Case title: RAIHANA AKHTAR VS THE STATE OF ASSAM
Case no.: WP(C)/3534/2017
Dated on: 3RD May 2024
Quorum: Hon’ble. MR Justice SANJAY KUMAR MEDHI
FACTS OF THE CASE
The controversy raised in this petition filed under Article 226 of the Constitution of India is in connection with a recruitment process initiated by the Assam Public Service Commission (APSC) for different posts of Lecturers in the Nursing Colleges of Assam. The petitioner has structured his petition on two principal grounds, firstly, violation of the reservation policy and secondly, the mode adopted for such selection.
ISSUES
- Whether the petitioner’s claims regarding the selection process are factually and legally tenable based on the evidence and submissions provided.
- Whether the selection based solely on viva-voce was legitimate given the number of applications received and the stipulations in the advertisement.
- Whether the Assam Public Service Commission (APSC) violated the reservation policy in the selection process for the post of Lecturer in the O&G Department in Nursing Colleges of Assam.
LEGAL PROVISIONS
Constitution of India
Article 226 of the Constitution of India: Provides the High Courts with the power to issue certain writs. The petitioner invoked this article to challenge the recruitment process conducted by the Assam Public Service Commission (APSC). Article 226 allows individuals to seek judicial review of any action by the state or public authorities that they believe violates their fundamental rights or legal entitlements.
CONTENTIONS OF THE APPELLANT
Shri Bhuyan, learned counsel for the petitioner has submitted that amongst the various posts advertised, there were 5 nos. of posts of Lecturer in the O&G Department for which, the petitioner had applied. Out of the 5 vacancies, 3 were for unreserved category and 2 for reserved category. It is not in dispute that the petitioner belongs to the unreserved category. The petitioner on her application, was issued a call letter on 30.08.2016 and the interview was scheduled on 05.09.2016 in which, the petitioner had appeared, However, in the results published, the petitioner was not amongst the selected candidates. Shri Bhuyan, learned counsel for the petitioner has submitted that the communication towards declaration of results dated 24.03.2017 would indicate that only one general category candidate has been selected for appointment as Lecturer in O&G Department and the 4 other vacancies have been filled up by reserved category candidate. The learned counsel has, however, fairly submitted that from the affidavit-in-opposition filed by the APSC, it transpires that two of the selected candidates who belong to reserved category candidate have been. treated as general category on account of their merits. He, therefore, contends that he would not press upon the said ground of challenge. Shri Bhuyan, learned counsel, however, has strenuously canvassed that the procedure adopted for selection is not in terms of the stipulations made in the advertisement. By referring to the mode indicated in the advertisement, it is submitted that the selection was to be held by written test/interview and it stipulates that the Commission may short-list the candidates either on the basis of the marks obtained in the qualifying academic examination required for the post in question or by holding screening test (multiple choice objective type written examination) which would be notified. It is submitted that none of the procedures were adopted and only on the basis of viva-voce, the selection has been done which is not as per the mode indicated in the advertisement. The learned counsel, accordingly submits that the selection is to be interfered with and the candidature of the petitioner be considered in proper perspective.
CONTENTIONS OF THE RESPONDENTS
Shri Mahanta, learned Senior Counsel representing the APSC, however, has submitted that even the existing ground of challenge is, both factually and legally untenable. He submits that the interpretation of the mode given on behalf of the petitioner is not correct. It is submitted that under heading ‘C’, the precondition for going for short listing the candidates on the basis of the marks obtained in the qualifying academic examination or by holding a screening test is that the number of applications should be large. By drawing the attention of this Court to the affidavit-in-opposition filed by the APSC on 06.01.2024, the learned Senior Counsel has submitted that for the 5 nos. of vacancies in the post of Lecturer O&G, the total number of applications received were 16. It is submitted that the said number of 16 is even less than the number which is envisaged for maintaining a ratio of 1:6. It is accordingly submitted on the behalf of the APSC that there was no requirement for adopting either of the two modes for short listing and the candidates were accordingly interviewed based upon which, the selection has been made. It is further submitted that the mode of selection as such, by interview is not the subject matter of challenge as the petitioner had participated in the said selection process without any objection. Shri Borah, learned Standing Counsel, Health Department while endorsing the submissions made on behalf of the APSC has further submitted that the APSC is the statutory body through which selections are made and there does not appear that there has been any anomalies in the said selection. He accordingly prays for dismissal of the writ petition.
COURT’S ANALYSIS AND JUDGEMENT
On consideration of the submissions made and the materials placed on record, this Court has noted that the first ground regarding the allegation of violation of the reservation policy has appeared to be factually untenable in view of the facts projected in the affidavit-in-opposition of the APSC that two candidates of reserved category has been appointed in the vacancy meant for unreserved category on the basis of their merits. The aforesaid provision of the advertisement has clearly indicated the mode of selection as written test/interview. The said heading further stipulates two options of short listing the number of candidates on the basis of the marks obtained in the qualifying academic examination or by holding screening test. It is, however, noted that either of the two options are to be exercised only when the application received is large. In the instant case, admittedly, for 5 nos. of vacancies, the total number of applications received is 16. Therefore, there was no requirement at all for adopting either of the two options and accordingly, the candidates who had applied were subjected to a viva-voce test. The petitioner having participated in the said selection process in the mode adopted by the advertisement without any demur will not be allowed to challenge the mode that too, on a ground which apparently appears to fallacious. This Court is of the considered opinion that the grounds of challenge structured is both legally and factually untenable and accordingly, the writ petition is dismissed.
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Judgement Reviewed by – HARIRAGHAVA JP
