WP(C) 4047/2011 BEFORE THE HON’BLE MR JUSTICE B. K. SHARMA THE HON’BLE MR. JUSTICE P.K. SAIKIA JUDGEMENT AND ORDER (ORAL) Sharma, J Heard Ms, J.R. Thakur, learned counsel for the petitioner as well as Mr . S.S. Dey, learned Standing Counsel, Gauhati High Court. We have also heard Mr. B. Chetri, learned counsel representing the respondent No.4. 2. The challenge in this writ petition is the selection and appointment of the respondent No.4 as Peon (Grade-IV) in the establishment of District and Sess ions Judge, Jorhat. The grounds on which the challenge has been made are as foll ows :- i) The father of the petitioner having worked in the establishment for long 28 years and he having taken voluntary retirement from service on medical groun d, the case of the petitioner ought to have been considered as a measure of comp assionate appointment. ii) The petitioner, although was once selected in the post for appointment a gainst the Grade-IV post (Peon) but he having not been appointed on that occasio n, ought to have been preferred in the present selection. iii) The petitioner being better qualified than the respondent No.4, the sele ction committee should have preferred the petitioner over the said respondent. 3. While entertaining the writ petition by order dated 24.8.2011, it was pr ovided that no appointment should be made pursuant to the impugned selection. Th e respondent No.4 has filed MC No. 3452/2011 seeking vacation of the said interi m order. It has been stated in the said application that since the respondent No .4 has been selected in a regularly conducted selection, the writ petitioner, wh o had also participated in the selection but was not selected cannot make any gr ievance against such selection and appointment of the respondent No.4. 4. Mr. S.S. Dey, learned Standing Counsel, Gauhati High Court has produced the relevant record. The District and Sessions Judge, Jorhat, who is responsible for conducting the selection has also filed an affidavit-in-opposition. In the said affidavit, it has been stated that the selection was conducted as per the p rocedure in vague in which the respondent No.4 was found suitable for the post a nd on the basis of his merit, he was placed at Sl. No.1 of the select list. 5. We have considered the rival submissions made by the learned counsel for the parties and have also perused the entire materials on record. 6. Learned counsel for the petitioner referring to the employment notice da ted 26.4.2011 has submitted that the respondent No.4 having read only upto Class -VIII was not eligible to offer candidature in response to the said employment n otice, which laid down the minimum qualification as 10th standard read (desirabl e). On the other hand, Mr. B. Chetri, learned counsel for the respondent No.4 su bmits that it being only a desirable qualification, the respondent No.4 could no t have been disqualified on that ground, more particularly, when as per the Shet ty Commission’s report adopted by the State Government and that even otherwise a lso as per the practice being followed in the district establishments, the laid down qualification for Grade-IV post (Peon) is Class-VIII standard. 7. It will be pertinent to mention here that the respondent No.4 before hi s regular selection and appointment as Peon, have been working in the establishm ent as Mali on casual basis since 1990. Thus, he had about 20 years of experienc e having worked in the establishment. 8. As regards the claim of the petitioner that his case should have been co nsidered applying the yardsticks and parameters applicable for compassionate app ointment in view of the fact that his father took voluntary retirement on medica l ground, suffice is to say that the petitioner having participated in the regul ar section, cannot claim consideration for compassionate appointment. That apart , as has been held by the Division Bench of this Court in Afruja Sakia Yasmin Ah med Vs. District and Sessions Judge, Golaghat & Ors reported in 2008(4) GLT 140, the concept of compassionate appointed is not applicable in case of voluntary r etirement on medical ground. 9. As regards the plea of the petitioner that he being better qualified tha n the respondent No.4, ought to have been preferred in the matter of selection, qualification alone cannot be the decisive factor. The Selection Committee is en trusted with the task of evaluating respective merits of the candidates and whil e doing so, it found the respondent No.4 to be more suitable than the other cand idates. Records have revealed that in the selection, the selection committee rec ommended 3 (three) candidates in order of merit. The first candidate recommended in order of merit is the respondent No.4. One Shri Suresh Bora occupied merit p osition at Sl. No2 while one Smt. Binita Ganju occupied merit position at Sl. No .3. The petitioner could not be empanelled in the select list. The petitioner ca nnot claim automatic appointment without being empanelled. He also cannot claim appointment on the basis of an earlier selection purportedly held in 2007 in res pect of which no grievance was raised. 10. In absence of malafide exercise of power by the selection committee and violation of any statutory rules, the selection conducted by the duly appointed selection committee, cannot be set at naught solely on the basis of the aforesa id assertions made by the petitioner. The Writ Court exercising its power of jud icial review under Article 226 of the Constitution of India cannot sit on appeal over the expertise of the selection committee in the matter of selection of can didates on the basis of their respective merits and records. 11. This now leads us to the plea of the petitioner that he being a better q ualified candidate (HSLC passed) ought to have been preferred over the responden t No.4. In the advertisement, it was never stipulated that Class-X standard wou ld be preferred. The expression used was Desirable . On the other hand, as subm itted by the learned counsel for the parties, in the district establishments in the State, the minimum qualification prescribed for a Grade-IV post is Class-VII standard, which the respondent No.4 duly conforms. Even in the Shetty Commissio ns recommendations also, the prescription of qualification for Grade-IV post is Class-VII standard. In that view of the matter, it cannot be said that the respo ndent No.4 lacks the required qualification for appointment against a grade-IV p ost. That apart, before his regular selection, he had been rendering his service s as Mali in the establishment. 12. In view of the above, we do not find any infirmity in the selection cond ucted for appointment of Peon in the establishment of District and Sessions Judg e, Jorhat. Consequently the appointment made in favour of the respondent No.4 is upheld. 13. Writ petition is dismissed. Interim order passed on 24.8.2011 stands vac ated. 14. There shall be no order as to costs.