Page No.# 1/25

GAHC010004592008

THE GAUHATI HIGH COURT

(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

Case No. : WP(C)/5210/2008

RAJIB NATH AND ORS.

S/O MUK HESWAR NATH, USHANAGAR, BYE LANE NO.6, WARD NO.1, P.O.

TEZPUR, SONITPUR, ASSAM.

2: SHRI PRANDIP KUMAR SARMAH

S/O SHRI PRADIPT KUMAR SARMAH

VILL. PARBATI NAGAR NEAR SANSKRIT TOL

P.O. TEZPUR

SONITPUR

ASSAM.

3: SHRI MRINAL KUMAR BORAH

S/O SHRI SUREN CHANDRA BORAH

VILL. PARBATI NAGAR

P.O. TEZPUR

SONITPUR

ASSAM.

4: SHRI MANAS JYOTI BORAH

S/O SHRI BEDA KANTA BORAH

VILL. LALMATI

NEAR KUMARGAON L.P. SCHOOL

P.O. TEZPUR

SONITPUR

ASSAM

VERSUS

THE STATE OF ASSAM AND ORS

REPRESENTED BY THE CHIEF SECRETARY. Page No.# 1/25

GAHC010004592008

THE GAUHATI HIGH COURT

(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

Case No. : WP(C)/5210/2008

RAJIB NATH AND ORS.

S/O MUK HESWAR NATH, USHANAGAR, BYE LANE NO.6, WARD NO.1, P.O.

TEZPUR, SONITPUR, ASSAM.

2: SHRI PRANDIP KUMAR SARMAH

S/O SHRI PRADIPT KUMAR SARMAH

VILL. PARBATI NAGAR NEAR SANSKRIT TOL

P.O. TEZPUR

SONITPUR

ASSAM.

3: SHRI MRINAL KUMAR BORAH

S/O SHRI SUREN CHANDRA BORAH

VILL. PARBATI NAGAR

P.O. TEZPUR

SONITPUR

ASSAM.

4: SHRI MANAS JYOTI BORAH

S/O SHRI BEDA KANTA BORAH

VILL. LALMATI

NEAR KUMARGAON L.P. SCHOOL

P.O. TEZPUR

SONITPUR

ASSAM

VERSUS

THE STATE OF ASSAM AND ORS

REPRESENTED BY THE CHIEF SECRETARY.

Page No.# 2/25

2:THE DEPUTY COMMISSIONER

SONITPUR

TEZPUR.

3:THE ADDL. DEPUTY COMMISSIONER

SONITPUR

TEZPUR.

4:THE DIRECTOR OF ACCOUNTS

DEPARTMENT OF FINANCE ESTT-B

STATE OF ASSAM.

5:TREASURY OFFICER

SONITPUR DISTRICT TREASURY

TEZPUR

P.O. 784001.

6:THE COMMISSIONER

NORTHER ASSAM DIVISION

HEADQUARTER AT TEZPUR

P.O. TEZPUR - 784001.

7:THE COMMISSIONER and SECRETARY

DEPARTMENT OF FINANCE ESTT-B

STATE OF ASSAM

Advocate for the Petitioner : MR.B CHETRI P- 1and 3

Advocate for the Respondent : MR. P NAYAK(SC, F.DEPTT.)

Linked Case : WP(C)/941/2017

GAUTAM HAZARIKA and 4 ORS.

S/O. SRI BHABEN HAZARIKA

R/O. USHA NAGAR

BYE LANE NO.9

P.O. TEZPUR

PIN-784001

Page No.# 3/25

DIST. SONITPUR

ASSAM.

2: SRI KRISHNA KT. NATH

S/O. SRI SAREN CH. NATH

VILL. LIKHAK GAON

P.O. PITHAKHOWA

PIN-784153

DIST. SONITPUR

ASSAM.

3: MS. MEETALY TAMULY

D/O. LT. PURNA KT. TAMULY

R/O. GHARPARA CHUBURI

WARD NO.16

P.O. TEZPUR

PIN-784001

DIST. SONITPUR

ASSAM.

4: SRI ASHOK KR. BASUMATARY

S/O. LT. NANDA RAM BASUMATARY

VILL. CHAPAGURI

P.O. GHORAMARI

DIST. SONITPUR

ASSAM

PIN-784105.

5: SRI SAROJ KALITA

S/O. SRI RAJANI KALITA

VILL. KALITA GAON

P.O. BIHAGURI

DIST. SONITPUR

ASSAM

PIN-784153.

VERSUS

THE STATE OF ASSAM and 5 ORS.

REP. BY THE CHIEF SECY.

TO THE GOVT. OF ASSAM

DISPUR

GHY.-781006.

2:THE COMMISSIONER and SECY.

GOVT. OF ASSAM

Page No.# 4/25

FINANCE DEPTT.

DISPUR

GHY.-781006.

3:THE DIRECTOR OF ACCOUNTS

DEPTT. OF FINANCE ESTT-B

GOVT. OF ASSAM.

4:THE COMMISSIONER

NORTHERN ASSAM DIVISION

HEADQUARTER AT TEZPUR

P.O. TEZPUR

PIN-784001.

5:THE DY. COMMISSIONER

SONITPUR DIST.

TEZPUR

PIN-78401.

6:THE TREASURY OFFICER

SONITPUR DIST. TREASURY

TEZPUR

PIN-784001.

------------

Advocate for : MR.K K PARASAR

Advocate for : GA

ASSAM appearing for THE STATE OF ASSAM and 5 ORS.

BEFORE

HONOURABLE MR. JUSTICE SUMAN SHYAM

Date of hearing : 20.07.2023.

Date of judgment : 19.09.2023.

JUDGMENT & ORDER (CAV)

Heard Mr. B. Chetri, learned counsel appearing for the petitioners in both these

writ petitions. Also heard Mr. T. C. Chutia, learned Additional Senior Government

Advocate, Assam appearing for the respondent Nos.1, 2, 3, 4 and 6 and Mr. P. Nayak,

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learned Standing Counsel, Finance Department, Assam appearing for the

respondent No.5. Both these writ petitions are founded on common questions of law

and facts and therefore, are being disposed of by this common judgment.

2. The case projected in the writ petitions, briefly stated, is to the effect that the

four writ petitioners in WP(C) No.5210/2008 and the five writ petitioners WP(C)

No.941/2017 had participated in the recruitment process initiated by the Treasury

Officer, Sonitpur for filling up 10 vacant posts of Junior Accounts Assistant and one

post of Grade-IV staff in the Sonitpur District Treasury establishment for the year 2007-

08. Pursuant to the letter dated 01.02.2007 issued by the Joint Secretary to the

Government of Assam, Finance Department granting approval for conducting the

recruitment process for filling up the aforesaid posts, the Deputy Commissioner,

Sonitpur had written a letter dated 02.06.2007 requesting the Employment Exchanges

of Tezpur and Biswanath Chariali to send names of eligible candidates for

appointment in the vacant posts of Junior Accounts Assistant and the Grade-IV post.

After receipt of the communication from the Deputy Commissioner, Sonitpur the

respective Employment Exchanges had apparently forwarded the names of 190

candidates including the present petitioners by maintaining a ratio of approximately

1 : 20. As per the requirement of the provisions of Rule 13 of the Assam Treasury

(Establishment) Service Rules, 1993, a Selection Board was constituted and the

candidates were asked to appear in a written test held on 28.10.2007. Thereafter, the

short-listed candidates were called for viva-voce tests held on 11.03.2008. According

to the petitioners, they had fared well in the selection process and therefore, were

expecting to get selected. However, the final result of the selection process was not

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published. On the contrary, due to interference of the then Minister of Irrigation,

Assam, the Commissioner, North Assam Division, Tezpur had instituted an enquiry into

the selection process and he had also instructed the Deputy Commissioner, Sonitpur

not to make any appointment to the aforesaid posts. On conclusion of the enquiry,

the Commissioner, North Assam Division had found various anomalies in the selection

process. Consequently, by the order dated 12.11.2008, the selection process was

cancelled whereafter, a fresh advertisement dated 29.11.2008 was issued for filling up

the aforesaid vacant posts. It was only after the publication of the advertisement

notice dated 29.11.2008 that the writ petitioners in WP(C) No.5210/2008 became

aware of the decision to cancel the selection process. Accordingly, they had

approached this Court by filing the above-mentioned writ petition wherein, the

learned Single Judge had passed an interim order dated 12.12.2008 restraining the

respondents from taking any further steps pursuant to the advertisement notice

dated 29.11.2008. The said interim order is holding the field till today.

3. Assailing the advertisement notice dated 29.11.2008, WP(C) No.941/2017 was

instituted by 5 (five) other aspiring candidates after a delay of more than 8 years,

contending that the cancellation of the earlier recruitment process as well as the

issuance of the fresh advertisement notice, were wholly arbitrary, illegal and hence,

liable to be set aside.

4. The respondent No.5 i.e. the Treasury Officer, Sonitpur Treasury has filed

affidavit in WP(C) No.5210/2008 inter-alia contending that the recruitment process

was initiated upon receipt of concurrence from the Finance Department, Assam for

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the 10 posts of Junior Accounts Assistant vide Government Order No. FEB.63/06/54

dated 01.02.2007. Thereafter, the process of recruitment was initiated by the then

Treasury Officer and the Deputy Commissioner, Sonitpur by calling names from the

Employment Exchanges of Tezpur/Biswanath Chariali. As per the statements made in

the affidavit, altogether names of 258 candidates were forwarded by the

Employment Exchanges for filling up the10 vacancies. Thereafter, a District Level

Committee was constituted as per Rule 13 of the Assam Treasury (Establishment)

Service Rules, 1993 and the candidates were asked to appear before written test and

viva-voce test. However, no appointment letter was either prepared or issued to any

of the candidates. Subsequently, based on an enquiry report prepared by the

Commissioner, North Assam Division and the direction issued by the said authority, the

Deputy Commissioner, Sonitpur had issued a fresh advertisement notice dated

29.11.2008 for filing up the aforesaid posts.

5. The respondent No.5 in WP(C) No.941/2017 i.e. the Assistant Commissioner

serving in the office of the Deputy Commissioner, Sonitpur, has also filed an affidavit in

the said writ petition whereby, he has admitted that there were various anomalies

and irregularities in the selection process as pointed out in the enquiry report of the

Commissioner, North Assam Division, Tezpur and the selection was not based on merit.

6. From the pleadings available on record, it is apparent that there was no

advertisement originally issued by the respondents and the process for filling up the 10

vacant posts of Junior Accounts Assistant under the Sonitpur District Treasury was

conducted entirely by calling names from the two Employment Exchanges. It

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appears that, having noticed the aforesaid fact along with some other anomalies in

the recruitment process, an enquiry was instituted through the Commissioner, North

Assam Division, who, upon completion of the enquiry process, had submitted his

report dated 12.11.2008. The Divisional Commissioner has observed that the Deputy

Commissioner, Sonitpur had committed a mistake by conducting the recruitment only

by calling names from Tezpur Employment Exchange and Biswanath Employment

Exchange without publishing any advertisement. Moreover, the 20 point roster

showing the backlog vacancy for SC and ST(H)/ST(P) were also not properly

reflected. The relevant portion of the findings and observations made in the enquiry

report dated 12.11.2008 are reproduced herein below for ready reference :-

“Whereas the Deputy Commissioner, Sonitpur, Tezpur vide his letter

No.STA/Esst/04/06-07/2003 dtd. 02.06.07 requested the Employment

Exchanges of Tezpur and Biswanath Chariali to send names of

candidates of at least 4 times of the existing vacancies of Jr. Accounts

Assistant. But according to the present norms the recruiting authority

could ask for 20 twenty candidates for each vacant post from the

Employment Exchange. Employment Exchange, Tezpur sent 190 names

against 200 names as per norm. The ratio is 1 : 20. It is also seen that

norms for notification under Rule 4 signed by the Deputy Commissioner is

not found in the file.

1) Govt. of Assam, in the Finance (Esstt) Department vide letter

No.FEB.13/2005/25 dtd. 07.07.2007 approved for filling up 1(one) post of

Junior Accounts Assistant and Grade-IV 2 (two) nos. after observing all

required formalities as per approval accorded by the Finance (SIU)

Deptt. Vide their u/o No.FS/2005/2007 dtd. 14/06/07. No intimation has

been given to the local Employment Exchange about the said vacant

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post – 1(one) of Jr. Account Assistant and 2(two) Nos. of Grade-IV till

date and no advertisement has also been issued till date, respectively,

thereby violating the Employment Exchange (compulsory notification of

vacancies) Act, as well as directions of Hon’ble Supreme Court in the

case reported in (2006) 4 SCC.

2) On the other hand, Treasury staffs and Treasury Officer vide note

dtd. 23/07/07 at Note Sheet page 12/N and 13/N misleading the Deputy

Commissioner to fill up the said vacant 1(one) post of Jr. Accounts

Assistant and 2(two) Grade-IV post i.e. 1 Peon + 1 Chowkidar from the

successful candidates of the written examination that will be held for

selection of Jr. Account Assistant and for Peon and Chowkidar,

necessary selection may be made from the same interview of Grade-IV

candidates for which selection may be held. The Treasury Asstt. and

Treasury Officer vide note dtd. 17/09/07 of Note Sheet page 13,. 17 and

18/N again misled the Deputy Commissioner and issued appointment

letter No.STA/Esstt./4/06/0-7/681-689 dtd. 17/09/07 appointing Shri Ghana

Kt. Gogoi as Peon in Gohpur Sub-Treasury and Miss Nirala Saikia as

Chowkidar in Gohpur Sub-Treasury without informing local Employment

Exchange, advertisement, without police verification, without

advertisement, violating Supreme Court order and hence attracts

punishment under relevant provisions of AFRBM Act, 2005.

3) It is seen that total 208 nos. candidates appeared for the written

examination and 70 (seventy) nos. of candidates were called for

interview. A list of 12(twelve) nos. application was forwarded by Assistant

Director of Employment Exchange, Tezpur vide No.Act 12-13/2007/1899

dtd. 13 July/2007. No mention about intimation to Employment

Exchange, Gohpur Exchange which presently functions from Biswanath

Chariali.

A list of successful candidates is prepared claimed to be in order of

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merit and the ratio is taken as 1 : 6. This is reflected in Treasury Officer

note dtd. 20/02/08 at Note Sheet page 22/N. But relaxation is given in

respect of S/C candidates as a consequence SC candidate Shri Sanjit

Das, SC is deprived of opportunity. It is also not known how many

physically handicapped candidates appeared for the said post. Total

Present, Absent, General, OBC/MOBC, SC, ST(P), ST(H) is also not known.

Physically handicapped candidates could have been in the Merit List.

From the Note sheet at page 9/N, it is seen that out of total post-

23 nos. of Jr. Accounts Assistants 13 posts had already been filled up.

Vacancy position 10 nos. It is not in the sanctioned post of Tezpur

Treasury including Biswanath Chariali, Gohpur and Rangapara Sub-

Treasury.

Sri S. Ahmed, Director of Accounts and Treasuries, Assam has

signed the Minutes of Selection Committee without calling letters for

holding a meeting, formation of selection committee and without the

decision of the selection committee meeting headed by Chairman i.e.

Deputy Commissioner. Director has accorded approval for filling up of

the vacant post of Jr. Accounts Assistant, violating instructions of Govt.

The Director of Treasury by approving it has violated the Roster Point of

Govt. of Assam Personnel (B) Department Notification

No.ABP.84/2003/097 dated 30

th

Nov/2005 and duly published in the

Assam Gazette dtd. 6

th

December, 2005 and Reservation points, the

Reservation Act including 100 and 20 point Roster as per provision of the

Assam Service (RVSP) Act Rules framed thereunder. There is no mention

about Compassionate appointment, if any. The Director is also liable for

punishment under relevant provision of AFRBM Act, 2005.

In view of so many irregularities and omissions and commission and

serious violation of Rules and procedure, no order, other than

cancellation of the whole process of this recruitment will meet the end of

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justice and fair play. Cancellation is also required to maintain

transparency of action of the Government machinery. I, therefore,

hereby cancel the whole process of recruitment to fill up 10 (ten) Nos. of

Jr. Accounts Assistant violation by Govt. Letter No.FEB.63/06/53 dtd.

01.02.2007 and 1(one) No. of Jr. Accounts Assistant sanctioned vide

Government letter No.FEB.13/2005/25 dtd. 07.07.2007 for Gorpur Sub-

Treasury and Grade-IV staff sanctioned by Govt. vide letter

No.FEB.63/06/53 dtd. 01.02.2007 and another 2 (two) Nos. of Grade-IV

sanctioned by Govt. vide letter No. FEB.13/2005/25 dtd. 07.07.2007 for

which interview was held on 28.1.2007 and 11.03.2007 for Jr. Account

Assistant vide calling letter No.STA/ESTT/4/06-07/715-969 dtd. 24.09.2007

and No.STA /ESTT./4/06-07/1143-1209 dtd. 27.02.2008 and No.STA/ESTT./

4/06-07/572/626 dtd. 29.08.2007 for Grade-IV.

The Deputy Commissioner, Sonitpur is asked to start the recruitment

process afresh immediately by issuing open advertisement by following

all Rules and procedure.”

7. Assailing the Report dated 12.11.2008, Mr. B. Chetri, learned counsel for the writ

petitioners has argued, by placing reliance on the decision of this Court rendered in

the case of The State of Assam Vs. Tafjul Ali [W.A.No.258/2014], that there was no

requirement under the Rules for paper publication of advertisement notice and

therefore, the vacancies could have been filled up only on the basis of sponsorship

of names from the Employment Exchanges. By relying upon the decision of the

Supreme Court in the case of Chief Executive Officer, Pondicherry Khadi and Village

Industries Board and another Vs. K. Aroquia Radja and others reported in (2013) 3

SCC 780 Mr. Chetri has further argued that all vacancies under the State

Government are required to be filled up through Employment Exchanges. Other

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permissible sources of recruitment are to be tapped only if the employment

exchange concerned issues a non-availability certificate. Mr. Chetri has also argued

that there was no good ground for the authorities to cancel the entire selection

process thereby prejudicially affecting the rights of the selected candidates. He has

further argued that duly selected candidates, such as the writ petitioners, could not

have been denied employment merely at the interference of the Minister who was

not connected with the Finance Department. To draw support for his above

argument, Mr. Chetri has relied upon and referred to the decisions rendered in the

case of Union of India and others Vs. Rajesh P.U., Puthuvalnikathu and another

reported in (2003) 7 SCC 285 and Dipak Babaria and another Vs. State of Gujarat and

others reported in (2014) 3 SCC 502.

8. Mr. Chetri has also placed heavy reliance on the decisions of this Court

rendered in the case of Md. Maidul Islam and others Vs. State of Assam and others

reported in 2003 (3) GLR 691 as well as the decision in the case of Utpal Goswami and

others Vs. State of Assam and others reported in 2015 (2) GLT 1055 to contend that if

the basis of cancellation of the selection process is found to be arbitrary and

likelihood of bias is noticed, then the Writ Court can issue direction to complete the

selection process.

9. By referring to another decision of this Court rendered in the case of Arabinda

Rabha and others Vs. State of Assam and others reported in 2019 (4) GLT 223 Mr.

Chetri submits that even assuming that there was non-inclusion of names of

candidates from the reserved category, then also, the list could be rectified by the

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Selection Committee or by the State Government having due regard to the inter-se

merit position of the candidates. Since such an irregularity was curable, hence, it

cannot be said that the selection process was liable to be cancelled merely due to

failure on the part of the authorities to project the backlog vacancies.

10. By referring to the materials available on record Mr. Chetri further submits that

there is sufficient evidence to show that at the relevant point of time, there was no

backlog vacancies for SC, ST(P) and ST(H) and therefore, the same could not have

been a valid ground for cancellation of the entire selection process. Contending that

the petitioners are now over-aged and therefore, have incurred disqualification for

appointment in Government jobs, Mr. Chetri has submited that for the ends of justice,

the order dated 12.11.2008 cancelling the selection process be set aside by this Court

and a direction be issued to the respondents to complete the selection process and

to issue appointment orders to the selected candidates.

11. Responding to the above arguments Mr. T. C. Chutia, learned Additional

Senior Government Advocate, Assam has argued that there is no select list ever

prepared under the signatures of all the members of the Selection Board nor was the

same ever published. Therefore, the petitioners cannot claim any right to be

appointed against the vacant posts pursuant to the recruitment process. Mr. Chutia

has further argued that the enquiry conducted by the Commissioner, North Assam

Division has revealed several anomalies in the selection process which have been

highlighted in the enquiry report and therefore, the cancellation of the selection

process is completely justified in the facts and circumstances of the case.

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12. It is also the submission of Mr. Chutia that after the lapse of nearly 15 years, the

selection process itself has lost its validity since, during the intervening period, a large

number of new candidates have acquired eligibility to take part in the recruitment

process for filling up those posts. Therefore, submits Mr. Chutia, at this point of time,

even the impugned advertisement notice dated 29.11.2008 cannot be given effect

and the department would have to issue a fresh advertisement for filing up the

vacant posts.

13. The learned Standing Counsel, Finance Department, Assam, Mr. P. Nayak,

submits that due to the pendency of the aforesaid proceeding and the stay order

operating in WP(C) No.5210/2008, the 10 posts of Junior Accounts Assistant have

remained vacant for more than 15 years thereby, causing serious difficulties in the

functioning of the department. Under the circumstances, the learned departmental

counsel has submitted that the writ petitions be dismissed and the department be

allowed to float a fresh advertisement for filling up the vacant posts. It is also the

submission of Mr. Nayak that if necessary the petitioners can also take part in the

selection process by seeking relaxation of their upper age. Mr. Nayak submits that if

proper applications seeking age relaxation is submitted by the writ petitioners the

same will be considered by the competent authority in accordance with law.

14. I have considered the submissions made at the bar and have also gone

through the materials available on record. The core question that would arise for

decision of this Court in the present proceedings is as to whether, the enquiry report

dated 12.11.2008 discloses sufficient and justifiable ground for cancellation of the

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selection process. In order to answer the aforesaid question, the grounds stated in the

enquiry report dated 12.11.2008 would call for a brief discussion.

15. As can be noticed from the foregoing paragraphs, one of the major grounds,

as reflected in the report dated 12.11.2008 submitted by the Commissioner, North

Assam Division, finding fault with the recruitment process was that the recruitment

process was conducted only on the basis of names sponsored by the two

Employment Exchanges and without publishing any advertisement notice. The

learned counsel for the writ petitioners has strenuously argued that recruitment

process conducted only on the basis of names forwarded by the Employment

Exchange was permissible in the eye of law and there would be no requirement for

publishing advertisement in the newspaper for carrying out such recruitment if

sufficient names are available through the Employment Exchange.

16. The requirement of issuing advertisement notice in newspaper and giving wide

publicity of such recruitment process on radio, television and employment news

bulletins over and above considering candidates sponsored by Employment

Exchanges have been held by the Supreme Court to be in consonance with the

principles of fairness as envisaged under Articles 14 and 16 of the Constitution of

India. The aforesaid issue fell for consideration before the Hon’ble Supreme Court in

the case of Excise Superintendent, Malkapatnam, Krishna District, A.P. Vs. K.B.N.

Visweshwara Rao and others reported in (1996) 6 SCC 216 wherein the following

observations have been made in paragraph 6 which are reproduced herein below :-

“6. Having regard to the respective contentions, we are of the view that

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contention of the respondents is more acceptable which would be consistent

with the principles of fair play, justice and equal opportunity. It is common

knowledge that many a candidates are unable to have the names sponsored,

though their names are either registered or are waiting to be registered in the

employment exchange with the result that the choice of selection is restricted

to only such of the candidates whose names come to be sponsored by the

employment exchange. Under these circumstances, many a deserving

candidates are deprived of the right to be considered for appointment to a

post under the state. Better view appears to be that it should be mandatory for

the requisitioning Departments for selection strictly according to seniority and

reservation as per requisition. In addition the appropriate Department or

undertaking or establishment should call for the names by publication in the

newspapers having wider circulation and also display on their office notice

boards or announce on radio, television and employment news-bulletins and

then consider the cases of all the candidates who have applied. If this

procedure is adopted, fair play would be subserved. The equality of

opportunity in the matter of employment would be available to all eligible

candidates.”

17. From the above decision of the Supreme Court it would be evident that in

addition to calling names from Employment Exchanges, the department would be

under obligation to call for names by newspaper publication having wider

circulation.

18. The Apex Court, in the case of Secretary, State of Karnataka and others Vs.

Umadevi (3) and others reported in (2006) 4 SCC 1, had quoted with approval, the

observations made in the case of Union Public Service Commission vs. Girish Jayanti

Lal Vaghela [(2006) 2 SCC 482] on the requirement of issuing advertisement for filling

up vacancies wherein, it has been held that any regular appointment made to a

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post under the State or Union without issuing advertisement inviting applications from

eligible candidates and without holding a proper selection where all eligible

candidates gets a fair chance to compete, would violate the guarantee enshrined

under Article 16 of the Constitution.

19. From a careful examination of the departmental records produced by the

learned Government Advocate, Assam, I find that by the communication dated

01.02.2007 addressed to the Deputy Commissioner, Sonitpur the Joint Secretary to

the Government of Assam, while conveying the Government’s approval for filling up

the Grade-III and Grade-IV posts in the District Treasury/Sub-Treasury as per existing

rules and procedures, had further instructed that the posts should be filled up in

compliance with the AFRBM Act, 2005, the Employment Exchanges (Compulsory

Notification of Vacancies) Act, the Reservation Act and all other

Rules/procedures/formalities as well as the directions of the Hon’ble Supreme Court in

the reported case (2006) 4 SCC. From the communication dated 01.02.2007 it is

apparent that the Deputy Commissioner, Sonitpur was asked to comply with the

provisions of the relevant Rules including the decision of the Supreme Court rendered

in (2006) 4 SCC. As noted above, in the decision of the Supreme Court, it has been

held that publication of newspaper advertisement was mandatory and the failure to

do so would violate the guarantee enshrined under Article 16 of the Constitution. If

that be so, there can be no doubt or dispute about the fact that in addition to calling

for names from the Employment Exchanges, the Deputy Commissioner, Sonitpur was

also required to publish advertisement notice in the newspaper which he had

evidently failed to do in this case.

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20. While dealing with an issue of similar nature, in the subsequent decision

rendered in the case of State of Orissa and another Vs. Mamata Mohanty reported in

(2011) 3 SCC 436 the Supreme Court has categorically held as follows :-

“35. At one time this Court had been of the view that calling the names from

Employment Exchange would curb to certain extent the menace of nepotism

and corruption in public employment. But, later on, came to the conclusion

that some appropriate method consistent with the requirements of Article

16 should be followed. In other words there must be a notice published in the

appropriate manner calling for applications and all those who apply in

response thereto should be considered fairly. Even if the names of candidates

are requisitioned from Employment Exchange, in addition thereto it is

mandatory on the part of the employer to invite applications from all eligible

candidates from the open market by advertising the vacancies in newspapers

having wide circulation or by announcement in Radio and Television as merely

calling the names from the Employment Exchange does not meet the

requirement of the said Article of the Constitution. (Vide: Delhi Development

Horticulture Employees' Union v. Delhi Administration, Delhi & Ors., AIR 1992 SC

789; State of Haryana & Ors. v. Piara Singh & Ors., AIR 1992 SC 2130; Excise

Superintendent Malkapatnam, Krishna District, A.P. v. K.B.N. Visweshwara Rao &

Ors., (1996) 6 SCC 216; Arun Tewari & Ors. v. Zila Mansavi Shikshak Sangh & Ors.,

AIR 1998 SC 331; Binod Kumar Gupta & Ors. v. Ram Ashray Mahoto & Ors., AIR

2005 SC 2103; National Fertilizers Ltd. & Ors. v. Somvir Singh, AIR 2006 SC

2319; Telecom District Manager & Ors. v. Keshab Deb, (2008) 8 SCC 402; State

of Bihar v. Upendra Narayan Singh & Ors., (2009) 5 SCC 65; and State of

Madhya Pradesh & Anr. v. Mohd. Ibrahim, (2009) 15 SCC 214).

36. Therefore, it is a settled legal proposition that no person can be

appointed even on a temporary or ad hoc basis without inviting applications

from all eligible candidates. If any appointment is made by merely inviting

names from the Employment Exchange or putting a note on the Notice Board

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etc. that will not meet the requirement of Articles 14 and 16 of the Constitution.

Such a course violates the mandates of Articles 14 and 16 of the Constitution of

India as it deprives the candidates who are eligible for the post, from being

considered. A person employed in violation of these provisions is not entitled to

any relief including salary. For a valid and legal appointment mandatory

compliance of the said Constitutional requirement is to be fulfilled. The equality

clause enshrined in Article 16 requires that every such appointment be made

by an open advertisement as to enable all eligible persons to compete on

merit.”

21. From the aforesaid decision of the Supreme Court it is evident that no

appointment, be it temporary or on ad-hoc basis, can be made by the State without

inviting applications from all eligible candidates by issuing advertisement notice as

such a measure would fail to meet the requirement of Articles 14 and 16 of the

Constitution of India. Even if the recruitment process is conducted by inviting names

from the Employment Exchange, even then, the recruiting agency would be under

an obligation to issue advertisement notice published in the newspaper inviting

applications from the eligible candidates and hold a fair selection process so as to fill

up such vacancies. As such, this Court is of the considered opinion that the

Commissioner, North Assam Division was wholly justified in finding fault with the

recruitment process due to non-publication of advertisement notice. To that extent,

the observations made in the Report dated 12.11.2008 cannot be held to be arbitrary

or illegal.

22. In so far as the other allegations made in the report dated 12.11.2008

pertaining to non-fulfillment of the mandate of reservation quota as well as the quota

for physically handicapped candidates is concerned, although the petitioners’

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counsel has submitted that such findings were factually incorrect, yet, materials

available on record are insufficient for this Court to take a concrete view on these

issues on either side. Be that as it may, since there is no doubt or dispute about the

fact that the recruitment process was initiated without publishing any advertisement

notice, hence, in view of the law laid down by the Supreme Court as discussed herein

above, this Court is of the opinion that, the recruitment process was rightly found to

be anomalous and accordingly, cancelled by the departmental authorities. There is

no good ground for this Court to interfere with the report dated 12.11.2008.

23. In the decision rendered in the case of Tafjul Ali (supra) cited by Mr. Chetri,

the Division Bench of this Court had relied upon the decision of the Supreme Court

rendered in the case of Chief Executive Officer, Pondicherry Khadi and Village

Industries Board and another Vs. K. Aroquia Radja and others reported in (2013) 3

SCC 780 wherein, it was held that filling up of vacancies through Employment

Exchanges as the principal mode of recruitment was permissible. Other permissible

sources of recruitment were to be tapped only if the Employment Exchange

concerned issued a non-availability certificate. However, it will be significant to note

herein that the aforesaid decision of the Supreme Court was rendered in the light of

the Office Memorandum dated 18.05.1998 issued by the Government of India

permitting such a recourse in case of vacancies arising under the Central

Government offices/establishments. The Office Memorandum had provided that

such vacancies were not to be notified but to be filled up through Employment

Exchanges alone. But there is no such Office Memorandum applicable in the present

case. The aforesaid decision of the Supreme Court would, therefore, have to be

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treated as having been rendered in the facts of that case. As such, the said decision

would not have any relevant bearing in the present case.

24. In the case of Md. Maidul Islam and others (supra) relied upon by the

petitioners’ counsel, there was a select list published by the authorities and the writ

petition seeking appointment on the basis of the said select list was dismissed on the

ground that the select list had expired during the pendency of the writ petition. It was

in such fact situation that a writ of mandamus was issued by the Court. In the instant

case, as has been noted herein above, no select list containing the name of selected

candidates had ever been published by the recruiting agency. Therefore, the ratio

laid down in the case of Md. Maidul Islam (supra) will not have any application in the

facts of the present case.

25. In the case of Utpal Goswami and others (supra) relied upon by Mr. Chetri, it is

no doubt correct that the learned Single Judge had held that the recruitment

process, which was cancelled after holding the interview and before declaration of

results, was bad in law since no valid justification for cancellation of the selection

process was offered by the parties. That was a case where the selection process was

cancelled on the likelihood of bias on account of the fact that relatives of the

Member-Secretary of the Selection Board was a candidate and wife of an employee

was entrusted with the duty of printing and stitching of question papers for the written

examination. On a careful reading of the decision rendered in the case of Utpal

Goswami and others (supra) this Court finds that the said decision was rendered in

the peculiar facts and circumstances of that case and the same does not lay down

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any principle of universal application which can be followed in the present case.

26. Likewise, in the case of Arabinda Rabha and others Vs. State of Assam and

others reported in 2019 (4) GLT 223 relied upon by the petitioners’ counsel, the only

issue was pertaining to the question of non-inclusion of meritorious reserved category

candidates. After considering the facts and circumstances of the case, the learned

Single Judge had held that the same alone cannot be a ground for setting aside the

recruitment process. However, in the present case, the recruitment process was

cancelled on multiple grounds of irregularities including non-publication of

advertisement notice. Therefore, the decision in the case of Arabinda Rabha and

others (supra) is distinguishable on facts.

27. In the present case, this Court finds that the recruitment process itself was

based on a totally non-transparent basis and without issuing any advertisement

despite the categorical instruction of the Government by the communication dated

01.02.2007 requiring the authorities to comply with the directives of the Supreme

Court in this regard. Failure to comply with such directive of the Government, in the

opinion of this Court, went into the root of the matter thereby incurring a fatal defect

in the recruitment process which was not curable in nature. Therefore, the decisions

relied upon by the petitioners’ counsel, in the opinion of this Court, would not be of

any assistance to them in the facts and circumstances of the case.

28. It is no doubt correct a recruitment process having been initiated where the

petitioners had participated, a legitimate expectation may be entertained by the

participants including the writ petitioners of being selected and appointed in the

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vacant posts. Under the circumstances, if the recruitment process is cancelled in an

arbitrary and whimsical manner, then the same would undoubtedly be open to

judicial review by the Court under Article 226 of the Constitution of India. However,

what is also to be noted herein is that law is well settled that legitimate expectation is

only a facet of Article 14 of the Constitution which protects the citizens from arbitrary

action on the part of the State or its instrumentalities and the same by itself does not

give rise to an enforceable right. [See Ram Pravesh Singh & Ors. v. State of Bihar &

Ors. (2006) 8 SCC 381 and State of West Bengal & Ors. Vs. Niranjan Singha (2001)2

SCC 326].

29. In the present case, the recruitment process had been cancelled by the

authorities after conducting a thorough enquiry into the matter by a responsible

officer who had submitted a detailed report recording his findings. Nothing has been

pointed out before this Court to establish that the findings were perverse. If that be so,

it cannot be said that the recruitment process has been cancelled in an arbitrary and

whimsical manner.

30. What is also to be noted herein is that after examination of the departmental

record, this Court finds that not to speak of publishing any select list, there is no select

list of candidates whatsoever, which has been signed by all the members of the

board. In other words, there is no select list of successful candidates available on

record. What is available on record is nothing but a list of 11 candidates under the

signature of only one of the members of the selection committee i.e. the Director of

Accounts and Treasuries against whom, there are serious allegations of commission of

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malpractices. The said list or the signature affixed therein also does not contain any

date. The other three members of the selection committee including the Deputy

Commissioner, Sonitpur, who was the Chairman of the Selection Committee, had not

put his signature on the aforesaid list. Therefore, the said list cannot be treated as a

valid select list of candidates prepared on merit basis for making appointments for

filling up the aforesaid vacancies. Under the circumstances, this Court is of the

opinion that there is no right of the petitioners which can be enforced in these writ

petitions.

31. It is to be noted herein that although the recruitment process was initiated way

back in the year 2007 and the report of the Commissioner, North Assam Division was

submitted on 12.11.2008, the five writ petitioners in WP(C) No.941/2017 had

approached this Court by filing the writ petition after a lapse of nearly 10 years and

the explanation for such delay, as furnished in the writ petition, is found to be

completely unconvincing. Therefore, WP(C) No.941/2017 is also hit by principle of

delay and laches and hence, liable to be dismissed on such count as well.

32. For the reasons stated herein above, these writ petitions are held to be devoid

of any merit. The same are accordingly dismissed.

33. Before parting with the record, this Court deems it appropriate to observe that

if a fresh advertisement is issued by the concerned authorities for filling up the vacant

posts, it will be open for the writ petitioners to seek age relaxation so as to participate

in the said process, if so advised. It is made clear that if such application seeking age

relaxation is made by any of the writ petitioners, by furnishing proper justification, the

Order downloaded on 24-12-2024 06:28:09 PMPage No.# 25/25

same shall be objectively dealt with by the authorities in the light of the relevant Rules

and regulations and appropriate order be passed therein before commencement of

the selection process.

Writ Petitions stands closed.

The parties to bear their own cost.

Records be returned back.

JUDGE

T U Choudhury/Sr.PS

Comparing Assistant