Allowed

Girin Gogoi and and 7 Ors, v. the Assam Power Distribution Co. Ltd. Apdcl and 7 Ors.

Gauhati HC2 Aug 2018Review.Pet./162/2016

Case brief

AI extract

What is this about?

The Gauhati HC recalled a previous order dismissing a review petition, allowing the petitioner to challenge their exclusion from a government job selection list. The court held that new evidence reveals the petitioner was not awarded 'experience' marks, unlike selected candidates, creating a material irregularity requiring examination.

What did the court decide?

The impugned order of 16.09.2016 was recalled regarding the petitioners; they were granted liberty to challenge the selective list regarding the non-award of 'experience' marks.

Girin Gogoi and and 7 Ors, Vs the Assam Power… — Service and Employment | Gauhati HC (2018)

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GAHC010121522016

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Case No. : Review.Pet. 162/2016

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WP(C) 4078/2015 (D/O) WP(C) 4002/2015 (D/O)

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1:GIRIN GOGOI and and 7 ORS, S/O SRI SAMUDHAR GOGOI, R/O MORAN MIRIHULA GAON, P.O. MORANHAT, P.S. MORAN, DIST. DIBRUGARH, ASSAM.

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VERSUS

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1:THE ASSAM POWER DISTRIBUTION CO. LTD. APDCL and 7 ORS, REPRESENTED BY THE MANAGING DIRECTOR, APDCL, BIJULEE BHAWAN, PALTAN BAZAR, GUWAHATI-781001

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2:RESPONDENT NO. 5 6 AND 7 RESPONDENT NO. 5 6 AND 7

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3:RESPONDENTS - 5 TO 8 RESPONDENTS 5 TO

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Advocate for the Petitioner : MR. P DUTTA

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Advocate for the Respondent :

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BEFORE

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HONOURABLE MR. JUSTICE MICHAEL ZOTHANKHUMA

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ORDER

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Date : 02-08-2018

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1. Heard Mr. M. Choudhury, learned Senior counsel for the review petitioner. Also heard Mr. K. D. Sarma, learned Standing Counsel, APDCL and Mr. R. K. Talukdar, learned counsel for the respondent Nos. 5 to 7.

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2. The review petitioners pray for a review of the order dated 16.09.2016, passed in WP(C) 4002/2015, on the ground that the petitioners were not given a copy of the select list in which the marks obtained by the candidates for the post of Sahayak under category B had been provided. Accordingly, the petitioners could not go through the same and did not realize that on the date of the hearing, the review petitioners were not given marks under the column “experience”, while some of the selected candidates have been given marks for their “experience”.

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3. Counsel for the review petitioners submits that in view of the observations made by this Court that a person, who consciously take part in the selection process, cannot, thereafter, turn around and question the mode of selection and outcome, has foreclosed the petitioners’ right to make a challenge to the marks awarded to the selected candidates vis-avis zero marks awarded to the review petitioners under the head “experience”.

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The advertisement inviting applications for filling up the post of Sahayak under APDCL under category B required the candidates to have experience in any power utility.

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The counsel for the review petitioners submits that though similar certificates were submitted by the petitioners, as had been submitted by some of the successful candidates, the reasons for not giving marks to others but not to the petitioners for their “experience”, had to be clarified and in this regard, the petitioners have to be allowed to make a challenge as to why marks were not awarded to the petitioners under the head “experience”.

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The petitioners’ counsel thus prays that the impugned order dated 16.09.2016

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passed in WP(C) 4002/2015 should be reviewed so as to allow the petitioners to make a challenge to the marks obtained by the selected candidates vis-a-vis the review petitioners under the column “experience”.

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4. Mr. K. D. Sarma, counsel for the State respondents, submits that there is no infirmity with the impugned order passed by this Court and that there is no mistake or error apparent on the face of the order. He also submits that as per paragraph 4 of the common affidavit-in-opposition filed on behalf of the APDCL, there was no occasion for the review petitioners to be given marks under the column “experience”.

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5. I have heard the learned counsels for the parties.

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6. The operative portion of the order dated 16.09.2016, passed in WP(C) 4002/2015 is reproduced below:-

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“I have heard the learned counsels for the parties.

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The question as to whether the petitioners are over aged and whether they have the experience as working in power utility, is not relevant any more in view of the fact that the result of the petitioners show that other persons have done better in the selection process than the petitioners.

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The select list produced by the APDCL’s counsel shows the merit position of the petitioners as follows: WP(C) No. 4002 of 2015

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Petitioner Nos. Sl. No. Petitioner Nos.Sl. No. Petitioner No. 1 299 Petitioner No. 17 324 Petitioner No. 2 340 Petitioner No. 18 338 Petitioner No. 3 319 Petitioner No. 19 317 Petitioner No. 4 328 Petitioner No. 20 325 Petitioner No. 5 334 Petitioner No. 21 315 Petitioner No. 6 339 Petitioner No. 22 342 Petitioner No. 7 335 Petitioner No. 23 333 Petitioner No. 8 341 Petitioner No. 24 327 Petitioner No. 9 332 Petitioner No. 25 314 Petitioner No. 10 330 Petitioner No. 26 312 Petitioner No. 11 309 Petitioner No. 27 329 Petitioner No. 12 321 Petitioner No. 28 322 Petitioner No. 13 313 Petitioner No. 29 326 Petitioner No. 14 336 Petitioner No. 30 323 Petitioner No. 15 331 Petitioner No. 31 318 Petitioner No. 16 302 Petitioner No. 32 320

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WP(C) No. 4078 of 2015 Petitioner Nos. Sl. No. Petitioner No. 1 337

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The position obtained by the petitioners in the select list clearly go to show that they cannot be accommodated in the 93 vacant posts of Sahayak, which were advertised, or to the other 191 vacant posts, due to the lower ranking/grading awarded to them in the select list.

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The petitioners’ counsel cannot now turn around and make a challenge to the selection process in view

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of the decisions of the Apex Court in Ramesh Chandra Shah & Ors vs Anil Joshi & Ors, reported in (2013) 11 SCC 309, wherein the Apex Courthas held that a person, who consciously takes part in the process of selection, cannot, thereafter, turn around and question the method of selection and its outcome.

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In view of the reasons stated above, the petitioners do not have any right to claim appointment to the 93 vacant posts of Sahayak, which was advertised in the local daily, Dainik Janambhumi in March, 2013. However, the question that is also to be considered is whether the respondents can be allowed to fill up the 191 vacant posts of Sahayak, on the basis of the selection process held in pursuance to the advertisement published in March, 2013 and which were not a part of the advertisement.

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In the case of Rakhi Ray & Ors vs High Court Of Delhi & Ors, reported in (2010) 2 SCC 637, the Apex Court has held that vacancies cannot be filled up over and above the number of vacancies advertised, as the recruitment of candidates, in excess of the notified vacancies, is a denial and deprivation of the constitutional rights under Article 14 read with Article 16(1) of the Constitution of India, of those persons, who acquired eligibility for the post in question in accordance with the statutory rules subsequent to the date of notification of vacancies.

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The Apex Court also held that filling up of the vacancies over the notified vacancy is neither permissible nor desirable, for the reason, that it amounts to improper exercise of power and only in rare and exceptional circumstances and in emergent situations, such a rule can be deviated from and such deviation is permissible only after adopting a policy decision, otherwise the exercise would be arbitrary. The Apex Court also held that vacancies, which come into existence after issuance of advertisement, cannot be filled up by using the waiting list as a reservoir. In the present case, the 191 vacant posts may have come into existence prior to the advertisement. However, the advertisement has been made for filling up of only 93 posts Sahayak for the Sivasagar Electrical Circle. Thus, the respondents would have to consider, whether it would be advisable to fill up the other 191 vacant posts of Sahayak in the absence of any advertisement. In any event, the petitioners not having got the required marks to be included amongst the top 93 candidates, for appointment to the 93 vacant posts of Sahayak as per the advertisement issued, the present writ petitions have become infructuous and the writ petitions are accordingly dismissed.

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The select lists submitted by Mr. D Das, senior counsel for APDCL are made part of record and marked as Annexures-’X’ and ’Y’ respectively.”

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A reading of the extract of the order dated 16.09.2016 would go to show that this Court had not gone into the question of allocation of marks under the head “experience”. This Court had however shown the total marks obtained by the review petitioners herein, as they were writ petitioner Nos. 30, 8, 3, 24, 14, 20, 23 and 5 in WP(C) 4002/2015.

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7. The APDCL in the common affidavit-in-opposition filed in WP(C) 4002/2015 has stated as follows:-

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“But on bare perusal of the experience certificates provided by the petitioners, it is clear that they have provided their experience certificates from the private firms which are not power utility as per the advertisement.”

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8. The prayer of the review petitioners in the writ petition, i.e. WP(C) 4078/2015, was to set aside the selection process for appointment to the posts of Sahayak or in the alternative to allow them to participate in the selection process. The review petitioners were allowed to participate in the selection process. The select list was produced for the first time

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only on the date of hearing/disposal of WP(C) No. 4078/2015. However, as they were unable to challenge the select list, as they were not aware that they were not awarded marks under the heading “experience”, the review petitioners cannot be denied the opportunity to challenge the same, regard being had to the fact that the present review petition has been filed immediately, i.e. one month after the impugned order dated 16.09.2016.

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9. Due to the above reason, this Court is of the view that due to discovery of a new and important matter after exercise of due diligence, which was not known to the petitioners on the date of the hearing, regarding not awarding marks to the review petitioners under the head “experience”, only the 8 (eight) petitioners herein should be allowed to be able to make a challenge to the select list for appointment to 8 out of 93 posts of Sahayak that have been filled up on the basis of the select list.

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10. Other persons, who have not approached this Court by way of this review petition, will not be allowed to make any challenge to the select list, as they cannot be allowed to ride piggyback on the basis of the order obtained by the review petitioners herein.

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11. Accordingly, in view of the above reasons, the impugned order dated 16.09.2016, passed in WP(C) 4002/2015, is recalled, so far as it relates to the review petitioners and the review petitioners are given the liberty to make a challenge with regard to why they have not been given any marks under the head “experience”, while marks under the same head had been given to the selected candidates.

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12. The review petition is accordingly allowed.

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JUDGE

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Comparing Assistant

Girin Gogoi and and 7 Ors, v. the Assam Power Distribution Co. Ltd. Apdcl and 7 Ors.

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Girin Gogoi and and 7 Ors, v. the Assam Power Distribution Co. Ltd. Apdcl and 7 Ors.

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