WP(C) 2994/2011 BEFORE THE HON’BLE MR JUSTICE B. K. SHARMA Heard learned counsel for the parties. In this batch of writ petitions e xcept WP(C) No. 6574/2010 & WP(C) No. 6572/2010, the challenge made is the sele ction of candidates for appointment as Multipurpose Worker (Male) in the establi shment of the Director of Health Services. In WP(C) No. 6574/2010 & WP(C) No. 6 572/2010, the petitioners are working as Multipurpose Worker (Male) on contractu al basis. Their grievance is non-regularisation of their services. According to the petitioners involved in the said two writ petitions, the respondents ought t o have regularized their services instead of making appointment on regular basis . It will be pertinent to mention here that the petitioners involved in the said two writ petitions are working on contractual basis under a particular scheme c alled National Rural Health Mission. On the other hand, the private respondents involved in the said writ petitions have been selected and appointed as Multipur pose Worker (Male) against regular vacancies. In fact, they have been selected a nd appointed pursuant to the advertisement dated 2.9.2010, issued by the authori ty of the BTC. 2. The basic grounds on which the challenge to the selection of Multipurpos e Workers have been made are as follows :- 1. Two of the candidates although did not qualify in the written examinatio n and thus were not eligible to appear in the viva-voce test had been called for the viva-voce test and were also finally selected for undisclosed reason. 2. There was excessive reservation which exceeded 50% of the quota ear-mark ed for reserved category candidates and thus the entire selection was vitiated. 3. Although the petitioners performed exceedingly well, both in the written examination and viva-voce test but the authorities did not select them for incl usion in the final merit list in an illegal and arbitrary manner. 4. The cut off marks as indicated in the affidavit-in-opposition was meanin gless, inasmuch as, the candidates even after being qualified to be called for t he viva-voce test and even if had been awarded full marks in the oral interview, could not have made it to the final merit list and thus the entire process was vitiated. 5. There was disparity in maintaining cut-off marks for different categorie s in the written examination compared to the cut-off marks for inclusion in the final merit list. 3. In the counter affidavit filed by the respondents, the details of cut-of f marks in written examination category-wise has been indicated, which is as fol lows :- i) STP : 74 ii) STH : 44 iii) SC : 80 IV) OBC/MOBC : 82 v) Unreserved : 90 vi) Physically : 52 handicapped. 4. The candidates who qualified taking into account the aforesaid cut-off m arks for different categories had been called for the oral test and those who co uld qualify for inclusion in the final merit list, had been included in the same . Results of written examination were declared on 14.9.2010. Thereafter, the res ults were published in the newspaper. A total No. of 812 candidates were selecte d category-wise on the basis of their performance in the written and oral test. The break-up as indicated in the counter affidavit, is as follows :- a) STP : 102.5 b) STH : 90.5 c) SC : 104.5 d) OBC/MOBC : 104.5 e) Unreserved : 108 f) Physically : 101.5 handicapped. 5. Combining the marks secured in the written and oral interview, the final results were declared on 16.5.2011 and published in the newspaper on 19.5.2011. The number of selected candidates category-wise is as follows :- a) STP : 82 Nos. b) STH : 52 Nos. c) SC : 58 Nos. d) OBC/MOBC : 218 Nos. e) Unreserved : 402 Nos. f) Physically : 24 Nos. handicapped. 6. After publication of the final merit list, the selected candidates have joined their respective posts. According to the respondents, the selection was c onducted observing the required formalities. It has been denied that unauthorize d candidates had been called for the oral interview. 7. Referring to the two candidates find mention in some of the writ petitio ns alleging that although the said two candidates did not qualify in the written examination but were called for the oral interview, the respondents in their co unter affidavit have stated that initially the candidate with Roll No. 15554 was not included in the written test result sheet as he had secured only 88 marks a s against the cut-off mark of 90. The said candidate made an application under R TI Act with a request to provide him with his answer script of the written test. Upon scrutiny, it was found that there was calculation mistake and that althoug h he had secured 90 marks but was shown to have secured 88 marks. Accordingly, t he mistake was rectified by calling him in the oral interview in which he qualif ied and thus his name was included in the merit list of 402 candidates under un- reserved category. The respondents have annexed to the counter affidavit, the co pies of the RTI application and other related documents including the call lette r issued to him for appearing in the oral interview. 8. As regards other candidate with Roll No. 20020, the respondents have sta ted in their counter affidavit that the said candidate had secured 94 marks in t he written test. The cut-off mark to qualify for oral interview for the OBC cate gory candidate was 82. Although the said candidate bearing Roll No. 20020 belong s to OBC category but inadvertently his name was not included in the list of OBC candidates who were called for the oral interview. When it was found that he be longs to OBC category and had secured the qualifying marks, necessary correction was made and in fact, a corrigendum was also issued, which was published in the issue of the Assam Tribune dated 19.9.2010 (Annexure-D). 9. The aforesaid plea of the respondents in their counter affidavit has not been controverted by the petitioners by stating anything material so as to disb elieve the action of the respondents in correcting the mistakes. It will be pert inent to mention here that not to speak of the said two candidates being party r espondents to this proceeding, none of the selected and appointed candidates and at-least some of them are party respondents to this proceeding. 10. As regards the plea that the particular cut-off marks fixed category-wis e for appearing in the oral interview had rendered the oral interview meaningles s, I do not find any force in the said plea. As to what was the cut-off marks in written examination category-wise has been indicated above. The minimum cut-off marks fixed for written examination to become eligible for the oral interview d id not foresee the final cut-off mark on combination of the marks secured in wri tten and oral interview. The Selection Committee was within its competence and j urisdiction to fix the minimum cut-off marks for the candidates category-wise to be called for the oral interview. Different cut-off marks had been fixed for th e written examination category-wise keeping in mind the policy of reservations, both vertical and horizontal. Thereafter, the candidates were called for the ora l interview and depending upon the marks secured by them in both the segments i. e. written and oral test and keeping in mind the vacancy position, the final mer it list was published. 11. It was submitted that the number of vacancies ear-marked for reserved c ategory candidates being in excess of the number of posts ear-marked for unreser ved category candidate, there was violation of the reservation quota and / or po licy thereof. According to the learned counsel for the petitioners, there was ex cessive reservation by way of exceeding the 50% limit. As per the calculation ma de by the learned counsel for the petitioners, as against 410 posts meant for re served category candidates, there was 402 numbers of posts for general category candidates. This calculation made by the learned counsel for the petitioners doe s not take into account 24 numbers of posts reserved for physically handicapped candidates. 12. Apart from the above, the Director of Health Services, Assam, by his let ter dated 14.7.2011, addressed to the learned Standing Counsel, Health and Famil y Welfare Department, has furnished the following information :- The MPW(Male) have been appointed in two phases so far : (i) 1000 posts of MPW(Male) created in 2009-10. Appointments against the pos t were made as per recruitment Rule. We had appoint 50(fifty) candidates under S T(H) category against these 1000 posts maintaining 5% quota for the category. Bu t, we could appoint only 38 candidates of ST(H) category for want of suitable ca ndidates against 50 posts under the category. This 12 posts were filled up from the candidates of general category and the 12 posts of ST(H) category were carri ed forward for the subsequent appointment. Again after issuing appointment, 12 appointed candidates left the job in between . (ii) Another 1000 posts of MPW(Male) were created in 2010-11. Out of these po sts, 200 posts were allotted to Districts under Six schedule Area to make appoin tment from their end. As such this Directorate took steps to fill up 800 + 12 po sts (who left the job after appointment against the post of 2009-10) i.e. 812 in 2010. When selection was made against 812 posts, maintain the reservation criteria the 12 posts of ST(H) category who could not be appointed against the post of 2009- 10, were carried forward to fill up the Back-log and as such appointed from unre served i.e. General category out of 812 posts. Accordingly after selection, appo intments have been made in May, 2011. As such we have not violated the reservati on criteria. It may be stated that we are going to fill up another 1000 posts of MPW(Male) du ring 2011-12 for which Finance Department has been moved for concurrence to the creation of the post. 13. Learned counsel for the petitioners on being apprised of the said letter dated 14.7.2011 has submitted that the particular plea taken in the said letter is an after thought and that such plea has been taken to camouflage the issue w hich is whether there was excessive reservation or not. 14. As indicated above, the 410 numbers of posts meant for the reserved cate gory candidates did not include 24 other posts meant for physically handicapped candidates. If the said vacancies are taken into account, then it cannot be said that the posts reserved for reserved category candidates exceeded the limit com pared to the posts meant for the unreserved candidates. 15. That apart, as indicated in the aforesaid letter dated 14.7.2011, appoin tments to the posts of MPW(Male) was in two phases. In the second phase, 200 pos ts were allotted to Districts under 6th Schedule area to make appointment. Accor dingly, the Directorate took steps to fill up 800 + 12 posts earlier carried for ward for subsequent appointment. When the selection was made against 812 posts, reservation criteria for 12 carried forward vacancies made for ST(H) were taken into account as back-log vacancies. This being the position, it cannot be said t hat the respondents had exceeded the 50% quota ear-marked for reserved category candidates in making the appointment of MPW(M). 16. As regards the plea of the petitioners that they did exceedingly well in the written and oral test and consequently ought to have been included in the f inal merit list. Suffice is to say that such a plea will have to be considered i n the context of the fact that their names did not figure in the final merit lis t. Although, some of the petitioners could qualify in the written examination by securing the minimum cut-off marks but when the final merit list was drawn taki ng into account the marks secured by them in both the segments i.e. written and oral test, they did not come within the zone of consideration for inclusion in t he final merit list. Individual perception of doing well in a selection by a par ticular candidate, cannot be appreciated by the writ court exercising its power of judicial review under Article 226 of the Constitution of India, in absence of any comparative materials placed before the Court. The fact of the matter is th at the petitioners could not qualify in the selection and consequently their nam es were not included in the final merit list. 17. As recorded above, another plea of the petitioners is that the norms an d / or ratio fixed for oral interview for different category candidates has give n rise to an anomalous situation. In this connection, the percentage of qualifyi ng marks in the oral interview category-wise is sought to be projected so as to contend that different yardsticks were prescribed for the candidates belonging to different categories. As to what was the cut-off marks in the written examina tion, has been indicated above. Only those candidates who had secured the minimu m cut-off marks in the written examination, had been called for the oral intervi ew. Depending upon the marks secured by the said candidates in the oral intervie w, the final merit list was drawn. The petitioners having participated in the se lection and upon failure to qualify for inclusion in the final merit list, canno t now question the wisdom of the Selection Committee in fixing the cut-off marks for final section category-wise. That apart, nothing substantial could be point ed out as to how the particular ratio/norms fixed by the Selection Committee has vitiated the selection. 18. Apart from the above, the most vital aspect of the matter is that none o f the selected candidates who in the mean time have also been appointed, are par ty respondents in this proceeding. Thus, no adverse orders can be passed against them. As has been held by the Apex Court in Probodh Verma and others Vs. Stat e of Uttar Pradesh and others reported in AIR 1985 SC 167, a writ petition is no t maintainable in absence of the parties whose interest is involved in it. No ad verse orders can be passed against those parties. However, irrespective of said position, I have considered the case of the petitioners on merit and I do not fi nd any acceptable ground to allow the writ petitions. 19. For all the aforesaid reasons, I do not find any merit in the writ petit ions and accordingly they are dismissed. 20. This now leads us to WP(C) No. 6574/2010 and WP(C) No. 6572/2010, it is on record that the private respondents have been selected pursuant to the advert isement dated 2.9.2010 against regular vacancies. On the other hand, the petitio ners are working against the particular scheme on contractual basis. They being not holders of any regular posts, cannot claim automatic regularization. As subm itted by the learned counsel for the petitioners, they have also not challenged the appointment of the private respondents. However, the learned counsel for the petitioners submits that the writ petitions were filed before the selection was conducted and appointments were made. If the petitioners were aggrieved by the selection and appointment of the private respondents, necessary amendments in th e writ petition ought to have been brought. In absence of any challenge to the s election and appointment of the private respondents, there is no question of set ting aside and quashing the said appointments and more so, when no grounds have been urged as to why their selection and appointment should be set aside. 21. As to whether the services of the petitioners are to be regularized or n ot is a matter of policy decision of the Government. The writ Court exercising i ts power of judicial review under Article 226 of the Constitution of India, cann ot issue any mandamus directing the respondents to regularize the service of the petitioners. The matter is left to the sound discretion of the respondents. 22. All the writ petitions are answered in the above manner. There shall be no order as to costs.