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2010 Supreme(Gau) 38
IN THE HIGH COURT OF GAUHATI
Biplab Kumar Sharma, J.
Biswajit Suraj Malakar - Appellants
Vs.
State of Assam and Ors. - Respondent
WP (C) Nos. 2106 and 5014 of 2006
Decided On: 25.01.2010
Advocate Appeared:
For Appellant/Petitioner/Plaintiff: S. Medhi and Sheeladitya, Advs.
For Respondents/Defendant: D.P. Chalisha, J.N. Gogoi, C. Baruah, A. Verma, B. Gogoi and P. Barman, Advs.
Headnote:
Writ Petition - According to the Petitioner, his academic career being by far better than the Respondent - Occasion for filing the 2nd writ petition arose for the Petitioner - In Annexure 6 letter by which the APSC made a recommendation, the name of the Petitioner appears at serial No. 2 while that of the Respondent No. 5 appears at serial No. 1 - Be it stated here that both of them belong to Scheduled Castes category. The recommendation was made for the lone post of Demonstrator - Held, Learned Counsel for the Petitioner submits that if the candidature of the Respondent No. 5 is not accepted then the Petitioner being the 2nd in the merit list, he is required to be appointed against the post in question - On the other hand, learned Counsel for the Respondent No. 5 submits that having regard to the service already rendered by the Respondent No. 5 in the present post, his appointment should not be allowed to be disturbed on the technical ground of non-furnishing of the application through proper channel - Taking note of all the relevant facts as well as the aforesaid submissions made by the learned Counsel for the parties, both the writ petitions are disposed of by directing the Commissioner, Government of Assam in the Health and Family Welfare Department to take a decision in the matter consistently with the observations made above - Needless to say that while arriving at the decision, he will be guided by the relevant factors required to be considered in such a matter - Petition disposed of.
Key Points: - The Petitioner challenges the selection and appointment of Respondent No. 5 as Demonstrator in Oral and Dental Pathology at RDC, Guwahati. (!) - The advertisement required Government employees to apply through proper channel or with a specific NOC; general NOC is not clearly tied to the post in question. (!) (!) (!) (!) - There is dispute over whether Respondent No. 5 applied through proper channel or via a general NOC, and whether APSC could accept such candidature. (!) (!) (!) (!) - RTI and affidavits indicate conflicting positions on proper channel compliance and validity of the NOC in relation to the advertisement. (!) (!) (!) (!) (!) (!) - The court directed the Health and Family Welfare Department to decide consistently with observations, and to issue a speaking order by a deadline. (!) (!) (!) - The APSC and Health Department provided varying affidavits about the effect of a general NOC versus proper-channel submission for candidate eligibility. (!) (!) (!) - The matter has interim protections and ongoing proceedings regarding whether Respondent No. 5’s appointment should stand given the proper-channel requirement. (!) (!) (!) (!) - The Petitioner contends that, if Respondent No. 5’s candidature is not accepted, the Petitioner (2nd in merit) should be appointed. (!) (!) - The final disposal directs a decision by the Commissioner of Health and Family Welfare Department, with a speaking order by 31.3.2011. (!) - The advertisement clearly required proper channel submission with explicit rejection for late or non-receipt if not through proper channel; no advance copy valid. (!)
How to determine whether a government employee's application for a post should be considered through proper channel versus a general NOC?
What is the validity of accepting a Departmental Candidate's application with a general NOC in place of application through proper channel for selecting a post?
What are the factors to be considered by the Commissioner in deciding the challenge to the recruitment and appointment of the Respondent No. 5 in light of proper channel requirements?
B.K. Sharma, J.
1. By means of these two writ petitions, the Petitioner has challenged the selection and appointment of the Respondent No. 5 as Demonstrator in Oral and Dental Pathology, Regional Dental College, Guwahati. In Annexure 6 letter dated 3.3.2006 by which the APSC made a recommendation, the name of the Petitioner appears at serial No. 2 while that of the Respondent No. 5 appears at serial No. 1. Be it stated here that both of them belong to Scheduled Castes category. The recommendation was made for the lone post of Demonstrator.
2. Pursuant to such recommendation, the Respondent No. 5 was appointed as Demonstrator by Annexure 7 order dated 19.9.2006.
3. In WP(C) No. 2106/2006, the challenge made was to the select list dated 3.3.2006 showing the merit position of the Respondent No. 5 at serial No. 1 and that of the Petitioner at serial No. 2. According to the Petitioner, his academic career being by far better than the Respondent No. 5, he could not have been superseded by the Respondent No. 5 in the matter of selection. Occasion for filing the 2nd writ petition arose for the Petitioner when during the pendency of the writ petition the Respondent No. 5 was appointed by the aforesaid Annexure 7 order dated 19.9.2006.
4. The challenge made to the selection and appointment of the Respondent No. 5 is on two grounds, namely, (1) the academic career of the Petitioner being by far better than the Respondent No. 5, he could not have been recommended placing him above the Petitioner, and (2) the Respondent No. 5 having not offered his candidature for the said post through proper channel as was required in terms of the advertisement, the APSC ought to have rejected his candidature instead of entertaining the same and eventually recommending him ahead of the Petitioner.
5. It will be pertinent to mention at this stage that a RTI application was made relating to the question as to whether the Respondent No. 5 had applied through proper channel or not. Be it stated here that at the time of responding to the advertisement, the Respondent No. 5 was a Government employee serving as Dental Surgeon under the Joint Director of Health Services, Golaghat. When the aforesaid information was sought for through a RTI application, the Government of Assam in the Health and Family Welfare (B) Department issued an order dated 30.11.2006 reverting the Respondent No. 5 back to his original post of Dental Surgeon on the ground that he did not apply through proper channel. The said order was put to challenge by filing a writ petition being WP(C) No. 6457/2006 by the Respondent No. 5 and while entertaining the writ petition by order dated 22.12.2006, the operation of the said order was stayed. The writ petition was disposed of by order dated 17.9.2007 quashing the order dated 30.11.2006 reverting the Respondent No. 5 back to his original post of Dental Surgeon.
6. The Respondents have filed their counter affidavits. In the affidavits filed by the Health and Family Welfare Department the stand taken is that the Respondent No, 5 having not applied for the post through proper channel, he had to be reverted to his parent department/post. On the other hand, in the affidavits filed by the APSC as well as the Respondent No. 5, the stand taken is that since the application offering candidature for the post by the Respondent No. 5 was accompanied by an NOC issued by the Joint Director of Health Services, Golaghat, the purpose of submitting the application through proper channel was served. In this connection the order passed on 7.12.2010 in this proceeding will be relevant to refer and accordingly the same is reproduced below:
In terms of the order passed on 11.11.2010, he APSC and the Health and Family Welfare Department have filed 2 independent affidavits. As regards the query as to whether the Respondent No. 5 could have applied for the post in question without furnishing the application through proper channel, but on the basis of the general NOC annexed
