Tunmoni Bora vs State Of Assam And Ors

Heard Ms. R Devi, learned counsel appearing on behalf of the petitioner. Also heard Mr. B Goswami, learned Additional Advocate General,

Assam, Mr. TJ Mahanta, learned Senior Counsel assisted by Ms. I Ahmed, learned counsel for the respondents No. 5, 6 and 7, Mr. BD Das, learned

Senior Counsel assisted by Mr. NH Barbhuiya, learned counsel for the respondent No. 4.

The present petitioner was a candidate for the post of Statistical Assistant(Regular) as against the advertisement of the Directorate of Social

Welfare, Assam dated 24.02.2014. Being aggrieved with the Notice bearing No. DSW (ICDS) E/ 128/ 2014/ 85 dated 17.02.2016 whereby the result

of successful candidates on the basis of written test held on 13.12.2015 and the viva-voce dated 18.01.2016 to 20.01.2016 was declared against the

existing vacant posts as published in the advertisement dated 24.02.2014 is challenged. The petitioner has preferred this writ petition as the candidates

bearing Roll Nos. 150811905, 150811274, 150811379 and 150811687 to the post of Statistical Assistant (Regular) were put in the select list illegally. It

is stated that the said 4 (four) candidates bearing the said roll numbers did not qualify in the written test as reflected in the Notification dated

17.02.2016. In spite of that the said four candidates got selection for the post of Statistical Assistant (Regular) under some extraneous consideration

and on the other hand, the petitioner who was duly qualified in the written test was not selected for the said post. Such large scale illegalities and

irregularities in selecting candidates for the posts of Statistical Assistant (regular) have deprived the genuine qualified candidates from getting selected

for the said post. It is further submitted that total 125 numbers of candidates were selected for viva-voce and the said viva-voce test were conducted

in a single day thereby giving no time to the interview board to assess the merit and suitability of the candidates to hold the posts thereby making the

entire selection process a mere farce and the authorities have selected candidates on pick and choose basis under some extraneous consideration. It

would not be out of place to mention here that though the petitioner challenged the inclusion of the 4 (four) candidates bearing the aforesaid roll

numbers, they are not impleaded in this writ petition on the ground that their names could not be collected at the time of filing the writ petition. On

24.02.2016, this writ petition was taken up for motion and this court after issuing notices was satisfied to stay the selection of the 4 (four) candidates

bearing the aforesaid roll numbers to the post of Statistical Assistant (regular).

Having come to know about the said interim order, the present respondent No.4 filed an application for his impleadment in this writ petition and the

said application was registered as I.A. No. 1569/2016. The roll number of the respondent No. 4 is 150811687. Similarly, the rest of the respondents

who were later on impleaded as respondents No. 5, 6 and 7 also filed an impleadment petition which was registered as I.A. (Civil) No. 439/2018. The

roll numbers of the said respondents No. 5, 6 and 7 are respectively 150811905, 150811274 and 150811379. After their impleadment, the respondent

No. 4 preferred I.A. No. 1570/2016 for vacating the stay order passed on 24.02.2016. Similarly, the respondents No. 5, 6 and 7 also preferred I.A.

(Civil) No. 2106/2018 for vacating the stay order dated 24.02.2016. The respondent No. 1, State of Assam represented by the Commissioner &

Secretary, Social Welfare Department, also filed I.A. No. 1002/2016 for vacating stay order dated 24.02.2016. In the mean time, the respondent No.

2, the Director of Social Welfare also filed his affidavit-inopposition on 09.09.2016. Vide order dated 13.06.2016 passed in I.A. No. 1002/2016, this

court decided to take up all the interlocutory applications at the stage of admission hearing. Such being the position, as the matter has been taken up

for admission hearing, the interlocutory applications for stay vacating are taken up considering the contents therein of the private respondents to be the

respective affidavit-in-opposition. In between, the records were directed to be called for but as there was an investigation carried out by Chief

Minister Vigilance Cell, there is a delay in producing the said record, however, the same is placed before this court today and on consent of all the

learned counsel this writ petition is taken up for disposal.

Ms. Devi, the learned counsel for the petitioner, submits that the petitioner wasunaware that subsequent to the publication of the notice dated

08.01.2016, the respondent No. 2 published another notice thereby declaring the results of the written test, on the same date i.e. on 08.01.2016 another

notification was published wherein it was mentioned that the same is in continuation of the previous list published vide notice dated DSW (ICDS)

E/128/2014/66 dated 08.01.2016 showing the roll numbers of present respondents No. 5, 6 and 7 as the successful candidates. Subsequent thereto vide

a corrigendum No. DSW (ICDS) E/128/2014/71 dated 09.01.2016, the roll number of the respondent No. 4 i.e. 150811687 was shown on the

reasoning that though his roll number was published in the column of Statistical Assistant (C), but due to typographical mistake it ought to have been

Statistical Assistant (regular). For the said reason, the petitioner could not bring it in the pleadings of the writ petition. Further, it is submitted that if the

said newly impleaded present respondents’ roll numbers are considered, then the same contradicts the statement made by the respondent No. 2 in

his affidavit wherein it has been stated that 125 numbers of candidates were shortlisted for viva-voce against the post of Statistical Assistant (R) but it

ought to have been 129 considering the present private respondents. The final selection list on the recommendation of the Selection Committee was

published on 17.02.2016 and immediately thereafter the appointment letter was issued on 18.02.2016 and by 22.02.2016, the present private

respondents had already joined their respective posts. On the other hand, the writ petition was filed on 20.02.2016. It is submitted that having come to

know about the filing of this writ petition the whole process was done in a hurried manner in order to cover up the illegalities of the present

respondents.

Countering the submission of Ms. Devi, Mr. Goswami submits that the pleadingsis devoid of any merit inasmuch as the present petitioner has not

challenged the notification dated 08.01.2016 including the subsequent one issued on 08.01.2016. Referring to the relief sought for by the present

petitioner, Mr. Goswami submits that without seeking the relief for setting aside the notification dated 08.01.2016, the petitioner has sought for setting

aside the select list dated 17.02.2016 and sought for the appointment of the present petitioner which is not at all tenable inasmuch as the present

petitioner ought to have sought for setting aside the notification dated 08.01.2016 and until and unless he is qualified in the written test and the viva-

voce test, he is not entitled for appointment. Referring to the records which he placed before this court he submits that there is no illegality in giving

appointment to the present private respondents inasmuch as their names are very specific and apparent in the records as maintained during the written

test, interview process and the comparative statement after completion of both the written test and viva-voce. The allegation that the present private

respondents did not compete in the said examination is totally nullified on the face of the records wherein they are very much shown to be present and

they have completed the test and thereafter they were qualified for appointment. Finally, Mr. Goswami submits that keeping in view the factual matrix

as pleaded in the writ petition and if the same are taken in the light of the records produced before this court, the allegation levelled by the present

petitioner is baseless and as such, the writ petition is liable to be dismissed.

Mr. BD Das, the learned Senior Counsel for the respondent No. 4 and Mr. TJ Mahanta, learned Senior Counsel for the respondents No. 5, 6 and 7

submit that the interim order ought not to have been passed by this court inasmuch as the private respondents were not impleaded as the necessary

party in this writ petition. Mr. Das submits that the respondent No. 4 applied for the post of Statistical Assistant (regular) and inadvertently owing to

typographical error his roll number is shown in the Statistical Assistant (C). The roll number of the present respondent No. 4 itself goes to show that

his admit card was issued against the post for Statistical Assistant (R) inasmuch as the code “15081†stands for the candidates who applied for

the post of Statistical Assistant (R) if looked into the notification whereby the results of the written test was declared. Further, the roll number of the

respondent No. 4 can also be compared with the one of the successful candidates for Statistical Assistant (C) where the code is “15131â€. Under

such circumstances, the subsequent corrigendum issued by the respondent No. 2 cannot be disbelieved that the roll number of the respondent No. 4

wrongly crept in the column of the Statistical Assistant (C). On the other hand, Mr. Mahanta submits that the record itself speaks that the present

respondents No. 5, 6 and 7 had qualified the written test and viva-voce test and their presence is very much proved by the records produced before

this court. For no fault, they have been put to suffer undue harassment purely on wrong allegations made against them. Under such circumstances,

both the learned Senior Counsel sought for the dismissal of the present writ petition.

Considered the submission of the learned counsel. Keeping in view thesubmission of Ms. Devi, I verified the records and from the attendance sheet

for Statistical Assistant (R), it is found that the respondent No. 4, Muminul Hoque Laskar bearing Roll No. 150811687 was very much present on

19.01.2016, the date on which the viva-voce test was carried out at the Government BDS Deaf and Dumb School, Kahilipara and his name is

reflected in Sl.No. 91 wherein it is apparent that he put his signature thereby proving his presence in the said test. Similarly, from the attendance sheet

of 19.01.2016 it is found that Mumieuddin Ahmed (respondent No. 6), Hasmat Ali (respondent No. 7) and Nur Jaman Bin Farid (respondent No. 5)

were present and their names stood at Serial Nos. 58, 59 and 60 in the said attendance sheet along with signatures respectively which proves their

presence in the said vivavoce test. The comparative statement of the standings of the total successful candidates for various posts under the

respondent No. 2 shows that Muminul Hoque Laskar (respondent No. 4), Mumieuddin Ahmed (respondent No. 6), Hasmat Ali (respondent No. 7)

and Nur Jaman Bin Farid (respondent No. 5) secured total marks as 94.25, 79.75, 78.75 and 79.75 respectively which include marks obtained in both

written test as well as oral test. On the other hand, the petitioner Tunmoni Borah whose name is at Sl. No. 83 of the said comparative statement

secured in total 50.75 marks which include marks obtained in both written test as well as oral test. From the records, I am satisfied that the

respondents No. 4 to 7 duly appeared and faced interview and secured much higher marks than the present petitioner and from that point of view it

cannot be held that they, more specially, the private respondents did not enter the arena of competition in the said selection process. Regarding

subsequent publication of the notification dated 08.01.2016 it has been mentioned therein that in continuation of the previous list published vide letter

dated DSW (ICDS) E/128/2014/66 dated 08.01.2016, the roll numbers of the private respondents No. 5, 6 and 7 are shown thereby fixing the date of

interview on 19.01.2016. On comparing earlier notification it is found that the notification number tallies with the one mentioned in the subsequent

notification wherein the roll numbers of the respondents No. 5, 6 and 7 are mentioned. The said publication of the subsequent notification, in my

opinion, cannot be termed to be with any purpose for extraneous consideration.

It is submitted by Ms. Devi that while filing the affidavit-in-opposition by therespondent No. 2, such facts were not mentioned in the said affidavit

and as such, there are suspicious circumstances on the part of the respondent No. 2 of illegalities perpetrated by him thereby vitiating the selection

process. The said submission of Ms. Devi is hard to accept inasmuch as in the exercise of a selection process covering various posts with large

number of candidates, such mistake cannot be ruled out. Mere non-mentioning of the said fact like subsequent publication of notices in the affidavit-in-

opposition of the respondent No. 2 and as such the selection process is vitiated resorting to illegal practice cannot be accepted after going through

the records produced before this court inasmuch as documents never lies and keeping that principle in view, in my considered opinion, the

appointments of the private respondents No. 4 to 7 are lawful and the selection process resorted to by the State respondents needs no interference.

Accordingly, this writ petition stands dismissed.

Interim order dated 24.02.2016 stands vacated.