Judgment · High Court · 2006

(A.K.Goel, CJ.) This appeal has been preferred against dismissal of the writ petition of the appellant challenging the selection and appointment of Pharmacists in the D epartment of Health and Family Welfare of the State of Assam. Vide advertisement dated 6.10.2006 (Annexure-E) applications were invited for recruitment of 86 Ph armacists by the Directorate of Health Services. The appellant was one of the ca ndidates. He was not selected. 86 candidates were given appointments after due s election as per Assam Pharmacist Service Rules, 1986.

#2. Contention raised on behalf of the appellant was that the appointing aut hority was the Chief Medical and Health Officer and the selection was required t o be conducted Districtwise. The selection through oral interview provided room for manipulation and, thus, in absence of written test, the selections were inva lid. Power of relaxation could not have been exercised for conducting centralize d selection.

#3. Writ petition was opposed by the department by submitting that under Rul e 6(b), the basis for selection was oral interview and academic performance of t he candidates which was valid. Centralized selection was considered necessary in the exigencies of the administration as the said employees could be posted anyw here in the State. Necessary relaxation was duly made. The selection held was fa ir. After the appellant participated in the selection process, he could not chal lenge the same.

#4. Learned Single Judge upheld the exercise of power of relaxation having r egard to the scheme that the members of service could be posted anywhere in the State. It was observed that the petitioner had not pleaded any prejudice and had participated in the selection process without any grievance. It was further obs erved that the Director of Health Services was the head in the hierarchy and no objection could be taken to conferment of power on him, instead of Chief Medical and Health Officer to conduct selection. The relevant observations are : As per the requirement of Rule 6 of the aforesaid Rules, direct recruitm (cid:28)14. ent to the cadre of Pharmacist shall be made by the appointing authority which i s the Chief Medical & Health Officer. Rule 24 of the Rules provides for mode of employment in terms of which members of the service shall be employed in such ma nner as the appointing authority may decide. Further provision made is that a me mber of the service shall be liable to be posted any where within the State of A ssam or outside Assam or to any other department of the Government.

#15. In the instant case, by the aforesaid notification dated 07.07.2007 the Govt. of Assam in the Health & F W Department invoked the power of relaxation as provided under Rule 26 of the Rules. By order dated 06.07.2007, the Govt. of As sam in the same department constituted a Selection Board for selection of candid ates for the post of Pharmacist. The Selection Committee was headed by the Direc tor of Health Services, Assam with six other members of the Health Department. B y the said order the Govt. of Assam empowered the Chairman to conduct the interv iew in two groups simultaneously with the members indicated in the order. To tha t extent, the Rules requiring for appointment to be made district wise by the ap pointing authority stood relaxed.

#16. In none of the writ petitions it has been pleaded that because of such r elaxation there was any prejudice caused to the candidates in the matter of sele ction. In fact, all the petitioners duly participated in the selection without r aising any grievance. Now they have filed the writ petitions questioning the ver y selection conducted by the aforesaid Committee headed by the Chairman i.e. the Director of Health Services. (cid:29)

#5. We have heard learned counsel for the parties.

#6. Learned counsel for the appellant submits that the appointing authority being the Chief Medical and Health Officer and there being provision for Distric twise selection as per Rule 13(2), the appellant could not be required to compet e at the State level. It was further submitted that interview alone could not be the basis for selection. In support of this submission, learned counsel has pla ced reliance on judgments of the Supreme Court in Anzar Ahmad vs. State of Bihar and others, AIR 1994 SC 141 and Inder Prakash Gupta vs. State of J&K and others , (2004) 6 SCC 786. Learned counsel for the department supports the impugned jud gment.

#7. We are unable to accept the submissions made on behalf of the appellant. Apart from the Rules, there is no right for any candidate to insist on District wise selection. Rule 24 of the Rules provides that a member of the service is li able to be posted anywhere in the State and even in any other Departments. Thou gh in Rule 13(2), the Board for selection of Pharmacist is to be headed by the C hief Medical and Health Officer, nothing prevents the Government in relaxing the Rule by exercise of statutory power under Rule 26 when such exercise is meant f or advancement of a legitimate policy for making selection at State level. Admit tedly, the employees are liable to serve anywhere in the State. While it is true that mere participation in selection process does not debar a person to raise t he question of illegality in the selection, as there is no estoppel against law, in absence of any illegality in selection, the same could not be interfered wit h. No prejudice has been caused by State level selection. There is no merit in t he contention that selection was not be permissible without written test only wi th reference to interview. Judgments relied upon make it clear that unless writt en test is provided under the Rules, selection on the basis of interview cannot be held to be invalid. In the present case, the Rule has not been challenged. Mo reover, the selection is not based only on interview but on the basis of intervi ew and the academic performance of the candidate. The judgments relied upon do n ot help the appellant.

#8. It is not disputed that the selected candidates have already joined and have been serving for more than four years. Interference at this stage may not b e called for on that ground also.

#9. We, thus, do not find any merit in this appeal. Dismissed.