Pankaj Boruah and 2 Ors v. The State of Assam and 9 Ors

PageoNo.#o1/7 GAHC010270312022 ooooooo ooooooooooooooo ooooooooooooooooTHEoGAUHATIoHIGHoCOURTo (HIGHoCOURToOFoASSAM,oNAGALAND,oMIZORAMoANDoARUNACHALoPRADESH)o CaseoNo.o:oWA/23/2023o PANKAJoBORUAHoANDo2oORS.o S/OoGOLOKoBOARAH,o VILL.-oMUDOIoGAON,o P.O.oANDoP.S.-oCHATIA,o DIST.-oSONITPUR,oASSAM,oPIN-o784175. 2:oAIMONIoBORAH oD/OoHARAoKANTAoBORAH o R/OoNIJ-BEHALI o P.O.oANDoP.S.-oBIHALI o DIST.-oBISWANATH oASSAM oPIN-o784166. 3:oMANJUoMANIoBORAHoHAZARIKA oD/OoBIPINoBORAH o VILL.-oMALARGAON o P.O.-oSOOTEA o DIST.-oBISWANATH oASSAM oPIN-o784175o VERSUSo THEoSTATEoOFoASSAMoANDo9oORS.o REP.oBYoTHEoCOMMISSIONERoANDoSECRETARYoTOoTHEoGOVToOFoASSAM,o HEALTHoANDoFAMILYoWELFAREoDEPTT,oDISPUR,oGUWAHATI-o781006. PageoNo.#o2/7 2:THEoDIRECTOR oHEALTHoSERVICE oHENGRABARI oGUWAHATI-o05 3:THEoDIRECTORoOFoMEDICALoEDUCATION oASSAM oSIXMILE oKHANAPARA oGUWAHATI oKAMRUP(M) oASSAM oGUWAHATI-o781006 4:THEoPRINCIPALoCUMoCHIEFoSUPERINTENDENT oTEZPURoMEDICALoCOLLEGEoANDoHOSPITAL oTEZPUR oASSAM oPIN-o784153 5:MRIDULoHAZARIKA oS/O-oMR.oJOGENoHAZARIKA oVILLoNO.o2oPITHAGURI oP.O-oPITHAGURI oP.S-oBIHPURIA oDIST-oLAKHIMPUR oASSAM oPIN-o784163. 6:BHUPENoDAS oS/O-oMR.oDULALoDAS oVILL-oNAHARATI oP.O-oBAHGORAH oP.S-oBIHPURIA oDIST-oLAKHIMPUR oASSAM oPIN-o784161 7:MRINALoMEDHI oS/O-oLATEoNARAYANoMEDHI oR/O-oKUNDILNAGAR oBASISTHAoCHARIALI oP.O-oBASISTHA oDIST-oKAMRUP(M) oASSAM oGUWAHATI-o29 8:MRIDULoKUMARoBORAH Page No.# 3/7 S/O-LATE KHETESWAR BORAH VILL-RAJKHOWA GAON P.O-AZAD P.S-PANIGAON DIST-LAKHIMPUR ASSAM PIN-787031 9:MD. NASIOR RAHMAN S/O-MD. ASHOK ALI VILL-MOURIPAM P.O-MANDIA P.S-BARBHAG DIST-BARPETA ASSAM PIN-781308 10:ZAKIR HUSSAIN S/O-LATE NURUL ISLAM VILL-GHILAZARI P.O-GHILAZARI P.S-HOWLY DIST-BARPETA ASSAM PIN-78131 For appellant(s) : Mr. R.P. Sarmah, Sr. Advocate Ms. S.P. Chetry, Advocate For respondent(s) : Mr. K. N. Choudhury, Sr. Advocate Mr. P. K. Deka, Advocate Mr. B. Gogoi, SC, Health, Assam

– BEFORE – HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE SOUMITRA SAIKIA

28.02.2023 (S. Mehta, CJ)

The instant intra-court writ appeal is preferred by the appellants/writ petitioners Page No.# 4/7 for assailing the order dated 27.09.2022, passed by the learned Single Bench in WP(C) 6279/2022, and the order dated 25.11.2022 passed in Review Petition No. 168/2022.

¶2The brief facts that are essential for disposal of this writ appeal are noted herein-below: The private respondents in this appeal preferred Captioned Writ Petition WP(C) 6729/2018, questioning the selection and appointment of the appellants herein and few others on the posts of Laboratory Technicians in the Tezpur Medical College and Hospital, Tezpur, Assam. The principal ground asserted by the respondents/writ petitioners for questioning the selection of the respondents (appellants herein) was that they were not having the requisite qualification for the post as on the last date of submission of the application forms, i.e. 11.03.2011, and accordingly the respondents/ writ petitioners prayed that the selection of the respondents (appellants herein) be quashed and they (writ petitioners) be considered for appointment against the vacant posts. The writ court examined the entire fact scenario in extenso and came to a conclusion that the appellants herein, who were the respondent nos. 5, 6, 7, 8 and 9 in the writ petition, could not satisfy that they had acquired valid qualification so as to be considered against the posts. Two findings were arrived at by the learned Single Bench: (i) that the candidates referred to (supra) had acquired the qualification after the last date for submission of application forms and/or (ii) that the institutions from where they had acquired the qualification were not recognised as per the terms and conditions of the advertisement. Accordingly, the writ petition was disposed of requiring constitution of an enquiry committee, which was, in turn directed to make verification of the qualifying certificates of the appellants (respondents in the writ petition) and, in case their qualifications were found to be not recognised and/or acquired after the last date Page No.# 5/7 stipulated in the advertisement for submission of the application forms, then their services would be terminated. It was further directed that in case vacancies arose after the aforesaid exercise, the same would be filled up by recasting the Select List on the basis of marks obtained by the candidates in the selection process and the candidates found eligible in terms of the advertisement dated 19.02.2011, would be appointed to the posts in question. Being aggrieved by the judgment and order dated 27.09.2022 passed in the writ petition, the respondents (appellants herein) preferred a writ appeal, being WA 345/2022, wherein contention was advanced by the appellants that the recruitment process in question was governed by the Assam Laboratory Technician Service Rule, 2012, which inter alia provided for authentication of documents/certificates of the candidates by the Director of Medical Education, Assam. Finding that such point was not raised during the proceeding of the writ petition, the Division Bench gave opportunity to the appellants to withdraw the appeal and to file a review petition. As a consequence, Review Petition No. 168/2022 came to be preferred by the appellants herein which was rejected by the order dated 25.11.2022. The appellants/writ petitioners have assailed the order dated 27.09.2022, passed in WP(C) 6279/2022 and the order dated 25.11.2022 passed in Review Petition No. 168/2022 by preferring the instant intra-court appeal.

¶3Mr. R. P. Sarmah, learned senior counsel for the appellants herein vehemently and fervently contended that there was no justification for the learned Single Bench to have interfered with the selection process wherein the appellants were selected and appointed as Laboratory Technicians, because the writ petition came to be filed after significant delay of almost eight years. It was further contended that during the intervening period, the Assam Laboratory Technician Service Rules, 2012 were promulgated and the appellants herein are qualified to be appointed as Laboratory Technicians in the light of the aforesaid rules. Page No.# 6/7

¶4Per contra, Mr. K. N. Choudhury, learned senior counsel appearing for the private respondents/writ petitioners vehemently and fervently opposed the submissions advanced by the learned senior counsel for the appellants. It was submitted by the learned senior counsel for the private respondents that it is well settled by a catena of judgments rendered by the Hon'ble Supreme Court that a candidate not having acquired the requisite qualification in terms of the rules and the advertisement notification by the last date of submission of application forms, cannot be permitted to stake claim for the post. It was contended that admittedly the appellants herein acquired the qualifying certificates from the institutions not recognised in terms of the recruitment notification and/or had acquired the qualification after the cut-off date and, hence, the learned Single Bench was perfectly justified in directing termination of their services after requisite enquiry.

¶5We have given thoughtful consideration to the submissions advanced by the learned senior counsels appearing for the parties and have gone through the materials available on record. At the outset, we would like to note that the learned senior counsel representing the appellants candidly conceded during the course of arguments that the qualifying certificates obtained by the appellants herein were not compliant of the terms and conditions of the recruitment notification. Further-more, some of the candidates procured their certificates after the last date stipulated for filing the application forms. The Hon'ble Supreme Court had the occasion to consider an identical controversy in the case of Alka Ojha vs. Rajasthan Public Service Commission and Another, reported in AIR 2011 SC 3547. In the said case, the Apex Court upheld the order of the Division Bench of the High Court interfering with the selection of the appellants, who were selected and appointed as Motor Vehicle Sub-Inspector despite not having the requisite qualification by the last date of submission of the application forms. In the aforesaid case, the selection of the candidates was cancelled after they had joined in service and had worked on the posts for almost five years. Page No.# 7/7

¶6In the wake of the discussion made hereinabove, we are of the firm view that the learned Single Bench was perfectly justified in accepting the writ petition preferred by the respondents herein, as indicated above, and in rejecting the review petition filed by the appellants herein.

¶7Resultantly, the impugned orders do not suffer from any infirmity warranting interference by this Court. The writ appeal is devoid of any merit and the same is accordingly dismissed.

JUDGE CHIEF JUSTICE Comparing Assistant