Ashraful Alom Vs the State of Assam and 3 Ors.

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GAHC010000452024

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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)/23/2024

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ASHRAFUL ALOM S/O- ASMAN ALI MIAH, VILLAGE- KALAPANI, P.O.- KALAPANI, P.S.- MANKACHAR, DIST.- SOUTH SALMARA MANKACHAR, ASSAM, PIN- 783135.

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VERSUS

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THE STATE OF ASSAM AND 3 ORS REPRESENTED BY THE SECRETARY TO THE GOVT. OF ASSAM, JUDICIAL DEPARTMENT, DISPUR, GUWAHATI- 781006.

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2:THE MEMBER SECRETARY ASSAM STATE LEGAL SERVICES AUTHORITY (ASLSA) LATASIL DIGHALIPUKHURI GUWAHATI- 781001.

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3:THE CHAIRMAN OF DISTRICT LEGAL SERVICES AUTHORITY (DLSA) SOUTH SALMARA MANKACHAR- CUM- DISTRICT AND SESSIONS JUDGE SOUTH SALMARA MANKACHAR P.O.- FEKAMARI DIST.- SOUTH SALMARA MANKACHAR ASSAM PIN- 783135. 4:ROFIQUL ISLAM S/O- ABDUL SALAM VILLAGE- KALAPANI (LAKHISHORIF) P.O.- KALAPANI

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P.S.- MANKACHAR DIST.- SOUTH SALMARA MANKACHAR ASSAM PIN- 783135

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Advocate for the Petitioner : MR. M R KHANDAKAR, MR. A ROHMAN

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Advocate for the Respondent : GA, ASSAM, MR. M A I HUSSAIN (R4),MR. R MAZUMDAR (R4),MS. A HUSSAIN(r-4),MS M KURMI(r-4),MR R ISLAM (r-4),SC, ASLSA,SC, GHC

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BEFORE

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HONOURABLE MR. JUSTICE SUMAN SHYAM

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ORDER

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Date : 11/03/2025

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Heard Mr. M.R. Khandakar, learned counsel for the writ petitioner. Also heard Mrs. M. Bhattacharyya, learned Additional Senior Government Advocate, Assam, appearing for the respondent nos. 1 & 3; Mrs. R.S. Chowdhury, learned Standing Counsel, ASLSA, appearing for the respondent no.2 and Mr. R. Mazumdar, learned counsel appearing for the respondent no. 4.

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The facts of the case, in a nutshell, are that on 17/05/2023, the District Legal Service Authority cum District & Sessions Judge, South Salmara, Mankachar, had issued an advertisement notice for appointment of 3 (three) categories of Defense Counsel, viz. Chief Legal Aid Defence Counsel, Deputy Chief Legal Aid Defence Counsel and Assistant Legal Aid Defence Counsel. The qualification and eligibility criteria for appointment to the respective posts were laid down in the advertisement notice itself. The advertisement was followed by issuance of Standard Form of applications for all the three categories of posts.

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As per the criteria laid down in the application form, as many as, five judgements of the Sessions Judge wherein the candidate had appeared as Defence Lawyer, is required to be annexed to the application so as to establish the eligibility of the candidate for the post of Deputy Chief Legal Aid Counsel.

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It appears that 4 (four) applicants including the respondent no. 4 herein, had applied for the single post of Deputy Chief Legal Aid Defence Counsel. After consideration of the candidature of all the applicants and upon verification of the records and on conclusion of the selection process, the name of the respondent no. 4 was recommended for appointment as Deputy Chief Legal Aid Counsel

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vide order dated 18/12/2023. The order dated 18/12/2023 was called into question by the writ petitioner by filing this writ petition wherein, the petitioner had prayed for an interim order. However, this Court on 29/05/2024 had passed an order indicating that appointment, if any, made in favour of the respondent no. 4, shall be subject to the outcome of the writ petition. Consequently, the order of appointment dated 01/06/2024 was issued in favour of the respondent no. 4. Accordingly, the respondent no. 4 has joined as Deputy Chief Legal Aid Defence Counsel and since then, he has been discharging his duties and function, as such.

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As noted above, the primary ground of challenge of the selection and appointment of the respondent no. 4 is that he did not have 5 (five) judgements in the Sessions Court as defence counsel but has produced the judgements in respect of cases where other counsel had appeared. According to Mr. Khandakar, learned counsel for the writ petitioner, the respondent no. 4 had relied upon and produced judgements delivered in the cases, which were argued by two other Advocates, viz. Mr. Lutfur Rahman and Mr. Zakhir Hussain and, therefore, the selection and appointment of the respondent no. 4 is vitiated due to fraud and malpractices.

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Mr. Khandakar has further argued that despite laying down the criteria of selection in the advertisement notice as well as in the application form, by accepting the judgements in the cases which were argued by other counsel but not the respondent no.4, the authorities have changed the rules of the game after the selection process had commenced. Therefore, the selection of the respondent no. 4, according to Mr. Khandakar, stands vitiated on such count alone. In support of his above arguments, Mr. Khandakar has relied upon and referred to the decisions of the Hon’ble Supreme Court rendered in the case of K. Manjushree Vs. State of Andhra Pradesh and another reported in (2008) 3 SCC 512; Bedanga Talukdar Vs. Saifudaullah Khan and others reported in (2011) 12 SCC 85 and Tej Prakash Pathak and others Vs. Rajasthan High Court and others reported in (2013) 4 SCC 540 .

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Ms. M. Bhattacharjyya, learned Additional Senior Government Advocate, Assam, has produced the records and also invited the attention of this Court to the counter affidavit filed by the respondent no. 3 to submit that the judgements produced by the respondent no. 4 were duly verified, whereupon, it was found that those were genuine. On such verification and after evaluating the candidature of all the candidates, the respondent no. 4 was selected. The learned Government Advocate further submits that there is no illegality in the section process and, therefore, the writ petition be dismissed. The said stand of the learned Government Advocate, Assam, has been supported by Mrs. R.S. Chowdhury, learned Standing Counsel, ASLSA, appearing for the respondent

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no. 2.

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The learned counsel for the respondent no. 4, Mr. R. Mazumdar, has further submitted that the respondent no. 4 had furnished copies of five judgements of cases conducted by him in the Sessions Court as defence counsel and those were also properly verified by the authorities so as to dispel doubt, if any, as regard involvement of the respondent no. 4 in those cases. After complete verification of the facts and records, the respondent no. 4 has been selected. Contending that the petitioner has failed to make out any case for interference by this Court, Mr. Mazumdar submits that the writ petition is devoid of any merit and, therefore, the same deserves to be dismissed with cost.

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Since the only ground urged by the petitioner’s counsel is on account of the fact that the five judgements relied upon the respondent no. 4 were not rendered in cases where he had appeared, perusal of records became necessary.

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I have gone through the records and the statements made in the affidavit filed by the respondent no. 3 whereupon, I find that in his counter affidavit, the respondent no. 3 has clearly stated as follows :-

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“The private respondent no. 4 has submitted 5 Nos. of judgements i.e. (i) Sessions case No. 08/2022 (New)/Session Case No. 345/2018 (Old), (ii) Session Case No. 05/2021 (New)/Session Case No. 87/2023 (Old), (iii) Session Case No. 157/2019 (Old)/Session Case No. 46/2021 (New), (iv) Special (P) NO. 34/2022 & (v) Special (P) No. 68/2022 along with his Application Form, out of which clarification for 4 Nos. judgements were sought before his appearance in the interview, and having satisfied with his clarification, he was allowed to appear in the viva voce.

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It is also submitted here that out of total 4 os. Of applicants for the post of Deputy Chief Legal Aid Defense Counsel 3 (three) applicants were allowed to appear in the interview after clarification of their judgements i.e. A.S.M. Jahangir who has submitted 5 Nos. of judgements along with his Application For out of 5 nos. judgements a clarification for 1 (one) no. judgement was sought for from him before appearing in the interview for the post of Chief Legal Aid Defense Counsel & Deputy Chief Legal Aid Defense Counsel.”

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The above statements made by the respondent no. 3 appear to be supported by documents on record. Although, the petitioner has denied and disputed such assertion of the respondent no. 3, yet, there is nothing on record to convince this Court that the stand taken by the respondent no. 3 in

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his affidavit, is in any manner incorrect. Be that as it may, the question arising in this proceeding is pertaining to the validity of the selection of the respondent no. 4 for appointment as Deputy Chief Legal Aid Defence Counsel. The writ petitioner is assailing his selection on the ground that he was not eligible. Since the primary contention of the petitioner was that the judgements of two other Lawyers, viz. Mr. Lutfur Rahman and Mr. Zakhir Hussain, were used by the respondent no. 4 to support his candidature, it was incumbent upon the petitioner to implead those two individuals as party respondents in this proceeding, so as to enable this Court to elicit a response from them. However, the petitioner has failed to do so. As such, this Court is not inclined to go into the said aspect of the matter.

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In this backdrop, once the selecting authority has filed affidavit stating that on proper verification, the five judgements relied upon by the respondent no. 4, were found to be genuine, merely because the petitioner has disputed such stand by filing rejoinder affidavit, this Court cannot go into such disputed question of fact in a writ petition. It has been submitted at the Bar that the respondent no. 4 had joined as Deputy Chief Legal Aid Defense Counsel in the month of June, 2024 and since then he has been working.

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Since the petitioner has failed to make out a case for issuance of a Writ of Mandamus in his favour and considering the fact that the grounds urged in the writ petitioner could not be established by the petitioner, this Court is of the opinion that there is no scope for the Writ Court to interfere in the matter. It is also not a case where the Rules of the Game has been changed midway. Therefore, the decisions relied upon by Mr. Khantakar, would be of any assistance to him in the facts of this case.

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For the reasons stated herein above, this writ petition is held to be devoid of any merit. The same is accordingly dismissed.

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There shall be no order as to costs.

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JUDGE

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Comparing Assistant

Ashraful Alom v. the State of Assam and 3 Ors.

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