District Project Co-ordinator vs Golamnabi Amzad Hussain

V.D. Gyani, J.—This Writ Appeal is directed against the judgment and order dated 29.1.97 passed by the learned Single Judge of this Court in Civil Rule 3112 of 1996 thereby making the following directions to Respondents 3,4 and 5 (Appellants herein):

After hearing the learned Counsel on both sides, I hereby dispose of this writ petition with a direction to the Respondents Nos. 3, 4 and 5 to declare the result of the said interview for appointment to the post of Lower Division Assistant for the office of Mankachar Block held on 28.9.95, within a period of 6 (six) weeks from the date of receipt of this judgment and order....

The Appellants are aggrieved by these directions. Their case essentially is that no record of the interview held by the unauthorised persons is now available and the person who held the interview, is being separately proceeded against a departmental proceeding. The interview was in connection with the post of Lower Division Assistant which is still lying vacant while this rigmarole is going on. On the last date the Appellants were directed to produce the record. Accordingly, the learned Counsel for the Appellants has placed for our inspection a file relating to establishment. The writ Petitioner - Respondent has placed on record a photostat copy of the letter dated 13.9.95 requesting him to attend for an interview in the office of Mankachar Block on 28.9.95 at 9 a.m. His case was that 20 such request letters were issued but only 9 (nine) candidates turned up for interview. Typing and viva voce tests were held. The specific averments made by the Respondent are contained in paragraph 3 of the writ petition. Since the whole controversy revolves round this holding of interview and selection of candidates for the post of Lower Division Assistant, it would not be out of place to quote the relevant part of paragraph 3 which runs as follows:

It is pertinent to state that, apart from the Petitioner 19 (nineteen) other candidates'' name were sent by the Respondent No. 6 to the Respondent No. 5(five). And accordingly Respondent No. 5 has also issued call letters for the interview to the total 20 (twenty) candidates. But in the interview 9 (nine) candidates including the Petitioner have duly appeared. The interview includes type-writing test and viva-voce and the Petitioner duly appeared in the test....

In face of the above specific averments made by the Petitioner, let us now turn to the pleaded case of the Appellants as contained in paragraph 4 of their affidavit-in-opposition:

That with regard to statement made in paragraphs 3, 4, 5 and 6, the -deponent while accepting the fact of holding of selection for the post of L.D.A. in reference respectfully states that the Respondent No. 3 by an order dated 8.6.95 provided with one post of L.D.A.-cum-Typist at Mankachar Blocks while providing similar posts to other few blocks specifically stating the selection criteria for selecting such person. As per the criteria of selection, the Selection Committee is to be constituted with following persons:

District Project coordinator - as Chairman

Associate District Project Coordinator - as Member, Secretary.

Representative of Deputy Commissioner - as Member

Employment Officer - as Member and the same was accordingly constituted

by the then District Project Coordinator, Dhubri by an order dated 13.9.95. After calling the candidates through the Employment Exchange an interview was held for appearance of the candidate on 28.9.95 where only 9 candidates appeared and in this interview the deponent who was an associate State Project Director at Guwahati and when went to Dhubri at that period of time in connection with selection of cluster Resource Centre Coordinators also participated in the interview at the request of the then District Project Coordinator, Dhubri without realising the fact that he was not a Member of the constituted Selection Committee. In the interview in reference, the deponent, the then District Project Coordinator, the then Additional District Project Coordinator and one Sohrab Ali, Project Officer, Dhubri were also present. After receipt of the notice of the present case, the deponent realises that the Selection Committee was not constitute as per the guidelines for selection of candidates and the deponent also realises that he ought not to have participated in the selection process. In this regard the deponent further states that he has assumed charge as Respondent No. 5 only on 19.10.95 vice Dr. Hussanullah put under suspension. After receipt of the notice of the case, the deponent could not find any paper relating to the interview of the candidates in reference except the attendant sheet of the candidate and record also does not show the preparation of any select list and the marks given by the Selection Committee Members.

The deponent further states that after having knowledge of the non-availability of marks given by the Committee members etc. the matter was brought to the notice of the higher authority and some correspondence were also made with Dr. Sayed Hussanulla under suspension who was serving as the District Project Coordinator at that period of time. After receipt of the notice of the case in reference and also going through the norms of selection of candidates, the deponent also find that Employment Officer who is one of the members of the Selection Committee in the process of selection of candidates was not found. No purpose would have been served even if the selection list along with the marks given by the committee members were found in the office record and therefore respectfully submits that in the absence of availability of relevant record of selection of candidates and also taking into consideration the non-participation of the relevant members namely the Employment Officer in the selection committee, there is no option but to go for fresh selection of candidate for the post of L.D.A.-cum-Typist in reference.

The deponent categorically states that the deponent''s office did not publish any selection list and it is also not possible to publish such list as the relevant records are not available and the incumbent who was in service at that period of time has been placed under suspension and due proceeding has been initiated against him.

It is cardinal rule of pleadings that the denial has to be specific and not evasive. Every allegation of fact, if not specifically denied by necessary implication, it would be deemed to have been admitted. The Supreme Court has occasion to consider and deal with this aspect of the matter albeit in a different context. It was a case relating to Land Acquisition but the principle laid down is equally applicable to the case at hand. In the reported case Bharat Singh and Others Vs. State of Haryana and Others, -AND- Dallu v. State of Haryana and Ors. -AND- Narhu Ram and Ors. v. State of Haryana and Ors. -AND- Shri Ram Phal and Ors. v. State of Haryana and Ors.) the Supreme Court held.

In our opinion, when a point which is ostensibly a point of law is required to be substantiated by facts, the party raising the point, if he is the writ Petitioner, must plead and prove such facts by evidence which must appear from the writ petition and if he is the Respondent, from the counter affidavit. If the facts are not pleaded or the evidence in support of such facts is not annexed to the writ petition or to the counter affidavit, as the case may be, the Court will not entertain the point. In this context, it will not be out of place to point out that in this regard there is a distinction between a pleading under the CPC and a writ petition or a counter affidavit. While in a pleading, that is, a plaint or a written statement, the facts and not evidence are required to be pleaded, in a writ petition or in a counter affidavit not only the facts but also the evidence in proof of such facts have to be pleaded and annexed to it. So, the point that has been raised before us by the Appellant is not entertainable. But, inspite of that, we have entertained it to show that it is devoid of any merit.

The averments contained in paras 3, 4, 5 and 6 of the petition have been replied to in paragraph 4 of the affidavit-in-opposition just quoted above. The Petitioner has made specific averment that 20 request letters were issued, out of them 9 turned up and they were interviewed, typing test was held - all these facts are very conveniently omitted. What is stated is that by order dated 8.6.95 a post of L.D. Assistant-cum-Typist was provided at Mankachar Block and the criteria for selection was also communicated. It does not need the bare requirement of pleading as laid down by the Supreme Court. It was expected of the Respondents public servant as they are to specifically traverse the statement made by the Petitioner rather than merely propounding as to what they did. In the circumstances, the contention that there was no such record available of the interview, has rightly been rejected by the learned Single Judge observing that the statement of Respondent No. 5 was not a reasonable statement in the eye of reasonable prudence and it was in this background that the direction has been made by the learned Single Judge. At one stage, the learned Judge has also observed that the District Coordinator, who was handicapped due to non-availability of record of selection and the non-participation of the Employment officer/his representative or nominee in the selection process held on 28.9.95 had no option but to go for fresh selection process for the post of L.D. Assistant. Finding fault with the selection process is one thing, non-participation of the Employment Officer, would not in any event ipso facto hold the selection process as invalid and it could afford no justifiable grounds for withholding the result of the selection process although the learned Single Judge, in view of the contention advanced, has made a passing reference in the impugned judgment that the writ Petitioner also can participate in the selection process.

As directed three files of establishment section and one file of Court cases have been placed before us. These records were maintained by the Appellant. The affidavit was sworn by Respondent No. 5 Shri Vinay Kumar. The verification appended to the affidavit is worth quoting which reads as follows:

That the statements made in paragraphs 1, 2, 3, 4, 6 and 7 are true to my knowledge which I believe to be true, those made in paragraph 5 are true to the record which I believe to be true and the rest are humble submissions.

Such affidavit hardly serves any purpose. Statements as contained in paragraphs 1, 2, 3, 4, 6 and 7 are verified to be true to the deponent''s knowledge. The source of belief is not disclosed and which part of the paragraph 5 is borne out of record and which is from knowledge is not specified and now the plea is taken that the record is not available. If the verification appended to the affidavit is an indication to say the least it is worthless. We do not find any justifiable reason to interfere with the judgment and order impugned herein. The appeal is therefore dismissed with costs of Rs. 2,000/-(Rupees two thousand) to be paid by the Appellant to the Respondent (writ Petitioner).

Mr. B.D. Das, the learned Counsel for the Appellant urges that because of non-appearance of the name of the counsel in the cause list neither the counsel appeared nor was he heard. The Court''s orders in the proceeding are too sacrosanct saying that he was not heard. In the least that was expected in the circumstances of the case, the learned Counsel should have filed an affidavit but there is nothing of that sort available on record.

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