Gauhati High Court Sets Aside Appointment Of Department's Joint Director's Daughter Selected Solely On Basis Of Viva

The Gauhati High Court recently quashed an appointment order of a Senior Treatment Supervisor (STS) on the ground that the said appointment was made solely on the basis of marks obtained by the candidate in the viva voce and therefore illegal.

The division bench comprising the Chief Justice Sandeep Mehta and Justice Kardak Ete observed:

“The Hon’ble Supreme Court in the case of Praven Singh vs. State of Punjab reported in (2000) 8 SCC 633, had observed that there is always a room for suspicion for the common appointments if the oral interview is taken up as the only criteria. Though the interview undoubtedly is a significant factor in the matter of appointment, it plays a strategic role but it also allows creeping in of a lacuna rendering the appointment illegitimate. Obviously it is an important factor but ought not be the sole guiding factor since reliance thereon only may lead to a sabotage of the purity of proceedings.”

The bench was hearing an intra court appeal against the judgment and order dated July 18, 2018 passed by the Single Judge whereby the writ petition preferred by the appellant/writ petitioner was dismissed.

In the said writ petition, the appellant/petitioner challenged the selection and appointment order dated May 29, 2015 of respondent no. 7 for the post of Senior Treatment Supervisor (STS) at Dhemaji T.B. Cell, Dhemaji District, Assam.

The case of the appellant/petitioner was that on March 12, 2015, the Directorate of Health Services, Government of Assam had issued an advertisement inviting applications for filling up of various posts including sixty-nine posts of STS in different Districts/T.B. Cells in the State of Assam.

In the advertisement qualification and the salary attached to each post were mentioned but did not indicate the procedure that would be adopted for selection of the candidates. Pursuant to the said advertisement, the appellant/petitioner applied for the post of STS in respect of Dhemaji TB Cell and he participated in the written examination and scored 86 marks.

It was the contention of the appellant/petitioner that the respondent no. 7 who had scored only 47 marks in the written examination was selected for one of the posts of STS solely on the basis of her score in the viva voce test and was awarded a gross total of 62 marks against 57 marks obtained by the appellant/petitioner.

Aggrieved of the said selection and appointment of respondent No. 7, the appellant/petitioner approached the High Court by filing writ petition which was dismissed by the Single Judge vide impugned judgment and order dated July 18, 2018 on the ground of non-joinder of necessary parties and omission to challenge the resolution dated March 12, 2015 as well as on failure to substantiate the allegation of malafide.

Hence, the appellant/petitioner preferred the present writ appeal.

The Counsel appearing for the appellant/petitioner submitted that no criteria for selection was mentioned in the advertisement notice and the respondent authorities had secretly evolved a selection criteria whereby it was decided that the marks obtained in the viva voce test would only be taken into account for final selection of the candidates and accordingly, prepared the merit list on the marks obtained in the viva voce test so as to suit their preferred candidate.

It was further argued that in the advertisement dated March 12, 2015 nowhere stipulated that viva voce marks would be the sole criteria for final selection for the posts in question. The resolution dated March 12, 2015 was never published and as such, the petitioner had no occasion to know regarding the internal resolution dated March 12, 2015, which made viva voce to be the sole criteria for final selection and as such the petitioner did not or rather could not challenge the said resolution dated March 12, 2015.

The Counsel appearing for the respondent authorities contended that the appellant/petitioner has failed to implead the necessary parties and also has not challenged the resolution dated March 12, 2015.

The Court noted that when the written examination was conducted and select list was published thereafter, it would be absolutely not permissible for the respondent authorities to take a resolution by way of minutes of the meeting to decide that the final selection would be made purely on the basis of the viva voce marks.

It was further observed by the Court that the resolution dated March 12, 2015 which was also not based on any Government notification or rules had been drawn so as to facilitate the selection of respondent No. 7 on extraneous consideration who is the daughter of Joint Director of Health Services -cum- District T.B. Cell, District Health Society, Dhemaji District.

It was highlighted by the Court that despite the meritorious performance of the appellant/petitioner in the written test, the unusually high viva-voce marks awarded by almost all members of the interview board had entirely tilted the balance in favour of the respondent No. 7 since the mark in the written test were ignored altogether by taking a resolution dated March 12, 2015 obviously to favour the respondent No. 7.

“In the present case, illegality is writ large and it is so glaring on the face of it for having recourse to resolution dated 12.03.2015 which in turn has undeservingly favoured the respondent No. 7 evidently not in accordance with principles governing the selection process which is wholly impermissible under the law. Therefore, in our considered view extraneous consideration has played a prominent role in the matter of selection of respondent No.7, a candidate who performed so poorly in the written test and was made qualified, selected and appointed by taking recourse to a procedure not supported by any service Rule,” the Court said.

Thus, the Court set aside and quashed the selection and appointment order of the respondent no. 7.

The Court further directed that the appellant, who secured the top position on merit in the written examination, will be offered appointment on the second post of Senior Treatment Supervisor in the District T.B. Cell, Dhemaji, in case the said post is still vacant.

“If the appellant has crossed the age limit for appointment, he shall be granted appropriate age relaxation as well,” the Court said.

Citation: 2023 LiveLaw (Gau) 97

Case Title: Dipankar Dihingia v. The State of Assam & 6 Ors.

Case no.: WA/337/2018

Click Here To Read/Download Judgment