ANANTA RAJKUMAR Vs. GOPA CHOUDHURY

JUDGEMENT

(1.) Judgment and order dated 14.12.2012 passed by the Hon'ble Single Judge in W.P.(C) 3464/2011 allowing the writ petition and setting aside the selection and appointment of respondent No. 4 to the post of Administrative Officer in the establishment of Deputy Commissioner of Dima Hasao district has been challenged in the present writ appeal. The writ petitioner is a Senior Administrative Assistant in the Office of the Deputy Commissioner, Dima Hasao district. The case of the writ petitioner is that on 6/13th July, 2009, the Deputy Commissioner of Dima Hasao district issued an advertisement inviting applications in standard form from eligible candidates to fill up the vacant post of Administrative Officer in his office stating that applicants must have rendered at least 15 years of service in any D.C's establishment having work experience in different branches in general and must be a graduate from any recognized university. The advertisement contained a stipulation that applications should reach the Office of the Deputy Commissioner on or before 05.06.2009 together with a copy of treasury challan for Rs. 5/- for candidates under general category and Rs. 2.50/- for SC/ST candidates. Writ petitioner along with two others submitted their candidature, namely, one D.K. Deb and one A. Teron of the same office. The Deputy Commissioner thereafter by letter dated 13.07.2009 forwarded all the three applications along with all testimonials as well as A.C.Rs. upto date for consideration by the Selection Board. However, selection did not take place within next one year and a half. In the mean time on 21.02.2011, private respondent No. 4 (writ appellant herein) filed an application before the Deputy Commissioner with a request to forward his candidature to the Selection Board for consideration stating that as he was busy in pursuing a correspondence course. Although 19 months had elapsed after expiry of the last date stipulated in the advertisement, yet the Deputy Commissioner not only forwarded the application for consideration by the Selection Board but also recorded a comment certifying that respondent No. 4 has vast experience in almost all branches of the establishment. On 26.04.2011, the impugned notification selecting and appointing the private respondent as the Administrative Officer of the District Establishment of Dima Hasao district was issued. The writ petitioner immediately on 30.04.2011 submitted a representation registering her protest against the selection and appointment of the private respondent and prayed for re-consideration of the decision. The representation having failed to evoke any response, writ petitioner approached this court and not only prayed for setting aside the impugned notification dated 26.04.2011 as to selection and appointment of the private respondent but also made a prayer for appointing her as the Administrative Officer of the establishment in his place.

(2.) The official respondents as well as the private respondent No. 4 filed separate affidavits-in-opposition. The respondent No. 4 pleaded that although writ petitioner is an M.A. but she is much junior to him in the office. Of course, both of them were working as Upper Division Assistant. The respondent No. 4 claimed that stipulation as to last date of submitting application on 05.06.2009 was not mandatory or obligatory. Nowhere in the said advertisement it is stated that last date for submission of such application would not be extended. According to the respondent No. 4, the recruiting authorities had intention to give due weight to the seniority, merit and practical experience of having exposure to working in various branches of the Deputy Commissioner's establishment. It was not mandatory that personal interview must be held but it was proposed so in rare exceptional circumstances. The respondent No. 4 went further in stating that as per records writ petitioner herself filed application on 06.06.2009 after expiry of the prescribed date i.e. 05.06.2009. Taking advantage of working in the office, the writ petitioner subsequently tempered the date by overwriting and made it 05.06.2009. The respondent No. 4 stated that the equitable relief is not available to the writ petitioner from a Court of Equity. By filing an affidavit-in-reply, the writ petitioner stated in paragraph 8 that "she had submitted her application in time and at that time ethnic violence was extensive and the petitioner got her treasury challan after due date as she was employee of the department and the respondent No. 2, as District Magistrate, is well aware of the volatile situation due to ethnic violence". Replying to the recital made in affidavit-in-opposition of the respondent No. 4 that Deputy Commissioner had held an enquiry in regard to alleged overwriting in regard to date of application, the writ petitioner replied that no such enquiry was done to her knowledge and that if done at all, it might have been done behind her back and so it cannot be taken into consideration. The writ petitioner reiterated that her application was forwarded by the Deputy Commissioner on 13.07.2009 and consequently deficiency, if there be any, had been waned. Coming to the belated application of the respondent No. 4, the writ petitioner reiterated that the Deputy Commissioner exceeded his jurisdiction in forwarding application of respondent No. 4 on 21.02.2011. In paragraph 11 of the affidavit-in-reply, writ petitioner raised another objection pleading that the Annual Confidential Report and other service records were not properly scrutinized by the authority and hence appointment of respondent No. 4 was illegal and void which cannot stand the scrutiny by way of judicial review. Respondent No. 2 in the writ petition who is the Deputy Commissioner of Dima Hasao district submitted affidavit in opposition. This affidavit was sworn by an employee in the office of the Additional Deputy Commissioner without, however, disclosing his official designation. In paragraph 5 of this affidavit, it is stated that writ petitioner submitted her application on 06.06.2009 bearing date 05.06.2009 without a copy of treasury challan for Rs. 5/- which was processed by the Deputy Commissioner on the same date. The treasury challan was subsequently submitted on 09.06.2009. The fact as to forwarding 3 (three) applications along with service records and Annual Confidential Record by letter dated 13.07.2009, however, was admitted in the same paragraph of the affidavit in opposition. In paragraph 8, on the other hand, a stand was taken to the effect that as there was no prescribed period of submission of application to the Selection Board, the Selection Board accepted all the applications of eligible persons having requisite qualifications and considered the cases of all the candidates for their selection and 'found the private respondent as the Administrative Officer'.

(3.) The Hon'ble Single Judge after hearing the learned counsel for the parties allowed the writ petition holding that the respondent No. 4 having submitted application beyond time specified in the advertisement and there being no formal extension of time for receipt of application beyond 05.06.2009 by way of any public notice, there was prejudice to other eligible candidates. Had there been a public notice informing all concerned that last date for acceptance of applications was extended, other eligible and intending candidates could have applied and thus they were kept in dark causing prejudice to them. The Hon'ble Single Judge did not accept the explanation for delayed submission to be bona fide or beyond control of the respondent No. 4. Explanation was found to be totally frivolous and delay being not of one or two days but of more than one year and a half, the acceptance of respondent No. 4 was held to be unjustified. The Hon'ble Single Judge also expressed disapproval of the comment of the Deputy Commissioner in favour of respondent No. 4 being a member of the Selection Board. On totality of the aforesaid considerations, the Hon'ble Single Judge held that selection and appointment of respondent No. 4 cannot be sustained and it was accordingly set aside and quashed. This judgment of the Hon'ble Single Judge has been brought under challenge in the present writ appeal.