Judgment & Order (Oral):

1. Heard Mr. D. P. Borah, the learned counsel appearing on behalf of the petitioner. Mr. G. Baishya, the learned Standing Counsel appears on behalf of the Gauhati High Court. Mr. R. J. Das, the learned counsel appears on behalf of the respondent No.6 in WP(C) No.1056/2024 and Mr. K. Gogoi, the learned Additional Senior Government Advocate appears on behalf of the State respondents.

2. The two writ petitions are interconnected, and as such, the same are taken up for disposal by this common judgment and order.

3. WP(C) No.1056/2024 is filed by the petitioner seeking a direction that the petitioner being a wait listed candidate should be appointed against the vacancy which have arisen in view of the resignation of the selected candidates in the OBC category. WP(C) No.3666/2024 has been filed by the same petitioner challenging the action on the part of the Respondent Authorities to initiate the process for filling up the vacancy of Jarikarak in the OBC category which came into existence in view of the resignation of the selected candidates in pursuance to the select list dated 26.04.2022.

4. The question which arises in the instant proceedings is as to whether the petitioner herein is entitled to any relief as has been sought for. For deciding the same, this Court finds it pertinent to take note of the brief facts which led to the filing of both the writ petitions.

FACTUAL MATRIX

5. The Office of the District and Sessions Judge, Hojai had issued an advertisement dated 08.07.2021 for filling up of various posts which includes five posts of Jarikarak. In the said advertisement, it is further mentioned that one post was reserved for OBC; one post was reserved for ST(P) and three posts were in the Unreserved Category. The petitioner who belongs to the OBC category participated in the said selection process. On 26.04.2022, a select list was published in the order of merit for the post of Jarikarak. The petitioner did not find place in the said select list amongst the five selected candidates. However, the petitioner was put at Sl. No.2 in the waiting list in the OBC category.

6. It is the case of the petitioner that the Sri Kapil Dev Sah who was appointed in pursuance to the select list dated 26.04.2022 was issued a show cause notice in as much as the said Kapil Dev Sah was not eligible to apply for the post of Jarikarak as he was over qualified. Pursuant thereto, the said Kapil Dev Sah submitted his letter of resignation on 27.09.2022 due to personal reasons. It is therefore the case of the petitioner that as the post of Jarikarak in the OBC category fell vacant, the petitioner who was at Sl. No.2 of the waitlist should be given appointment and should be appointed against the said post. Being aggrieved by the action on the part of the authorities in not appointing the petitioner against the vacancy which came into existence, the petitioner approached this Court by filing WP(C) No.1056/2024 seeking a direction that the petitioner should be appointed to the post of Jarikarak against the resultant vacancy which arose in view of the resignation of Sri Kapil Dev Sah.

7. The record reveals that this Court vide an order dated 28.02.2024 issued notice. However, there was no interim direction passed.

8. The records reveal that the respondent No.3 has filed an affidavit-in-opposition wherein the facts above noted were duly mentioned. Apart from that, it was also mentioned that addition to Sri Kapil Dev Sah, one Sri Bijoy Singha was over qualified too to apply to the post of Jarikarak. There is no mention in the affidavit as to why the petitioner cannot be considered for the post which fell vacant in the affidavit-in-opposition, except the fact stated that the petitioner never approached the respondent No.3.

9. The record further reveals that while WP(C) No.1056/2024 was pending, the respondents took a decision to fill up two vacant posts of Jarikarak which arose on account of the resignation of Sri Bijoy Singha and Sri Kapil Dev Sah and accordingly issued an advertisement on 03.05.2024.

10. The petitioner being aggrieved challenged the said advertisement dated 03.05.2024 by filing WP(C) No.3666/2024.

11. This Court vide an order dated 24.07.2024, issued notice. However, there was no interim direction passed.

12. It is further seen that during the pendency of both the writ petitions, a notification was issued on 12.11.2025 for filling up of the post of Process Server in the establishment of the District and Sessions Judge, Hojai, pursuant to the advertisement dated 03.05.2024. The petitioner coming to learn about the same, filed an Interlocutory Application seeking stay of the written test which was to be conducted on 07.12.2025.

13. The record further reveals the respondents have filed the affidavit-in-opposition in WP(C) No.3666/2024 wherein it is the specific stand of the respondents that the wait listed candidate has no right to claim appointment after appointments have been duly made in favour of the selected candidates. If a vacancy arises pursuant to the resignation, the same is required to be filled up by following the mandate of Article 14 and 16 of the Constitution.

SUBMISSIONS BY THE LEARNED COUNSEL FOR THE PARTIES.

14. Mr. D. P. Borah, the learned counsel appearing on behalf of the petitioner submitted that taking into account that the said Sri Kapil Dev Sah was not eligible the very appointment order was nonest, and as such, it cannot be construed that the post was filled up by making a due appointment, and under such circumstances, the petitioner has a right being a wait listed candidate, to be appointed against the vacancy which arose on account of the resignation of Sri Kapil Dev Sah. He therefore submits that instead of considering the same, the respondent authorities have initiated a fresh selection process vide the advertisement dated 03.05.2024, and as such, this Court may pass appropriate directions upon the respondent authorities to appoint the petitioner against the vacant post of Jarikarak in the OBC category and set aside the advertisement dated 03.05.2024 in so far as the post of Jarikarak in the OBC category is concerned.

15. Mr. G. Baishya, the learned counsel appearing on behalf of the respondents submitted that the petitioner herein has sought for a writ in the nature of mandamus seeking directions upon the respondent authorities to appoint him against the vacancy which arose on account of the resignation of Sri Kapil Dev Sah. The learned Standing Counsel submitted that the petitioner never approached the respondent No.3 and directly approached this Court. On this aspect alone, the writ petition being WP(C) No.1056/2024 ought to be dismissed. The learned Standing Counsel further submitted that if WP(C) No.1056/2024 is dismissed, nothing further remains in WP(C) No.3666/2024. On merits, Mr. G. Baishya, the learned Standing Counsel appearing on behalf of the respondents submitted that pursuant to the appointment made to Sri Kapil Dev Sah, the select list which was published on 26.04.2022 stood exhausted in so far as the post of Jarikarak in the OBC category was concerned. He therefore submitted that none of the wait listed category candidates in the OBC category has any right and not to speak of the petitioner who was at Sl. No.2. In that regard, he referred to the judgment of the Supreme Court in the case of Trishur District Cooperative Bank Limited vs. Delson Davis P. and Others, reported in 2021 (14) SCC 407.

ANALYSIS AND DETERMINATION

16. This Court has duly heard the learned counsels appearing on behalf of the parties and has perused the materials on record. From a perusal of the advertisement which was issued on 08.07.2021, it is seen that the said advertisement was issued for filling up of five posts of Jarikarak out of which one post was reserved for OBC, one post for ST(P) and three posts for Unreserved Category. It is also seen that Sri Bijoy Singha who was an OBC category candidate, on account of his merit, was selected against an unreserved category post whereas Sri Kapil Dev Sah was selected against the OBC category post. There is no denial to the fact that the select list which was issued on 26.04.2022 was duly acted upon and appointments were given to all the selected candidates appointed to the post of Jarikarak. It is also seen from the materials on record that on account of information available to the District and Sessions Judge, Hojai, show cause proceedings were initiated against Sri Bijoy Singha and Sri Kapil Dev Sah on the ground that they while submitting their applications did not disclose that they were over-qualified. The records also reveal that both Bijoy Singha and Sri Kapil Dev Sah have resigned.

17. The question therefore arises as to what is the effect of their appointment upon select list and as to whether the wait listed candidates would have any right to get selected against those posts wherein the vacancies arose on account of the candidates, namely, Sri Bijoy Singha as well as Sri Kapil Dev Sah having submitted their resignation. The answer to the same can be seen from the judgment of the Supreme Court in the case of Thrissur District Cooperative Bank Limited (supra) wherein the Supreme Court observed that when once the selection process is completed and the appointments have been made, that process has come to an end and if any vacancy arises upon the appointee joining the post and directs his office, it must be treated as a fresh vacancy. Paragraph No.3 of the said judgment being relevant is reproduced hereunder:

                   “3. We fail to understand the reasoning of the High Court in this regard. When once the selection process is complete and appointment had been made, that process comes to an end and if any vacancy arises on the appointee having joined the post leaves the same, it must be treated as a fresh vacancy and fresh steps in accordance with the appropriate rules should be taken. This view is fortified by the judgment of this Court in State of Punjab v. Raghubir Chand Sharma. Any temporary arrangement made during the interregnum will not entitle respondent No. 1 to claim for permanent employment. In that view of the matter, we allow this appeal, set aside the order made by the High Court and dismiss the writ petition filed by the respondent No. 1.”

18. The above quoted paragraph of the said judgment, if applied to the facts of the instant case would show that the resignation of Sri Bijoy Singha and Sri Kapil Dev Sah led to creation of fresh vacancies in the two posts of Jarikarak, one in the Unreserved Category and other in the OBC category. Therefore, the petitioner has no right to claim that he be appointed against those vacancies on the basis that the petitioner was a waitlisted candidate. The resultant effect of the above analysis is that if the petitioner cannot have a right or a claim against the fresh vacancies which have arisen, the petitioner also does not have a right or a claim to seek quashing of the fresh advertisement issued on 03.05.2024 for filling up the two posts of Jarikarak of which one is reserved for the OBC and the other unreserved.

CONCLUSION

19. In view of the above analysis and determination, the instant writ petition stands disposed of with the following observations and directions:-

                   (i) The writ petition being WP(C) No.1056/2024 lacks merit and accordingly stands dismissed.

                   (ii) The writ petition being WP(C) No.3666/2024 lacks merit and accordingly stands dismissed.

                   (iii) The Respondent Authorities are directed to proceed with the selection process for the two posts of Jarikarak forthwith, if not already completed.

                   (iv) No costs.