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

WRIT PETITION (C) NO.5890 OF 2009

Petitioner: Jahiruddin Ahmed, Son of Late Jehinuddin Ahmed, PO & PS- Dibrugarh, Pin-786005, District- Dibrugarh, Assam.

By Advocate: Ms. S.P. Hussain.

Respondents :

1. State of Assam, Represented by the Commissioner and Secretary to the Government of Assam, Forest Department, Dispur, -06.

2. Principal Chief Conservator of Forests, Assam, Guwahati.

3. District Forest Officer, Dibrugarh, Assam.

By Advocate: Ms. B. Dutta, GA, Assam.

B E F O R E HON’BLE MR. JUSTICE UJJAL BHUYAN

Date of hearing : 08-03-2013

Date of Judgment : 02.08.2013

J U D G M E N T AND O R D E R (ORAL)

Heard Ms. S.P. Hussain, learned Counsel for the petitioner and Ms. B. Dutta, learned Government Advocate, Assam, who has also produced the record.

2. In this writ petition, petitioner seeks quashing of select list

dated 17-12-2009 published by the Principal Chief Conservator of

Forests and Head of Forest Force, Assam for the post of Forest Guard.

Petitioner also seeks quashing of the selection and appointment of the

candidates against the post of Forest Guard pursuant to the advertisements dated 02-02-2008 and 08-09-2008.

3. Case of the petitioner is that he was engaged as a casual worker in the Dibrugarh Forest Division under the Forest Department,

Government of Assam in the year 2001. In the year 2006, considering his computer operating skill, service of the petitioner was utilized as a

computer operator and he has been working as such since then.

4. An advertisement was published by the Principal Chief

Conservator of Forests, Assam (respondent No.2) on 02-02-2008

inviting applications from eligible candidates for various posts, such

as, Forester Grade-I, Forest Guard/Game Watcher, Grass Cutter,

Junior Assistant (Directorate Level), Junior Assistant (Divisional Level)

and AFPF Constable.

5. Another advertisement dated 08-09-2008 was issued by the respondent No.2 for various posts, including the post of Forest

Guard. In this advertisement, it was stated that working casual workers/ departmental candidates of the Forest Department would be given priority by the appointing authority.

6. Pursuant to the above advertisements, petitioner submitted applications for the posts of Forester Grade-I, Forest Guard and Junior Assistant (Divisional Level). Petitioner appeared in the written examination in respect of all the above three posts. However,

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petitioner could come out successful in the written examination only

for the post of Forest Guard. As he qualified in the written

examination, he was called to appear in the physical fitness test and

viva-voce scheduled on 13-10-2009. Physical fitness test for male

candidates was a walking test of 26 km required to be completed

within 4 hours. According to the petitioner, he appeared in the

physical fitness test as well as in the viva-voce on the scheduled date.

He stood first in the physical fitness test and performed extremely well in the viva voce.

7. On 17-12-2009, the final select list of Forest Guard/Game

Watcher was published by the respondent No.2. Petitioner’s name, rather his roll number, was not included in the said select list dated

17-12-2009, which was published in the daily English language newspaper “”.

8. Aggrieved by his non-inclusion in the select list, petitioner

has filed the present writ petition seeking the reliefs as indicated

above.

9. Contention of the petitioner is that the select list was manipulated at the instance of the “Concerned minister”. Most of the selected candidates belong to the Minister’s constituency and some of them did not even appear in the physical test or viva-voce. Petitioner being a working casual worker of the department, he should have been

given priority as per the advertisement.

10. An affidavit was filed on 19-05-2010 on behalf of

respondent No.2. It is stated that as per Government instruction,

advertisements were issued on 02-02-2008 and 08-09-2008 for filling

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up the vacant posts of Forest Guard and other posts in the

Environment and Forest Department. Written test was held on 15-02-

2009. List of candidates who qualified in the written test was notified

on 18-06-2009, which was published in two daily news-papers, namely “The Assam Tribune” and “Aji”. Petitioner was successful in the written test. Thereafter, physical fitness test and viva-voce was held on 05-10-2009. Final select list was notified on 07-12-2009, which was published in the above two newspapers. The selection process was, amongst others, for 178 posts of Forest Guard, the breakup of which was as follows:-

ST (P) --- 14

ST (H) --- 08

SC --- 12

OBC/MOBC --- 48

UNRESERVED --- 96

TOTAL --- 178

Respondent No.2 has asserted that candidates were selected on the basis of merit. Allegations made in the writ petition have been denied.

11. An additional affidavit was filed on behalf of respondent

No.2 on 14-02-2011. In this affidavit, it is stated that petitioner had

qualified in the written examination and also in the physical fitness test. The physical fitness test was qualifying in nature and carried no marks. Due weightage was given to the performance, qualification,

experience and other qualities while assessing the relative suitability of

the candidates as per the requirement of the job. The candidates were

selected on merit. Petitioner belongs to the category. He

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secured 56 marks in the written examination and 22 marks in the viva-voce i.e. 78 marks in total. The last selected candidate under the general category had secured 84 marks. Therefore, petitioner could not be selected. The list of selected candidates has been annexed to the additional affidavit.

12. Respondent No.2 had filed a further affidavit on 21-09-

2011. It is stated that respondent No.2 had issued an order on 14-07-

2009, modified on 16-09-2009, constituting a committee to conduct the viva-voce test. The committee comprised of the following :-

(1) Dr. R.M. Dubey, IFS, Chief --- Chairman Conservator of Forests.

(2) Shri A.S. Lashkar, IFS, DCF, --- Member Enforcement. Secretary

(3) Shri T.K. Das, IFS, CF (HQ). --- Member

(4) Shri S.K. Bora, IFS, PO-II. --- Member

It is stated that altogether 2114 candidates were called for viva-voce, which was held from 05-10-2009 to 23-10-2009. 50 marks were allotted for viva-voce. Thus, the marks earmarked for written examination and viva-voce were 75 and 50 respectively, the total being

125. Petitioner secured 56 marks out of 75 in the written test and 22 marks out of 50 in the viva-voce. Thus, he secured 78 marks in total out of 125. As the last selected candidate under the general category had secured 84 marks, petitioner could not be selected.

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13. Learned Counsel for the petitioner submits that though 62

posts of Forest Guard were advertised, the select list contained 178

selected candidates, which is indicative of some foul play. Though it is

not pleaded in the writ petition, learned Counsel for the petitioner has argued that the marks allotted for the viva-voce i.e. 50 was not indicated in the advertisement. She also submits that the marks allotted for viva-voce i.e. 50 out of 125 was unreasonably high considering that the recruitment was for the post of Forest Guard, which had a crucial impact on the selection. While the petitioner secured good marks in the written examination, he was given low marks in the viva-voce. As the viva-voce segment carried disproportionately high marks, it adversely affected petitioner’s chances of selection. Court should therefore intervene in the matter. In support of her submissions, learned Counsel for the petitioner has placed reliance on the following decisions:-

(1) (1981) 4 SCC 159 Lila Dhar –Vs- State of Rajasthan and others

(2) (1991) 1 SCC 662 Mohinder Sain Garg –Vs- State of Punjab and others

(3) (1994) 1 SCC 150 Anzar Ahmed –Vs- State of Bihar and others

(4) (2003) 2 SCC 132 Jasvinder Singh and others –Vs- State of Jammu and Kashmir and others

(5) (2003) 9 SCC 401 Vijay Syal and another –Vs- State of Punjab and others (6) (2004) 6 SCC 786 Inder Parkash Gupta -Vs- State of Jammu and Kashmir and others

(7) 2006 (2) GLT 654 Jitendra Kalita and others -Vs- State of Assam and others

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(8) (2010) 12 SCC 576 Manish Kumar Shahi –Vs- State of Bihar and others

14. Ms. B. Dutta, learned Government Advocate on the other hand submits that there is no infirmity in the selection process.

Petitioner had participated in the selection but could not be successful. Therefore, he cannot now turn around and contend that the selection was illegal. No case for interference is made out. Learned

Government Advocate has also produced the record.

15. Submissions made have been considered. I have also perused the record produced.

16. In the advertisement dated 02-02-2008, a total of 116 posts of Forest Guard / Game Watcher was advertised. It was stated that selection test would comprise of a written test of 2 hours duration for 75 marks, physical fitness test and viva-voce. In the later advertisement dated 08-09-2008, a total of 62 posts of Forest Guard was advertised. The nature of the selection to be conducted was the same as mentioned in the earlier advertisement dated 02-02-2008.

Thus, a total of 178 posts of Forest Guard (116 + 62 = 178) was advertised by the two advertisements. Though in the advertisements it was mentioned that there would be a written test of 2 hours duration for 75 marks covering (a) General mathematics, (b) English and vernacular dictation and (c) General Knowledge, no such marks were indicated in the advertisements for the physical fitness test and viva- voce. Subsequently, it has been stated in the affidavits filed by respondent No.2 that the physical fitness test was of qualifying nature with no marks being allotted whereas 50 marks were allotted for the

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viva-voce. In my opinion, there is no infirmity in the above procedure adopted by the respondents. It was sufficient to indicate in the advertisements that the written examination carried 75 marks as it was the first hurdle which the candidates had to overcome. Since the physical fitness test was again a qualifying test with no marks being allotted, the question of indicating marks allotted for the said test in the advertisements did not arise. In so far viva-voce was concerned, it was decided that it would carry 50 marks. It would have been more appropriate if the allotment of such marks for the viva-voce was indicated in the advertisements. But failure to disclose the same in the advertisements would not be fatal to the selection.

17. On the argument that allotment of 50 marks for viva-voce out of a total of 125 marks i.e., 40% of the total marks is disproportionately high, I am of the view that contention of the petitioner may have some merit as the selection was for the post of

Forest Guard where personality test or personal assessment may not have much relevance. However, it is a settled proposition that there is no hard and fast rule of universal application for allocating marks for viva-voce vis-à-vis marks for written examination. The percentage of marks for viva-voce which can be regarded as unreasonable will depend on the facts of each case. Coming to the present case, considering the fact that the selection was for the post of Forest

Guard, allocation of 50 marks in the viva-voce out of a total of 125, which is 40% of the total marks, appears to be on the higher side.

However, I am not inclined to set aside the selection on this ground, firstly, because this point has not been pleaded by the petitioner and, secondly, the selected candidates have not been impleaded as parties

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in the present proceeding. From the record it is also seen that the selected candidates had already been appointed. As such, prayer of the petitioner for quashing of the select list and the appointments made cannot be granted in the absence of the selected candidates.

However, this aspect of the matter i.e., allocation of higher marks in the viva-voce may be looked into by the authority of the Forest

Department in case of future recruitment.

18. The other ground raised by the petitioner that the selection was influenced by the “Concerned Minister” cannot be accepted as the petitioner has not described or identified who that concerned Minister is. The allegation is vague and devoid of any specifics. In the absence of any particulars, the above ground urged cannot be gone into.

19. In view of the discussions made above, deliberations on the case laws cited above is considered not necessary.

20. In view of above, reliefs sought for by the petitioner cannot be granted.

21. Writ petition is accordingly dismissed. But there shall be no order as to cost.

22. Record produced by the learned Government Advocate is returned back.

JUDGE

Aparna

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