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IN THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
KALYAN RAI SURANA, J.
Md. Fulchan Ali SK. S/o-O Asher Uddin SK. – Appellant
Versus
The State Of Assam And Ors - Respondents
WP(C) of 7070 of 2015
Decided on : 12-03-2021
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 and Impugned Selection list - Petitioner had obtained 74.00 marks out of 100 marks and his name was placed at serial no. 16 of merit list, still his name was left out and respondent nos. 8 to 27 had got selected despite obtaining lesser marks than petitioner - It is submitted that names of respondent nos. 25, 26 and 27 was not in merit list, but their names got included in impugned select list
Finding of the court: Maintainability of this writ petition on ground that all selected candidates had not been impleaded. Hence, it is submitted that writ petition was not maintainable due to non-joinder of proper and necessary parties - Court opinion that petitioner cannot be non-suited in case on ground of delay and laches - 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 inclined to hold that action of respondent nos. 2 to 7 of treating herein before referred respondents as unreserved category candidate in merit list is not vitiated by any illegality, arbitrariness, or in aberration of any Rules - Court opinion that respondent nos. 2 to 7 is entitled to some amount of freedom in 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. M.R. Khandakar, 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 to 27.
2. On perusal of the record, it appears that there is no order accepting due service of notice on respondent no.27 and although on 24.11.2017, the learned counsel for the petitioner had prayed for taking steps on respondent nos. 9 to 11, 13, 20, 21, 23 and 25 to 27, the Court had allowed the petitioner to take steps for service of notice only on respondent nos. 9 to 11, 13, 20, 21, 23, 25 and 26 by dastimode. Thus, there is no order to accept due service of notice on the respondent no. 27. Nonetheless, in view of the nature of order proposed to be passed, the Court has proceeded to deliver the judgment in absence of the respondent no. 27.
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 27 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 04.10.2013 (sic. ought to be 03.10.2013) and for interview on 04.10.2013 at ASEB Complex, Narengi. Thereafter, by virtue of an advertisement, the respondent no.4 had published a 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 74.00 marks out of 100 marks and his name was placed at serial no. 16 of the merit list, still his name was left out and the respondent nos. 8 to 27 had got selected despite obtaining lesser marks than the petitioner. It is submitted that the names of respondent nos. 25, 26 and 27 was not in the merit list, but their names got included in the impugned select list. Thus, the present challenge is, amongst others, on three grounds
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