NRIPENDRA NATH SEAL Vs. STATE OF ASSAM
LAWS(GAU)-2019-8-20
HIGH COURT OF GAUHATI
Decided on August 29,2019

Nripendra Nath Seal Appellant
VERSUS
STATE OF ASSAM Respondents

JUDGEMENT

S.K. Medhi, J. - (1.)This intra-Court appeal is preferred against the judgment and order dated 17.11.2017, passed by the learned Single Judge in WP(C) No.2430/2015, whereby, the writ petitioner had unsuccessfully challenged the selection and appointment of the respondent No.5 as Power Pump Operator (PPO) under the Irrigation Department of the Government of Assam.
(2.)Though in an intra-Court appeal it may not be necessary to again advert to the facts of the case in details, it would be convenient to briefly narrate the background.
(i) An advertisement was published on 24.07.2013 by the Irrigation Department for, amongst others, 2(two) posts of Power Pump Operator (PPO) under the establishment of the Tihu Irrigation Division. Out of the said 2(two) posts, one was reserved for OBC category. It is the case of the petitioner that he belonging to the OBC category and having the requisite qualification, applied for the same and was issued a call letter for the written test scheduled on 19.10.2014. On successful completion of the written examination, interview was scheduled on 26.12.2014, whereby, the intending candidates were directed to appear with all original documents.

(ii) The petitioner, however, was over aged for the said post as he was about 44 years 11 months as on 01.01.2013, whereas, the upper age limit was 38 years as on 24.07.2013. Situated thus, the petitioner submitted an application to the competent authority in the Irrigation Department for relaxing his age. The projected case is that on consideration of the case of the petitioner, the respondent authority, in accordance with the Office Memorandum dated 04.01.1992 holding the field, accorded age relaxation to the petitioner vide communication dated 20.01.2015 followed by another communication dated 22.01.2015.

(iii) While the first grievance of the petitioner is with regard to his nonselection, the second grievance is the selection and appointment of the respondent No.5, who, according to the petitioner did not even apply for the post. It is the specific case of the petitioner that when the said respondent No.5 had failed to even offer his candidature, the question of selection and appointing him would not arise and therefore, such appointment is liable to be set aside.

(iv) The respondents including the private respondent No.5 had contested the writ petition by filing necessary affidavits-in-opposition. The Department in its affidavit had categorically denied the allegation that the respondent No.5 did not offer his candidature. Defending the selection and consequent, appointment of the respondent No.5, it has been stated that the respondent No.5 fared far better than the writ petitioner and therefore, no case was made out for interference by the Court. It was stated that since selection was made for two Divisions, namely, Barpeta and Nalbari, there was some confusion regarding the entry of the name of the private respondent. However, only because of the same, no illegality or irregularity had taken place and the selection was held by following the due process of law.

(v) The respondent No.5 in its affidavit submitted that the petitioner himself lacked locus standi to file the writ petition as he was not even eligible to apply for the post. The eligibility of a prospective candidate has to be determined as on the last date of submission of candidature and in the instant case, the petitioner was clearly over aged on the date of submission of the application and it was only much later that his age was condoned. Therefore, the petitioner did not have any locus to maintain the challenge. As regards the allegation against him, the respondent No.5 has stated that the same is absolutely without any basis and only because of some confusion occurring in recording his name in the register, his participation in the selection process cannot be questioned.

(vi) Endorsing the submission of the Department, it is the case of the private respondent No.5 that on inter se merits, the respondent No.5 was far superior and therefore, rightly selected and appointed for the post in question.

(vii) The learned single Judge after considering the submissions advanced by the learned counsels and on perusal of materials on record came to a finding that keeping in view that the advertisement pertains to 2(two) Divisions (Barpeta and Nalbari), the contention of the petitioner that the respondent No.5 did not even submit his application would not be accepted. The learned single Judge also discarded the ground regarding allotment of 25(twenty five) marks for viva-voice and accordingly, the writ petition was dismissed by the impugned judgment.

(3.)We have heard Shri R. Mazumdar, learned counsel for the appellant alongwith Shri H. Bezbaruah, learned counsel. We have also heard Shri N. Upadhyaya, learned standing counsel, Irrigation Department as well as Shri B.C. Das, learned senior counsel assisted by Shri D.A. Kaiyum, learned counsel for the respondent No.5.


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