N K KALITA Vs. STATE OF ASSAM

JUDGEMENT

(1.) The petitioner is working as Chief Consultant in the Bhubanswar Borooah Cancer Institute, hereinafter referred to as the "BBCI". He had joined the BBCI as Senior Assistant Radiotherapist in the year 1983. Eventually, he was promoted to the post of Chief Consultant on consideration of the meritorious services rendered by him. In this petition, he has sought for appropriate directions for appointment to the post of Director, BBCI, from the select list prepared and recommended by the Search Committee, and also for directions calling upon the respondents not to initiate selection process afresh in pursuance of the subsequent advertisement dated 31.7.2002. The Court by the order dated 23.8.2002 issued rule and passed the following interim order :-

(2.) The respondent No.2, Commissioner & Secretary to the Govt. of Assam in the Family Welfare Department issued an advertisement on 2.9.2000 inviting applications for the post of Director, BBCI which fell vacant on retirement of Dr. GG Ahmed. The petitioner applied for the post and submitted his application in the standard form with all requisite particulars. The petitioner was interviewed by the Search Committee constituted by the government on 5.3.2001 along with two other candidates. The fourth candidate was interviewed on 2.5.2002. The Management Council in its meeting dated 3.5.2002 considered the recommendations of the Search Committee, but the proceedings thereof were not made public. The petitioner, who had faired well, was expecting selection and appointment. Eventually, he was informed that the Management Council did not recommended any candidate empanelled by the Search Committee as none of them was found suitable to hold the post of Director. The impugned advertisement inviting applications for the post of Director was issued on 31.7.2002. By that time, the petitioner also came to know that he had topped the list of selected candidates prepared by the Search Committee. By the letter dated 11.7.2002 the Superintendent (Administration), BBCI informed the petitioner that the Management Council did not recommend any of the persons selected by the Search Committee as they found none of them suitable to hold the post. However, the petitioner came to know from reliable source that the Management Council rejected the selection of the petitioner in the meeting held on 3.5.2002 on the ground that there was a vigilance enquiry against him in 1993 and this was not placed before the Search Committee at the time of selection. According to the petitioner, there was no vigilance enquiry against him at any point of time and his promotion to the post of Chief Consultant in the year 1997 nullifies the plea of vigilance enquiry. According to the petitioner, he is duly qualified to hold the post of Director having varied experience in the medical profession. Blaming the respondent No.2 of hatching a conspiracy against him this petition has been filed for appropriate directions for his appointment.

(3.) The respondent No.4 in his affidavit, controverted the avertments made in the writ petition. According to the respondent No. 1, the impugned advertisement dated 31.7.2002 and the initial advertisement dated 2.7.2000 were issued for appointment of Director on contract and tenure basis. No. indefeasible right has accrued to the petitioner for his appointment as Director for the reason that he had appeared in the earlier selection process. The petitioner is not eligible to get a Writ of Mandamus for his appointment on contractual service which has no nexus with direct recruitment or promotion. According to the answering respondent, the process of selection has already been completed in pursuance of the impugned advertisement and, in the interest of the public in general and for the patients in particular, the post of Director has to be filled-up by a competent person. In para 5 of the affidavit, it is submitted that on receipt of a complaint forwarded by the Govt. of Mizoram, the then Director of the Institute served show cause notice dated 7.4.93 on the writ petitioner. The reply given by the writ petitioner in his letter dated 15.4.93 was not found to be satisfactory and, as such, the Director by the letter dated 17.5.93 (Annexure-5) warned the petitioner to be careful in future. The official records reveal that the petitioner had admitted his guilt and prayed for mercy in the matter. Besides, it is contended that the vigilance enquiry of 1993 was not brought to the notice of the Search Committee and that the Search Committee conducted the selection contrary to the guidelines formulated by the Management Council for which the Management Council decided not to accept the recommendations. Accordingly, the Management Council resolved that the process of selection be started denovo and fresh advertisement be issued. The Board of Directors in its meeting held on 28.5.2002 also approved the resolution of the Management Council. It was in this context, the impugned advertisement dated 31.7.2002 was published in search of a suitable candidate to man the post of Director.