Barun Ch. Deka and Others vs State of Assam and Another

D.N. Chowdhury, J.—The issue raised in this petition under Article 226 of the Constitution of India pertains to the area of recruitment and employment under a Statutory Authority.

The Petitioners, who are seven in number, were engaged as Scribes in the Board of Secondary Education; Assam, hereinafter referred to as the Board, on contract basis under the Respondent No. 2 in the years 1990, 1991, 1993, 1993, 1991, 1993 and 1993, respectively, from Petitioner No. 1 to Petitioner No. 7. The scribes working in the Board including the Petitioners moved the Authority for their absorption on regular basis. The Board considered their prayer and finally decided that it was not possible to regularise the Scribes in their posts, however, the Board decided that the Scribes who were working in the Board for a long time, would be given a ''bonus'' point for their experience in the Board when they appear in any selection test for any job under the Board vide resolution No. 89/9/5(ii) adopted in its meeting dated 12.2.92. The Respondent No. 2, Secretary of the Board, invited applications for filling up a few posts of LDA-cum-Typist in its office vide notification No. SEBA/EST/1/90(PT) 330 dated 11th February, 1997. The Petitioners who all had the requisite qualifications/eligibility, applied for the posts, appeared in the written test and thereafter were called for interview. The Petitioners accordingly appeared before the authority for interview. The Respondents, however, in a most illegal fashion, rejected the candidature of die Petitioners and appointed other persons in a most arbitrary and illegal manner. Hence the petition challenging the selection made by the Board vide its Memo. No. SEBA/EST/728-44 dated 12th may, 1998 as being arbitrary and illegal.

Respondent No. 2, the Secretary of the Board, contested the case and filed its affidavit denying and disputing the allegations of arbitrariness and illegality. The Respondent stated that all the Petitioners were called for the interview after the written test though Petitioners Nos. 1, 4 and 5. viz., Shri Barun Chandra Deka, Miss Eva Barman and Shri Hiranya Kumar Sarma, respectively, did not-qualify in the written test considering their services as Scribes with the Board. That the Board also decided to award ''bonus'' points in favour of the persons who worked as ''Scribe'' in the Board in the process of selection; but in spite of the bonus points awarded in favour of the Petitioners, they could not secure the qualifying marks and, therefore, they could not be appointed to the posts-in-question. However, two of the Scribes find places in the Select list, viz., Shri Ramakrishna Kalita and Shri Ganesh Kalita. The Board referring to the provisions of the Regulations known as the Regulations of the Board of Secondary Education Assam, 1989, hereinafter referred to as the Regulation, 1989, stated that the said Regulations, 1989, amongst others, envisioned the procedure of recruitment. That selection to the posts of LDA-cum-Typist is made by way of direct recruitment which is made on the basis of selection test consisting of written examination and interview after due advertisement. Under the Regulations, 1989, selection for all ministerial posts, whether permanent or temporary, are made by a Selection Committee constituted by the Board on obtaining due approval from the Board. However, considering the length of the service rendered by the Scribes, the Board favourably considered their case and decided to give a bonus point/mark in their favour as and when they appear in any interview/selection test for any job including that of LDA-cum-Typist in the Board, as indicated earlier. But it appears that the Petitioners could not qualify themselves in the selection process. The Respondent No. 2 denied the charge of favouritism and arbitrariness. That the selection was done by a Committee consisting of a Chairman, viz., Shri Krishna Kanta Bora, the Secretary of the Board, with the Deputy Director, Employment and Craftsmen Training and the Deputy Secretary of the Board as members.

Mr. A.K. Phukan, the learned senior Counsel appearing on behalf of the Petitioners, questioned the process of selection and submitted that the selection/appointment was made not on merit but on extraneous considerations. Mr. Phukan, the learned senior Counsel, substituted that all these years, these persons (Petitioners) were working as Scribe under the Respondent No. 2 and have been putting a hard work for the Board and the Board even after giving assurance for their absorption on regular basis, totally, overlooked the claim of the Petitioners and turned down their candidature in a most mechanical way.

Dr. H. Das, the learned Counsel appearing on behalf of the Board, submitted that the Board at all relevant time, acted justly, fairly and showed all the necessary concern for the Scribes; considering the services of the Scribes, the Board in fact decided to give some weightage on them who worked as Scribes with the Board and for that purpose the Board gave bonus marks in favour of the Scribes. That thereafter considering the performance of the candidates in the written examination and interview, the Selection Board/Committee, made selections in accordance with merit and thus the Board at all relevant time acted in conformity with the law. Dr. Das, the learned Counsel for die Board, submitted that there is a vast difference in the nature of the job of a Scribe with that of an LDA-cum-Typist. The job of a Scribe is a mechanical one who is entrusted with work of preparing the Certificates and Mark Sheets. The main qualification for a Scribe is good hand writing. That a Selection test was held, the Petitioners along with others, appeared in the selection and persons were selected on adjudging their merits by the Selection Committee consisting of persons with proven integrity. The constitution of the Selection Committee or the impartiality of the Selection Committee was never under challenge and on these facts and circumstances, therefore, the process of selection cannot be assailed as arbitrary, submitted Dr. H. Das, the learned Counsel appearing on behalf of the Respondent/ Board. Dr. Das the learned Counsel referred to the affidavit filed by the Respondent No. 2 and also placed the relevant records pertaining to the selection before the Court.

Engagement and disengagement of employees and for that matter generation and abolition of posts or services, are within the province/domain of the employer. The employer alone is the competent authority to regulate the service conditions of its employees subject to the law of the land. The role of the Baord in such matters as aforesaid, is confined to ensuring that the rule of law is observed and to see that the employees are given a fair deal by its employer keeping in mind the provisions of Articles 14and 16 of the Constitution of India. In the case in hand, on the own showing of the Respondent/Board, the Scribes were/are entitled to some bonus point/mark(s) for their experience of working with the Board whenever they appear in any selection test for jobs in the Board. However, the records produced before the Court do not indicate as the measure/extent of the bonus point awarded and as to at what stage the said bonus point/mark was awarded/allotted. In the affidavit-in-opposition filed in the Court on 18th December, 1998, the Respondent No. 2, Secretary of the Board, stated that the Board decided to award bonus point in favour of the Scribes who appeared in the Selection. It was further stated that "The bonus points were given to the candidates at the time of interview and test. However even with the bonus points the Petitioners failed to make the grade." (page 5 of the affidavit-in-opposition; lines 20, 21, 22 and 23). The Board filed an additional affidavit on the date of hearing, i.e.. on 9.4.99. In that affidavit, in paragraph 1, it was stated as follows:

That in paragraph 17 in the Writ petition, the Writ Petitioners stated that the Board vide a resolution dated 12.2.92 had decided to give a bonus point for the scribes'' experience in the Board when they appeared in any selection test for job in the Board. This is a correct position. The Writ Petitioners appeared in written test held on 22.5.97. The Writ Petitioner Nos. 1, 4 and 5 failed on the written test. Even then they were called for oral test on the strength of the bonus point. As regards the Petitioner No. 2, she was called for oral test but she could not be selected as at the time of oral test when the certificates were scrutinised it transpired that she had crossed the upper age limit on the date of application. As regards the Petitioners No. 3, 6 they qualified on the written test on their own. But in the oral test, they could not reach the minimum cut off mark (which was 156 for S.C., 159 for O.B.C. and 172 for general) even after the addition of bonus point as per the Board''s resolution dated 12.2.92.

From the materials funrished by the Respondent/Board, it apepars that there were also reservation for the OBCs. In page No. 4 of the records of markings for Selection, the name of Petitioner No. 2, Mrs Bharati Baruah (Medhi), is shown as an OBC against the heading "Caste" at serial No. 26 with Roll No. 264, and her age as on 1.1.97 is shown to be thirty seven years and nine months. In Annexure-II annexed to the affidavit filed on 9.4.99, showing the break-up of the total marks secured by the Petitioners, the Petitioner Nos. 2, however, has been shown as General against the heading "caste". In the said additional affidavit, the Respondent No. 2 also stated that the Petitioner No. 2, Smti Bharati Baruah (Medhi), was called for oral test, but she could not be selected since at the time of the oral test, on scrutiny of her papers, it appeared that she had crossed the upper age limit on the date of application. As pointed out earlier, Petitioner No. 2 stated her age as 37 years and 9 months, on the application itself, as on 1.1.97. The Petitioners were supposed to be called for the selection test/interview only after processing/scrutiny of the applications and once the applicants are called, it must be presumed that the authority must have found their applications to be valid, proper and correct as also eligible for applying and or selection/appointment. So far as Petitioner No. 2 is concerned, once she was called, it must be presumed that the authority must have condoned her age, otherwise the question of calling her for the interview would not have arisen, more so when the Petitioner No. 2 was an old hand who worked as a Scribe in the Board. After calling her for the written test and thereafter for interview, there was no justification for turning down her candidature on the ground of being overaged by the Selection Committee. The job of a Selection Committee is to select the suitable persons and to submit its recommendation on the basis of the respective merits of the applicants, not beyond it.

Fairness demands transparency. It was argued by Mr. Phukan, the learned Senior Counsel, that the Board did not indicate as to the extent of the exact measure/magnitude of the bonus mark that was determined by the Board for awarding in respect of the Scribes who appeared at the selection. Before the selection, it was incumbent on the part of the Board to determine the extent/measure of the bonus point/mark. The records produced before the Court, however, indicates that the authority took a decision to allot one bonus point/mark to the Scribes those who would appear at the Selection. Mr. Phukan, the learned senior Counsel, when he was confronted with it, submitted that, the allotment of one mark to the Scribes was farcical and elusive.

The Board, on the representation of the Scribes, took a conscious decision to award a bonus point/mark(s) to the Scribes who appeared at any selection for any job under it. Though the argument of Mr. Phukan, the learned Senior Counsel, is alluring, but on that count the whole process of selection cannot be disturbed.

The Selection Committee, however, exceeded its limit in disqualifying the Petitioner No. 2, Smti Bharati Baruah Medhi, because of over-age after being permitted by the Board itself to sit in the Selection test. The Petitioner No. 2 worked as Scribes under the Board for a considerable time and, therefore, there was/is also justification on the part of the Board for condoning her age to avoid inequity and injustice. The power to relax the age is/was located with the Board at all relevant time. When the power to relax was existent and the candidate was directed to appear by the Board in the face of her proven age of which the Board was made aware of, it would be permissible to infer that the Petitioner No. 2 was ordered to appear in the test in relaxation of her age for which the Board is/was armed.

From the discussions made above and the reasons stated, I hold that the Respondent/Board was not justified in ingnoring to consider the case of the Petitioner No. 2. For that matter, however, the entire selection cannot be disturbed. Since the case of the Petitioner No. 2 was not taken-up for consideration on the ground of age, it would now be incumbent upon the Board to consider her case afresh on the basis of the interview for which she was called.

The Respondents are also directed to make arrangement for conducting the interview of Petitioner No 2, Smti Bharati Baruah Medhi, and thereafter assess her merit by adding all the marks including the bonus point/mark as may be determined to be awarded to the Scribes and consider her case according to law. The Respondent-authorities are directed to complete the exercise expeditiously preferably within one month. The Respondents shall keep one post vacant till completion of the above exercise in respect of the case of the Petitioner No. 2.

In view of the facts and circumstances, the selection process as such cannot be faulted as regards the other Petitioners since their cases were seemingly considered by the Respondents. It may however be pointed out that Petitioners Nos. 1, 3 to 7, rendered their services to the Board to their might for a long time. The Board in fact is fully aware of the situation and as a matter of fact, decided to look after the matter and decided to award one mark, which however under the circumstances cannot be said to be fair and comprehensive to get to the bottom of the situation. The Petitioners rendered their services to the Board as Scribe for a considerable period since 1990 onwards. Most of them by now have become ineligible for any other employment anywhere. Dr. Haren Das, the learned Counsel appearing on behalf of the Board, the Respondent No. 2, when he was confronted with human problem, pointed to the letters of the law as well as to the economic health of the Board. State of finance is, no doubt a factor of immense importance in such matter. One however cannot lose sight of the consequence of unemployment that have wreaked havoc to the persons and their family. By the introduction, of Computer technology, the Board does not require the service of Scribes thereby making the services of these persons redundant. The Board being a State within the meaning of Article 12 of the Constitution of India, cannot avoid its Constitutional role. It is equally concerned with the welfare of its employees who have served under him. A balance is to be struck between the two competing interests.

Constructions set out in the rules, financial constraints, as was called into my attention by Dr. Das, are no doubt germane. Beyond these, there is one more area, which work upon the policy of law. There is an obvious distinction between the rules and the principles. The rule binds, whereas the principle guides. The policy aims at the goal to be reached signalling justice and welfare of the people. The welfare of the people in general is the essence of legal policy-"salus populi est suprema lex" (The welfare of the inhabitants is the supreme Law). The Petitioners possess the qualification for regular appointment in the regular cadre of LDA-cum-Typists. The length of service, the attending circumstances do not require any more special pleading for the necessity of absorption of these persons in regular cadre. In the facts and circumstances of the case, the Respondent No. 2, the Board, is directed to prepare a scheme for absorption of the Scribes in a regular cadre of Lower Division Assistant-cum-Typist or of like posts by waiving the question of age bar consistent with the reservation policy and any other State Government policy in this regard. The authority should be liberal in the matter of cadre revision so that persons who were long associated with the Board for a fairly long period, may be accommodated. As and when such person is absorbed in a regular post as mentioned above, he or she should be placed immediately below the last regularly appointed employee in that cadre/class or category of service. It is expected that the Respondents shall respond by an affirmative disposition with empathy and accomplish the assigned task with alacrity, preferably within six months.

The writ petition is allowed to the. extent indicated. But in the circumstances, there shall be no order as to costs.