Miss Maya Saikia v. The State of Assam and 4 Ors

Judgment & Order Heard Shri SH Rahman, learned counsel for the petitioner. Also heard Ms. A. Bora, learned Standing Counsel, NHM. No representation on behalf of the respondent no. 5.

¶2It is the selection and appointment of the respondent no. 5 as ASHA Supervisor which is the subject matter of challenge in this writ petition.

¶3Pursuant to an advertisement dated 07.03.2015 for appointment of ASHA Supervisor, the petitioner along with the respondent no. 5 and other eligible candidates had offered their candidatures. In the selection so held in June, 2015, the respondent no. 5 has been selected.

¶4Shri Rahman, learned counsel for the petitioner has submitted that the challenge is based on the stipulation in the advertisement. By referring to the Page No.# 3/5 said advertisement, it is submitted that under the "Desirable Criteria", a candidate should be from the same Block / District of the concerned district. It is submitted that while the Block in which the appointment has been made is the Rangjuli Block in the district of Goalpara, the respondent no. 5 is from the Matia Development Block and therefore she could not have been appointed. It is submitted that such appointment is in violation of the stipulation of the advertisement. The learned counsel accordingly submits that the appointment of the respondent no. 5 is liable to be interfered with and the petitioner be directed to be considered for such appointment.

¶5Ms. Bora, learned Standing Counsel, NHM has submitted that the premises on which the writ petition has been structured and presented is fallacious. By referring to the affidavit-in-opposition filed on 08.09.2017, it is submitted that in the selection held, while the respondent no. 5 was one of the selected candidates, the petitioner was placed in the second position in the Waiting List. The learned Standing Counsel further submits that the basis of the challenge is on a "Desirable Criteria" wherein it has been stipulated that preferably candidates should be from the same Block / District. It is submitted that though the respondent no. 5 belongs to the Matia Development Block, there is no dispute that the said Block is also within the district of Goalpara and therefore there is no violation as such. In this connection, she has referred to the averments made in paragraphs 6 and 8 of the affidavit-in-opposition. Ms. Bora accordingly submits that there is no merit in the writ petition and the same is required to be dismissed.

¶6Though the respondent no. 5 had entered appearance through counsel and had also filed an affidavit-in-opposition on 15.11.20416, there is no representation of the said respondent no. 5. Page No.# 4/5

¶7The rival contentions advanced by the learned counsel for the parties have been duly considered and the materials placed before this Court have been carefully examined.

¶8The entire basis of the present challenge regarding selection and appointment of the respondent no. 5 is a clause in the advertisement. For the sake of clarity, the said clause is extracted hereinbelow-"Desirable Criteria:-

¶1…

¶2Preferably, the candidate should be from the same Block / District of the concerned district.

¶3…"

¶9The expression used in the aforesaid clause are 'desirable' and 'preferably'. In the considered opinion of this Court, such clause would come into operation only when two candidates secure the same marks and the said condition is not an essential condition. That apart, the interpretation made on behalf of the official respondents that even otherwise the respondent no. 5 who admittedly belongs to the same district of Goalpara appears to be in consonance with the aforesaid clause. In this connection, one may gainfully refer to the case of Sher Singh v. Union of India reported in(1984) 1 SCC 107 wherein the Hon'ble Supreme Court has laid down as follows:

"7. … The expression 'preference' amongst others means prior right, advantage, precedence etc. But how would it be possible to give precedence one over the other. It signifies that other things being equal, one will have preference over the others. …"

¶10It is also on record that the respondent no. 5 was selected and placed against the Sl. No. 3 in the select list by virtue of which she was appointed and Page No.# 5/5 on the other hand, the present petitioner was placed in the second position in the Waiting List. This Court is of the considered view that the basis on which the present challenge has been structured is incorrect interpretation of the clause of the advertisement which otherwise would also not come to the aid of the petitioner.

¶11The writ petition is accordingly dismissed.

¶12No order as to cost. JUDGE Comparing Assistant

PageoNo.#o1/5 GAHC010207042016 ooooooo ooooooooooooooo ooooooooooooooooTHEoGAUHATIoHIGHoCOURTo (HIGHoCOURToOFoASSAM,oNAGALAND,oMIZORAMoANDoARUNACHALoPRADESH)o CaseoNo.o:oWP(C)/5546/2016ooooooooo MISSoMAYAoSAIKIAo D/O.oLT.oRAMESHoSAIKIA,oVILL.oSIMLITOLA,oP.O.oSIMLITOLA,oDIST.o GOALPARA,oASSAM,oPIN.o783130. VERSUSo THEoSTATEoOFoASSAMoANDo4oORSo REP.oBYoTHEoPRINCIPALoSECRETARYoTOoTHEoGOVT.oOFoASSAM,oHEALTHo SERVICEoDEPTT.,oDISPUR,oGUWAHATI-06. 2:THEoDIRECTORoOFoHEALTHoSERVICES oASSAM oHENGRABARI oGUWAHATI-36. 3:THEoMISSIONoDIRECTORoOFoNATIONALoHEALTHoMISSION oASSAM oCHRISTIANoBASTI oGUWAHATI-05. 4:THEoMEMBERoSECRETARY oDISTRICToHEALTHoSOCIETYoandoJOINToDIRECTORoOFoHEALTHoSERVICES oGOALPARA oP.O.oandoDIST.oGOALPARA oASSAM oPIN.o783101. 5:PALLABIoDAS oW/O.oABHIJIToBANIKYA oVILL.oMORNOI oP.O.oMONROI oDIST.oGOALPARA Page No.# 2/5 ASSAM PIN. 783101 Advocate for the Petitioner : MR.D A KAIYUM Advocate for the Respondent : B E F O R E Hon'ble MR. JUSTICE SANJAY KUMAR MEDHI Advocate for the petitioner : Shri SH Rahman, Adv. Advocate for the respondents : Ms. A. Bora, SC-NHM Date of hearing : 24.04.2024 Date of Judgment : 24.04.2024