WP(C) 2430/2015

IN THE GAUHATI HIGH COURT

(The High Court of , Nagaland, Mizoram and Arunachal Pradesh)

Case No: WP(C) 2430/2015

Nripendra Nath Seal Son of Late Gomi Kanta Seal Village-Barnali Kuchi P.O.-Patacharkuchi District-Barpeta, Assam. ………..…… Petitioner.

-Versus-

1. The State of Assam, represented by the Commissioner and Secretary, to the Irrigation Department, , -6. 2. The Chief Engineer Irrigation, Assam, Chandmari, Guwahati-3. 3. The Superintending Engineer, (Cum Chairman Selection Committee) North Kamrup Circle, Irrigation, Nalbari. 4. The Executive Engineer, Tihu, Investigation Division (Irrigation) Tihu. 5. Rajib Ray S/o Not known P.O. & Village-Paramankhowa Tihu, P.S. Tihu, District-Nalbari, Pin-781327. …...... Respondents.

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BEFORE :: HON’BLE MR. JUSTICE NELSON SAILO

For the Writ Petitioner : Mr. H. Das, Advocate

For the Respondents : Dr. B. Ahmed, (respondent Nos. 1 to 4) : Mr. S.K. Talukdar, (respondent No. 5)

Date of Hearing : 07.11.2017

Date of delivery of Judgment & Order : 17.11.2017

JUDGMENT AND ORDER (CAV)

Heard Mr. H. Das, the learned counsel for the petitioner and Dr. B. Ahmed, the learned counsel who appears for respondent Nos. 1 to 4. Mr. S.K. Talukdar, the learned counsel appears for the respondent No. 5.

2. The case of the petitioner in brief is that the Superintending Engineer, North Kamrup, Circle (Irrigation), Nalbari (respondent No. 3) issued an advertisement through the local daily (Dainik Agradoot) on 24.07.2013 (Annexure-II) inviting application from eligible candidates for filling up of 2 (two) vacant posts of Power Pump Operator (PPO) under the establishment of Executive Engineer, Tihu Irrigation Division, Tihu amongst others. As per the advertisement 1 (one) post each was meant for

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candidates from the unreserved category and the OBC category. The petitioner who belongs to an OBC category and completed Fitter Course from the Training Institute, Barpeta applied for the said post. The petitioner was issued a call letter on 30.09.2014 (Annexure-III) for the Written Test scheduled to be conducted on 19.10.2014. Pursuant to the Written Test, the respondent No. 3 issued a notice in the local daily () on 20.12.2014 publishing the Roll Numbers of all the successful candidates in the Written Test. The petitioner who was given Roll No. 069 was one amongst the successful candidates. As per the said notice, interview was scheduled on 26.12.2014 at 9.00 A.M. and the petitioner received his call letter for the interview which was issued to him on 18.12.2014 (Annexure-V).

3. It may be noticed that at this stage the petitioner was already over-aged to apply for the post of (PPO) as he was 44 years and 11 Months as on 01.01.2013 while the upper age limit as per the advertisement dated 24.07.2013 was 38 years. The petitioner therefore approached the respondent authorities for relaxation of his age by submitting an application which was forwarded to the Secretary to the Government of Assam, Irrigation Department by the Chief Engineer, Irrigation Department on 08.01.2015 (Annexure-VI). The respondents upon considering the application of the petitioner alongwith the Office Memorandum dated 04.01.1992 (Annexure-VIII) accorded age relaxation to the petitioner and the approval of the Government was communicated to the Chief Engineer, Irrigation Department by the Under Secretary to the Government of Assam, Irrigation

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Department on 20.01.2015 (Annexure-VII). The Chief Engineer thereafter, in turn communicated the same to the respondent No. 3 on 22.01.2015 (Annexure-IX). The grievance of the petitioner is that despite being successful in the Written Test and having performed well in the interview, to his surprise, he was not recommended and selected for the post of PPO.

4. According to the petitioner, although, the private respondent No.5 never submitted his candidature for the post of PPO under the establishment of Executive Engineer, Tihu Investigation Division of the Irrigation Department, the respondents nevertheless selected him and his Roll No. was 081. Mr. H. Das, the learned counsel representing the petitioner therefore submits that the selection and appointment of respondent No. 5 being irregular if not illegal should be set aside and the State respondents directed to appoint the petitioner.

5. The respondent No. 5 is represented by Mr. S.K. Talukdar, the learned counsel and since an affidavit-in-opposition was filed by him earlier to the official respondents, the contention of the respondent No. 5 may be noted first. Mr. S.K. Talukdar by referring to the pleadings made in the affidavit-in-opposition at the outset submits that the writ petitioner has no locus standi to file the instant writ petition since a perusal of the date of birth as recorded in his school certificate (Annexure-I of the writ petition) reveals that his date of birth is 01.01.1968. He submits that if that was the case, the petitioner would be about 43 years of age at the time of applying for the post of PPO and was clearly over-aged

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since the prescribed age limit for the applicants was between 18 to 38 years. Although, the petitioner secured condonation of his age subsequently, the petitioner nevertheless failed to meet the requirements as stipulated in the advertisement while submitting his application. Therefore, the petitioner has no right to challenge the selection and appointment of the respondent No. 5.

6. Mr. S.K. Talukdar further submits that the respondent No. 5 in fact pursuant to the advertisement dated 24.07.2013 submitted his candidature as an OBC candidate to the authority concerned before the last date submission of applications as on 12.08.2013 while annexing all the required documents including his Provisional Trade Certificate. The official respondents thereafter upon scrutinizing his documents and particulars permitted him to sit for the Written Test on 19.10.2014 as was scheduled where he came out successful. Thereafter, he was called for the interview on 26.12.2014 before the selection committee and performed well. Therefore, it was only after such process that he was recommended and selected for appointment as PPO against the OBC category. The contention of the petitioner that the respondent No. 5 was not amongst the candidates who applied for the post is without any substance and therefore, the writ petition only being misconcieved should be rejected and dismissed. Mr. S.K. Talukdar also submits that the petitioner having participated in the selection process alongwith other candidates and thereafter, having failed to be selected cannot now turn around to challenge the selection process merely because he was unsuccessful. By relying upon the case of

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Sadananda Halo & Ors. Vs. Momtaz Ali Sheikh & Ors. 2008 4 SCC 619. Mr. S.K. Talukdar submits that unless there is some illegality prima facie, an unsuccessful candidate who undertook the selection process is estopped from challenging the selection process.

7. The respondent Nos. 1 to 4 have filed their affidavit-in- opposition through the respondent No. 4 on 15.06.2016. Appearing for the respondent Irrigation Department, Dr. B. Ahmed, the learned counsel submits that the proposal for filling up of 30 (thirty) Grade-III posts which included the post of PPO was duly approved by the Chief Engineer, Irrigation Department and pursuant to which the Advertisement dated 24.07.2013 was published. That in the selection for the 2 (two) vacant posts of PPO under the Tihu Investigation Division, one post was meant for category candidate and the other for OBC candidate. From amongst the OBC category, 2 (two) persons i.e., the writ petitioner and respondent No. 5 qualified themselves. Consequently, in the final selection, the respondent No. 5 was recommended for appointment against the single post reserved for OBC candidate. The total marks secured by the respondent No. 5 and the petitioner in the Written Test and in the practical plus viva voice test were 86 marks and 82.08 marks respectively. Altogether 4 (four) candidates including the respondent No. 5 were selected for the post of PPO under the 2 (two) Divisions of Nalbari and Barpeta of the Irrigation Department. Thus the respondent No. 5 having secured more marks then the writ petitioner was recommended for appointment to the post of PPO.

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Dr. B. Ahmed submits that the allegation of the petitioner that the respondent No. 5 was not a candidate for selection to the post of PPO is without any basis and is misconceived. He submits that the name of the respondent No. 5 clearly appears in the Evaluation Sheet and he was very much a candidate for the post and that the selection was made Circlewise which included both the Barpeta and Nalbari Divisions. Therefore, the claim of the petitioner being without any substance, the writ petition should be dismissed. He also submits that since the then Executive Engineer of Tihu Investigation Division having been transferred to another Division, the respondent No. 5 has not yet been appointed, although it was observed by this Court vide order dated 29.04.2015 that the appointment of the respondent No. 5 would be subject to the outcome of the writ petition. Dr. B. Ahmed has also produced the relevant records pertaining to the selection for the post of PPO.

8. I have heard the learned counsels appearing for the rival parties and I have perused the materials available on record including the departmental records produced by Dr. B. Ahmed.

9. From the case projected by the writ petitioner, the point to be decided is as to whether the respondent No. 5 had applied for the post of PPO and participated in the selection process. Secondly, whether the writ petitioner can have any legitimate grievance since he was already over-aged at the time of submitting the application for the post of PPO pursuant to the Advertisement issued on 24.07.2013. Thirdly, whether the recommendation and selection of the respondent No. 5 as PPO

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under Tihu Division was proper since the Advertisement dated 24.07.2013 covered 2 (two) Divisions i.e. Nalbari and Barpeta Division and Fourthly, as to whether they was any irregular and arbitrary action on the part of Selection Board in allotting marks to the respective candidates particularly in the viva voice test.

10. On perusal of the records produced by Dr. B. Ahmed, it is seen that a committee was constituted vide Office Order dated 24.12.2014 comprising of 1 (one) Chairman and 4 (four) members to conduct viva voice and practical test for the post of PPO, Junior Assistant and Section Assistant. The Selection Committee on the same day took a decision amongst others that for the post of Section Assistant and PPO, marks obtained in Written Test out of 100 marks allotted and the average marks given by each member of the Selection Committee out of the 25 marks allotted for the viva voice test would be considered in evaluating the total marks of final selection. Following the said procedure, the Selection Committee on 12.01.2015 held its meeting wherein 4 (four) candidates were shortlisted for appointment of the post of PPO. 1 (one) candidate each were selected for the General, ST, ST (P), SC and OBC category. The respondent No. 5 was selected for the OBC category and his name appears at serial No. 3 amongst the 4 (four) selected candidates. It can be also be seen that in the evaluation of marks for the post of PPO, the petitioner secured 8 (eight) marks in the viva voice test while the respondent No. 5 secured 17 marks. Thus, the total marks secured by the petitioner was 82.08 while the respondent No. 5 secured 86 marks in all. The records produced by Dr. Ahmed do not contain applications submitted by

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the candidates but the issue will be further discussed at paragraph No.12 below.

11. The next point as to whether to the petition itself is maintainable on account of the petitioner being over-aged at the time of submitting the application pursuant to the Advertisement issued on 24.07.2013 will have to be considered in the light of the age relaxation granted to the petitioner vide communication dated 20.01.2015. The State Government vide Office Memorandum dated 04.01.1992 in the Department of Personal had decided that relaxation be granted up to the age of 45 (forty five) years was taken into consideration. As the petitioner was granted age relaxation, subsequently, I am not inclined to reject the writ petition on this Count alone.

12. The admitted position is that Nalbari and Barpeta Divisions are both under the North Kamrup Circle of the Irrigation Department which is headed by the Superintending Engineer. Upon perusal of the Advertisement dated 24.07.2013, besides requiring the applicants to submit their application to the respective office, there is no indication the candidates would be considered only against the respective office to which they have applied. In that view of the matter, the contention of the petitioner that the respondent No. 5 was not an applicant who submitted his application in the establishment of the Executive Engineer, Tihu Investigation Division cannot be accepted.

13. Lastly, the allotment of marks towards the Written Test was 100 marks while 25 marks were allotted for the viva voice test.

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Although the Advertisement dated 24.07.2013 does not indicate as to how much marks would be allotted to viva voice test, the admitted position is that 25 marks was allotted for viva voice test. The constituted Selection Committee took a decision to take the average mark allotted by the members who conducted the interview. Accordingly, the candidates including the writ petitioner and the respondent No. 5 were given their respective marks by the Interview Board. Therefore such adopted procedure having been followed in respect of all the candidates, I do not find any ground for interfering with the evaluation made by the interview Board.

14. Mr. H. Das, the learned counsel for the petitioner has produced a number of documents which was furnished to the petitioner by the Executive Engineer of Nalbari Division and Tihu Investigation Division. Although such documents were furnished to the petitioner as early as on 16.08.2016 and as late as 03.01.2017, I am not inclined to entertain the same at this stage inasmuch as the petitioner could have very well filed the same by way of an additional affidavit before the case was heard. The decision rendered by full bench of this Court in the case of Jitendra Kalita and Ors Vs State of Assam 2006 2GLT 654 relied upon the petitioner also does not come to his aid since the division of marks between the written test and the viva voice test in that case was 100:100. Whereas in the instant case as may be noticed, the division of marks was in the ratio of 100:25 and therefore, I do not find any irregularity in the marks allotted to the respective candidates by the Interview Board.

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15. Considering the matter in its entirety, I do not find any merit to the writ petition and the same is dismissed. No cost.

JUDGE

B. Dey

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