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2002 DIGILAW 68 (GAU)

Tabiram Mirang v. A. P. Public Service Commission

2002-02-06

P.G.AGARWAL

body2002
P.G.AGARWAL,J. — Heard Mr. Michi, learned counsel for the petitioners, Mr. Pertin, learned counsel for the respondents as well as the learned Govt Advocate. 2. On 5th of March, 2001, the Department of Education, Govt. of Arunachal Pradesh sent a requisition to the Arunachal Pradesh Public Service Commission, Itanagar for short 'Commission' to send a panel of selected candidates for recruitment of lecturers against the vacancies described in the appendix to the letters. Pursuant to that, Commission issued an advertisement and the petitioners alongwith the others participated in the selection process. Vide Annexure-E, dated 24th of July 2001, Commission recommended the names of four candidates against the subjects mentioned therein. The name of the petitioners did not appear in the said selection. 3. The first submission of the petitioners is that the Commission was required to conduct a selection process and forward the names of all the qualified candidates to the Government and it was for the Govt. to make appointments from the panel of selected candidates. It is stated that the Commission cannot sit over the matter of selection by recommending one name only and the names of all selected/qualified candidates should have been recommended or referred to the Govt. In support of the submission, the learned counsel has placed reliance on the decision of the Apex Court in the case of Ms. Nilima Sungla -Vs- the State of Haryana, AIR 1987 SO 169. On perusal of the above decision, it is seen that the matter related to appointment of Subordinate Judges under the relevant rules, relating to appointment of Subordinate Judges in Haryana. The Apex Court directed that the Public Service Commission must communicate the names of all the candidates, who are obtaining 55% or above marks and cannot withhold some names on the ground that the limited vacancies are available. The above decision was given on the basis of the provision of Rules 8 & 10 of the relevant State rules, which provided that in order to qualify, the candidates must secure aggregate of 55% marks in the written as well as viva voce test. The recruitment rules of the appointment of teachers under the UGC Scheme under the State of Arunachal Pradesh does not provide for such cut off or qualification mark. Hence, the ratio of law laid down in Ms. Nilima Sungla (supra) is not applicable to the facts of the present case. The recruitment rules of the appointment of teachers under the UGC Scheme under the State of Arunachal Pradesh does not provide for such cut off or qualification mark. Hence, the ratio of law laid down in Ms. Nilima Sungla (supra) is not applicable to the facts of the present case. The learned counsel for the respondents on the other hand, submits that as per the requisition received from the State Govt. and as per the relevant rules, the Commission conducted the competitive examination to select the most suitable candidate for appointment to the post of Lecturer. The learned counsel has placed reliance on the decision of the Apex Court in the case of State of U.P. -Vs-Rafiquddin, 1987 (Supp.) SCC 401. The Apex Court observed as follows : "The Division Bench of the High Court observed that the commission had no authority to fix any minimum marks for the viva voce test and even if it had such a power it could not prescribe the minimum marks without giving notice to the candidates. The Bench further observed that if the Commission had given notice to the candidates may before the steps for holding the competitive examination were taken the candidates may or may not have appeared at the examination. In our opinion the High Court committed a serious error in applying the principles of natural justice to a competitive examination. There is a basic difference between an examination held by a college or university or examining body to award degree to candidates appearing at the examination and a competitive examination. The examining body or the authority prescribed minimum pass marks. If a person obtains the minimum marks as prescribed by the authority he is declared successful and placed in the respective grade according to the number of marks obtained by him. In such a case it would be obligatory on the examining authority to prescribe marks for passing the examination as well as for securing different grades well in advance. A competitive examination on the other hand is of different character. The purpose and object of the competitive examination is to select most suitable candidates for appointment to public services. A person may obtain sufficiently high marks and yet he may not be selected on account of the limited number of posts and availability of persons of higher quality. A competitive examination on the other hand is of different character. The purpose and object of the competitive examination is to select most suitable candidates for appointment to public services. A person may obtain sufficiently high marks and yet he may not be selected on account of the limited number of posts and availability of persons of higher quality. Having regard to the nature and characteristics of a competitive examination it is not possible nor necessary to give notice to the candidates about the minimum marks which the Commission may determine for purposes of eliminating the unsuitable candidates. The rule of natural justice does not apply to a competitive examination." 4. The learned counsel for the petitioners has also submitted that the decision in Ms. Nilima Sungla (supra) case was followed by this Court in Writ Petition (Civil) No. 189 (AP) of 2000. On perusal of the copy of the order passed by this Court, it is seen that the learned Single Judge has categorically held "that the decision in Ms. Nilima Sungla may not be exactly applicable in the present case. The terms 'eligibility', 'qualified', 'selected' have different meaning and connotation of these words are to be gathered in the context used in the relevant rules, statutory or otherwise". In the present case, requisition was very specific and at this stage, the learned counsel for the respondents has submitted that the decision in the above case has been challenged in Writ Appeal, which is still pending and the impugned order has been stayed. 5. In the present case, requisition was very specific and the Commission, therefore, recommended the names of the candidates as asked for. There was no scope to submit a list of the 'qualified candidates' as prayed for by the petitioners. 6. It is further submitted that in the requisition letter (appendix), there was mentioned regarding the anticipated vacancies in respect of three posts in the subjects of geography, economics, and Hindi, which are likely to occur in the year 2001-2002. It is contended that the Commission failed to consider these vacancies and did not recommend names of candidates against these anticipated vacancies. The case of the commission, on the other hand is that, although, anticipated vacancies are shown in the appendix, the penal of selected candidates was sought to fill up the vacant post of lecturers only. It is contended that the Commission failed to consider these vacancies and did not recommend names of candidates against these anticipated vacancies. The case of the commission, on the other hand is that, although, anticipated vacancies are shown in the appendix, the penal of selected candidates was sought to fill up the vacant post of lecturers only. In para 5 of their affidavit-in-opposition, the Commission states as below : "That in response to the statement made in paragraph 3 of the petition, your answering deponent begs to state that though the vacancies likely to be occurred during the year 2001 -2002 have been shown as a. Geography-1, b. Economics-1 and c. Hindi-1 in the requisition letter, but the department had never specifically sought for preparation of a separate panel list against the likely/anticipated vacancies. It is pertinent to mention that even if the panel was sought, the same cannot be used against anticipated vacancies. The panel so prepared has to be utilised for filling up of the vacant post. Hence, the Commission recommended the panel list of only against the clear/regular vacancies for appointment to the post of Lecturers." There cannot be any selection in respect of anticipated vacancies, unless the relevant service Rules provided specifically for that. There is some reasoning for the same as because, if the anticipated vacancy for the year 2003-2004 are filled up by selection in the year 2001 itself, the candidates or the persons who become eligible in the year 2002-2003 will be deprived and their right for consideration against such post will be defeated. There is nothing on record to show that the rules provided for the selection of anticipatory/future vacancy shall be made. In view of the aforesaid, there is no merit in this writ petition and the writ petition is accordingly dismissed. No costs.