IN THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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1 IN THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) WRIT PETITION No. 4807/2012 Sri Bipul Chandra Barman S/O Late Ananta Barman Vill Mohkhali & P.O. Gopalthan PS-Belsor, Dist. Nalbari Assam Writ Petitioner -VERSUS- 1.The State of Assam Represented by the Commissioner and Secretary to the Government of Assam Judicial Department, Dispur, Guwahati The District and Sessions Judge, Nalbari, Dist. Nalbari Assam 3.The Chief Judicial Magistrate, Nalbari, Dist. Nalbari Assam 4.Sri Minindra Das 5.Sri Anil Das 6. Sri Hari Charan Brahma The Respondent Nos. 4 to 6, all are C/o The Chief Judicial Magistrate, Nalbari Dist. Nalbari, Assam Respondents BEFORE HON BLE MR. JUSTICE NELSON SAILO For the Petitioner: Mr. R.C. Saikia Advocate WP No of 2012 Page 1 of 9

2 For Respondents : Mr. PS Deka, for respondent No.1 Mr. UK Nair, Standing Counsel, Gauhati High Court for respondent No. 2 and 3 Mr.S Choudhury, for respondent No.4,5,6 Advocates Date of hearing : Date of judgment: JUDGEMENT AND ORDER (CAV) [Nelson Sailo, J.] With the consent of the parties, this case is being taken up for final disposal. Mr. RC Saikia, learned counsel appears for the petitioner. Mr. PS Deka, learned counsel appears for the respondent No. 1 while the respondent No. 2 and 3 is represented by Mr. UK Nair, learned Standing Counsel, Gauhati High Court. The private respondent 4, 5 and 6 are represented by the learned counsel Mr. S Choudhury. The name of respondent No. 7 was struck off as a party respondent to the writ petition vide order dated in view of the fact as he had given up the post in which he was appointed. 2. The facts of the case in brief is that the petitioner who is a matriculate pass was appointed as peon by the Chief Judicial Magistrate, Nalbari vide order dated (Annexuire-2) and was attached to SDJM (S) Nalbari. The appointment order also provided that his service would be terminated automatically as and when the officer concerned to which he was attached leave the station on transfer. The SDJM (S) also issued a certificate to the effect that the petitioner was serving as his personal peon vide his Certificate dated (Annexure-3). 3. When the SDJM(S) concerned was posted out in the year 2007, the petitioner was not allowed to work any further and being aggrieved, he filed WP No of 2012 Page 2 of 9

3 WP(C)No.720 of 2007 before this Court seeking resumption of his duty and regularisation of his service. 4. A similar set of writ petitions were pending before this Court and so, vide a common judgment and order dated , they were all disposed of including WP( C) No.720 of By the said judgment and order, a reference was made to the case of Secretary, State of Karnataka vs- Uma Devi (No.3) reported in (2006) 4 SCC 1 wherein the Hon ble Apex Court had observed that the invocation of doctrine of legitimate expectation cannot enable the employees to claim that they must be made permanent or they must be regularised in services though they had not been selected in terms of the rule for appointment. 5. At the same time in the case of Union of India- vs- Hindustan Development Corporation reported in (1993) 3 SCC 499 was also referred by this Court wherein the Hon ble Apex Court had observed that the legitimacy of an expectation can be inferred only if it is founded that on the sanction of law or custom or an established procedure followed in regular and natural sequence. Again it is distinguishable from a genuine expectation. Such expectation should be justifiably legitimate and protectable. Every, such legitimate expectation does not by itself fructify into a right and therefore it does not amount to a right in the conventional sense. 6. This Court thus upon considering the factual aspects of the case and keeping in view a humanitarian consideration as the petitioners had been serving as Grade-IV for a long tenure, the following directions were passed: (A) That the respondent authorities shall take up immediate necessary steps for recruitment and appointment of the attached peons in the District and Sub-Divisional Judicial establishments by holding regular process of recruitment. (B) Until such recruitment process is carried out in accordance with the relevant recruitment rules, the petitioners, who are still in service, shall WP No of 2012 Page 3 of 9

4 not be terminated or dismissed from services, arbitrarily without resorting to due process of law. (C) It is made clear that while undertaking the process of recruitment of attached person, the petitioners who are still working, and the petitioners who have been terminated from service, shall be given due weight-age for their past service and experience, and their overages shall also be condoned to enable them to participate in the selection process. 7. Even after the above direction, the writ petitioner was not considered by the respondent authorities for appointment in the Grade-IV post and therefore he filed his second writ petition being WP(C) No.6430 of In the said writ petition an order was passed on whereby it was directed that the petitioner be allowed to participate in the recruitment process in terms of the Notice/Advertisement that was published on (Annexure-7). The respondent No.3 thus vide letter dated (Annexure-10) informed the petitioner to appear before the Interview Board on along with his original testimonials and assigned him Roll No In view of such development, W.P No.6430 of 2010 was disposed on by observing that since the petitioner had already appeared in the interview and the result was being awaited, the grievance of the petitioner as was highlighted stood redressed. However, when results were declared, the petitioner was not selected while the respondent No. 4, 5, 6 and 7 were selected and appointed to the post of peon (Grade-IV). Hence, the present writ petition. 8. The case of the writ petitioner is that although the respondent No. 4, 5, 6 and 7 were selected through the interview board, but the same was however due to some undue and extraneous consideration and the interview board did not consider the candidature of the petitioner as was directed by this Court earlier and no weightage to the experience of the petitioner was given in spite of the order. The petitioner thus contends that the Interview Board was most biased and influenced by political parties who selected the private respondent and deprived the petitioner from his right to be appointed to the Grade-IV post. WP No of 2012 Page 4 of 9

5 9. The respondent No. 2 and 3 filed their response on whereby they have stated that the Assam Chief Judicial Magistrate Undivided Service Rule,1987 as projected by the writ petitioner (Anneuxre-4) does not govern the service condition of the petitioner. Such rules apply only in the case of regular employees serving in the establishment of the Chief Judicial Magistrate and not to the temporary employees working there in. 10. The respondent No. 2 and 3 has also contended that the considerations as was directed vide the judgment and order dated by this Court would remain even if the same were not spelt out in the Notice/Advertisement issued on for filing up of four posts of office peon in the establishment of the Chief Judicial Magistrate, Nalbari. The respondents maintain that the Interview Board conducted the selection by applying similar yardstick to all the candidates to ascertain their suitability for the post. Based on the assessment made, marks were given individually by each of the Board members on conclusion of the interview process. A consolidated list was thus prepared showing the names of the candidates and the respective marks obtained by them in the interview. 11. The respondents in their affidavit also stated that the petitioner in the interview scored only 7 marks and belonged to the general category. Even if weightage was given to him for the services rendered by him, he still would not top the list in the general category candidate as there was a difference between the marks scored by respondent No. 5 and the petitioner. The respondents contend that the petitioner could only score 7 marks against the 26 marks scored by the respondent No.5. Thus, the respondents contended that there was no merit in the writ petition and the same was liable to be dismissed. 12. As for the remaining respondents, they have not filed their affidavit-inopposition. WP No of 2012 Page 5 of 9

6 13. The learned counsel for the writ petitioner Mr. RC Saikia submits that the Interview Board was most biased in the allotment of marks and the direction given in WP(C) No.720 of 2007 was not complied with in as much as the past service rendered by the petitioner was not given any weightage. In the Notice/Advertisement issued on , the respondent authority failed to mention the criteria for the selection to the post that was advertised and therefore the conduct of the respondent concerned was arbitrary. He further submits that respondent No. 2 and 3 also failed to rebut the statements that was made in paragraph-20 of the writ petition wherein he had categorically stated that the process of the Interview board only asked the petitioner, his age, the name of his village and constituency and also as to whether there was any Government employee in his family. He therefore contends that the marks allotted by the Interview Board was without any basis and was a result of favouritism by adopting the method of pick and choose. He thus submits that the entire selection process was vitiated and therefore the respondent authority be directed to conduct a fresh selection by observing all the formalities as was directed by this court on meticulously. 14. The counsel for the respondent No.2 and 3 Mr. UK Nair on the other hand submits that the Interview Board conducted the selection in a free and fair manner and in terms of the direction passed by this Court on in WP (C) No.720 of The petitioner was allowed to participate in the selection process despite being over-aged and in the selection process which was done on merit. The petitioner only managed to get 7 marks whereas the respondent No. 5 who was also from the general category scored 26 marks. Therefore, there being a vast difference between the marks obtained by the petitioner and the respondent No. 5, and even if due weightage was given to the past experience of the petitioner, there was no chance for him to be on top of the merit list. Therefore, the petitioner having been given a fair opportunity to participate in the selection process, the grievance projected by him in the instant writ petition is without any substance and the writ petition should be dismissed. WP No of 2012 Page 6 of 9

7 15. Mr. UK Nair in terms of the direction passed by this court also produced the relevant records pertaining to the selection made for the post of peon. As can be seen from the records, a meeting was held by the Interview Board in the official chamber of the respondent No. 3 on whereby a decision was taken that the viva-voce test would be conducted by two members of the Board in presence of the Chairman and 20 marks would be allotted to each of the members. Further, the 20 marks would carry 5 marks each on intelligence, behaviour/ conduct, smartness and personality and that by adding up the marks given by each of the two members, a merit list would be prepared for the final selection. It is also noticed that there is no marks allotted separately for poast experience. That besides the above meeting minutes, the other relevant scores as allotted by the Interview Board has been perused from the records. 16. I have heard the learned counsels appearing for the rival parties. The petitioner appeared before the Interview Board on in terms of the Notice/Advertisement dated wherein four posts of peon was advertised and one post among three was for the general category. The petitioner admittedly was considered against the general category and the Board members in the interview allotted marks to each of the candidates based on the criteria that was decided by the Interview Board on The petitioner at the end of the selection process obtained 7 marks against the 26 marks obtained by the respondent No.5. The Interview Board in calculating the aforesaid marks has not given any marks or weightage towards the past experience of the candidates including the writ petitioner. On considering the submission made by the learned counsel for the respondent No. 2 and 3 that even if the Interview Board had given due weightage to the past experience of the petitioner, there was no way in which the petitioner could have made to the top of the merit list cannot be accepted as plainly as it sounds since assumption and actual application can never be the same thing. It cannot be expected. However, one cannot be oblivion of the fact that the selection process that was said to be on merit, there was a vast difference between the marks of the petitioner and the respondent No.5 and therefore in such event, petitioner could not have scored WP No of 2012 Page 7 of 9

8 marks over the respondent No.5 even with all considerations of his past service experience.therefore, in such situation, non allotment of marks towards past experience cannot be said to have vitiated the selection process. 17. Considering arbitrariness, outside influence and malafide projected by the counsel for the petitioner, the same requires specific allegations and materials. That merely by making certain averments in the pleadings, the respondent authorities cannot be said to have been biased and ill-motivated. It is a well settled principle of law that specific allegations have to be made against such individuals or Board who are alleged to have committed malafide action and that too by impleading them party respondent in the proceeding. There is none to be seen in the instant case and therefore I find that no case of malafide and arbitrary action has been made out by the petitioner warranting interference in the selection process for the post of peon (Grade-IV). 18. As regards the allegation that the marks were allotted without any basis, the same is not a true picture as can be seen after perusal of the records of the selection proceeding. The Interview Board in their wisdom have made a clear division of the marks before the selection process and marks were accordingly given. Therefore, I do not find any infirmity in the allotment of marks. 19. At this stage, it may be noticed that respondent No. 7 after being selected for the post of peon has left the job soon after he was appointed and therefore there appears to be a vacancy for one post of peon under the establishment of respondent No.3. Upon making a query to the learned counsel for the parties in this regard, a clear picture on the vacancy position cannot be made. However, in the event if there is a vacancy as on date against the post which was left vacant because of the respondent no.7 having left the post, the respondent No. 2 and 3 shall take necessary step to fill up the same in accordance with law. In view of the fact that the petitioner has rendered a number of years of his service in the post of peon under the establishment of the respondent No. 2 and 3, it would be just and proper that he be allowed to participate in such selection process. WP No of 2012 Page 8 of 9

9 20. The process of such selection shall be done and completed within a period of four months from today and the respondent No. 2 and 3 shall permit the petitioner to participate in selection process by condoning his age and shall also take into consideration the past service experience of the petitioner while assessing his suitability and candidature. 21. With the above observation and direction, this writ petition is disposed of. No cost. JUDGE Nivedita. WP No of 2012 Page 9 of 9

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