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Judgment
Heard Mr. J. Uddin, learned counsel for the petitioner. Also heard Mr. N. Goswami, learned Government Advocate appearing for the State
respondent no.1 and Mr. B.D. Das, learned senior counsel assisted by Mrs. R. Deka, learned standing counsel for respondent nos. 2 to 7.
At the outset it is seen that notice was issued on respondent nos. 8 to 10 by registered post on 09.06.2017, and that as per office note dated
21.07.2018, neither acknowledgement card nor unserved notice had been received back. However, fresh steps had not been taken for service of
notice on the said private respondents nor there is any judicial order of deeming due service of notice on the respondent nos. 8 to 10. However, in
view of the nature of order proposed to be passed, the Court had proceeded to pass this judgment even in absence of the respondent nos. 8 to 10.
By filing this writ petition under Article 226 of the Constitution of India, the petitioner has assailed the engagement of the private respondent nos. 8
to 10 as trainee Sahayak, and also prayed for a direction to the APDCL authorities, i.e. respondent nos.2 to 7 to select and appoint the petitioner as
Sahayak.
In short, the case of the petitioner is that he had successfully completed the course of Industrial Training Institute of Government of Assam (ITI for
short) and had passed out the prescribed test in the Trade of Electrician. The petitioner belongs to unreserved category.
By virtue of an employment advertisement published on 09.04.2013, the respondent no.3 had invited applications from eligible candidates for filing
up of 1064 posts of Sahayak under APDCL out of which 73 posts were under Kokrajhar Electrical Circle. Accordingly, the petitioner had submitted
his application in the said Electrical Circle Office of the respondent nos. 2 to 7. It has been pleaded that the petitioner was issued call letters to appear
in physical fitness test scheduled on 22.07.2013 and 23.07.2013 at Dwimalu Field, near Kokrajhar S.P. Office, Kokrajhar and after successful
completion of the test, the petitioner had appeared for interview for engagement as Trainee Sahayak on 25.07.2013 and 26.07.2013 in the office of the
General Manager, Guwahati Zone, APDCL (LAZ) (respondent no.4). However, without publishing any selection list and without assigning any
reasons, the interview was cancelled and the authorities issued another re-examination call letter to again appear for physical fitness test on
03.10.2013 and interview on 04.10.2013 at ASEB Complex, Narengi. Thereafter, by virtue of an advertisement, the respondent no.4 had published the
selection list dated 21.02.2014 of the candidates for Training (sic. ought to be Trainee) Sahayak selected for engagement in the seven Circles under
Guwahati Zone, viz., Guwahati Electrical Circle-I, Guwahati Electrical Circle-II, Rangia Electrical Circle, Mangaldoi Electrical Circle, Barpeta
Electrical Circle, Bongaigaon Electrical Circle and Kokrajhar Electrical Circle. As per the said Select List, out of 73 selected candidates in respect of
Kokrajhar Electrical Circle, category-wise selection was as follows, viz., 40 (unreserved), 20 (OBC), 7 [ST(P)], 5 (SC), 1 [ST(H)] and none (PH).
The learned counsel for the petitioner has submitted that though the petitioner had obtained 58.25 marks out of 100 marks and his name was placed
at serial no. 150 of the merit list, his name was left out and instead, the respondent nos. 8 to 10, who had got lesser marks than the petitioner, had got
selected. It is also submitted that the challenge to the selection and appointment of the private respondents in this writ petition is on the following
counts, viz., (a) the names of respondent no. 11 did not appear in the merit list and yet he were selected, (b) private respondent nos. 8 to 10 had
scored less marks than the petitioner, (c) experience certificate of respondent no.8, 9 and 10 was issued after 30.04.2013, i.e. after the expiry of last
date of submission of the application, (d) as per the employment advertisement, engagement under Category-B, the temporary workers were required
to have experience as workers engaged in any power utility, but as many as 53 out of 73 selected candidates had not submitted experience certificate
issued by a power utility company. Accordingly, it is submitted by the learned counsel for the petitioner that the experience certificates based on which
the private respondents had secured service were invalid and the selection of the private respondents was liable to be set aside.
In their affidavit-in-opposition, the respondent nos. 2 to 7 have stated that as per employment advertisement dated 09.03.2013, appointment of
Sahayak were under two categories, i.e. Category-A for candidates having ITI certificate and Category-B for experienced candidates engaged in any
Power Utility Company. It has been stated that initially the interview/ fitness test was held on 25.07.2013 and 26.07.2013, but the process was
cancelled by the Chief General Manager, APDCL (LAR) at that stage due to some allegations and complaints and subsequently, physical fitness test
was held on 03.10.2013 and interview was held on 04.10.2013, where the petitioner had also participated.
The learned senior counsel for the respondent nos.2 to 7 has submitted that as per the employment advertisement, it was provided that two
categories of candidates were eligible to apply, being (1) Category-A: for candidates having ITI certificate, and (2) Category-B: temporary workers
engaged in any power utility to work as Sahayak. It is submitted that the APDCL had out-sourced the repairs and maintenance work to third party
vendors, as such, the selected and appointed persons under Category-B had gathered sufficient experience so as to entitle them to apply for being
appointed as Sahayak. It is submitted that the petitioner is holder of ITI certificate and belongs to Category-A, as such, he cannot challenge the
appointment made to the private respondents under Category-B. It was also submitted that the merit list (Annexure-4 of writ petition) was not the
correct list as the said list was cancelled and superseded by the subsequent select list which is annexed as Annexure-1 to their affidavit-in-opposition.
In support of his submission the learned Senior counsel for the respondent nos.2 to 7 places reliance on the following cases, viz. (1) Public service
Commission, Uttaranchal Vs. Mamta Bisht and ors. (2010) 12 SCC 204, (para-9), (2) Bikash Sarma Vs. Dharitri Kalita and ors. (2020) 2 GLR 473,
and (3) Rantu Dutta and ors. Vs. APDCL and ors. 2019 (2) GLT 1048 (para-9).
The learned standing counsel for the respondent nos. 2 to 7 has produced the following original records of selection, viz., (i) Equipment identification
sheet (three sheets available out of eight) (Flag-A), (ii) Interview evaluation sheet by General Manager (Flag-B), (iii) Interview evaluation sheet by
Employment Officer (Flag-C), (iv) Experience evaluation sheet (Flag-D), (v) Interview evaluation sheet by Deputy General Manager (Flag-E), (vi)
Interview evaluation sheet by Deputy General Manager (Flag-F), (vii) Academic evaluation sheet (Flag-G), (viii) Physical fitness test marks (Flag-H),
(ix) Merit list forwarded to the CEO, Kokrajhar (Flag-I), (x) Select List (Flag-J), (xi) minutes of meeting of the selection committee for recruitment of
trainee Sahayak under Kokrajhar Electrical Circle (Flag-K), and Merit list [two lists with word ‘Experience’ and ‘ITI’ hand-written by
ink at the top; ‘experience’ list is of 10 sheets and ‘ITI list is of 5 sheets) (Flag-L).
The learned Government counsel has submitted that the State is merely a formal party in this writ petition and, as such, his only interest is that no
order adverse to the interest of the Government may be passed in this writ petition.
Perused the writ petition, affidavit-in- opposition by respondent nos.2 to 7 and affidavit-in-reply by the petitioner. Submissions made by the learned
counsel for the petitioner, learned Govt. Advocate and the learned senior counsel for the respondent nos. 2 to 7 have received due consideration. The
records produced have been perused.
One of the pleas urged by the learned senior counsel for the respondent nos. 2 to 7 is regarding maintainability of this writ petition on the ground
that all the selected candidates had not been impleaded. Hence, it is submitted that the writ petition was not maintainable due to non-joinder of proper
and necessary parties. In support of his contention, the learned senior counsel for the respondent nos. 2 to 7 had relied on ratio laid down in the case
of Mamta Bisht (supra). It is seen that the specific stand of the petitioner is that he had applied for being appointed under the Kokrajhar Electrical
Circle. Therefore, in the considered opinion of the Court, this writ petition would be maintainable on facts and in law as the petitioner has assailed the
selection and appointment of the private respondent nos. 8 to 10. Under the facts of this case, it was not necessary to implead all the 1064 appointees
in the State or all the 73 selected candidates under Kokrajhar Electrical Circle as party respondents. The case of Mamta Bisht (supra), cited by the
learned senior counsel for the respondent nos. 2 to 7 is distinguishable on facts because in that case the High Court had allowed the writ petition,
amongst others, on the ground that as the last selected candidate, receiving the benefit of horizontal reservation had secured more marks that the last
selected general category candidate, she ought to have been appointed against vacancy in general category and the respondent no.1 ought to have
been given the benefit of reservation, however, the Supreme Court of India had interfered with the judgment by the High Court, amongst others, on
the ground that the because the respondent no.1 wanted her selection against the reserved category candidate, the last selected candidate in that
category, though a necessary party, had not been impleaded. In the present case in hand, the petitioner has impleaded the private respondents whose
selection and appointment had been specifically challenged. In the present case in hand, the advertisement envisaged filing up of 1064 vacant posts of
Sahayak in 17 Electrical Circles. As per the advertisement published in newspaper to announce the result of selection, it contained roll nos. of 339
selected candidates in seven circles under Guwahati Zone, as such, the Court does not find that it was necessary for the petitioner to implead all the
selected candidates, when he has assailed appointment of specific persons, arrayed as respondent nos. 8 to 10. Accordingly, it is held that the present
writ petition is maintainable and is not hit by non- joinder of proper and necessary parties.
On the issue of maintainability, the learned senior counsel for the respondent nos. 2 to 7 had placed reliance on the case of Rantu Dutta (supra).
Although the said case also relates to same selection process as in the present case, but the said case was decided on another point. In that case, the
selection and appointment of respondent nos. 6 to 9 had been challenged as they were not residents of Sivasagar District and had less experience than
the petitioners therein and in that context, it was held that there was no bar in applying for the post of Sahayak in APDCL office situated outside the
district of their permanent residence. Moreover, in that case, prayer was made to interfere with the selection list, but out of 93 selected candidates
only respondent nos. 6 to 9 were impleaded and, as such, the writ petition was held to be not maintainable because if the select list was interfered
with, the interest of non-parties to the writ petition would be adversely affected. Thus, on the aforesaid distinguishing facts, the ratio of the case of
Rantu Dutta (supra) is not applicable in the present case.
In the case of Bikash Sarma (supra), pursuant to selection as per notification dated 25.06.2015, the appellant therein was issued appointment letter
dated 25.06.2015 and accordingly he had joined on 29.06.2015. The writ petition was filed by respondent no.1 on 01.10.2015 to challenge the
appointment on the ground that requirement of the Assam Women (Reservation of Vacancies in Services and Posts) Act, 2005 and Rules framed
thereunder was not followed. The employment advertisement was issued without providing for reservation and the respondent no.1 participated
without assailing the advertisement and accordingly, on facts, it was held that the respondent no.1 had allowed the appellant to join and work for four
months, as such, the appeal was allowed by dismissing the writ petition on ground of delay and laches. In the present case in hand, it the selection and
appointment of the private respondents are assailed on specific grounds, which is the factor that distinguishes the present case from the cited case of
Bikash Sarma (supra), as such, the Court is of the considered opinion that the petitioner cannot be non-suited in the case on the ground of delay and
laches.
On a perusal of the materials available on record, it is seen that a common merit list of the selected candidates belonging to Category-A and
Category-B had been prepared. It would also be relevant to mention that as per records produced, there are two merit lists, one with word
‘Experience’ hand-written at the top of first sheet contains 10 sheets and the other with word ‘ITI’ hand-written at the top of first sheet
contains 5 sheets) and collectively marked as Flag-L. However, random sample examination of both the lists discloses that the names and roll numbers
are same, for example, Roll No. 1 in both lists is of Rahul Karmakar; Roll No. 2 is of Balbahadur Thapa; Roll No. 3 is of Mithun Sarma; Roll No. 405
is of Jayanta Das; and Roll no. 187 is of the petitioner, i.e. Nozrul Islam Ahmed. As it is not possible that four persons in both Category-A and
Category-B would have similar names and roll numbers, the only possible conclusion is that two copy of same list with incorrect hand-written words
‘experience’ and ‘ITI’ has been produced before the Court. The list with word ‘experience’ appears to be complete containing
serial numbers from 1 to 278 in 10 sheets, whereas the list with word ‘ITI’ containing 5 sheets appears to be incomplete. Although the said two
lists do not indicate whether the candidates were from Category-A and Category-B, but with the name of the petitioner appearing therein, it is evident
that the merit list is a combined list of Category-A and Category-B.
As regards the point urged by the learned senior counsel for the respondent nos. 2 to 7 that the petitioner is holder of ITI certificate and belongs to
Category-A, as such, he cannot challenge the appointment made to the private respondents under Category-B is taken up first. In this connection it is
seen from the employment advertisement dated 09.04.2013 that it does not mention how many of the vacant posts of Sahayak was ear-marked for
Category-A and Category-B. Therefore, it is plausible that any number of applicants in either category could have been selected for appointment to
the 1064 posts of Sahayak including 73 posts within Kokrajhar Electrical Circle. This position is fortified by the fact that the impugned select list
approved on 21.02.2014 contains names of candidates of Category-A and Category-B. Therefore, as vacancy was not determined separately for
Category-A and Category-B, the writ petition would be maintainable because it is quite possible that the vacant posts could have been filled up in
order of merit from either Category-A or Category-B. Therefore, if selection and appointment of any person from Category-B is interfered with, there
is a possibility that in order of merit, the person from Category-A might get an opportunity to be appointed, as such, the present writ petition is found to
be maintainable in view of the facts peculiar to the present case in hand.
As regards the plea that the names of the private respondent nos. 8 to 10 appeared below the petitioner in the merit list and that they had scored
lesser marks than the petitioner and yet they were selected and appointed, the records produced have been perused. It is seen from the Minutes of the
Selection Committee, containing signature of GM, APDCL (LAZ) with date of 24.10.2013 that in respect of recruitment of trainee Sahayaks under
Kokrajhar Electrical Circle a total of 858 applications were received and that the physical test and interview was held at Kokrajhar and Guwahati on
22nd, 23rd, 25th and 26th July, 2013 under the Chairmanship of the then General Manager, GZ, APDCL. Due to some anomalies in the recruitment
process, the evaluation made by the committee was cancelled by CGM(D), LAR vide his order dated 06.09.2013 and holding of fresh physical test
and interview was ordered to be held under the Chairmanship of the then GM, LAZ. The applications were again scrutinized and 541 applications
were rejected. Accordingly, a total of 317 candidates were called for fresh physical fitness test and interview, out of which 204 were Category-A and
113 were under Category-B. Under the 4 (four) member committee, the physical re-test and interview were held at Narengi, Guwahati on 03.10.2013
and 04.10.2013. The petitioner had participated in the fresh selection process. Thereafter, two lists were prepared, one containing 73 selected
candidates and other containing 37 wait-list candidates as per guidelines issued by CGM(HR), APDCL, following the 100 point roster dated
20.12.2005, issued by the Govt. of Assam. Due to non availability of ST(H) candidate at roster point 7 and 27, the list was prepared considering two
roster ST(H) points as unreserved by providing that there would be backlog of 2 (two) nos. in ST(H) category. The record relating to merit list
discloses that as per the merit list the petitioner had secured 45 marks out of 100 and was placed at serial no. 218. The petitioner has not been able to
show that any selected candidate had secured less marks than the petitioner or that he had been discriminated against. Therefore, as the petitioner is
relying on the cancelled select list, both the plea fails and, as such, the Court is inclined to return a finding that the selection process is neither vitiated
by any illegality, arbitrariness nor the selection process was illegal or discriminatory. It may be mentioned that the selection process is not under
challenge.
As regards the plea that as many as 53 out of 73 selected candidates had not submitted experience certificate issued by a power utility company,
the petitioner has impleaded only the private respondent nos. 8 to 10. Moreover, the petitioner has not annexed any document to support the argument
made by his learned counsel, as such, the selection and appointment of the private respondents cannot be tinkered with in the absence of any adverse
material on record. Nonetheless, there is another way to look at this aspect of the matter. As per the employment advertisement, engagement under
Category-B, the temporary workers were required to have experience as workers engaged in any power utility. In this regard, it is well known that the
APDCL had out-sourced maintenance to third party. However, on a perusal of the documents annexed to the connected writ petition, i.e. W.P.(C)
3014/2015, it appears that the workers engaged by such third party had obtained experience certificates which were duly counter-signed by the AGM
concerned. In this regard, the Court is of the considered opinion that the respondent nos. 2 to 7 is entitled to some amount of freedom in the matter of
selection and appointment as they are aware of what is their requirement when issuing employment advertisement. It would lead to absurdity if
applicants in Category-B could only be persons who were temporarily engaged in power utility as Sahayak, because by no stretch of imagination, this
was a recruitment process to regularise service of temporary or casual workmen engaged as Sahayak by APDCL or its licencee. There is no doubt
that this exercise was a fresh recruitment drive, as such, it is acceptable that the APDCL had wanted to give an opportunity to outsourced temporary
workers of third party/vendors, who were rendering actual service to the APDCL as a beneficial employer. Thus, the Court is of the considered
opinion that there was no infirmity in the action of the respondent nos. 2 to 7 to select and appoint private respondents no. 8 to 10 based on certificates
counter-signed by the AGM, which was as per the terms and conditions of the advertisement dated 09.04.2013. The said action is not found to be
arbitrary or violative of Article 14 of the Constitution of India.
Therefore, the reasons assigned to assail the present section process and appointment of private respondent nos. 8 to 10 fails and resultantly, the
writ petition stands dismissed, leaving the parties to bear their own cost. It may be mentioned that in this case notice was not served on the respondent
nos. 8 to 10, as such, orders adverse to their interest could not have been otherwise passed.
Before parting with the records, it may be mentioned that inclusive of the present writ petition, seven writ petitions, being W.P.(C) nos. 5454/2017,
3014/2015, 7070/2015, 2938/2017, 3071/2017, 3086/2017 and 3327/2017, challenging the same selection process were heard together. However,
separate judgments have been delivered.