High Court · 2009

Name Sri Premadhar Konwar Sri Rajib Gogoi Sri Pankaj Gogoi Sri Siva Dutta Gaon Panchayat Ghuguha Gaon Panchayat Naruathan Gaon Panchayat Aradhal Gaon Panchayat Ajuha Gaon Panchayat Pleading that the Gaon Panchayats to which they belong, are different from those of the petitioners, they have pleaded that as inspite thereof no appointment wh atsoever, have been made by misconstruing the interim restraint, the order dated 25.02.2009 to the said effect needs to be vacated or modified accordingly.

06. Mr. Dutta, has persuasively urged that the norm of preference to a candidate based on his/her residence in a Gaon Panchayat being obviously repu gnant to the guarantee of equality of opportunity in matters of public employmen t enshrined in Article 16 of the Constitution of India, the same is to be regard ed as non est in law. The learned Senior Counsel has submitted that the applica tion of such criteria to exclude a candidate, who has either performed better th an or is at par with others, generally, would be patently discriminatory and unc onstitutional. According to Mr. Dutta, therefore, this condition of preference could not have been invoked to exclude the petitioners. Citing instances of sel ecting candidates of age in excess of the outer limit prescribed in several othe r Gaon Panchayats, the learned Senior Counsel has pleaded that having regard to the decision taken to accord preference to the working Sahayaks, disqualificatio n of petitioner Nos. 1 & 2 on the ground of over age is also not sustainable in law and on facts. Having regard to the fact that recruitment is being made to a public office to be best served by efficiency, Mr. Dutta, has argued that the s election for the Sahayaks should be only on the basis of merit. Judged by the s tandard, according to him, the petitioners ought to be selected in the post invo lved and in the facts and circumstances of the case, an appropriate direction to that effect needs to be issued.

07. Mr. Ghosh, the learned State counsel has not, as such, resisted the proposition founded on Article 16 of the Constitution of India. While insis ting on the justifiability of the age limits contained in the parameters formula ted for the selection, the learned State counsel with reference to the official records, has argued that even by the measure of merit, the petitioner Nos. 2 & 4 cannot be enlisted for appointment on a comparative assessment of the performan ce of the candidates. Mr. Ghosh, has furnished to the Court the following parti culars vis-a-vis the candidates already selected and the petitioners: - Sl. Nos. Marks Obtained 1.

3. 13 Name of Candidate Position in order of merit Gaon Panchayat Dimba Gogoi Ajuha

34.47 Jyoti Prasad Bora Naruathun Ajoy Gogoi Ghuguha

50.53 70

49.65 10

4. 2 (Respondent No. 6) 5. Lambit Kachari Jiten Borgohain

6. 9 (Respondent No. 7) Maneshwar Chutia 20 (Respondent No. 8) Arabinda Sonowal

7. 11 (Respondent No. 9) 8. 5 9. 1 (Respondent No. 10) 10. 53 11. 7 (Respondent No. 11) 12. 3 (Respondent No. 12) 13. Bishnu Bora Mintoo Bhuyan Bishnu Saikia Dipak Gogoi Biren Borgohain Monuj Kr. Doley

14. Prasanta Dihingia 14 (Respondent No. 13) Jatin Borgohain

15. 40 (Respondent No. 14)

50.60

47.32 Bhatdaria

56.01 Hatigarh Chamrajan Jiadhal Bishnupur Uttar Dhemaji Lakhi Pathar Moridhal Gohaingaon

50.60

55.11

57.88

37.60

54.73

55.66 Aradhal

48.26 Khubolia 17

49.60 Dakhin Dhemaji

41.92 Sl. Nos. Marks Obtained 1.

54.73

2. 47.93 3. 54.48 4. 48.65 Name of Candidate Position in order of merit Pramadhar Konwar (Petitioner No. 1 over aged) Gaon Panchayat Ghuguha 6 Rajib gogoi (Petitioner No. 2) 19 Pankaj Gogoi (Petitioner No. 3) 8 Shiva Dutta (Petitioner No.4) 16 Naruathan Dhemaji Town Gohaigaon

08. ersy, the select list be remade strictly on the basis of merit. Mr. Bhuyan, has pleaded, as well that to set at rest the controv

09. The pleadings available and the arguments advanced have received the due consideration of this Court. The petitioners have admitted that at the time of their response to the notice offering candidature, the petitioner No. 1 & 2 were marginally over aged having regard to the prescription to that effect. Their assertion of the administrative decision to extend preference to the in service Sahayaks has not been refuted, as such. The averments made by them abou t selection of over aged candidates in Sisi and Pub-Muchkhowa Gaon Panchayat und er Machkhowa Development Block as well as other candidates for the post of Accre dited Engineer and Account Assistant posts, have also remained uncontroverted. Be that as it may, such a breach, if any, per se, in the opinion of this Court w ould not entitle them to a direction for condonation of their overage. The argu ments based on Article 16 of the Constitution of India, however, appear to be we ll founded and significantly has not been refuted by the respondents.

10. The guidelines circulated by the notification dated 27.10.2008 o utlining the procedure for selection of candidates amongst others as Sahayak man date that first preference should be given to the candidates of the particular G aon Panchayat and in the event of non-availability of suitable candidate from su ch Gaon Panchayat(s), the candidature of an applicant from outside the Gaon Panc hayat(s) would be considered. The notice dated 07.01.2009 inviting candidature from the eligible candidates indicates that for the post of Sahayak preference w ould be given to candidates with Science and Commerce background. It further me ntions that preference would be given to candidate from local Gaon Panchayat are a. Having regard to the unambiguous sanction contained in Article 16 (2) of the Constitution of India, this precept of preference to candidates based on their residence in a particular Gaon Panchayat cannot be sustained. The application o f this norm to select the candidates in the instant process, thus, cannot be app roved. As the proposed appointments are to be made to a public office, the recr uitment essentially has to be on the basis of some constitutionally acknowledged measure. Merit, competence and suitability, the index whereof, would be the pe rformance of the candidates at the interview together with the accreditation awa rded for their relevant academic achievements is, thus, the most assuring measur e. The official records containing, inter alia, the chart reflecting the compar ative assessment of the candidates otherwise disclose adherence to the above ten ets. On a perusal of the facts and figures contained in the above ext 11. racts vis-a-vis the performance of the candidates selected and the petitioners, it is clear that subject to the other criteria referred to in the guidelines dat e 27.10.2008 as well as the notice dated 07.01.2009, the petitioners are entitle d to be placed at Sl. No. 6, 8, 19 and 16 respectively. Judged by the yardstick of merit, the interse positions of the selected candidates and the petitioners would have to be adjusted, so much so that the first 15 candidates on the basis of the marks secured, if not otherwise ineligible as per the guidelines dated 27 .10.2008 and 07.01.2009 to the exception of the norms of residence deserve to be selected for appointment to the posts.

12. In the above view of the matter, the instant writ petition is di sposed of with a direction to the official respondents to redraw the select list on the basis of the merit and performance of the candidates irrespective of the ir residence Gaon Panchayat wise and subject to the other conditions and norms a s well as the formalities, process their cases for appointment to the advertised posts of Sahayak. The issue of over age is, however, left to them to decide in the facts and circumstances of the case. The miscellaneous application being M.C. No. 1760/2009, accordingly stands dispo sed as well. No costs.