BISWAJIT SURAJ MALAKAR Vs. STATE OF ASSAM

JUDGEMENT

(1.) Heard Mr. U. K. Nair, learned senior counsel assisted by Ms. L. Das, learned counsel appearing for the writ petitioner. Also heard Mr. B. Gogoi, learned Standing Counsel, Health and Family Welfare Department, Assam appearing for the respondent Nos.1 and 4. Ms. P. Sharma, learned Standing Counsel, APSC has appeared for the respondent Nos.2 and 3 and Mr. S. K. Talukdar, learned counsel has appeared for the respondent No.5.

(2.) This writ petition has a chequered history and therefore, the facts leading to the filing of this writ petition is briefly stated hereunder. The writ petitioner and the respondent No.5 are both dentists by profession. On 14/10/2005, the Assam Public Service Commission (APSC) i.e. the respondent No.2 herein had published an advertisement notice inviting applications inter-alia for filling up one post of Demonstrator of Oral and Dental Pathology in the Regional Dental College (RDC), Guwahati. The said post was reserved for SC category candidates. As per the advertisement notice, those candidates who were in Government service or in Government owned undertakings or other similar organizations/Corporations/ Boards/Bodies or in private employments were required to apply through proper channel. It appears that at the relevant point of time, the respondent No.5 was serving as a Dental Surgeon under the Joint Director of Health Services at Golaghat and the writ petitioner was serving as a Demonstrator in the RDC, his appointment having been made under Regulation 3(f) of the Assam Public Service Commission (Limitation of Functions) Regulation, 1951. The petitioner had submitted his application through proper channel. However, in so far as the respondent No.5 is concerned, he had submitted his application directly but by enclosing a No Objection Certificate (NOC) from the Joint Director of Health Services, Golaghat. On conclusion of the selection process the APSC had published the select list dtd. 3/3/2006. In the said select list, the name of the respondent no.5 appeared at Serial No.1 whereas, the petitioner's name appeared at Serial No.2. It further appears that the select list dtd. 3/3/2006 was earlier called into question by filing a writ petition inter-alia alleging that the petitioner being a better candidate in terms of merit, he ought to have been selected at the top of the list. The challenge made to the select list was rejected by this Court. The case number of the proceeding as well as the particulars about the order passed therein are, however, not available on record. Be that as it may, it is the admitted position of fact that the challenge made to the validity of the select list was rejected by this Court, which fact also finds due mention in the common judgment and order dtd. 25/1/2011 passed by the learned Single Judge in WP(C) No.2106/2006 and WP(C) No.5014/2006 preferred by the writ petitioner.

(3.) WP(C) No.2106/2006 was filed by the writ petitioner inter-alia contending that the respondent No.5 not having submitted his application through proper channel i.e. the Commissioner and Secretary to the Government of Assam, Health and Family Welfare Department, his application ought to have been rejected by the APSC. Therefore, the selection of respondent No.5 in the post of Demonstrator of Oral and Dental Pathology in the RDC was illegal. During the pendency of WP(C) No.2106/2006, order of appointment was issued in favour of the respondent No.5 on 19/9/2006 which had led to filing of WP(C) No.5014/2006. As mentioned above, both the aforesaid writ petitions were disposed of by the learned Single Judge by the common judgment and order dtd. 25/1/2011, making an observation that the respondent No.5 had not applied through proper channel, thus remanding the matter to the Government for a fresh decision in the light of the observations made in the said order.