(1.) THIS batch of writ appeals, heard analogously, is directed against the judgment and order dated 12. 12. 2005 disposing of 222 writ petitions filed challenging the legality and validity of selection of constables in the police department of the State. By the impugned judgment and order, the learned Single Judge while upholding selections in respect of 10 districts/battalions has set aside and quashed the selections of other districts/battalions. The writ appeals are against that part of the judgment by which the selections in respect of 15 districts/battalions have been set aside. The appeals have been preferred both by the State as well as by the selected candidates. The districts/battalions, selections of which have been upheld and cancelled are indicated below:
(2.) ALTOGETHER 5500 posts of constables were advertised by the State. The posts were meant for all the districts throughout the State. The employment notice dated 21. 8. 2004 was published in the leading newspapers of the State. In the notice, district/battalion wise vacancies with the vacancies meant for the reserved category candidates were indicated. In the notice itself the dates for recruitment rally and the venues thereof in each districts were indicated. The minimum physical standards both for male and female candidates to be eligible for offering candidatures were also indicated. The prescribed qualification was, read upto Class-VIII and the age limit fixed was, between 18-25 years as on 1. 1. 2004 relaxable by three years in case of candidates belonging to SC/st. 10% of the vacancies were to be filled up by women candidates. Further 5% of the vacancies were reserved for compassionate appointments. The selection procedure indicated in the notice is as follows:
"all candidates will have to undergo test on physical standard as stated above, if their application forms found correct and in order in all respect. Candidates found to have any physical deformity duly certified by the medical officer present in the test, shall be rejected. Thereafter, all male candidates will be asked to run a race of 1. 60 KM and female candidates qualified in the race shall be allowed to appear for subsequent test mentioned below. SAURAS1_260_GAULT1_2007.HTM Only candidates who qualify in the physical efficiency test shall be short listed for appearing in the personal interview (viva voce) (c) Final selections will be made district/battalion wise on the basis of the over all merit on physical efficiency test and personal interview (viva voce) and reservation of quota under RVSP Act, 1978. "
(3.) THE employment notice was forwarded to the Director General of Police (DGP) and Inspector General of Police (IGP), Assam by the Commissioner and Secretary to the Government of Assam in the Home Department on 11. 8. 2004 and on the same date a notification was issued by the Department conveying the constitution of the Selection Board for selection of candidates for the posts of constables for each districts. The Selection Board was constituted as follows:
1. Superintendent of Police/commandant (whoever is senior Chairman) 2]. Superintendent of Police/commandant (whoever is junior Member) 3]. One Medical officer (to be nominated by the Joint Director, Health Services of the District) member In the districts, where there is no Battalion headquarter, the Commandant of the nearest Battalion was to be the Chairman or Member as the case may be, to be nominated by the DGP. In the notification constituting the Selection Board, it was also provided that the Selection Board shall also consider candidates having HSLC or equivalent qualification or above from recognized Board/university of Assam for recruitment to District Executive Force (UB)
(4.) AFTER the aforesaid employment notice, a guideline for conducting the recruitment test was issued on 2. 9. 2004 by the IGP (Admn.) addressed to all concerned. As per the said guideline, entry of candidates into the recruitment rally ground was restricted to 5000 on a single day. The candidates were to submit their duly filled in application forms to the Chairman of the Selection Board or his representatives before participating in the elimination race. Be it stated here that the prescribed distance of elimination race was 1. 60 KM and 0. 80 KM for male and female candidates respectively. The candidates, who could qualify in the physical standard were only to participate in the elimination race and those who could qualify in the elimination race were to be given identity numbers after recording their biodata in the prescribed Register. Those who could qualify in the elimination race were to face physical test comprising of 100 Meter race, High Jump and Long Jump. Only those candidates, who could secure 25 marks out of 50 allotted for physical efficiency test, were to be called for personal interview, for which marks allotted was 50. Be it stated here that by a corrigendum dated 8. 9. 2004, it was notified that
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he candidates qualifying in the elimination race would be awarded 15 marks, which is out of the total 50 marks for physical efficiency test. By the same very corrigendum the interview marks, which was earlier indicated as 25, was notified to be 50 marks. Thus, for those who could qualify in the elimination race were to get 15 marks and the remaining 35 marks, out of the total 50 marks were in respect of the three physical efficiency tests, namely 100 meter race, Long Jump and High Jump, distribution of which was as 15, 10 and 10 respectively.(5.) THROUGHOUT the State comprising of each districts/battalions, about two lakhs candidates participated in the recruitment rallies, which were held between 3rd to 11th December, 2004, both the days inclusive. After completion of the entire process of selection, the select lists for each district/battalion were prepared. It was at that stage, the writ petitions were filed challenging the very recruitment process, the methodology adopted and the procedure followed.(6.) AS per the employment notice which was published in the local newspapers, the recruitment rallies were to be held in the first week of October, 2004. However, same was postponed to 18th to 24th November, 2004. The reason for postponement as contained in the letter dated 17. 9. 2004 was stated to be on account of the bye-election in one of the Assembly Constituencies namely Moran Assembly constituency. The recruitment rallies were further postponed to 24th to 30th November by an other letter dated 2. 11. 2004 and such postponement was stated to be on account of Asian Car Rally, Kali Puja, Diwali and Iid festivals. However, the recruitment rallies did not start even on that occasion also. It was further postponed to 3rd to 7th December, 2004 and to that effect notice was published on 23. 11. 2004. This time, the recruitment rallies were held with the extension of last date from 7th to 11th December, 2004.(7.) ABOVE aspect of the matter has been highlighted, which has also been noticed by the learned Single Judge, in view of the fact that as per the stipulation made in the employment notice, the candidates belonging to one particular district could take part in the recruitment rally for the posts of that district only. However, after the recruitment process started in the first week of October, 2004, albeit with the first postponement to 18th to 24th November, 2004 with further postponements as noticed above, the Government by its letter dated 16. 11. 2004, conveyed the decision that the restriction relating districtwise selection of candidates belonging to the districts only would not apply to recruitment to the armed police battalions, but would hold good only for the posts advertised for the district executive forces. It was the contention of the writ petitioners that such postponements with eventual relaxation of districtwise selection earlier stipulated in the employment notice, was beyond the scope of the employment notice and that the same was ill motivated facilitating selection of candidates on pick and chose basis.(8.) THE basic features of the pleadings in all the writ petitions are more or less similar, which the learned Single Judge has dealt with in paragraph 9 and 10 of the impugned judgment. They are as follows:(1) The procedure prescribed in the employment notice followed by the instructions issued by the Government for conducting the selection was not followed. (2) The register containing the names of the candidates, who participated in the recruitment rally, which is the basic document as prescribed in the Assam Police Manual, was not maintained at all in many of the centers and in few centers, although was maintained, same was not according to the procedure. (3) The candidates, who had not taken part in the selection, have been selected. Even the candidates underqualified and over aged have been selected. (4) Even the candidates, who could not qualify in the physical test were allowed to participate in the interview (viva voce). Likewise the candidates, who could not qualify in the interview were also included in the merit lists. (5) There were interpolation/tampering in the marks allotted to many of the candidates in the working result sheets of the physical test part of the selection. (6) Many of the selected candidates were included in the select list on the basis of the recommendations made by different political functionaries leading to a total farce in the entire process of selection. Certain examples of political interference were also indicated. (7) 50% marks earmarked for the personal interview segment of the selection was by far high compared to the marks earmark for the physical test. This itself was the vitiating factor of the entire process of selection. (8) Considering the number of candidates, who participated in the selection and the completion of the same within a span of only 9 days with the permissible working hours, the entire selection was a total farce. In such a short time, it was humanly not possible to complete the entire selection in which thousands of candidates participated.(9.) THE official respondents filed counter affidavits only in two writ petitions being WP (C) No. 976/2005 and WP (C) No. 1007/2005. In the affidavits they generally denied the contentions raised in the writ petitions and contended that the selection process was fair, regular and legal. As regards the plea of postponements of the recruitment rally number of times, it was contended that same was within the jurisdiction and competence of the State Government. They also contended that there was nothing wrong in permitting the candidates of one district to participate in the recruitment rally pertaining to another district.(10.) THE learned Single Judge has broadly discussed the argument advanced by the learned counsel for the parties with the help of the decisions of the Apex Court and the same can be found in paragraphs 11 to 14 of the impugned judgment and the same need not be repeated here again. The learned Single Judge on the basis of the pleadings and the argument advanced by the learned counsel for the parties and having regard to the facts and circumstances involved in the case about which detailed discussions have been made in paragraph 15 and 16 of the impugned judgment, has held that it would be incorrect to refuse adjudication of the merits of the dispute raised by the petitioners. After holding so, the learned Single Judge proceeded with the matter with the scrutiny of the records with the assistance of three judicial officers. During the course of prolonged hearing of the cases, the officials responsible for the selection in different centers were also present to ensure orderly and systematic presentation of the records before the Court, which were called for and kept in safe custody of the Registry. Placing reliance on the two decisions of the Apex Court reported in (1994) 4 SCC 165 (Krishnan Yadav Vs. State of Haryana) and the one reported in AIR 1970 SC 1269 (The Bihar School Examination Board Vs. Subhash Ch. Sinha), learned Single Judge scrutinized the records at random taking into account the cases of both selected and unselected candidates. Such a methodology was adopted, having regard to the fact that large number of candidates (about two lakhs) were involved in the selection.(11.) DURING the course of hearing, the learned Single Judge appointed a senior member of the Bar to act as Amicus curiae. He was entrusted with the task of scrutinizing the records with the assistance of another learned counsel of the Bar. The learned Amicus curiae upon scrutiny of the records submitted his report, interim and final on 21. 6. 2005 and 12. 8. 2005. On perusal of the report so submitted, the learned Single Judge having found that the reports did not reveal the exact magnitude of the illegalities committed in the selection process, constituted a fact finding Committee with the learned Amicus Curiae as the Chairman and an IAS Officer of the State as Member. The guidelines and parameters were also laid down for the committee towards scrutinizing the records. The committee was so constituted by order dated 9. 9. 2005.(12.) THE IAS officer, who was nominated as the member of the committee resigned as such and thus, it was only the learned Amicus Curiae who remained as the sole member of the committee. This aspect of the matter was noticed by the Writ Appellate Court in the Writ Appeals being W. A. No. 539/2005 and 540/2005 preferred against the learned Single Judge's order dated 9. 9. 2005 referred to above. As regards the service of notice etc. on the selected candidates, the Appellate Court provided for publication of notice through newspapers so that the affected and/or would be affected parties could appear before the learned Single Judge, if they so desired. Thereafter, due notice was published in the newspaper conveying the intimation regarding the proceeding before the learned Single Judge in response to which many of the selected candidates participated in the writ proceeding.(13.) THUS, the learned Single Judge proceeded with the matter with the task of random scrutiny of the records of selection with the assistance of the learned Amicus curiae and the aforementioned three judicial officers. Upon such scrutiny and considering the entire materials on record and submissions advanced by the learned counsel for the parties has passed the impugned judgment and order canceling the entire selection in respect of 15 districts/battalions out of the total 26 districts/battalions throughout the State making a grievance against which the instant writ appeals have been filed.(14.) WE have heard the learned counsel for the appellants, who by and large attacked the methodology adopted by the learned Single Judge in random scrutiny of the selection records. While arguing on the general features of the selection, the learned counsel for the appellants, who represented individual appeals questioned the very jurisdiction of the learned Single Judge in taking the task of scrutinizing the records. They contended that in such a selection in which huge number of candidates participated, some minor irregularities here and there are bound to occur and that by itself cannot be the basis for canceling the entire selection. They also emphasised on weeding out those very candidates in whose selection, illegalities were detected, instead of canceling the entire selection. Arguments were also advanced on the alleged violation of the principles of natural justice, alleging that some of the petitioners, before they could affectively respond to the writ proceeding in terms of the newspaper notice, the hearing was concluded.(15.) COUNTERING the above arguments, learned counsel representing the writ petitioners highlighted on the detailed judgment of the learned Single Judge dealing with the entire selection process. As regards the contention advanced that for few illegalities and/or irregularities committed in respect of selecting a few candidates, the entire selection in respect of the whole districts/battalions need not be set at naught, the learned counsel for the writ petitioners/respondents submitted that apart from the fact that such illegalities are so glaring rendering the entire process of selection a total farce and thus is not possible to weed out the candidates of such illegal selection, the learned Single Judge was conscious of the proposition of weeding out the illegally selected candidates, inasmuch as, it is not a case of canceling the entire selection but the districts/battalions in which the selections have been found to be held properly, same have been upheld by the learned Single Judge.(16.) LEARNED counsel for the parties placed reliance on various decisions about which discussions will be made at the appropriate stage of this judgment in reference to the fact situation involved in the instant proceeding and the plea of violation of the principles of natural justice. During the course of hearing of the appeals, the learned counsel for the parties were provided with the opportunity to examine the materials on record and to take copies thereof. This opportunity was provided in view of the argument advanced in some of the Writ Appeals that the appellants did not get adequate opportunity before the learned Single Judge to place their case. They were also provided with the opportunity to place their case as they would have before the learned Single Judge. This procedure was adopted having regard to the argument advanced on behalf of some of the appellants regarding violation of principles of natural justice by not affording reasonable opportunity of being heard, although there is nothing on record to show that such appellants ever raised any objection before the learned Single Judge before whom the proceedings lasted for several months with the hearings for the days as indicated in the impugned judgment.(17.) THE assertion of violation of the principles of natural justice vitiating the adjudicative process has to be attended to as well. This plea in particular has been raised in some of the appeals preferred by the candidates whose selection has been set at naught by the impugned verdict. Noticing the homogeneity of the grievances expressed, it would be expedient to deal with those in common.(18.) IT has been maintained that the candidates selected were not impleaded in the writ proceedings though unmistakably they were vitally interested in the issues raised and were likely to be prejudicially affected if the challenge was upheld. According to the aggrieved appellants, the learned Single Judge by order dated 6/10/2005 had directed publication of the notice of the proceedings in four news papers namely the Assam Tribune, Sentinel, Asomiya Protidin and Amar Asom on or before 19/10/2005. By the same order, the date of hearing of the writ petitions was fixed on 8/11/2005. As steps pursuant to the above orders had not been taken by the petitioners, the learned Single Judge on 8/11/2005 ordered publication of the notice in only one news paper i. e. Asomiya Pratidin fixing 17/11/2005 to be the date of commencement of the hearing of the writ petitions. The notice so published was vague as it did not mention the case numbers, districts, selection centers etc. The concerned appellants on coming across the advertisement on 18/11/2005 filed applications for their impleadment in the related writ proceedings and also prayed for a direction to the writ petitioners to furnish copies of the writ petition to them. The learned Single Judge, however, did not pass any order on 18/11/2005 on the impleadment applications observing that an order passed earlier would govern the same. As no copy of the writ application was furnished to the appellants till 23/11/2005, they applied for the copy of the order dated 18/11/2005, which also was not supplied to them. Situated thus, they filed affidavit (s), unaware of the contents of the writ petitions.(19.) THE above notwithstanding they contended, that the writ petitioners had miserably failed to make out specific allegations, against the selected candidates and that for any deviation from the guidelines in Police Manual/selection Rules by the Government or appointing authority, they could not be held responsible therefore as it was beyond their capacity to compel the authority concerned to follow the procedure. While insisting that their selection was valid, they being qualified and found suitable for the posts, they reserved a right to file additional affidavit, as copies of the writ petitions had not been furnished to them. The appellants thereafter applied for copies of the writ petitions on 24/11/2005 so as to acquaint themselves with the exact allegations levelled against them and to file appropriate affidavit (s). The certified copies of the writ petitions so applied were not furnished till 19/12/2005 i. e. after the delivery of the judgment. These constitute the gamut of the pleaded averments of the appellants pertaining to their remonstrance against the procedure adopted in disposing of the writ petitions.(20.) ASSAILING the judgment on these counts, it has been urged that the learned Single Judge having failed to pass any order on the applications for impleadment and copies of the writ petitions, the appellants could not effectively participate in the proceedings and were in the process denied a fair and reasonable opportunity of projecting their case resulting in violation of the principles of natural justice. As at the time of fixing the writ petitions for hearing on 8/11/2005, the selected candidates were admittedly not impleaded as parties, the proceedings suffered from a serious procedural lapse. Not only the conduct of the hearing without furnishing the copies of the writ petition to the selected candidates was in disregard of the elementary principles of fair procedure, the same was in contravention of Rule 3 Chapter VA of the High Court Rules as well. The learned Single Judge also fell in error in directing the selected candidates to file appropriate affidavit (s) without either impleading them or ensuring that the copies of the writ petitions were served on them. It has been argued further that while the learned Counsels of the writ petitioners as well as of the State were permitted by the learned Single Judge to consult the relevant official records, the same privilege was denied to the selected candidates. Reliance made by the learned Single Judge on the reports prepared by the Amicus Curiae and three judicial officers in recording findings against the selected candidates without furnishing copies thereof to them has resulted in serious prejudice to their recognized right of meaningful participation in the writ proceedings. Not only the learned Single Judge did not put the parties likely to be affected to due and prior notice of the conclusions arrived at on the basis of the scrutiny of the records, he also acted upon a report dated 3/12/2005 of the learned Amicus Curiae after the conclusion of the arguments.(21.) THE course charted by the learned Single Judge in adjudicating the controversy has been severely criticized to be repugnant to the established judicial procedure thereby rendering the impugned judgment and order non est in law. Following decisions were relied upon to reinforce the above submissions. General Medical Council Vs. Spackman, 1943 AC 627, B. Surinder Singh Kanda Vs. Government of the Federation of Malaya, (1962) AC 322, Walter Annamunthodo Vs. Oilfields Workers' Trade Union, 1961 SE 945, Taylor Vs. National Union of Seaman, (1967) 1 WLR 532, Garland Vs. British Rail Engineering Ltd. , (1979) 1 WLR 1041, Chief Constable of the North Wales Police Vs. Evans, 1982 1 WLR 1155, Hadmor Productions Ltd. and others Vs. Hamilton and another, (1983) AC 191, Canara Bank and others Vs. Debasis Das and others, (2003) 4 SCC 557.(22.) PER contra, the submissions made on behalf of the writ petitioners are that the concerned appellants having been duly represented by their respective counsels in the hearing, they are estopped in law from complaining of denial of reasonable opportunity of participation therein. No grievance having been raised by them before the learned Single Judge about non-furnishing of the copies of the writ petitions or denial of opportunity of hearing, their complaint in this regard does not merit consideration in the appeals. It being manifest from the impugned judgment and order that the learned Counsels for the appellants had duly participated in the hearing espousing their cause and that no such grievance had been expressed, the veracity of the recorded facts therein cannot be permitted to be questioned at this stage. As the entire selection process had been challenged on all conceivable grounds, the plea of infringement of the principles of natural justice or denial of fair procedure is clearly unsustainable. The selection of any particular individual or individuals not having been impugned, comments made in course of the arguments on behalf of the appellants denouncing the procedure followed by the learned Single Judge was unwarranted besides being inessential for the adjudication of the points for determination. The decisions of the Apex Court in Rustom Cowasjee Cooper Vs. Union of India, (1970) 2 SCC 298, Shri CK Daphtary and Ors. Vs. Shri OP Gupta and Ors, (1971) 1 SCC 626, State of Maharastra Vs. Ramdas Shrinivas Nayak and Anr, (1982) 2 SCC 463, Shankar K. Mandal and Ors Vs. State of Bihar and Ors, (2003) 9 SCC 519, Commissioner of Endowments and others Vs. Vittal Rao and others, (2005) 4 SCC 120 were cited.(23.) THE rival submissions have received over cautious consideration. The records reveal that in all 222 writ petitions had been filed impugning the validity of the selection process. Un-successful candidates from different districts of the State presented the challenge. However, barring a very few petitions where some selected candidates were impleaded as respondents, generally they were not arrayed as party respondents. Notice on the assailment was issued on 10/2/2005, the lead case being WP (C) 976/05. By order dated 22/2/2005, Mr. SN Sharma, Sr. Advocate and Mr. PK Tiwari, Advocate were appointed as Amicus Curiae for the proceedings. On 18/5/2005, this Court required the Director General of Police, Assam, to detail a team of 10 persons to assist the Amicus Curiae to conduct a scrutiny of the selection records. The learned Amicus Curiae were required to scrutinize the records of selection of each of the districts separately and to submit a report of their findings.(24.) ACCORDINGLY, on various dates thereafter, the records were inspected by the learned Amicus Curiae in the presence of amongst others Mr. J. Patowary, learned State Counsel whereafter Mr. SN Sharma, learned Amicus Curiae submitted an interim report pertaining to nine districts on 22/6/2005. The learned Single Judge while recording the assurance of the learned Amicus Curiae that the report of the remaining districts would be submitted on or before 15/6/2005 fixed the petitions for hearing on 17/6/2005. The report submitted by the learned Amicus Curiae was ordered to be kept in custody of the Registrar I and E in a sealed cover. The inspection of the records continued and the second report was submitted by the learned Amicus Curiae on 12/8/2005. The learned Single Judge meanwhile on 14/3/2005 by an order of the same date passed in WP (C) 976/05 recorded that the affidavit in opposition had been filed by the respondents.(25.) THE reports submitted by the learned Amicus Curiae were perused by the Court and were ordered to be preserved in a sealed cover for further consideration at the appropriate time and stage. The State was granted liberty to submit its response to the enquiry/verification carried out jointly by the learned Amicus Curiae and the State Counsel. By the order dated 17/8/2005, while recording the above, the cases were fixed for hearing on 30/8/2005. The petitions were heard in part on the date fixed and the hearing continued on 2/9/2005 and the petitions were re-fixed for the said purpose on 7/9/2005. On 9/9/2005, the learned Single Judge, on a consideration of the report submitted by the learned Amicus Curiae and the arguments of the learned Counsels for the contesting parties was of the view that the reports were not demonstrative of the exact magnitude of the illegalities referred to therein and that a further scrutiny of the records was required so as to determine whether interference with the selection at all or in part or in its entirety was warranted. As noticed above, the learned Single Judge by order dated 9/9/2005 constituted a committee and laid down the parameters of the scrutiny to be conducted by it. While the committee so constituted was at its work, the order dated 9/9/2005 was appealed against by the State respondents and two selected candidates Shri Dwigen Das (Appellant No. 65 in WA 23/06) and Md. Rinu Ahmed in WA 539/05 and WA 540/05 respectively.(26.) THE Division Bench of this Court by the aforementioned order dated 4/10/2005 disposed of the appeals observing that no committee was required for the scrutiny of the records and the matter was left to the learned Single Judge to be dealt with. On the contention pertaining to non-impleadment of the selected candidates in the proceedings, the learned Appellate Bench noticed the explanation offered in one of the writ petitions that the select list not having been published their names and particulars could not be obtained so as to array them as party respondents. The parties were left at liberty to take recourse to the provisions of Order I Rule 10 as well as other provisions of the CPC on the issue leaving it open to the learned Single Judge to direct publication of the notice in newspapers so that the parties interested may appear in the proceedings if they so desired.(27.) THE learned Single Judge thereafter by order dated 6/10/2005 directed the writ petitioners to publish a notice of the proceedings in four newspapers namely Assam Tribune, Sentinel, Asomiya Pratidin and Amar Asom so as to enable the selected/appointed candidates and others interested in the proceedings to appear before the Court if so desired. While fixing the deadline for such publication to be 19/10/2005 the cases were slated for hearing on 8/11/2005 bearing in mind the desire expressed by the learned Appellate Bench for expeditious disposal of the writ petitions. The learned Single Judge recorded in the order that the application for impleadment being MC 2823/05 in WP (C) 1480/05, praying for impleadment of the applicants (selected candidates) therein and on which no order was contended to have been passed was not on record and observed that the same would be considered as and when such application (s) were placed before the Court. By a separate order dated 7/10/2005 passed in WP (C) 7350/05, the learned Single Judge required the State to publish the list of selected/appointed candidates in all districts/selection centers in the aforementioned newspapers on or before 19/10/2005.(28.) ON 8/11/2005, the learned Single Judge noted that in the notice of the proceedings published in the issue dated 19/10/2005 of the local daily Assam Tribune, the date of the hearing had not been mentioned. The learned Single Judge directed the petitioners to publish the notice of the pendency of the cases in the daily "asomiya Pratidin" specifying the date of hearing, which was fixed as 17/11/2005. The learned Single Judge reiterated that the short date was in view of the necessity of immediate disposal of the cases. All selected candidates choosing to contest the proceedings were granted liberty to file their affidavit (s) before the date of hearing. It was directed that the requirement of filing of affidavit be mentioned in the notice.(29.) BEING of the opinion that for the purpose of the adjudication of the issues raised, an exhaustive survey of the voluminous records of the selection would be essential, the learned Single Judge desired that at least three judicial officers of the rank of District Judge be nominated to assist the Court in the scrutiny thereof. Shri SN Sharma, learned Amicus Curiae was requested to continue to render his valuable assistance to the Court. Accordingly three officers were detailed to assist the Court for examining the records of the selection process by the orders of the Hon'ble Chief Justice (Acting) on 9/11/2005. By various orders passed thereafter on 17/11/2005, 18/11/2005, 21/11/2005, 23/11/2005, and 24/11/2005 all applications for impleadment were allowed and the Deputy Registrar (I and E) was directed to take necessary steps for impleading the applicants in the concerned writ petitions. The aforementioned orders clearly refer to the corresponding Misc. Cases registered on such applications. The hearing of the proceedings commenced as well on 17/11/2005 and was held on 18/11/2005, 21/11/2005, 22/11/2005, 23/11/2005, 24/11/205 and 25/11/2005. On the conclusion of the hearing as above, the judgment was delivered on 12/12/2005.(30.) A plain reading of the impugned judgment and order unequivocally proclaim that no grievance with regard to non-impleadment or delayed impleadment of the selected candidates, refusal of copies of the writ petition to them as prayed/applied for resulting in a denial of a fair and reasonable opportunity of effective participation in the proceedings had been expressed from any quarter. The judgment and order under challenge clearly demonstrate that all comprehensive arguments of the learned Additional Advocate General, Assam, touching every significant aspect of the debate had been adopted enmasse by the learned Counsels representing the selected candidates contesting the proceedings. The judgment and order impugned also mentions the names of the learned conducting Counsels for the parties. It is thus explicit that all selected candidates now in appeal had been duly heard on all relevant aspects of the controversy. They obviously chanced a favourable decision without any reservation in this regard and thus had waived any objection on the above counts. On this consideration alone their present turn around apparently lacks bonafide. In view of their omission to point out to the learned Single Judge the factum of the non-receipt of the copies of the writ petition and non-impleadment in the proceedings during the pendency thereof, they are now estopped from raising these pleas at this point of time.(31.) OUR attention has not been drawn to any material on record to evince that the appellants at any point of the time pursued their grievance in this regard before higher forums. Liberty granted by the Division Bench of this Court in WA 539/05 and WA 540/05 to the parties to take recourse to the provision of Order 1 Rule 10 CPC in response to the plea of non impleadment of the selected candidates was accepted by all concerned and the selected candidates having participated in the writ proceedings offering themselves to be impleaded therein, they cannot be further heard to complain in this regard. The records reveal that in deference to the observations made in the aforementioned appeals, the learned Single Judge had directed publication of the notice of the proceedings in the local newspapers. Not only such notice had been published, orders of impleadment on the applications filed by the selected candidates in response thereto were passed on several dates between 17/11/2005 and 24/11/2005. The affidavits were filed by the selected candidates dealing with all pertinent aspects bearing on the issue under adjudication and exhaustive arguments had been advanced on various dates between 17/11/2005 and 25/11/2005. No semblance of grievance was raised by any of the parties complaining denial of any opportunity of participation.(32.) WE have also not been invited to any prayer made by any of the parties seeking a copy of the reports of the Amicus Curiae or of the judicial officers assisting the Court in the inspection of the records. The demur that whereas the learned Counsel for the State respondents and the writ petitioners were permitted to consult the records, the selected candidates were denied the said benefit is also not borne out by the contemporaneous facts. It is not the assertion of the appellants that the pleaded contentions in their affidavit have not been addressed to by the learned Single Judge in deciding the lis. In face of the overwhelming considerations as above, we do not feel persuaded to sustain the cavil of the appellants bearing on denial of opportunity of effective and meaningful participation in the proceedings to their prejudice.(33.) INDEED the Apex Court in Shankar K. Mandal and others (supra), in reiteration of its view earlier expressed in State of Maharastra versus Ramdas, Srinivas Nayak and another (supra), had ruled that statements of facts as to what transpired at the hearing and recorded in the judgment of a Court are conclusive of the facts so stated and no one can contradict the same by affidavit or other evidence and if a party considers that the happenings in Court had been wrongly recorded, it is incumbent on him, while the matter is still fresh in the minds of the judges to call their attention thereto. Similar view was reiterated in Commissioner of Endowment and others, supra. Significantly no such endeavour has been made either.(34.) THE authorities cited at the bar to underline the cardinality and relevance of the tenets of fairness in action and natural justice, recount the well settled dictum that no person should be condemned unheard. While this profound proposition of law nurtured over the years can neither be doubted nor disregarded, the applicability thereof is essentially fact oriented. Being an equitable doctrine, the conduct of the party complaining of breach thereof ought to be bonafide and not demonstrative of an endeavour to take advantage of his omissions, under the cover thereof.(35.) IN General Medical Council, supra, a registered medical practitioner who was a co-respondent in a divorce suit was found by the Divorce Court to have committed adultery with the respondent therein to whom he stood in professional relationship. The General Medical Council issued to him notice of a meeting to decide whether his name should be removed from the medical register for his such conduct. At the hearing, the Doctor desired to call, on the issue of adultery, evidence which had not been noticed in the divorce proceedings. The refusal by the Council to hear the fresh evidence was disapproved by the House of Lords holding that it amounted to refusing him full and fair opportunity of stating his case thus violating the substantial requirements of justice.(36.) THE House of Lords in Garland (supra), interfered with the decision of the Court of Appeal varying an order for access in a wardship proceeding on the basis of a document not seen by the appellant concluding that thereby the Court had failed to meet the requirements of natural justice.(37.) IN Abraham versus Jutsun (supra), Mr. Puntan while appearing for the accused Eric Jutsun was levied costs by the Divisional Court while reversing the decision of the Magistrates Court closing the prosecution on the ground that the summonses were out of time. According to the appellate Court, Mr. Puntan in the Magistrates Court had taken a thoroughly bad and unmeritorious point, which had the effect of causing all the costs to it. The Solicitor having impugned this decision, the same was interfered with by the Court of appeal as no prior notice or opportunity of hearing had been accorded to him.(38.) THE dismissal of the plaintiff in Taylor versus National Union of Seamen, supra, by the Executive Council of the Union was set aside being contrary to the principles of natural justice as irrelevant matters to his substantial prejudice were taken note of without affording him opportunity of being heard at all upon them.(39.) THE decision to expel the appellant in Walter Annamunthodo (supra), from the respondent trade union by seeking to invoke a rule under which he had not been charged was annulled by the House of Lords being contrary to the principles of natural justice. While reiterating three basic elements of the above axiom of fair play to be (a) the complainant must be given a fair notice of the charge against him (b) he must have a fair opportunity of meeting that charge and under that is included a fair hearing. (c) the Tribunal must reach a decision, which is honest and unbiased, it was held as hereunder."it is a principal of natural justice that the man must be given notice of the charge and an opportunity to meet it and provided that he is, it is his fault if he chooses not to take advantage of it, but the notice must be such as to convey to his mind what is in danger. "(40.) IN Chief Constable of the North Wales Police (supra), the respondent Evans having applied for judicial review of the appellant's decision requiring him (Evans) to resign or be dismissed from service, the challenge was upheld by the Court of Appeal. The House of Lords while dismissing the appeal of the Chief Constable held that his decision to discharge a probationer constable was not absolute but qualified and that he was under a duty to deal fairly with the respondent in relation to the adverse factors on which he had been proposing to act. It was held that the appellant had failed in the performance of duty because the adverse factors had never been put to the respondent and that, therefore, he had no opportunity what so ever to deny the same.(41.) THE action of taking note of a report of the particulars of an enquiry containing severe condemnation of the applicant while denying him access thereto was struck down by the Court of Appeal in B. Surinder Singh Kanda (supra), being violative of the principles of natural justice. It was held that if the right to be heard was to be real and worth anything, it must carry with it a right in the accused to know the case, which was made against him and he must be given a fair opportunity to correct or contradict it.(42.) IN Hadmor Production Ltd. and others (supra), the House of Lords expressed itself on this salubrious maxim of fairness in the following terms."under our adversary system of procedure, for a judge to disregard the rule by which the Counsel are bound has the effect of depriving the parties to the action of the benefit of one of the most fundamental rules of natural justice: the right of each to be informed of any point adverse to him that is going to be relied upon by the judge and to be given an opportunity of stating what his answer to it is. "(43.) THE Apex Court in Canara Bank versus Debasis Das and others (supra), has succinctly synopsized the principles of natural justice to be rules laid down by the Courts as being the minimum protection of rights of the individual against the arbitrary procedure that may be adopted by a judicial, quasi judicial and administrative authority while making an order affecting those rights, the essence thereof being to put a party on notice of the case before any adverse order is passed against him.(44.) THE foundational facts in the reported decisions are distinctly different from those in hand. The requirement of adherence to the exigency of fair procedure notwithstanding the attendant facts do not buttress the appellants plea based thereon. Additionally, while in those cases, the adjudicative process pertained to issues concerning individuals, the scrutiny in the instant case relates to a mammoth exercise of appointment to 5486 posts in public service. Understandably the purpose of the exercise in response to the allegations levelled against the selection was to ascertain the tenability thereof and presence of any all-permeating illegality invalidating the same. The assailments witnessed in the writ petitions noticing their oneness were assayed as a whole permitting analogous hearing thereof. Deficiency in pleadings or the grounds of challenge, if any, in the writ petitions in the above premise cannot be construed to be fatal. By the same analogy of reasoning, in view of the unqualified participation of the selected candidates in the proceedings, their plea of non-impleadment therein and denial of copies of the writ petition does not merit acceptance. In a pursuit for probing the validity or otherwise of a selection process of such magnitude, any determination qua an individual case or cases has no definitive bearing.(45.) THE public process of the kind would stand invalidated only if afflicted by an all pervasive and wide spread infirmities irreversibly nullifying the same. The impugned judgment and order reveal that the findings and conclusions are based on the learned Single Judge's evaluation of the records and not founded wholly on any stray individual case. The omission to pass separate orders on each application for impleadment is inconsequential in the face of the innumerable petitions therefore. Logically the emphasis of the impeachment was not focused on any candidate in particular but the selection drill as a whole. The learned Single Judge, as the records reveal, himself consulted the relevant records in arriving at his findings and referred to the reports of the Amicus Curiae and the judicial officers only to cross-check the correctness thereof. Having regard to the indepth analysis of the recorded facts, the imputation that the conclusions are wholly report oriented is fallacious.(46.) ON an overall consideration of the emerging facts and the documents on record, we are of the unhesitant opinion that the procedure adopted by the learned Single Judge in conducting the proceedings is not in derogation of the established principles of natural justice and fairness in judicial determination. This plea therefore fails.(47.) THERE is yet another aspect which needs further reference in this regard, about which a mention has been above. In course of the analogous hearing of the appeals in addition to an unreserved liberty to the learned Counsel for the parties to advance arguments based on the records of the selection as well as reports and documents pertaining to the issues involved, leave was also granted to them to obtain copy of any relevant document required by them. Though written arguments as well had been submitted, none of the parties filed any application for or made any grievance regarding non-receipt of copy of any document, report, pleadings etc. By order dated 15/9/2006, while proposing to examine the records, we permitted the learned Counsel of the parties to remain personally present at the time of a scrutiny thereof. Accordingly the date, time and venue of the examination of the records of the selection process relating to the districts and/or stations interfered with by the learned Single Judge were duly notified. Incidentally the determination of the learned Single Judge declining to interfere with the selection in the concerned districts had remained unquestioned. Thereafter on various dates between 21/9/2006 and 16/10/2006, the said records were examined by the Bench in presence of the learned Counsel for the parties. In course of the exercise which involved a detailed analysis of the cases of each individual candidate vis--vis all relevant records bearing on their assessment, none of the learned Counsel for the parties raised any query or objection of any kind.(48.) ON the completion of the survey of the records, the appeals were again listed for hearing on 30/10/2006. On that date as well, none of the learned Counsel for the parties volunteered to make any submission either based on records or otherwise inspite of the leave granted by the Bench as a final opportunity for doing so. It was submitted at the bar that no further arguments would be advanced. The hearing of the appeals was in the circumstances finally closed. In the above premise, the learned Counsels for the parties having been afforded all reasonable opportunities of consulting the records and highlighting grievances, if any on the issues of impleadment, non-supply of copies of the writ petition etc. in course of the hearing of the appeals and they having chosen not to avail the same, the plea of want of fairness is of no consequence on this ground as well.(49.) BEFORE parting with this aspect of the impugnment, we feel impelled to record our disapproval of the unpropitious disposition and comments of the learned Sr. Counsel for the appellants in WA 23/2006 (Shri Kanak kalita and another Vs. State of Assam and others) sharply criticizing the learned Single Judge of having violated the fundamental essentials of judicial procedure in conducting the writ proceedings. The imputations exceeded all reasonable limits of restraint and in the circumstances were wholly unfounded as well as uncalled for in deciding the issues raised. We refrain from commenting further except that the verbal onslaught had not been in good taste and was not expected of a learned Senior Counsel at the Bar.(50.) AFTER having dealt with the basic facts, pleadings, proceedings before the learned Single Judge, arguments advanced by the learned counsel for the parties, the plea of violation of the principles of natural justice and the adopted norm of probable number of candidates that could be interviewed per day and having scrutinized the entire records in the above manner to quell any doubt, we, now proceed to deal with the selection district/battalion wise.
"2007 (1) GauLT 260"