WP(C) 1324/2010 BEFORE THE HON’BLE MR. JUSTICE IA ANSARI JUDGMENT & ORDER [ O R A L ] The decision of the Government not to act upon and cancellation of the s elect list of candidates for undergoing training for completion of the course of General Nurse Midwives (hereinafter referred to as ’GNM’) prepared by the Joint Directors, Health Services, Government of Assam, of some of the districts I Ass am, and forwarded by them to the Director of Health Services, Government of Assa m, and the Government’s decision to go for a fresh selection on the basis of new guidelines issued for making the selection and issuance of advertisement, dated 08-10-2009, by the Director of Health Services, Government of Assam, inviting a pplications for selection and appointment to the posts of GNM, form the subject- matter of challenge in all these four writ petitions. 2. As all these writ petitions are based on identical facts, involving comm on questions of law and seek substantially same directions, all these writ petit ions have been heard together on the request made by the learned counsel for the parties concerned and are being disposed of by this common judgment and order. 3. I have heard Mr. AM Mazumdar, learned Senior counsel for the petitioners in WP(C) Nos. 3735/2009 and 4686/2009, and Mr. D Saikia, learned counsel for th e respondents. 4. The facts, which are material for the purpose of effectively disposing o f the present set of writ petitions, are not in dispute and are, therefore, set out, in brief, as under: For the 27 districts in Assam, there are altogether 15 institutions for conducting GNM training course. In terms of the notification, dated 16-06-2008, issued by the Government, the total number of seats, in these 15 institutions, i s 912. Pursuant to the Government’s decision to select persons, for undergoing t raining in the said institutions, by holding district-wise selection processes s ubject to finalization of the select lists at the State level, an advertisement, inviting applications from unmarried female candidates with prescribed qualific ation and age limit were invited for admission into 3 ‰ years training course fo r GNMs, for the sessions 2008-09, for 912 sanctioned seats, was issued by respon dent No. 2, Director, Health Services, Government of Assam, the last date for su bmission of the applications being 28-07-2008. Applications having been received from various candidates, selection tests were held in terms of the advertisemen t, which provided that the candidates would have to appear in different intervi ew Boards, at their own expenses, at such time and place as may be notified in d ue course, making it, however, clear that the interviews would be held in the of fice of the Joint Director of Health Services in respect of the district headqua rters and in the districts, where there is a medical college, the candidates wou ld have to appear for interview in the medical college hospitals accordingly. So me of the persons, who came to be selected in the said process of selection from various districts, such as, the districts of Barpeta, Dhemaji, Kamrup, Darrang, Morigaon and Baska, are petitioners in these writ petitions. The Government did not, however, accept and act upon the select lists, which were prepared and for warded to the Director of Health Services by the Joint Directors of Health Servi ces throughout the State and decided to go for a fresh selection on the basis of fresh guidelines issued, in this regard, on 18-07-2009. In terms of the decisio n of the Government, and in order to make selection in accordance with the guide lines, which were so issued, an advertisement was published on 08-10-2009. While the petitioners, in WP(C) No. 3735/2009, have challenged the decision of the Go vernment not to act upon the select list, prepared by the Joint Director of Heal th Services, Barpeta, and to go for a fresh selection process, WP(C) No. 4686/20 10 is the writ petition, wherein the said petitioners have challenged the subseq uent advertisement, dated 08-10-2009, aforementioned. In WP(C) No. 4686/2009, an interim order was made on 05-02-2010, restraining the respondents from acting u pon the select list made pursuant to the impugned advertisement, dated 08-10-200 9, without leave of the Court. As far as WP(C) No. 681/2010 is concerned, the pe titioners are some of those persons, who were selected in terms of the first adv ertisement, dated 11-07-2008, and they have challenged not only the Government’s decision to go for a fresh selection process, but also the subsequent advertise ment, dated 08-10-2009. Similar is the position in WP(C) No. 1324/2010, wherein some of the candidates, coming from the districts of Kamrup, Darrang, Morigaon, Baska and Barpeta, have put to challenge the Government’s decision not to act up on the select list and also the Government’s decision to publish the subsequent advertisement, dated 08-10-2009. 5. Apart from the counter affidavits, which the respondents have filed in W P(C) No. 3735/2009, the respondents have also filed miscellaneous applications i n WP(C) Nos. 4686/2009, 681/2010 and 1324/2010, seeking to get vacated the inter im directions, which were passed restraining the Government from acting upon the fresh select lists prepared pursuant to the subsequent advertisement, dated 08- 10-2010, these miscellaneous cases having given rise to Misc. Case Nos. 2113/201 0, 2114/2010 and 2112/2010 respectively. The averments, made in these miscellane ous applications, are, on the request made by the learned counsel for the respo ndents and having not been objected to by the learned counsel for the petitioner s, treated as additional counter affidavit in the writ petition. 6. In the backdrop of the above material facts, let me, now, turn to the me rit of the present writ petitions. While considering the merit of this writ peti tion, it needs to be noted that in their affidavit-in-opposition, fileds on 18-1 1-2009, in WP(C) No. 4686/2009, the respondents have, in support of their decisi on not to act on the select list aforementioned, which was prepared pursuant to the first advertisement, dated 11-07-2008, and to hold fresh selection process, contended, inter alia, that the select list, which had been prepared by the Join t Director, was not a final select list inasmuch as the same was subject to the final decision of the Government and the said select list, having not been final ized, the petitioners have not derived any right for obtaining any direction for their appointment on the basis of the said select list. 7. In effect, what the respondents contend is that the select lists, prepar ed by various Joint Directors, at the District level, are not final select lists and vest, therefore, no right in the petitioners to contend that the Government shall act upon the lists so prepared. Yet another and more important reason, wh ich the respondents have assigned, at Para 6 of their said affidavit, is that th ey had received complaints from various quarters that the selection criteria, fo llowed in various districts, were not uniform and that the mandatory provisions for reservation of 3% for physically challenged candidates had not been followed . The petitioners, while dealing with the averments made by the respondents in t he said Para 6 of their affidavit-in-opposition, have not, in their affidavit-in -reply, disputed the fact that the selection criteria, followed in various distr icts, were not uniform nor is it disputed that the reservation, which ought to h ave been made in respect of physically disabled persons, has not been done. In t he face of the undisputed fact that the selection criteria, in different distric ts, were different, the decision of the Government not to act upon such a select ion list cannot be said to be irrational, unreasonable or arbitrary. 8. Coupled with the above, though the Government’s decision to go ahead for another selection process has been put to challenge in writ petitions, no speci fic material or fact has been either averred or placed on record indicating that the Government’s decision suffers from any ulterior motive or mala fide. What t he petitioners allege is that the respondents have decided not to act upon the s elect lists merely because the persons, whom the respondents wanted to be includ ed in the select list, were not in the lists. This allegation is not supported b y any specific fact. In the absence of any such specific pleading and/or materia ls, what remains to be adjudged is the question as to whether the Government’s d ecision to hold a fresh selection process on the basis of the guidelines, which the Government has, now, issued, is arbitrary or so unreasonable that the decisi on calls for interference by this Court in exercise of its extraordinary jurisdi ction under Article 226 of the Constitution of India. 9. While considering the question posed above, it may be pointed out that i t is not the case of the respondents that the selection made suffers from mala f ide and/or that the writ petitioners have got their names included by some unfai r means in the select lists. The respondents contend that the fault lies with th e respondents themselves inasmuch as the Government, before directing any select ion process to be held, ought to have prescribed such guidelines as were necessa ry, and ought to have been framed, for a legal, fair, just, reasonable and non-a rbitrary selection. In order to support their decision as to why the Government has decided not to act upon the select lists, which had already been prepared, b ut to go ahead for fresh selection process, the respondents, in their miscellane ous applications, which have been treated, as already indicated above, as the ad ditional counter affidavit, have averred as under: 4. That the applicant most respectfully begs to state that the respondents had to cancel the selection held at the district level in pursuant to the advert isement 11.07.08 as the said selection was vitiated by anomalies. After the inte rview was held in different districts of Assam for selection of candidates for G NM Training Course in pursuant to the advertisement dated 11.07.08, the Governme nt upon examining the records of selection provided by the Director of Health Se rvices, Assam and the Joint Director of Health Services (Nursing), Assam, discer ned the following facts. No Rules or Executive order for regulating the admission into GNM Training Cours e was notified before issuing of the advertisement for admission. District wise quota which would necessarily include reservations for SC, ST, Phy sically Challenged etc was not earmarked in the advertisement. The District wise quota based on some intelligible criteria like population should have been fixe d at the time of advertisement and all Districts Selection Boards should have be en informed accordingly. Therefore instructing the District Selection Boards to send names @ 1:4 or 1: 10 to the Director of Health Services, Assam for final selection is in effect inef fectual. To facilitate transparency in admission, the criteria for admission strictly on merit as per the aggregate marks in the qualifying examination i.e. 10+2 from a recognized education institute (or any specific subjects) was not followed. Although the Joint Director of Health Services of districts were asked to conduc t the selection, no set of instructions were issued by the DHS to the Selection Boards. Therefore the interviews conducted by the different boards may not be at par. Further, it is seen that the interviews boards at the district level allot ted marks out of total 150 in the following breakup. 100 marks: Based on marks obtained at 10+2 level. 10 marks : Candidates passing out of Educational institutes based i n rural areas. 10 marks: Candidates whose immediate family members are not employ ed by the Government. 15 marks: General knowledge. 15 marks : General aptitude. Thus, from the above break up of marks it is evident that 33% of the total marks were based on criteria other than pure merit. Further instead of giving 10 mark s to persons from rural areas and to those having no family members employed und er the Government, the selection board would have given preference to such candi dates and for this preference, weightage should have been fixed by the Governmen t. In other words, the Government upon examining the selection process adopted by t he Director of Health Services pursuant to the advertisement dated 11.7.2008, fo und that there were no Rules or Executive orders to regulate the admission into the GNM training course as a result of which there was no uniformity in the sele ction process adopted by different selection committees in different districts o f the State. In view of that while compiling the State level select List on the basis of district level selection, it was practically impossible to compare the mark / merit position of the various district level Select Lists / merit lists i n order to prepare the Final State Select List. Furthermore, there are 15 GNM in stitutes in the state situated in 15 districts out of a total number of 27 distr icts in Assam whereas prior to the selection, no district wise quota was earmark ed for the selection which should necessarily include reservation for SC, ST, ph ysically challenged persons etc. As such non-earmarking of the district wise quo ta had led to a total chaos in the selection process. Further without proper ear marking of the reservation quota, the direction issued by the Directorate to the district selection committee to send the names at the ratio 1: 10 or 1:4 have f or all practical purpose became non-effective. Another major anomaly found by th e Government was that no set of instructions was issued by the Director of Healt h Services to the Selection committees while attributing marks based on merit. T here was no specific direction as to what mark should be given to a 1st division holder, 2nd division holder or 3rd division holder at the 10+2 level (Total mar ks›100) and as no uniform formula or sets of rules followed by the various distr ict level selection committees, compiling final State Level Select List on the b asis of diverse selection processes adopted by the various district level select ion committees naturally resuly to a total disarray in the selection process. In view of such large scale anomaly in the process, the Government has left with n o other option but to cancel the selection process. It is pertinent to mention t hat the government had to examine the selection process in question on being rep orted about large scale anomalies in the said selection process. Accordingly to rectify the above stated anomalies and to avoid recurrence of suc h anomalies in subsequent selection and with a view to give natural justice to t he candidates and also to facilitate transparency in admission by adopting the c riteria for admission strictly on merit as per the aggregate marks in the qualif ying examination i.e. 10+2 from a recognized educational institution, the Govern ment decided to cancel the earlier selection process held during September, 2008 and to go for a fresh selection. Further, it id stated that the earlier selecti on process was cancelled at the State when result was yet to be announced and se lect list was yet to be published. 5. That the applicant beg to state that after the above stated anomalies th at occurred in the selection of candidates for GNM training held in 2008 came to the knowledge of the Government in the Health Department, the Government keepin g in view the interest of the public and the candidates and in order to give a f air, transparent and equitable opportunity to all, decided to cancel the entire selection held in 2008 and go for a re-advertisement for fresh selection by inco rporating the relevant points as regards to criteria for selection on merit basi s besides giving preference to candidates of rural areas having no government se rvice holder in the family, district wise allotment of seats, constitution of Di strict Selection board for selection at the district level, allotment of candida tes GNM institution wise , reservation norms including reservation for physicall y challenged candidates etc. by issuing an admission order pending formulation o f admission rules. Accordingly, the Government issued an Office Memorandum (OM) vide No.HLA 234/2008/67 dated 18.07.2009 laying down the procures /norms for sel ection of candidates for GNM training. The Government in the Health Department a lso cancelled the entire selection of GNM trainees for the session 2008-09 vide letter No. HLA.234/2008/68 dated 21.07.09 and further directed the Directed of H ealth Services , Assam to take necessary steps for issuing fresh advertisement f or selection of GNM trainees as per the OM dated 18.07.09. 6. That it is stated that the Directed of Health Services, Assam after rece iving the letter dated 21.07.09 issued a notice dated 29.07.09 whereby the entir e selection process held in pursuant to advertisement dated 11.07.08 was cancell ed and it further notified that fresh advertisement will be issued and that pers ons who had already applied and appear in the earlier interview/selection need n ot apply, they will be called for the interview in the dates to be notifies by t he directorate. Thereafter the respondent authorities in continuation and partia l modification of the notice dated 29.07.09 issued a fresh advertisement dated 8 .10.09 whereby applications were called for from unmarried female candidates for admission into three and half year GNM training course for the session 2009-10 for 912 seats. In the said advertisement it was also categorically mentioned tha t the candidates who have applied earlier and paid the required fees need have t o pay the fees again if they wish to appear in the interview. But they will have to apply afresh by obtaining fresh application forms free of cost from the Join t Director of Health Services of the districts. Further in the fresh advertiseme nt besides others, the district wise vacancies for the 3 Y:2 years GNM training for the session 2009-10, as per the 100 point roster, was also mentioned. In pur suant to the advertisement dated 8.1 0.09 interviews were held on the prescribed dates and results of the selected candidates were also published in the newspap er on 15.02.10. 10. This Court has perused the relevant records maintained by the respondent s and the records reveal that the reasons, assigned for not acting upon the sele ct list, prepared pursuant to the 1st advertisement, dated 11-07-2008, are, in t une, with what the respondents have contended in justification of issuance of th e subsequent advertisement, dated 08-10-2010. 11. What emerges from the above discussion is that there was, admittedly, no uniform selection criteria, in various districts, while selecting the candidate s for one and the same post for training as GNMs. Provisions for reservation, in respect of physically disabled persons, had also not been borne in mind, while conducting the selection process. These apart, though there are as many as 27 di stricts in Assam, the training institutes, providing training course for GNM, is barely 15. How to take care of the population of various districts, as against the training institutes available, had not been kept in mind, while ordering the selection process to be undertaken and in pursuance whereof, the first advertis ement, dated 11-07-2008, was issued. The Government, now, deems than it necessar y for the purpose of maintaining transparency that evaluation on the basis of th e qualifying examination, namely, 10+2 from a recognized institute, be given gre ater importance so that selection is based on merit. The District Selection Boar d had, in the present cases, followed the marking pattern as follows: 100 marks: Based on marks obtained at 10+2 level. 10 marks : Candidates passing out of Educational institutes based in rural areas. 10 marks: Candidates whose immediate family members are not employ ed by the Government. 15 marks: General knowledge. 15 marks : General aptitude. 12. The respondents point out that the break up of the allotted marks show t hat 33% of the total marks were based on criteria other than pure merit. The res pondents also contend that the selection criteria ought to have kept in mind tha t preference is required to be given to the candidates from rural areas and to t hose, who have no member of their family employed under the Government. All thes e anomalies, according to the respondents, took place, because there were no spe cific executive instructions as to what selection criteria shall be followed and it is in order to remove these defects and to over come the anomalies, which ha ve so crept in, fresh selection process has been decided to be held as per the g uidelines, issued, in this regard, by office memorandum, dated 18-07-2009, which shall, now, be followed by the Selection Committees, at the district level, in all the districts. The guidelines do not merely lay down the selection criteria, but also constitute the Selection Board for the purpose of making selection. Th e guidelines, as indicated hereinbefore, seek to remove the defects, which the e arlier selection process suffered from. The reasonableness, correctness, legalit y or fairness of the guidelines, which have been issued, on 18-07-2009, are not challenged by any of the petitioners. 13. In the backdrop of the reasons, which the Government has assigned and th e materials, which have been produced before this Court, it cannot be inferred, far less confidently held, that the Government had no good and sufficient reason , when it came to take the decision that the selection process, which had been a dopted pursuant to the first advertisement, dated 11-07-2008, cannot be acted up on and that a fresh selection process shall be held in terms of the guidelines, which have been issued, in advance, by the office memorandum, dated 18-07-2009. The mere fact that the names of the petitioners appear in the select lists, whic h were prepared pursuant to the first advertisement, dated 11-07-2008, does not give them any indefeasible right to be appointed for undergoing the said trainin g. Had the Government’s decision been suffering from any infirmity, legal or fac tual, the subsequent decision, taken by the Government not to act upon the earli er selection process, could have been interfered with. However, in the face of t he fact, as already discussed above, that the Government has given sufficient re asons for its decision not to act upon the select lists, prepared pursuant to th e first advertisement, dated 11-07-2008, and its further decision to conduct sel ection consistent with the guidelines, dated 18-07-2009, aforementioned, the sub sequent advertisement, dated 08-10-2009, cannot but be upheld; more so, when the advertisement itself has clarified that those candidates, who had already appli ed in the last selection process, need not pay application fees, though they are to apply for fresh selection. What is also necessary to point out is that pursu ant to the subsequent advertisement, dated 08-10-2009, the selection tests have been held and the select lists have already been prepared. However, the responde nts have not been above to act upon the new select lists due to the interim dire ctions passed in the writ petitions and, in consequence thereof, the candidates, who could have undergone the training programme, have not been able to take par t in the training programme. 14. Because of what have discussed and pointed out above, this Court does n ot find any merit in the writ petitions. These writ petitions do not, therefore, succeed and shall accordingly stand dismissed. The interim directions, passed, in WP(C) Nos. 4686/2009, 681/2010 and 1324/2010, shall accordingly stand vacated . 15. No order as to costs.