a list may be approximately double the number of vacancies. (c) The appointing authority shall publish the list at such place as it may cons ider proper. (d) The list mentioned in clause (b) of sub-rule (I) of this rule shall remain v alid for twelve calendar months from the date of publication. In the event of the appointing authority being unable to enlist sufficient numbe r of candidates to fill up the vacancies in a year it shall repeat the procedure as mentioned here in before under sub-rule (I) of this rule for preparing a sub sequent list in a year. Provided that the appointing authority shall not make appointment to any candida tes of the earlier list of the same year eligible for appointment, have been off ered the appointment. (cid:29) It would transpire from the above excerpt that direct recruitment to the cadre o f LDA (re-designated as Junior Assistant) has to be in accordance with the proce dure laid down therein. In terms thereof, before the end of each year, the appoi nting authority would have to make an assessment regarding the likely number of vacancies to be filled up by direct recruitment during the next year together wi th the details about reservation of candidates belonging to Scheduled Caste and Scheduled Tribes or any other category as identified by the Government. The appo inting authority would then invite applications from all the District Employment Exchanges of the State and shall make the selection in accordance with the sche me of selection prescribed by the Government and prepare a list of candidates fo und suitable for appointment in order of preference. The number of candidates in the select list in accordance with the Rules ought to be approximately double t he number of vacancies. Having regard to the unequivocal language applied in Rule 6 (1) (b) stipulating the manner of structuring the corpus of the candidates for the eventual selectio n, in our view, the reference to the scheme of selection prescribed by the Gover nment is not of any decisive significance in respect thereof. The Rules precisel y require the appointing authority to invite applications from all the District Employment Exchanges of the State only and does not, as such, contemplate notifi cation of the vacancies by public advertisement. The scheme of selection prescri bed by the same alluded to in Rule 6 (1) (b) of the Rules pertains to a stage su bsequent thereto.

#15. That the Commissionerate of Transport, Assam, has been excluded from the purview of 1997 Rules had been excluded from applicable to the is vivid from the notification dated 01.07.2002 referred to hereinabove. Rule 3 of the 1 997 Rules in clear terms make such rules applicable only to those Class-III (bot h technical and non-technical and Class-IV) where there are no service rules, ex ecutive orders regulating the recruitment and conditions of service. In the face of the Rules, on this count as well, the 1997 Rules has no application to the s election process involved. Consequently, though, it was open to the respondents to adopt the procedure prescribed under Rule 4 thereof to conduct the present pr ocess of recruitment, it obviously was not incumbent upon them to do so. The rel iance on the provisions of the 1997 Rules to impeach the validity of the impugne d selection process thus cannot be sustained.

#16. Having regard to the fact that the Selection Committee contempla ted under Rule 14 of the Rules is also one for promotion to the post of Lower Di vision Assistant (Junior Assistant) in the service noticing the identicalness of the composition with the one prescribed by the notification dated 27.11.2007, w e are disinclined to invalidate the selection on the plea of lack of authority, jurisdiction or competence of the Selection Committee constituted thereby. The petitioners’ remonstrance on the aspect of forwarding of nam 17. es of the candidates by the District Employment Exchanges even beyond the date m entioned in the letters of requisition, also does not appeal to us in view of th e omnibus nature thereof. Though, the affidavit of the Director, Employment and Craftsman Training, Assam filed in WP(C) No. 547/2008, discloses that the Distri ct Employment Exchange, Nalbari, had received the communication dated 10.01.2008 only on 02.02.2008 i.e. after the expiry of the deadline on 25.01.2008, we are not disposed to annul the selection process on this ground alone in absence of a ny overwhelming material on record to demonstrate the candidates whose names wer e forwarded belatedly were either ineligible or disqualified in terms of the nor ms prescribed by the Rules. The respondents in their affidavit have, in particular, indicated the criteria a pplied by the District Employment Exchanges of the State for forwarding the name s of the candidates in terms of the requisition, which include;- i) Seniority of registration, ii) Age of the candidate, iii) Requirement criteria of the Employer and iv) Consideration on rotational basis.

#18. The affidavit of the Director, Employment & Craftsman Training, Assam, reveals that in the process, the candidates, who had been registered earl ier, had been accorded some preference. It further transpires therefrom that acc ording to this respondent, the registration of some of the petitioners had lapse d at the relevant point of time and others did not strictly satisfy the conditio ns of eligibility as stipulated. Moreover, the pleadings of the petitioners did not adequately furnish the essential particulars of their registrations, thus, r endering the answering respondent unable to provide the reasons for not forwardi ng their names in further details. Though, in course of the arguments, it was hinted on behalf of the petitioners t hat in terms of the notifications dated 10.01.2008 and 20.01.2009, the capabilit y of type writing with a speed of 30 words per minute in English and 20 words pe r minute in Assamese and knowledge of computer was only a desirable qualificatio n, in the face of Rule 8 read with Schedule-II to the Rules, this plea also does not commend for acceptance to invalidate the selection process. Whereas, Rule 8 ordains that the academic qualification of a candidate for direct recruitment w ould be, as prescribed in Schedule-II thereof, the minimum qualifications prescr ibed thereunder are as follows: - 1) He must have passed the High School Leaving Certificate Examination of a Boar d recognized by the Government or any other examination declared by the Governme nt as equivalent. 2) He must be capable of typing of the minimum speed of 30 words per minute & & & & & & & & & & & & & & & & & &

#19. Though, the requirement of typing at the prescribed speed does n ot detail further on the language and is sans any reference to the computer, the decision of the District Employment Exchanges of the State and the stand of the Director of Employment and Craftsman Training, Assam, that some of the petition ers were lacking in this segment of the qualification contemplated for the post involved cannot be lightly disregarded as irrelevant and wholly inconsequential in identifying the candidates for forwarding their names for participation in th e process. The petitioners’ grievance that though eligible in terms of the advertisement, t heir names were not forwarded arbitrarily and others were favoured on pick and c hoose basis thus, does not weigh with us.

#20. In the present conspectus of facts, if on an understanding of Ru le 6 (1) (b), the respondents have confined the selection process only to the ca ndidates drawn from the District Employment Exchanges of the State, in our view, the same cannot be proscribed as a cardinal vice to incurably afflict the same.

#21. The decisions cited on behalf of the petitioners to buttress the plea of inflexible enjoinment of advertisement of the vacancies for public part icipation in conformity with the mandate of Article 14 and 16 of the Constitutio n of India are distinguishable on facts. To start with, in none of these decisio ns any provision akin to Rule 6 had figured for scrutiny. There was no occasion for their Lordships to enunciate the law with regard to the intransigent essenti ality of advertisement of vacancies for public employment in the face of a presc ription of Rules framed under Article 309 of the Constitution of India confining the zone to the eligible candidates registered with the concerned District Empl oyment Exchanges.

#22. The observations in EXCISE SUPERINTENDENT MALKAPATNAM, KRISHNA D ISTRICT, A.P. (Supra) that in addition to the requisitioning from the employment exchanges, the vacancies ought to be published in news paper having wide circul ation and notified as well on the office notice board, announced in radio, telev ision and employment news bulletins, in our view, has to be construed in the con textual facts of that case. Relevant in this regard are the following observatio ns of the Apex Court in para 9, page 318 & 319 of UNION OF INDIA VS. N. HARGOPAL , (1987) 3 SCC 308 are : - (cid:28)9 &.The object of recruitment to any service or post is to secure the most suita ble person who answers the demands of the requirements of the job. In the case o f public employment, it is necessary to eliminate arbitrariness and favouritism and introduce uniformity of standards and orderliness in the matter of employmen t. There has to be an element of procedural fairness in recruitment. If a public employer chooses to receive applications for employment where and when he pleas es, and chooses to make appointments as he likes, a grave element of arbitrarine ss is certainly introduced. This must necessarily be avoided if Articles 14 and 16 have to be given any meaning. We, therefore, consider that insistence on recr uitment through employment exchanges advances rather than restricts the rights g uaranteed by Articles 14 and 16 of the Constitution. The submission that employm ent exchanges do not reach everywhere applies equally to whatever method of adve rtising vacancies is adopted. Advertisement in the daily press, for example, is also equally ineffective as it does not reach everyone desiring employment. In t he absence of a better method of recruitment, we think that any restriction that employment in government departments should be through the medium of employment exchanges does not offend Articles 14 and 16 of the Constitution. (cid:29) The remark of the Hon’ble Apex Court in ARUN KUMAR NAYAK (Supra) that its decisi on in ARUN TEWARI & ORS. (Supra) did not lay down any law and instead one in EXC ISE SUPERINTENDENT VS. KBN VISWESHWARA RAO (Supra) had done so, in our respectfu l comprehension, does not clinch the issue in favour of the petitioners in the t eeth of Rule 6 (1) (b) of the Rules. To reiterate, no such provision identical t o Rule 6 (1) (b) had fallen for consideration of the Apex Court qua this aspect of the debate.

#23. The decision of this Court in WP(C) NO. 3250/2008 (RATUL BHARALI & ANR. VS. THE STATE OF ASSAM ORS.) also does not advance their cases, inasmuch , as not only the post involved therein and the Rules applicable were different, the 1997 Rules were referred to and relied. In all probability, the notificatio n dated 01.07.2002, excluding the Commissionerate of Transport, Assam, from the purview of 1997 Rules, had not been placed before the learned Single Judge. Furt her, the requirement of publication of the notification of the vacancies in the news papers was emphasized in view of a mandate to that effect by the Hon’ble Ap ex Court in an earlier selection for the same posts i.e. Assistant Enforcement I nspector and Enforcement Inspector of the department. The facts are clearly dist inguishable on these determinative aspects. In the above view of the matter, we are unable to sustain the ch 24. allenge as laid in the instant petitions, which therefore fail. The petitions ar e dismissed. This determination notwithstanding, it would be open for the State respondents to finally decide as to whether in view of the time lag, the selecti on process ought to be finalized or not for the purpose of appointments. Further , in view of the state of law emphasizing on the desirability of notifications o f vacancies in news paper, announcement in radio etc. for wide circulation to pr omote the excellence and quality of service, the State respondents ought to cons ider as well the needfulness of suitable amendments in the Rules. No costs.