IN THE (THE HIGH COURT OF , NAGALAND, AND )

WRIT PETITION (C) NO.3354/2010 Petitioners :

1. Shri Mahendra , S/o Late Ratneswar Das, R/o. Village:Maricha Gaon, P.O.-Chetia Gaon, P.S. Chabua, Dist-, 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 , Excise Department, , -6.

2. Commissioner of Excise, Assam Housefed Complex, Dispur, Guwahati-6.

3. Deputy Commissioner, Dibrugarh, P.O.-Dibrugarh,

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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 , 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 . 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.

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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.

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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

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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

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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.

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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. In the said order, Commissioner

has shown that by allotment of posts to different districts, such as,

Kokrajhar (4), Udalguri (5), (5) and (1), all the posts in

respect of the districts of Dhubri, Dibrugarh, Lakhimpur, Sonitpur

and were filled up except 2. When more vacancies became

available, Finance (SIU) Department was moved for filling up those

vacancies. Ultimately, the Commissioner of Excise submitted a

consolidated proposal to fill up 79 vacancies which finally received the

approval of the Finance (SIU) Department. Out of the 79 vacancies,

Dibrugarh district was allotted 13 vacancies. This is how fresh recruitment process was commenced in Dibrugarh district in the year

2008 in which the petitioners had also participated. Reverting back to the selection of 2005, the Commissioner of Excise held as under:-

“28. The Commissioner of Excise, Assam had forwarded a list of 873 nos. of candidates he stated to have received from the employment Exchange of Dibrugarh district to the establishment at Dibrugarh District. These 873 Nos. of candidates were called for the Physical fitness tests followed by medical fitness test and oral test 27th, 28th and 29th July, 2005. Out of these 873 Nos. of candidates, 519 nos, of candidates appeared in the physical fitness tests and a total of 142 nos. of candidates had completed the 1500 metres race in 4 minutes prescribed for female candidates. During the medical examination, all these 142 nos. of candidates were found medically fit. Thereafter, these candidates appeared in the oral test and marking were done on the basis of performance in the oral test after having awarded 30 marks to all these candidates who completed the physical fitness test i.e., the race within the Stipulated time.

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29. Considering the marks obtained in the physical fitness test and oral test, a list of 32 nos. of candidates was prepared at the ratio of 1:4 i.e., 4 candidates against each post, in order to merit on the basis of guidelines stated to have been issued by the Commissioner of Excise, Assam. The date of preparation of the said list was 29.06.2005. The selection Committee comprised of (1) Deputy Commissioner, Dibrugarh, (2) Joint Commissioner of Excise-Member, and (3) Superintendent of Excise, Dibrugarh-Member-Secretary.

(Ref: Minutes of the Selection Committee Meeting dated 29.07.2005).

30. The said list of 32 nos. of candidates stood forwarded by district authority of Dibrugarh, i.e. the Deputy Commissioner, Dibrugarh on 08.08.2005 to the Commissioner of Excise, Assam during the year 2005 for publication and the matter rested there.

(Ref: letter No.DXL.9/2005/5455 dated 08.08.2005)

31. The Commissioner of Excise, Assam for some reason or the other (Reason not mentioned then), did not publish the said so-called select list of 32 candidates. No appointment out of the said list of 32 candidates had been made so far.

32. In the year 2007, a total 5 (five) petitioners, namely,

Sl. Name 1. Sri Bhabesh Sonowal 2. Sri Prasanta Gogoi 3. Sri Kamal Konwar 4. Sri Pranjal Mahanta 5. Sri Mohendra Das

had moved a writ petition being WP(C) No. 340/2007 before the Hon’ble Gauhati High Court prayers, inter-alia, were made in the writ petition for a direction to the Respondents to publish the result i.e., the Select list of the selection made in the month of July’ 2005 for 8 nos. of Excise Constable posts in the district of Dibrugarh and further direction to make appointments of the selected candidates as done in the other district of the State of Assam.

33. The Hon’ble High Court while issuing the notice of motion in the WP(C) No. 340/2007, had passed an interim direction to the effect that- “In the interim it is directed that no appointment outside the select list shall be made.” It was in that view of matter, while publishing the Selection List on 30.12.2009 mention was made to the effect that appointment would be made in respect of Dibrugarh district after disposal of the Writ petition WP(C) No. 340/2007.

34. The said writ petition was partly allowed by the Hon’ble Gauhati High Court vide its judgment and order dated 23.03.2010 by direction the State respondents to act upon the letter dated 08.08.2005 (i.e. the Deputy Commissioner’s letter No. Letter No. DXL.9/2005/5455 dated 08.08.2005) by which select list was forwarded for necessary approval. The Hon’ble High Court has further observed that depending upon the

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decision on the said select list, the respondents would have to take necessary follow up actions, preferably within 31.05.2010.

35. It appears from the aforementioned Judgment and Order dated 23.03.2010 that many a facts were not correctly presented before the Hon’ble High Court in the course of the said proceedings. The Hon’ble Gauhati High Court in the course of the said proceedings. The Hon’ble Gauhati High Court has directed the respondents to take a conscious decision in respect of the select list of 2005. It may apposite to mention that the stands taken by the respondents in the said proceedings in respect of validity of the select list of 12 months and enforceability of the model code of conduct were tenable and the same have been rejected by the Hon’ble High Court.

36. The stated vacancies in the cadre of Dibrugarh District at the time of the Advertisement of 2008 of Excise Constables in respect of Dibrugarh District was 13 (thirteen) which consisted of the 8 (eight) vacancies that existed in 2005 and for which a recruitment was under taken but not completed for the facts stated above.

37. For the facts stated above, it transpires that out of the originally approved 100 (one hundred posts) vacancies of 2005 in the cadre of Excise Constables approved by the S.L.E.C. were filled up in the manner stated above, Thereafter, 15 vacancies out of the 17 approved posts for other districts were filled up in the manner stated above. Only 2 (two) vacancies of 2005 remained to be filled up as on date.

38. Thus, as a result, only 2 (two) vacancies out of the 100 posts of Excise Constables for which recruitment process was carried out after the district allotment of vacancies in respect of 79 posts approved by the Finance (SIU) Department in April/2008, is of prior to the Advertisement of 2005. The Remaining 77 (seventy seven) vacancies appeared to have arisen after the Advertisement of 2005. In that view of the matter, if the 8(eight) posts in Dibrugarh district were to be filled up from the recruitment process carried out in pursuance of the Advertisement of 2008, the same would be violative of the authoritative pronouncements of the Hon’ble Supreme Court with regard to filling up of anticipated vacancies.

39. It was clearly stated by the Principal Secretary to the Governor of Assam, Excise department in his Affidavit dated 02.03.2008 filed before the Hon’ble High Court in WP(C) No. 1520/2008 pursuant to the Order dated 19.05.2008 of the Hon’ble High Court, that the vacancies that were left out in the remaining 5 (five) districts of Dhubri, Dibrugarh, Lakhimpur, Sonitpur and Golaghat where selection process was not completed (and consequently no appointments were made) earlier, would now be filled up out of the 79 posts of Excise Constables approved by the SIU).

40. The writ petition being WP(C) No. 1520/2008 (Dhubri District) wherein also the recruitment process of Excise Constables of 2005 were challenged and wherein the Principal Secretary to the Government of Assam, Excise Department took the stand mentioned above, stood dismissed by the Hon’ble Gauhati High Court vide the Judgment and Order dated 2.7.2008.

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(Ref: Judgment and Order dated 2.7.2008 and the affidavit of the Principal Secretary to the Governor of Assam, Excise Department dated 2.3.2008 filed in WP(C) No. 1520/2008. The writ appeal No. 293/2008 on the same matter also dismissed by the Hon’ble High Court order dated 8.4.2010.

41. The writ petitioners of WP(C) No. 340/2007 who were candidates in the recruitment process of 2005, were given the opportunity to appear in the subsequent recruitment process of 2008. There appears to be no case of violation of any tenets of law if the petitioners despite being given the opportunities to appear in the subsequent recruitment process without prejudice. In the meantime and in the course of period from 2005 to 2008, a large number of candidates had become eligible for selection to the posts of Excise Constables and if a total of 8 (eight) posts were taken out of the purview of the recruitment process of 2008, the same would also seriously prejudice their rights. It is also pertinent to observe that only 5 (five) candidates had come to challenge the alleged abandonment of the recruitment process of 2005. The positions of the said petitioners in the merit list under reference are not that all of them would be accommodated if the said select list were to be acted upon. Non-challenge to the apparent abandonment by the other candidates in the select list could be viewed as acceptance.

42. In the meantime, amendments have been made in the Assam Subordinate Excise Service Rules, 1990 w.e.f. 23.12.2009. As a result of which, the Superintendent of excise of the concerned district are no longer the Appointing Authority for the cadre of Excise Constables. The Commissioner of Excise, Assam has been made the Appointing Authority for the cadre of Excise Constables. The extant Rules have already been given effect to. In view of the fact situations obtaining in the present case, it would not appear proper for the Commissioner of Excise, Assam to give approval and appointment from the supposedly prepared merit list which was prepared by the District Committee in 2005 when the Superintendent of Excise of the district were the concerned authority.

43. A conscious decision has to be taken in the light of the observations of the Hon’ble High Court noted above. In the fact situation obtaining in the present case and considering all the aspects including the rights of the candidates who have taken part in the recruitment process undertaken in pursuance of the advertisement of 2008 giving further opportunities to the petitioners, filling up of most vacancies of 2005, coming into force of new amended rules etc. I am of the considered view that the recruitment process undertake in Dibrugarh District in pursuance of the Advertisement of 2005 should be treated to be cancelled and, accordingly, the decision to that effect is taken. Accordingly, the letter dated 8.8.2005 of the Deputy Commissioner, Dibrugarh whereby the merit list containing the names of 32 candidates were forwarded is not be acted upon. It is needless to mention that if any of the petitioners and/or candidates of the recruitment of 2005, taken part in the recruitment process of 2008 and are eligible for selection, they will be considered for appointment. In the interest of justice, it is provided that if any of the petitioners decide to submit their candidature for any subsequent recruitment process undertaken for excise Constables, their cases will be considered favourably for relaxation of age subject to the extant laws in force.”

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15. Though the reasons given by the Commissioner may not be very convincing, I am in agreement with the view expressed by the learned Standing Counsel that interference by the Court at this stage and reverting back to the selection of 2005 may unsettle a selection process which has been completed in the interregnum. Another selection process has also commenced thereafter. Such a course of action may not be prudent and pragmatic. The observation of the

Commissioner in the concluding portion of the order dated 31.05.2010 that if any of the petitioners decide to submit their candidature for any subsequent recruitment process undertaken for Excise Constable, their cases will be considered favourably for relaxation of age subject to the extant laws in force is also noted.

16. During the hearing what has transpired is that out of the

5 petitioners, 2 of them, namely, Sri Bhabesh Sonowal and Sri Pranjal

Mahanta have been appointed as Excise Constable. One more petitioner, namely, Sri Mahendra Das has qualified in the physical test and has been shortlisted for viva-voce in the latest selection process conducted pursuant to the advertisement dated 09.10.2013.

17. Thus, taking an overall view of the matter, I am of the considered view that at this juncture, no mandamus may be issued to

the respondents to publish the select list of the recruitment process

conducted in the year 2005 and to implement the same. However, as

observed by the Commissioner, while filling up any subsequent

vacancy in the post of Excise Constable, the case of the remaining 2

petitioners, namely, Sri Kamal Konwar and Sri Prasanta Gogoi should

be considered if necessary by relaxing any age bar.

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18. Subject to the observations made above, this Court is not

inclined to intervene in the matter. Writ petition is disposed of. No cost.

JUDGE

Aparna

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