Md. Matin Ali vs State of Assam and Others

Ranjan Gogoi, J.—Heard Mr. P. S. Deka learned counsel for the petitioner(s) and Mr. R. K. Bora, learned Government Advocate, Assam; None has appeared on behalf of the Respondents No. 5 to 12 in spite of due service of notices.

A selection was held for filling up some vacant posts of Lower Division Assistant-cum-Typists in the establishments under the department of Social Welfare, Government of Assam in the Nalbari District. Pursuant to the selection held, a Select List dated 15.12.2000 was prepared wherein the name of the petitioner in W.P. (C) No. 5204/2001, Md. Matin Ali appeared at Sl. No. 13, the name of the petitioner in W.P. (C) No. 5205/2001 Shri Kalindra Dutta appeared at Sl. No. 4 of the Select List whereas the name of the 3rd petitioner Smt. Kalpana Barman in W.P.(C) No. 6640/2001 appeared at Sl. No. 15 of the Select List; Thereafter, by order dated 15th March, 2001 issued by the Director of Social Welfare and another order dated 23.3.2001 issued by the same authority, the Respondent Nos. 5 to 12, who were not selected, were appointed as Lower Division Assistant-cum-Typists in the office of the Child Development Project Officer, Nalbari. Along with the Respondent Nos. 5 to 12, some other selected candidates were also appointed by the aforesaid two orders and in respect of such appointments, the petitioners naturally do not have any grievance. The short case projected on behalf of the writ petitioners is that being selected candidates, they would have a better right to be appointed than the Respondent Nos. 5 to 12 and the same having been breached by the arbitrary action of the authority, appropriate directions are required to be issued by this court.

None has appeared on behalf of the Respondent Nos. 5 to 12 as already noticed. The State not having filed any affidavit, the case was adjourned on 3.4.2003 to enable Mr. R. K. Bora, learned State counsel to obtain necessary instructions. Mr. Bora, submits on instructions received from the present Director of Social Welfare that no records, whatsoever, pertaining to the selection held and the appointments under challenge are available in the office of the Director. The stand of the respondent-authority, therefore, is not known. Under these circumstances, the Court is left with no option but to proceed in the matter by treating the uncontroverted statements made in the writ petition to be correct.

The correctness of the Select List enclosed to the writ petition and the placement of the writ petitioners in the said Select List, as claimed, not being denied and the further fact that the Respondent Nos. 5 to 12 were not selected also having been not controverted, this Court is compelled to hold that the rights of the writ petitioners to a fair consideration for their appointment has been breached and the actions of the authorities in appointing the Respondent Nos. 5 to 12, who were not selected, are the arbitrary actions disclosing no reasonable basis. In view of the aforesaid conclusion reached by this Court, it will be appropriate to allow the writ petitions by interfering with the appointment orders elated 15.3.2001 and 23.3.2001, insofar as the Respondent Nos. 5 to 12 are concerned, the aforesaid orders, insofar as the Respondent Nos. 5 to 12 are concerned, are hereby set aside. As the appointment of the Respondent Nos. 5 to 12 have been made on no acceptable basis and are per se illegal, this Court does not consider it proper to make any attempt to save any of the said appointments notwithstanding the fact that the aggrieved petitioners are only 3 (three) in number.

This Court has also noticed that the writ petitions were filed within the period of the validity of the Select List, which in consonance with the accepted practice, this Court understands to be one year from the date of publication of the Select List, As the petitioners have been wrongly denied appointment, the authority will now fill up the vacant posts from the 3 (three) petitioners and in accordance with their positions in the Select List within a period of 3 (three) months from the date of receipt a certified copy of this judgment and order.

All the three writ petitions stand closed in terms of the above orders.