Preferential appointment under the APS(PA) Rules, 1999 does not guarantee selection irrespective of merit, and candidates must meet the specified criteria for inclusion in the select list.

JUDGMENT :

Kardak Ete, J.

Heard Mr. B. Islam, learned Counsel representing the appellant/writ petitioner. Also heard Ms. M.D. Borah, learned Government Advocate, Assam representing the respondents.

2. This intra-Court writ appeal is preferred by the appellant against the order dated 13.09.2023 passed by the learned Single Judge in WP(C) No.5245/2023, by which the writ petition filed by the appellant/writ petitioner has been dismissed being devoid of merit as no grounds have been taken on any discrepancy in the written test or oral interview.

3. The case as projected by the appellant/writ petitioner is that he belongs to the Other Backward Class (OBC) category and a son of martyr, whose father died in the year 1983 during the Assam Movement. The appellant/writ petitioner claims that he being the son of martyr, is entitled for appointment in any Government service in the State of Assam, in terms of the Assam Public Services (Preferential Appointment) Rules, 1999 (hereinafter referred to as ‘the APS(PA) Rules, 1999’).

4. The appellant/writ petitioner, on the basis of the certificate issued by the competent authority, prayed for appointment in Grade-IV post, by way of preferential appointment in terms of the provisions of the APS(PA) Rules, 1999. On not being acceded to by the respondent authority of such prayer, he filed a Writ Petition being WP(C) No.3479/2022 for a direction to the respondent authorities to appoint the appellant/writ petitioner by giving preferential appointment. The Writ Petition was disposed of on 10.08.2022 with a direction to consider the claim of the petitioner in terms of the APS(PA) Rules, 1999, as and when the Government undertakes recruitment process.

5. An advertisement dated 21.01.2023 was issued by the Chairman, State Level Police Recruitment Board, Assam inviting applications for filling up of various posts namely: cook, water carrier, dhubi, barber, pump operator, electrician, plumber, peon, dak runner and jugali. Pursuant to the said advertisement, the appellant/writ petitioner applied for the said posts on 05.02.2023. The appellant/writ petitioner claims that he had passed the physical standard test and was also held to be medically fit, however, he has not been selected. The appellant/writ petitioner further claims that having passed the physical standard test and being medically fit and having appeared in the interview, he ought to have been selected and appointed in terms of the APS(PA) Rules, 1999. Having not been selected, the appellant/writ petitioner has approached this Court by filing the present writ petition being WP(C) No.5245/2023 and the same has been dismissed by the learned Single Judge vide impugned order dated 13.09.2023. Hence, the present writ appeal.

6. Mr. B. Islam, learned Counsel for the appellant/writ petitioner submits that the learned Single Judge has failed to consider the fact that the petitioner having been passed in the physical standard test and also being medically fit and having appeared in the interview, the appellant/writ petitioner could not have been rejected as the APS(PA) Rules, 1999 provides for preferential appointment to the next of kin of the martyr. The appellant/writ petitioner is entitled to be appointed as the respondent authorities have appointed similar candidates in different recruitment process conducted from time to time. He submits that the learned Single Judge has failed to consider the fact that the appellant has been deprived of his right of preferential appointment under the APS(PA) Rules, 1999.

7. Mr. B. Islam, learned Counsel submits that since the APS(PA) Rules, 1999 provides for preferential appointment, there is no question of challenging the written test or oral interview in as much as the appellant/writ petitioner having been qualified in physical standard test and also being medically fit, the appellant/writ petitioner ought to have been selected and appointed by following the provisions of the APS(PA) Rules, 1999. Therefore, the learned S