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Wp(C) 3354/2010

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Wp(C) 3354/2010 IN THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) WRIT PETITION (C) NO.3354/2010 Petitioners : 1. Shri Mahendra Das, S/o Late Ratneswar Das, R/o. Village:Maricha Gaon, P.O.-Chetia Gaon, P.S. Chabua, Dist-Dibrugarh, Assam. 2. Shri Kamal Konwar, S/o Shri Lakhoswar Konwar, R/o. Village:Dibruwal Gaon, P.O. & P.S.- Barbaruah, Dist-Dibrugarh, Assam. 3. Shri Bhabesh Sonowal, S/o Late Jitram Sonowal, R/o. Village:Ouphulia Gaon, P.S. Tingkhong, Dist-Dibrugarh, Assam. 4. Shri Prasanta Gogoi, S/o Sri Jiba Kanta Gogoi, R/o. Jaya Nagar, P.O. & P.S.- Duliajan, Dist-Dibrugarh, Assam. 5. Shri Pranjal Mahanta, S/o Shri Jagat Mahanta, R/o. Village:Merbill Bhakatgaon, P.O.-Sessoni, P.S.-Naharkatia, Dist-Dibrugarh, Assam. By Advocate : Mr. R. Mazumdar. Respondents : 1. State of Assam, through the Commissioner and Secretary to the Government of Assam, Excise Department, Dispur, Guwahati-6. 2. Commissioner of Excise, Assam Housefed Complex, Dispur, Guwahati-6. 3. Deputy Commissioner, Dibrugarh, P.O.-Dibrugarh, W.P (C) No. 3354 of 2010 Page 1 of 12 Dist-Dibrugarh, Assam. 4. Superintendent of Excise, Dibrugarh, P.O.-Dibrugarh, Dist-Dibrugarh, Assam. By Advocates: Ms. S. Seal, SC, Excise Department. B E F O R E HON’BLE MR. JUSTICE UJJAL BHUYAN. Date of hearing : 22.07.2014. Date of Judgment : 31.07.2014. J U D G M E N T AND O R D E R (ORAL) This case was heard on 22.07.2014 and today is fixed for delivery of judgment. 2. Heard Mr. R. Mazumdar, learned counsel for the petitioners and Ms. S. Seal, learned Standing Counsel, Excise Department. 3. By way of this petition under Article 226 of the Constitution of India, petitioners seek quashing of Annexure-12 order dated 31.05.2010 passed by the Commissioner of Excise, Assam cancelling the recruitment process undertaken pursuant to the advertisement of 2005 in respect of Dibrugarh district. Petitioners further pray for a direction to the respondents to give effect to the select list of 2005 and to appoint them as Excise Constables. W.P (C) No. 3354 of 2010 Page 2 of 12 4. Case of the petitioners is that a recruitment process was undertaken in the year 2005 for selection and appointment of Excise Constables in the Excise Department, Government of Assam. 5 posts of Excise Constable were allotted to Dibrugarh district. Selection was conducted by the Deputy Commissioner, Dibrugarh. 873 candidates had appeared in the selection out of which a select list was prepared. When the select list was not published and appointment was not made therefrom, petitioners approached this Court by filing WP(C) No. 340/2007. 5. The writ petition was contested by the State. Stand taken was that because of non-receipt of sanction from the Finance Department select list could not be published. This Court by the judgment and order dated 23.03.2010 took the view that the ground assigned by the State for non-publishing of the select list of 2005 was not sustainable. Accordingly, matter was remanded back to the departmental authority to take a conscious decision in respect of the select list of 2005 which was stated to have been forwarded to the Government by the Deputy Commissioner on 08.08.2005. 6. Following the order of this Court, Commissioner of Excise, Assam passed the impugned order dated 31.05.2010. By the said order the Commissioner declared that the recruitment process undertaken in Dibrugarh district pursuant to the advertisement of the year 2005 should be treated as cancelled. It was further observed that since a fresh recruitment process had already commenced in the year 2008, case of the petitioners would be considered in the said recruitment process including by relaxation of the upper age requirement. W.P (C) No. 3354 of 2010 Page 3 of 12 7. It is against this order dated 31.05.2010 that the petitioners have filed the present writ petition. Contention of the petitioners is that the impugned order dated 31.05.2010 was based on the grounds which were already held to be unsustainable in the earlier round of litigation. Therefore, no conscious decision was taken as was directed to be taken by the Court. A valid selection process cannot be aborted in the manner sought to be done by the respondents, it is contended. 8. This Court by order dated 11.06.2010 had issued notice and had also passed an interim order directing maintenance of status quo as regards filling up of 8 posts of Excise Constable in Dibrugarh district which vacancies were available in the year 2005 for which the recruitment was held. By a subsequent order dated 27.05.2011, this Court modified the initial status quo order dated 11.06.2010 by providing that petitioners may participate in the proposed fresh selection process without prejudice to their contentions raised in the writ petition. This Court, however, directed that no appointment should be made to the posts of Excise Constable without the leave of this Court. 9. Commissioner of Excise, Assam as the applicant had filed an application seeking leave to publish the select list of selected candidates following fresh selection process for the post of Excise Constable in Dibrugarh district. The said application was registered as Misc. Case No. 1019/2013. It was stated that a fresh selection process for 13 vacant posts of Excise Constable for Dibrugarh district was undertaken in which a total of 17,122 candidates had applied out of W.P (C) No. 3354 of 2010 Page 4 of 12 which 9282 candidates including the 5 petitioners were screened in the physical test. Out of 9282 candidates, 888 candidates qualified for the viva voce test. A total of 703 candidates appeared in the viva voce test out of which 13 candidates were selected as per merit and on the basis of reservation policy. The Court was informed that in the select list of 13 candidates, 2 of the petitioner namely, Sri Pranjal Mahanta and Sri Bhabesh Sonowal were included. This Court by order dated 10.05.2013 vacated the interim order dated 27.05.2011 and granted leave to the Commissioner to publish the select list and to appoint the selected candidates with the observation that such appointment would abide by the final order to be passed in the related writ petition. 10. Respondent Nos. 1 & 2 have filed counter affidavit. Stand taken in the affidavit is that no select list was published in the year 2005 as the proposed list was neither approved by the competent authority nor published. The Commissioner of Excise by the impugned order dated 31.05.2010 had clarified the position by holding that the selection of 2005 stood cancelled. 11. Mr. Mazumdar, learned counsel for the petitioners submits that cancellation of the recruitment process carried out in the year 2005 is not at all justified. Petitioners, who had participated in the selection of 2005, have a legitimate expectation that the said selection process would be taken to its logical conclusion. Any departure therefrom must be for cogent and bonafide reasons. Respondents have not been able to show any cogent or bonafide reasons to abandon the selection process which was otherwise valid. He, however, fairly submits that 2 of the petitioners named above have since been appointed as Excise Constable, following the subsequent W.P (C) No. 3354 of 2010 Page 5 of 12 recruitment process. He further submits that in response to another advertisement published on 09.10.2013, 3 of the remaining petitioners had participated in the recruitment process to fill up 43 vacant posts of Excise Constable and as per information available with him, petitioner No. 1 Sri Mahendra Das has qualified in the physical test and has been called for viva voce leaving out the remaining 2 petitioners Sri Kamal Konwar and Sri Prasanta Gogoi. He also submits that as on date some more vacancies in the post of Excise Constable in the Excise Department in Dibrugarh district are available and, therefore, the case of the 2 remaining petitioners may be considered against those vacancies. 12. Ms. S. Seal, learned Standing Counsel, Excise Department relies on the impugned order dated 31.05.2010 and submits that petitioners do not have any vested right to compel the respondents to publish a select list and, thereafter, to act on such select list. Select list was not published and, therefore, question of giving effect to such select list does not arise. She further submits that much development has taken place since the selection of 2005 and, therefore, at this stage, it may not be proper to turn the clock back and unsettle all the subsequent selections held. The 13 selected candidates who have since been appointment pursuant to the order dated 10.05.2013 passed in Misc. Case No. 1019/2013 are also not before the Court barring the 2 petitioners Sri Pranjal Mahanta and Sri Bhabesh Sonowal. In the absence of the said selected candidates, it may not be proper to pass any order adverse to the selected candidates. W.P (C) No. 3354 of 2010 Page 6 of 12 13. Submissions made by learned counsel for the parties have received the due consideration of the Court. 14. Since the primary challenge in this writ petition is to the legality and validity of the order dated 31.05.2010 passed by the Commissioner of Excise, the same may now be adverted to. In a long order running into 12 pages, the Commissioner of Excise has justified his decision to treat the selection process undertaken in Dibrugarh district in the year 2005 as cancelled.
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