High Court
Case Details
WP(C) 4741/2012 BEFORE THE HON’BLE MR JUSTICE UJJAL BHUYAN Heard Mr. S.K. Das, learned counsel for the petitioner and Mr. B.K. Sarm a, learned Standing counsel, Social Welfare Department for the respondents. By way of this petition under Article 226 of the Constitution of India, petitioner seeks a direction to appoint him as Statistical Assistant as per meri t position. Case of the petitioner is that 6 vacancies in the post of Statistical As sistant under respondent No. 3 were notified amongst other vacancies vide annexu re P-1 notice issued in January, 2005. Name of the petitioner was recommended by the employment exchange, Jorhat following which he participated in the selectio n process. Pursuant to the selection process, a select list was published on 8.2 .2006. In the select list published for the post of Statistical Assistant in res pect of Jorhat district, 24 candidates were selected. Petitioner was placed at s erial No. 6. Respondents appointed 5 candidates i.e. the candidates at serial No s. 1, 2, 3, 4 and 9 leaving 1 post vacant.
Legal Reasoning
A writ petition was filed before this Court being WP(C) No. 6154/2006 by a group of candidates including the petitioner who contended that many of the s elected candidates did not belong to the concerned districts and were not recomm ended by the concerned District Employment Exchange. This Court by order dated 1 4.12.2010 disposed of the aforesaid writ petition alongwith other connected case s giving liberty to the petitioners of those cases to file representation before the Director of Social Welfare, who was also directed to pass speaking order on such representation. When the petitioner submitted representation, Director of Social Welfare, Assam conducted hearing on 31.10.2011 and passed an order dated 25.04.2012 rejecting the claim of the petitioner. It was stated that appointment s were offered to the candidates appearing at serial Nos. 1, 2, 3, 4 and 9 in th e select list. Though the petitioner’s position was at serial No. 6 in the selec t list, the candidate at serial No. 9 was appointed as he belonged to OBC catego ry. Aggrieved, petitioner has filed the present writ petition seeking the re lief(s) as indicated above. Contention of the petitioner is that the candidate at serial No. 1 belon ged to NC Hills district and was not recommended by the District Employment Exch ange, Jorhat. In respect of the candidate at serial No. 2, from the documents fu rnished under the Right to Information Act, 2005, it is seen that there is overw riting in the marks allotted in the interview sheet of the said respondent. The candidate at serial No. 4 is an OBC candidate. Therefore, there was no justifica tion to appoint the candidate at serial No. 9 as OBC candidate superseding the b etter claim of the petitioner at serial No. 6. Respondent No. 2 has filed affidavit. Stand of the said respondent is re flected in paragraph 4 of the said affidavit, which reads as under:-
Legal Reasoning
(cid:28)4) That the deponent begs to state that during the year 2005, intervi ew was held for selection of candidates to the post of Statistical Assistant in different ICDS Projects of the State. In Jorhat district 24 candidates were decl ared selected. Out of which 5 candidates were appointed. The appointment made to the candidate figured at Sl. 1,2,3,4 and 9 of the select merit list. The respon dent No. 4, Sri Anjan Kr. Bhagawati was earlier appointed on adhoc basis and his name was figured at Sl. No. 1 of the select merit list. The respondent No. 5, S ri Amitabh Sarma was figured at Sl. No. 2 of the select merit list. The responde nt No. 6, Sri Debashis Chetia was figured at Sl. No. 9 of the select merit list and he was appointed as OBC candidate. The deponent further begs to state that it appears that no reservation r osters in district wise were maintained for appointment of Statistical Assistant during the year 2005-2006 and total 106 incumbents were appointed from the sele ct merit list in 2 nos. of District in General areas [other than district in BTA D & Hill areas] against 125 ICDS Project. Out of the appointed candidates, 14 ar e from SC category, 7 are from ST (P) category, 29 are from OBC/MOBC category. N o candidate from ST [H] category appears to have been appointed in those 20 dist ricts in general areas. There is no procedure of selection of candidate from res erved category quota in the Districts, followed by authority during the appointm ent of Statistical Assistant. As per Rule, percentage of candidate of reserved c ategory is as follows:- I] II] III] IV] SC ST [P] ST [H] OBC/MOBC Accordingly, out of 106 appointed candidates reservation should as follo 7%; 10%; 5%; 27%. - - - - SC ST [P] OBC/MOBC ST [H]
Decision
ws:- 7 No. I] 10 No. II] 29 No. and III] IV] 5 No. Thus, it appears that in State Level appoi ntments were made covering the reserved category quota. It would be pertinent to mention herein that the position of the writ petitioner in the select merit lis t of Jorhat district was at Sl No. 6 and he belongs to General Category candidat e. No candidate below to his position from General Category was appointed. (cid:29) - - - - Petitioner in his reply affidavit has stated that respondent No. 2 did n ot answer the main points raised by the petitioner. Though the respondents had a ll along maintained that selection was on district basis, they have for the firs t time taken new plea that reservation was being implemented at the State level. Respondent No. 2 has admitted that no reservation roster has been maintained di strict wise. Thus, the selection was held district wise whereas reservation was maintained State wise. Appointment of two OBC candidates, one below the petition er was not justified. Learned counsel for the petitioner submits that as per the own stand of the respondents, one post of Statistical Assistant in Jorhat district is still v acant which can be filled up on the basis of merit from the select list already prepared. He submits that when vacancies are available, there can be no justific ation not to appoint the selected candidates as per the merit position in the se lect list. Mr. Sarma, learned Standing counsel submits that there is one candidate above the petitioner in the General category with better merit, being the candid ate at serial No. 5. He also submits that the selection list being of 2005-2006, it may not be possible to make any appointment on the basis of said select list . Submissions made have been considered. A perusal of the annexure P-1 notice shows that a few vacant posts of Su pervisor, Statistical Assistant, LDA-cum-Typist and Grade-IV were notified to be filled up. The selection of candidates was to be on the basis of interview of t he candidates as per category-wise lists to be furnished by the respective Distr ict Employment Officer. Persons serving on contractual and temporary basis were also eligible to apply through the District Social Welfare Officer. The minutes of the State Level Selection Committee meeting held on 27.7. 2005 indicates that 104 number of vacancies in the post of Statistical Assistant were notified. Select lists were prepared at the ratio of 1:4 i.e., four times the number of notified vacancies. The Committee decided to request the Governmen t to declare the select lists valid for one calendar year. For Jorhat district, 6(six) vacancies in the post of Statistical Assista nt were notified. Select list of 24 candidates was published on 8.2.2006. Director of Social Welfare in his order dated 25.4.2012 had admitted tha t petitioner’s position in the select list is 6. Candidates upto serial No. 4 we re appointed on merit and the candidate at serial No. 9 was appointed as OBC can didate. Thus, out of the 6(six) notified vacancies, 5(five) vacancies were fille d up. Petitioner’s contention that selection should be confined to the candida tes of the concerned district alone cannot be accepted. Such a contention, if ac cepted, would be violative of our constitutional objective. The advertisement al so does not say that selection would be confined to the respective districts onl y. On the question of reservation, it is always relatable to the cadre stre ngth of the post. Nothing has been brought on record whether the cadre of Statis tical Assistant is maintained district-wise or state-wise. In the absence of ade quate materials, Court is not inclined to enter into this aspect of the matter. In so far the allegation of over-writing and manipulation in the marks a llotted to the candidate at serial No. 2 (respondent No. 5) in the compilation s heet of interview is concerned, a close perusal of the same at Page 56 of the wr it petition does not disclose any such over-writing. In any case, over-writing b y itself may not mean that there was manipulation in the marks allotted. Therefore, Court would not like to disturb the appointments of responden t Nos. 4, 5 and 6. Learned Standing counsel on the other hand is also unable to apprise the Court as to whether the select list was prepared on the basis of any statutory provision. Ordinarily, the select list remains valid for one year. In the presen t case, the State Level Selection Committee had decided to request the Governmen t to declare the select list valid for one year. Whether any decision was taken thereon has not been brought on record. Therefore, Court is of the view that in the absence of any statutory prescription, there cannot also be any bar for the authority to act upon such select list, if vacancies relatable to the same recru itment process are still available and there is no valid ground to deny appointm ent. It is true that a person selected and empanelled in the select list ha s no vested right to be appointed to the post for which he has been selected but he has a right to be considered for appointment. The appointing authority canno t ignore the selected panel or decline to make appointment on its whims and wher e there is a vacancy which can be offered to him keeping in view his merit posit ion, then ordinarily there is no justification to ignore him for appointment. Th ere has to be justifiable reason to decline appointment to a person who is on th e selection panel. In the case of Union of India -Vs- Pradip Kumar Kedia reporte d in (2012) 1 SCC 432, the Hon’ble Supreme Court held that where the Court does not find any reason for the authorities not to offer any appointment to the cand idate placed in the selection panel, the Court can direct appointment. In the present case, as per the own showing of the respondents, one post of Statistical Assistant relatable to the same recruitment process of select li st dated 8.2.2006 has been kept vacant. No reason or justification has been put forward to keep that post vacant. Nothing has also been placed on record to show that the respondents have embarked upon fresh recruitment process to fill up va cancies in the post of Statistical Assistant including the one vacancy as notice d above. It cannot also be denied that the petitioner has been knocking the door s of this Court since 2006. In such circumstances, petitioner’s case deserves co nsideration. But consideration of his case has to be after consideration of the case of the candidate at serial No. 5 who is above the petitioner on merit. In view of above, respondent No. 2 shall fill up the available vacancy i n the post of of Statistical Assistant in Jorhat district from the select list d ated 08.02.2006 by first offering appointment to the candidate at serial No. 5. If the said candidate declines to accept the offer of appointment, such offer sh all be made to the petitioner being the next candidate at serial No. 6. The above exercise shall be carried out within a period of 3(three) mont hs from the date of receipt of a certified copy of this order. Writ petition stands disposed of.