IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.1252 OF 2009 (Arising out of S.L.P(C) No.12129 of 2006)

Sri Jyotish Kaiborta & Ors. …… Appellants

Versus

The State of Assam & Ors.        …… Respondents

(With I.A.No.1 of 2007- for transposition of name of applicant)

WITH CIVIL APPEAL NO.1253 OF 2009

(Arising out of S.L.P(C) No.17979 of 2006)

Sri Dip Borah & Anr. …… Appellants

Versus

State of Assam & Ors.        …… Respondents

AND CIVIL APPEAL NO.1254 OF 2009

(Arising out of S.L.P(C) No.12766 of 2006)

Sri Dhaneswar Deka & Anr. …… Appellants

Versus

State of Assam & Ors.        …… Respondents

J U D G M E N T

AFTAB ALAM,J.

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 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 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.  

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 the vacancies in

the posts of Lower Division Assistant (LDA) were bad and the select list, dated June

24, 2003 was illegal and consequently set it aside.   

4. The  controversy  relates  to  appointments  to  the  vacant  posts  of  Lower

Division Assistants in the Transport Department, Government of Assam for which

the concerned authorities, following a selection process, prepared the select 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. 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 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  in  the  posts  of  LDA  in  the  Transport

Department, Govt. of Assam, the selection process 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 to go into those details. Suffice it to note that

on the  basis  of  a  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

eight appellants in Civil Appeal arising 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 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 in

W.P. (C) No. 8815 of 2004 filed by one Inamul Hoque (who was at serial No.7 in that

select list). Earlier to 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 and sought direction for

their appointment on the basis of some 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 claimed by the petitioners of that case

and  that  part  of  the  judgment  is  not  under  appeal  before  us.  In  yet  another

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  to the select list

dated June 24, 2003 and the claim of the selected candidates for appointment based

on that list.

8. As against that there was a counter claim for regularization as LDAs by

some casual employees working in 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

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 LDA in the transport department came to be grouped together

and in view of  the  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 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 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 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  Office Memorandum dated 20.4.1995,

 (2) However,  as  a  large  number  of  regularisations  of  different

categories of employees have already been effected in terms of the Office  Memorandum  dated  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 20.4.1995, and/or such other judicial order(s) for regularization, passed,   in this regard,  but has not yet been implemented.

(3) The  Office  Memorandum  dated  20.4.1995  does  not  cover  any category of employees other than Muster 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  employees  working  in  the  different departments  of  the  State  Government.  Such  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 Grade III 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  the select  list dated 24.6.2003 is found to be illegal 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  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 finding at serial No.5

in regard 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.12129/2006 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 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:

“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  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 ground of the scanty pleadings contained in the writ petitions.”

13. Having  examined  the  records  the  High  Court  recorded  its  reason  for

striking down the select list as follows:

“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  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 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 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. ……….”.

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 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  discern  from  a  scrutiny  of  the  marks  awarded  to  the

candidates. The selection records are not before us and we do not have 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 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  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 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 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 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 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  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 substituting itself for the Selection Committee and also in  the process  assumed the role of  an appellate tribunal  which was, in our opinion, not proper. Thus, the High Court converted this  writ  petition  into  a  public  interest  litigation  without  any

justification.”

“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 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””  

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.  

17. In view of the discussion made above we 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 been initiated to fill up the vacancies of LDAs in the Transport

Department.  But  that  may not affect  the relief  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. Civil Appeal arising

from SLP(C) No.12129/2006 is accordingly allowed and 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 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 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 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 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 are 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 list.

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 (filed in SLP (C) No.17979/2006) are accordingly dismissed.  

......................J.       [Tarun Chatterjee]

......................J.       [Aftab Alam]

New Delhi, February 25, 2009.