Saingura Sailo v. State of Mizoram and Ors. — 1996 DIGILAW 94 (GAU)

D.N.Chowdhury, J.- Saingura Sailo, has come to this Court as pro-bono-publico mainly questioning the Government decision in the matter of recruitment of 142 Post Graduate Teachers (hereinafter referred as PGT) in various upgraded Government Higher Secondary Schools under the School Education Department ' sought to be recruited by the concerned Department instead of drafing through the Mizoram Public Service Commission (hereinafter referred as MPSC). 2. The State of Mizoram is as in a nascent stage, established in the year 1986 by an Act of the Parliament, the State of Mizoram Act, 1986, the MPSC was formed sometime in 1994. Prior to the constitution of the MPSC the Government of Mizoram itself was to recruit persons through Departmental Promotion Committee in accordance with procedure laid down in Civil Service Regulation and other executive orders issued by the Government from time to time. A Selection Committee at all relevant time used to recommend in the matter of appointment/promotion in Group A and B category posts in the Government of Mizoram. On the establishment of MPSC the Government decided to transfer all cases of appointment/promotion to Group A and B posts under the Mizoram to the MPSC for its recommendation. On setting up of the MPSG, the Governor of Mizoram in exercise of the power conferred on it by the provisions of clause (3) of the Article 320 of the Constitution of India made a regulation name and style as MPSC (Limitation of Function) Regulation, 1994 vide Mizoram Gazette Extra Ordinary dated 20.7.1994. The relevant clause namely the clause 3 and clause (b) of clause 4 are extracted below : "3. It shall not be necessary for the Commission to be consulted in matters relating to methods of recruitment to civil services and posts or the suitability of the candidates for such appointments, in the following cases namely : (a) When an appointment is to be made by the Governor or by an authority other than Governor to a post on a scale of pay the maximum of which is less than Rs.2,900/- per month. 4. It shall not be necessary to consult the Commission on the principles to be followed in making promotions or on the suitability of candidates for promotion in the following cases : (a) Promotion to a service by an authority other than the Governor. 4. It shall not be necessary to consult the Commission on the principles to be followed in making promotions or on the suitability of candidates for promotion in the following cases : (a) Promotion to a service by an authority other than the Governor. (b) Promotion from a lower to higher grade or post within the time scale of pay provided in the rules unless the promotion is to be made selection. (c) Officiating promotion for a period which is not likely to last for more than one year." On the constitution of the MPSC the Government of Mizoram vide office memorandum No.A.32012/l/81-APT (B) dated 24th August, 1994 dissolved the Selection Committee constituted with a notification No.A.32012/1/81 -APT (B) dated 26th October, 1989 in respect of appointment to Group A and B posts under the Government of Mizoram. From the MPSC (LOF) Regulation. 1994 it appears that the Commission was not required to be consulted in the matter of appointment to be made by the Governor or by any other authority than Governor to a post of a pay scale is less than Rs.2,900/-. If the scale of pay is more than Rs.2,900/- even in the case of non gazetted posts the Government was required to consult the Commission in the matter of recruitment in such posts. By the notification published in Mizoram Gazette Extra Ordinary issued dated 20.5.1996 an amendment was brought to the MPSC (LOF) (Amendment) Regulation, 1996. The clause 2 and 3 of the said Regulation being pertinent and are therefore quoted below: "2. The existing provision under Rule 3 (a) in respect of Limitation of Functions in matters relating to methods of recruitment, shall be substituted by the following: "When an appointment is to be made by the Governor or by an authority other than the Governor in respect of all Non-Gazetted posts." 3. The existing provision under Rule 3 (a) in respect of Limitation of Functions in matters relating to methods of recruitment, shall be substituted by the following: "When an appointment is to be made by the Governor or by an authority other than the Governor in respect of all Non-Gazetted posts." 3. The existing provisions under Rule 4 (b) relating to Limitation of Functions in respect of promotion, shall be substituted by the following : "Promotion from a lower to higher grade or posts in respect of all Non-Gazetted posts." By the amendment of clause 3 (a) it is not necessary now for the State Govt to consult the MPSC relating to the recruitment of civil service posts or the suitability of the posts for such appointment as regards non gazetted posts In respect of all non gazetted posts in view of similar amendment of clause 4 (b), the Government of Mizoram is not required to consult the Commission on the principles to be followed for promotion or suitability of candidates for promotion in the case of promotion from lower to higher grade or posts in respect of non gazetted posts. By this amendment all non-gazetted posts are taken out of purview from the consultation of the MPSC and no distinction is now retained as regards to the scale of pay in respect of non gazetted posts as was earlier maintained. 3. Consequent upon the amendment of the MPSC (LOF) Regulation, 1994 withdrawing cases of promotion/appointment to all Group B (non-gazetted posts) from the purivew of the MPSC and in partial modification of the office memorandum dated 24.8.94 the Governor of Mizoram constituted Selection Committee for making recommendation in matter of appointment/promotion of Group B (non gazetted posts in the scale of pay of maximum of which is Rs.3,200/- vide notification dated 3.6.96 Annexure 6 of the writ petition. By the said notification the Chief Secretary, is to head of the Selection Committee as Chairman with three other members namely Secretary of the Departraerit concerned, Head of the Department concerned and the Secretary, Department of Personnel and Administrative Reforms as Members. By another notification dated 4th. January, 1996 the Govt of Mizoram constituted the DPC for Group C posts circulated vide order No.HAP/B/102/73/32 dated 12.4.1975 also to function for DPC for making recommendation in the matters of appointment/promotion to Group B (non gazetted) posts in the case of pay of Rs. By another notification dated 4th. January, 1996 the Govt of Mizoram constituted the DPC for Group C posts circulated vide order No.HAP/B/102/73/32 dated 12.4.1975 also to function for DPC for making recommendation in the matters of appointment/promotion to Group B (non gazetted) posts in the case of pay of Rs. 1,640 - 2,900. 4. Before the amendment of the MPSC (LOF) (Amendment) Regulation, 1996 the said Government was required to consult in all cases of appointment including appointment of non gazetted posts carrying the scale of pay above Rs.2,900/-. With a view to fill up 142 posts of PGT in various upgraded Government Higher Secondary Schools under the Schools of Education Department the State Government vide letter dated 25.4.1996 requested the MPSC to take steps for filling up those posts of PGT by direct recruitment as per recruitment rules. In pursuance of the aforesaid recruitment rules dated 25.4.96 the MPSC made advertisement under Advertisement No. 10 of 1996-97 dated 2.5.96 on the amendment of the regulation withdrawing the case of ' appointment to all Group B (non gazetted) posts from the purview of the MPSC. The State Government issued notice inviting all concerned that DPC constituted by the Government will conduct personal interview of all the candidates who have already submitted their application to the MPSC for the post of PGT in different ungraded Government Higher Seconary Schools in Mizoram as per programme given in the notice. According to the said programme the interview had to be started on 17.6.96 and was to be concluded on 22.6.96. The change of forum of recruitment has caused some reverberation in some quarter, asserts the petitioner. According to the petitioner such discontents are also reflected in the Executive Meeting on the Mizo Zirla Pawl as referred in Annexure 10 of the writ petition. The petitioner contends that decision of the State Govt departing from its earlier practice of consulting the MPSC in the matter of recruitment of the 1-42 PGT smacks of malafide and exhibits the improper motive of the respondents and as such the impugned actions are being challenged in this writ petition. 5. Mr. AK. Bhattacharyya. learned Senior Advocate, appearing on behalf of the petitioner attacked the impugned actions on the following grounds : According to Mr. 5. Mr. AK. Bhattacharyya. learned Senior Advocate, appearing on behalf of the petitioner attacked the impugned actions on the following grounds : According to Mr. Bhattacharyya the State Govt by its conscious judgment decided to request the MPSC by a letter dated 25.4.96 to initiate action for 142 PGT by direct recruitment. After the said decision the MPSC acted upon the same and invited applications from the candidates and have taken all necessary steps for completing the process and thereafter the State Govt arbitrarily with oblique motive decided to recruit those 142 PGT through Selection Committee of its own. The Public Service Commission is a highly placed constitutional authority and it possesses the necessary expertise to select the persons and there cannot be any discernible reason for withdrawing the same from the purview of the Public Service Commission submits Mr. Bhattacharyya. In this context Mr. Bhattacharyya. has drawn our attention to the minutes of the informal meeting of the Council of Ministers held on 17.5.96 in the Office Chamber of Minister, Home etc and the acting Chief Minister. By its decision No.2 the said meeting deliberated on the recruitment of non gazetted posts and decided that recruitment for non gazetted posts should be made by the respective department. According to Mr. Bhattacharyya, the decision of the 17th May, 1996 was hastily given effect to on the 20th May being a Monday and thereafter the Government displayed its extreme zeal in completing the process of recruitment. According to Mr. Bhattacharyya, the very pace at which the Government is moving is not in the public interest but with some ulterior motive. Mr. Bhattacharyya submits that no valid reasons are forthcoming from the State Government in passing over the matter of selection to the Selection Committee by withdrawing the same from the Public Service Commission. Mr. Bhattacharyya, further submits that once the Government has decided to switch over the matter of recruitment to the Public Service Commission after a due deliberation in legitimate exercise of its power it cannot now go back and withdraw the same from the Public Service Commission so much so that the Government has already exhausted its power in this regard. Mr. Bhattacharyya, further submits that once the Government has decided to switch over the matter of recruitment to the Public Service Commission after a due deliberation in legitimate exercise of its power it cannot now go back and withdraw the same from the Public Service Commission so much so that the Government has already exhausted its power in this regard. Mr. Bhattacharyya also submitted that the handing over of the matter of recruitment in respect of the 142 PGT in accordance with the 'MPSC (LOF) Regulation, 1994, which was amended only oh 29th May, 1996 and before that the Govt has already exercised it power and handed over the same to the MPSC under the unamended rule. According to Mr. Bhattacharyya the amendment being prospective in nature the recruitment in this case is to be regulated by the MPSC unamended regulation. On the very first day when the matter came to us as a motion Mr. DP Chaliha assisted by Mr. KP Pathak entered appearance and sought time till 20.6.96 for obtaining records pertaining to the case. Mr. DP Chaliha, learned Advocate General, Mizoram appearing on behalf of the State firstly submits that the entire matter relates to appointment and recruitment and in such cases it does not confer any right to individual candidates or persons to question the wisdom of the Government in consulting or not consulting the Public Service Commission. Article 320 (3) only imposed a duty to the Public Service Commission. Proviso to Article 320 (3) enables the President or the Governor as the case may be to make regulations specifying the matters in which either generally or in any particular circumstances, it shall not be necessary to a Public Service Commission to be consulted. The petitioner according, to the learned counsel, is also cannot be treated as Public Interest Litigation so much so that no question of breach of any public duty is alleged nor any right has been conferred on the applicant to complain about any unlawful act so far committed by the respondents. The Court before entering into decision of the case on merit is required to enquire as to whether the petitioner has sufficient interest to move this Court as pro-bono-publico, submits Mr. Chaliha. Whether the petitioner has sufficient interest, is not purely a matter of discretion of the Court asserts Mr. Chaliha. Mr. The Court before entering into decision of the case on merit is required to enquire as to whether the petitioner has sufficient interest to move this Court as pro-bono-publico, submits Mr. Chaliha. Whether the petitioner has sufficient interest, is not purely a matter of discretion of the Court asserts Mr. Chaliha. Mr. Chaliha further submits that there is no merit in the writ petition requiring judicial review from this Court. The Court in India has already interpreted and expanded to a large extent the concept of locus stands. The writ petition may now be moved not only by an aggrieved person but also can be presented by a public spirited individual or by social actions group etc, for enforcement of constitutional or legal right of some other persons who are not capable to approach the Court for redress of its grievances but owing to poverty and social and economical impediment in enforcing their rights. Schiemann, J. in RV Secretary of State for Environment, ex-parte Rose Theatre Trust Co reported in (1990) 1 All ER 754 (766) propounded the following propositions in this field of law. "1. Once leave has been given to move for judicial review, the Court which hears the application ought still to examine whether the applicant has sufficient interest is not purely a matter of discretion in the Court. 2. Whether an applicant has a sufficient interest is not purely a matter of discretion in the Court. 3. Not every member of the public can complain of every breach of statutory duty by a person empowered to come to a decision by that statute. To rule otherwise would be to deprive the phrase 'a sufficient interest' of all meaning. 4. However, a direct financial or legal interest is not required. 5. Where one is examining an alleged failure to perform a duty imposed by statute it is useful to look at the statute and see whether it gives an applicant a right enabling him to have that duty performed. 6. Merely to assert that one has an interest does not give one an interest. 7. The fact that some thousands of people join together and assert that they have an interest does not create an interest if the individuals did not have an interest. 8. 6. Merely to assert that one has an interest does not give one an interest. 7. The fact that some thousands of people join together and assert that they have an interest does not create an interest if the individuals did not have an interest. 8. The fact that those without an interest incorporated themselves and give the company in its memorandum power to pursue a particular object does not give the company an interest." Public interest litigation, no doubt is an important development in the our legal system. The following authorities from the speech of Lord Diplock in IRC vs. National Federation of Self Employed and Small Business Ltd reported in (1981) 2 All ER 93 containing the following passages are being recalled here. "It would, in my view, be a grave lacuna in our system of public law if a ' pressure group, like the federation , or even a single public spirited taxpayer, were prevented by outdated technical rules of locus standi from bringing the matter to the attention of the Court to vindicate the rule of law and get the unlawful conduct stopped. The Attorney General, although he occasionally applies for prerogative orders against public authorities that do not form part of Central Government in practice never does so against Government departments. It is not, in my view, a sufficient answer to say that judicial review of the actions of officers or departments of Central Government is unnecessary because they are accountable to Parliament for the way in which they carry out their functions. They are accountable to Parliament for what they do so far as regards efficiency and policy, and of that Parliament is the only judge; they are responsible to a Court of justice for the lawfulness of what they do, and of that the Court is the only judge; (see (1981) 2 All ER 93 at 107)." Instead of detaining us as to the locus of the petitioner we have decided to look into the merits of the challenge. In the words of Professor Sir William Wade in Administrative Law, (7th Edition 1994) P.712 "the real question is whether the applicant can show some substantial default or abuse and not whether his personal rights or interests are involved." It is also difficult to hold that the petition is instituted by a 'mischief maker' or busybody and accordingly we proceed to decide the case on merit. Article 226 of the Constitution of India invested the High Court, the constitutional role of judicial review. Judicial review is a mechanism by which the High Court oversee and control the exercise of the Government power. It is devised to ensure that the public bodies that exercises executive, legislative or adjudicatory power are kept within the limits of the power conferred. Here the Courts are concened with the legality of the decision making process but not with the merits of the decision. The Courts are accordingly to see that the administrative authorities act lawfully within the confines of its power. It is no doubt true that it is the executive which is accountable to the people (electorates) for its decisions and policies and the electorate monitors it through the Parliament and the State Legislative. But when the Executive or the Legislative, exceeds its bounds and thereby acts unlawfully and thereby adversely affects the individual or collective rights of persons the Courts are to spring into action and exercise the power of judicial review to upheld the rule of law. 'Judicial review' is not an appeal from a decision, but a review of the manner in which the decision was made, (per Lord Brightman in Chief Constable of the North Wales Police vs. Evans (1981, TWLR 155. The appellate Court possesses the power to review the case and substitute its own view in the place of the decision of the inferior Court. "The purpose of judicial review is to ensure that the individual is given a fair treatment and not to ensure that the authority after according fair treatment reaches on a matter which it is authorised or enjoined by law to decide for itself a conclusion which is correct in the eyes of the Court (Lord Chief Constable of North Wales Police vs. Evans, (supra). Policy decision are to be determine by the executives and it is not for the Court to commandeer thereon. Policy decision are to be determine by the executives and it is not for the Court to commandeer thereon. In Notting Hamshire Country Council vs. Secretary of State for the Environment (1986) AC 240 the House of Lords held that the Court should not intervene to quash guidance drafted by the Secretary of State "unless and until a statute provides otherwise or it is established that the Secretary of State has abused his power, these are matters of political judgment for him and for the House of Commons. They are not for the Judges or its Lordships House in its Judicial Capacity". Following the decision of Netting Hamshire Country Council (supra) the House of Lords in Hammersinith Fulham London Borough Council vs. Secretary of State for the Environment reported in (1990) 3 All ER 589 concenring penalising local authorities for exceeding their budgets, the Court held the decision was not open to challenge on the grounds of irrationality. Judicial review under Article 226 of the Constitution can be made against the breach the fundamental rights or any statutory rights. Judicial review is also permissible where a decision has been reached in an unreasonable manner or in violation of the principles of natural justice. The House of Lords sought to rationalise the grounds of judicial review. In Council for Civil Service Union vs. Minister of State for Civil Service known as CHQ Case, (1985) AC 374 and observed that the judicial review could be made on three heads, viz; 'illegality', 'irrationality' and 'procedural impropriety'. Lord Diplock further expounded the ground of judicial review on the consideration, proportionality e.g. when the penalty imposed is disproprtionate to the punishment. Keeping in view the principles set forth above, we shall now adjudge the contention of the parties. Chapter XIV of the Constitution relates to "Services under the Union and States". Chapter I of the said part deals with services, contained in Article 308 to 313. Chapter II of the Part XIV embodied in Articles 315-323 relates to "Public Service Commission". The Article 320 appertains to the functions and duties of the Public Service Commission. It does not confer any right on a person like that of Article 311 of the Constitution of India. A civil servant can enforce a right under Article 311 of the Constitution of India in a Court of law. The Article 320 appertains to the functions and duties of the Public Service Commission. It does not confer any right on a person like that of Article 311 of the Constitution of India. A civil servant can enforce a right under Article 311 of the Constitution of India in a Court of law. Proviso to Article 320 enables the President as respects of the All India Services and also as respects of other services and posts in connection with the affairs of the Union and the Governor as respects other services and posts in connection with the affairs of a State for making regulations specifying the matters in which either generally or in a particular class of case or in any particular circumstances it shall not be necessary for Public Service Commission to be consulted. The State Govt therefore on the strength of provision under Article 320 was within its jurisdiction in amending the MPSC (LOF) Regulations 1994 and withdraw the cases of appointment of 142 PGT from the purview of the MPSC in the writ petition. Though the validity of the Regulation was challenged in the petition in course of argument Mr. Bhattacharyya the learned senior counsel has given up the question of the validity of the Regulation in his usual candid manner. On the face of the Regulation, we do not find any infirmity in the action of the State by taking away the matter of appointment of these 142 PGT from the purview of I MPSC. The decision to consult or not to consult the PSC is with in the domain of the Executive Policy and those policy decisions unless it is in violation of the Constitution or any other law of the land. The writ Court will not intercept in the framing of or alteration of the administration policy of the Government, because the decision is not upto the expectation of the Court. We also do not find any vice in withdrawing the matter of appointment of the 142 PGT from the MPSC and handing over the said to the Selection Committee, because after the Amendment (LOF) Regulation 1996 the MPSC ceases to have any authority on the matter of selection of non-gazetted posts. We also do not find any vice in withdrawing the matter of appointment of the 142 PGT from the MPSC and handing over the said to the Selection Committee, because after the Amendment (LOF) Regulation 1996 the MPSC ceases to have any authority on the matter of selection of non-gazetted posts. If the Government has power to hand over the subject matter to the MPSC and for that matter to any other authority it necessarily also has the power to withdraw the same and such power does not get exhausted. The action of the respondents namely holding of the informal Cabinet Meeting on 17.5.96 and publication of the Amended MPSC (LOF) Regulations 1996 does not exhibit any impropriety or malice of the respondents. Before the amendment a part of recruitment of the non-gazetted officer upto Rs.2,900/- was under the State Government and above scale of Rs.2,900/- was under the MPSC and the MPSC was required to be consulted in the matter of recruitment in the civil service so far relating to the fresh recruitments are concerned. However the promotion from a lower to higher grade or post within the time scale of pay provided in the rules including that of Group B officers, fall within the province of the Selection Committee, though the person could be promoted and thereafter appointed to a non gazetted Group B posts on the recommendation of the DPC and such cases of promotion were not within the ambit of the MPSC. With a view to achieve uniformity in this matter, the Govt adopted this procedure. The amended regulation is prospective in operation and therefore from 20.5.96 the Commission is not required to be consulted in the matter on recruitment of civil service and posts or suitability of candidates for such appointment in all non gazetted posts. In the facts and circumstances, the term 'retrospectivity' is inapt. On the combined effect of the MPSC (LOF) (Amendment) Regulations 1996 the Mizoram Education and Human Resources Department Group B Rules 1996 and the Govt. In the facts and circumstances, the term 'retrospectivity' is inapt. On the combined effect of the MPSC (LOF) (Amendment) Regulations 1996 the Mizoram Education and Human Resources Department Group B Rules 1996 and the Govt. notification No.A.32012/l/81-APT(B) dated 3.6.96 and the even No. Notification dated 4.6.96 we hold that the respondents acted within its jurisdiction by inviting/ notifying candidates about the date of personal interview as per Annexure 9 of the writ petition and as such we do not find any infirmity on the part of the respondents in proceeding with the interview and recruit persons on the basis of recommendation of the Selection Committee. The last submission of Mr. Bhattacharyya, learned senior counsel for the petitioners that the procedure adopted by the Govt. for recruiting these 142 persons solely on the basis of viva voce is arbitrary and therefore it is liable to be struck down. We do not find any merit in this submission of Mr. Bhattacharyya on two grounds firstly the petitioner for that matter could not substantiate before us that even MPSC in the case of earlier recruitments in the Group B non gazetted services followed the procedure of written test other than viva voce where the rules of recruitment do not envisaged any such procedure. We can not find any fault that the selection by interview alone is violative of Article 14 of the Constitution. Normally it mav be desirable to conduct written test but if rules do not enjoin any such obligation we can not hold that the authority should not appoint persons only on the basis of viva-voce. Besides if appointments made are otherwise illegal or the procedure adopted is unfair it will open for the persons aggrieved to approach the appropriate authority for redressal of their grievances. But simply there is some possibility of misuse by holding viva-voce test we can not come to the conclusion that the action is arbitrary or without jurisdiction. It is entirely for the authority for deciding as to what kind of examination would be held for recruiting persons. The decision reported in (1981) 1 SCC 722 cited by the learned counsel for the petitioner also (1985) 4 SCC 417 , (1995) Suppl (1) SCC 206 as cited by the learned counsel for the petitioner are not applicable in the instant case. The decision reported in (1981) 1 SCC 722 cited by the learned counsel for the petitioner also (1985) 4 SCC 417 , (1995) Suppl (1) SCC 206 as cited by the learned counsel for the petitioner are not applicable in the instant case. The aforesaid decisions do not lay down a law that holding of selection on the basis of interview for fresh cases are arbitrary. In this regard the decision in Anzar Ahmed vs. State of Bihar reported in AIR 1994 SC 141 wherein the decisions reported in (1981) 1 SCC 722 , Ajay Hasia vs. Khalid Mujib Sehravardi and (1985) 4 SCC 417 , Ashok Kumar Yadav vs. State of Haryana were referred to. The Supreme Court in the above decision held that the Court was unable to construe the said decisions of Ashok Kumar Yadav (supra) and Mohinder Singh Garg reported in (1991) 1 SCC 662 to mean that the principles which govern the allocation of marks for interview in the selection based on a written and viva test would apply to a selection where no written test is held and the selection is based on interview only. We do not find that the procedure adopted by respondents in this regard suffers from the vice of arbitrariness requiring interference from this Court. We also could not persuade ourselves to hold that the holding of viva-voce test as illegal on the possible ground of misuse of the power reposed on the Selection Board. We do not find any merit in this writ petition and accordingly this writ petition is dismissed. However parties are left to bear their own costs.