WP(C) 738/2009 BEFORE THE HON’BLE MR. JUSTICE AMITAVA ROY JUDGMENT AND ORDER (ORAL) The select list empanelling candidates recommended for appointment on contractua l basis as Gram Rozgar Sahayak (hereafter for short referred to as the Sahayak) in various Gaon Panchayats selected within the Dhemaji Development Block, has co me under challenge in the instant proceeding. The process in connection therewi th had been initiated by the notice dated 07.01.2009 issued by the Project Direc tor-cum-Member Secretary (Selection Committee), District Rural Development Agenc y, Dhemaji, inviting applications therefor, for the implementation of programme under the National Rural Employment Guarantee Act (for short referred to as the NREG). 02. I have heard Mr. N Dutta, Senior Advocate assisted by Mr. NNB Ch oudhury, Advocate for the petitioners and Mr. BJ Ghosh, learned Government Advoc ate appearing on behalf of the official respondents. Also heard Mr. M Bhuyan, l earned counsel for the respondent Nos. 6 to 14. 03. The petitioners’ pleaded version is that they are of permanent r esidents of Dhemaji district of the State of Assam, and in the year 2006 they ha d been appointed as Sahayak on contractual basis in different Gaon Panchayats un der the Dhemaji Development Block. The Government of Assam having approved the engagement of such Sahayaks for the implementation of NREG, the Director of Panc hayat and Rural Development Department vide his letter dated 27.10.2008 addresse d to all the Deputy Commissioners of the State, laid down the procedure for sele ction of candidates to be appointed as such. The norms, inter alia, mentioned a ge limits to be 21 and 35 years respectively as on 01.01.2008. 04. By the notice dated 07.01.2009 alluded hereinabove, applications were invited from the intending candidates for filling up the posts of Sahayak under the Dhemaji district. The petitioners, accordingly, offered their candida ture for the said post under the Dhemaji Development Block. The petitioners, ha ve conceded that the petitioner No. 1 & 2 at that point of time were over aged j udged by the stipulation to that effect as above, but the concerned authority ac cepted their applications as well, in view of the decision to extend preference to the existing incumbents. Call letters for the interview were, thereafter, is sued on 22.01.2009, and the petitioners appeared before the Selection Board and claim to have performed extremely well. The impugned select list on being publi shed, they, however, found themselves to be left out therefrom. On queries bein g made, they were informed that the petitioner No. 1 & 2 have been excluded for being over aged and the petitioner No. 3 & 4 as not being residents of the conce rned Gaon Panchayat. Disputing the validity of these grounds, the petitioners h ave cited instances, where, candidates over aged in terms of the criteria prescr ibed had been selected in different Gaon Panchayats and that candidates being re sidents of different villages other than those in the respective Gaon Panchayats , for which they had been selected, have also been enlisted for appointment. Ac cording to the petitioners, in view of the maximum age limit for Government serv ice, which is 38 years with further relaxation of 3 years for OBC candidates, th e rejection of the candidature of the petitioner Nos. 1 & 2 on the purported gro und of over age is untenable. 05. This Court by order dated 25.02.2009, while issuing rule, in the interim restrained the official respondents from filling up four posts of Gram Rozgar Sahayak under the Dhemaji Development Block without its leave. Though, no affidavit-in-opposition has been filed by the respondent Nos. 6 to 14 selectees, they have submitted an application registered as MC No. 1760/2009, s eeking modification and/or clarification of the interim order passed. In their application, they having endorsed the validity of the selection process, and hav e underlined, in particular, the criteria contained in the guidelines circulated by the notification dated 27.10.2008 to accord preference to the candidates bel onging to a particular Gaon Panchayat so as to make an effort for appointment of local candidates as far as possible. While stating that their names figure in the impugned select list at Sl. Nos. 4, 5, 6, 7, 9, 11, 12, 14 & 15, these respo ndents have claimed themselves to be the permanent residents of the respective G aon Panchayats. According to them, the petitioners are the residents of the fol lowing Gaon Panchayats : - Petitioner No. Name Gaon Panchayat 1. Sri Premadhar Konwar Ghuguha Gaon Panchayat 2. Sri Rajib Gogoi Naruathan Gaon Panchayat 3 Sri Pankaj Gogoi Aradhal Gaon Panchayat 4. Sri Siva Dutta Ajuha Gaon Panchayat Pleading that the Gaon Panchayats to which they belong, are different from those of the petitioners, they have pleaded that as inspite thereof no appointment wh atsoever, have been made by misconstruing the interim restraint, the order dated 25.02.2009 to the said effect needs to be vacated or modified accordingly. 06. Mr. Dutta, has persuasively urged that the norm of preference to a candidate based on his/her residence in a Gaon Panchayat being obviously repu gnant to the guarantee of equality of opportunity in matters of public employmen t enshrined in Article 16 of the Constitution of India, the same is to be regard ed as non est in law. The learned Senior Counsel has submitted that the applica tion of such criteria to exclude a candidate, who has either performed better th an or is at par with others, generally, would be patently discriminatory and unc onstitutional. According to Mr. Dutta, therefore, this condition of preference could not have been invoked to exclude the petitioners. Citing instances of sel ecting candidates of age in excess of the outer limit prescribed in several othe r Gaon Panchayats, the learned Senior Counsel has pleaded that having regard to the decision taken to accord preference to the working Sahayaks, disqualificatio n of petitioner Nos. 1 & 2 on the ground of over age is also not sustainable in law and on facts. Having regard to the fact that recruitment is being made to a public office to be best served by efficiency, Mr. Dutta, has argued that the s election for the Sahayaks should be only on the basis of merit. Judged by the s tandard, according to him, the petitioners ought to be selected in the post invo lved and in the facts and circumstances of the case, an appropriate direction to that effect needs to be issued. 07. Mr. Ghosh, the learned State counsel has not, as such, resisted the proposition founded on Article 16 of the Constitution of India. While insis ting on the justifiability of the age limits contained in the parameters formula ted for the selection, the learned State counsel with reference to the official records, has argued that even by the measure of merit, the petitioner Nos. 2 & 4 cannot be enlisted for appointment on a comparative assessment of the performan ce of the candidates. Mr. Ghosh, has furnished to the Court the following parti culars vis-a-vis the candidates already selected and the petitioners: - Sl. Nos. Name of Candidate Gaon Panchayat Marks Obtained Position in order of merit 1. Dimba Gogoi Ajuha 34.47 70 2. Jyoti Prasad Bora Naruathun 49.65 13 3. Ajoy Gogoi Ghuguha 50.53 10 4. Lambit Kachari Bhatdaria 56.01 2 (Respondent No. 6) 5. Jiten Borgohain Hatigarh 50.60 9 (Respondent No. 7) 6. Maneshwar Chutia Chamrajan 47.32 20 (Respondent No. 8) 7. Arabinda Sonowal Jiadhal 50.60 11 (Respondent No. 9) 8. Bishnu Bora Bishnupur 55.11 5 9. Mintoo Bhuyan Uttar Dhemaji 57.88 1 (Respondent No. 10) 10. Bishnu Saikia Lakhi Pathar 37.60 53 11. Dipak Gogoi Moridhal 54.73 7 (Respondent No. 11) 12. Biren Borgohain Gohaingaon 55.66 3 (Respondent No. 12) 13. Monuj Kr. Doley Aradhal 48.26 17 14. Prasanta Dihingia Khubolia 49.60 14 (Respondent No. 13) 15. Jatin Borgohain Dakhin Dhemaji 41.92 40 (Respondent No. 14) Sl. Nos. Name of Candidate Gaon Panchayat Marks Obtained Position in order of merit 1. Pramadhar Konwar (Petitioner No. 1 over aged) Ghuguha 54.73 6 2. Rajib gogoi (Petitioner No. 2) Naruathan 47.93 19 3. Pankaj Gogoi (Petitioner No. 3) Dhemaji Town 54.48 8 4. Shiva Dutta (Petitioner No.4) Gohaigaon 48.65 16 08. Mr. Bhuyan, has pleaded, as well that to set at rest the controv ersy, the select list be remade strictly on the basis of merit. 09. The pleadings available and the arguments advanced have received the due consideration of this Court. The petitioners have admitted that at the time of their response to the notice offering candidature, the petitioner No. 1 & 2 were marginally over aged having regard to the prescription to that effect. Their assertion of the administrative decision to extend preference to the in service Sahayaks has not been refuted, as such. The averments made by them abou t selection of over aged candidates in Sisi and Pub-Muchkhowa Gaon Panchayat und er Machkhowa Development Block as well as other candidates for the post of Accre dited Engineer and Account Assistant posts, have also remained uncontroverted. Be that as it may, such a breach, if any, per se, in the opinion of this Court w ould not entitle them to a direction for condonation of their overage. The argu ments based on Article 16 of the Constitution of India, however, appear to be we ll founded and significantly has not been refuted by the respondents. 10. The guidelines circulated by the notification dated 27.10.2008 o utlining the procedure for selection of candidates amongst others as Sahayak man date that first preference should be given to the candidates of the particular G aon Panchayat and in the event of non-availability of suitable candidate from su ch Gaon Panchayat(s), the candidature of an applicant from outside the Gaon Panc hayat(s) would be considered. The notice dated 07.01.2009 inviting candidature from the eligible candidates indicates that for the post of Sahayak preference w ould be given to candidates with Science and Commerce background. It further me ntions that preference would be given to candidate from local Gaon Panchayat are a. Having regard to the unambiguous sanction contained in Article 16 (2) of the Constitution of India, this precept of preference to candidates based on their residence in a particular Gaon Panchayat cannot be sustained. The application o f this norm to select the candidates in the instant process, thus, cannot be app roved. As the proposed appointments are to be made to a public office, the recr uitment essentially has to be on the basis of some constitutionally acknowledged measure. Merit, competence and suitability, the index whereof, would be the pe rformance of the candidates at the interview together with the accreditation awa rded for their relevant academic achievements is, thus, the most assuring measur e. The official records containing, inter alia, the chart reflecting the compar ative assessment of the candidates otherwise disclose adherence to the above ten ets. 11. On a perusal of the facts and figures contained in the above ext racts vis-a-vis the performance of the candidates selected and the petitioners, it is clear that subject to the other criteria referred to in the guidelines dat e 27.10.2008 as well as the notice dated 07.01.2009, the petitioners are entitle d to be placed at Sl. No. 6, 8, 19 and 16 respectively. Judged by the yardstick of merit, the interse positions of the selected candidates and the petitioners would have to be adjusted, so much so that the first 15 candidates on the basis of the marks secured, if not otherwise ineligible as per the guidelines dated 27 .10.2008 and 07.01.2009 to the exception of the norms of residence deserve to be selected for appointment to the posts. 12. In the above view of the matter, the instant writ petition is di sposed of with a direction to the official respondents to redraw the select list on the basis of the merit and performance of the candidates irrespective of the ir residence Gaon Panchayat wise and subject to the other conditions and norms a s well as the formalities, process their cases for appointment to the advertised posts of Sahayak. The issue of over age is, however, left to them to decide in the facts and circumstances of the case. The miscellaneous application being M.C. No. 1760/2009, accordingly stands dispo sed as well. No costs.