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IN THE HIGH COURT OF GAUHATI
Prasanta Kumar Deka, J.
Mrinal Baishya - Appellant
Vs.
State of Assam And Others - Respondents
Writ Petition (Civil) No. 3643 of 2016
Decided On : 29-08-2019
Challenge to Recruitment in Service – This writ petition is filed by the petitioner challenging the selection / recruitment of respondent No.6 to the post of Lecturer of Roga Nidan department in the Government Ayurvedic College and Hospital, by the selection Board – It is further submitted that academically the petitioner has a brilliant career – The respondents more specifically the Members in the interview board ought to have considered the supporting qualification more so the teaching experience and ought to have selected the petitioner – Further it is the submission that the petitioner answered to the queries put by the expert in the viva-voce test and he has reason to believe that the expert members had given the petitioner the highest possible grading – But because of the undue interference by the administrative member who happens to be the Chairman of the APSC, selected the respondent No. 6 who did not have any teaching experience and publications in her name – It is further submitted that as the records are before this court the same may be verified as to the uniformity of the grades given to the candidates – Held, APSC cannot transgress the said criteria of educational qualification as advertised and consider the certificate showing experience in teaching of the petitioner – The records were called for pertaining to the viva-voce test to the post of Lecturer in Roga Nidan – Court have perused the said records and do not find any irregularities in the marking system inasmuch as the criteria adopted in the marking system is uniform in respect of all the candidates appeared before the interview Board – The petitioner cannot challenge the criteria mentioned in the educational qualification as advertised after participating in the interview process – He is estopped once he participated in the interview process – If at all the petitioner was aggrieved by the standard set for the educational qualification by the respondent APSC he ought to have challenged the said advertisement – Instead, the petitioner participated in the interview and having failed to get through the test of viva- voce, the petitioner is estopped to challenge the criteria adopted in deciding the competency of the candidates in the interview process – In Ranjan Kumar and others Vs State of Bihar and others (supra) the Honble Apex Court held that those candidates who had taken part in the selection process knowing fully well the procedure laid down therein were not entitled to question the same – In the present case in hand the petitioner was well aware of the qualification required for a candidate to participate in the interview process. Subsequently he raised the issue before this court that his certificates supporting the teaching experience along with other published papers were not considered and instead the respondent No.6 is appointed on some extraneous reasons – In fact the APSC as hereinabove stated set the required educational qualification and the educational qualification as prescribed must be rigorously followed while examining the performance of the candidates and as such the petitioner is estopped to raise the said plea before this court – From the aforesaid discussions Court is constrained to hold that this writ petition has no merit and the same stands dismissed accordingly – Petition Dismissed
JUDGMENT :
Prasanta Kumar Deka, J.
Heard Mr. A. C. Borbora, learned Senior counsel assisted by Mr. M. Smith, learned counsel for the petitioner. Also heard Mr. A. K. Bhattacharrya learned Senior Counsel assisted by Mr. A. K. Choudhury, learned counsel for the respondent No.6, Mr. B. Sinha, learned counsel for the respondent No.3 and Ms. D. Bora, learned Standing Counsel, Health Department.
2. This writ petition is filed by the petitioner challenging the selection / recruitment of respondent No.6 to the post of Lecturer of Roga Nidan department in the Government Ayurvedic College and Hospital, Guwahati by the selection Board.
3. The petitioner and the respondent No.6 were appointed as Medical Officer(Ayur) on the recommendation of the Assam Public Service Commission(APSC). Vide notification of the Secretary, Health and Family Welfare Department dated 23.7.2004, the petitioner was posted at Alupatti Char PHC, Barpeta from the year 2004 to 2009 where after he was nominated by the Govt. of Assam to pursue Master's Degree in the Roga Nidan Evam Vikriti Bigyan. The petitioner successfully completed his Master's Degree in October, 2012 where after he came back and joined the State Dispensary at Nityanandapur, Hailakandi as Medical Officer.
4. The Central Council of Indian Medicine(CCIM) denied permission to the Government Ayurvedic College, Guwahati for admission of students in M.D (Ayur) in Kayachikitsa and other P.G. Courses due to lack of minimum number of teachers in the said college. Accordingly the Government decided to appoint Lecturers in the deficit departments in the college as the Government had already deposited the required fee to the CCIM for inspection. In pursuance of the said decision the service of the present petitioner alongwith other three Medical Officers(Ayurvedic) were placed at the Government Ayurvedic College, Guwahati to utilize their specialty and allowed to work as Lecturer in the department shown against his name vide notification dated 10.12.2013. However the said notification clearly mentioned that the petitioner would continue to draw his salary from existing place of posting under the Health and Family Welfare(A) Department. The petitioner joined on 11.12.2013 in the said college as Lecturer of Roga Nidan Department.
5. The APSC vide advertisement No. 12/15 dated 20.6.2015 invited applications from young candidates for filling up of several vacant posts at the Government Ayurvedic College and Hospital under the Health and Family Welfare(B) Department, Assam which includes amongst other one post of Lecturer in Roga Nidan Department. The requisite educational qualification of the candidates for the post as advertised are as follows:
(b) A post Graduate qualification in the subject/specialty concerned included in the schedule to Indian Medicine Central Council(IMCC)Act, 1970.
(c) Candidate should be registered in State Council of Indian Medicine, Assam."
6. The petitioner was called for to appear in the viva-voce interview for the said post asking the petitioner to bring original copies of all the academic certificates along with Marksheets from HSLC or equivalent examination onward issued by the Boards, Council and University etc., HSLC Admit Card for age proof, caste certificate and any other certificate/document that may be relevant for the candidature of the individual candidates. The petitioner faced the said viva-voce interview and the APSC on 8.6.2016 recommended the name of respondent No.6 for the said post of Lecturer in the Department of Roga Nidan. It is the recommendation which is challenged by the petitioner.
7. Mr. Borbora, learned Senior Counsel submits that in the call letter a specific direction was given to the petitioner to produce certificate / document that may
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