High Court
Case Details
WP(C) 1875/2010 B E F O R E HON’BLE MRS. JUSTICE ANIMA HAZARIKA JUDGMENT & ORDER (ORAL) The petitioner has challenged the selection of respondent No. 4 to the p ost of Lower Division Assistant in the office of the Executive Engineer (’EE’ fo r short), Public Work Department (’PWD’ for short), North Lakhimpur Building Div ision, Lakhimpur Assam. 2. Heard Mr. TJ Mahanta, learned counsel assisted by Ms. P Bhattacharyya, l earned counsel appearing for the petitioner. Also heard Mr. YS Mannan, learned S tanding Counsel, PWD, appearing for respondent Nos.1, 2 and 3 and Ms. E Sharma, learned counsel appearing for respondent No.4. The learned Standing counsel PWD has produced the relevant record of the case. I have perused the same.
Legal Reasoning
The pleaded case of the petitioner is that in response to an advertiseme 3. nt issued by the Respondent No. 3, EE, PWD, North Lakhimpur Building Division fo r filling up of 2 posts of Lower Division Assistant (’LDA’ for short), she along with other candidates submitted their applications. She was thereafter subjecte d to selection tests along with other candidates which comprised of written test s, typing tests, computer application test and viva voce. It is also her case th at in each of the 4 segments of test, qualifying marks were fixed. The petitione r alleges that although she stood second in the selection test, she was illegall y deprived and in her place the respondent No. 4 was shown to have secured the s econd position. There is no allegation against the person who secured first posi tion. It is thus the case of the petitioner that if she was not deprived of her legitimate second position in the Merit List, by way of interposing the responde nt No. 4 who according to the petitioner had failed to secure minimum qualifying marks fixed for Typing Test and Computer Application Test, she would have bagge d the second advertised post.
Legal Reasoning
The Respondent Nos.1, 2 and 3 have filed an Affidavit-in-Opposition, Par 4. agraph 9 whereof can be gainfully quoted hereinbelow to summarise the stand of t he Official Respondents :- (cid:28) &.the selection test for the two posts of LDA consisted of written, typing, com puter application and viva-voce test. No qualifying marks, whatsoever, were pres cribed for each of the individual subjects/categories of test. However, the Chai rman of the Selection Committee did propose to introduce qualifying marks/pass m arks for each of the subjects/categories but the same was not accepted by the ot her Committee members from the other Departments and they (the other Committee m embers) insisted that total marks obtained by the candidates in the selection te st shall be the sole criterion for selection of the said two posts of LDA. As su ch, the question of the respondent No. 4 not getting the so called (cid:28)qualifying m arks (cid:29) in typing and computer application tests is not tenable nor does it take a nything away from the fact that the Respondent No. 4 secured the second highest marks in the said post and thus, he was eligible for appointment to the post of LDA along with the other candidate viz. Ms. Deepamoni Deori. (cid:29)
Decision
The pleaded case of the respondent No. 4 is that he satisfies all the el 5. igibility criteria prescribed for the advertised post and in the written test as well as viva voce examination conducted by the Selection Board, the respondent No.4 obtained higher marks. While the Respondent No. 4 obtained 61.90 marks out of the total marks of 100, the writ petitioner secured 58.70 marks. Thus, he hav ing secured more marks in aggregate, the writ petitioner does not have any legit imate claim to the post. 6. The writ petitioner has filed an affidavit-in-reply against the affidavi t-in-opposition filed by respondent Nos.1, 2 and 3, wherein she has produced the Final Compilation List of the Selection Test for filling up of 2 vacant LDA Pos ts under PWD, North Lakhimpur Building Division containing the signatures of 4 m embers of the Selection Committee including the respondent No.3 out of the 5 mem bers Committee. This document is not challenged either on pleading or even at th e time of hearing of this petition. Rather, the contents of a letter No.Esstt.11 2/2006/1023 dated 18.02.2010, appearing at Page 10 of the affidavit-in-reply (An nexure B) to the affidavit-in-opposition of the official respondents, text where of is reproduced herein below, goes to indicate the actual situation prevailing during the selection process :- (cid:28) &.After compiling the marks obtained by the candidates in various subjects viz Written test, Test on Computer Application, Type Writing etc, it was observed th at some candidates showed very poor results in certain vital subjects like type writing etc., even though they secured higher total marks. Since the type writin g and knowledge of Computer application are very much essential for the posts of L.D.A. Hence it was requested from the Chair to introduce the minimum Pass Mark s for each subject for qualifying and accordingly the result sheet was prepared. But the members from other Deptt. refused to introduce the Pass Marks and insis ted on Total Marks obtained by the candidates for considering as sole criterion for selection. But it will be difficult to engage the selected candidate in work who has not se cured minimum pass marks in Type Writing, Computer Application etc. & & & & & & & & & & & & & & & & & & & & (cid:29) 7. Learned counsel appearing for the respondents have stated at the Bar tha t the recruitment process to the advertised post being a Class III post shall be guided by the Assam Public Services (Direct Recruitment to Class III and Class IV posts), Rules 1997 as contained in Notification No.ABP. 28/97/10 dated 1.08.1 997. Rule 6(2) thereof is of prime relevance for the purpose of adjudication of dispute in this case and the same is quoted hereinbelow :- (cid:28)6. Selection Procedure-(1) & & & & & & (2) The Selection shall be made on the basis of merit by taking into account the performance in the written test, typing test and interview with ref erence to the mode of Selection as laid down by the Government instruction issue d by the Administrative department under the provision of sub-rule (3) of the Ru le 5 with due regard to the reservation for the Scheduled Caste, Scheduled Tribe s (Plains), Scheduled Tribe (Hills) OBC/MOBC etc., as per the provisions of the Assam Scheduled Caste and Scheduled Tribes (Reservation of Vacancies in Services and Posts) Act, 1978 and the Rules framed there-under and the Government instru ction, in whose case also, the selection is to be made on the basis of merit amo ngst the candidates of the respective Reserved category. (cid:29) 8. Evidently the Final Compilation List depicts the following position as r ecorded by the Selection Board in respect of the writ petitioner and the respond ent No. 4 whose names appear at Sl Nos. 14 & 13 respectively in the said Final C ompilation List dated 1.11.2009 :- (cid:28) & & & & & &.. & & & & & & & (T.M.= Total Mark) (Q.M.= Qualifying Mark) Roll No. Name of Candidates Written test T.M.= 60 Q.M.= 24 MARKS AWARDED Type (practical) T.M.= 10 Q.M.= Computer Application (practical) T.M.= 15 Q.M.= 7.5 Viva-voce Total Marks obtained by Qualified candid 3 Whether Qualified or not Yes/No & ates 3 1 & 2 4 5 6 7 8 9 1 & & & & & & &. & &.. & & & & &. & & &.. & & & & & & & 10 & 2. &. 13 & 14 & & & & & & &.. & & & &.. & & &. & &. & & & & &.. & & & & & &. & &.. & &.. & & & & & & &.. & & &. & & &.. & Sri Bhupen Deori & Miss Binumai Doley & & &. & & & &.. 48 36 1.3X 3.5 6X 13 6.6 6.2 NO Yes & &. & &. & & & &. & & & & 61.90 58.70 & & & & & & & & & & & & & & & & & & & & & & (cid:29) 9. It is interesting to note that the above Compilation List projects that qualifying marks were prescribed by the Selection Board and the respondent No.4 having failed to secure the prescribed qualifying marks for Type and Computer Ap plication tests, he was marked as not qualified. It also reveals that at the col umn (cid:28)Position (cid:29), the writ petitioner appearing at Sl. No. 14 was initially shown as holding (cid:28)2nd (cid:29) position and the same was cut and respondent No.4 appearing at Sl. No.13 of the list was shown to have got (cid:28)2nd (cid:29) position. 10. This brings us to the crux of the matter: whether the candidates are to be selected simply on the basis of total marks obtained by them in aggregate or the individual qualifying marks fixed for each subject hold any field? 11. A reading of the provisions of Rule 6(2) (supra) pointedly indicates tha t selection shall be made on the basis of merit by taking into account the perfo rmance in Written Test, Typing Test and also interview. Thus the performance of the candidates in each of the segments of the Selection Test has to be taken int o account and mere total aggregate marks obtained by a candidate is not the benc h mark. Fixing a minimum qualifying marks in each of the segments of the Selecti on Test, namely, Written Test, Typing Test, Computer Application and Viva Voce t hus appears to be a reasonable and rational criteria to achieve the intention of the rule maker in judging the performance of the candidates in each of the segm ent of the tests. 12. Having held as above, the natural consequence of the Selection Proceedin g should have been disqualifying the respondent No.4 for his not having secured the minimum qualifying marks fixed for Type and Computer Application Tests. In f act, he was held to be not qualified in the selection process but was declared t o have secured 2nd Position on merit under circumstances revealed both in the af fidavit of the respondent Nos.1, 2 and 3 as well as letter dated 18.02.2010 quot ed above. There is no escape from the inevitable conclusion that the respondent No. 4 having failed to secure minimum qualifying marks in two qualifying segment s of the Selection Test could not have been declared 2nd position holder in the Merit List defying the mandate of the above Rules. 13. Consequently, the selection of respondent No. 4 and his consequent appoi ntment, if any, made to one of the advertised posts of Lower Division Assistant under the Office of the respondent No.3 is quashed. The authorities shall now ta ke all steps to consider appointment of the writ petitioner in the resultant vac ant post of Lower Division Assistant by virtue of her securing 58.70 total marks which is admittedly the 2nd highest mark obtained amongst the qualified candida tes. The entire process shall be completed within a period of 2 (two) months fro m today. 14. osts. With the above direction, the writ petition is allowed. No order as to c 15. It is submitted at the Bar that in compliance of the order dated 19.03.2 010 passed by this Court, respondent No.4 has not been allowed to join in the po st and at present the post of LDA in the office of the EE, PWD, North Lakhimpur Division is lying vacant . 16. Registry is directed to send down the records forthwith.