Dismissed

Dipen Singha v. the State of Assam and 6 Ors.

Gauhati HC3 Mar 2022WP(C)/5286/2016

Case brief

AI extract

What is this about?

Writ petition challenging the appointment of another candidate based on alleged procedural impropriety in selection for a Lower Division Assistant post was dismissed. The court held the challenge was not maintainable because it failed to assail the prior fact-finding orders dated July and August 2016, which were the root of the appointment.

What did the court decide?

The writ petition was dismissed for lack of maintainability.

Dipen Singha Vs the State of Assam and 6 Ors. — Public Procurement and Tenders | Gauhati HC (2022)

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GAHC010024162016

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

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Case No. : WP(C)/5286/2016

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DIPEN SINGHA

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S/O- SRI SURA SINGHA, R/O VILL.- DAKSHIN BIDYA NAGAR, P.O.- SINGARI BASTI, DIST.- HOJAI, ASSAM.

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VERSUS

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THE STATE OF ASSAM AND 6 ORS REP. BY THE COMMISSIONER and SECY. TO THE GOVT. OF ASSAM, EDUCATION DEPTT. SECONDARY, DISPUR, GHY- 6.

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2:THE DIRECTOR OF SECONDARY EDUCATION ASSAM KAHILIPARA GHY- 19.

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3:THE INSPECTOR OF SCHOOLS NAGAON DIST. CIRCLE ASSAM.

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4:HEADMASTER DAKSHIN HOJAI HIGH SCHOOL P.O.- HOJAI- 782435 DIST.- HOJAI ASSAM.

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5:DY. COMMISSIONER NAGAON DIST.- NAGAON.

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6:DY. COMMISSIONER HOJAI DIST.- HOJAI.

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7:BIJIT KR. SINGHA S/O- SRI BIRENDRA KR. SINGHA R/O- NATUN BAZAR P.O. P.S. and DIST.- HOJAI ASSAM PIN- 782435

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Advocate for the Petitioner : MS.M BARMAN

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Advocate for the Respondent : SC, SECONDARY EDUCATION

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BEFORE HONOURABLE MR. JUSTICE SANJAY KUMAR MEDHI

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ORDER

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03-03-2022

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1. Heard Shri P. Mahanta, learned counsel for the petitioner. Also heard Shri U. Sharma, learned Standing Counsel, Secondary Education Department for the official respondents, Ms. D. Das Barman, learned counsel for the respondent nos. 5 & 6 Deputy Commissioner, Nagaon and Deputy Commissioner, Hojai and Shri R. L. Yadav, learned counsel for the private respondent no. 7.

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2. Considering that the writ petition is of the year 2016 and as stipulated by the last order dated 16.02.2022, the petition is taken up for disposal at the admission stage. The pleadings of the contesting parties are also seen to be complete.

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3. The petitioner has put to challenge the selection and appointment of the respondent no. 7 to the post of LDA in the Dakhin Hojai High School (herein after School). The Projected case of the petitioner is that an advertisement was issued on 12.12.2015 for filling up one post of Lower Division Assistant in the School in which amongst others, the petitioner and the respondent no. 7 had participated. Amongst the criteria fixed for eligibility, the age was fixed to be from 18 to 38 years. It is the

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case of the petitioner that on 20.12.2015, the written examination was held followed by an interview and the results were declared in which the respondent no. 7 was placed as the first nominee with a total mark of 65 whereas the petitioner was the second nominee with 59 marks. The primary challenge of the petitioner is that the respondent no. 7 was otherwise ineligible to even apply for the said post on the criterion of age as his age was more than the upper limit. However, to overcome the same, the respondent no. 7 took the benefit of an Office Memorandum of the Government of Assam whereby for persons with disability, the age was relaxed from 38 to 43 years and in this connection, certain certificates were also issued by the said respondent no. 7. The petitioner has also alleged manipulation in the marks as the father of the respondent no. 7 was the erstwhile Headmaster of the School in question and had influence in the selection.

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4. By drawing the attention of this Court to the disability certificate which is dated 31.12.2015, the learned counsel for the petitioner has submitted that the same was not an existence at the time when the written examination and interview were held which otherwise was required to be existing at the time of applying for the post.

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5. Shri Mahanta, the learned counsel for the petitioner, submits that only to take undue benefit of the Office Memorandum dated 19.07.2010 of the Government of Assam that the respondent no. 7 had taken recourse to a fraudulent means. The learned counsel accordingly prays for interference by setting aside the selection and appointment of the respondent no. 7.

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6. Controverting the submissions made on behalf of the petitioner, Shri U. Sharma, learned counsel for the Department submits that no illegality has been committed and the matter was earlier examined by this Court and only upon remand, the

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appointment of the respondent no. 7 has been made.

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7. Ms. D. Das. Barman, the learned State Counsel for the respondent nos. 5 & 6, Deputy Commissioner, Nagaon and Deputy Commissioner, Hojai submits that after the remand order by this Court, the matter was examined and separate orders were issued which however are not the subject matter of challenge.

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8. Shri R. L Yadav, learned counsel defending the respondent no. 7 raises a preliminary objection questioning the maintainability of the writ petition due to want of proper challenge. The learned counsel points out that the present dispute was the subject matter of an earlier writ petition instituted by the petitioner which was registered as WP(C) No. 3226/2016. Drawing the attention of this Court to the order dated 30.05.2016, Shri Yadav, the learned counsel has submitted that the Court has taken into consideration all the relevant factors and after recording the submission has also recorded that a limited prayer was made that the representations which are pending before the Deputy Commissioner and the Inspector of Schools be looked into and necessary orders be passed.

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9. It is on that concession, the writ petition was disposed of with a direction to the Deputy Commissioner, Nagaon to consider the representation and pass appropriate orders by affording the parties an opportunity of hearing and in the said process may also take the assistance of the School authorities. The exercise was directed to be completed within 4(four) weeks. Shri Yadav, the learned counsel has thereafter drawn the attention of this Court to the order dated 08.07.2016, passed by the Addl. Deputy Commissioner, Nagaon as well as the order dated 02.08.2016 passed by the Deputy Commissioner In-Charge, Hojai.

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10. Shri Yadav, the learned counsel explains that 2(two) orders had to be passed as there was bifurcation of the districts and in compliance of the order of this Court, the authorities of both the districts had independently examined the matter on remand. Shri Yadav, the learned counsel submits that the orders have been passed by following the due process of law and is otherwise based on facts which this Court in exercise of writ jurisdiction could not enter into the arena of disputed facts. Shri Yadav, the learned counsel emphatically submits that the aforesaid 2(two) orders are not the subject matters of challenge and in absence of such challenge, the challenge to the selection and appointment would not to be maintainable.

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11. Rejoining his submission, Shri Mahanta, the learned counsel for the petitioner submits that the consequential order being put to challenge, a writ court may mould the relief. He further submits that though adequate pleadings may not be there in the writ petition, in the reply affidavit, an indication has been made regarding the grievance of the petitioner against the 2(two) orders and in this connection he relies upon the decision of the Hon’ble Supreme Court in La Sri Subramania Desika Gnanasambanda Pandarasannidi vs State of Madras reported in AIR (1965) SC 1578 wherein the Supreme Court has laid down that new averments in a rejoinder affidavit may be made which are to be treated as pleadings.

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12. This Court has given its anxious consideration to the submissions advances by the parties. What is intriguing in this matter is that after the remand order dated 30.05.2016 was passed by this Court in WP(C) 3226/2016 which was an inter parte one, the matter was examined by 2(two) authorities namely the Addl. Deputy Commissioner, Nagaon and also the Deputy Commissioner In-charge, Hojai in which both the parties were heard and after a fact finding enquiry, 2(two) orders were passed respectively dated 08.07.2016 and 02.08.2016 both in favour of the

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respondent no. 7 upholding his selection. However, the petitioner has chosen not to challenge the aforesaid 2(two) orders which are the root of the consequential order of appointment.

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13. This Court is of the opinion that unless and until the initial orders leading to the consequential order are put to challenge, the present challenge would be an incomplete one and even as a writ Court, the power to mould the relief in the instant case cannot be taken into recourse.

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14. Though there is no dispute to the proposition that averments in the reply affidavit are to be treated as pleadings, even a perusal of the reply affidavit does not bring this Court to definite conclusion that there is any specific challenge to the orders dated 08.07.2016 and 02.08.2016.

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15. At this stage, Shri Yadav, the learned counsel for the respondent no. 7 has also drawn the attention of this Court to the additional affidavit filed on 18.01.2022 with which a document dated 08.12.2021 has been annexed concerning which is an order whereby the services of the respondent no. 7 has been confirmed against a substantive post. Though the said fact would not have been relevant if a proper challenge was made, in the instant case, the further action of confirmation is also a fact which this Court has taken into consideration.

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16. This Court exercising powers under Article 226 of the Constitution of India has jurisdiction to examine the decision making process without even going into the merits of such decision. The Hon’ble Supreme Court in the landmark case of Tata Cellular Vs. Union of India reported in (1994) 6 SCC 651 has laid down as follows:

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"74. Judicial review is concerned with reviewing not the merits of the decision in

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support of which the application of judicial review is made, but the decision making process itself.

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In Chief Constable of the North Wales Police v. Evans, (1982) 3 All ER 141 at 154 Lord Brightman said :

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"Judicial review, as the words imply, is not an appeal from a decision, but review of the manner in which the decision was made.

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Judicial Review is concerned, not with the decision, but with the decision making process. Unless that restriction on the power of the Court is observed, the Court will, in my view, under the guise of preventing the abuse of power, be itself guilty of usurping power."

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In the same case Lord Hailsham Commented on the purpose of the remedy by way of judicial review under RSC Ord 53 in the following terms :

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This remedy, vastly increased in the extent, and rendered, over a long period in recent years, of infinitely more convenient access than that provided by the old prerogative writs and actions for a declaration, is intended to protect the individual against the abuse of power by a wide range of authorities judicial, quasi-judicial, and, as would originally have been thought when I first practised at the Bar, administrative. It is not intended to take away from those authorities the powers and discretions properly vested in them by law to substitute the Courts as the bodies making the decisions. It is intended to see that the relevant authorities are their powers in a proper manner. (p. 1160)

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R v. Panel on Take-overs and mergers, ex p Datafin plc. Sir John Donladson MR commented :

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'an application for judicial review is not an appeal'.

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In Lonrho plc v. Secretary of State for Trade and Industry. Lord Keith said :

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'Judicial review is a protection and not a weapon'. It is thus different from an appeal. When hearing an appeal the Court concerned with the merits of the decision under appeal. In Re Amin Lord Fraser observed that :

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"Judicial review is concerned not with the merits of a decision but with the manner in which the decision was made ..... Judicial review is entirely different from an ordinary appeal. It is made effective by the Court quashing an administrative decision without substituting its own decision, and is to be contrasted with an appeal where the appellate tribunal substitutes its own decision on the merits for that of the administrative officer."

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17. In view of the above, this Court does not find any merit in the writ petition and accordingly the same is dismissed.

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JUDGE

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Comparing Assistant

Dipen Singha v. the State of Assam and 6 Ors.

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Dipen Singha v. the State of Assam and 6 Ors.

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