Wp(C) 5890/2009
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IN THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM, 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, Guwahati-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, W.P.(C)No.5890/2009 Page 2 of 9 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 “The Assam Tribune”. 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 W.P.(C)No.5890/2009 Page 3 of 9 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 general category. He W.P.(C)No.5890/2009 Page 4 of 9 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. W.P.(C)No.5890/2009 Page 5 of 9 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 W.P.(C)No.5890/2009 Page 6 of 9 (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.