High Court · 2012

7. By Annexure -4 representation dated 12.07.2009 made to the Commissioner of Lower Assam Division, Guwahati, some of the Senior Assistants working in the establishment of the Deputy Commissioner, Darrang urged upon the said Commission er not to give effect to the recommendation made in favour of the respondent No. 4 on the ground that they are all senior to him. Before that the present petit ioner filed a writ petition being W.P.(C) No. 2048/2009 making a grievance that the respondent No. 4 was illegally recommended in violation of the Rules and tha t he being the senior most Sr. Assistant, ought to have been considered for reco mmendation. The writ petition was disposed of directing the Commissioner of Lowe r Assam Division to take an appropriate decision in the matter.

8. After the aforesaid order of this Court, the Commissioner of Lower Assam Division, Guwahati issued Annexure-7 order dated 01.07.2009 accepting the recom mendation made by the selection committee for appointment of the respondent No. 4 as Sadar Head Assistant in the office of the Deputy Commissioner, Darrang, app ointed him as such. W.P. (C) No. 4336/2010

9. This writ petition is concerned with the further appointment of the resp ondent No. 4 to the post of Administrative Officer by the impugned order dated 2 5.06.2010. According to the petitioner, the respondent No. 4 was promoted in dis regard of the provisions of the Rules. It is the plea of the petitioner that the respondent No. 4 has been given both the promotions in view of his close nexus with the successive Deputy Commissioners of the District, he having worked in th e confidential branch of the Deputy Commissioner’s establishment. It is the plea of the petitioner that the respondent No. 4 having lacked the requisite experie nce of working in different branches and he being confined only to the confident ial branch of the Deputy Commissioner’s establishment, could not have been recom mended for promotion. Counter Affidavits

10. The respondents, both official and private, have filed their counter aff idavits. In the said affidavits, it has been contended that the selection for bo th the posts were conducted in accordance with the rules and that the candidatur es of all the candidates were considered. Altogether 5 (five) applications were received and the candidatures were accepted on being eligible for consideration . In the affidavit filed by the official respondents, direction of the Assam Adm inistrative Tribunal relating to selection/recommendation of the candidates to t he post of Head Assistant circulated vide Govt. letter No. GAG(B) 107/98/236 dat ed 01.07.1999 has been referred to. The direction is as follows: (cid:28)It is necessary for us to emphasise in clear terms that the assessment of the c omparative merit and ability of every individual eligible candidate for selectio n for appointment to the post of Revenue Sheristadar or Head Assistant in the am algamated establishment of the Deputy Commissioner of any district in the State of Assam by the Selection Board, consisting of the Deputy Commissioner of the di strict and all Sub-Divisional Offices under him in the district or the final sel ection by the concerned Commissioner of Division strictly on merit for appointme nt to the post of Revenue Sheristadar or Head Assistant in the amalgamated estab lishment of the Deputy Commissioner of the district under his Sub-Division shall be on the basis of the assessment of the Annual Confidential Report of every el igible candidate and other relevant service records and not on any other basis s uch as interview or viva voce. (cid:29)

11. The affidavit further states that as per the requirement of the Rules, a committee was constituted with all the three Sub-Divisional Officers, (Sadar) a s members and the Deputy Commissioner as the Chairman. The selection committee u pon scrutiny of the records such as service books, ACRs and other relevant paper s of all the five eligible candidates including the petitioner and the responden t No. 4 and upon assessment of the comparative merit and ability of the candidat es, recommended the respondent No. 4 for appointment to the post of Sadar Head A ssistant. It has been stated that since all the candidates have been working in the same amalgamated establishment of the Deputy Commissioner’s office all throu ghout their service career, it was not be difficult on the part of the Deputy Co mmissioner and other members of the selection committee to assess the ability, s uitability, merit etc. on the basis of their service profiles, ACRs etc. The aff idavit also refers to earlier selection held on 08.01.2001 applying the same nor ms.

12. After the selection was made the minutes of the selection committee alon gwith ACRs, service particulars, service books etc. were forwarded to the Commis sioner, Lower Assam Division. It has been stated that the representation made by the petitioner was also forwarded to the said Commissioner by a special messeng er. The Commissioner on perusal of the relevant records passed the impugned orde r dated 01.06.2009. As regards the appointment to the post of Administrative Officer, the af 13. fidavit filed by the official respondents states about constitution of the selec tion committee towards consideration of the applications received for the post o f Administrative officer. It has been stated that the selection committee took i nto account the service records, educational qualification, working experience a nd ACRs of the candidates. The selection committee decided to evaluate the merit of the candidates with categorisation of outstanding, very good and good. The A CRs of the last five years were considered. While considering in such a manner, the selection committee found the respondent No. 4 to be the best candidate wit h gradation (cid:28)outstanding (cid:29). As regards the allegation of close nexus of the respo ndent No. 4 with the successive Deputy Commissioners, the affidavit denies the s ame. In the counter affidavit filed by the respondent No. 4, it has been stat 14. ed that the selection having been conducted as per the criteria laid down in the Rules, there is nothing wrong in his appointment as Sadar Head Assistant and Ad ministrative Officer. According to him, with his further appointment to the post of Administrative Officer, the earlier writ petition being W.P.(C) No. 3047/201 0 in which his appointment to the post of Sadar Head Assistant is under challeng e, has become infructuous. He has stated in the affidavit that the selection com mittee having conducted the selection as per the procedure laid down in the Rule s, the writ court will not sit on appeal over such selection and assessment made by the selection committee.

15. I have heard Mr. A.B. Choudhury, learned Sr. counsel assisted by Mr. Wis e Imran, learned counsel for the petitioner. I have also heard Mr. N. Upadhya, l earned State counsel as well as Mr. K.K. Dey, learned counsel appearing for the respondent No. 5. I have also perused the relevant materials.

16. Mr. Choudhury, learned Sr. counsel for the petitioner emphasising the ne ed for a proper assessment of merit with due regard to the service profile of th e eligible candidates, submitted that the petitioner being senior to the respond ent No. 4, the selection committee ought to have considered that aspect of the m atter while making the recommendation to the post of Sadar Head Assistant and Ad ministrative Officer. According to him, the advertisement for the post of Sadar Head Assistant having prescribed an interview for selection, such interview ough t to have held instead of making recommendation solely on the basis of the servi ce records. He also submitted that the respondent No. 4 having all along worked as confidential assistant and being attached to the confidential branch of the e stablishment, he had the opportunity to meet the Deputy Commissioner frequently and consequently could influence in recording better gradings in his ACRs. He s ubmitted that the correct procedure of selection having not been followed and th ere being element of colourable exercise of power in recommending the respondent No. 4 by the Deputy Commissioner, the selection is not legally valid and conseq uently the appointment of the respondent No. 4 to both the posts are liable to b e set aside and quashed. He has placed reliance on the following decisions. 1) 2) 3) 4) & ors.)