High Court
Case Details
WP(C) 4021/2011 BEFORE HON’BLE MR. JUSTICE UJJAL BHUYAN JUDGMENT AND ORDER (CAV) Heard Mr. R.C. Saikia, learned counsel for the petitioner and Mr. K. N. Choudhury, learned Senior Additional Advocate General, Assam assisted by Mr. J. Patowary, learned Standing counsel, PWD for respondent Nos. 1 to 4 and Mr. S. Sh yam, learned counsel appearing for respondent Nos. 5 to 8. 2. By way of this petition under Article 226 of the Constitution of India, petitioner seeks quashing of select list dated 14.12.2010 for the post of Sectio n Assistant under the establishment of the Executive Engineer, Public Works Depa rtment (PWD), Rangia Rural Road Division pursuant to the advertisement dated 04. 09.2010. 3. Case of the petitioner is that respondent No. 3 issued an advertisement dated 04.09.2010 for filling up various vacancies, including 10 vacancies in the post of Section Assistant in his establishment. The break-up of the 10 vacancie s were as under:- 1) 2) 3) 4) S.T (P) OBC/MOBC S.C S.T (H) = = 1 No. = = 1 No. 4 Nos. 4 Nos. The qualification prescribed for the post of Section Assistant was H.S.L .C. examination passed. It was stated that the selection and appointment would b e made in accordance with the provisions of the Assam Public Services (Direct Re cruitment to Class III and Class IV Posts) Rules, 1997. It was further stated th at the Selection Committee would have the discretion to screen out candidates be fore holding interview. Only such of the candidates who qualify after screening would be eligible for being called for the interview and type test. It was state d that maximum marks for written test, viva-voce and type test would be intimate d in the call letters to be issued to the candidates for the written test and in terview. Petitioner belongs to the Scheduled Caste (SC) category. He applied for 4. the post of Section Assistant in terms of the aforesaid advertisement. Petitione r was issued call letter dated 04.10.2010 by respondent No. 3, who was also the Chairman of the Selection Committee to appear in the written test. It was stated amongst others that the written test would be for 100 marks. Petitioner appeare d in the written test and came out successful. Thereafter, he again received cal l letter dated 26.11.2010 issued by the aforesaid authority to appear in the viv a-voce test. In this call letter, there was no mention about the maximum marks f or the viva-voce test. However, petitioner appeared in the interview and was sat isfied with his performance. 5. Following information furnished under the Right to Information Act, 2005 , petitioner could obtain the select list published on 14.12.2010. Four candidat es were selected under the Scheduled Caste (SC) category. The marks obtained by the selected candidates under the said category and the petitioner were as under :- 1) 2) 3) 4) 5) SA / 062 SA / 063 SA / 059 SA / 060 SA / 064(petitioner) = = = = = 85/100 marks 85/100 marks 77/100 marks 77/100 marks 82/100 marks.
Legal Reasoning
The first four candidates mentioned above were selected and are responde nt Nos. 5 to 8 in the present proceeding. Though petitioner did fairly well by s ecuring 82 marks out of 100 in the written examination, he was not selected thou gh he had also performed satisfactorily in the interview. 6. Petitioner has contended that the selection was not carried out in a fai r manner. His further grievance is that unlike the call letter for the written t est which indicated the total marks of the written test, no such marks for the v iva-voce test was indicated in the call letter for the viva-voce test. Selection was made in a pick and choose manner thereby rendering the process of selection a farce. Respondent Nos. 1 to 4 have filed affidavit-in-opposition as well as add 7. itional affidavit subsequently. It is stated therein that an advertisement was i ssued by respondent No. 3 on 04.09.2010 for filling up of, amongst others, 10 po sts of Section Assistant under PWD, Rangia Rural Road Division. Number of posts for various categories were earmarked, including 4 posts for Scheduled Caste cat egory. A Selection Committee was constituted with the following members- 1) 2) 3) 4) 5)
Legal Reasoning
Shri D.C. Mazumdar, Executive Engineer, PWD, Rangia Rural Road Division. Shri Kushal Kakati, Assistant Engineer,PWD, Rangia Rural Road Division. - Chairman - Member Secy. Shri Kumar Surajit Bora, EAC, Kamrup (Rural). - Member Shri Ajit Buruah, Employment Exchange Officer, Rangia. Shri Pulin Lahkar, Sub-Divisional Officer, Irrigation Department, Rangia. - - Member Member Selection Committee in its meeting held on 29.09.2010 resolved that for 8. the post of Section Assistant, the total marks for the written test would be 100 and total marks for the viva-voce test would be 30 (20 marks for oral interview and 10 marks for performance in the H.S.L.C examination). To award marks for th e performance in the H.S.L.C examination, it was decided that marks would be awa rded in the following manner, i.e. those who had secured 30% to 35% would be giv en 3 marks, those securing between 36% to 45% would be given 4 marks, between 46 % to 55% - 5 marks, between 56% to 65% - 6 marks, between 66% to 75% - 7 marks, between 76% to 85% - 8 marks, between 86% to 95% - 9 marks and for candidates se curing 96% to 100% - 10 marks. 9. Though the total marks for the written test, fixed at 100, was mentioned in the call letter for the written test, in the call letter for the viva-voce t est, it was not mentioned. But before the beginning of the viva-voce test, the c andidates were duly informed about the marks for the viva-voce test including th e breakup. At that point of time, nobody, including the petitioner, raised any o bjection regarding non-mentioning of the viva-voce marks in the call letter. The result of the recruitment test for Section Assistant was declared on 14.12.2010 . The candidates were selected strictly in order of merit i.e. total marks obtai ned in the written test plus the viva-voce test. The marks obtained by the four selected candidates under the Scheduled Caste category and the petitioner were a s under:- Roll Nos. Total SA/060 (Respondent No.5) SA/059 (Respondent No.6) SA/062 16 marks (11 from oral + 5 from HSLC) 15 marks (10 from oral + 5 from HSLC) 11 marks (7 from oral + 4 from HSLC) Written Test Viva-Voce 77 marks 85 marks 77 marks 96 93 92 (Respondent No.7) SA/063 85 marks (Respondent No. 8) SA/064 (Petitioner) 82 marks 9 marks (5 from oral + 4 from HSLC) 8 marks (5 from oral + 3 from HSLC) 94 90 Respondents have denied that there was any unfairness in the selection o 10. r adoption of any pick and choose method. They have contended that the selection was carried out in a fair and transparent manner and the candidates were select ed on the basis of merit. Candidates were selected on the basis of the total mar ks secured i.e. marks obtained in the written test plus marks obtained in the vi va-voce test and not on the basis of the marks obtained in the written test alon e. The recruitment had to be made because of shortage of manpower. Accordingly, the selected candidates were appointed on 16.12.2010 pursuant to which they join ed their respective posts and are presently rendering service. 11. Respondent Nos. 5 to 8, who are the selected candidates, have also filed a common affidavit. They have stated that the maximum marks for the viva-voce t est were disclosed verbally to all the eligible candidates before starting the v iva-voce test. They have contended that the petitioner did not raise any grievan ce at the time of participating in the selection process. They have stated that the entire selection process was conducted in a free and fair manner pursuant to which they were selected by virtue of their merit. Following their selection, t hey were appointed on 16.12.2010 and they joined their respective posts on 18.12 .2010. 12. Mr. R.C. Saikia, learned counsel for the petitioner submits that the sel ection was not conducted as per the provisions of the Assam Public Services (Dir ect Recruitment to Class III and Class IV Posts) Rules, 1997 (Rules). Referring to Rule 5(3), he submits that instructions were required to be issued regarding the maximum marks for the written test and for the interview. Though the maximum marks for the written test was indicated in the call letter, the maximum marks for the interview was not disclosed in the call letter for the interview. This h e submits is a serious flaw. Referring to Rules 6(3) and 6(4), he submits that t he select list ought to have included more candidates than the notified vacancie s in the manner prescribed under sub-rule (4). This was not done. He also submit s that there was no typing test though Rule 6(2) provides for selection on the b asis of merit by taking into account the performance in the written test, typing test and interview. 13. Mr. Choudhury, learned Senior Addl. Advocate General on the other hand s ubmits that the grievance of the petitioner is totally misplaced. He contends th at the selection was carried out in a fair and transparent manner and respondent Nos. 5 to 8 were selected on the basis of their better performance as reflected in the total marks secured by them. Though the total marks for the viva-voce te st was not indicated in the call letter for the viva-voce test but before commen cement of the interview, the candidates were verbally informed about the maximum marks fixed for the viva-voce test. In any case, non-mentioning of the maximum marks for the viva-voce test in the call letter did not cause any prejudice to t he petitioner. He has contended that each and every minor deviation from the rul e book will not render a selection process, which was otherwise conducted in a f air and proper manner, invalid. Since petitioner participated in the viva-voce t est without raising any objection or grievance, he would be estopped from raisin g such a grievance at this stage. In support of his submissions, learned Senior Addl. Advocate General has placed reliance on the following decisions:- 2006 (3) GLT 107 Arun Deka (Dr.) and Ors -vs- State of Assam and Ors (2008) 4 SCC 171 Dhananjay Malik and Others -vs- State of Uttaranchal and Others. Mr. Choudhury has also placed before the Court the original selection re cord. 14. In his brief reply, Mr. Saikia submits that when certain procedure is pr escribed in the Rules, the same has to be followed. He submits that considering the high marks secured by the petitioner in the written test, his exclusion from the final select list raises bonafide apprehension in the mind of the petitione r about the fairness of the oral interview. 15. Submissions made have been considered. Also perused the record produced. From a perusal of the averments made in the writ petition and after hear 16. ing the submissions of the learned counsel for the petitioner, the grievance of the petitioner appears to be as under:- (i) r. Maximum marks for the viva-voce test was not disclosed in the call lette (ii) (iii) There was no typing test as required under the Rules. Marks given to the petitioner in the oral interview were not com mensurate with his performance and also with the marks secured by him in the wri tten test. (iv) the number of vacancies. The select list should have contained the names of more candidates than 17. Though Rule 5 (3) requires the Administrative Department to issue instru ctions on amongst others, as to whether, there would be written test, and if so, the maximum marks for such written test and than as to whether, there would be interview, and if so, the maximum marks for the interview. In the advertisement, it was stated that the maximum marks for the written test and viva-voce test wo uld be indicated in the call letters to be issued to the candidates for the writ ten test and for the interview. As already noticed, the maximum marks for the vi va-voce test were not indicated in the call letter for the said test. Respondent s have stated that the Interview Board before commencing with the interview had informed the shortlisted candidates appearing in the viva-voce test about the ma rks fixed for the said test and its break-up. Petitioner did not raise any objec tion or grievance either before the viva-voce test or during the viva-voce test about non-mentioning of the maximum marks for the viva-voce test in the call let ter. In fact, no objection by way of any representation was submitted by the pet itioner even after the interview was over. He took a calculated chance and waite d for the result to be declared. Only when he found that he was not selected, he instituted the present challenge raising the above grievance. This is not permi ssible. In such circumstances, petitioner is estopped from raising the objection at this stage. The decisions in Arun Deka(supra) and Dhananjay Malik(supra) mak e this position clear. 18. Coming to the contention of the petitioner that there was no typing test , respondents in their affidavits have stated that the procedure prescribed by R ule 6 are general prescription which would depend upon the nature of work of the post. Section Assistants are utilized in the supervision of field works and, th erefore, typing test was not included as desired qualification for the said post . In the advertisement dated 04.09.2010, it was one of the qualifications prescr ibed for the post of LDA and not for the post of Section Assistant. There is suf ficient force in the contention of the respondents on this point. As the adverti sement did not mention typing skills as one of the qualifications for the post o f Section Assistant, petitioner cannot insist that there should have been typing test in the selection for the post of Section Assistant. In any case, he did no t raise any objection in this regard either before the selection or during the s election or immediately after the selection. 19. Since selection was to be made on the basis of merit by taking into acco unt the performance in the written test and the interview as per Rule 6(2), peti tioner cannot contend that he should be selected on the basis of his performance in the written test alone. Considering the scheme of selection, selection was o n the basis of total marks secured in both the segments. Moreover, just because petitioner had secured good marks in the written test, it does not mean that he will secure equally good marks in the oral interview. Coming to the contention t hat the select list should have contained more numbers of selected candidates as per Rule 6(4), non-conformity with the said provision, in the opinion of the Co urt, would not render the selection invalid. Every deviation or departure from t he procedural requirements may not be fatal to the selection process. Only in th e case of such deviation which materially affects the selection, the selection m ay be vitiated. 20. I have perused the selection record produced by the learned Senior Addl. Advocate General and I am of the view that there is no infirmity in the selecti Therefore, in view of the discussions made above, this Court finds no me
Decision
on. 21. rit in the writ petition, which is accordingly dismissed. 22. 23. No cost. Record produced is returned back.