Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2024 Supreme(Gau) 751

IN THE HIGH COURT OF GAUHATI, NAGALAND, MIZORAM AND ARUNACHAL PRADESH
Sanjay Kumar Medhi, J.
Samsun Nehar W/o Md. Gius Uddin - Petitioner
Versus
The State Of Assam Represented By The Commissioner And Secretary To Govt. Of Assam, Social Welfare Department And Ors. – Respondents
WP(C)/4487/2018, Review.Pet./166/2017
Decided On : 13-05-2024

Advocates:
Advocate Appeared:
For the Petitioner:Mrs. R Choudhury, Advocate.
For the Respondent:Ms. M Bhattacharrya, Addl. Sr. Govt. Advocate, Shri SN Adhyapak, Advocate

IMPORTANT POINT
The main legal point established in the judgment is that an ineligible candidate cannot challenge the selection and appointment of another candidate. The judgment also clarifies the limited grounds for review and emphasizes that review is not maintainable for minor mistakes or to re-hear the merits of the case.

Headnote:
Review Petition - Appointment Dispute - [Aribam Tuleshwar Sharma v. Aribam Pishak Sharma, (1979) 4 SCC 389; Union of India v. B. Valluvan, (2006) 8 SCC 686; State of W.B. v. Kamal Sengupta, (2008) 8 SCC 612] - The court dismissed the review petition and the writ petition, emphasizing that an ineligible candidate cannot challenge the selection and appointment of another candidate. The court also highlighted the limited grounds for review, including the discovery of new evidence, mistake apparent on the face of the record, or any other sufficient reason, and emphasized that review is not maintainable for minor mistakes or to re-hear the merits of the case.
Fact of the Case:
The petitioner challenged the appointment of another candidate, claiming that she should have been offered the appointment after the first nominee was found ineligible. The petitioner relied on certificates regarding her place of residence to support her eligibility.
Finding of the Court:
The court found that the petitioner's eligibility based on residence was questioned, and there were anomalies in the certificates presented. The court also noted that the appointment of the incumbent was not challenged by the petitioner, indicating lack of bonafide in filing the review and the writ petition.
Issues: The primary issue was the eligibility and appointment dispute, along with the grounds for review of the earlier decision.
Ratio Decidendi: The court emphasized that an ineligible candidate cannot challenge the selection and appointment of another candidate. It also outlined the limited grounds for review and reiterated that review is not maintainable for minor mistakes or to re-hear the merits of the case.
Final Decision: Both the review petition and the writ petition were dismissed by the court.

JUDGMENT :

Both the review petition and the writ petition being connected and filed by the same petitioner, those are taken up together for an analogous hearing and are being disposed of by this common judgment and order.

2. The facts projected are that a recruitment process was initiated in the year 2009 to fill up the posts of Anganwadi Workers/Helpers in various Centres, including 22 No. Jaberikuchi Uttar Suba Anganwadi Centre under West Mangaldai Child Development Project in the district of Darrang.

3. It is the case of the petitioner that she being eligible in all respects and had fared well in the selection should have been appointed. However, one Aparna Devi was selected against Sl. No. 1 and was offered the appointment. It is alleged that the said candidate, Aparna Devi was not a resident under the concerned Anganwadi Centre.

4. The aforesaid appointment of Aparna Devi was challenged by the present respondent no. 5 by filing WP(C)/4470/2013 in which, however, the petitioner was not made a party. The said writ petition was allowed vide an order dated 29.07.2016 whereafter the respondent no. 5 has been appointed. It is the contention of the petitioner that she was in Sl. No. 2 in the select list and therefore, in the event when the first nominee was held to be ineligible, the petitioner should have been offered the appointment. Accordingly, the review application was filed. In the meantime, a report dated 04.09.2015 was submitted by the concerned CDPO holding the writ petitioner to be ineligible as she was not a resident of the particular Anganwadi Centre and that has been said to be the reason of not offering the appointment to the writ petitioner but offering the same to the private respondent no. 5 and accordingly, the second writ petition has been filed.

5. I have heard Mrs. R Choudhury, learned counsel for the review applicant/petitioner. I have also heard Ms. M Bhattacharrya, learned Addl. Senior Government Advocate, Assam as well as Shri SN Adhyapak, learned counsel for the respondent no. 5. Pleadings have been exchanged

6. Ms. Choudhury, learned counsel for the review applicant/petitioner has submitted that the private respondent was not even a selected candidate and therefore, the appointment could not have been offered to her only because she had filed the earlier writ petition. With regard to her challenge to the report dated 04.09.2015, it is submitted that the petitioner has annexed the concerned certificate from the Government Gaonburah certifying her to be a resident under the said Centre. The learned counsel, accordingly submits that both the review petition and the writ petition should be allowed with a direction to appoint the petitioner as the Anganwadi Worker of the 22 No. Jaberikuchi Uttar Suba Anganwadi Centre by interfering with the appointment of the respondent no. 5.

7. Per contra, Ms. Bhattacharrya, learned State Counsel, Assam has submitted that the reason for not offering the appointment to the petitioner is evident as the petitioner was not a resident under the concerned Anganwadi Centre and therefore, she will not have the locusto question the appointment made. The anomalies in the certificate relied upon by the petitioner, including the discrepancies in the translations done have also been highlighted by the learned State Counsel. A communication dated 04.11.2019 made by the CDPO, Pachim Mangaldai ICDS Project to the Director, Social Welfare Department, Assam has also been placed on record as per which, the writ petitioner is not a resident under the concerned Anganwadi Centre.

8. Shri Adhyapak, learned counsel for the respondent no. 5 has submitted that the writ petition by his client was filed in the year 2013 challenging the appointment of one Aparna Devi and the said writ petition was pending for about a period of more than 3½ years and there was no action of any nature of the petitioner at that point of time. The said writ petition, being WP(C)/4470/2013 was disposed of on 29.07.2016 and pursu