High Court · 2009

By this petition, the selection and appointment given to respondent No. 6 in the post of Head Assistant-cum-Accountant in Chabua Town Committee by the appointme nt order dated 5.2.09 issued by the Chairman is under challenge. The petitioner challenges the appointment with the allegation, that the recruitment process ha s been vitiated by the participation of only 3 out of the 8 members of the Selec ting Body, notified to make the selection. The selection is also challenged on the ground that the respondent No. 6 was giv en undue benefit for extraneous consideration, by interpolation of the marks in the column of General Knowledge, because of which the respondent No. 6 was show n as securing the highest marks, and the writ petitioner was brought to the 2nd position in the selection process. Pursuant to the orders passed by this Court, the selection records in original, have been made available for perusal of the Court by Mr. P.J. Saikia, learned co unsel representing the Chabua Town Committee. Mr. R.P. Sarmah, learned Senior Counsel representing the selected candidates sub mits that since the writ petitioner has participated in the selection process he , after failing to secure the appointment, has no right to challenge the selecti on. In this context, the learned counsel relies upon the decision of the Apex Co urt in the case of Madan Lal vs. State of Jammu and Kashmir reported in AIR 1995 SC 1088 . The learned counsel also refers to another Supreme Court decision in the case of Sadananda Halo vs. Momtaz Ali Sheikh reported in (2008) 3 GLT (SC) 1, where the Supreme Court re-affirmed the law that, through a writ petition, a roving enqui ry on the factual aspects of the recruitment process should not be made. In the present case, there is no dispute in the Bar that the selection, on the b asis of which the respondent No. 6 was recommended, was undertaken by only 3 of the 8 member Committee. These three were the Chairman, Vice Chairman of the Chab ua Town Committee and the Special Employment Officer. The other 5 selection comm ittee members had not participated in the selection process. But despite the abs ence of majority of the members, the selection was not deferred. It further appears from the records produced that a decision was taken, without notifying in the advertisement, to give preference to Graduates of Commerce stre am. It may be noticed that writ petitioner herein is an Arts Graduate, whereas t he respondent No. 6 is a Commerce Graduate. It is also a fact that the terms of the Chairman of the Town Committee expired o n 6.2.09 and as already noted, respondent No. 4 has not appeared in the Court de spite serving of notice, although it is alleged against her that the respondent No. 4 on the eve of laying down office got the appointment order issued on 6.2.0 9 in favour of respondent No. 6 was issued on 6.2.09, a day before she demitted office. Normally a Court would be reluctant to entertain a challenge to a selection proc ess, by a candidate who unsuccessfully participated in the selection. This is a law laid down by the Supreme Court in Madan Lal (supra) and other cases, relied upon by the learned counsel appearing for the respondent No. 6 who has been reco mmended. But on examination of the decision in Madan Lal (supra) it is clear that the sai d decision was rendered, by taking note of the members of the Selection Committe e, which was consisting of a sitting High Court Judge and it was noted that such a Selection Committee, considered the relative merits of the candidates who ap peared in the selection. But in the instant case I find that the relative merit of the 8 candidates were evaluated by a truncated selection body where only 3 of the 8 members of the sel ecting body participated in the selection and majority members stayed away. The Supreme Court in the case of Ishwar Chandra vs. Satyanarain Sinha, reported in (1972) 3 SCC 383 had concluded that participation of 2 of the 3 members in th e selection process, being the majority of the members, would constitute a valid selection. But the situation herein is that only the minority of the members pa rticipated in the selection process. In addition to the above, I also find that there are interpolation in the marks awarded to respondent No. 6 in the General Knowledge column and the corrections made for changing of marks, have not been signed by any of the 3 members of the Selecting Body. In fact, there is no indication at all as to who made the correc tion of the marks of respondent No. 6. The writ petitioner herein undoubtedly participated in the selection process and lodged his protest only subsequently but at the time it must be appreciated tha t when selections were being made, the writ petitioner would have no information that the selection process was being undertaken by a truncated group of selecto rs, with only 3 of the 8 nominated members, participating in the selection exe rcise. Coupled with the further allegations made against the Chairman that she was bias ed in favour of respondent No. 6, as a decision was taken prior to the selection , that Commerce Graduates would be given preference, (respondent No. 6 being a C ommerce Graduate) and also the fact that the selection of respondent No. 6 was m ade by a truncated body constituted by the Chairman, where interpolation of mark s were noticed, and also the fact that the appointment in favour of respondent N o. 6 was hurriedly issued on 5.2.09, just a day before expiry of the term of the Chairman, Chabua Town Committee, I am of the view that the interference with th e selection process, at the instance of an unsuccessful candidates, would be ju stified. In view of what is reflected through the selection records, I do not find that t his Court is called upon to make any roving enquiry in the selection process whi ch has been held to be improper by the writ Court in the decision of the Supreme Court in S. Halo (supra). Accordingly, having regard to the above facts and also the favouritism shown thr ough interpolation of marks of respondent No. 6 perceived through the selection records produced in original, I hold that the selection of respondent No. 6 stan ds vitiated. Accordingly, the appointment order dated 5.2.09 (Annexure-10) in hi s favour is hereby quashed. Taking all the circumstances into account, instead of directing appointment of t he writ petitioner on the basis of the selection, as he had secured the 2nd high est marks, I direct that the post of Head Assistant-cum-Accountant would now be filled up through a fresh selection in accordance with the prescribed norms. The writ petition is disposed of with the above order.