IN THE GAUHATI HIGH COURT

Transcription

1 1 IN THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) WP(C) NO.6459/ Md. Jeherul Islam, S/o Sultan Ali, Resident of Simelibari, Post Office- Bezera, District- Kamrup, Assam. - Versus- Petitioner 1. The State of Assam, represented by the Principal Secretary to the Government of Assam, Planning and Development Department, Dispur, Guwahati, Assam. 2. The Director of Economics and Statistics, Assam, Office of the Directorate of Economics and Statistics, Jawaharnagar, Tripura Road, Guwahati , Assam. 3. Sri Pranjal Kumar Bhattacharyya, The Addl. Director of Economics and Statistics, Office of the Directorate of Economics and Statistics, Jawaharnagar, Tripura Road, Guwahati The Deputy Secretary to the Govt. of Assam, Planning and Development Department, Dispur, Guwahati. (Respondent Nos. 2, 3 and 4 constitutes the Selection Board as per Rule 17 of the 1980 Rules). 5. Sri Ganesh Ch Hazarika,

2 2 6. Sri Hara Nath Medhi, 7. Sri Nagen Bhuyan, 8. Sri Rudra Mohan Hazarika, 9. Sri Dinesh Ch Kalita, 10. Sri Bimal Kr Phukan, 11. Sri Gajen Ch Das, Registrar, Office of the Directorate of Economics and Statistics, Jawaharnagar, Tripura Road, Guwahati-28. (Respondent Nos. 2, 3 and 5 to 11 in a group, constitutes the illegal Selection Committee) Respondents For the petitioner : Mr. M. Bhuiya, Adv For the respondents : Mr. B.J. Talukdar, learned State Counsel,

3 3 WP(C) NO.433/ Sri Kulen Chandra Baishya, S/o Keshab Chandra Baishya, Resident of Guakuchi, District- Nalbari, Assam. Petitioner - Versus- 1. The State of Assam, represented by the Principal Secretary to the Government of Assam, Planning and Development Department, Dispur, Guwahati, Assam. 2. The Director of Economics and Statistics, Assam, Office of the Directorate of Economics and Statistics, Jawaharnagar, Tripura Road, Guwahati , Assam. 3. Sri Pranjal Kumar Bhattacharyya, The Addl. Director of Economics and Statistics, Office of the Directorate of Economics and Statistics, Jawaharnagar, Tripura Road, Guwahati The Deputy Secretary to the Govt. of Assam, Planning and Development Department, Dispur, Guwahati. (Respondent Nos. 2, 3 and 4 constitutes the Selection Board as per Rule 17 of the 1980 Rules). 5. Sri Ganesh Ch Hazarika, 6. Sri Hara Nath Medhi,

4 4 7. Sri Nagen Bhuyan, 8. Sri Rudra Mohan Hazarika, 9. Sri Dinesh Ch Kalita, 10. Sri Bimal Kr Phukan, 11. Sri Gajen Ch Das, Registrar, Office of the Directorate of Economics and Statistics, Jawaharnagar, Tripura Road, Guwahati-28. (Respondent Nos. 2, 3 and 5 to 11 in a group, constitutes the illegal Selection Committee) Respondents For the petitioner : Mr. M. Bhuiya, Adv, For the respondents : Mr. B.J. Talukdar, learned State Counsel WP(C) NO.6413/ Sri Jyotirmay Choudhury, S/o Sri Nagen Ch Choudhury, Resident of Parakuchi, P.O- Moinari Tiniali District- Kamrup, Assam.

5 5 - Versus- Petitioner 1. The State of Assam, represented by the Principal Secretary to the Government of Assam, Planning and Development Department, Dispur, Guwahati, Assam. 2. The Director of Economics and Statistics, Assam, Office of the Directorate of Economics and Statistics, Jawaharnagar, Tripura Road, Guwahati , Assam. 3. The Addl. Director of Economics and Statistics, Assam, Office of the Directorate of Economics and Statistics, Jawaharnagar, Tripura Road, Guwahati , Assam. 4. The Deputy Secretary to the Govt. of Assam, Planning and Development Department, Dispur, Guwahati. (Respondent Nos. 2, 3 and 4 constitutes the Selection Board as per Rule 17 of the 1980 Rules). Respondents For the petitioner : Mr. M. Bhuiya, Adv, For the respondents : Mr. B.J. Talukdar, learned State Counsel, WP(C) NO.6414/ Sri Ashim Barman, S/o Sri Bimal Kr Barman, Resident of Rukmini Nagar, Housing Colony, Dispur, Guwahati-06 District- Kamrup, Assam. - Versus- Petitioner

6 6 1. The State of Assam, represented by the Principal Secretary to the Government of Assam, Planning and Development Department, Dispur, Guwahati, Assam. 2. The Director of Economics and Statistics, Assam, Office of the Directorate of Economics and Statistics, Jawaharnagar, Tripura Road, Guwahati , Assam. 3. Sri Pranjal Kumar Bhattacharyya, The Addl. Director of Economics and Statistics, Office of the Directorate of Economics and Statistics, Jawaharnagar, Tripura Road, Guwahati The Deputy Secretary to the Govt. of Assam, Planning and Development Department, Dispur, Guwahati. (Respondent Nos. 2, 3 and 4 constitutes the Selection Board as per Rule 17 of the 1980 Rules). 5. Sri Ganesh Ch Hazarika, 6. Sri Hara Nath Medhi, 7. Sri Nagen Bhuyan, 8. Sri Rudra Mohan Hazarika,

7 7 9. Sri Dinesh Ch Kalita, 10. Sri Bimal Kr Phukan, 11. Sri Gajen Ch Das, Registrar, Office of the Directorate of Economics and Statistics, Jawaharnagar, Tripura Road, Guwahati-28. (Respondent Nos. 2, 3 and 5 to 11 in a group, constitutes the illegal Selection Committee) 12. Smti Mouchumi Das C/o- The Director of Economics and Statistics, Assam, O/O the Directorate of Economics and Statistics, Jawaharnagar, Tripura Road, Guwahati Sri Dilip Das C/o- The Director of Economics and Statistics, Assam, O/O the Directorate of Economics and Statistics, Jawaharnagar, Tripura Road, Guwahati Sri Hemanta Das C/o- The Director of Economics and Statistics, Assam, O/O the Directorate of Economics and Statistics, Jawaharnagar, Tripura Road, Guwahati-28 Respondents For the petitioner : Mr. M. Bhuiya, Adv For the respondents : Mr. B.J. Talukdar, learned State Counsel, BEFORE HON BLE MR. JUSTICE B.K. SHARMA

8 8 Date of hearing : Date of Judgment : JUDGMENT AND ORDER (ORAL) 1. All the writ petitions pertaining to selection and appointment of Field Assistant in the Directorate of Economics and Statistics under the Government of Assam have been heard analogously and are being disposed of by this common judgment and order. 2. In response to the advertisement that was issued on and , the petitioners along with others had offered their candidatures for the post of Field Assistant. Pursuant to the written test that was conducted on , the results thereof was published vide Annexure-4, in which the petitioners stood qualified. They were called for the interview (viva-voce test) which was held during the period from to The results of the selection was published in the newspaper on (Annexure-6) followed by the Annexure-7 result sheet dated While in Annexure-6 results, only the roll numbers had been indicated, but in Annexure-7 results, the names were also indicated. According to the petitioners, they having done well in the selection, their names ought to have been included in the merit list. It has been alleged that they have been illegally deprived of inclusion of their names therein. Challenging the said selection, they have filed the writ petitions basically on the following grounds:-

9 9 (i) The mark secured by them in the written examination and so also in the viva-voce test had been reduced without any authority and authentication; (ii) Some candidates who did not even qualify in the written examination, had been called for the interview making a mockery of the selection; (iii) Had the compassionate appointment not been provided to six candidates in excess of the earmarked quota, further posts would have been available enabling the authority to include the name of the petitioners in the select list. It is the stand of the petitioners that there being only 5% quota ear marked for compassionate appointment, there could not have been six appointments against the said quota as the number of posts were only I have heard Mr. M. Bhuyan, learned senior counsel appearing for the petitioners in all the writ petitions and Mr. B.J. Talukdar, learned State Counsel. 4. Mr. Bhuyan, learned counsel for the petitioners emphasizing on the aforesaid points has submitted that the case of the petitioners is required to be considered afresh by the authority responsible for publication of results towards their appointment. He submits that going by the stand of the respondents in their counter affidavit, the pleas taken by the petitioners in their writ petitions go unrefutted and accordingly their cases are required to be considered afresh. Referring to the orders passed in this proceeding directing the respondents to produce the answer scripts

10 10 of the petitoners, he also submits that as the respondents are in the wrong foot, they are afraid of production of the answer scripts. 5. Mr. B.J. Talukdar, learned State Counsel, on the other hand referring to the stand of the respondents in their counter affidavit submits that selection was done in a fair and transparent manner. As regards the pleas raised by the petitioners, he submits that everything having been done as per the procedure for selection, no interference is called for in the matter. 6. I have considered the submissions made by the learned counsel for the parties and have also perused the entire materials on record. 7. By successive orders and to be precise by orders dated , and , the Director of Economics and Statistics (respondent No.2) was directed to produce the answer scripts of the petitioners. However, there is no production of the same. Mr. Talukdar, learned State Counsel submits that he has not received any instruction in this regard from the respondent No.2. Having regard to the nature of the allegation made, it was incumbent on the part of the respondent No.2 to produce the record/answer scripts. In absence of production of the same and as submitted by Mr. Bhuyan, learned counsel for the petitioners, an adverse inference is required to be drawn. 8. As stated in the writ petition being WP(C) No.433/2011 as against the 81.5 marks secured by the petitioner in the written examination, the same was reduced to 77 by subsequent reevaluation, authority of which has not been disclosed in the counter

11 11 affidavit. The said petitioner secured 21 in the oral interview out of 30. Similarly, the petitioner involved in WP(C) No.6413/2010 has also been provided with lesser mark at a subsequent stage in the viva-voce segment of the selection. As has been contended by the said petitioner, as against the original 24.5 marks secured by him in the viva-voce segment, the same was subsequently reduced to 23. In WP(C) No.6414/2010, the petitioner secured 80 marks in the written examination, which was subsequently reduced to 76. Similarly in the viva-voce segment also the mark secured by him (24) was reduced to 15 at a later stage. In the other writ petition i.e. WP(C) No.6459/2010, it is the case of the petitioner that the original mark secured by him in the written examination (82.5) was reduced to As has been brought on record, the cut off mark for selection and appointment for general category candidates was fixed at 104 and for OBC category candidates it was fixed at This has been sated in paragraph-8 of the counter affidavit filed by the respondent No.2. If we go by the said cut off marks and the original marks secured by the petitioners are maintained, then the petitioner involved in WP(C) No.433/2011 would have secured =102.5; the petitioner in WP(C) No.6413/2010 would have secured =104.5; the petitioner in WP(C) No.6414/2010 would have secured 80+24=104. Be it stated here that he belongs to OBC category. Lastly, the petitioner in WP(C) No.6459/2010 would have secured = If we go by the above calculation in reference to the cut off mark for selection and appointment, the petitioners in WP(C)

12 12 No.6413/2010, namely Jyotirmay Choudhury and the petitioner involved in WP(C) No.6414/2010, namely Ashim Barman would make it to the final stage for appointment. 11. Above aspect of the matter will have to be considered in reference to the stand of the respondents in their counter affidavit regarding reduction of mark. In paragraph-4 of the counter affidavit, while admitting the original marks secured by the said two petitioners, it has been stated that the answer scripts of the candidates securing 70 marks and above had been re-examined on sample basis. It has also been stated that to avoid any allegation of bias approach, all the answer scripts securing 70 marks and above had been re-examined. Upon such re-examination and depending upon the methodology in answering the questions, spelling mistakes, mistake in totaling etc in some of the answer scripts total marks secured by the candidates had to be reduced. However, there is nothing to indicate that any decision was taken by the selection board to adopt the said procedure. There is also no explanation as to why only the answer scripts of only those candidates securing more than 70 marks had been taken for re-evaluation and why not other answer scripts. As regards the plea of the petitioners that services of some of the officials of the Director of Economics and Statistics had been utilized for evaluating of the answer scripts, the counter affidavit does not specifically deny the same. However, as submitted by Mr. B.J. Talukdar, learned State Counsel, the evaluation was done by the members of the selection board. 12. In absence of the production of the answer scripts by the respondent No.2 for the reasons best known to him, this Court is not

13 13 in a position to come to a definite conclusion in the matter. However, as noted above, such non production would definitely lead to drawing an adverse inference. This aspect of the matter will also have to be considered in reference to the definite stand of the petitioners that three of the candidates named in the writ petition although did not qualify in the written examination, but were called for the vivavoce test. Thereafter, they got the selection and were eventually appointed. Responding to the said plea of the petitioners, the plea taken by the respondent No.2 is that all the three candidates had performed well in the written examination, but inadvertently their names were not included in the result sheet. It is also stated that corrigendum was issued in respect of one of the candidates. As regards the other two candidates, the stand taken is that the errors were detected very lately and hence they were invited for the viva-voce test. 13. All the above aspects of the matter would require a fresh consideration of the case of the petitioners. In this connection, Mr. Bhuyan, learned counsel for the petitioners has referred to the particular exercise that was carried out in respect of the candidate (writ petitioner in WP(C) No.1686/2011) pursuant to which she was found selected and eventually had to be appointed. He also submits that even if the original marks are taken into account, the petitioners involved in WP(C) No.6459/2010 and WP(C) No.433/2011 may not be able to qualify to get the selection in terms of the cut off marks, but having regard to excess appointment in the category of compassionate appointment and also having regard to the available vacancies, they might make it to the final selection. However, Mr.

14 14 Talukdar, learned State Counsel, submits that everything will have to be considered in reference to the particular principle/policy that was adopted by the selection board and in reference to the then existing vacancies. 14. All the writ petitions are disposed of directing the respondents, more particularly the respondent No.2 to re-examine the case of the petitioners in reference to the available materials and consistently with the observations made above and thereafter to pass appropriate order. Let the required exercise in terms of this order be carried out as expeditiously as possible, preferably within two months. 15. Before parting with the case record, it is made clear that this order will not cloths any of the candidates who had appeared in the selection in question to get their mater re-examined as by now more than four years have gone by since the selection was held and appointments were made and for all these years, they did not make any grievance. 16. Writ petition are answered in the above manner, leaving the parties to bear their own costs. JUDGE Alam

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