Arjuara Begum and 21 Ors v. The State of Assam and 6 Ors

O R D E R Date of hearing :: 16.09.2024 Date of order :: 20.09.2024

Heard Mr. D. Das, learned Senior counsel, assisted by Mr. H.K. Nath, learned counsel for the review petitioners as well as Mr. D. Saikia, learned Advocate General, Assam, assisted by Mr. K. Gogoi, learned Standing Counsel, Page No.# 7/12 Higher Education Department, Government of Assam.

¶2The petitioners are working as full time Lecturers (Technical and Non-Technical) in different Polytechnics of five districts of Assam, namely, Tinsukia, Hailakandi, Chirang, Morigaon and Udalguri. The petitioners were subjected to a recruitment process in terms of the Advertisement No. 04/2020 dated

25.02.2020, issued by the Director of Technical Education, Assam under Regulation 3(f) of the Assam Public Service Commission (Limitations and Functions) Regulations, 1951 (Regulations of 1951, in short). On being successful, they were appointed as temporary lecturers under Regulation 3(f) of the Regulations of 1951 by a Notification dated 22.02.2021 issued by the Department of Higher Education (Technical), Government of Assam. The appointment of the petitioners as lecturers were also given ex post facto approval by a Notification, dated 15.12.2021, in pursuance of the Department Notification, dated 22.02.2021, and the Cabinet decision held on 24.11.2021.

¶3The Assam Engineering Services Recruitment Board issued a Notice No. AESRB/034/2022/250 on 21.02.2023 inviting online applications from permanent residents of Assam and having requisite qualification for recruitment to 80 vacant posts of Lecturer (Technical) in Polytechnics of Assam under the Higher Education (Technical) Department, Government of Assam. By another Notice No. AESRB/035/2022/251 dated 21.02.2023 online applications were invited for recruitment to 57 vacant posts of Lecturer (Non-Technical) in the Polytechnics of Assam under the Higher (Technical) Department Government of Assam. Both the Notices, dated 21.02.2023, provided that the recruitment process will comprise of (i) OMR-MCQ based written examination – 75 marks and (ii) teaching proficiency test – 25 marks. The Notice further provided that only the shortlisted candidates will be called for the teaching proficiency test. Page No.# 8/12 The petitioners, being qualified, made their applications to the Notice dated

21.02.2023 and they also appeared in the OMR-MCQ based written examination. While the petitioners were awaiting their results, the Assam Engineering Services Recruitment Board issued a Recruitment Notice dated 23.04.2023 providing that the teaching/skill proficiency test is to be treated as an integral part of the test to be conducted for selection and the final merit/selection list will be based on the gross performance in the two tests (OMR-MCQ based written test and teaching/skill proficiency test). The Recruitment Notice further provided that all aspiring candidates will have to appear in both the tests and the candidates appearing in the OMR-MCQ based written test will be shortlisted to appear in an innovative written teaching/skill proficiency test in a level playing field with no marks for interview.

¶4The petitioners assailed the Recruitment Notice, dated 23.04.2023 by filing WP(C) No. 3051/2023, which was disposed of by this Court by the judgment and order dated 02.07.2024 wherein the said Recruitment Notice dated

23.04.2023 was interfered with.

4.1. The petitioners are seeking for a review of paragraph-18 of the said judgment wherein this Court had made an observation that the petitioners having already participated in the OMR-MCQ based written examinations without any protest, this Court is not inclined to interfere in all the four Notices dated

21.02.2023. The last four lines of paragraph-18 wherein the review petitioners are seeking a review, is reproduced herein-below:- "However, considering the fact that the petitioners in both the writ petitions have already participated in the OMR-MCQ based written examinations without any protest, this Court is not inclined to interfere in all the four Notices dated 21.02.2023." Page No.# 9/12

¶5Mr. Das, learned Senior counsel for the review petitioners, submits that this Court had made an error apparent on the face of the record while making the observation that the petitioners has participated in the OMR-MCQ based written examinations without any protest. He submits that the petitioners had already challenged the Notices dated 21.02.2023 by filing WP(C) No.1267/2023 which is still pending for disposal. In the said writ petition, this Court after hearing the parties, passed an order dated 20.03.2023, and the relevant portion reads as under:- "However, it is made clear that any appointment to the sanctioned vacant posts of Lecturer (Technical) in those newly opened five Polytechnics of Assam at Chirang, Hailakandi, Morigaon, Tinsukia and Udalguri, in which the petitioners alleged in this petition that they were appointed to those sanctioned posts under Regulation 3(f) of the APSC (L&F) Regulations 1951, in terms of the Page No.# 10/10 selection made on the basis of the impugned advertisement vide Notice under No. AESRB/034/2022/250 dated 21.02.2023 issued by the Chairman, Assam Engineering Service Recruitment Board, Guwahati, shall be subject to the outcome of this writ petition."

¶6Learned senior counsel, therefore, submits that when this Court had made the observation that the review petitioners had participated in the OMR-MCQ based written examinations without any protest, the fact that the review petitioners had filed WP(C) No.1267/2023 challenging the Notice dated

21.02.2023 was overlooked. Learned Senior counsel for the review petitioners also submits that there was no challenge to the Notice dated 20.01.2023 in WP(C) No.3051/2023 and, therefore, the decision of this Court not to interfere in all the four Notices dated

21.02.2023 is also an apparent error on the face of the record. Page No.# 10/12

¶7Learned Senior counsel for the review petitioners further submits that as this Court had failed to take notice that the petitioners had filed WP(C) No.1267/2023 challenging the Notices dated 21.02.2023 and also as there was no challenge to the Notices dated 21.02.2023 in WP(C) No.3051/2023, the last four lines of paragraph-18 of the judgment and order dated 02.07.2024 requires to be reviewed.

¶8Mr. D. Saikia, learned Advocate General, Assam, on the other hand, submits that the issue involved in WP(C) No.3051/2023 was the Recruitment Notice dated 23.04.2023 wherein it was notified that the teaching/skill proficiency test is to be treated as an integral part of the test to be conducted for selection and final merit/selection list will be based on the gross performance in the two tests (OMR-MCQ based written examination and Technical/Skill Proficiency) test and all aspiring candidates will have to appear in both the tests and the candidates appearing in OMR-MCQ based written examination will be shortlisted to appear in an Innovative Written Teaching/Skill Proficiency Test in a level playing field with no marks on interview. He submits that the review petitioners had already filed WP(C) No.1267/2023 challenging the Advertisement dated 21.02.2023 on the ground that though their appointment was made under Regulation 3(f) of the APSC (L&F) Regulations, 1951, however, their appointments were followed by advertisement and selection through written examination and, therefore, their cases should be considered as a regular appointment against sanctioned posts. He submits that the grounds for challenge of the Advertisement dated 21.02.2023 by the petitioners in WP(C) No.1267/2023 was on a totally different footing. It is also submitted that the opinion expressed by this Court while passing the judgment and order dated

02.07.2024 was a passing remark while coming to the conclusion that the Page No.# 11/12 impugned Recruitment Notice dated 23.04.2023 is invalid. The grounds taken by the review petitioners are not an error apparent on the face of the record and, therefore, do not come within the purview of review jurisdiction. The grievance of the petitioners raised in the present review petition can only be addressed before the appellate jurisdiction and not in review jurisdiction. He, therefore, submits that the present review petition should be rejected.

¶9I have considered the submissions advanced by the learned counsel for the parties.

¶10This Court has considered paragraph-18, particularly, the last four lines, which have already been reproduced herein-above. It is seen that this Court has made an observation that the petitioners had participated in the OMR-MCQ based written examinations without any protest. It is a fact that the Notice dated 21.02.2023 was put under challenge by the petitioners in WP(C) No.1267/2023. However, they had participated in the OMR-MCQ based written examinations pursuant to the Notice dated 21.02.2023. Therefore, this Court, on consideration of the materials available on record, is of the considered opinion that an error apparent on the face of the record has occurred when this Court had made the observation that the petitioners had participated in the OMR-MCQ based written test without any protest. Therefore, this Court is of the considered opinion that the words 'without any protest' should be removed from paragraph-18 in the judgment and order dated 02.07.2024 passed in WP(C) No.3051/2023.

¶11The submission of learned Senior counsel for the review petitioners that there was no challenge made to the Notice dated 21.02.2023 in WP(C) No.3051/2023 has also been considered by this Court. Page No.# 12/12

¶12On a perusal of the prayer made in WP(C) No.3051/2023, particularly prayer (c), it is seen the petitioners had prayed for a writ in the nature of Mandamus directing the respondents not to proceed further with the recruitment process of Assistant Professor in Engineering Colleges of Assam initiated pursuant to the Advertisement dated 21.02.2023.

¶13This Court has considered the Notice dated 21.02.2023 and thereafter has proceeded to pass the judgment dated 02.07.2024 in WP(C) No.3051/2023. Therefore, the submission of the learned Senior counsel for the review petitioners cannot be considered inasmuch as there was already a prayer in WP(C) No.3051/2023 praying for a writ of mandamus not to proceed further with the recruitment process pursuant to the Advertisement dated 21.02.2023. Further, if the submission of the learned Senior counsel for the review petitioners is accepted, it would amount to reviewing the observations and directions made by this Court in the judgment and order dated 02.07.2024 and therefore would amount to re-hearing of the matter. Accordingly, the submission of the learned Senior counsel for the review petitioners is rejected.

¶14In terms of what has been discussed herein-above, paragraph-18 of the judgment and order dated 02.07.2024 passed in WP(C) No.3051/2023 is modified to the extent by removing the words 'without any protest'.

¶15With the above modifications, the review petition is disposed of.

JUDGE Comparing Assistant

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