Jayanta Kumar Biswas, J. - (1.) THE two Petitioners in this writ petition dated September 1, 2008 are questioning the sixth Respondent's recruitment and appointment by promotion to the post of Lower Grade Clerk in the establishment of the District & Sessions Judge, A & N Islands.
(2.) THE recruitment in question was governed by the Andaman and Nicobar Islands District and Sessions Judge and Subordinate Courts, Clerical (Group 'B', & 'C' (Non -Gazetted)) and Group -'D' Services Recruitment Rules, 2004. In column 12 of Schedule -VII to the rules it has been provided that recruitment by promotion to the post of Lower Grade Clerk shall be made from among the Group -'D' employees of the establishment of the District & Sessions Judge with regular service of 5 years in the grade and possessing the educational qualifications prescribed for direct recruits. The method of recruitment as mentioned in column 11 is 90% by direct recruitment and 10% by promotion on the basis of departmental test. The educational qualifications prescribed for direct recruits have been mentioned in column 8 of the schedule, and it is Senior Secondary School Certificate Examination (10+2) or its equivalent from a recognized Board/University. The other essential qualifications for direct recruits are: (i) the candidate should be able to type 30 words p.m. in English or 25 words p.m. in Hindi; and (ii) he should qualify in the written examination to be conducted by the duly constituted selection committee/SSC. For the direct recruits, the desirable qualification is working knowledge in computer. In the present case, the recruitment process for filling the sole vacancy was initiated by issuing an employment notice dated August 22/25, 2005. The cut off date for submitting applications was fixed for September 25, 2005. Though the notice was issued and the Petitioner and one R. Gurumurthy applied for the post, no further step was taken to proceed with the recruitment process. On July 24, 2008 a supplementary notice was issued inviting applications once again. The cut off date was fixed for August 4, 2008. All the educational and other qualifications prescribed for the direct recruits were mentioned in both the notices as the essential and desirable qualifications for the post. In response to the supplementary notice four candidates including the second Petitioner applied for the first time. Thus the total number of candidates who applied for the post became six. All the six candidates were invited to take the written test, typing test and viva, which all were conducted on August 23, 2008. While all the six candidates qualified in the written test, none of them, however, qualified in the typing test. After interviewing the candidates, the selection committee, constituted according to the rules, prepared the merit list on August 26/27, 2008 showing the respective merit positions of all the six candidates. The sixth Respondent occupied the first position. Accordingly, he was appointed to the post by promotion on August 29, 2008.
(3.) MS . Ganguly, Counsel for the Petitioners, submits that the supplementary notice was issued only to accommodate this sixth Respondent who was not eligible to apply in response to the main notice. Her next submission is that even if it is accepted that the supplementary notice could be lawfully issued, the recruitment and appointment of the sixth Respondent cannot be sustained for the simple reason that admittedly none of the candidates taking the typing test qualified. According to her, when all the six candidates failed to qualify in the typing test, and the Petitioners, having working knowledge in computer, were senior to the sixth Respondent, the only course that ought to have been followed by the authorities was to give an opportunity to all the six candidates to take the typing test twice over. Her contention is that in terms of the employment notice it was mandatory for one to qualify in the typing test.;