High Court
Case Details
WP(C) 5550/2012 BEFORE THE HON’BLE MR. JUSTICE B.K. SHARMA JUDGMENT AND ORDER(ORAL) 1.
Legal Reasoning
All these writ petitions pertain to selection and appointment to the post of Grade-IV in the Assam Secretariat, Guwahti. The petitioners involve d in this batch of writ petitions were aspirants for selection and appointment, but when they found that their names were not included in the list of candidates sent for the second phase of selection, they approached this Court by filing th e writ petitions and because of the interim order passed, the 2nd stage of selec tion although was held, but the results thereof could not be published and conse quently no appointment could be made. Since the issue involved in all the writ p etitions is one and the same, they have been heard analogously and are being dis posed of by this common judgment and order. I have heard Mr. B.D. Konwar, Mr. R.De, Mr. P.K. Deka, Mr. M. Ph 2. ukan, Mr. M. Talukdar and Mr. S. Sharma, learned counsel appearing for the petit ioners. I have also heard Mrs. H.M. Phukan, learned State Counsel and Mr. P. Nai k, learned Standing Counsel, Finance appearing in WP(C) No.1557/2013. I have als o considered the entire materials on record including the decision, on which Mr. R. De, learned counsel for the petitioner has placed reliance. Such decisions a re as reported in (1991) 1 SCC 544 (A.K. Bhatnagar and others -vs- Union of Indi a and others); 1991 Supp (2) SCC 156 (Chander Bhan -vs- Hotilal Gupta and others ) and 1991 Supp (2) SCC 421 (H.C. Puttaswamy and others -vs- The Hon’ble Chief J ustice of Karnataka High Court, Bangalore and others). Mr. B.D. Konwar, learned counsel representing the petitioners involved in WP(C) No.1557/2013 has made the additional submission that the petitioners having had the past experience of wo rking, the same ought to have been considered by the interview board. He has fur ther submitted that relaxation should have been provided to the petitioners in r espect of their over age in terms of the Rules. 3. Referring to the rules of recruitment namely the Assam Secretari at Grade-IV and Record Suppliers Service Rules, 1963, the learned counsel for th e petitioners have submitted that the appointing authority being the Deputy Secr etary of the department, the advertisement could not have been issued by the Com missioner and Secretary of the department. Be it stated here that the department is Secretarial Administration Department (in short SAD). It is the further subm ission that Rule-6 of the said rules having prescribed for interview by the appo inting authority, the first phase of the interview could not have been held by t he officials deputed by the departmental authority. Another submission made is t hat in the particular case involved in WP(C) No.5788/2012, the Personal Assistan t to the Parliamentary Secretary, Government of Assam having been deputed to tak e the interview providing him with security coverage, the selection conducted in that manner was bad in law. 4. In the counter affidavit filed by the respondents, it has been s tated that having regard to the large number of candidates (80,830), the first p hase of the interview was conducted through the Senior Administrative Assistants (SAA) and Junior Administrative Assistants (JAA) and the selection boards for t he respective districts were constituted in that manner. It has further been sta ted that the 2nd phase of the interview was held in the Assam Secretariat and th e selection board comprised of the officials of the rank of Deputy Secretary, Jo int Secretary and Additional Secretary. 5. As regards the allegation of sending the Personal Assistant to t he Parliamentary Secretary under security coverage, it has been clarified that t he particular WT message requesting for security coverage to the Personal Assist ant to the Parliamentary Secretary, Government of Assam was at the instance of t he said Personal Assistant without any intimation to the Home and Political Depa rtment. The affidavit further states that as per the report received from the De puty Commissioner, Goalpara, neither any personal security nor conveyance was pr ovided to the respondent Nos. 4 and 5, but security coverage was deployed at the venue of the interview for smooth conduct of selection. The affidavit also stat es that there was no threat perception in respect of the respondent Nos. 4 and 5 and no communication was made to the Deputy Commissioner, Goalpara from Home an d Political Department to provide security coverage to them. The WT message issu ed by the respondent No.4 to the Deputy Commissioner, Goalpara was on his own mo tion. The Home and Political Department sought for information from the SAD vide letter dated 21.01.2013 and as per the reply furnished, no such message was iss ued from their end as well. 6. In the Recruitment Rules of 1963, while defining the term (cid:28)appoi nting authority (cid:29), it has been stated that the same means the (cid:28)Deputy Secretary (cid:29) to the Government of Assam in the SAD and in case of non-availability of Deputy Secretary, it would be the Under Secretary, SAD. As noted above, Rule-6 of the s aid rules also provides for interview by the appointing authority. In the call l etters issued to the petitioners, it was specified that interview in the first p hase would consist of total 50 marks. Total 50 marks was divided in different he ads such as educational qualification- 20 marks; personality- 10 marks; general knowledge-10 marks and experience-10 marks. 7. It is not the case of the petitioners that the Commissioner and Secretary to the Government of Assam in the SAD is Subordinate to the Deputy Sec retary or Under Secretary of the said Department. If the selection would been co nducted by an authority lower than the appointing authority, a grievance could h ave been raised. But the selection having been conducted under the authority of the head of the department i.e. the Commissioner and Secretary, it cannot be sai d that there has been deviation in conducting the selection. 8. Merely because the Deputy Secretary is the appointing authority, it cannot be said that the higher authority of the Department cannot even initi ate the selection process. As stated in the affidavit in opposition filed by the respondents, having regard to the large number of candidates (80,830), it was d ecided to hold selection in two phases. At the first phase, district wise select ion was held through a committee comprising of SAA and JAA. Thereafter, those wh o were found suitable, were interviewed by the committee constituted for the 2nd phase of the selection, which comprised of the officers in the rank of Deputy S ecretary, Under Secretary and Additional Secretary. This being the position, it cannot be said that the selection is vitiated as because the head of the departm ent i.e. the Commissioner and Secretary initiated the selection process. The ter m (cid:28)Deputy Secretary (cid:29) as the (cid:28)appointing authority (cid:29) will have to be understood in that context. In paragraph-6 of the affidavit in opposition filed in WP(C) 5882 /2012, it has been stated thus:-
Decision
(cid:28)That with regard to the statements made in Paragraphs-9, 10, 12 and 13 of the writ petition, the deponent states that as per Rule 2(1) of the Assam Sec retariat Grade-IV and Record Suppliers Service Rules, 1963, Appointing Authority means the Deputy Secretary to the Government of Assam. However, in the present instance, only the process of recruitment has been initiated. As the Head of the Administrative Department, the Commissioner and Secretary has every right to se t in motion the process of selection. It is not improper for the authority highe r than the appointing authority to initiate the recruitment process. Hence, it i s neither relevant nor necessary in the present context. (cid:29) 9. As regards deputation of the Personal Assistant to the Parliamen tary Secretary as a member of the selection board in the district of Goalpara, i t has been stated in the counter affidavit that his substantive appointment is i n the post of SAA and from that post he has been deputed to work as Personal Ass istant to the Parliamentary Secretary. Thus his substantive position being SAA a nd the selection board being comprised of SAA’s and JAA’s, there was no impedime nt towards his deputation as a member of the selection board. 10. So far as the plea of the petitioners that he could not have bee n provided with security coverage and for that matter he had influenced the sele ction committee, the matter has been clarified in the counter affidavit filed by the respondents. As per the said clarifications, the Personal Assistant to the Parliamentary Secretary had sent the message in his personal capacity not backed by any order of the Home and Political Department. He was also not provided wit 12. h any security coverage. The fact of the matter is that his substantive appointm ent is to the post of SAA and the authority having constituted the selection com mittees for the districts consisting of SAAs and JAAs, he had the capacity to wo rk as member of the selection committee. 11. The First phase of the selection was conducted as a measure of s crutiny and the selected candidates were thereafter interviewed by the selection board consisting of Deputy Secretary, Joint Secretary and Additional Secretary. At this stage, the learned counsel for the petitioners have also submitted that the interview at the first phase was a total farce in as much as the candidates were not interviewed in terms of the parameters and yardsticks l aid down for conducting the interview. However, in absence of any definite mater ials, the said plea cannot be accepted. Moreover, the members of the selection board and the candidates who have been selected at the first phase of the select ion are also not made party to this proceeding. 13. In A.K. Bhatnagar (supra) and Chander Bhan (supra), the Apex Cou rt reiterated the well-known principle of law that if the rule provides for doin g something in a particular manner, that will have to be done in that manner and not otherwise. These two decisions have been relied upon to emphasis the point of argument that it is the Deputy Secretary, who alone could have conducted the selection. The position has been explained above. In H.C. Puttaswamy (Supra), th e Supreme Court interfered with the particular selection made by the Chief Justi ce of the particular High Court. In that case, the District Judge was the appoin ting authority and he was to conduct the selection as per the Karnataka Civil Se rvices (Classification, Control and Appeal) Rules. The rules provided that every District Judge was the appointing authority and consequently every District con stitute a recruitment unit. Unlike in the instant case in which the higher autho rity in the department initiated the selection process, in that case the Chief J ustice of the High Court usurped all the functions of the District Judge and con ducted the selection. It was on that count, the Apex Court had the occasion to i nterfere with such process of the Chief Justice. Same is not the case in hand. 14. As regards the plea of Mr. B.D. Konwar, learned counsel for the petitioners involved in WP(C) No.1557/2013 that the petitioners were entitled to get weightage in respect of their experience, the selection criteria adopted an d referred to above itself provides for giving marks under experience head. That being the position, no separate and or extra weightage can be given to the peti tioners. 15. it petitions and accordingly they are dismissed. For all the aforesaid reasons, I do not find any merit in the wr