WP(C) 5162/2006 BEFORE THE HON’BLE MR. JUSTICE B.P.KATAKEY 1. W.P.(C) No.5162/06 Bhaben Mohan & Anr. & &Petitioners Vs. The State of Assam & Ors. . &Respondents 2. W.P.(C) No.5163/06 Shri Manoj Kr. Barua & Anr. & &Petitioners Vs. The State of Assam & Ors. . &Respondents 3. W.P.(C) No.5164/06 Jibeswar Baishya & Anr. & &Petitioners Vs. The State of Assam & Ors. . &Respondents 4. W.P.(C) No.4833/06 Md. Sopior Zaman & Anr. & &Petitioners Vs. The State of Assam & Ors. . &Respondents 5. W.P.(C) No.5035/06 Hemanta Kumar Konwar. & &Petitioner Vs. The State of Assam & Ors. . &Respondents 6. W.P.(C) No.5033/06 Jagadish Ch. Barman. & &Petitioner Vs. The State of Assam & Ors. . &Respondents 7. W.P.(C) No.5032/06 Bubul Ch. Deori & Anr. & &Petitioners Vs. The State of Assam & Ors. . &Respondents 8. W.P.(C) No.5034/06 Mohan Dutta. & &Petitioner Vs. The State of Assam & Ors. . &Respondents 9. W.P.(C) No.5473/06 Shri Rana Borah. & &Petitioner Vs. The State of Assam & Ors. . &Respondents 10. W.P.(C) No.5474/06 Miss Mumina Begum. & &Petitioner Vs. The State of Assam & Ors. . &Respondents 11. W.P.(C) No.5475/06 Shri Kula Borah & Ors. & &Petitioners Vs. The State of Assam & Ors. 12. W.P.(C) No.5221/06 Hemanta Kr. Konwar. & &Petitioner Vs. The State of Assam & Ors. . &Respondents 13. W.P.(C) No.5222/06 Jagadish Ch. Barman. & &Petitioner Vs. The State of Assam & Ors. . &Respondents 14. W.P.(C) No.5253/06 Assam State DDT Spray Workers Union. & &Petitioner Vs. The State of Assam & Ors. . &Respondents 15. W.P.(C) No.5574/06 Pranab Kr. Barman & Ors. & &Petitioners Vs. The State of Assam & Ors. . &Respondents 16. W.P.(C) No.5211/06 Shibendra Nath Ray & Ors. & &Petitioners Vs. The State of Assam & Ors. . &Respondents 17. W.P.(C) No.3070/06 Khanindra Das & Ors. & &Petitioners Vs. The State of Assam & Ors. . &Respondents 18. W.P.(C) No.3792/06 Gulendra Brahma & Ors. & &Petitioners Vs. The State of Assam & Ors. . &Respondents 19. W.P.(C) No.3793/06 Lakhi Ram Brahma & Ors. & &Petitioners Vs. The State of Assam & Ors. . &Respondents 20. W.P.(C) No.4715/06 Sri Rakesh Basumotary & Ors. & &Petitioners Vs. The State of Assam & Ors. . &Respondents 21. W.P.(C) No.4381/06 Sri Sital Choudhury & Ors. & &Petitioners Vs. The State of Assam & Ors. . &Respondents 22. W.P.(C) No.3596/06 Rudra Ray & Ors. & &Petitioners Vs. The State of Assam & Ors. . &Respondents 23. W.P.(C) No.4710/06 Ashok Kr. Ray & Ors. & &Petitioners Vs. The State of Assam & Ors. . &Respondents 24. W.P.(C) No.4711/06 Sumitra Moran & Ors. & &Petitioners Vs. The State of Assam & Ors. . &Respondents 25. W.P.(C) No.4713/06 Sri Madan Kr. Muchahary & Ors. & &Petitioners Vs. The State of Assam & Ors. . &Respondents 26. W.P.(C) No.2965/06 Sri Lakshya Dhar Das & Ors. & &Petitioners Vs. The State of Assam & Ors. . &Respondents 27. W.P.(C) No. 3597/06 Tarun Dhing & Ors. & &Petitioners Vs. The State of Assam & Ors. . &Respondents 28. W.P.(C) No.4706/06 Sri Khagen Boro & Ors. & &Petitioners Vs. The State of Assam & Ors. . &Respondents 29. W.P.(C) No.4727/06 Dhiren Chandra Daimari & Ors. & &Petitioners Vs. The State of Assam & Ors. . &Respondents 30. W.P.(C) No.4810/06 Dhaniram Ram Narzary & Ors. & &Petitioners Vs. The State of Assam & Ors. . &Respondents 31. W.P.(C) No.4382/06 Sri Uttam Chanda & Ors. & &Petitioners Vs. The State of Assam & Ors. . &Respondents 32. W.P.(C) No.3599/06 Khagen Ch. Ray & Ors. & &Petitioners Vs. The State of Assam & Ors. . &Respondents 33. W.P.(C) No.3798/06 Harson Marak & Ors. & &Petitioners Vs. The State of Assam & Ors. . &Respondents 34. W.P.(C) No.3592/06 Sri Satyaban Sonwal & Ors. & &Petitioners Vs. The State of Assam & Ors. . &Respondents 35. W.P.(C) No.5380/06 Gajen Saikia & Ors. & &Petitioners Vs. The State of Assam & Ors. . &Respondents 36. W.P.(C) No.5381/06 Sri Anser Ali & Ors. & &Petitioners Vs. The State of Assam & Ors. . &Respondents 37. W.P.(C) No.5382/06 Ramesh Sarmah & Ors. & &Petitioners Vs. The State of Assam & Ors. . &Respondents 38. W.P.(C) No.5726/06 Niranjan Koch & Ors. & &Petitioners Vs. The State of Assam & Ors. . &Respondents 39. W.P.(C) No.5723/06 Samin Ahmed Borbhuyan & Ors. & &Petitioners Vs. The State of Assam & Ors. . &Respondents 40. W.P.(C) No.5728/06 Ajay Koch & Ors. & &Petitioners Vs. The State of Assam & Ors. . &Respondents 41. W.P.(C) No.5731/06 Thahir Laskar & Ors. & &Petitioners Vs. The State of Assam & Ors. . &Respondents 42. W.P.(C) No.6249/06 Sri Dipak Kr. Ray & Ors. & &Petitioners Vs. The State of Assam & Ors. . &Respondents 43. W.P.(C) No.6247/06 Mridul Kr. Deka & Ors. & &Petitioners Vs. The State of Assam & Ors. . &Respondents 44. W.P.(C) No.6246/06 Sri Mohuzol Hoque & Ors. & &Petitioners Vs. The State of Assam & Ors. . &Respondents 45. W.P.(C) No.6242/06 Sri Upen Saikia & Ors. & &Petitioners Vs. The State of Assam & Ors. . &Respondents 46. W.P.(C) No.5988/06 Anup Mahanta & Ors. & &Petitioners Vs. The State of Assam & Ors. . &Respondents 47. W.P.(C) No.5990/06 Nabajyoti Mahanta & Ors. & &Petitioners Vs. The State of Assam & Ors. . &Respondents 48. W.P.(C) No.5383/06 Purandar Saikia & Ors. & &Petitioners Vs. The State of Assam & Ors. . &Respondents 49. W.P.(C) No.5379/06 Md. Siddik Ali & Ors. & &Petitioners Vs. The State of Assam & Ors. . &Respondents 50. W.P.(C) No.5378/06 Sri Sushil Kr. Sial & Ors. & &Petitioners Vs. The State of Assam & Ors. . &Respondents 51. W.P.(C) No.5377/06 Erkhau Brahma & Ors. & &Petitioners Vs. The State of Assam & Ors. . &Respondents 52. W.P.(C) No.2979/06 Benudhar Nath & Ors. & &Petitioners Vs. The State of Assam & Ors. . &Respondents 53. W.P.(C) No.34/06 The Assam State DDT Spray Worker. & &Petitioners Vs. The State of Assam & Ors. . &Respondents 54. W.P.(C) No.429/06 Sonjit Das & Ors. & &Petitioners Vs. The State of Assam & Ors. . &Respondents 55. W.P.(C) No.597/07 Jahangir Alom & Ors. & &Petitioners Vs. The State of Assam & Ors. . &Respondents Advocates for the petitioners: Mr. A. B. Choudhury, Sr. Counsel Mr. M Bhuyan, Mr. U.K. Nair, Mr.A. Rashid, Ms. B. Devi, Mr. S. Chouhan, Advocates. Advocates for the respondents: Mr. N. Dutta, Sr. Cousnel, Mr. D. Saikia, Advocate. BEFORE THE HON’BLE MR. JUSTICE B.P. KATAKEY Date of Hearing: 08.02.2007 Date of Judgment: 23.02.2007 JUDGMENT AND ORDER (CAV) This batch of writ petitions is relating to the selection and appointmen t to the post of Field Worker (FW)/Superior Field Worker (SFW)/Surveillance Work er (SW)/Laboratory Technician /Laboratory Assistant/Driver under Health & Family Welfare (A) Department, Government of Assam. The petitioners in W.P.(C) No.4833 /06 (in short, 1st writ petition ) are praying for a direction to the responden ts to complete the process of selection initiated vide communication dated 17.12 .2005 issued by the Joint Director of Health Services (Malaria), Assam to the Di rector of Employment & Craftsmen Training, Assam requesting to sponsor the candi dates as well as the notices published in the newspapers, to publish the select list and also to make appointment pursuant to such select list. The petitioners in W.P.(C) No.5221/06, W.P.(C) No.5162/06, W.P.(C) No.5163/06, W.P.(C) No.5164/0 6, W.P.(C) No.5035/06, W.P.(C) No.5033/06, W.P.(C) No.5032/06, W.P.(C) No.5034/0 6, W.P.(C) No.5473/06, W.P.(C) No.5474/06, W.P.(C) No.5475/06, W.P.(C) No.5222/0 6, W.P.(C) No.5574/06 and W.P.(C) No.5211/06, (in short, 2nd batch of writ pet itions ) are challenging the decision of the Government dated 04.09.2006 to canc el the process of recruitment initiated by the aforesaid communication dated 17. 12.2005 and also the notice published in the newspaper as well as the fresh adve rtisement dated 29.09.2006 issued by the Director of Health Services, Assam init iating a fresh process of selection, on the ground that the subsequent process o f the selection initiated by the said notification is illegal and arbitrary and also on the ground that the fresh process has been initiated without there being any good and sufficient reason for canceling the earlier process. The petitione rs in W.P.(C) No.5253/06 (in short, 3rd writ petition ), who claim to be the Se asonal Workers engaged for a particular period of time in spraying DDT under a G overnment of India Scheme, have also challenged the process of selection initiat ed vide advertisement dated 29.09.2006 on the ground of its being vague as well as for not having a clause for giving due weightage to the services rendered by them as Seasonal Worker, in making selection to the post advertised, contending that they were discharging similar nature of duties under the Central Government Sponsored Scheme with that of the duties and responsibilities as SW/SFW. The pe titioners in W.P.(C) No.3070/06, W.P.(C) No.2979/06, W.P.(C) No.597/07, W.P.(C) No.3792/06, W.P.(C) No.3793/06, W.P.(C) No.4715/06, W.P.(C) No.4381/06, W.P.(C) No.3592/06, W.P.(C) No.3596/06, W.P.(C) No.4710/06, W.P.(C) No.4711/06, W.P.(C) No.4713/06, W.P.(C) No.2965/06, W.P.(C) No.3597/06, W.P.(C) No.4706/06, W.P.(C) No.4727/06, W.P.(C) No.4810/06, W.P.(C) No.4382/06, W.P.(C) No.3599/06, W.P.(C) No.3798/06, W.P.(C) No.5988/06, W.P.(C) No.5380/06, W.P.(C) No.5381/06, W.P.(C) No.5382/06, W.P.(C) No.5726/06, W.P.(C) No.5723/06, W.P.(C) No.5728/06, W.P.(C) No.5731/06, W.P.(C) No.6249/06, W.P.(C) No.5377/06, W.P.(C) No.6247/06, W.P.(C) No.6246/06, W.P.(C) No.6242/06, W.P.(C) No.5378/06, W.P.(C) No.5990/06, W.P.(C) No.5383/06, W.P.(C) No.5379/06, (in short, 4th batch of writ petitions ) prayi ng for a direction to streamline the process for selection process for engagemen t as FW/SFW for DDT Spray Work and also to give due weightage to the period of s ervice rendered by them in making selection for regular appointment to the posts of FW/SFW. The petitioners in W.P.(C) No.34/06, W.P.(C) No.429/06, (in short, 5th batch of writ petitions ) who also claim to have worked as DDT Spray Worker under the Government of India Scheme, challenge the earlier process of selection initiated vide communication dated 17.12.2005 issued by the Joint Director (Mal aria) requesting the Employment Exchange to sponsor the candidates as well as th e employment news dated 22.12.2005 published in the newspaper on the ground that such communications/notifications do not contain any clause giving due weightag e to the services rendered by them as DDT Spray Worker under the Government of I ndia Scheme and also prays for issuance of a direction to the respondent authori ties to give weightage to their past services as DDT Spray Workers. 2. I have heard Mr. A.B. Choudhury, the learned Sr. counsel, Mr. M. Bhuyan, Mr. U.K. Nair, Ms. B. Devi, Mr. A. Rashid and Mr. S. Chowhan, the learn ed counsel appearing on behalf of the petitioners in different writ petitions an d also Mr. N. Dutta, the learned Sr. counsel assisted by Mr. D. Saikia, the lear ned counsel appearing on behalf of the respondents. 3. As agreed to by the learned counsel for the parties and as the w rit petitions are relating to the selection and recruitment to the aforesaid pos ts, all the writ petitions are taken up together for hearing and disposal. 4. Mr. A.B. Choudhury, the learned Sr. counsel appearing on behalf of the petitioners in the 1st as well as the 2nd batch of writ petitions has sub mitted that the authority having initiated the process of selection to the said posts by issuing the communication dated 17.12.2005 requesting the Employment Ex change to sponsor the candidates giving details of district wise number of posts available, qualification, the scale of pay etc. as well as the employment news dated 23.12.2005 published in the newspapers, such process of selection has to b e completed and the select list pursuant to such selection has to be prepared, m ore so, when the candidates were interviewed by the selection committee constitu ted for that purpose. It has further been submitted by the learned Sr. counsel t hat the authority in a most arbitrary and unreasonable manner has done away with such process of selection initiated by taking a decision which has been communi cated in the communication dated 04.09.2006 and published in the newspaper on 21 .09.2006, on the guise of same being not inconformity with the guideline dated 1 7.12.2005 issued by the Government of Assam in Health & Family Welfare (A) Depar tment to the Director of Health Services, though the conditions stipulated in su ch guideline for making recruitment were fulfilled in the earlier process of sel ection initiated vide communication dated 17.12.2005 issued by the Joint Directo r (Malaria) to the Director of Employment and Craftsmen Training. Mr. Choudhury has further submitted that the authority can only for good and sufficient reason initiate a fresh process of selection by canceling an existing process of selec tion. But, in the present case, there is absolutely no reason whatsoever for can celing the earlier process and for initiating a new process, as the grounds on w hich such process has been cancelled are non-existent. Further, according to the learned counsel this has been done for the purpose of appointing some persons o f their choice. 5. Referring to the guideline dated 17.12.2005, Mr. Choudhury, the learned Sr. counsel has submitted that the requirement of the guideline dated 17 .12.2005 is to get the names of intending candidates from the district Employmen t Exchanges stipulating the qualification, age and reservation criteria, which h ave duly been complied with by issuing the communication dated 17.12.2005 by the Joint Director (Malaria) to the Director of Employment & Craftsmen Training req uesting him to sponsor the candidates from the District Employment Exchanges of the State and stipulating therein the qualification, age and reservation criteri a. It has further been submitted by the learned Sr. counsel that under Clause 2 of the said guideline dated 17.12.2005 what required to be notified, in the loca l leading newspapers, is the notice to the affect that the names of the candidat es have been called from the District Employment Exchange of the State and such recruitment has also been fulfilled as such employment notices were issued by th e authority in the local leading newspapers published from Assam on 21.12.2005. Mr. Choudhury has further contended that the requirement of Clause 3 of such gui deline regarding publication of qualification, age and reservation criteria mean s the issuance of the request to the District Employment Exchange to sponsor the candidates and it does not means publication in the newspaper as the said guide line does not provide for such a course of action to be adopted. The learned Sr. counsel therefore, submits that the ground on which the said process of selecti on has been cancelled by the authority as communicated vide communication dated 04.09.2006 as well as the subsequent paper notification on 21.09.2006 in that re gard and also the stand of the respondents in their affidavit are non-existent. Referring to the decision of the Apex Court in Union of India & Ors. -Vs- N. Har gopal & Ors. reported in 1987 (3) SCC, 308, the learned Sr. counsel has submitte d that it cannot be said that such process initiated by the authority for select ion of candidates and appointment, by notifying the Employment Exchanges is bad being arbitrary on the ground that proper advertisement has not been issued. 6. Mr. Choudhury, the learned Sr. counsel submits that the fresh pr ocess of selection initiated vide advertisement dated 29.09.2006 required to be interfered with as the authority cannot be allowed to act on its own sweet will and the necessary directions may be issued to the authority to complete the proc ess of selection initiated vide employment notice dated 17.12.2005 by publishing the select list and making appointment pursuant to such select list. 7. Mr. Bhuyan, the learned counsel appearing for the petitioners in the 3rd writ petition and as well as the 4th batch of writ petitions has submit ted that the respondent authorities having framed the guideline for the purpose of recruitment to the post in question is required to follow the same and the pr ocess initiated by means of an advertisement or employment notice to the Employm ent Exchanges must conform to such guidelines. According to Mr. Bhuyan, the adve rtisement dated 29.09.2006 (the subsequent process of selection) suffers from va gueness and also bad on the ground of violation of the Governments own guideline dated 17.12.2005, as the advertisement does not specify the different categorie s of post in Grade-IV though it consists of FW/SFW/Peon/ van-cleaner/chowkidar/s weeper etc. The learned counsel further submits that the nature of duties attach ed to different categories of post in Grade-IV being different, the qualificatio n etc. are bound to be different and therefore, the same has also to be notified in the advertisement, which having not been done in the advertisement dated 29. 09.2006, the same is to be set aside by this Court and the authority has to init iate a fresh process by fulfilling all the recruitment before making any appoint ment to such posts under the Government. Mr. Bhuyan, the learned counsel has fur ther contended that there is no dispute to the fact that the persons concerned i n these writ petitions were engaged as Seasonal Workers for the purpose of spray ing DDT, no doubt under a Government of India Scheme, but the nature of duties p erformed by them being similar and identical to the nature of duties to be perfo rmed as FW/SFW, the Government being the model employer has to make some provisi on giving some preference to such persons by giving due weightage to the past se rvices rendered by them as DDT Spray Worker, as has been directed in W.P.(C) No. 1495/03. Mr. Bhuyan, the learned counsel submits that the persons concerned in t hese writ petitions having been engaged for spraying DDT under the Central Gover nment Sponsored Scheme, the authority cannot subsequently engaged another batch of persons for the same work and has to engage such persons in every season in s uch capacity by treating them as permanent Seasonal Worker. According to the lea rned counsel, the authority instead of engaging those persons engaged other pers ons in other seasons that too in a very haphazard manner and without following a ny procedure whatsoever. Mr. Bhuyan in support of his contention has placed reli ance on the decision of the Apex Court in Delhi Transport Corporation -Vs- DTC M azdoor Congress & Ors. reported in 1991 (Supply) (1) SCC, 600 as well as in Maha rashtra State Cooperative Cotton Growers’ Marketing Federation Ltd. & Anr. -Vs- Employment Union & Anr. reported in 19994 (Supply) (3) SCC, 385. Mr. Rashid and Ms. B. Devi, the learned counsel appearing on behalf of petitioners in some writ petitions in these batches have adopted the arguments of Mr. Bhuyan. 8. Mr. Chouhan and Mr. Nair, the learned counsel for the petitione rs in the 5th batch of writ petitions have submitted that as in the process of s election initiated by the respondents by issuing the employment notice dated 17. 12.2005 and employment news dated 21.12.2005 and 23.12.2005 there is no provisio n for giving due weightage to the services rendered by the persons concerned as DDT Spray Workers under the Central Government Sponsored Scheme, the said proces s is to be interfered with by this Court, in view of the fact that by not giving such weightage to their past services, the period of services rendered by them has been totally ignored by the authority. It has been submitted by the learned counsel that they having performed the similar nature of work under a Government of India Sponsored Scheme, the respondent authority being the model employer is required to give due weightage to their past services while making selection in any post carrying similar nature of duties and responsibilities, which has not been done in the instant case. According to the learned counsel, the respondent authorities may, therefore, be directed to give due weightage to their past serv ices while making selection to the post of FW/SFW and also, if necessary to cond one the upper age limit for making such recruitment. 9. Mr. Dutta, the learned Sr. counsel appearing on behalf of the re spondents in all the writ petitions, referring to the statements made in the aff idavit-in-opposition as well as the the records produced before this Court has s ubmitted that the authority on the basis of the communication issued from the Di rectorate of Health Services, Assam including the communication dated 21.09.2005 issued by the Director of Health Services decided to fill up 672 vacant posts o f Grade-III and 91 vacant posts of Grade-IV under the Joint Director of Health S ervices (Malaria) (NVBDCP) of the Directorate of Health Services and for that pu rpose a guideline has been framed for making such recruitment, as there is no re cruitment rule governing such recruitment, which was communicated by the under S ecretary to the Government of Assam, Health & Family Welfare (A) Department to t he Director of Health Services, Assam vide communication dated 17.12.2005 laying down the procedure to be followed in making such selection and recruitment. Mr. Dutta has submitted that the Joint Director of Health Services (Malaria) on the same day, i.e. 17.12.2005, issued the employment notice to the Director of Empl oyment and Craftsmen Training requesting the District Employment Exchanges to sp onsor the names of candidates, restricting the same to the ratio of 1:20, in com plete violation of the Government’s guideline dated 17.12.2005. It has further b een submitted that though in the said guideline there is a requirement of publis hing the qualification, age and reservation criteria in the newspaper the same h as not been fulfilled as is evident from the employment news published in the ne wspapers on 21.12.2005, which also do not contain the number of posts required t o be filled. 10. Mr. Dutta referring to the records has further submitted that th e earlier process initiated vide employment notice dated 17.12.2005 was nothing but a farce and the Joint Director of Health Services (Malaria) was in hot haste to complete the process even without complying with the Government guideline da ted 17.12.2005 as well as the requirement of the Employment Exchange (compulsory notification of vacancy) Act, 1959 (in short, the 1959 Act ) and the rules fra med thereunder, requires the authority to notify the Employment Exchanges at lea st 15 days before the date on which the applicants are be interviewed and tested . According to the learned Sr. counsel, it is evident from the records that the Director of Employment and Craftsmen Training in his communication dated 20.12.2 005 has informed the Joint Director of Health Services (Malaria) pursuant to the employment notice dated 17.12.2005 that the same is not in accordance with the 1959 Act and the rules framed thereunder and, therefore, requested him to notify the vacancy in terms of the provisions contained in the said Act and the Rules and the Joint Director of Health Services (Malaria), thereafter, submitted the r equirement in the required format on 21.12.2005. It has further been submitted t hat though the Director of Employment and Craftsmen Training in his said communi cation dated 20.12.2005 informed the Joint Director of Health Services (Malaria) that it is not possible on the part of the said Directorate to issue the call l etters to all the candidates individually due to shortage time and fund and info rmed the Joint Director of Health Services (Malaria) to issue the call letters t o the candidates for interview/test, the Assistant Director of Employment, Distr ict Employment Exchange, Dhubri issued the call letter dated 27.12.2005 to the c andidate though such a course of action was decided not to be taken from the sid e of the employment exchanges, by the Director in his communication dated 20.12. 2005. The learned Sr. counsel further submits that in the guideline dated 17.12. 2005 there was no ratio fixed for the purpose of sponsoring the names of the can didates against any post but