& Ors. Vs. State of Assam & Ors.  INSC 411 (25 February 2009)
JURISDICTION CIVIL APPEAL NO.1252 OF 2009 (Arising out of S.L.P(C) No.12129 of
2006) Sri Jyotish Kaiborta & Ors. ...... Appellants Versus The State of
Assam & Ors. ...... Respondents (With I.A.No.1 of 2007- for transposition
of name of applicant) WITH CIVIL APPEAL NO.1253 OF 2009 (Arising out of
S.L.P(C) No.17979 of 2006) Sri Dip Borah & Anr. ...... Appellants Versus
State of Assam & Ors. ...... Respondents AND CIVIL APPEAL NO.1254 OF 2009
(Arising out of S.L.P(C) No.12766 of 2006) Sri Dhaneswar Deka & Anr. ......
Appellants Versus State of Assam & Ors. ...... Respondents
No.1 of 2007 is allowed and Sanjib Das who was arrayed in SLP (C) No.12129/2006
as one of the respondents is permitted to be transposed as a petitioner. Consequently,
the number of petitioners in that case becomes eight. Apart from the eight
petitioners in SLP(C) No.12129/2006 there are two each in SLP(C) No. 12766 of
2006 and SLP (C) No.17979 of 2006 and two more in I.A. No.5/2009 filed in SLP
(C) No. 17979/2006.
granted in all the SLPs.
three appeals are directed against the judgment and order dated May 17, 2006
passed by a full bench of the Guwahati High Court disposing of a large group of
writ petitions. The appellants, however, are aggrieved by the decision only in
so far as it found and held that the selections made for filling up the
vacancies in the posts of Lower Division Assistant (LDA) were bad and the
select list, dated June 24, 2003 was illegal and consequently set it aside.
controversy relates to appointments to the vacant posts of Lower Division
Assistants in the Transport Department, Government of Assam for which the
concerned authorities, following a selection process, prepared the select list
dated June 24, 2003. The eight appellants in Civil Appeal arising from SLP(C)
No.12129/ 2006 were among the 12 selected candidates in the select list that
was set aside by the High Court. They are thus directly hit by the High Court
judgment. The other six appellants in the other two Civil Appeals and I.A. No.5
of 2009 admittedly did not figure in the select list dated June 24, 2003.
According to them, they were in some earlier list dated November 20, 2001 on
the basis of which the select list of June 24, 2003 was finally drawn up. Their
case is thus materially different from the case of the eight appellants in
Civil Appeal arising from SLP(C) No.12129 /2006.
filling up the vacancies in the posts of LDA in the Transport Department, Govt.
of Assam, the selection process commenced in October, 1998. As is not uncommon
these days, even before it was complete the selection process had to go through
obstacles and face challenges in the Court. But having regard to the limited
scope of these appeals it is not necessary to go into those details. Suffice it
to note that on the basis of a written test held on November 14, 1999 and viva
voce held on December 18, 2000 a select list was eventually prepared and in
pursuance of the direction of the Guwahati High Court dated October 10, 2001 in
W.P.(C) No. 4431 of 2001 it came to be finally published on June 24, 2003. It
is not in dispute that the eight appellants in Civil Appeal arising from SLP(C)
No.12129/ 2006 were among the 12 selected candidates in that list.
the select list was published on June 24, 2003 appellants 1 & 2 (along with
some others) filed W.P. (C) No.6139 of 2003 before the Guwahati High Court
seeking direction for appointment on the basis of the select list. In that case
the High Court passed an interim order on August 8, 2003 directing that any
existing vacancies should be filled up from the select list and prohibiting any
ad hoc appointments from outside that list. A similar order was passed by the
High Court on March 5, 2004 in W.P. (C) No. 8815 of 2004 filed by one Inamul
Hoque (who was at serial No.7 in that select list). Earlier to that a writ
petition being W.P. (C) No.66222 of 2003 was filed, the petitioner's in which
challenged the select list dated June 24, 2003 published by the Joint
Commissioner Transport, Government of Assam and sought direction for their
appointment on the basis of some purported select list dated February 21, 2006.
writ petition too was one of the batch of cases disposed of by the full bench
judgment against which the present appeals are preferred. The High Court found
and held that there was no such select list as claimed by the petitioners of
that case and that part of the judgment is not under appeal before us. In yet
another proceeding, in Contempt Case No. 314 of 2003 the Guwahati High Court
gave directions to the concerned authorities in the government to complete the
process of appointment within six weeks in accordance with law.
aforementioned were some of the matters relating to the select list dated June
24, 2003 and the claim of the selected candidates for appointment based on that
against that there was a counter claim for regularization as LDAs by some
casual employees working in the department. A writ petition being W.P. (C) No. 1154
of 2004 came to be filed before the High Court on March 5, 2004 by some casual
employees seeking stay on the appointments from the select list and on the same
day (March 5, 2004) the High Court directed the concerned authorities not to
issue any appointment orders for the post of LDAs till the next date (March 11,
2004) fixed in the case.
all the writ petitions raising claims for appointment on different grounds as
LDA in the transport department came to be grouped together and in view of the
conflicting orders passed in different writ petitions the entire group came to
be heard by a full bench of the Court.
full bench by a long and well considered judgment totally rejected the claim of
regularization raised by the casual employees but at the same time it found and
held that the selection process was not fair and proper and consequently set
aside the select list of June 24, 2003. In paragraph 23 of the judgment the
Court summarized its decisions as follows:
"Our answers to
the questions referred and also to the questions incidentally arising are
self-contained in the various paragraphs of the present order. However, to
dispel all doubts and avoid any possible confusion we deem it appropriate to
reiterate our conclusions to follows:
(1) The Office
Memorandum dated 20.4.1995 does not reflect a Valid policy decision of the
State for regularization of Muster Roll/Work Charge employees.
No Muster Roll/Work
Charge employee is entitled in law to seek and claim regularization in terms of
the aforesaid Office Memorandum dated 20.4.1995, (2) However, as a large number
of regularisations of different categories of employees have already been
effected in terms of the Office Memorandum dated 20.4.1995, considering the
human factor involved, the Court does not consider it necessary to pass orders
setting aside any of the said regularizations. However, there will be no further
regularization in terms of the aforesaid Office Memorandum, dated 20.4.1995,
and/or such other judicial order(s) for regularization, passed, in this regard,
but has not yet been implemented.
(3) The Office
Memorandum dated 20.4.1995 does not cover any category of employees other than
Muster Roll and Work Charge employees. No policy decision has been taken by the
State with regard to regularization of different categories of
casual/contingent/adhoc employees working in the different departments of the State
Government. Such employees are, therefore, not entitled to claim any
regularization either under the Office Memorandum dated 20.4.1995 or any other
Office Memorandum in force.
(4) Casual employees
of the Transport department in Grade III posts are not entitled to
regularization in terms of the Office Memorandum dated 20.4.1995 or any other
Office Memorandum in force.
(5) The selections
held for filling up the vacant posts of L. D.
Assistants in the
Transport department including the select list dated 24.6.2003 is found to be
illegal and therefore set aside.
(6) The Court
expresses no opinion with regard to the validity of the Cabinet decision dated
22.7.20005 or its implementation and execution. The matter will be considered,
if required, at the appropriate time and stage.
All the writ
petitioners shall stand disposed of as being answered in terms our conclusions
noted above the appellants are aggrieved by the finding at serial No.5 in
regard to the select list and the direction to set it aside.
P.K. Goswami learned Senior Counsel appearing for the appellants in Civil
Appeal arising from SLP(C) No.12129/2006 submitted that the manner in which the
High Court proceeded to examine the validity of the selection process and the
reason assigned by it for holding the select list to be bad and invalid were
quite unsustainable in law. Learned Counsel submitted that though the pleadings
in the writ petition challenging the select list were found by the High Court
as scanty yet it proceeded to consider the select list by examining the
official records summoned by it.
Mr. Goswami submitted
that the only reason assigned for holding the select list to be bad was
contained in paragraph 27 of the judgment which is as follows:
candidates have also raised a question with regard to the validity of the
selection process. Through the writ petitions filed in this regard do not
contain any elaborate pleadings, as the records in original had been called for
and placed before the Court and the same has been duly perused, we are of the
view that it will only be correct for the Court to record its views in the matter
on the basis of the original records made available for scrutiny of the Court
instated of non-suiting the petitioners on the ground of the scanty pleadings
contained in the writ petitions."
examined the records the High Court recorded its reason for striking down the
select list as follows:
"In this regard
we have considered the marks awarded to the candidates who had undergone the
selection and on such consideration we find that each of the selected
candidates has been given very high marks in the interview segment and it is
only on account of such high marks in the interview that the said candidates
have been selected. While it is correct that the selected candidates have also
secured equally high marks in the written test we have also noticed that other
candidates who had secured equally high and even higher marks in the written
test in that the selected candidates have fared very poorly in the interview.
The scrutiny of the marks awarded to the successful and unsuccessful candidates
reveal a distinct pattern i.e. those who have been selected have secured very
high marks in the interview whereas those unselected have secured very low
marks in the interview held. Such a uniform pattern, in our considered view, is
unnatural and in spite of our best efforts we have not been able to persuade
ourselves to accept the final result of the selection. We, therefore, set aside
the select list dated 24.6.2003 and direct the posts in question to be
are unable to appreciate or even follow the reason assigned by the High Court
for condemning the select list. In case, in viva voce very high marks were
given to candidates who secured low or very low marks in the written test that
might be a ground for suspicion. But if the candidates securing high marks in
the written test were able to secure equally high marks in viva voce we are
unable to find any anomaly. After all there has to be some difference between
the selected and the unselected candidates. Unfortunately the High Court has
not made clear the `distinct pattern' it was able to discern from a scrutiny of
the marks awarded to the candidates. The selection records are not before us
and we do not have the benefit of its perusal but we are clearly of the view
that the approach of the High Court was quite contrary to law laid down by this
Court. In Sadananda Halo and Others vs. Momtaz Ali Sheikh and Other, 2008 (4)
SCC 619 this Court, in Paragraph 49 of the judgment, observed as follows:
Single Judge in his judgment has observed that as per the report of the amicus
curiae the selected candidates got higher marks in viva voce ranging between 30
and 41 marks. In our opinion this has hardly any effect and merely because the
selected candidates got the higher marks ranging between 30 to 41 marks that by
itself could be no reason to reject the selection. We have extensively referred
to the comments made by the learned Single Judge in the earlier part of the
judgment where the learned Judge has in fact recorded his satisfaction for the
printed charts and more particularly about their authenticity. The learned
Judge has also expressed his satisfaction with the procedure adopted.
There is hardly any
reason given by the learned Single Judge excepting that the benchmark of 250
candidates had already been crossed."
58 and 65 of the judgment are also relevant for the present and are reproduced
"58. It is
settled law that in such writ petitions a roving inquiry on the factual aspect
is not permissible. The High Court not only engaged itself into a non-permitted
fact-finding exercise but also went on to rely on the findings of the amicus
curiae, or as the case may be, the scrutiny team, which in our opinion was
inappropriate. While testing the fairness of the selection process wherein
thousands of candidates were involved, the High Court should have been slow in
relying upon such microscopic findings.
It was not for the
High Court to place itself into a position of a fact-finding commission, that
too, more particularly at the instance of those petitioners who were
The High Court
should, therefore, have restricted itself for the Selection Committee and also
in the process assumed the role of the respondents. Unfortunately, the High
Court took it upon itself the task of substituting itself for the Selection
Committee and also in the process assumed the role of an appellate tribunal
which was, in our opinion, not proper. Thus, the High Court converted this writ
petition into a public interest litigation without any justification."
"65. We also do
not approve of the approach adopted by the learned Single Judge of the High
Court as going all the way into the facts and the microscopic details not via
the pleadings of the parties but on the basis of an unnecessary investigation.
We also disapprove of the logic of relying on the findings arrived at only on
the basis of sample survey. Such selection of large number of candidates could
not have been set aside on the basis of same survey. NO evidence was available
before us as to the proportion of this so called "sample
the same effect are two earlier decisions of the Court in Madan Lal and Others.
vs. State of J & K and Others, 1995 (3) SCC 486 Paragraphs 10 and 17 and in
Ashok Kumar Yadav vs. State of Haryana 1985 (4) SCC 417 Para.21.
view of the discussion made above we are unable to sustain the decision of the
High Court in so far as it held the select list dated June 24, 2003 as invalid.
are informed that following the direction of the High Court a fresh selection
process has been initiated to fill up the vacancies of LDAs in the Transport
Department. But that may not affect the relief claimed by the appellants in
Civil Appeal arising from SLP(C) No.12129/2006. On January 10, 2008 this Court
directed that 12 posts of LDA should be kept vacant until further orders. Civil
Appeal arising from SLP(C) No.12129/2006 is accordingly allowed and the
concerned authorities are directed to fill up the 12 vacancies of LDAs in the
Transport Department from the select list dated June 24, 2003 strictly in order
of merit ( six from the selected candidates and six from the waiting list ). In
case any of the candidates from the select list dated June 24, 2006 does not
turn up in response to the offer the vacancy would be filled up from the fresh
selection taken up as per the High Court direction.
claim of the other six appellants is not based on the select list dated June
24, 2003. Counsel appearing on their behalf referred to a list of November 20,
2001 containing the names of 42 candidates. The names of the six appellants are
at serial Nos. 20, 24, 26, 31, 34, and 39. The last two candidates are said to
belong to OBC category. According to the six appellants, the select list dated
June 24, 2003 was drawn up on the basis of the earlier list of 2001 in which
their names also figured. It was submitted on their behalf that there are
sufficient vacancies against which they too could be accommodated. We are
unable to see how the six appellants can be granted any relief. In the first
place the counsel appearing for the State of Assam denied the existence of any
select list dated November 20, 2001. Secondly on their own showing the
appellants are much below even in that list and no direction for their
appointment can be given in disregard of the candidates above them even in that
The claim of these
six appellants thus has no merit or substance. The two appeals arising from
SLP(C) No.12766 of 2006 and SLP (C) No.17979 of 2006 and I.A. No. 5/2009 (filed
in SLP (C) No.17979/2006) are accordingly dismissed.