SRI JYOTISH KAIBORTA & ORS.versusTHE STATE OF ASSAM & ORS.

                               [2009] 2 S.C.R. 1145


                        SRI JYOTISH KAIBORTA & ORS.                        A
                                       V.
                        THE STATE OF ASSAM & ORS.
                         Civil Appeal No.1252 of 2009
                              FEBRUARY 25, 2009
                                                                           B
              [TARUN CHATTERJEE AND AFTAB ALAM, JJ.]
                 Service Law - Selection - For filling. up vacancies in the
          posts of Lower Division Assistant (LOA) in Transport
          Department, Government of Assam - Concerned authorities
          prepared select list'""" High Court held the selection process to c
          be unfair and improper and consequently set aside the select
          list - Propriety of - Held: Not proper - Manner in which High
          Court proceeded to examine the vafidity of the selection
          process and the reason assigned by it for holding the select
          list to be bad and invalid were unsustainable in law.             D

                Dispute arose relating to the selections made for
          filling up the vacancies in the posts of Lower Division
          Assistant (LOA) in the Transport Department, Gov.ernment
          of Assam. The .concerned authorities had· prepared a
                                                                    E
          select list. The High Court by the impugned judgment held
          the selection process to be unfair and improper and
          consequently set aside the select list. Hence the present
    j.    appeal.
               Disposing of the appeals, the Court                         F
               HELD:1. One is unable to ·appreciate or even follow
          the reason assigned by the High Court for condemning
          the select list. In case, in viva voce very high marks were
          given to ca.ndidates who secured !Ow or very low marks
          in the written test that might be a ground for suspicion. G
~   :'(   But if the candidates securing high marks in the written
          test were able to secure equally high marks in viva voce,
          one is unable to find any anomaly. After all, there has to
          be some difference between the selected and the
                                       1145                                H
    1146               SUPREME COURT REPORTS           [2009] 2 S.C.R.


A   unselected candidates. Unfortunately the High Court has
    not mad-e clear the 'distinct pattern' it was able to discern
    from a scrutiny of the marks awarded to the candidates.
    The approach'of the High Court was quite contrary to law
    laid down by this Court. The decision of the High Court in
B   so far as it held the select list dated June 24, 2003 as invalid
    cannot be' sustained [Paras 17, 14] [1152-G-H; 1154-F]
         Sadananda Halo and Others v. Momtaz Ali Sheikh and
    Others (2QOB) 4 SCC 619;-Madan Lal and Others. v. State of J
    & Kand Others (1995) 3 SCC 486 and Ashok Kumar Yadav v.              "*
c   State of Haryana. (1985) 4 sec 417 - relied on.
               .


       2. The concerned authorities are directed .to fill up
  the 12 vacancies of LDAs in the Transport Department
  from the select list dated June 24, 2003 strictly in order of
  merit (six-from the selected candidates arid six from the
D waiting list). [Para 18] [1154-H; 1155-A]
                                                                         ..._


                                Case Law Reference
                   (2008) 4 sec 619        relied on     Para 14
                   · (1995) 3 SCC'486      relied on     Para ·16
E
                   (1985) 4 sec 417        relied on     Para 16
      '
          -·
        . CIVILAPPELLATE JURISDICTION: Civil Appeal No 1252
    of 2009                                                              ~



F           From the Judgement and Order dated 17.05.2006 of the
      H_on'.ble High Court of Guwahati in Civil Writ Petition No. 6139
    "
      of 2003, Writ ·Petition (C) No. p2_22 of 2003 and Writ Petition
      (C} No. 1554 of 2003.
                                         WITH
G                  Civn Appeal No. 1253 oF 2009
                                                                         -\:    ~
                   Civil Appeal No. 1254 of 2009
        P.K. Goswami, Rajiv Mahta, Parthiv Goswami, A. Henry,
    Manish Goswami (M/S Map & Co.), for the Appellants.
H
                        SRI JYOTISH KAIBORTA & ORS. V.                   1147
                         THE STATE OF ASSAM & ORS.

                  Avijit Roy, Ranjan Mazumdar (MIS Corporate Law Group),        A
         '   (For Govt. of Assam), Arun K. Sinha, Rakesh Singh, Sunil
             Sharma, SumitSinha, for the Respondent.
                  The Judgement of the Court was delivered by
                  AFTAB ALAM, J.                                                B
                  1. I.A. No.1 of 2007 is allowed and Sanjib Das who was
             arrayed in SLP (C) No.12129/2006 as one of the respondents
     4
             is permitted to be transposed as· a petitioner. Consequently,
             the number of petitioners in that case becomes eight. Apart from
             the eight petitioners in SLP(C) No.12129/2006 there are two        c
             each in SLP(C) No~ 12766 of 2006 and SLP (C) No.17979 of
             2006 and two more in I.A. No.5/2009 filed in SLP (C) No. 17979/
             2006.
                  2. Leave granted in all the SLPs. ·                           D
     >
                   3. The three appeals are directed against the judgment
             and order dated May 17, 2006 passed by a full bench of the
             Guwahati High Court disposing of a large group of writ petitions.
             The appellants, however, are aggrieved by the decision only in
             so far as it found and held that the selections made for filling up E
             the vacancies in the posts. of Lower _Division Assistant (LOA)
             were bad and the. select list, dated June 24, 2003 was illegal
     'J      and consequently set it aside.

                   4. The controversy relates to appointments to the vacant
             posts of Lower Division Assistants in_ the Transport r:;>epartment,
                                                                                 F
             Government of Assam for which the concerned authorities,
             following a selection process, prepared the seleet list dated June
             24, 2003. The eight appellants in Civil Appeal arising from
             SLP(C) No.12129/ 2006 were among the 12 selected
             candidates in the select list that was set aside by the High Court. G
-~   i
             They are thus directly hit by the High Court judgment. The other
             six appellants in the other two Civil Appeals and I.A. No.5 of
             2009 admittedly did not figure in the select list dated June 24,
             2003. According to them, they were in some earlier list dated
             November 20, 2001 on the basis of which the select list of June H
    1148       SUPREME COURT REPORTS                       [2009] 2 S.C.R. \ •
A   24, 2003 was finally drawn up. Their case is thus materially
    different from the case of the eight appellants in Civil Appeal
    arising from SLP(C) No.12129 /2006.
           5. For filling up the vacancies iri the posts of LOA in the
    Transport Department, Govt. of Assam, the selection process
B
    commenced in October, 1998. As is not uncommon these days,
    even before it was complete the selection process had to go
    through obstacles and face challenges in the Court. But having
    regard to the limited scope of these appeals it is not necessary             t
    to go into those details. Suffice it to note that on the basis of a
c   written test held on November 14, 1999 and viva voce held on
    December 18, 2000 a' select list was eventually prepared and
    in pursuance of the direction of the Guwahati High Court dated
    October 10, 2001 in W.P.(C) No. 4431 of 2001 it came to be
    finally published on June 24, 2003. It is not in dispute that the
D   eight appellants in Civil Appeal· arisin·g from SLP(C) No.12129/            ),(_

    2006 were among the 12 selected candidates in that list.
         6. After the select list was published on June 24, 2003
    appellants 1 & 2 (along with some others) filed W.P. (C) No.6139
    of 2003 before the Guwahati High Court seeking direction for
E
    appointment on the basis of the select list. In that case the High
    Court passed an interim order on August 8, 2003 directing that
    any existing vacancies should be filled up from the select list
    and prohibiting any ad hoc appointments from outside that list.
    A similar order was passed by the High Court on March 5, 2004
F   in W.P. (C) No. 8815 of 2004 filed by one lnamul Hoque (who
    was at serial No. 7 in that select list). Earlier fo that a writ petition
    being W.P. (C) No.66222 of 2003 was filed, the petitioner's in
    which challenged the select list dated June 24, 2003 published
    by the Joint Commissioner Transport, Government of Assam
G   and sought direction for their appointment on the basis of some
                                                                                t
    purported select list dated February 21, 2006. This writ petition                  ~-


    too was one of the batch of cases disposed of by the full bench
    judgment against which the present appeals are preferred. The
    High Court found and held that there was no such select list as
H   claimed by the petitioners of that case and that part of the
         SRI JYOTISH KAIBORTA & ORS. V.                   1149
   THE STATE OF ASSAM & ORS. [AFTAB ALAM, J .. ]

judgment is not under appeal before us. In yet another A
proceeding, in Contempt Case No. 314 of 2003 the Guwahati
High Court gave directions to the concerned authorities in ·the
government·to complete the process of appointment within six
weeks in accordance with ·law.
     7. The aforementioned were some of the matters relating 6
to the select list dated June 24, 2003 and the claim of the
selected candidates for appointmen~ based on that list.
     8. As against that there was a counter claim for
regularization as LDAs by some casual employees working in       c
the department. A writ petition being W.P. (C) No. 1154 of 2004
came to be filed before the High Court on March 5, 2004 by
some casual employees seeking stay on the appointments from
the select list and on the same day (March 5, 2004) the High
Court directed the concerned authorities not to issue any 0
appointment orders for the post of LDAs till the next date (March
11, 2004) fixed in the case.
      9. Eventually all the writ petitions raising claims for
appointment on different grounds as LOA in the transport
department came to be grouped together and in view of the E
conflicting orders passed in different writ petitions the entire
group came to be heard by a full bench of the Court.
      10. The full bench by a long and well considered judgment
totally rejected the claim of regularization raised by the casual
employees but at the same time it found and held that the F
selection process was not fair and proper and consequently
set aside the select list of June 24, 2003. In paragraph 23 of the
judgment the Court summarized its decisions as follows :
     "Our answers to the questions referred and also to the G
     questions incidentally arising are self-contained in the
     various paragraphs of the present order. However, to dispel
     all doubts and avoid any possible confusion we deem it
     appropriate to reiterate our conclusions to·follows:

     (1)   The Office Memorandum dated 20.4.1995 does not H
    1150         SUPREME .COURT REPORTS                  [2009] 2 S.C.R.


A                 reflect a Valid policy decision of the State for
                  regularization of Muster Roll/Work Charge
                  employees.
           No Muster Roll/Work Charge employee is entitled in law
           to seek and claim regularization in terms of the aforesaid
B
           Office Memorandum dated 20.4.1995,
           (2) · However, as a large nurnber of regularisations of
               ·. different categories of employe~s have already been
                  effected in ·terms of the Office Memorandum dated
c                 20.4.1995, considering the human factor involved,
                  the Court does not consider it necessary to pass
                  orders setting aside any of the said regularizations.
                  However, there will be no further regularization in
                  terms of the aforesaid Office Memorandum, dated
D                 20.4.1995, and/or such other judicial order(s) for
                  regularization, passed, in this regard, but has not. yet
                  been impleme-nted.
           (3)      The Office Memorandum dated 20.4.1995 does not
                 _ cover any category of employees other than Muster
E                   Roll and Work Charge employees. No policy decision
                    has been taken by the State with regard to
                    regularization of different categories of casual/
                    contingent/adhoc employee·s working in the different
                  ·departments of the State Government. Such
F                   employees are, therefore, .not entitled to claim any
                    regularization either under the Office Memorandum
                  , dated 20.4.1995 or any other Office Memorandum
                    in force.
           (4)    Casual employees of the Transport department in
G                 Grade Ill posts are not entitled to regularization in
                  terms of the Office Memorandum dated 20.4.1995
                  or any other Office Memorandum in force.
       · (5)      The selections held for filling up the vacant posts of
                  L. D. Assistants in the Transport department including
H
         SRI JYOTISH KAIBORTA & ORS. V.                      1151
   THE STATE OF ASSAM & ORS. [AFTAB ALAM, J .. ]

           the select list dated 24.6.2003 is found to be illegal A
           and therefore set aside.
     (6)   The Court expresses no opinion with regard to the
           validity of the Cabinet decision dated 22. 7 .20005 or
           its implementation and execution. The matter will be
                                                                  8
           considered, if required, at the appropriate time and
           stage. ·
     All the writ petitioners shall stand disposed-of as being
     answered in terms our conclusions recorded above."
      11. As noted above the appellants are aggrieved by the C
finding at serial No.5 in !egard to the select list and the direction
to set it aside.
       12. Mr. P.K. Goswami learned Senior Counsel appearing
for the appellants in Civil Appeal arising from SLP(C) No.12129/ 0
2006 submitted that the manner in which the High Court
proceeded to examine the validity of the selection process and
the reason assigned by it for holding the select list to be bad
and invalid were quite unsustainable in law. Learned Counsel
submitted that though· the pleadings in the writ petition E
challenging the select list were found by the High Court as scanty
yet it proceeded to consider the select list by examining the
official records summoned by it. Mr. Goswami submitted that
the only reason assigned for holding the select list to be bad
was contained in paragraph 27 of the judgment which is as
follows:                                                           F

     "The unselected candidates have also raised a question
     with regard to the validity of the selection process. Through
     the writ petitions filed in this regard do not contain any
     elaborate pleadings, as the records in original had been G
     called for and placed before the Court and the same has
     been duly perused, we are of the view that it will only be
     correct for the Court to record its views in the matter on
     the basis of the original records made available for scrutiny
     of the Court instated of non-suiting the petitioners on the H
    1152       SUPREME COURT REPORTS                  [2009] 2 S.C.R.


A          ground of the scanty pleadings contained fn the writ
                                                                          J
           petitions."
           13. Having examined the records the High Court recorded
    its reaso·n for striking down the select list as follows:
B          "In this regard we have considered the marks awarded to
           the candidates who had undergone the selection and on
           such consideration we find that each of the selected
           candidates has been given very high marks in the interview
           segment and it is only on account of such high marks in
c          the interview that the said candidates have been selected.
           While it is correct that the selected candidates have also
           secured equally high marks in the written test we have
           also noticed that other candidates who had secured equally
           high and even higher marks in the written test in that the
D          selected candidates have fared very poorly in the interview.
           The scrutiny of the marks awarded to the successful and
           unsuccessful candidates reveal a distinct pattern i.e. those   "
           who have been selected have secured very high marks in
           the interview whereas those unselected have secured very
           low marks in the interview held. Such a uniform pattern, in
E
           our considered view, is unnatural and in spite of our best
           efforts we have not been able to persuade ourselves to
           accept the final result of the selection. We, therefore, set
           aside the select list dated 24.6.2003 and direct the posts
           in question to be readvertised ........... ".
F
            14. We are unable to appreciate or even follow the
    reason assigned by the High Court for condemning the select
    list. In case, in viva voce very high marks were given to
    candidates who secured low or very low marks in the written
G   test that might be a ground for suspicion. But if the candidates
    securing high marks in the written test were able to secure
                                                                          ~
    equally high marks in viva voce we are unable to find any
    anomaly. After all there has to be some difference between the
    selected and the unselected candidates. Unfortunately the High
    Court has not made clear the 'distinct pattern' it was able to
H
         SRI JYOTISH KAIBORTA & ORS. V.                    1153.
   THE STATE OF ASSAM & ORS. [AFTAB ALAM, J .. ]

discern from a scrutiny of the marks awarded to the candidates.    A
The selection records are not before us and we do not hc;ive the
benefit of its perusal but we are clearly of the view that the
approach of the High Court was quite contrary to law laid down
by this Court. In Sadananda Halo and Others vs. Momtaz Ali
Sheikh and Other, 2008 (4) SCC 619 this Court, in Paragraph        8
49 of the judgment, observed as follows:
     "49. Learned Single Judge in his judgment has observed
     that as per the report of the amicus curiae the selected
     candidates got higher marks in viva voce ranging between
     30 and 41 marks. In our opinion this has hardly any effect C
     and merely because the selected candidates got the higher
     marks ranging between 30 to 41 marks that by itself could
     be no reason to reject the selection. We have extensively
     referred to the comments made by the learned Single
     Judge in the earlier part of the judgment where the learned D
     Judge has in fact recorded his satisfaction for the printed
     charts and more particularly about their authenticity. The
     learned ·Judge has also expressed his satisfaction with
     the procedure adopted. There is hardly any reason given
     by the learned Single Judge excepting that the benchmark E
     of 250 candidates had already been crossed."
      15. Paragraphs 58 and 65 of the judgment are also relevant
for the present and are reproduced below:
     "58, It is· settled law that in such writ petitions a roving F
     inquiry on the factual aspect is not permissible. The High
     Court not only engaged itself into a non-permitted fact-
     finding exercise but also went on to rely on the findings of
     the amicus curiae, or as the case may be, the scrutiny
     team, which in our opinion was inappropriate. While testing G
     the fairness of the selection process wherein thousands
     of candidates were involved, the High Court should have
     been slow in relying upon such microscopic findings. It
     was not for the High Court to place itself into a position of
     a fact-finding commission, that too, more particularly at H
    1154       SUPREME COURT REPORTS                     [2009] 2 S.C.R


A          the instance of those petitioners who were unsuccessful
           candidates. The High Court should, therefore, have
           restricted itself for the Selection Committee and also in
           the process assumed the role of the respondents.
           Unfortunately, the High Court took it upon itself the task of
B          substituting itself for the Selection Committee and also in
           the process assumed the role of an appellate tril;>unal which
           was, in our opinion, not proper. Thus, the High Court
           converted this writ petition into· a public interest litigation
           without any justification."          ··
c         "65> We also do not approve· of the approach adopted by
        . the learned Single Judge of the High Court as going all
          the way into the facts and the microscopic details not via
          the pleadings of the parties but on" the· basis of an
          unnecessary investigation. We also disapprove of the logic
D         of relying on the findings arrived at only on the basis of
          sample· survey~ Such selection of _large number of
          candidates could not have been set aside on the basis of
          same survey. NO evidence was available before us as to
          the proportion of this so called "sample survey""
E
         16. To the same effect are two earlier decisions of the Court
    in Madan Lal and Others. vs. State of J & K and Others, 1995
    (3) SCC 486 Paragraphs 10 and 17 and in Ashok Kumar Yadav
    vs. State of Haryana 1985 (4) SCC 417 Para.21.

F        17. In view ofthe discussion made abovewe are unable
    to sustain the decision of the High Court in so far as it held the
    select list dated June 24, 2003 as invalid.
        18. We are informed that following the direction of the High
  Court a fresh selection process has beeri initiated to fill up the
G vacancies of LDAs in the Transport Department. But that may
  not affect the relie.f claimed by the appellants in Civil Appeal
  arising from-SLP(C) No.12129/2006. On January 10, 2008 this
  Court directed that 12 posts of LDA should be kept vacant until
  further orders. CivilAppeai arising from SLP(C) No.12129/2006
H is accordingly allowed and. the concerned authorities are
         SRI JYOTISH KAIBORTA & ORS. V.                     1155
   THE STATE OF ASSAM & ORS. [AFTAB ALAM, J.. ]

directed to fill up the 12 vacancies of LDAs in the Transport A
Department from the select list dated June 24, 2003 strictly 'in
order of merit ( six from the selected candidates and six from
the waiting list). In case any of the candidates from the select
list dated June 24, ·2006 does not turn up in response to the
offer the vacancy would be filled up from the fresh selection taken B
up as per the High Court direction.
       19. The claim of the other six appellants is not based on
the select list dated June 24, 2003. Counsel appearing on their
behalf referred to a list of November 20, 2001 containing the
names of 42 candidates. The names of the six appellants are C
at serial Nos. 20, 24, 26, 31, 34, and 39. The last two candidates
are said to belong to OBC category. According to the six
appellants, the select list dated June 24, 2003 was drawn up on
the basis of the earlier list of 2001 in which their names also
figured. It was submitted on their behalf that there are sufficient D
vacancies against which they too could be accommodated. We
are unable to see how the six appellants can be granted any
relief. In the first place the counsel appearing for the State of
Assam denied the existence of any select list dated November
20, 2001. Secondly on their own showing the appellants ate E
much below even in that list and no direction for their appointment
can be given in disregard of the candidates above them even
in that Ii.st. The claim of these six appellants thus has no merit or
substance. The two appeals arising from SLP(C) No.12766 of
2006 and SLP (C) No.17979 of 2006 and I.A. No. 5/2009 (fil$d F
in SLP (C) No.1797.9/2006) are accordingly dismissed.

B.B.B.                                    Appeals disposed of.