| SooperKanoon Citation | sooperkanoon.com/121428 |
| Subject | ;Service |
| Court | Guwahati High Court |
| Decided On | Dec-20-2007 |
| Judge | Aftab H. Saikia and R.B. Misra, JJ. |
| Appellant | Ariful Islam and ors. |
| Respondent | State of Assam and ors. |
| Prior history | Aftab H. Saikia, J. 1. All these three writ appeals having been structured upon identical facts situation gave rise to common question of law and accordingly all of them were being heard analogously and are being disposed of by this common judgment and order. 2. In both the writ appeals namely in W.A. No. 249/06 and W.A. No. 278/06, the writ appellants challenged the impugned common judgment and order dated 21.6.2006 passed by the learned Single Judge in a set of writ petitions, i.e. (1) W.P. |
Aftab H. Saikia, J.
1. All these three writ appeals having been structured upon identical facts situation gave rise to common question of law and accordingly all of them were being heard analogously and are being disposed of by this common judgment and order.
2. In both the writ appeals namely in W.A. No. 249/06 and W.A. No. 278/06, the writ appellants challenged the impugned common judgment and order dated 21.6.2006 passed by the learned Single Judge in a set of writ petitions, i.e. (1) W.P. (C) No. 6839/2005 (Madhab Buragohain and 15 Ors. v. State of Assam and Ors. (2) W.P. (C) No. 5880/2005 (All Assam Unemployed Association represented by its General Secretary, Sri Jiban Rajkhowa v. The State of Assam and Anr. (3) W.P. (C) No. 7175/2005 (Sri Apurba Sarma and 24 Ors. v. State of Assam and Ors.) and (4) W.P. (C) No. 6602/2005 (All Assam Unemployed Association represented by its President, Central Committee, Dr. Asad Hazarika v. State of Assam and Ors. reported in 2006 (3) GLT 462.
In W.P. (C) No. 6839/05 all the three writ appellants in W.A. No. 249/06 were allowed to be impleaded by the Writ Court as party respondent Nos. 9, 10 and 11 vide order dated 2.2.2006 passed in Misc. Case No. 365/06 when the sole appellant in writ appeal No. 278/06 was impleaded as party respondent in W.P. (C) No. 6839/05 by an order dated 5.5.2006 passed by the learned Single Judge by allowing a Misc. Application being Misc. Case No. 882 of 2006.
3. On the other hand, the writ appeal being W.A. No. 57 of 2007 was filed by the writ petitioners in W.P. (C) No. 6839/05 seeking quashment of the findings recorded in the impugned common judgment dated 21.6.06 to the effect that there was no material to hold that the selection process con ducted by the respondent/authorities in the instant case suffered from any manipulation or unfairness etc. with a prayer to direct for an enquiry to be conducted by an independent investigating agency to the various illegalities, anomalies and unfairness adopted by the respondent/authorities in the selection process in question.
4. The narration of the factual matrix in a short compass, so projected in these appeals on the basis of the pleadings exchanged by and between the parties before the Writ Court, would be necessary for proper resolution of the issues raised in these appeals.
Writ Appeals Nos. 249/06 and 278/06
5. The writ petitioners 16 in numbers (Madhab Buragohain and 15 others) initially initiated a writ proceeding through W.P. (C) No. 6839/05 stating that in the year 2001 the , petitioners No. 1 to 7 including private respondents No. 6, 7 and 8 were appointed to the posts of Assistant Enforcement Inspector (for short,'AEI') and petitioners No. 8 to 16 were appointed as Enforcement Checker (for short, 'EC') on ad-hoc basis dehors the Rules and they had accordingly been working in various districts of Assam.
Subsequently a selection process was initiated vide an employment notice dated 19.7.2001 for filling up 32 posts of AEI and another 32 posts of EC including the posts held by the 16 writ petitioners and the private respondents Nos. 6, 7 and 8 and others on ad-hoc basis.
6. After conclusion of the selection process that consisted of written examination followed by viva -voce test wherein the writ petitioners and others also participated, regular appointment orders were issued to those selected candidates in the year 2003 for filling up of those posts.
However the said selection process was challenged before this High Court by filing various writ petitions namely WP. (C) No. 505/02, 1088/02, 1373/02, 2572/02, 6000/02 and PIL No. 19 of 2002 which were disposed of finally by the Division Bench of this High Court vide judgment and order dated 29.1.03 with a direction to the State Respondents to allow the writ petitioners in those writ petitions, who alleged refusal to give them opportunity, to appear in the written examination and face interview in accordance with the procedure adopted by the State Government.
7. The judgment and order dated 29.1.2003 abovementioned was taken before the Supreme Court by way of SLP Nos. 3553/03 and 10154/03 and the same were disposed of by the Supreme Court by its judgment dated 4.8.2003 and the same reads as under:
Leave granted in all the Special Leave Petitions:
The appeals are disposed of by the following orders:
(1) In keeping with the decision of the State Government to hold fresh examinations for the posts of Assistant Enforcement Inspector and Enforcement Checker, (Department of Trans port), the examinations held in 2002 for the afore said posts are set aside. The State Government has also made it clear before this Court that they will hold the fresh examinations as soon as it is possible.
Prior to such examinations advertisements must be published in local newspapers throughout the State indicating therein the eligibility criteria for the selections.
(2) Until the selection is completed after the fresh examination which is proposed to be held, the ad-hoc appointees i.e. those who were manning the posts prior to the examinations which were held in 2002, shall continue to hold the aforesaid posts. This shall not create any equity in their favour.
If they wish to be appointed regularly they must sit for the examinations and if they are successful take the viva-voce test.
We do not express any opinion on the merits of the allegations which have been raised.
There shall be no order as to costs.
8. It is to be noted that meanwhile immediately after the pronouncement of the above mentioned direction by the Apex Court on 4.8.2003, the State of Assam on 7.10.2003 framed the Assam Transport Services Rules, 2003 (for short, 'the Rules') repealing the earlier Rules, namely, the Assam Transport Service Rules, 1983 (for short, 'the Rules of 1983') and the same came into force w.e.f. 10.10.2003.
9. It would be pertinent to quote the relevant provisions of law laid down in the Rules for adequate appreciation of the questions raised in the case at hand.
10. The Rule 3 provides for Classes and Cadre. As per Rule 3(1)(d) Class III shall include the cadres of
(i) Assistant Enforcement Inspector;
(ii) Enforcement Checker
11. Rule 5 contemplates the Method of Recruitment wherein Sub-clauses 5 and 6 prescribe as under:
(5) Assistant Enforcement Inspector:
(a) 75% of the posts in the cadre shall be filled up by direct recruitment in accordance with Rules 7, 8, 9 and 10.
(b) 25% of the posts in the cadre shall be filled up by cadre of Enforcement Checker in accordance with Rules 11, 14, 15, 16, 17 and 18.
(6) Enforcement Checker: By direct recruitment in accordance with Rules 7, 8,9, 10, 14, 16, 17 and 18.
12. Rule 6 prescribes for direct recruitment which may be quoted as under:
6(1) Subject to the provisions contained in Sub-rules (2) (a), (4)(a), (5) (a) and (6) of Rule 5, direct recruitment to the service shall be made on the basis of recommendation made by the Commission/Board, as the case may be, in accordance with the procedure hereinafter provided:
(a) Before the end of each year the Appointing Authority shall make an assessment regarding the likely number of vacancies to be filled by direct recruitment during the next year and shall intimate the same to the Commission/Board together with details about reservation for candidates belonging to Scheduled Caste, Scheduled Tribes or any other category as laid down by the Government as provided to Rule 15 and about carry forward of such reservation.
(b) The Appointing Authority shall simultaneously request the Commission/Board to recommend a list of candidates for direct recruitment, in order of preference.
(c) The Commission/Board shall make a selection in accordance with the scheme of selection prescribed by the Government. The Commission/Board may hold such test or interview and undertake scrutiny of the particulars furnished by the candidates and other certificates and documents, as may be considered necessary.
(d) After making the selection the Commission/Board shall prepare and furnish to the Appointing Authority a list of candidates who are found suitable for appointment to the service by direct recruitment in order of preference. The number of candidates in such a list may be approximately double the number of vacancies.
(e) The Commissioner/Board shall simultaneously publish the list in the Assam Gazette and/or at such other place as the Commissioner/Board may consider proper.
(2) The list mentioned in clauses (d) and (c) of Sub-rule 6(1) of this rule shall remain valid for twelve months from the date of recommendation.
(3) In the event of the Commission/Board being unable to the recommend sufficient number of candidates to fill all the vacancies in a year it shall, in consultation with the Appointing Authority repeat the procedure as mentioned hereinafter under Sub-rule (1) of this rule for recommending a subsequent list in the year;
Provided that the Appointing Authority shall not make appointment of any candidate from the subsequent list until all the candidates of the earlier list of the same year are appointed to the service.
13. As per Sub-rules 5 and 6 of Rule 5 of the Rules, 75% of the cadre of AEI and the entire cadre of vacancies of EC are to be filled up by direct recruitment according to the provisions of Rules.
14. It is pertinent to mention herein that in Rules of 1983 the Assam Transport Service did not include the cadres of AEI and EC and the same is evident from the Rule 3 of the Rules of 1983 which prescribed the constitution of services as follows:.(1) The service shall consist of the following cadres:
(a) Deputy Commissioner;
(b) Assistant Commissioner;
(c) District Transport Officer, including Transport Officer (Pool);
(d) Motor Vehicle Inspector;
(e) Enforcement Inspector;
(2) The service may also include:
(a) Any post equivalent to a post in any of the cadres mentioned in Sub-rule (1); and
(b) Any cadre or post laid down by the Government to be included in a cadre or service.
15. On 21.12.2003 an advertisement was published by the Government inter-alia inviting applications for 32 posts of AEI and 32 posts of EC. This was followed by holding of the written test on 26.6.2004. Subsequently on 18.12.2004 a selection committee was constituted for conducting further selection process.
16. The legality of the aforesaid selection process came to be challenged by the ad-hoc appointees manning the posts (including the writ petitioners) by way of W.P. (C) No. 2594/05 wherein an interim direction was passed by this Hon'ble Court on 1.4.2005 prohibiting publication of the result of the written test. However, this order was subsequently modified on 13.4.2005 inter-alia permitting declaration of the result of the written examination with a further leave to the authorities concerned to hold the viva-voce test. But the authorities concerned were restrained from publishing the final select list/merit list. Consequently, the viva-voce test for some selected candidates were held.
17. There was another writ petition i.e. W.P. (C) No. 5033/2004, which was filled by some other fresh candidates else than the ad-hoc appointees who were not selected in the said selection process.
Ultimately the learned Single Judge vide judgment and order dated 19.7.2005 passed in the aforesaid W.P. (C) No. 2594/05 & W.P. (C) No. 5033 of 2004 was pleased to set aside the entire selection process convened vide the aforesaid advertisement dated 21.12.2003 solely on the ground that the selection committee constituted by the Government on 18.12.2004 was not as per Rules.
18. Thereafter for the third time again the Government endeavoured to regularly fill up the aforesaid 32 posts of AEI and 32 posts of EC by publishing an advertisement dated 30.7.2005. That advertisement came to be challenged vide W.P. (C) No. 5880/05 filed by the All Assam Unemployed Association on the plea that enough time was not given for submitting applications in pursuance of the said advertisement and that the requirement for submitting application fee of Rs. 50.00 was contrary to Government policy. The said writ petition was disposed of on 19.8.2005 on the submission of the Government authorities that the last date for submission of the applications stood extended upto 30.8.2005 and that the requirement for payment of application fees was already waived.
19. Even after the aforesaid order, the se lection process could not continue as the ad- hoc appointees manning those posts filed a writ petition on 22.9.2005 being W.P. (C) No. 6839/2005. Side by side another writ petition being W.P. (C) No. 6602/05 was also preferred by the same aforesaid All As sam Unemployed Association on 15.9.2005. In both these cases this Hon'ble Court permitted the Respondent authorities to continue with the selection process while in W.P. (C) No. 6839/2005 direction was issued prohibiting publication of the final result without the leave of the Hon'ble Court.
20. Subsequently when the State Respondents sought for permission for publication of result of the selection process, all the writ petitions were taken up together and were being heard. In the result the selection process held pursuant to advertisement dated 30.7.2005 was set aside and quashed by the impugned common judgment and order and the respondent-authorities were directed by the learned Single Judge to conduct fresh se lection process in accordance with law.
21. It would be apt and necessary to quote the relevant portion of the advertisement dated 30.7.2005 which reads as follows:
Government of AssamOffice of the Commissioner ofTransportAssam, Guwahati-6
No.CST-E/64/2005
Dated Guwahati, the 30th July/2005
In pursuance of the Hon'ble Supreme Court of India in case No. SLP.3553/2003, applications are invited in the prescribed standard form (published in the Assam Gazette). Part-IX from the intending candidates to fill up the posts of Assistant Enforcement Inspectors and Enforcement Checkers under the Commissioner of Transport, Assam.
(1) Number of Posts:
1. Assistant Enforcement Inspector-32 Numbers.
2. Enforcement Checker--32 Numbers.
(2) Qualification:
(a) Qualification for the post of Asstt. Enforcement Inspector is Higher Secondary School Leaving Certificate Examination passed or equivalent from any recognized University/Board.
(b) Qualification for the post of. Enforcement Checker is High School Leaving Certificate Examination passed or equivalent from any recognized University/Board.
(3) Age:
Age of the candidates shall be not less then 18 years and not more than 36 years on the 1st day of January, 2005. Relaxation of age will be considered to the candidates belonging to special categories like Scheduled Caste/Scheduled Tribe/(Plain)/Scheduled Tribe (Hills) or any other categories as laid down in rules by the Government and in accordance with notifications of the government in force.
(4) Applications will be received in the re spective District Transport officer's office upto 18th August, 2005 during Office hours. No ap plication will be accepted after 18th August, 2005 under any circumstances.
. . .
. . .
(15) All eligible candidates who had applied earlier against the advertisement dated 21.12.2003 inadvertently apply afresh against this advertisement and if two Admit Cards are issued against any such candidate, the second Admit Card shall stand cancelled automatically.
(16) All eligible candidates who had already applied for the post of Asstt. Enforcement Inspector and Enforcement Checker including the ad-hoc AEI and EC in pursuance to the last Advertisement dated 21.12.2003 need not apply afresh.
. . .
22. Heard the learned Counsel representing the rival parties at length. Submissions on behalf of the writ appellants:
23. It was argued on behalf of the writ Appellants that there was a grave error apparent on the face of the impugned judgment itself to the effect that the selection process in question convened vide advertisement dated 30.7.2005 did confine only to candidates who were eligible to apply in terms of the first advertisement i.e. the initial Employment Notice dated 19.7.01 and thereby interfering with the said selection process holding that the selection process suffered from incurable legal infirmity although the impugned advertisement that initiated the selection process was made in compliance of the direction given by the Supreme Court vide order dated 4.8.2003 inasmuch as from the perusal of the order dated 4.8.03 passed by the Supreme Court it was crystal clear that the Hon'ble Supreme Court never directed the State-Respondents that the selection process should be confined only to those persons who were eligible in the year 2001 only.
24. It was submitted that no illegality or infirmity was ever committed by the State Respondents by issuing the advertisement dated 30.7.2005 in pursuance of which more than 50,000 (Fifty Thousands) candidates including the writ petitioners in the connected writ petitions applied for those posts followed by written test held on 25.9.2005 and after declaration of result of such test, the viva-voce was also held in the month of November, 2005. The said advertisement was effected only in compliance of the order of the Hon'ble Supreme Court. It was contended that however, the result of such selection could not be declared due to interim order passed by the Hon'ble Court in the related writ petitions. It was further pointed out that in the advertisement dated 30.7.2005 in Clause 16 it was clearly stated that-- 'All eligible candidates who had already applied for the post of Asstt. Enforcement Inspector and Enforcement Checker including the ad-hoc AEI and EC in pursuance to the last advertisement dated 21.12.2003 need not apply afresh' and since all the ad-hoc appointees, being the writ petitioners and private Respondents Nos. 6, 7 and 8 in W. P. (C) No. 6839/06, participated in the examination of the selection process pursuant to the advertisement dated 30.7.2005, they now should not be allowed to say that interview process should be confined to the year 2001 only and accordingly impugned finding in this regard to the effect that the selection procedure should have been confined only to those who were eligible to participate in the recruitment process of first advertisement dated 19.7.2001 need to be interfered with. It was further submitted on behalf of the writ appellants that immediately after publication of the advertisement dated 30.7.2005 if writ petitioners had any doubt for not confining the selection process to the year 2001 only they ought not to have participated in the selection process by appearing in the written examination as well as taking interview, rather they should have approached the Hon'ble Supreme Court for clarification and/or modification of the order dated 4.8.03 as quoted above. The learned Single Judge, having perused and appreciated the prayers made in the related writ petitions, ought to have dismissed the writ petitions in .limine.
25. Rferring to the Rules of 1983 as well as the Assam Transport Service (Recruitment and Promotion to the Posts of Assistant Enforcement. Inspector) Orders 1990 (for short, 'the Service Orders') (Notification dated 16.1.1990), it was contended that the Rules of 1983 did not make any mention about the present posts of AEI and EC under Rule 3 and there was also no provision for any method of recruitment to the post of AEI and EC. At the same time, the Service Orders provided only for the post of AEI and not for EC. It was for the first time that the Rules mentioned about cadres of ASI and EC under Rule 3 and method of its recruitment under Rules 5 and 6. Therefore, in compliance of the Supreme Court's order dated 4.8.03 when the State Government started the process for fresh examination for the posts of AEI and EC, the Rules had already come into force that clearly dealt with the cadre and recruitment of AEI and EC and as such no illegality was committed by the State-Respondents by issuing advertisement dated 30.7.2005 for filling up of those posts for AEI and EC. Even the learned Single Judge in his judgment in paragraph 47 upheld the Rules on the ground that when the Rules of 1983 and the Service Orders of 1990 did not prescribe any scheme or specific procedure for holding selection test for the above posts, the Rules provide for a fair and transparent system of recruitment to those posts.
26. It was further contended that taking advantage of the direction contained in paragraph 2 of the order passed by the Hon'ble Supreme Court on 4.8.2003 by which the present Ad-hoc appointees/the writ petitioners in the related writ petitions had been allowed to continue to hold the post until the selection was complete after fresh examination, the said Ad-hoc appointees/writ petitioners wholly on baseless and unwarranted ground filed the instant writ petition with the sole purpose for delaying the entire selection process for unlimited period so that they could continue to hold the post by depriving the genuine candidates which more than 50,000 in numbers who were eagerly waiting for the result of the final selection. Relying upon a decision of a case of J & K Public Service Commission and Ors. v. Dr. Narinder Mohan and Ors. reported in : (1994)ILLJ780SC wherein the Apex Court in paragraph 12 held that pegging the recruitment in chain system would deprive all the eligible candidates as on date of inviting application for recruitment offending Articles 14 and 16, it was vehemently argued that restricting the selection process only to the candidates who were eligible to participate in the selection process in the year 2001 to the exclusion of the rest of the job seekers who were definitely within the zone of consideration by virtue of their attainment of requisite qualification for the concerned posts as on the date of the advertisement dated 30.7.2005 would clearly hit Articles 14 and 16 of the Constitution of India. Under such circumstances, the impugned common judgment dated 21.6.2006 setting aside the entire selection process initiated on the basis of the advertisement dated 30.7.2005 and further direction to conduct fresh selection for the posts of AEI and EC was liable to be set aside and quashed and the respondents/authorities may be directed to declare the final result of the selection process and to make appointment to the aforesaid posts accordingly.
Arguments advanced for the private respondents (writ petitioners):
27. Refuting strongly the submissions and arguments advanced on behalf of the writ appellants, being the interveners in the connected writ petitions filed by the writ petitioners/private respondents herein and also supporting the impugned common judgment to the extent of setting aside the selection process held pursuant to the advertisement dated 30.7.2005, being under challenge in the connected writ petitions, in its entirety on the ground that same suffered from incurable legal infirmity that vitiated the entire selection process and further direction to the respondents/authorities to conduct a fresh selection process in accordance with law, it was contended on behalf of writ petitioners/private respondents in both the writ appeals that as many as 4 (four) writ petitions had been instituted pertaining to the impugned selection process to the posts to AEI and EC and those were (1) W.P. (C) No. 6839/05 filed by 16 writ petitioners wherein 3(three) writ appellants in W.A. No. 249/06 were interveners, (2) W.P. (C) No. 7175/05 was preferred by 25 writ petitioners, being the unemployed individual persons, (3) W.P. (C) No. 6602/05 was field by All Assam Unemployed Association represented by its President, Central Committee, Dr. Asad Hazarika and (4) W.P. (C) No. 5880/05 was initiated by All Assam Unemployed Association represented by its Secretary reported in 2006 (3) GLT 462
28. The basic thrust of the argument canvassed on behalf of the private respondents (writ petitioner) was that the Hon'ble Supreme Court's order dated 4.8.03 did not enlarge the eligibility of the candidates to participate in the selection process and since the vacancies of 32 posts in each of AEI and EC related to the year 2000, those vacancies were freezed. It was stated that the process of filling up of those vacancies was initiated in 2001 itself and those vacancies needed to be termed as freezing vacancies and as such there was no scope to permit any other candidates who were not eligible in 2001. It was emphasized that the advertisement dated 30.7.2005 for selection to the concerned posts was a continuous process initiated in the year 2001 by virtue of the Employment Notice dated 19.7.2001 and therefore the fresh examination meant only for the selection that related to the year 2001. In the said premises, the order of the Hon'ble Supreme Court was a substitution of earlier selection process of 2001 and it did not contemplate to include any other persons eligible after 2001. It was also argued that although the process of selection had already been started in the year 2001, it was for the default of the State Government that selection could not be duly made for the vacancies of 2000. Under such circumstances if all those candidates who became eligible after the 2001 were allowed to participate in the selection process, the right of the candidates eligible in the year 2001 would be adversely affected. The Supreme Court direction was manifestly for fresh selection process amongst those candidates in the year 2001 in lieu of the earlier examinations for which process had already been commenced. It was also contended that since the process started in 2001 for the vacancies of 2000 the Rules could not be made applicable. On the other hand, the Rules of 1983 ought to have been followed. Therefore, the eligibility of candidates must be confined to that year and there was no illegality in such circumstances in setting aside the selection process held in pursuance of the advertisement dated 30.7.2005. It was further argued that though the impugned advertisement dated 30.7.2005 appeared to have been made in compliance of the Supreme Court's order dated 4.8.2003, the same was in clear and manifest deviation from the Supreme Court's Order wherein it was expressly observed that the advertisement so published must indicate the eligibility critgria for the selection.
29. To bolster up such submissions, strong reliance was placed on a judgment of the Apex Court reported in : (1995)IILLJ77SC (Krishan Yadav and Anr. v. State of Haryana and Ors.) wherein the Apex Court while setting aside the entire selection for 96 posts of Taxation Inspectors under the Department of Excise and Taxation in the State of Haryana conducted by the Subordinate Selection Board on the ground of fraud, nepotism, etc. in paragraph 23, the Supreme Court directed as follows:
The next question is what is the future course of action? It is hereby ordered:
(i) A fresh selection shall be made for 96 posts of Taxation Inspectors.
(ii) All candidates who had applied in response to Advertisement No. 3 dated 7.7.1988 and who were found eligible will be entitled to take such an examination.
(iii) The total marks for written examination shall be 200.
(iv) The total marks for viva-voce shall be 25 that is not more than 12 per cent as has been laid down in Mohinder Sain Garg v. State of Punjab with reference to the very post.
(v) The advertisement announcing the fresh examination shall be issued immediately, fixing the last dated as 30.6.1994.
(vi) Intimation as to the acceptance of applications and the schedule of the examination shall be given on or before 16.8.1994.
(vii) The examination shall commence in as many centers as required from 1.9.1994.
(viii) The evaluation shall be completed before 31.10.1994.
(ix) The marks obtained shall be published in three prominent dailies having large circulation in the State of Haryana in addition to the display on the notice Board.
(x) The number of candidates called for viva-voce shall not exceed three times the number of posts to be filled.
(xi) The viva-voce shall commence from 7.11.1994 and be completed by 25.11.1994. The final analysis of the tabulated results shall be submitted to this Court on or before 10.12.1994.
We make it clear that not one of the persons connected with the present examination shall be allowed to have anything to do with the previous examination. We expect strict compliance with this order. Under no circumstances will there be an extension of time in this regard. The State shall endeavour its best to see that the examinations are conducted fairly without any room for any complaint. If necessary, it could have an independent body or agency in order that it may infuse confidence and make people believe that the misdeeds complained of in this case constitute an isolated chapter and a thing of past....
30. Following such direction of the Apex Court, it was argued that the Supreme Courts' order dated 4.8.2003 shall also be read to infer that the selection process was intended to be confined only to those candidates who were eligible in 2001. It was also submitted that when the Supreme Court Order came on 4.8.2003, the Rules was not in force and it came into operation only on 10.10.2003. Besides, the selection process that intiated pursuant to the advertisement dated 21.12.2003 did not see the compliance of the said Rules for which the entire selection process was earlier quashed by the learned Single Judge vide judgment and order dated 19.7.2005 passed in the earlier set of writ, petitions, i.e., W.P. (C) Nos. 2594/2005 and 5033/2004. It was mentioned that since the selection process was started in the year 2001, the Rules could not be made applicable as the same was not in force at the relevant period. Under such circumstances, according to the learned Counsel representing the respondents/writ petitioners, the impugned common judgment to the extent of the finding, as already indicated above, need no interference in these writ appeals which had been initiated at the behest of the interveners who could not be permitted to raise points which were not canvassed by the petitioner. In this context, the decision of the Apex Court reported in : (1974)ILLJ489SC (M/s Gammon India Ltd. and Ors. v. Union of India and Ors.) was referred to wherein in paragraph 39 of the judgment the Supreme Court observed as follows:
39. Section 28 of the Act was challenged as conferring arbitrary and unguided power and therefore violative of Articles 14 and 15. Section 28 of the Act confers power on the Government to appoint persons as it thinks fit to be the Inspectors for the purposes of the Act and such Inspector shall have power to enter a all reasonable hours the premises or place where contract labour is employed for the purpose of examining any register or record or notice and examine any person and seize or take copies of documents mentioned therein. When they have reasons to believe that an offence has been committed, they can seize or take copies. This point was taken by the intervener. An intervener cannot raise points which are not canvassed by the preteens in the pleadings.
Reasons and Decisions:
31. We have given our contemplative consideration to the extensive arguments so advanced on behalf of the parties involved in these writ appeals.
At the very outset let us look into the prayers made in the Writ Petition being W.P. (C) No. 6839/05 which run as under:
In the premises aforesaid it is respectfully prayed that Your Lordships may be pleased to issue Rule, call for the records calling upon the respondents to show cause as to why : a writ in the nature of certiorari shall not be issued to set aside and quash.
(i) The impugned advertisement dated 30.7.05 inviting applications under such conditions in the advertising totally in violation of the Hon'ble Supreme Court Order (Annexure-2)
(ii) 6(1)(c) of the Assam Transport Service Rules, 2003 which confers an unguided and unchannelised power in the hands of the Govt., of frame a scheme of selection. (Annexure-6)
A writ in the nature of mandamus--
(i) To rescind, recall and otherwise forebear from giving effect to the advertisement dated 30.7.05 and all subsequent actions.
(ii) to show cause as to why the petitioners should not have been declared to be regularized in the post held by them on the strength of their continuous 5 years service.
(iii) As to why the persons not eligible to apply on the day of vacancy should not be restrained from competing in the present selection.
(iv) Alternatively why the Proforma Respondent No. 4( APSC) is not directed to shoulder the responsibility of conducting the examination by directing reissue of the Admit Cards issued in the interest of free and fair selection and/or pass such other or further order (s) as Your Lordships may deem fit and proper.
-And-
Pending disposal of the Rule, Your Lordships may be pleased to stay the impugned selection process initiated vide advertisement dated 30.7.05 and/or be pleased to pass such further or other order (s) as Your Lordships may deem fit and proper.
32. It appears that the basic relief sought in the prayer was for quashment of the impugned advertisement dated 30.7.05 inviting application under such conditions in the advertisement as the same was totally in violation of the Hon'ble Supreme Court's order dated 4.8.03 including another prayer to restrain the State respondents from giving effect to the advertisement dated 30.7.05 and all subsequent actions and to further direct declaring regularization of the posts held by the writ petitioners on ad-hoc basis on the strength of their continuous 5 years service.
33. Since the writ petitioners/private respondents in this writ appeal made a grievance for violation of Supreme Court's order in publishing the impugned advertisement dated 30.7.05, we are of the considered view that this Court is not the appropriate forum for interpretation of the Supreme Court's order dated 4.8.2003 in pursuance of which the impugned advertisement dated 30.7.05 was admittedly published. That apart, having regard to the Supreme Court's order dated 4.8.03, we do not find any valid or cogent reason to accept the submission made on behalf of the private respondents/writ petitioners that the advertisement in question must be confined only to the eligible candidates in the year 2001.
34. Insofar as the relief sought to the extent that the writ petitioners should have been declared to be regularized in the posts held by them on the strength of their continuous 5 years service admittedly on ad-hoc basis, is concerned, it is apparent on the face of the materials available on record that the writ petitioners were appointed to those concerned posts in the year 2001 dehors any relevant rules or procedure and such prayer, therefore, cannot be considered in view of the established law laid down in the judicial pronouncement of Umadevi (3)'s case (Secretary, State of Karnataka and Ors. v. Umadevi (3) and Ors. reported in : (2006)IILLJ722SC .
35. The writ court having considered the pleadings on records and submissions advanced at the time of hearing framed as many as 7 distinct points to resolve the controversy which run as follows:
i) Whether the selection procedure ought to have remained, and ought to have been kept confined, within those, who were eligible and qualified for selection to the posts of Assistant Enforcement Inspector and Enforcement Checker in the year 2001?
ii) Whether the provisions of the recruitment rules, prevailing at the time of initiation of the selection process, ought to have been resorted to for the purpose of making the selections and not the amended recruitment rules and/or the Rules of 2003?
iii) Whether the writ petitions suffer from non-joinder of necessary parties?
iv) Whether a scheme for conducting the selection process, as envisaged under the Rules of 2003 was prepared and/or any infirmity in this regard has led to an invalid and/or unfair selection process?
v) Whether the questions papers were leaked out to some of the candidates and whether unfair means were adopted by some chosen candidates and also by the authorities/respondents, who were entrusted with the responsibility of holding and conducting the selection process?
vi) Whether the selections, eventually, made are fair and legal?
vii) To what reliefs, if any, the parties are entitled?
36. Having scrupulously considered the findings arrived at by the writ court in deciding the above mentioned issues, particularly Issue No. (i) and also keeping in mind the Supreme Court's order dated 4.8.2003, we do respectfully disagree with the same and accordingly we do find no merit in the writ petitions especially taking into account the prayers made therein.
37. Besides we would like to put on record that admittedly all the writ petitioners including the private respondents Nos. 6, 7 and 8 in W.P. (C) No. 6839/05 participated in the selection process without any protest along with others initiated and held pursuant to the impugned advertisement and as such in our considered opinion, they are estopped from challenging the said selection process on the ground of invalidity and unfairness.
38. The Apex Court in a case of Om Prakash Shukla v. Akhilesh Kumar Shukla and Ors. reported in : [1986]1SCR855 while dealing with such a similar challenge to the selection process by the candidates participating in the said selection process realising not to succeed, in paragraph-23 held as under:
23. Moreover, this is a case where the petitioner in the writ petition should not have been granted any relief. He had appeared for the examination without protest. He filed the petition only after he had perhaps realized that he would not succeed in the examination. The High Court itself has observed that the setting aside of the results of examinations held in the other districts would cause hardhip to the candidates who had appeared there. The same yardstick should have been applied to the candidates in the District of Kanpur also. They were not responsible for the conduct of the examination.
In another case in the year 1995, (Madan Lal and Ors. v. State of Jammu & Kashmir and Ors. reported in : [1995]1SCR908 ) the Supreme Court held that a candidate who took a chance to get selected at the said interview and ultimately found himself to be unsuccessful could not be permitted to challenge the result of the interview test on merits.
39. 45. In Suneeta Aggarwal's case reported in : [2000]1SCR783 (Suneeta Aggarwal v. State of Haryana and Ors.), the Apex Court in paragraph-4 ruled that the appellant having appeared before the Selection Committee without any protest and having taken a chance, the appellant was estopped by her conduct from challenging the earlier order of the Vice Chancellor.
40. In a case of Chandra Prakash Tiwari and Ors. v. Shakuntala Shukla and Ors. reported in : [2002]3SCR948 , the Supreme Court in paragraph-32 relying on Om Prakash Shukla's case (supra) empathetically held that when a candidate appeared at the examination without protest and subsequently found to be not successful in the examination, question of entertaining a petition challenging the said examination would not arise.
41. Having regard to the abovementioned judicial pronouncements and also taking into account the facts and circumstances of the case in its totality, we have no hesitation to hold that the writ petitioners once participated in the written examination and took the interview without any protest cannot be permitted to challenge the said selection process/seeking the reliefs as aforementioned in the prayer made in the Writ Petition No. 6839/05. The findings anived at by the Writ Court, therefore, according to us, needs interference so far as the quashment of impugned selection process initiated vide impugned advertisement dated 30.7.05 which was made in pursuance of Supreme Court's order dated 4.8.03 is concerned.
Writ Appeal No. 57/07
42. We have already noticed hereinabove that this Writ Appeal No. 57/07, being based on exactly identical factual backdrop as projected already, was filed challenging the finding of learned Single Judge arriving at in deciding basically the points Nos. (iv) and (v) to the effect that there was no material found on record to hold that the selection process conducted by the respondents/authorities concerned suffered from any manipulation or unfairness. The question raised in this writ appeal is that despite the anomalies and un fairness at large adopted in the selection process being brought to the notice of the Court by filing a miscellaneous application being Misc. Case No. 1141/06 in W.P. (C) No. 6839/05 appending the news item dated 31.3.06 published in local vernacular daily 'Asomiya Pratidin' alleging illegality and unfairness in selection of candidates for appointments in those posts of AEI and EC, the learned Single Judge failed to appreciate the same in its proper perspective and refrained from declaring the selection process being hit by unfairness and manipulation.
Arguments on behalf of the writ appellants:
43. It was contended on behalf of the writ appellants that although the learned Single Judge came to the finding that selection process held pursuant to the advertisement dated 30.7.05 suffered from incurable legal infirmity that vitiated the entire selection process and quashed the selection in its entirety, yet the learned Single Judge held that there were no sufficient materials on record to prove that unfair means were adopted by the chosen candidates as well as by the respondent authorities in spite of same being comprehensively brought to the notice of the writ court.
44. Such finding is perverse and not tenable in law because there were enough materials to substantiate those infirmities. It was also argued that although there were various uncontroverted newspapers report including a report of transaction of money for appointment in the posts and other various allegations, the learned Single Judge failed to appreciate the illegalities and irregularities so manifest therein ex-facie in the selection process.
45. It was strenuously contended that the learned Single Judge did not consider at all the grave anomalies in the selection process and in the result the Writ Court failed to direct for an impartial investigation and/or inquiry to be conducted by independent agency.
Contentions for the respondents:
46. Rejecting outright all those allegations as regards anomalies and unfairness being adopted in the selection process which was brought to the notice of the writ court through the abovementioned miscellaneous application based on newspapers report, it was vehemently urged on behalf of the respondents in W.A. No. 57/07 that all those illegalities committed during the selection process were uncorroborated and unsubstantiated because no prayer was ever made before the writ court to amend the writ petition by incorporating those allegations. That apart, the writ court was absolutely correct and wholly justified in not interfering with those allegations based on newspapers report.
47. It was also argued that the said news items could not be accepted because the said miscellaneous case was filed with an affidavit being sworn by the Advocates' clerk and not by one of the writ petitioners to substantiate their averments.
48. In this context, strong reliance was placed on a decision of the Supreme Court in the case of Dr. B. Singh v. Union of India and Ors. reported in : AIR2004SC1923 . In the said cited case, the Apex Court observed that newspaper reports, per se, do not constitute legally acceptable evidence. In para graphs, the Supreme Court held as under:. It is too much to attribute authenticity or credibility to any information or fact merely because it found publication in a newspaper or journal or magazine or any other form of communication, as though it is gospel truth. It needs no reiteration that newspaper reports per se do not constitute legally acceptable evidence.
Decision:
49. Having meticulously appreciated the submissions advanced on behalf of the rival parties and also bearing in mind the settled law on the question of credibility of the news items published in the newspapers as well as after carefully going through the findings arrived at by the learned Single Judge on the Issue Nos. (iv) and (v), we do not find any plausible or valid reason to interfere with the findings so arrived at in resolution of the points basically the points Nos. (iv) and (v) and accordingly we do agree with the view expressed by the writ court to the effect that the accusation of manipulation and irregularities adopted in the selection process could not be made a basis for interference with the selection process.
CONCLUSION
50. In view of the above, we are of the firm opinion that there was no illegality or irregularity adopted in the selection process held pursuant to the impugned Advertisement dated 30.7.2005 and accordingly the stay order passed on 21.7.2006 in W.A. No. 249/2006 to the effect, 'Until further orders, respondents are directed not to initiate any steps whatsoever for the selection and appointments to the posts, in question' stands vacated. Respondents/authorities shall be at liberty to complete the entire selection process by declaring the results thereof and thereafter to appoint those duly selected candidates to the posts on regular basis to those posts of AEI and EC.
51. For the reasons discussed, stated and observed above, we are of the considered view that Writ Appeal No. 249 of 2006 and Writ Appeal No. 278 of 2006 deserve to be allowed. It is ordered accordingly. On the other hand, we find no merit in Writ Appeal No. 57 of 2007 and accordingly the same stands dismissed.
52. However, considering the facts and circumstances of the case, there shall be no order as to costs.
.