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IN THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
KALYAN RAI SURANA, J.
Sofior Rahman S/o. Md. Sorman Ali – Appellant
Versus
The State Of Assam And Ors – Respondents
WP(C)/2938 of 2017
Decided on : 12-05-2021.
Constitution of India, 1950 - Article 14 and 226 - Employment advertisement - Maintainability of Writ Petition - Seeking direction to APDCL authorities, i.e. respondent nos.2 to 7 to select and appoint petitioner as trainee - Test in Trade of Electrician - Reserved and Unreserved category - Selection/Merit list - Experience certificate - Petitioner had obtained 65.00 marks out of 100 marks and his name was placed at serial no. 94 of merit list, still his name was left out and the respondent nos. 8, 9 and 10 had got selected despite obtaining lesser marks than petitioner - It is submitted thatrespondent no.11 was selected out of merit list and that though respondent no. 12 had not submitted experience certificate within 30.04.2013, last date of submitting application, they had been selected - Also submitted that challenge to selection and appointment of the private respondents in this writ petition.
Finding of the court: maintainability of this writ petition on ground that all selected candidates had not been impleaded. Hence, it is submitted that the writ petition was not maintainable due to non-joinder of proper and necessary parties - If selection and appointment of any person from Category-B is interfered with, there is a possibility that in order of merit, person from Category-A might get an opportunity to be appointed, as such, present writ petition is found to be maintainable in view of facts peculiar to present case in hand - Court opinion that respondent nos. 2 to 7 is entitled to some amount of freedom in the matter of selection and appointment as they are aware of what is their requirement when issuing employment advertisement. It would lead to absurdity if applicants in Category-B could only be persons who were temporarily engaged in power utility as Sahayak, because by no stretch of imagination, this was a recruitment process to regularise service of temporary or casual workmen engaged as Sahayak by APDCL or its licencee. There is no doubt that this exercise was a fresh recruitment drive, as such, it is acceptable that APDCL had wanted to give an opportunity to outsourced temporary workers of third party/vendors, who were rendering actual service to APDCL as a beneficial employer.
Result: Order accordingly.
JUDGMENT :
Heard Mr. J. Uddin, learned counsel for the petitioner. Also heard Mr. N. Goswami, learned Government Advocate appearing for the State respondent no.1 and Mr. B.D. Das, learned senior counsel assisted by Mrs. R. Deka, learned standing counsel for respondent nos. 2 to 7. None appears on call the private respondent nos. 8 and 10 to 12.
2. It is seen that in the order dated 20.09.2017, the Court had recorded that notice on respondent no. 9 had been returned with postal remark that the ‘addressee expired’. Accordingly, the name of respondent no. 9 is struck off.
3. By filing this writ petition under Article 226 of the Constitution of India, the petitioner has assailed the engagement of the private respondent nos. 8 to 12 as trainee Sahayak, and also prayed for a direction to the APDCL authorities, i.e. respondent nos.2 to 7 to select and appoint the petitioner as Sahayak.
4. In short, the case of the petitioner is that he had successfully completed the course of Industrial Training Institute of Government of Assam (ITI for short) and had passed out the prescribed test in the Trade of Electrician. The petitioner belongs to unreserved category.
5. By virtue of an employment advertisement published on 09.04.2013, the respondent no.3 had invited applications from eligible candidates for filing up of 1064 posts of Sahayak under APDCL out of which 73 posts were under Kokrajhar Electrical Circle. Accordingly, the petitioner had submitted his application in the said Electrical Circle Office of the respondent nos. 2 to 7. It has been pleaded that the petitioner was issued call letters to appear in physical fitness test scheduled on 22.07.2013 and 23.07.2013 at Dwimalu Field, near Kokrajhar S.P. Office, Kokrajhar and after successful completion of the test, the petitioner had appeared for interview for engagement as Trainee Sahayak on 25.07.2013 and 26.07.2013 in the office of the General Manager, Guwahati Zone, APDCL (LAZ) (respondent no.4). However, without publishing any selection list and without assigning any reasons, the interview was cancelled and the authorities issued another re-examination call letter to again appear for physical fitness test on 03.10.2013 and interview on 04.10.2013 at ASEB Complex, Narengi. Thereafter, by virtue of an advertisement, the respondent no.4 had published the selection list dated 21.02.2014 of the candidates for Training (sic. ought to be Trainee) Sahayak selected for engagement in the seven Circles under Guwahati Zone, viz., Guwahati Electrical Circle-I, Guwahati Electrical Circle-II, Rangia Electrical Circle, Mangaldoi Electrical Circle, Barpeta Electrical Circle, Bongaigaon Electrical Circle and Kokrajhar Electrical Circle. As per the said Select List, out of 73 selected candidates in respect of Kokrajhar Electrical Circle, category-wise selection was as follows, viz., 40 (unreserved), 20 (OBC), 7 [ST(P)], 5 (SC), 1 [ST(H)] and none (PH).
6. The learned counsel for the petitioner has submitted that the petitioner had obtained 65.00 marks out of 100 marks and his name was placed at serial no. 94 of the merit list, still his name was left out and the respondent nos. 8, 9 and 10 had got selected despite obtaining lesser marks than the petitioner. It is submitted that the respondent no.11 was selected out of merit list and that though the respondent no. 12 had not submitted experience certificate within 30.04.2013, the last date of submitting application, they had been selected. It is also submitted that the challenge to the selection and appointment of the private respondents in this writ petition is, amongst others, on following counts, viz., (a) the names of respondent no. 11 did not appear in the merit list and yet he was selected, (b) the private respondent nos. 8 to 10 had scored less marks than the petitioner, (c) experience certificate of respondent no.12 was issued after 30.04.2013, i
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