WP(C) 340/2007 BEFORE HON’BLE MR. JUSTICE B K SHARMA JUDGMENT AND ORDER (ORAL) Heard Mr. A K Sharma, learned counsel for the petitioners as wel l as Mrs. S Seal, learned Standing Counsel, Excise Department, Assam. [2] By means of this writ petition, the petitioners have prayed for a direction to the respondents to publish the select list in respect of the sele ction conducted in the month of July, 2005 for appointment of Excise Constables against 8 vacancies in the district of Dibrugarh. According to the petitioners, they did fairly well in the selection conducted by the respondents and were expe cting selection and appointment. [3] From the materials on record it appears that for the purpose of selection and appointment of Excise Constables, Government of Assam in the Excis e Department had constituted a Selection Board vide Annexure-I letter dated 6.6. 2005. Thereafter, further communication was made vide Annexure-2 letter dated 10 .6.2005 laying down the requisite qualifications etc. for selection and appointm ent of Excise Constable. Accordingly, by Annexure-3 series letters, the petition ers were directed to appear in the selection conducted during 27 to 29th of Apri l, 2005. [4] By Annexure-4 letter dated 21.7.2005, the Government of Assam in the Excise Department intimated the Deputy Commissioner, Dibrugarh on the subje ct of allocation of posts of Excise Constable that 5 numbers of posts of Excise Constable had been allotted to fill up the same in the district of Dibrugarh. La teron, vide Annexure-5 WT message dated 26.7.2005, the vacancy position was indi cated as 8(eight). [5] After the selection was conducted the Deputy Commissioner of Dib rugarh by his letter dated 8.8.2005 (Annexure-6) addressed to the Commissioner o f Excise, Assam intimated that out of the 873 candidates who had appeared in the selection a list of 32 nos. of candidates at the ratio of 1:4 i.e. 4 candidates against the each post in order of merit had been prepared. Accordingly, the lis t was sent for necessary approval etc. [6] After the preparation of the select list when nothing was done, the petitioners made time to time representations for necessary follow-up action but the same having not yielded any result, they filed the instant writ petitio n with the aforesaid prayer. [7] In the counter-affidavit filed by the respondents it is their st and that due to non-receipt of sanction and release of posts by the Staff Inspec tion Unit ( in short SIU) of the Finance Department, Government of Assam, nothin g could be done in the matter. As regards the selection and appointment in other districts it has been stated in the affidavit that same could be done as in res pect of those districts sanction and release of posts were made by the SIU of Fi nance Department, Government of Assam. [8] The matter was heard at length on 5.1.2010. During the course of hearing it was argued by the learned counsel for the respondents that although, the selection was conducted but as in the meantime declaration of the Model Cod e of Conduct on account of Assembly Election in the State came into force w.e.f. 10.3.2006 no appointment could be made. There was ban on appointment. However, it was submitted by Mr. Sharma, learned counsel for the petitioners that selecti on was conducted and finalised much before and thus Model Code of Conduct did no t have anything to do in the matter of appointment of the selected candidates. [9] Noticing the aforesaid discrepancies, direction was issued on 5. 1.2010 to clarify the position. Today Mrs. Seal, learned Standing Counsel for Ex cise Department has produced the letter dated 12.1.2010 addressed to her by the Commissioner of Excise, Assam. As per the said letter the select list was prepar ed containing 32 nos. of candidates and the same was sent for necessary approval on 8.8.2005. However, necessary approval for appointment on the basis of the sa id select list was not made by the then Commissioner of Excise and subsequently, the Model Code of Conduct came into force on 10.3.2006 which halted the process . [10] Another stand in the letter is that, as per provision of Rule 7( 4) of the Assam Subordinate Excise Rules, 1990, the select list remains valid on ly for 12 months and the same expired on 29.7.2006 i.e. after one year from the date of preparation of the select list on 29.7.2005. According to the said lette r another selection was conducted in the year 2008 allowing the applicants of 20 05 selection to participate in the same. [11] Mr. Sharma, learned counsel for the petitioners has produced the copy of the notification dated 30.12.2009 by which the select list in respect o f 2008 selection for appointment of Excise constable was published. In the said notification it was clearly mentioned that out of total 79 numbers vacancies 63 would be filled up leaving aside 16 numbers of vacancies and that the appointmen t would be made in respect of Dibrugarh District after disposal of the present w rit petition i.e. WP(C) No.340/2007. Thus, according to Mr. Sharma, learned coun sel for the petitioners although, a selection was conducted in the year 2008 but in view of the present proceeding the post pertaining to 2005 selection have no t been filled up and the same will have to be filled up on the basis of the fina l decision in the instant proceeding. [12] I have given my anxious consideration to the submissions made by the learned counsel for the petitioners and the materials on record. As per the affidavit filed by the respondents, the appointment could not be made pursuant to the 2005 selection due to non-receipt of sanction and release of posts by the SIU of the Finance Department, Government of Assam. This stand in the counter-a ffidavit is belied in view of the Annexure-4 letter dated 21.7.2005 by which the Commissioner of Excise, Assam had intimated the Deputy Commissioner, Dibrugarh about allotment of 5 numbers of posts of Excise Constable. The same was followed by Annexure-5 WT Message dated 26.7.2005 by which the increase in the number of vacancies to 8 and the necessary allotment thereto were indicated. It was only on that basis the Annexure-6 communication dated 8.8.2005 was made sending the s elect list of 32 candidates prepared at the ratio of 1:4. [13] As against the aforesaid stand in the counter-affidavit, during the course of this writ petition, a submission was made on 5.1.2010 that due to the coming into force w.e.f.10.3.2006, the Model Code of conduct, no appointment could be made. However, it was noticed that the selection was over before the M odel Code of conduct came into force. By the order passed on 5.1.2010, the learn ed Standing Counsel, Excise Department was directed to obtain instruction about which the discussions have been made above. [14] As per written instructions furnished to the learned Standing Co unsel, Excise Department by the aforesaid letter dated 12.1.2010 there was delay in approval by the then Commissioner of Excise and subsequently, Model Code of conduct came into force w.e.f. 10.3.2006. Further stand in the letter dated 12.1 .2010 is that the select list remained valid for 12 months and expired on 29.7.2 006 i.e. on expiry of one year from the date of preparation of the select list o n 29.7.2005. In this connection, the author of the letter i.e. Commissioner of E xcise, Assam has placed reliance on Rule 7(4) of the Assam Subordinate Excise Se rvice Rules, 1990. [15] As regards the 2008 selection, the position has been noted above . No appointment has been made in the district of Dibrugarh as the instant proce eding is pending before this Court. On perusal of the aforesaid letter dated 12. 1.2010 what has transpired is that the plea of the respondents is not that the n ecessary allotment/sanction of the posts was not made by the SIU of the Finance Department. The select list was sent but there was delay in approval and now the respondents want to fall back on Rule 7(4) of the Assam Excise Rules 1990. [16] As per Rule 7(4) of the Assam Excise Rules, 1990 the select list shall remain valid for 12 moths from the date of approval of the list and the appointi ng authority shall appoint from the select list in order of merit. Thus, validit y of the select list is not for 12 months from the date of preparation of the sa me but 12 months from the date of approval of the same. In the instant case as p er own admission of the commissioner of Excise vide letter dated 12.1.2010 there was delay in approval of the select list and thereafter the Model Code of condu ct came into operation. Thus, the respondents are not correct in saying that the select list has expired as the validity of the same is for one year from the da te of preparation of the same. [17] As already noticed above, the select list pertaining to 2008 sel ection has been prepared and published vide notification dated 30.12.2009, but t he same is subject to the outcome of the present writ petition in respect of Dib rugarh district. In fact, the vacancies in the Dibrugarh district have been kept aside from the purview of appointment. [18] For all the aforesaid reasons, I am of the considered op inion that none of the grounds assigned by the respondents towards non-publishin g/non-operating the select list of 2005 is sustainable in law. The respondents w ill have to take a conscious decision in respect of the select list of 2005, whi ch was forwarded by Annexure-6 letter dated 8.8.2005. As noted above, the validi ty period is one year from the date of approval of the select list. Since the se lect list is yet to be approved, there is no question of the expiry of select li st by operation of Rule 7(4) of the Assam Subordinate Excise Rules, 1990. Once t he conscious decision is taken in respect of the select list of 2005 the necessa ry follow up action will have to be taken by the respondents for which necessary provision has been made in the foresaid notification 30.12.2009. [19] In view of the above, writ petition is partly allowed directing the respondents to act upon the Annexure-6 letter dated 8.8.2005 by which select list was forwarded for necessary approval. Depending upon the decision on the said select list, the respondents will take all necessary follow up actions. Let the entire exercise be carried out as expeditiously as possible preferably with in 31.5.2010.