WP(C) 5014/2006 BEFORE HON’BLE MR. JUSTICE B.K. SHARMA 1. By means of these two writ petitions, the petitioner has challe nged the selection and appointment of the respondent No. 5 as Demonstrator in Or al and Dental Pathology, Regional Dental College, Guwahati. In Annexure-6 letter dated 03.03.06 by which the APSC made a recommendation, the name of the petitio ner appears at serial No. 2 while that of the respondent No. 5 appears at seria l No. 1. Be it stated here that both of them belong to Scheduled Castes category . The recommendation was made for the lone post of Demonstrator. 2. Pursuant to such recommendation, the respondent No. 5 was appointed as D emonstrator by Annexure-7 order dated 19.09.06. 3. In W.P.(C) No. 2106/06, the challenge made was to the select list dated 03.03.2006 showing the merit position of the respondent No. 5 at serial No. 1 an d that of the petitioner at serial No. 2. According to the petitioner, his acade mic career being by far better than the respondent No. 5, he could not have been superseded by the respondent No. 5 in the matter of selection. Occasion for fil ing the 2nd writ petition arose for the petitioner when during the pendency of t he writ petition the respondent No.5 was appointed by the aforesaid Annexure-7 o rder dated 19.09.06. 4. The challenge made to the selection and appointment of the respondent No . 5 is on two grounds, namely (1) the academic career of the petitioner being by far better than the respondent respondent No. 5, he could not have been recomme nded placing him above the petitioner and (2) the respondent No. 5 having not of fered his candidature for the said post through proper channel as was required i n terms of the advertisement, the APSC ought to have rejected his candidature in stead of entertaining the same and eventually recommending him ahead of the peti tioner. 5. It will be pertinent to mention at this stage that a RTI application was made relating to the question as to whether the respondent No. 5 had applied th rough proper channel or not. Be it stated here that at the time of responding to the advertisement, the respondent No. 5 was a Govt. employee serving as Dental Surgeon under the Joint Director of Health Services, Golaghat. When the aforesai d information was sought for through a RTI application, the Govt. of Assam in th e Health and Family Welfare (B) Department issued an order dated 30.11.06 revert ing the respondent No. 5 back to his original post of Dental Surgeon on the grou nd that he did not apply through proper channel. The said order was put to chall enge by filing a writ petition being W.P.(C) No. 6457/06 by the respondent No. 5 and while entertaining the writ petition by order dated 22.12.06, the operation of the said order was stayed. The writ petition was disposed of by order dated 17.09.07 quashing the order dated 30.11.06 reverting the respondent No. 5 back t o his original post of Dental Surgeon. 6. The respondents have filed their counter affidavits. In the affidavits f iled by the Health and Family Welfare Department the stand taken is that the res pondent No. 5 having not applied for the post through proper channel, he had to be reverted to his parent department/post. On the other hand, in the affidavits filed by the APSC as well as the respondent No. 5, the stand taken is that since the application offering candidature for the post by the respondent No. 5 was a ccompanied by an NOC issued by the Joint Director of Health Services, Golaghat, the purpose of submiting the application through proper channel was served. In t his connection the order passed on 07.12.2010 in this proceeding will be relevan t to refer and accordingly the same is reproduced below: In terms of the order passed on 11.11.2010, he APSC and the Health & Family Wel fare Department have filed 2 independent affidavits. As regards the query as to whether the respondent No. 5 could have applied for the post in question without furnishing the application through proper channel, but on the basis of the gene ral NOC annexed to the application, in the APSC’s affidavit sworn by one Sri Bal indra Hazarika, describing his profession as Government service, but without ide ntifying status in the APSC, it has been stated thus: 4. That, in terms of aforesaid order dated 11.11.2010 it is submitted respectfu lly that application submitted by a Departmental Candidate alongwith No Objectio n Certificate (NOC) issued by the Govt. Deptt. concerned is similar in nature wi th application submitted to the Commission through proper channel and serves ’si milar purpose. As such, application submitted to the Assam Public Service Commis sion by a Departmental Candidate in either of the two ways mentioned above can b e accepted. On the other hand, in the affidavit filed by the Under Secretary to the Governme nt of Assam in the Health & Family Welfare Department statements on the issue is as follows: That the deponent most respectfully begs to state that the respondent No. 5 Dr. Debeswar Das while working as Dental Surgeon at Sarupathar CHC in Health & FW D epartment under the control of Director of Health Services, Assam in pursuant to an advertisem4nt6 dated 14.10.2005 submitted his application directly to APSC t o appear in the interview for the post of Oral & Dental Pathology at Regional De ntal College, Guwahati under the control of Director of Medical Education, Assam Health & FW Department, Government of Assam after obtaining No Objection Certif icate (NOC) from his immediate Administrative Controlling Officer i.e. the Joint Director of Health Services, Golaghat District though as per the procedure the said application should have been forwarded to the APSC through the Commissioner and Secretary, Health and Family Welfare Department, as the respondent No. 5 be ing an in service employee. Further, the deponent states that after the completion of the selection process by the APSC and publication of result, the APSC forwarded the select panel list of candidates along with the original application of the candidates in a sealed bundle to the Government in the Health Department for necessary onward action. A ccordingly, the respondent No. 5 who was at serial No. 1 of the select list was given appointment in the post of Demonstrator of Oral and Dental Pathology inclu ding Dental Anatomy in the Regional Dental College, Guwahati. The deponent states that both the post of Dental Surgeon under the Director of H ealth Services, Assam and the post of Demonstrator of Oral & Dental Pathology of the Regional Dental College, Guwahati under the Director of Medical Education, Assam are in fact under the Health & Family Welfare Department (Rule 4 with Firs t Scheduled of the Assam Rules of Executive Business, 1968 may kind be referred to). As such, the Health Department did not raised any objection to the action o f the respondent No. 5 in submitting his application to the APSC with NOC from t he Joint Director of Health Services, Golaghat based on which APSC also allowed him to appear in the interview and finally selected him on merit at sl. No. 1 of the select panel list. If the aforesaid statements made by both the authorities are to be accepted, the re is no need for Govt. employee to respond to the advertisement of the APSC thr ough proper channel and the general NOC issued for all purposes will do. It is on record that the respondent No. 5 was earlier reverted to his parent dep artment by the same very Health & Family Welfare Department on the ground of mak ing application directly and not through proper channel. The affidavit purportedly filed on behalf of the APSC by said Sri Balindra Hazar ika without any identification has verified the statements made in the affidavit as true to his knowledge. On the next date fixed, the said Sri Hazarika shall clarify as to on what basis he has made the statement in paragraph 4 of the affidavit quoted above. In the APSC advertisement, the requirement for Government employee to apply thro ugh proper channel for the particular post was specified as follows: The candidates who is in Govt. Service or in Govt. owned undertaking or other s imilar organizations/Corporations/Boards/ Bodies or in private employments must apply through proper channel and should ensure receipt of his application in the Commission’s office within 15 (fifteen) days from the closing date of receipt o f application failing which it is liable to be rejected even, if it has been sub mitted to controlling officer/Employer before the closing date. No advance copy of application shall be treated as valid for determination of eligibility of a c andidate. In view of the above, both the officers, who have sworn the aforesaid 2 affidavi ts shall clarify the position by filing further affidavit. In terms of the afore said order dated 11.11.2010, the said two authorities were also required to prod uce the relevant Rules/Orders/Executive Instructions regarding submission of app lication through proper channel by the Government Employee. However, no such ins truction has been furnished. In the next affidavit, both the authorities shall i ndicate the same. In the affidavit, the said two officers shall also clarify regarding latest stan d of the respondent No. 5 in his affidavit filed on 1.12.2010 that in fact the a pplication was submitted through proper channel on 28.10.2005. This clarification is required in view of the stand all through out that the res pondent No. 5 did not submit application through proper channel, but the applica tion was accompanied with an NOC and also in view of the letter dated 25.1.2007 addressed to the father of the petitioner by the Deputy Secretary to the Governm ent of Assam in the Health & Family Welfare (B) Department stating therein about the application submitted by the respondent No. 5 are that there is no record i n the Department regarding submission of the application by the respondent No. 5 through the Department. List the matter on 21.12.2010. Let copies of this order be furnished to Mr. B. Gogoi, learned Standing Counsel, Health Department as well as Mr. C. Barua, learned Standing Counsel, APSC. 7. Pursuant to the said order dated 07.12.10, one Shri Balindra Hazarika, I n-charge Secretary, APSC filed an affidavit dated 21.12.2010. Taking note of the particular stand in the affidavit, the court further issued direction. The matt er was again taken up on 06.01.2011 on which date said Shri Hazarika appeared in person. Taking note of the clarification furnished by him, a direction was issu ed to file an affidavit by the APSC. For a ready reference the order dated 06.01 .2011 is also reproduced below: In terms of the order passed earlier, Sri Balindra Hazarika, in-charge Secretar y, now Deputy Secretary, APSC is personally present. He had earlier filed the af fidavit dated 21.12.2010 as in-charge Secretary, APSC (now Deputy Secretary). He submits as follows: 1. He is not aware of any Rules/Orders/Executive instructions regarding sub mission of application through proper channel by the Government employees in cas e of applying to APSC for another post. 2. He further submits that the respondent No. 5 had submitted application n ot through proper channel but the same was accompanied with a general NOC issued by the Joint Director of Health Services, Golaghat. 3. Mr. Hazarika, on perusal of the NOC in question admits that the same was not pertaining to the advertisement and the post in question. From the aforesaid stand of Mr. Hazarika, what has transpired is that although t he APSC is not aware of any Rules/Orders/Execution instructions regarding submis sion of application through proper channel by the Government employees, but yet the Commission in its meeting held on 23.11.2010 resolved and expressed the view that the application submitted by the departmental candidate in either of the t wo ways (either application with NOC or application through proper channel) can be/is accepted by the Commission. If the Commission is not aware of any Rules/Or ders/Executive instructions regarding submission of application by the Governmen t employees applying for a post through proper channel, it is not understood as to how it could equate the process of submission of application through a genera l NOC (not specific to the post or advertisement) with that of submission of app lication through proper channel. The aforesaid resolution has been adopted on 23.11.2010 by three members of the APSC, namely, Sri A. Rajkumar; Sri R.K. Paul and Dr. G. Basumatary. The resoluti on has been adopted after 5 years of the advertisement in question dated 14.10.2 005. In view of the above, the aforesaid three members of shall clarify the position by means of an affidavit, which shall be filed by one of them on behalf of all t he three members upon authorization. Let the affidavit be filed on or before 25.11.2011. Let a copy of this order be furnished to Mr. C. Baruah, learned Standing Counsel , APSC. 8. I have heard Mr. S. Medhi, learned Sr. counsel assisted by Mr. Sheeladit ya, learned counsel for the petitioner as well as Ms. A. Verma alongwith Mr. B. Gogoi, learned Standing counsel, Finance Department. I have also heard Mr. D.P. Chaliha, learned Sr. counsel assisted by Mr. J.N. Gogoi, learned counsel appear ing for the respondent No. 5 as well as Mr. C. Baruah, learned Standing counsel, APSC. I have also heard Ms. P. Barman, learned counsel for the respondent No. 5 in W.P.(C) No. 2106/06. I have perused the entire records including the applic ation through which the respondent No. 5 had offered his candidature. 9. As regards the first contention that the petitioner is much more meritor ious than the respondent No. 5 and accordingly he should have been selected over the said respondent, the stand of the APSC is that the selection was conducted as per the normal procedure being followed in the APSC. According to the APSC, w hile the academic career is duly taken note of in conducting the selection, but the same cannot be the whole basis of the selection. The petitioner has basicall y challenged the selection and appointment of the respondent No. 5 urging the fi rst ground of challenge that if the academic records of both the candidates are compared, the petitioner is by far a meritorious candidate. In this connection, he has referred to the chances undertaken by the respondent No. 5 in clearing th e final examination leading to BDS. 10. It is on record that the aforesaid select list was put to challenge in s ome other proceedings and this Court has upheld the said selection. That being t he position, this Court cannot take a different view of the matter. Thus it will have to be held that so far as the selection of the candidates by the APSC is c oncerned, same has achieved finality and cannot be looked into afresh only to co nsider as to whether the petitioner should have been provided with higher rank t han that of the respondent No. 5. 11. This now leads us to the second question as to whether the APSC could ha ve considered the candidature offered by the respondent No. 5. As noted above, t he application submitted by the respondent No. 5 was accompanied by an NOC dated 28.10.05 issued by the Joint Director of Health Services, Golaghat under whom the petitioner was serving as Dental Surgeon. The NOC reads as follows: NOC This is certify that Dr. Debeswar Das, was joined on 22.11.2000 as Dental Surgeo n. He is working under this establishment till today. I have no objection if he apply for another post under Health & Family Welfare ( B) Dept. Sd/- Jt. Director of Health Service, Golaghat 12. On perusal of the aforesaid NOC, what is seen is that same is of general nature and there is no indication that the respondent No. 5 was allowed to appl y for the post of Demonstrator in terms of the employment notice/advertisement N o. 8/2005 dated 16.10.05. In the advertisement itself, it was specified thus: The candidates who is in Govt. Service or in Govt. owned undertaking or other s imilar organisations/Corporations/Boards/Bodies or in private employments must a pply through proper channel and should ensure receipt of his application in the commission’s office within 15 (fifteen) days from the closing date of receipt of application failing which it is liable to be rejected, even if it had been subm itted to controlling officer/Employer before the closing date. No advance copy o f the application shall be treated as valid for determination of eligibility of a candidate. 13. On perusal of the aforesaid clause in the advertisement what is seen is that the respondent No. 5 being a Govt. employee was required to submit the appl ication through proper channel which according to Health & Family Welfare Depart ment, is the Commissioner and Secretary to the Govt. of Assam in the Health & Fa mily Welfare Department. As per the affidavit filed by the said department, the respondent No. 5 was required to submit his duly filled in application form alon gwith the documents to the Joint Director of Health Services, Golaghat under who m he had been serving who in turn was required to forward the same to the Commis sioner & Secretary to the Govt. of Assam in the Health & Family Welfare Departme nt for onward transmission to the APSC. 14. The stand taken by the APSC in their affidavit is very strange. The affi davit filed by the In-charge Secretary, APSC is that an application submitted by a departmental candidate alongwith an NOC is similar in nature to that of the a pplication submitted to the Commission through proper channel and that the same serves the purpose. According to the APSC, the application submitted in either o f the two ways can be accepted. 15. In the subsequent affidavit filed by one of the members of APSC (affidav it dated 25.01.2011) the stand is more or less similar. Thus, according to the A PSC although the respondent No. 5 did not submit the application through proper channel as it is understood in common parlance, but the APSC within its compete nce and jurisdiction acted upon the said application on the basis of the above q uoted NOC dated 28.10.05. 16. If the aforesaid stand of the APSC is accepted, then in that case all th e Govt. employees are entitled to apply for another post either in the State Gov t. or in the Central Govt. or any other organisation without his/her application being submitted through proper channel, if a general NOC accompanies such appli cation. The nature of the NOC dated 28.10.05 has been noted above. In the said NOC there is no whisper that the respondent No. 5 was allowed to apply for the p ost of Demonstrator in response to the aforesaid advertisement/ employment notic e. The said NOC is of general nature without specifying anything. The APSC being a constitutional body, ought to have acted more carefully in such a matter and now after accepting the candidature offered by the respondent No. 5 has come to his rescue by filing the aforesaid affidavits taking the stand that even a gene ral NOC serves the purpose of submitting the application through proper channel. If this stand of the APSC is to be accepted, no candidate in Govt. employment o r in any other organisation is required to submit his/her application to the APS C for any post through proper channel. 17. Mr. Chaliha, learned counsel for the respondent No. 5 has drawn my atten tion to the affidavit filed by the respondent No. 5 on 01.12.2010 in which in pa ragraph-6 a stand has been taken that the respondent No. 5 while was serving as a Dental Surgeon under Joint Director of Health Services, Golaghat had submitted an application before the Secretary to the Health & Family Welfare (B) Departme nt through proper channel with a prayer to allow him to appear in the APSC exami nation and that the said application was duly forwarded on 28.01.2005. If the ap plication was submitted through proper channel, it is not understood as to why t he same was required to be accompanied by the aforesaid general nature of NOC. H owever, the particular enclosure to the said affidavit depicts another picture. Annexure-A to the said affidavit dated 28.10.05 is his application purportedly a ddressed to the Secretary to the Health & Family Welfare (A) Department. For a r eady reference, the said application is reproduced below: To, The Secretary, Health & Family Welfare (A) Deptt. (Through the Proper Channel) Sub: Prayer for allowed to appear in APSC examination for H. & F. W. Deptt (B ), Assam Sir, With due respect I beg to state that I want to appear in a examination f or the post of Demonstrator in RDC, Ghy-32, which will conduct by APSC, Assam. Therefore, I request you to kindly grant this favour & do the needful. Thanking you, Yours faithfully, (Dr. Debeswar Das) Dental Surgeon Sarupathar CHC, Golaghat, Assam Forwarded to the Secy. Health & F.W. Deptt., Dispur, Guwahati for favour of kind consideration. Dr. Darul Haque 28.10.2005. Joint Director of Health Services, Golaghat 18. Apart from the fact that the said application was not addressed to the A PSC, it also does not specify as to the post for which the application was made. Further, the said application also does not specify as to whether the same was accompanied by duly filled in application form addressed to the APSC alongwith the testimonials for the post in question, i.e. Demonstrator. The said letter wa s addressed to the Secretary, H.&F.W.(A) Department without any specific prayer therein and there is nothing to show that the said application was accompanied b y the requisite application form. There is also nothing to indicate that the res pondent No. 5 had pursued the matter any further. 19. Be that as it may, the above aspect of the matter need not detain us as the original application form alongwith the enclosed testimonials form part of t he records which have been produced by the learned Standing counsel, Health Depa rtment. The application form as has been produced by the learned Standing counse l does not indicate forwarding of the same through proper channel or for that ma tter by the Joint Director of Health Services, Golaghat under whom the responden t No. 5 had been serving or by the Secretary, Health & Family Welfare (A) Depart ment. The only document on which the APSC and the respondent No. 5 have harped u pon is the aforesaid general NOC which purportedly accompanied the application f orm. Unfortunately, the APSC has tried to justify its stand in accepting the can didature of the respondent No 5 on the basis of the said NOC by making a statem ent in their affidavit which has been motioned above. 20. In the affidavit filed by the respondent No. 5 on 21.12.2010 he has encl osed the purported personal copy of the application through which his candidatur e was offered. The said personal copy has been annexed as Annexure-X. On perusa l of the said application alongwith the application form which the respondent No . 5 had submitted to the APSC. I find wide variation. However, no opinion is exp ressed in this regard as it is the contention of the respondent No. 5 that the c opy enclosed to the said affidavit dated 21.12.2010 is his personal copy. Howeve r, what is required to be mentioned is that even in the said application there i s no indication of submitting the same