WP(C) 2430/2015 IN THE GAUHATI HIGH COURT (The High Court of Assam, 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, Dispur, Guwahati-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. Page 1 of 11 WP(C) 2430/2015 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 Page 2 of 11 WP(C) 2430/2015 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 (The Sentinel) 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 Page 3 of 11 WP(C) 2430/2015 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 Page 4 of 11 WP(C) 2430/2015 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 Page 5 of 11 WP(C) 2430/2015 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 General 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. Page 6 of 11 WP(C) 2430/2015 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.