Point of Law: Post of contractual peon - Qualification - Selection Process - Preference will be given to those candidates who have already worked or working temporarily as contractual/fixed pay/wages basis in subordinate Judicial Court/Offices.

JUDGMENT :

Heard Mr. K.N. Choudhury, learned senior counsel, assisted by Ms. R. Kakoti, learned counsel for the petitioner, Mr. D. Nath, Addl. Senior Government Advocate for the respondent nos.1 and 2, Mr. M. Mahanta, learned counsel for respondent no.3 and Mr. M.K. Choudhury, learned senior counsel, assisted by M. Sarma, learned counsel for respondent no.4.

2. The petitioner claims to have passed the Higher Secondary School examination. It is projected that in the year 2013, a vacancy arose in the establishment of the respondent no.3 for the post of contractual peon to be appointed for a period of one year under 13th finance Commission award w.e.f. 01.04.2013, and on that he was selected and appointed vide order dated 21.03.2013 on contractual basis for one year in the consolidated pay of Rs.4,500/-per month under the notified terms and conditions. The period of service was extended for a further period of one year by order dated 08.04.2014. Thereafter, the petitioner had participated in the selection process for appointment to the temporary vacant post of peon in the establishment of the District Legal Services Authority, Kamrup (DLSA, Kamrup) for short) pursuant to advertisement published in the newspaper on 08.06.2016 by the District & Sessions Judge-Cum-Chairman, DLSA, Kamrup (respondent no.3). The name of the petitioner was at serial no. 85. By notice dated 29.12.2016, viva-voce test was scheduled on 21.01.2017 and 23.01.2017. However, vide select list dated 24.01.2017, the respondent no.4 was selected for appointment to the post of peon. The appointment of respondent no.4 has been assailed by filing this writ petition under Article 226 of the Constitution of India.

3. The learned senior counsel for the petitioner has submitted that as per clause 2(b) of the advertisement, it was provided that the candidate was to be Class VII standard pass and it was further provided that preference will be given to those candidates who have already worked or working temporarily as contractual/fixed pay/wages basis in subordinate Judicial Court/Offices. Accordingly, it is submitted that the respondent no.4 had never served in any manner as peon or in any capacity in the subordinate Judicial Court/Offices. Therefore, it is submitted that the appointment of the respondent no.4 was vitiated by gross illegality and irregularity and that the respondent no.3 had over-looked Clause 2(b) of the terms and conditions of the employment advertisement. It was also submitted that the experience of the petitioner was ignored, his status as temporary contractual worker in the DLSA, Kamrup as peon was ignored. It is submitted that the appointment of respondent no.4 was whimsical, arbitrary and that the non-adherence to the herein before referred terms and conditions amounted to changing the rules of the game after the game had been played. It was further submitted that on the ground of experience, the petitioner ought to have been awarded 8 marks on the basis of 2 marks each by 4 member selection body. It was also submitted that the stand taken by the respondent no.3 in paragraphs 7 and 9 of the affidavit-in-opposition were contradictory to each other.

4. The learned Addl. Senior Government Advocate and the learned Standing Counsel of this Court appearing for respondent no.2 have submitted that this is a dispute between the petitioner and the respondent no.4 and their presence is only to protect the interest of the respondent nos. 1 and 2.

5. The learned counsel for respondent no.3 has produced the record of selection and he had submitted that there was no irregularity or illegality in the selection process, which was transparent and in accordance with the well established procedure for selection and appointment, and that the Selection was done by a Board consisting of 4 persons. The learned counsel has relied on the following cases, viz. , (i) Secy. (Health) Deptt. of Health & F.W. & Anr. Vs. Dr. Anita Puri & Ors., (2003) 5 SCC 341, and (ii) Secretary, A.P.