High Court
Case Details
WP(C) 5890/2009 BEFORE THE HON’BLE MR. JUSTICE UJJAL BHUYAN J U D G M E N T AND O R D E R (ORAL) Heard Ms. S.P. Hussain, learned Counsel for the petitioner and M s. B. Dutta, learned Government Advocate, Assam, who has also produced the recor d. 2. In this writ petition, petitioner seeks quashing of select list dated 17-12-2009 published by the Principal Chief Conservator of Forests and Hea d of Forest Force, Assam for the post of Forest Guard. Petitioner also seeks qua shing of the selection and appointment of the candidates against the post of For est Guard pursuant to the advertisements dated 02-02-2008 and 08-09-2008. 3. Case of the petitioner is that he was engaged as a casual worker in the Dibrugarh Forest Division under the Forest Department, Government of Ass am in the year 2001. In the year 2006, considering his computer operating skill, service of the petitioner was utilized as a computer operator and he has been w orking as such since then. 4. An advertisement was published by the Principal Chief Conservato r of Forests, Assam (respondent No.2) on 02-02-2008 inviting applications from e ligible candidates for various posts, such as, Forester Grade-I, Forest Guard/Ga me Watcher, Grass Cutter, Junior Assistant (Directorate Level), Junior Assistant (Divisional Level) and AFPF Constable. 5. Another advertisement dated 08-09-2008 was issued by the respond ent No.2 for various posts, including the post of Forest Guard. In this advertis ement, it was stated that working casual workers/ departmental candidates of the Forest Department would be given priority by the appointing authority.
Legal Reasoning
Pursuant to the above advertisements, petitioner submitted appli 6. cations for the posts of Forester Grade-I, Forest Guard and Junior Assistant (Di visional Level). Petitioner appeared in the written examination in respect of al l the above three posts. However, petitioner could come out successful in the wr itten examination only for the post of Forest Guard. As he qualified in the writ ten examination, he was called to appear in the physical fitness test and viva-v oce scheduled on 13-10-2009. Physical fitness test for male candidates was a wal king test of 26 km required to be completed within 4 hours. According to the pet itioner, he appeared in the physical fitness test as well as in the viva-voce on the scheduled date. He stood first in the physical fitness test and performed e xtremely well in the viva voce. 7. On 17-12-2009, the final select list of Forest Guard/Game Watche r was published by the respondent No.2. Petitioner’s name, rather his roll numbe r, was not included in the said select list dated 17-12-2009, which was publishe d in the daily English language newspaper (cid:28)The Assam Tribune (cid:29). 8. s filed the present writ petition seeking the reliefs as indicated above. Aggrieved by his non-inclusion in the select list, petitioner ha 9. Contention of the petitioner is that the select list was manipulated at the instance of the (cid:28)Concerned minister (cid:29). Most of the selected candidates belong to the Minister’s constituency and some of them did not even appear in the phys ical test or viva-voce. Petitioner being a working casual worker of the departme nt, he should have been given priority as per the advertisement. 10. An affidavit was filed on 19-05-2010 on behalf of respondent No. 2. It is stated that as per Government instruction, advertisements were issued o n 02-02-2008 and 08-09-2008 for filling up the vacant posts of Forest Guard and other posts in the Environment and Forest Department. Written test was held on 1 5-02-2009. List of candidates who qualified in the written test was notified on 18-06-2009, which was published in two daily news-papers, namely (cid:28)The Assam Trib une (cid:29) and (cid:28)Aji (cid:29). Petitioner was successful in the written test. Thereafter, physi cal fitness test and viva-voce was held on 05-10-2009. Final select list was not ified on 07-12-2009, which was published in the above two newspapers. The select ion process was, amongst others, for 178 posts of Forest Guard, the breakup of w hich was as follows:- ST (P) ST (H) SC OBC/MOBC UNRESERVED --- --- --- 14 08 12 --- --- --- TOTAL 48 96 178
Decision
Respondent No.2 has asserted that candidates were selected on the basis of merit . Allegations made in the writ petition have been denied. 11. An additional affidavit was filed on behalf of respondent No.2 o n 14-02-2011. In this affidavit, it is stated that petitioner had qualified in t he written examination and also in the physical fitness test. The physical fitne ss test was qualifying in nature and carried no marks. Due weightage was given t o the performance, qualification, experience and other qualities while assessing the relative suitability of the candidates as per the requirement of the job. T he candidates were selected on merit. Petitioner belongs to the general category . He secured 56 marks in the written examination and 22 marks in the viva-voce i .e. 78 marks in total. The last selected candidate under the general category ha d secured 84 marks. Therefore, petitioner could not be selected. The list of sel ected candidates has been annexed to the additional affidavit. 12. Respondent No.2 had filed a further affidavit on 21-09-2011. It is stated that respondent No.2 had issued an order on 14-07-2009, modified on 16 -09-2009, constituting a committee to conduct the viva-voce test. The committee comprised of the following :- (1) Dr. R.M. Dubey, IFS, Chief Conservator of Forests. Chairman --- (2) (3) (4) Shri A.S. Lashkar, IFS, DCF, Enforcement. --- Member Secretary Shri T.K. Das, IFS, CF (HQ). Shri S.K. Bora, IFS, PO-II. --- --- Member Member It is stated that altogether 2114 candidates were called for viva-voce, which wa s held from 05-10-2009 to 23-10-2009. 50 marks were allotted for viva-voce. Thus , the marks earmarked for written examination and viva-voce were 75 and 50 respe ctively, the total being 125. Petitioner secured 56 marks out of 75 in the writt en test and 22 marks out of 50 in the viva-voce. Thus, he secured 78 marks in to tal out of 125. As the last selected candidate under the general category had se cured 84 marks, petitioner could not be selected. 13. Learned Counsel for the petitioner submits that though 62 posts of Forest Guard were advertised, the select list contained 178 selected candidat es, which is indicative of some foul play. Though it is not pleaded in the writ petition, learned Counsel for the petitioner has argued that the marks allotted for the viva-voce i.e. 50 was not indicated in the advertisement. She also submi ts that the marks allotted for viva-voce i.e. 50 out of 125 was unreasonably hig h considering that the recruitment was for the post of Forest Guard, which had a crucial impact on the selection. While the petitioner secured good marks in the written examination, he was given low marks in the viva-voce. As the viva-voce segment carried disproportionately high marks, it adversely affected petitioner’ s chances of selection. Court should therefore intervene in the matter. In suppo rt of her submissions, learned Counsel for the petitioner has placed reliance on the following decisions:- (1) (1981) 4 SCC 159 Lila Dhar -Vs- State of Rajasthan and others Mohinder Sain Garg -Vs- State of Punjab and others (2) (1991) 1 SCC 662 (3) (1994) 1 SCC 150 Anzar Ahmed -Vs- State of Bihar and others Jasvinder Singh and others -Vs- State of Jammu and Kashmir and others (4) (2003) 2 SCC 132 (5) (2003) 9 SCC 401 Vijay Syal and another -Vs- State of Punjab and others (6) Inder Parkash Gupta -Vs- State of Jammu and Kashmir and others (2004) 6 SCC 786 (7) Jitendra Kalita and others -Vs- State of Assam and others 2006 (2) GLT 654 Manish Kumar Shahi -Vs- State of Bihar and others (8) (2010) 12 SCC 576 Ms. B. Dutta, learned Government Advocate on the other hand subm 14. its that there is no infirmity in the selection process. Petitioner had particip ated in the selection but could not be successful. Therefore, he cannot now turn around and contend that the selection was illegal. No case for interference is made out. Learned Government Advocate has also produced the record. 15. ecord produced. Submissions made have been considered. I have also perused the r 16. In the advertisement dated 02-02-2008, a total of 116 posts of F orest Guard / Game Watcher was advertised. It was stated that selection test wou ld comprise of a written test of 2 hours duration for 75 marks, physical fitness test and viva-voce. In the later advertisement dated 08-09-2008, a total of 62 posts of Forest Guard was advertised. The nature of the selection to be conducte d was the same as mentioned in the earlier advertisement dated 02-02-2008. Thus, a total of 178 posts of Forest Guard (116 + 62 = 178) was advertised by the two advertisements. Though in the advertisements it was mentioned that there would be a written test of 2 hours duration for 75 marks covering (a) General mathemat ics, (b) English and vernacular dictation and (c) General Knowledge, no such mar ks were indicated in the advertisements for the physical fitness test and viva-v oce. Subsequently, it has been stated in the affidavits filed by respondent No.2 that the physical fitness test was of qualifying nature with no marks being all otted whereas 50 marks were allotted for the viva-voce. In my opinion, there is no infirmity in the above procedure adopted by the respondents. It was sufficien t to indicate in the advertisements that the written examination carried 75 mark s as it was the first hurdle which the candidates had to overcome. Since the phy sical fitness test was again a qualifying test with no marks being allotted, the question of indicating marks allotted for the said test in the advertisements d id not arise. In so far viva-voce was concerned, it was decided that it would ca rry 50 marks. It would have been more appropriate if the allotment of such marks for the viva-voce was indicated in the advertisements. But failure to disclose the same in the advertisements would not be fatal to the selection. 17. On the argument that allotment of 50 marks for viva-voce out of a total of 125 marks i.e., 40% of the total marks is disproportionately high, I am of the view that contention of the petitioner may have some merit as the sele ction was for the post of Forest Guard where personality test or personal assess ment may not have much relevance. However, it is a settled proposition that ther e is no hard and fast rule of universal application for allocating marks for viv a-voce vis-à-vis marks for written examination. The percentage of marks for viva -voce which can be regarded as unreasonable will depend on the facts of each cas e. Coming to the present case, considering the fact that the selection was for t he post of Forest Guard, allocation of 50 marks in the viva-voce out of a total of 125, which is 40% of the total marks, appears to be on the higher side. Howev er, I am not inclined to set aside the selection on this ground, firstly, becaus e this point has not been pleaded by the petitioner and, secondly, the selected candidates have not been impleaded as parties in the present proceeding. From th e record it is also seen that the selected candidates had already been appointed . As such, prayer of the petitioner for quashing of the select list and the appo intments made cannot be granted in the absence of the selected candidates. Howev er, this aspect of the matter i.e., allocation of higher marks in the viva-voce may be looked into by the authority of the Forest Department in case of future r ecruitment. 18. The other ground raised by the petitioner that the selection was influenced by the (cid:28)Concerned Minister (cid:29) cannot be accepted as the petitioner has not described or identified who that concerned Minister is. The allegation is v ague and devoid of any specifics. In the absence of any particulars, the above g round urged cannot be gone into. 19. In view of the discussions made above, deliberations on the case laws cited above is considered not necessary. 20. granted. 21. der as to cost. 22. ack. In view of above, reliefs sought for by the petitioner cannot be Writ petition is accordingly dismissed. But there shall be no or Record produced by the learned Government Advocate is returned b