DIPU DAS Vs. MOTIUR RAHMAN

JUDGEMENT

(1.) This is an appeal filed by the three appellants against the judgment and order dated 9/8/1999 of the learned Single Judge in Civil Rule No. 1445/1993.

(2.) The facts relevant for the purpose of disposal of the present appeal briefly are that the respondent No. 1 herein filed a writ petition under Article 226 of the Constitution bearing Civil Rule No. 1445/1993 before the learned Single Judge. The case as made out by the writ petitioner in the said writ petition was that the District & Sessions Judge, Bongaigaon, issued an advertisement in the year 1992 inviting applications for, inter alia, the posts of process server in his establishment. Respondent No. 1 and the three appellants amongst others applied for the said posts and they were called for a written test and interview on 25/4/1993. In the written test, the candidates were asked to write only one essay. A total of 25 marks was allotted for the said written test out of which respondent No. 1 and the three appellants secured 10 marks each. On 25/4/1993 itself an interview was also held. The Interview Board was comprised of the Chief Judicial Magistrate, Bongaigaon, the Sub-Divisional Judicial Magistrate, Abhayapuri, the Munsiff/Magistrate, Bongaigaon, the District and Sessions Judge, Bongaigaon and the Judicial Magistrate, 1st Class, Bongaigaon. A total of 50 marks was allotted for the interview out of which respondent No. 1 secured only 15 marks whereas appellants 1, 2 and 3 secured 24.6, 21.4 and 17 marks respectively. A select list was published on 25.4.1993 in which appellants-1,2 and 3 and respondent No. 1 were placed at serial Nos. 1, 2, 3 and 4 respectively and thereafter appointment orders were issued in favour of appellants-1, 2 and 3 for the posts of process server. Respondent No. 1 challenged the said selection and appointment in the writ petition. Respondent No. 1 alleged in the writ petition that although respondent No. 1 answered all the 17 questions put to him at the interview, he was awarded only 15 marks in a discriminatory manner only with the view to deprive him from getting appointment. The further case of respondent No. 1 in the writ petition was that respondent No. 1 was a graduate and the essay written by him could not be equal in standard with that of the essay written by the appellants who were only Higher Secondary passed candidates, and hence it was not probable that respondent No. 1 and the three appellants would get same marks in the essay. Respondent No. 1 further contended in the writ petition that allotment of 50 marks for the interview and 25 marks for the written test was arbitrary and unjust, and the allotment was made only to ensure that the favourite candidates could be included in the select list in higher position whereas those who were not favourites could be pushed down in the select list by allotting less marks in the interview. By the judgment and order in Civil Rule No. 1445/93, the learned Single Judge held that in a recent decision, the Apex Court has held that for the interview not more than 15% marks can be fixed whereas the marks for the interview allotted in the present case were double the marks allotted for the written test and this should not have been done. By the said dgment and order, the learned Single dge allowed the writ petition, set aside and quashed the selection of the three appellants and directed that the matter be sent back to the Appointing Authority to conduct a fresh selection and to allot 15% of the marks allotted for the written test for interview. Aggrieved by the said judgment and order, the three appellants have filed this appeal.

(3.) On 8.9.1999, the Division Bench while issuing notice in the appeal to the respondents passed an interim order allowing the appellants to continue in service, and on 19.6.2000 the Division Bench admitted the appeal and directed that until further orders the appellants would continue in service. Pursuant to the notice issued in the writ appeal, respondent No. 1 has not appeared. Respondents 2 and 3 appeared through the Government Advocate, Assam. Respondent No. 4 has appeared through Mr B. Chakraborty, advocate, and has filed an affidavit-in-opposition. The case of respondent No. 4 is that he has not appeared in the interview for selection to the three posts of process server and he has been appointed by the District & Sessions Judge, Bongaigaon temporarily as a process server against an entirely different vacant post in the Court of the Munsiff, Bongaigaon, and the said post was not one of the advertised posts for which selection was held. Thus, the question to be decided in the present appeal is whether the selection and appointment of the appellants to the three posts of process server which were advertised were valid in law.