Dipankar Dihingia vs State Of Assam And 6 Ors

Mr. M. Biswas, learned counsel for the writ petitioner. I have also heard Mr. D.P. Borah, learned standing counsel, Health Department, Assam,

appearing for the respondent No. 1 to 6 as well as Mr. A. Das, learned counsel representing the respondent No. 7.

In this writ petition, the selection and the consequent appointment of the respondentNo. 7 against the second vacancy of Sr. Treatment Supervisor

(STS) in the Dhemaji T.B. Cell has been put under challenge.

The facts of the case giving rise to the filing of the present writ petition are these. On12-03-2015, the Director of Health Services, Assam, i.e. the

respondent No. 3 had issued an advertisement notice inviting applications for filling up of various posts including the post of STS under the different

districts/ T.B. Cells in Assam. The advertisement notice dated 12-032015 had mentioned the qualification and the salary attached to each posts but did

not indicate the procedure that would be adopted for selection of the candidates. The respondent authorities had held a written test wherein the writ

petitioner had participated and scored 86 marks. Accordingly, he was called for the viva-voce test. However, eventually the respondent No. 7, who

had scored only 47 marks in the written test, was selected for the second post of STS solely on the basis of her score in the viva-voce test which was

62 as against 57 marks obtained by the writ petitioner. By the impugned order dated 29-06-2015, the respondent No. 7 was recommended as one of

the selected candidates for appointment in the Dhemaji district T.B. Centre. Aggrieved thereby, the present writ petition has been filed.

Mr. Biswas, learned counsel for the petitioner submits that in this case no criterion forselection had been mentioned in the advertisement notice.

However, after the applications were received, the respondents had secretly evolved the selection criteria whereby it was decided that the marks

obtained only in the viva voce test would be taken into account for final selection of the candidates and accordingly, prepared the merit list on the

marks obtained in the viva-voce test so as to suit their preferred candidate. Mr. Biswas has also argued that his client had answered almost all the

questions correctly in the viva voce test but was still not selected. It is also the contention of the petitioner’s counsel that originally the name of the

respondent No. 7 was not shortlisted for the viva-voce test but taking advantage of the fact that her father was serving in the post of Joint Director,

Health Services-cum-T.B. Officer, Dhemaji, the exercise was redone so as to accommodate the respondent No. 7 and that is how she was selected

for appointment on the basis of very high marks awarded in the viva-voce test.

The learned counsel for the petitioner further submits that after the decision of theSupreme Court in the case of Ajay Hasia & Ors. Vs. Khalid

Mujib Sehravardi & Ors. reported in (1981) 1 SCC 722, law is settled that in the matter of public employment oral interview test should not be relied

upon as an exclusive test but notwithstanding the same and despite the subsequent decision of the Supreme Court in the case of Praveen Singh Vs.

State of Punjab & Ors. reported in (2000) 8 SCC 633 the respondents have prepared the select list exclusively on the basis of the marks obtained

in the viva-voce test only to extend undue favour to their preferred candidate.

Mr. D.P. Borah, learned departmental counsel, on the other hand, has invited attentionof this Court to the statements made in the counter-counter-

affidavit filed on behalf of the respondent No. 3 as well as the minutes of the meeting of the Selection Committee held on 24-04-2015 to contend that

the decision to prepare the final select list based on viva-voce test was adopted in a meeting of the selection committee before conducting the written

test and by the said resolution, and it was also decided that the candidates would be short listed at the ratio 1:4 against each post based on the marks

obtained in the written test. While denying the allegation of mala fide in the selection process, the learned departmental counsel has urged that the

father of the respondent No. 7 did not take part in the selection process. He has also submitted that list of the shortlisted candidates were initially

prepared on an erroneous basis at the ratio of 1:3 as a result of which, the name of the respondent No. 7 did not figure in the said list. However,

realizing the mistake, a fresh list was prepared as per the resolution dated 24-04-2015 by following the ratio 1:4 in which list, the name of the

respondent No. 7 was also included on the basis of marks obtained by her in the written test.

Mr. A. Das, learned counsel for the respondent No. 7 has adopted the argumentsadvanced by the learned departmental counsel and has prayed for

dismissal of the writ petition.

I have considered the rival submission advanced at the bar and have also examinedthe materials available on record. It is not in dispute that

pursuant to the advertisement notice dated 12-03-2015, the writ petitioner had submitted his candidature and in the written examination he had scored

a total of 86 as compared to 47 marks scored by the respondent No. 7. However, the marks scored by the candidates in the written test were used

only for the purpose of preparing a list of candidates who could be called for the viva voce test. The final merit list was prepared exclusively on the

basis of marks obtained by the candidates in the viva-voce test. It is also apparent from the materials on record that the decision to prepare the final

merit list only on the basis of the viva voce test was taken by the Selection Committee in its meeting held on 24-04-2015 i.e. on a date prior to the

holding of the written test. But surprisingly, the petitioner has not challenged the said resolution despite the fact that the same was available on record.

During the course of argument, the learned counsel for the writ petitioner has contended that the said resolution was never published as a result of

which candidates such as the writ petitioner was not aware of the same. However, there is no explanation as to why the resolution dated 24-04-2015

could not be challenged even subsequently, i.e. after the same was brought on record by the official respondents.

From a careful examination of the pleadings contained in the writ petition, I find thatin substance, the basic case projected by the petitioner  in

the writ petition pertains to the in-correct reflection of his age in the merit list which was allegedly shown 39 years. But the respondents have clarified

in their affidavit that the respondent No. 7 was selected on the basis of the marks obtained in the viva voce test.

Taking note of the materials produced before this court, the learned single judge hadearlier passed an interim order dated 19-06-2017 in this writ

proceeding suspending the operation of the order of appointment of the respondent No. 7. In the order dated 19-062017 it has, however, been

recorded that “ in the viva voce segment, Alpana Baruah had secured 62 marks as compared to 57 marks of the petitioner and that is how she

along with Bidyut Sarma, who secured 59 marks in the viva voce, was recommended for appointment to the post of STSâ€. After the facts, as

noted above, were brought before the court, not to speak of amending the writ petition, the petitioner has not even filed rejoinder against the return

filed by the official respondents.

It is also to be noted here-in that taking cognizance of the facts and circumstances ofthis case, by the order dated 19-06-2017, the learned Single

Judge had granted liberty to the writ petitioner to implead the other selected candidate viz. Bidyut Sarma as a party to this proceeding. When the

petitioner had failed to implead Bidyut Sarma despite the leave granted by the Court earlier, this Court had once again given an opportunity to writ

petitioner to implead the said candidate but such offer was also declined by the petitioner’s counsel which would be evident from the order dated

19-06-2018 passed in this writ proceeding.

In the case of Ajay Hasia (Supra) while dealing with an issue of similar nature, the Hon’ble Supreme Court has observed that in the matter of

public employment, oral interview test should not be exclusively relied upon but it may be resorted to only as an additional or supplementary test and in

doing so, great care must be taken to see that persons who are appointed to conduct oral interview tests are man of high integrity, caliber and

qualification. In Praveen Singh (Supra) the Supreme Court has further observed that the selection test cannot be exclusively held on the basis of viva-

voce by ignoring the marks obtained in the written test, since making the selection exclusively on the basis of viva-voce test would be unreasonable

and arbitrary. What crystallizes from the aforementioned decisions of the Supreme Court is that, ordinarily, viva voce test should not be the sole basis

for conducting the recruitment process in case of public employment and the marks obtained by the candidates in the written test should also be taken

into consideration while preparing the final select list.

It would be significant to note here-in that the selection criteria in this case was laiddown by the resolution dated 24-04-2015 well before

conducting the written test but the said resolution is admittedly not under challenge in this writ proceeding. Mr. Biswas has argued that the authorities,

having conducting the written test and viva-voce examination, ought to have prepared the merit list based on sum total of marks obtained in both the

tests, which has not been done in the present case. However, in the absence of any challenge to the selection criteria adopted by the authorities, this

court can neither direct the respondent authorities to act in a manner contrary to the resolution dated 24-04-2015 not can this court evolve its own

criterion for selection of candidates and direct the respondents to act on such basis. What cannot be lost sight of in this case is the fact that the

respondent No. 7 has admittedly scored higher marks than the petitioner in the viva voce test and that is the basis of her selection.

As noted above, despite the leave granted by this court, the writ petitioner has failedto implead the other selected candidate viz. Bidyut Sarma in

this proceeding. The marks obtained by the said selected candidate in the written test are not on record. Therefore, even if the omission by the

petitioner to challenge the resolution dated 24-04-2015 is ignored by this court, even in that case, if the challenge in this writ petition is to be

entertained, the only two possible outcome of this proceeding would be either to set aside the entire selection process or to direct the respondents to

prepare a fresh select list by giving due weightage to the marks obtained by the candidates in the written test as well as the viva voce test, in which

event, the right and interest of the other selected candidate, viz. Bidyut Sarma would undoubtedly be affected. Therefore, this court is of the opinion

that Bidyut Sarma is a necessary party in this proceeding and as such, failure on the part of the writ petitioner to implead him in this proceeding would

have fatal consequences.

It is also to be noted here-in that although the petitioner has alleged mala fide in the selection process on the ground of influence allegedly exerted

by the father of the respondent No. 7, yet, her father has also not been made a party to this proceeding. That apart, the petitioner has also failed to

substantiate the allegation of biasness in the selection process that had lead to the appointment of the respondent No. 7. In the absence of specific

particulars brought on record substantiating the allegation of malafide, merely because the father of the respondent No. 7 is working in the post of

Joint Director, Health, would not necessarily establish the fact that the selection of the respondent No. 7 is the outcome of a process tainted by

biasness.

For the reasons stated here-in-before, I am of the un-hesitant opinion that no relief can be granted to the petitioner in this case. Consequently, the writ

petition is held to be devoid of any merit and the same is accordingly, dismissed.

There would be no order as to cost.